USCA1 Opinion
United States Court of Appeals
For the First Circuit
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Nos. 96-1269, 96-1455, 96-1998, 96-1999
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK BRIMAGE and TRACY ROSS,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Frances S. Cohen, with whom Michael D. Vhay, C. Dylan Sanders and
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Hill & Barlow PC were on brief, for appellant Tracy Ross.
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Peter B. Krupp, with whom Lurie & Krupp LLP was on brief, for
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appellant Frank Brimage.
James F. Lang, Assistant United States Attorney, with whom Donald
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K. Stern, United States Attorney, was on brief, for appellee.
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June 9, 1997
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LYNCH, Circuit Judge. A sting operation in the gun
LYNCH, Circuit Judge.
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trade involving a government informant resulted in the arrest
of Frank Brimage and Tracy Ross. Brimage was convicted of
being a felon in possession of a firearm and ammunition;
Ross, of being a felon in possession of ammunition, both in
violation of 18 U.S.C. 922(g)(1). Brimage was sentenced to
more than 11 years in prison; Ross to more than 8 years in
prison.
The primary argument they make on appeal is that a
federal agent acted in bad faith in monitoring but not
recording their conversations during the sting (thus not
preserving conversations said to be exculpatory) and that
such bad faith requires dismissal of the charges. They also
argue that there was error in not requiring the government to
disclose prior investigative reports involving the government
informant, and that certain other evidence was Brady material
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which should have been disclosed. Ross argues in addition
that he should have been granted a new trial based on newly
discovered exculpatory evidence and that the district court
erroneously concluded it did not have discretion to depart
downward to make him eligible for a residential drug
rehabilitation program. Both defendants are ably
represented, but the record reveals no such errors and we
affirm.
I.
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This weapons transaction unfolded in a Boston
neighborhood which had been plagued with drive-by shootings
and murders. Freddy Pena, a supplier of both guns and drugs,
decided to lessen his potential criminal liability -- on
account of pending state cocaine charges and threatened
federal firearms charges -- by accepting an offer extended by
Special Agent Daniel Campbell of the Bureau of Alcohol,
Tobacco, and Firearms (the "ATF") to become an informant.
To compensate Pena for his initial efforts as an
informant, the federal authorities intervened and arranged
for a reduction in Pena's state charges, and they never
brought the threatened federal firearms charge. Thereafter,
he earned cash for his efforts, and was paid $600 for this
particular sting.
This sadly common urban tale unfolded in January of
1995. Frank Brimage then had a considerable criminal record,
including commitments for rape, armed robbery, and assault
with a deadly weapon. Tracy Ross had a relatively minor
prior criminal record. He had been a high school basketball
star who won a scholarship to college, but apparently flunked
out. After this, he worked intermittently, and ultimately
descended into heroin addiction. According to Ross, Brimage
was his dealer.
Brimage usually hung out next to a liquor store on
Blue Hill Avenue in Boston. Pena approached him there on
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January 16, 1995 and asked him if he had any guns to sell.
Brimage replied that he had a .32 caliber handgun and a .380
caliber handgun but was not going to sell them. Pena
reported the conversation to his ATF contact, Campbell.
Campbell told Pena to ask Brimage if he wanted to participate
in an armed robbery of a drug dealer. Pena asked Brimage the
next day, saying that he needed "two guys and two guns."
Brimage responded "[t]hat's me." Ross then joined them.
Pena and Brimage continued discussing the robbery; Ross
indicated that he wanted to participate and asked how much
money he would get out of it. None of these conversations
were recorded or monitored by the ATF.
Pena told the ATF agent that Brimage and Ross were
willing to commit the robbery on January 19. On the
appointed day, Agent Campbell met Pena and took him to the
police station. Pena was strip-searched, wired with a
transmitter, given a car, and told where to go and what to
do. Pena was kept under surveillance by three mobile units,
including one carrying Agent Campbell, who monitored the
conversations from Pena's transmitter on an ATF portable
radio. Two Boston Police Detectives were also in the
unmarked vehicle with Campbell.
Pena drove to the vicinity of the liquor store on
Blue Hill Avenue to pick up Brimage and Ross. Brimage told
Pena, in a conversation overheard by two officers, that they
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had to go to Greenville Street to get the guns. Before doing
that, Brimage went into a store and emerged with a bag. Ross
and Brimage got into the car and drove to Greenville Street.
In an overheard conversation, Brimage said the bag contained
tape.
At Greenville Street, Brimage got out and went into
a building. While he was gone, Ross again asked how the
money would be divided. Pena told him to ask Brimage. When
Brimage returned, Pena drove to a large parking lot in a
shopping center where a Toys'R'Us was located, as the ATF
agent had previously directed. En route, Pena talked about
how the drug dealer would not resist so they would not have
to shoot him. At the shopping center, Pena got out of the
car and walked alone into the store, ostensibly to meet
someone who had a key to the drug dealer's apartment
building.
On signal, the police teams surrounded the car. On
the floor of the front passenger's side, where Brimage had
been seated, the police found a .380 caliber semi-automatic
pistol, loaded with six rounds of ammunition. On the floor
of the rear passenger side, where Ross had been seated, the
ATF agent found a .32 caliber revolver, loaded with five
rounds, in a clear plastic bag. There were no fingerprints
on the guns. On the rear seat was a white plastic bag with
two rolls of duct tape. Brimage and Ross were arrested by
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the Boston Police. Throughout these events on January 19,
Agent Campbell monitored but did not record Pena's
conversations with the two defendants.
II.
Failure To Record Wire Transmissions
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Defendants advance the theory that the ATF
deliberately failed to record Pena's initial solicitation of
their participation in the robbery and the circumstances of
the sting, in a bad faith effort to avoid the creation or
preservation of exculpatory evidence. From this they argue
that: (1) the government is obligated not to act in bad
faith in its decisions as to which conversations to record
(and monitor); (2) that the appropriate remedy for a bad
faith failure to record is dismissal of the charges; (3) that
the district court was obligated to hold an evidentiary
hearing; and (4) that the affidavits defendants submitted
supported findings that the government acted in bad faith and
that the "lost" evidence was exculpatory and irreplaceable.
The government responds that it has no obligations
whatsoever to record and thus "create" evidence. It says
that the application of the bad faith test is limited to
failure to preserve already existing evidence in the
government's possession. The government argues that the
doctrines announced in California v. Trombetta, 467 U.S. 479
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(1984), and Arizona v. Youngblood, 488 U.S. 51 (1988),
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requiring the preservation of existing evidence, should be
taken no further. In any event, the government says, the
defendants' allegations do not rise to the level of bad faith
under the test this court used in United States v. Femia, 9
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F.3d 990 (1st Cir. 1993), in the aftermath of Trombetta and
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Youngblood. Femia, 9 F.3d at 993-95.
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The government is surely correct that the decision
not to record a conversation is categorically different from
the failure by police to maintain the breath samples of a
drunk driving defendant, as was the case in Trombetta, or the
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failure to preserve semen samples in a sexual assault case,
as happened in Youngblood. Those cases raise issues of
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destruction of evidence closer to those involved in Femia,
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which concerned the destruction of recorded conversations.
For the purposes of the Jencks Act, 18 U.S.C. 3500, we have
already recognized such a distinction, holding that the Act,
which requires the production of all statements by government
witnesses relating to the substance of their testimony, does
not require the government to record all aspects of
interviews with witnesses, United States v. Lieberman, 608
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F.2d 889, 897 (1st Cir. 1979), or always to take notes,
Campbell v. United States, 296 F.2d 527, 531-32 (1st Cir.
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1961).
At the same time it is not particularly helpful to
think of the issue as broadly as the government frames it:
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that there is absolutely no duty on the part of the
government to "create" evidence. At issue here is the
government's decision not to "create" independent
verification evidence in the form of recordings and instead
to rely on the memory of witnesses and their testimony about
what was said, and we limit our inquiry accordingly.
The breadth of the defendants' line of argument
poses its own problems. It is, of course, easy for a
defendant to raise a claim that an unrecorded conversation
should have been recorded. Even if the recording of the
conversation would have inculpated, not exonerated him, a
defendant may get some benefit from the government's failure
to record by raising the argument and flagging that issue for
the jury.
The government is quite correct to point to another
problem with the defendants' argument. There is a need by
law enforcement personnel for considerable flexibility in how
they go about their investigations, and courts should not
intrude into this area. That interest is somewhat lessened,
but not eliminated here, by evidence that the ATF may have
violated its own somewhat ambiguous regulations in deciding
not to record the sting operation or the initial contact.1
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1. The pertinent ATF policy required "all undercover
contacts by . . . confidential informants" to be "supported
by electronic surveillance monitoring/recording in order to
enhance special agent/officer/confidential informant safety,
as well as to collect evidence in the investigation."
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The government's interests may, however, be thought to cut
another way in this matter. As this court recently noted in
rejecting a Jencks Act challenge to the practice of
government agents not to take notes or record interviews with
government witnesses:
By adopting a "what we don't create can't
come back to haunt us" approach,
prosecutors demean their primary mission:
to see that justice is done. . . . By
and large, the legitimate interests of
law enforcement will be better served by
using recording equipment and/or taking
accurate notes than by playing hide-and-
seek.
United States v. Houlihan, 92 F.3d 1271, 1289 (1st Cir.
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1996).
The issue is whether the fair trial rights of the
defendants have somehow been violated by the failure to
record. Some situations may raise concerns about whether the
government is putting the due process rights of defendants at
risk. Here, of the six persons who heard the conversations
and could testify to them, four were on the government
payroll (the three officers and the informant) and the
remaining two, the defendants, would have had to waive their
Fifth Amendment right to remain silent in order to testify to
their versions of the conversations. However, that
situation, absent a good deal more, is not in itself enough
to raise due process concerns.
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Given the vastly different fact patterns in which
this issue may arise, we see no reason to adopt the
government's position that a decision by law enforcement
officials not to record key conversations (to be relied on in
the prosecution) between a defendant and a confidential
informant may never be probed to determine if the decision
was made in bad faith.
Neither do we adopt the mirror rule that such a
test is always appropriate, as defendants would have us do.
Instead we turn to what we said once in a case raising a
similar claim:
Perhaps there may be a case where
selective recording presents a reviewing
court with constitutional concerns. We
need not speculate on this score,
however, for this is surely not such a
case.
United States v. Chaudhry, 850 F.2d 851, 857 (1st Cir. 1988)
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(rejecting due process claim of selective recording where
defendant did not assert government acted in bad faith).
Nothing about the circumstances of this case or in
defendants' meager proffer comes close to raising concerns
that Agent Campbell's decision not to record was made in bad
faith. Brimage submitted an affidavit, in which he made no
claim that the statements attributed to him were false but
said only that "The statements that I made during my
conversations with Freddy Pena, if taken in context, are much
more innocuous than the statements . . . attributed to me out
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of context . . . ." Ross submitted an affidavit from counsel
also suggesting that the statements by her client should be
understood in context. Both counsel took advantage of the
lack of context and argued to the jury the issue of the
government's failure to record. Their proffer has quite a
distance yet to go before it raises the spectre of bad faith.
Defendants rely heavily on another argument: the
allegedly implausible nature of Agent Campbell's articulated
reasons for not recording. Defendants largely ignore
Campbell's testimony that his squad usually monitored but did
not record sting operations and that the primary reason for
doing even that was to protect the confidential informant,
not to create evidence. Agent Campbell testified before
trial that he did not record the conversations here because
this was a joint state-federal operation and he believed the
recordings would be inadmissible in state court.2
At trial, Agent Campbell gave a somewhat different
reason for not recording: "I didn't think I would have to
rely on anything that was said in order to convict the both
suspects [sic]." While the responses were characterized by
the district court as "lame," they are not inconsistent and
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2. The dispute between the parties as to whether such
recordings are admissible in state court is largely
irrelevant. One cannot say that the agent's understanding
was plainly wrong, see Commonwealth v. Jarabek, 424 N.E.2d
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491, 493 (Mass. 1981), that he should have known it was
wrong, and thus that it was reasonable to think he had some
other nefarious motive.
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do not show bad faith. In fact, Agent Campbell's assessment
of the case may have been correct: the car was clean when
Agent Campbell gave it to Pena to use in the sting, Campbell
then monitored Pena's use of the car, and guns and ammunition
were found on the floor of the car where each of the
defendants had been sitting. The agent's testimony does not
mandate an inference of bad faith.
The claim that the district court was obligated, on
this showing, to hold an evidentiary hearing on the issue of
bad faith is without merit. Such decisions are within the
discretion of the district court, United States v. Calderon,
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77 F.3d 6, 9 (1st Cir. 1996), and there was no abuse here.
Prior Investigative Reports
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Brimage and Ross argue that the government's prior
investigative reports should have been disclosed to them as
they would have demonstrated the informant's modus operandi.
This information might, they say,3 have shown that, in prior
stings, Pena attributed to others the same incriminating
comments he now attributes to them. This, in turn, might
have shown that Pena was confused about who said what when.
Defendants also argue that the reports might have shown that
Pena had an opportunity to plant weapons and that he knew he
could successfully attribute incriminating remarks to others
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3. Defendants have reshaped their arguments somewhat on
appeal. While there may be something to the government's
waiver argument, the same result is reached on the merits.
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if he was not being recorded. By not having the reports,
they say, they were deprived of their Sixth Amendment right
to cross-examine Pena effectively.
Although the trial judge preliminarily disagreed
that the reports were discoverable exculpatory material
within the terms of Brady v. Maryland, 373 U.S. 83 (1963),
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she did, at the defendants' request, review the reports in
camera before trial. Judge Saris concluded that they
contained no exculpatory information. The defendants at
trial raised for the first time the argument that the reports
were Jencks Act material. Judge Saris again reviewed the
reports and again ruled they were not exculpatory and were
not Jencks Act material. In fact, she found that the reports
tended to buttress Pena's testimony.
Our review of these determinations is for abuse of
discretion. United States v. Femia, 57 F.3d 43, 45 (1st
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Cir. 1995) (Jencks Act material); United States v. Perkins,
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926 F.2d 1271, 1276 (1st Cir. 1991) (Brady material). The
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prosection vigorously disputes that these reports are Jencks
Act material because the reports involved investigations
other than the one in this case. We need not resolve that
argument. This case does not provide the occasion to explore
the parameters of the Jencks Act requirement that statements
be produced "which relate[] to the subject matter as to which
the witness has testified." 18 U.S.C. 3500(b). Like the
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district court, we have reviewed the reports submitted in
camera. We readily hold that the conclusions drawn by the
trial judge were not an abuse of discretion.
The Motions for New Trial
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1. The Victoria Pena Evidence
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Defendants argue from the premise that the
impeachment of Freddy Pena was key to the defense, despite
the fact that the firearms and ammunition were found
virtually at their feet. Even accepting the premise, the
defense acknowledges that it knew at trial that Pena had been
arrested in 1989 and charged in state court with a cocaine
trafficking count, that the trafficking charge was reduced to
a possession charge, and that Pena was sentenced to time
served.
What defendants did not know, they say, was that
the charge was reduced because Pena's sister, Victoria Pena,
had worked as an informant for the state police in a case
involving another drug dealer, Jose Calderon. In January
1996, four months after the conviction, Brimage sought a new
trial based on the government's failure to disclose this
information. The district court held that the government had
not suppressed the information within the meaning of United
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States v. Osorio, 929 F.2d 753 (1st Cir. 1991), and that the
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evidence was not material in the sense of requiring a new
trial.
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The denial of the motion for a new trial is
reviewed for a manifest abuse of discretion. United States
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v. Tibolt, 72 F.3d 965, 972 (1st Cir. 1995). There was no
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such abuse. We cannot say that this evidence "would so
undermine the government's case as to give rise to a
'reasonable' probability of acquittal on retrial." Id.
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Defendants say that the Victoria Pena evidence
would have permitted them to pursue two different lines of
examination: that Pena was an incorrigible drug and firearms
recidivist and that Pena lied when he testified at trial that
his sister Victoria had never dealt drugs out of their
mother's home.
A Brady violation occurs when "(1) the prosection
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. . . suppress[es] or withhold[s] evidence, (2) which is
favorable, and (3) material to the defense." United States
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v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991). We bypass the
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Osorio issue of whether the government had this information
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and suppressed it and go directly to the third prong of the
Brady analysis. We agree with the district court that the
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evidence is not material and our confidence in the verdict is
not undermined by the fact that the defense lacked this
information.
Pena's character, if not unblemished before cross-
examination, was thoroughly and ably sullied in cross-
examination. Two pages of the district court's order denying
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the motion for a new trial were devoted to descriptions of
the impeachment of Pena. His characteristic devotion to
drugs and guns was explored. As to the "lie" about his
sister, Pena testified only that she had never sold drugs out
of her mother's home, and none of the new information is to
the contrary: it only shows that she worked as an undercover
informant for the state police.
The premise of the entire argument -- that the case
turned on the impeachment of Pena -- is itself flawed. There
are the telltale guns and ammunition: the most likely
explanation was that the defendants were in possession of
them.
2. Ross' Motion for New Trial
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One month after the jury verdict, Ross filed a
motion for a new trial based on newly discovered evidence: a
statement by Michael Holmes, Brimage's cellmate after the
arrest.
The district court heard evidence and found that
soon after Brimage was arrested:
Brimage told Mr. Holmes that he (Brimage)
had been "set-up"; that Ross had only
been along for the ride as a "drug
tester"; and that Ross' high bail was
hard to understand, because Ross had had
"nothing to do with it." In a later
conversation, Brimage told Mr. Holmes
that Ross was "in the back seat all high"
and didn't know what was going on; and
that he (Brimage) would tell the court
that Ross had nothing to do with it.
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It is worth observing that Holmes is the son of Ross'
fiancee.
This claim is subject to the same review for
manifest abuse of discretion as the other new trial motion
and comes to the same end. The district court found, and we
agree, that Ross failed to be diligent in attempting to
secure Holmes' testimony before the trial ended. Ross
himself knew of the alleged conversation between Brimage and
Holmes within a month or two of the arrest and while Holmes
was still in jail and thus reachable. In all events, it is
unlikely that this new evidence would have resulted in an
acquittal. Ross twice asked what his share of the take would
be, and a gun and ammunition were found virtually under his
feet.
Ross' Sentencing Argument
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Ross says that he is in need of drug treatment;
that the guidelines authorize a downward departure, based on
a likelihood of rehabilitation, to permit a defendant to
enter a residential Bureau of Prisons drug treatment program
that is only open to those within 36 months of release; that
the district court misunderstood its authority to make such a
downward departure when it sentenced him to 97 months; and
that the case should be remanded for resentencing.
Ross and the government go through the usual
dispute as to how to characterize the issue, with the hopes
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of persuading us that the district court did or did not make
an error of law. United States v. Saldana, 109 F.3d 100,
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102-03 (1st Cir. 1997).
The question of whether the guidelines authorize a
downward departure to permit a defendant to enter a
residential drug treatment program is a thicket which we
describe briefly but do not enter. In pragmatic terms, there
is now only one residential drug treatment program, available
at 34 sites, in the federal Bureau of Prisons system. There
are many more inmates who need treatment than there are beds
available in this residential program. The Bureau of Prisons
has decided its program is best suited for those within 36
months of release. Here, Ross' guidelines range was 110 to
137 months imprisonment. He could not be immediately
eligiblefortheprogramunlessthedistrictcourt departeddownward.
The legal argument is put in these terms. Ross
claims the district court had the authority to depart
downward pursuant to 18 U.S.C. 3553(a)(2)(D), which directs
the sentencing court to consider the need for "educational or
vocational training, medical care, or other correctional
treatment . . . ." The government counters that the
guidelines categorically prohibit departures based on drug
dependence. U.S.S.G. 5H1.4.
The circuits are split on this issue. Some have
concluded that, because drug rehabilitation presupposes drug
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dependence, the guidelines prohibit any departures to
facilitate drug rehabilitation. United States v. Ziegler, 1
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F.3d 1044, 1049 (10th Cir. 1993); United States v. Martin,
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938 F.2d 162, 163-64 (9th Cir. 1991); United States v. Pharr,
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916 F.2d 129, 133 (3d Cir. 1990). Other circuits have
concluded that, while the guidelines prohibit downward
departures due to drug dependence per se, they do not
prohibit departures based on a defendant's potential to be
rehabilitated. United States v. Maier, 975 F.2d 944, 947-48
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(2d Cir. 1992); United States v. Williams, 948 F.2d 706, 710
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(11th Cir. 1991). We need not resolve the legal issue.
Looking at the totality of the record, United
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States v. Grandmaison, 77 F.3d 555, 561 (1st Cir. 1996), we
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understand the district court to have decided that, in light
of specific facts about Ross, it would not exercise any
discretion it might have to authorize a downward departure.
Ross had twice before failed to complete drug rehabilitation
programs. As the court told Ross' counsel:
I have less sanguine feelings than you do
about the recidivism, particularly since
here's a guy who panned out of a program
one time, who is facing trial and then
does it a second time. That worries me
about his ability to comply with the
rules of the program.
Later the court ruled:
I do not think that I'm going to
downwardly depart on the ground of the
likelihood of rehabilitation. I often
say that people make their bed, they lie
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in it, and all I have on the record,
despite the best of intentions, is that
he went through two drug programs and
they didn't work out.
The trial court is in the best position to make such a
discretionary judgment. That discretionary decision by the
trial court is not subject to our review.
To complete the picture, we note that the trial
court did recommend to the Bureau of Prisons that Ross be
admitted to an alternative 600-hour drug rehabilitation
program while in prison.
Affirmed.
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