
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-2308                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   CRAIG J. CLARK,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________               Kevin E. Buchholz, with whom Bianco, P.A., was on brief, for               _________________            ____________          appellant.               Peter E. Papps, First Assistant United States Attorney, with               ______________          whom  Paul M. Gagnon, United  States Attorney, was  on brief, for                ______________          the United States.                                 ____________________                                     May 30, 1996                                 ____________________                  LYNCH, Circuit  Judge.  The  kidnapping at  knife point                         ______________            of a young New  Hampshire woman by defendant Craig  Clark and            others resulted  in Clark  ultimately pleading guilty  to two            federal  charges:     conspiracy   to   interfere  with   and            interference with interstate commerce by threats of violence,            both  in  violation of  18 U.S.C.    1951.   This  is Clark's            second trip to this court on his sentence.  He was successful            before,  and now finds, to his chagrin, that his new sentence            is  higher  than the  one that  was  overturned in  his first            appeal.                  In United States v.  Clark, 55 F.3d 9 (1st  Cir. 1995),                     _____________     _____            this court  vacated Clark's  original 188 month  sentence and            remanded for resentencing before a new judge on grounds  that            the  government had not kept  its end of  the plea agreement.            Clark  now appeals  from  the 223  month sentence  imposed on            resentencing by the second sentencing judge after remand.                  Relying  on  the  Supreme  Court's  decision  in  North                                                                    _____            Carolina v.  Pearce, 395 U.S.  711 (1969), Clark  argues that            ________     ______            the  district   court's  imposition  of  a   prison  term  on            resentencing that  was more severe than  the sentence vacated            on appeal  effectively punishes him for  exercising his right            to  appeal and violates his right to  due process of law.  He            also contends that the district  court erred in enhancing his            sentence  based on  a  determination that  he had  obstructed            justice by  suborning perjury and making  false statements to                                         -2-                                          2            his probation officer.   The decisions  of the Supreme  Court            and  this  court  interpreting  the holding  of  Pearce  doom                                                             ______            Clark's  first attack.  His second attack is without merit on            the law and the facts.  We affirm.                                          I                  In  Pearce,  the  Supreme  Court   held  that  a  court                      ______            violates the  Due Process  Clause when  it imposes  a heavier            sentence  upon a  reconvicted  defendant for  the purpose  of            penalizing the  defendant  for having  successfully  appealed            from his  original conviction.   See  id. at  723-24.   As  a                                             ___  ___            prophylactic measure, the  Court created  a "'presumption  of            vindictiveness'  . . . which is  triggered whenever  the same            judge imposes a more  severe sentence upon a defendant  after            retrial."  Johnson v. Vose,  927 F.2d 10, 11 (1st Cir.  1991)                       _______    ____            (quoting United States v. Goodwin, 457 U.S. 368, 374 (1982)).                     _____________    _______            However, the  "presumption of vindictiveness" does  not arise            in  every  case  in  which  a  defendant  receives  a greater            sentence the  second time around.   Texas v.  McCullough, 475                                                _____     __________            U.S.  134,  138 (1986).   As  the  Court said  in McCullough,                                                              __________            "vindictiveness  of a sentencing judge  is the evil the Court            sought to prevent rather than simply enlarged sentences after            a new trial."   Id.  Thus, the presumption  of vindictiveness                            ___            created by Pearce  arises only when  "there is a  'reasonable                       ______            likelihood'  . . .  that  the  increase in  sentence  is  the            product  of   actual  vindictiveness  on  the   part  of  the                                         -3-                                          3            sentencing authority."  Alabama  v. Smith, 490 U.S.  794, 799                                    _______     _____            (1989) (citation omitted).                  The Pearce presumption does not arise where  "different                      ______                  ___            sentencers  assessed the  varying sentences  that [defendant]            received."  McCullough, 475 U.S. at 140; see also Hurlburt v.                        __________                   ________ ________            Cunningham,  996 F.2d  1273,  1275 n.2  (1st Cir.  1993) (per            __________            curiam)  ("Our  research  indicates  that  decisions  by  the            circuit  courts  of appeals  after McCullough  have uniformly                                               __________            held that the Pearce  presumption does not apply to  the two-                          ______            sentencer situation.").  In this case, the defendant's second            sentence  was  imposed  by  a  different  judge.    Thus,  no            presumption  of  vindictiveness  arises.     Absent  such   a            presumption, the defendant cannot  prevail on his due process            claim   unless   he  demonstrates   "actual  vindictiveness."            Johnson, 927 F.2d at 11.            _______                  Clark falls far  short.  He argues  that vindictiveness            should be inferred because the New Hampshire federal district            court  has only four  judges and is  a small court.   Neither            logic nor  experience warrants any such  inference.  Further,            he says,  an increased  sentence may not  be imposed  without            additional findings to support  the increase.  Pearce implies                                                           ______            no such requirement.  The second trial judge heard all of the            sentencing  evidence  anew  and  made  findings  adequate  to            support  the sentence  imposed,  which was  within the  range            prescribed  by  the Guidelines.    The length  of  a sentence                                         -4-                                          4            vacated on appeal does not automatically function as a cap on            the term of imprisonment that can be imposed on resentencing.            One of the risks of appealing  a sentence is that a different            judge, on remand, may take a different view of the  facts (or            the law) relevant to the required Guidelines findings, a view            less favorable to the defendant.  We note that Clark makes no            argument  that the  second  sentencing  judge misapplied  the            Guidelines (aside  from  his assertion  of  error as  to  the            obstruction-of-justice enhancement, which  we reject  below).            There   is  no  basis  in   the  record  for   a  finding  of            vindictiveness.    Cf.  McCullough,   475  U.S.  at  140  (no                               ___  __________            vindictiveness  where "second  sentencer provides  an on-the-            record,   wholly  logical,   nonvindictive  reason   for  the            sentence").                                          II                  Under   3C1.1  of the Guidelines, the  sentencing judge            is  directed to increase the  offense level by  two "[i]f the            defendant willfully obstructed  or impeded,  or attempted  to            obstruct or impede, the  administration of justice during the            investigation,  prosecution, or  sentencing  of  the  instant            offense."  U.S.S.G.   3C1.1 (Nov. 1993).1   Clark argues that            the district court erroneously enhanced his sentence based on            this provision.  A brief description  of the facts underlying                                            ____________________            1.  The district court apparently applied the 1993 version of            the Guidelines.  The current version of   3C1.1 is the same.                                         -5-                                          5            the district court's obstruction  of justice finding sets the            stage for resolution of Clark's claim.                  After his  arrest and prior  to his  arraignment, Clark            apparently  hatched the  thought that  if the  district court            could be persuaded that the  victim herself had been involved            in  the scheme  to  kidnap  and  hold  her  for  ransom,  the            defendants  would either  receive more  lenient sentences  or            "all walk away scott [sic] free."  In order to make the story            -- which  had no basis in  fact -- stick, he  had to convince            his  co-defendants  to  keep  to  the story  line  when  they            testified.   That is exactly what he tried to do while in the            U.S.  Marshal's  lockup.    Clark's  co-defendants,  however,            refused  to  go  along  with  his  fabrication  and  told the            probation officer of Clark's efforts to induce them to lie to            the  court.  When the probation officer asked Clark about the            scheme, he denied  it and claimed that his co-defendants must            have misunderstood him or were lying.   The probation officer            included  this  information in  the  Pre-Sentence Report  and            recommended  that Clark's  conduct  be  found  to  constitute            obstruction of justice and  that he be denied any  credit for            acceptance of responsibility.                  After hearing  testimony from Clark's two co-defendants            that Clark  had tried to induce them to lie to the court, the            district court increased Clark's offense level from 34  to 36            pursuant  to  U.S.S.G.    3C1.1.   This  enhancement  had the                                         -6-                                          6            effect  of  increasing his  Guidelines sentencing  range from            151-188  months to 188-235  months.  Clark  contends that the            district court committed three  errors: that the court should            not have applied  the preponderance-of-the-evidence  standard            with respect  to its  finding that Clark  obstructed justice;            that the court failed to view his testimony in the light most            favorable to him; and that (in light of the first two points)            the court's finding of obstruction was clearly erroneous.                  On the first point,  Clark appears to argue that  if he            had  been  separately charged  with  the  crime of  suborning            perjury  and been  convicted of  that crime  (as well  as the                               _________            crimes  of which he was actually convicted) by proof beyond a            reasonable doubt,  he would  have received a  lesser sentence            than  he received as a  result of the  obstruction of justice            being considered at sentencing.  From this, he  contends that            due  process  required  the  government to  prove  the  facts            underlying the   3C1.1 enhancement beyond a reasonable doubt.            The  argument is  doubly flawed.   First, Clark's  premise is            presented without any effort to elaborate its basis under the            Guidelines and is far from obviously true.  Second, precedent            disposes of  his argument that anything  but a preponderance-            of-the-evidence   standard   governs  the   district  court's            factfinding  at  sentencing.   See,  e.g.,  United States  v.                                           ___   ____   _____________            Lombard,  72 F.3d 170, 175-76 (1st  Cir. 1995); United States            _______                                         _____________                                         -7-                                          7            v. Gonzalez-Vazquez, 34 F.3d  19, 25 (1st Cir.  1994); United               ________________                                    ______            States v. Mocciola, 891 F.2d 13, 17 (1st Cir. 1989).            ______    ________                  Clark's  second  argument  rests  on  his  reading   of            application note1 to   3C1.1.  Thatapplication note provides:                  In  applying  [  3C1.1]  in  respect  to  alleged                  false testimony or statements  by the  defendant,                  such testimony or statements  should be evaluated                  in a light most favorable to the defendant.            U.S.S.G.    3C1.1, comment.  (n.1).   Clark argues  that this            instruction  required the  district court  to  credit Clark's            version of the  events (that his co-defendants  were lying or            misunderstood him) over the testimony of the co-defendants as            described in the PSR and given at the sentencing hearing.                  But   the  application  note   cannot  mean,  as  Clark            apparently  would have  it, that  the court must  resolve all            factual or  testimonial disputes  in favor of  the defendant.            Nor does it  require the district court, in  deciding whether            an obstruction  of justice occurred, to  accept a defendant's            self-serving denials over the testimony of other witnesses it            finds more credible.   See  United States v.  Tracy, 36  F.3d                                   ___  _____________     _____            199,  203-04 (1st Cir.), cert. denied, 115 S. Ct. 609 (1994);                                     _____ ______            see also United  States v.  Akitoye, 923 F.2d  221, 228  (1st            ________ ______________     _______            Cir. 1991) ("Were that so, the safeguard [of application note            1]  would swallow the rule in a single gulp."); United States                                                            _____________            v. Franco-Torres, 869 F.2d  797, 801 (5th Cir. 1989)  (such a               _____________            reading "would effectively enable  every defendant to nullify            its application by self-serving testimony").                                         -8-                                          8                  Indeed, the plain  language of the application  note is            not nearly so broad as to permit Clark's reading.  The note's            instruction  is specifically  limited  to the  application of              3C1.1 "in respect to  alleged false testimony or statements                     _____________            by the defendant"  and provides that only  "such testimony or                                                        _________________            statements"  should  receive  the  benefit  of  a  defendant-            __________            favorable light.  U.S.S.G.    3C1.1, comment. (n.1) (emphases            added).2  We  understand this  language to mean  that if  the            defendant is alleged to  have obstructed justice by means  of            false  testimony  or statements,  and  if  such testimony  or            statements  encompass  genuine  ambiguities   that  plausibly            suggest  that the  testimony or  statements were  innocent as            opposed to obstructive, then those ambiguities may have to be            resolved in favor  of the  innocent reading.   See Tracy,  36                                                           ___ _____            F.3d at 204 (quoting  United States v. Crousore, 1  F.3d 382,                                  _____________    ________            385 (6th Cir. 1993)).  As this court has recently said:                  [The]   interpretive  principle   [contained   in                  application   note   1]  only   applies   to  the                  construction  of allegedly  perjurious  language,                  not  the  determination  of  credibility of  fact                  witnesses.     . . .     Furthermore,    lenitive                  interpretations only  apply 'to  the extent  that                  an innocent reading may be plausible.'                                            ____________________            2.  We find  it significant  that an  earlier version  of the            application  note  provided,  more  expansively,   that  "the            defendant's testimony and statements should be evaluated in a            light most  favorable to  the defendant."   U.S.S.G.   3C1.1,            comment. (n.1) (Nov. 1990).  In amending the application note            to  read  as it  currently  does,  the Sentencing  Commission            explained that  "[t]his amendment  more precisely  states the            meaning of  this commentary."   U.S.S.G. App.  C, amend.  415            (Nov. 1991).                                         -9-                                          9            United States v.  Kelley, 76  F.3d 436, 441  (1st Cir.  1996)            _____________     ______            (quoting Tracy,  36 F.3d at 204).  In sum, application note 1                     _____            requires at  most that  the district court  indulge "lenitive            interpretations"  of  the  defendant's allegedly  obstructive            statements  to  the  extent  plausible,  and  only  if  those            statements are ambiguous.   See Tracy,  36 F.3d  at 204.   It                                        ___ _____            does not require  the district  court to avoid  a finding  of            obstruction by contriving doubt as to the defendant's conduct            where  the evidence  is otherwise  clear, merely  because the            defendant denies he  did anything  obstructive.   See id.  at                                                              ___ ___            203-04; United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st                    _____________    ____________            Cir. 1991).                  Here, there  were two aspects  of Clark's  conduct that            the  court  found  constituted obstruction  of  justice:  his            attempts to induce his co-defendants to lie to the court, and            his  statements to  the  probation officer  denying any  such            attempts.  See U.S.S.G.   3C1.1,  comment. (n. 3(b) &  3(h)).                       ___            We  review the  district court's factual  findings underlying            the   3C1.1 enhancement only  for clear error.   See Akitoye,                                                             ___ _______            923 F.2d at 229.                  As to Clark's  attempt to suborn perjury,  the lenitive            interpretive principle of  application note 1 is  inapposite,            as that conduct  did not  strictly consist of  the making  of            false statements.   The  district court explicitly  found the            testimony  of Clark's co-defendants regarding Clark's conduct                                         -10-                                          10            to be credible, notwithstanding  Clark's denials.3  We cannot            say that the court's finding was clearly erroneous.                  As  for  Clark's  allegedly  false  statements  to  the            probation  officer, there  was nothing ambiguous  about them.            There is no dispute  that Clark made those statements.   Once            the  district court found that Clark had in fact attempted to            induce his  co-defendants to  perjure themselves,  it clearly            did  not err in finding that Clark's denials to the probation            officer  constituted obstruction of  justice for  purposes of              3C1.1.                  Affirmed.                  _________                                            ____________________            3.  The  fact  that  the  co-defendants did  not  recall  the            precise  language Clark used  in his entreaties  to them does            not undercut that finding.                                         -11-                                          11
