

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 94-1008

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                 FRANCISCO RODRIGUEZ CLAUDIO,
                         a/k/a PITO,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Raymond L. Acosta, U.S. District Judge]                                                                

                                         

                            Before

                   Selya, Boudin and Stahl,

                       Circuit Judges.                                                 

                                         

James Kousouros for appellant.                           
Richard A.  Friedman, Department of  Justice, with whom  Guillermo                                                                              
Gil, United  States Attorney,  and Rosa E.  Rodriguez-Velez, Assistant                                                                   
United States Attorney, were on brief for the United States.

                                         

                       January 5, 1995
                                         

     BOUDIN,  Circuit  Judge.    On May  6,  1992,  Francisco                                        

Rodriguez  Claudio  was  indicted,  in  the last  superseding

indictment in this case, for  conspiring to import heroin, 21

U.S.C.     952(a), 963, and for conspiring to possess it with

intent  to  distribute.   21  U.S.C.      841(a),  846.   The

indictment,   which   embraced   23  co-defendants,   charged

Rodriguez  and others  with participating  in a  wide-ranging

drug  conspiracy to  secure  heroin from  Southeast Asia  and

distribute it  in Puerto  Rico and  elsewhere  in the  United

States.     Various  defendants,  including  Rodriguez,  were

charged  with specific acts of possession, transportation and

money laundering.

     At the time Rodriguez was indicted in the present  case,

he  was serving a  sentence of 105  months as a  result of an

earlier guilty plea entered in October 1990.  In this earlier

case, Rodriguez had pled guilty to one count of conspiring to

possess  heroin with intent  to distribute  and one  count of

aiding and  abetting an attempt to possess heroin with intent

to distribute.  21 U.S.C.    841(a), 846.  That case centered

around a  specific reverse-sting  drug transaction  in Puerto

Rico involving Rodriguez.

     Following his indictment in May 1992, Rodriguez moved to

dismiss on  the ground  that the  new prosecution  was barred

under the double jeopardy clause, U.S. Const., amend. V.  The

government responded with an opposition including a number of

                             -2-                                         -2-

exhibits, three of which  were filed ex parte with  a request                                                         

that  they be  sealed.   Defense counsel  was advised  of the

nature of these sealed documents but not their contents.  The

sealed documents  were  two  DEA-6  forms  recording  witness

interviews and one transcript containing grand jury testimony

of a co-conspirator.

     The magistrate judge, to whom the double jeopardy motion

was  referred,  rejected  Rodriguez'  attempt to  secure  the

sealed materials.   Ultimately  the magistrate judge  filed a

report  recommending  that  the  double  jeopardy  claim   be

disallowed.    On review,  the  district  court rejected  the

double jeopardy defense  and upheld the sealing  of the three

documents.   Neither  the magistrate  judge nor  the district

court held an evidentiary hearing.

     Rodriguez then entered into a conditional plea agreement

reserving his  right to  appeal the  rejection of the  double

jeopardy defense.  Fed.  R. Crim. P. 11(a)(2).  On  March 22,

1993,   Rodriguez  pled   guilty  to  the   drug  importation

conspiracy charge  already mentioned  and to two  substantive

counts:  one for money laundering, 18 U.S.C.   1956(a)(2)(A),

and the other for a specific act of importation.  21 U.S.C.  

952(a).  The  remaining charges against Rodriguez,  including

the distribution conspiracy count  under 21 U.S.C.    841(a),

846, were dismissed.

                             -3-                                         -3-

     The  district  court sentenced  Rodriguez  to concurrent

sentences  of 112 months on all three counts, these sentences

to run  concurrently with the previously  imposed (and partly

served) 105-month sentence in the earlier case that had ended

with  the  guilty plea  entered in  May  1990.   The district

court's  object was  to  produce a  total  punishment of  142

months' imprisonment for the  two cases pursuant to guideline

provisions discussed  below.  The district  court declined to

grant a downward departure or to defer sentencing in order to

hear  medical   experts  testify  about   the  condition   of

Rodriguez' son.

     On  this appeal,  Rodriguez  assails the  denial of  his

double jeopardy claim and the sealing of the three documents.

He then argues  that the sealed items  also constituted Brady                                                                         

material  and  were independently  required to  be disclosed.

Finally, Rodriguez  says that the district  court should have

allowed the  medical  experts to  testify in  support of  the

downward departure request and that in any event the sentence

was improperly calculated.   We  address the  issues in  that

order.

     1.  The  double jeopardy issue is  more complicated than

difficult.   On  appeal,  Rodriguez has  narrowed the  double

jeopardy claim to an attack on the import conspiracy count in

the May 1992  indictment.   In substance he  claims that  the

distribution conspiracy charged in  the earlier 1990 case was

                             -4-                                         -4-

merely an aspect of  the larger import conspiracy  charged in

the  present case.   Having been prosecuted  and convicted of

that  "single" offense--Rodriguez  argues--he  cannot now  be

prosecuted a second  time for  the same offense.   See  North                                                                         

Carolina v. Pearce, 395 U.S. 711 (1969).                                 

     The  government   has,  of   course,  brought   the  two

conspiracy  charges under  different statutes.   The  October

1990 plea in the prior case concerned a conspiracy to possess

with intent to  distribute and  the March 1993  plea in  this

case involved a conspiracy to import.  The former charge (but

not  the  latter) requires  an  intent  to  distribute as  an

element of the offense;  and the latter (but not  the former)

requires  an intent to import.   Thus, the  test for separate

offenses adopted  in Blockburger  v. United States,  284 U.S.                                                              

299, 304 (1932), is satisfied.  Put differently, an agreement

to import  may be  punished separately  from an agreement  to

possess with intent to distribute.

     In its  brief, the government appears to assume that the

presence   and  applicability  of  two  different  conspiracy

statutes,  each requiring an element that the other does not,

means   that   there   were  two   different   conspiratorial

agreements.  That is not necessarily so.  There could be only

a single  agreement  which had  multiple criminal  objectives

(e.g., a  conspiracy to import  and distribute heroin).   See                                                                         

Braverman v. United  States, 317 U.S. 49 (1942).   As best we                                       

                             -5-                                         -5-

can  tell, that  is just  what Rodriguez  is arguing  in this

case.

     But even  if Rodriguez is  right in claiming  that there

was  only  a  single   agreement  (and  the  indications  are

otherwise),  it does not matter.  A single act may constitute                                                          

two different  offenses for double jeopardy  purposes so long

as two different  statutes were violated and each requires an

element that the other does not.  This is true of conspiracy,

Albernaz  v.  United  States,  450 U.S.  333  (1981)  (single                                        

conspiracy embracing drug  importation and distribution),  as

well  as  other crimes.    E.g.,  United  States v.  Franchi-                                                                         

Forlando, 838 F.2d  585, 589 (1st Cir.  1988) (importation of                    

drugs violating both prior approval and disclosure statutes).

     This  case involves  not only  multiple convictions  but

successive   prosecutions,  yet   the  Blockburger   test  is                                                              

generally  applied in both situations.   See United States v.                                                                      

Dixon,  113 S.  Ct. 2849,  2859-64 (1993).   Perhaps  in some                 

circumstances there might be  collateral estoppel or even due

process limitations on a second prosecution  for the same act

(e.g.,  where an acquittal occurred  in the first  case).  No                 

such situation is  presented here.  And  under the principles

established in  Blockburger even  a single conspiracy  can be                                       

two  different  "offenses"  for  double   jeopardy  purposes.

Albernaz, 450 U.S. at 339.                    

                             -6-                                         -6-

     Thus, we do  not need  to consider  whether the  overlap

between  the two conspiracies  here charged--in  time, place,

conspirators, objects and the like--is such that there is one

unlawful agreement  or several.  See United  States v. Gomez-                                                                         

Pabon, 911 F.2d 947  (1st Cir. 1989), cert. denied,  493 U.S.                                                              

1030 (1990).  In fact, the  government has  a colorable  case

that  the   distribution  conspiracy  charged  in   the  1990

indictment was a narrow  one and that, apart from  the common

presence of Rodriguez and one confederate, that drug deal had

little  to  do  with  the  large  ring  responsible  for  the

Southeast  Asia  imports.   But  the  evidence  is mixed,  no

evidentiary hearing was  ever held, and it  is unnecessary to

resolve the matter.

     For  the  same  reason,   the  sealing  of  two  witness

interviews   and   the  grand   jury  transcript   cannot  be

prejudicial in relation  to the double jeopardy defense.  The

only  relevance of the material (so far as double jeopardy is

concerned) was  its bearing on the question whether there was

one conspiracy or  several, and the  answer does not  matter.

In  fairness to  the  parties, we  note  that this  case  was

largely litigated in the  district court before United States                                                                         

v.  Dixon,  overruled the  "same  conduct" test  of  Grady v.                                                                      

Corbin,  495 U.S.  508  (1990), and  under  Grady the  double                                                             

jeopardy  and  any  related  disclosure  claims  might   look

different.  

                             -7-                                         -7-

     2.  Looking to  future prosecutions, we think  it useful

to  comment  on  one aspect  of  the  sealing  issue and  the

government's defense  of the  procedure it  followed.   It is

true that from time to time, in special circumstances, judges

in  criminal cases  do receive  submissions  from prosecutors

whose  contents are  not made  known to  the defense;  and in

extraordinarily  rare   cases  even  the  existence   of  the

submission may be undisclosed.   United States v. Innamorati,                                                                        

996 F.2d 456, 487 (1st  Cir.), cert. denied, 114 S. Ct.  409,                                                       

459 (1993), 114 S. Ct. 1072, 1073 (1994).  But our traditions

make both  of these  courses presumptively doubtful,  and the

burden of justification is upon the government.

     In  this case it is difficult to tell from the materials

available  to  us  what  justification was  provided  by  the

government  at the outset; we have  only a boilerplate motion

to  seal which  was granted.   Thereafter,  when  the defense

sought access  to the material, the  government's response to

the magistrate judge and  to the district court was  that the

witness statements  were Jencks  materials which need  not be                                           

disclosed before the witness testifies, see 18 U.S.C.   3500;                                                       

Fed. R. Crim.  P. 26.2,  and that grand  jury materials  were

protected by Fed.  R. Crim. P. 6.  The  government renews its

contention in this court.

     The  contention is  so  fundamentally mistaken  that  we

cannot pass by it in silence for fear that the government may

                             -8-                                         -8-

think to repeat its approach in a case where it  turns out to

matter.   Subject to  various qualifications, the  Jencks Act

and Rule 6  are perfectly proper objections  when the defense

is  fishing  on  discovery  to obtain  information  from  the

government.   But this is an instance in which the government

was seeking  affirmatively to  use the sealed  information in

court as  evidence, to  obtain a  ruling from the  magistrate

judge  and the  district court  on the  merits of  the double

jeopardy issue.  

     Rodriguez' position on  appeal--that the government  can

never affirmatively use information  in court and withhold it                                                             

from the defense--may overstate the  matter; but not by much.

To  be sure,  sealed submissions sometimes  have to  occur in

situations where  the government seeks a  ruling that certain

information  it  is  withholding  should   not  be  disclosed

because,  for  example, it  is  claimed to  be  irrelevant or

privileged  or outside the  scope of  Brady v.  Maryland, 373                                                                    

U.S.  83 (1963).  Even then, the courts customarily insist on

a particularized  showing of  substantial cause (e.g.,  state                                                                 

secret, danger to an ongoing investigation).  See Innamorati,                                                                        

996 F.2d at 487 (citing cases).

     The notion  that the  government can have  a defendant's

defense  dismissed  based  on  government  evidence that  the

defendant  is not allowed to  see goes even  further than the

withholding of irrelevant or privileged information.  And the

                             -9-                                         -9-

government's  asserted  reasons here  do  not  even begin  to

approach a justification for such an action.  Jencks material                                                                

is disclosed  routinely after a witness  testifies; and grand

jury  testimony can be made  available under Rule  6 based on

all kinds of circumstances.  The idea that general safeguards

against wide-ranging discovery like the Jencks Act and Rule 6

would  be  sufficient  to  justify  a  conviction  on  secret

evidence is patently absurd.

     The government cites us to the alleged "flat preclusion"

of  the  Jencks  Act,  which  states  that  no  report  by  a

government witness or prospective  witness in a criminal case

"shall be  the subject  of subpena, discovery  or inspection"

until  the  witness has  testified on  direct  at trial.   18

U.S.C.   3500.   But  even the barest  consideration of  this

statute  makes  it  apparent  that  it  is  a shield  against

premature discovery  efforts.   See Jencks v.  United States,                                                                        

353 U.S.  657 (1957).  It is not a license for the government

to use such statements as evidence in court and then deny the                  

defense access to them.

     Of course, a particular piece of evidence contained in a

Jencks statement or  in grand jury testimony  might itself be                  

protected   on   independent  grounds   that  are   far  more

compelling.  But we need not try to imagine in this case what

grounds  might be so compelling as to allow the government to

use  evidence  in court  but  withhold it  from  the defense.

                             -10-                                         -10-

Nothing  in the government's brief  so much as  hints that it

has any justifications beyond  its boilerplate Jencks Act and

Rule 6 assertions.

     3.    We  turn  now  to  Rodriguez'  claim  of  a  Brady                                                                         

violation.   Rodriguez now has access to one of the documents

previously sealed--a DEA  debriefing of co-defendant Martinez

on  April 6,  1992--which contains  Martinez' assertion  that

Rodriguez provided  $150,000 for  the purchase of  cocaine in

Hong  Kong.  Although  the date of the  money transfer is not

stated, surrounding dates indicate that it occurred  sometime

during  March 1990  and at  least some  days before  April 4,

1990, when Martinez traveled to  Hong Kong to purchase drugs.

One of the overt acts charged against Rodriguez in aid of the

import conspiracy count was  that on or about March  1990, he

provided $150,000 to Martinez in Puerto Rico to  finance drug

purchases for import.

     In  connection with the  plea agreement and  its Rule 11

proffer,  the  government twice  asserted  that the  $150,000

transfer  by Rodriguez occurred on April 7, 1990.  On appeal,

Rodriguez  asserts that  the  debriefing report,  as well  as

other  government evidence,  confirm that  Martinez left  for

Hong Kong on April  4.  Since such evidence  contradicted the

government's plea-related assertions that the  money transfer

occurred in Puerto Rico on April  7, it had to be turned over

under the Brady doctrine.                           

                             -11-                                         -11-

     The government assumes  arguendo that Brady might  apply                                                            

where  a  withholding  of  exculpatory  information  actually

causes a guilty plea,  see Miller v. Angliker, 848  F.2d 1312                                                         

(2d Cir.) cert. denied, 488 U.S. 890 (1988), but says that it                                  

has no record that the  defense ever requested Brady material                                                                

in  the district court.   Rodriguez says that  the failure to

make  such  a request  is not  conclusive.   See  Ouimette v.                                                                      

Moran, 942 F.2d 1, 9  n. 6 (1st Cir. 1991).  We see no reason                 

to   explore  these  interesting   subjects  since,   as  the

government  also  points out,  the  discrepancy  here has  no

significance.  

     The   government  specified   in  the   indictment  that

Rodriguez transferred  the $150,000  in or about  March 1990;

that  this date  was  correct is  strongly  suggested by  the

Martinez' debriefing and is  not contradicted by any evidence

we have seen.   The government cannot explain how the April 7

date  crept into the  proceedings, but  it was  apparently an

error and would have been so explained in the district court,

had Rodriguez  complained about  the discrepancy between  the

indictment and  the proffer.   So explained,  the discrepancy

would  not have given Rodriguez any reason to alter his plea.

     Tersely, Rodriguez'  brief  asserts that  the  April  6,

1992,  report debriefing  Martinez was  Brady material  for a                                                         

quite different reason.   In the report, Martinez is reported

                             -12-                                         -12-

(by the  debriefing agent) as describing  a proposed per-unit

purchase  price for the drugs in an amount that Rodriguez now

says  is  implausible.    The  government,  responding  quite

briefly,  says  that  the  accuracy of  the  information  was

"completely immaterial"  to the  counts of conviction  and to

Rodriguez' decision to plead guilty.

     The  misstatement as to the purchase price, if it were a

misstatement,   might   conceivably   have   furnished   some

ammunition for  cross-examination if Martinez  had testified.

But  there  is  no  reason  to   think  that  the  government

deliberately withheld information:   it was  apparently never

asked  to search  for  Brady material  and  in any  case  the                                        

significance  of the  drug price  figures certainly  does not

leap off  the page.   More important,  we have been  given no

reason  to  think  that  even some  impairment  of  Martinez'

credibility  would  have  undermined  what  was apparently  a

substantial case against Rodriguez.

     Rodriguez'  brief  makes no  effort  to  explain why  we

should think  that one  piece of potential  cross-examination

evidence   should  be   deemed   likely   to  undermine   the

government's case  and Rodriguez'  inclination to plead.   At

the very least,  Rodriguez' belated Brady objection  requires                                                     

some  reason to  believe that  the plea  would not  have been

entered if the price information had been disclosed.  Miller,                                                                        

848  F.2d at  1321-22.   We  need not  be  precise about  the

                             -13-                                         -13-

required showing since no  such showing is even  attempted on

appeal.

     4.  Rodriguez' remaining  claims relate to his sentence.

The first one, which can be disposed of quite simply, is that

the  district  court abused  its  discretion  in refusing  to

postpone  the scheduled  sentencing,  in order  to allow  the

submission  of   live  medical  testimony.     Prior  to  the

sentencing  Rodriguez  had  requested  a  downward  departure

because  of family circumstances,  specifically, the need for

him  to  care  for  a  12  year  old  son  suffering  from  a

neurological  condition and  a learning disorder.   Rodriguez

had  already  submitted  some written  information  about the

son's  condition, but  sought  a postponement  to offer  live

medical testimony claimed to be more specific.

     The district court  rejected the requested postponement,

explaining  at  the sentencing  that  the  court had  already

carefully considered  the  requested downward  departure  and

found it not to be warranted.   But the court then offered to

accept at the hearing  a proffer of what the  absent expert's

medical testimony would be.   A proffer was made, but it  did

not alter the court's refusal to depart downward.  On appeal,

Rodriguez   does   not   claim   that  the   district   court

misunderstood the scope of its authority to depart--only that

the   refusal  to  hear  live  testimony   was  an  abuse  of

discretion.

                             -14-                                         -14-

     The government tells  us that  we have  no authority  to

review the refusal to postpone because a refusal to depart is

itself largely  unreviewable, and that  in any case  it would

have  been impermissible  to grant a  downward departure.   A

shorter, less debatable, answer is that there is no automatic

right to present live  testimony at sentencing, United States                                                                         

v. Tardiff, 969  F.2d 1283,  1286 (1st Cir.  1992), and  that                      

testing the value of proposed  live testimony by a  proffer--

especially  where a  postponement would  be involved--accords

with  both  common  practice  and  good sense.    Nothing  in

Rodriguez'  brief   persuades  us  that  a   proffer  was  an

inadequate wayto convey thesubstance of themedical testimony.

     5.  The remaining  sentencing issue is more complicated.

Because Rodriguez was already  serving a federal sentence for

drug offenses, he was sentenced in this case under U.S.S.G.  

5G1.3(c).   Under  this provision,  the court  calculates the

total punishment  that would  have been imposed  if Rodriguez

had been convicted of both the prior offenses and the present

ones  in one case, and then imposes  a new sentence that runs

consecutively  to the old to the extent needed to impose that

total  punishment on Rodriguez.  Id. comment. (n.3).  In this                                                

case, the  district court fixed the total  punishment for the

prior and present crimes as 142 months, a figure  that is not

here disputed.

                             -15-                                         -15-

     Since  Rodriguez  was   already  serving  a  105   month

sentence, the  district court then computed  the new sentence

with  the object of achieving  a total period  of 142 months'

imprisonment.  Stating  that Rodriguez had  been incarcerated

for 30 months under the old sentence, the court fixed his new

sentence  at   112  months'   imprisonment  and   imposed  it

concurrently with  the prior  105 month  sentence; obviously,

the original 30 months and the new 112 months would equal the

target  of 142  months.   On appeal,  Rodriguez says  for the

first  time that, at the  time of sentencing,  he had already

served 37 rather than 30 months.

     The  problem appears  to arise  because--unknown  to the

district  court--Rodriguez  may  have been  credited  on  the

earlier sentence  for seven months served  while under arrest

and before conviction.  18 U.S.C.   3585(b).  On  appeal, the                      

government  says that the  district court's  30-month premise

may have been mistaken but that the government is not certain

of the facts.  The government also argues that the error  has

been waived by Rodriguez'  failure to raise the point  in the

district court.  It adds that Rodriguez can arguably obtain a

correction, if his version  of the facts is borne  out, under

Fed. R. Crim. P. 36.

     Rule 36  permits the  district court  to correct  at any

time "[c]lerical  mistakes in judgments  . .  . arising  from

oversight  or  omission."   The  government  agrees that  the

                             -16-                                         -16-

judgment  and transcript  show  that the  district court  did

intend  to  fix  the  present sentence  by  subtracting  time

already served  by Rodriguez on  his prior sentence  from the

target figure of  142 months.   The question  whether at  the

time of sentencing in this case Rodriguez had served 30 or 37

months  of his original sentence can  probably be answered by

resort   to  Bureau   of   Prison  records.     Under   these

circumstances, we see  no reason  why Rule 36  should not  be

available  as a remedy.   United States v.  Crecelius, 751 F.                                                                 

Supp. 1035, 1037 (D.R.I. 1990), aff'd, 946 F.2d 880 (1st Cir.                                                 

1991) (table).

     It  is  also the  more  appropriate  avenue for  relief.

Technically, Rodriguez did waive his right to appeal on  this

issue  by failing to raise it below, United States v. Elwell,                                                                        

984 F.2d 1289, 1298 (1st Cir.), cert. denied, 113 S. Ct. 2429                                                        

(1993).    Rodriguez  does   not  suggest  that  plain  error

occurred; probably the 30-month figure was plausibly based on

the  date  of  Rodriguez'  original  conviction.    Even  now

Rodriguez has not proved that there was in fact error.  Under                                    

these circumstances,  we agree  with the government  that the

proper remedy  is to  affirm without prejudice  to Rodriguez'

filing of a Rule 36 motion supported by some documentation of

the 37 month figure.

     Affirmed.                         

                             -17-                                         -17-
