
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1713                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JOHN L. TRACY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            J.  Michael McGuinness,  by Appointment  of the  Court, with  whom            ______________________        McGuinness & Parlagreco was on brief for appellant.        _______________________            Michael M.  DuBose, Assistant  United States  Attorney, with  whom            __________________        Jay P.  McCloskey, United States Attorney, was on brief for the United        _________________        States.                                 ____________________                                  September 28, 1994                                 ____________________                 BOUDIN, Circuit Judge.   John  Tracy was  indicted by  a                         _____________            federal grand jury in Maine on five counts of distribution or            attempted distribution  of LSD in  violation of 21  U.S.C.               841(a)(1),  846.   Tracy failed to  appear for  his scheduled            trial  in August  1991 and  was arrested  two weeks  later in            Florida, carrying a false identification and pretending to be            someone else.  He was then separately indicted for failing to            appear in violation of 18 U.S.C.   3146(a)(1).                   In  October 1991, Tracy was convicted by a jury on three            of the  five drug counts  and acquitted on  two others.   The            following  month he pleaded  guilty to the  failure to appear            charge.   In April 1992, Tracy  was sentenced to 97 months on            the  drug convictions and an additional 24 month term, to run            consecutively to  the first sentence, for  Tracy's failure to            appear for trial.                 Tracy  then  appealed but  this  court  rejected all  of            Tracy's claims as to both  convictions and sentence.   United                                                                   ______            States v. Tracy,  989 F.2d 1279 (1st Cir.  1993).  The United            ______    _____            States cross-appealed because of the district court's refusal            to  enhance Tracy's sentence for obstruction of justice.  See                                                                      ___            U.S.S.G.    3C1.1.   On  the government's  appeal this  court            remanded for  further proceedings.  See 989  F.2d at 1288-90.                                                ___            The  facts  pertaining  to  the remand  need  to  be  briefly                                         -2-                                         -2-            recounted, as the  remand is  the predicate  for the  present            appeal.                 In  the original  pre-sentence report  following Tracy's            convictions and guilty plea,  the probation officer said that            the drug weight  established a base offense level of 26.  The            officer recommended  a two-level enhancement  for obstruction            of  justice,  because  of an  asserted  direct  contradiction            between Tracy's  trial testimony and that  of Russell Wright,            an  individual  who  had  purchased drugs  from  Tracy  while            secretly cooperating with Maine's Bureau of Intergovernmental            Drug  Enforcement.   Tracy had  claimed  that the  final drug            transaction involved  fake LSD.   Wright had  given testimony            pointing in  the other direction, and the  jury seemingly had            believed that Tracy was not telling the truth.                 Based   on  Tracy's   criminal  history   category,  the            recommended two-point  enhancement (to  a level of  28) would            have  created  a  sentencing  guideline range  of  97  to 121            months.  At sentencing, the district court declined to impose            the two-point enhancement.  The court said:                      [It]  is  a  very  close  call.    It  is                      apparent  to  the  Court  that  the  jury                      rejected   the    credibility   of   this                      defendant and of his testimony  at trial.                      This Court was  present at that time  and                      heard that  testimony.  This  Court, too,                      disbelieved   the    accuracy   of   this                      testimony.                             Nevertheless, there  are many policy                      considerations that surround the question                      of enhancing  a base offense  level which                                         -3-                                         -3-                      creates potential punishment on the basis                      of  the  Court's conclusion  that perjury                      has been  committed.   And  the Court  is                      simply not comfortable in its own mind in                      concluding  that  the conduct  amounts to                      perjury  of  sufficient  significance  to                      justify such an enhancement.                 Absent the  enhancement, the base offense level remained            at 26 and the guideline range was  therefore 78 to 97 months.            The  district court imposed a  sentence of 97  months for the            drug offenses, as well as  the separate consecutive 24  month            sentence--not  here  in  issue--for  the  failure  to  appear            offense.     Apparently,  as  a  matter   of  principle,  the            government appealed the district court's refusal to adopt the            two-point enhancement.                 On the appeal, this court held that under United  States                                                           ______________            v.  Dunnigan, 113  S.  Ct. 1111  (1993),  the obstruction  of                ________            justice enhancement is mandatory under U.S.S.G.   3C1.1 where            the  defendant willfully obstructed  or attempted to obstruct            the administration  of justice during the  prosecution of the            case.  The  application note specifically  identifies perjury            as conduct comprising obstruction, U.S.S.G.   3C1.1, comment.            (n.3(b)), and  Dunnigan requires  sentencing courts  to apply                           ________            the generally accepted definition  of perjury under 18 U.S.C.              1621, 113 S. Ct. at 1116.                 The  Supreme  Court  said  that,  under   the  statutory            definition of perjury, a witness commits perjury if he or she                                         -4-                                         -4-            "gives false  testimony concerning  a material matter  with a            willful intent to  provide false testimony, rather than  as a            result of confusion, mistake  or faulty memory."  113  S. Ct.            at 1116.  Dunnigan added that the sentencing court must "make                      ________            independent findings necessary" to establish  the enhancement            and  that "it is preferable  for a district  court to address            each element of the  alleged perjury in a separate  and clear            finding."  Id. at 1117.                       ___                 On the  original appeal in  Tracy, this court  said that                                             _____            the  district  court had  made  clear that  it  found Tracy's            testimony inaccurate but had  not specifically found that the            testimony concerned a material  matter or that the inaccuracy            was deliberate.  989 F.2d at 1289-90.  At the same time, this            court made clear  that under the guideline  and Dunnigan, the                                                            ________            district court  could not both  find perjury and  yet require            "something more than basic  perjury to justify an enhancement            . . . ."  Id. at  1290.  In other words, the enhancement  had                      ___            to be imposed where the requisites of perjury existed.                     On  remand,  the   government  apparently  asked   the            district  court  to make  an  explicit  finding that  Tracy's            testimony, contradicted by Wright,  had been perjurious.  But            having  made  its  point,  the  government  professed  itself            satisfied  with the 97-month  sentence previously imposed for            the drug  counts, noting that  it was a  permissible sentence            under the  new  guideline  range that  would  result  if  the                                         -5-                                         -5-            district  court  did find  perjury  and  added the  two-level            enhancement  to the base offense  level of 26.   The district            court took quite a different course.                   Instead  of  focusing  upon  the  instance  of  possible            perjury  identified by  the probation  officer,  the district            court  held a hearing on remand, in June 1993, and determined            that Tracy had  lied at his  trial on two  other points:   in            testifying that he had sold LSD to Wright only because he was            afraid of Wright, and in claiming that he  had left Maine for            Florida because he believed his girlfriend to be pregnant but            intended after the child's birth to return to Maine and stand            trial.   The  court found  that these  lies were  willful and            material and that the  requirements of perjury were therefore            satisfied.                 The  two-level   enhancement  based  on   these  perjury            findings increased  Tracy's offense  level to 28,  yielding a            guideline  range of  97 to  121 months  for one  with Tracy's            criminal history.  As he had done in the first instance,  the            district judge sentenced  Tracy at the  top of the  guideline            range.  This  time, however,  the range went  higher and  the            sentence now imposed on  the drug counts was 121  months.  As            before, this  is to  be followed  by a  24-month term  on the            failure  to appear count.   Tracy has now  appealed from this            new sentence.                                         -6-                                         -6-                 On appeal, Tracy contends  that the district court could            not  on this  record properly  find  perjury.   His appellate            brief contrasts Tracy's situation  with that of the defendant            in  Dunnigan where  the  Supreme Court  pointed to  "numerous                ________            witnesses" contradicting  the defendant on "so  many facts on            which she could not have been mistaken."  113 S. Ct. at 1117.            Tracy's  brief also tries to  focus attention on the original            conflict between Tracy and Wright, one part of which involved            the  color and design  of the blotter paper  on which the LSD            was tendered.                 The district court's  findings that perjury  occurred in            this  case  can  be  overturned  only  if  they  are  clearly            erroneous.  See  United States  v. Aymelek, 926  F.2d 64,  68                        ___  _____________     _______            (1st Cir. 1991).   In this instance, there is  ample evidence            in the  record to support the  district court's determination            that there were  two separate episodes of perjury (either one            would suffice  for an  enhancement).  Although  Tracy's brief            does  not  argue  in  detail  about  the  adequacies  of  the            evidence,  we  have  nevertheless  reviewed  the  record  and            recount the evidence quite briefly.                 At his trial, Tracy  had offered an entrapment defense--            the transactions  were difficult to deny since  they had been            recorded--and in aid  of that defense, he  had testified that            he  had been afraid of Wright  because of Wright's aggressive            manner.  Tracy's sixteen year old stepdaughter testified that                                         -7-                                         -7-            she  had  been frightened  by  Wright and  in  other respects            supported  Tracy's claim of fear.  On the other hand, because            the drug transactions had  been monitored and recorded, there            was also evidence from witnesses, presumably supported by the            tapes,  that at no point had Wright said anything to threaten            or intimidate Tracy.                   The district judge at the hearing after remand expressly            found  Tracy  had manufactured  the intimidation  defense and            that it  was "known by the  witness at the time  to be untrue            and it goes to  a material element of the  case against him."            The  district court  judge heard  Tracy and  his stepdaughter            testify  and also had before him the evidence that no threats            or intimidating remarks were made by Wright.  Obviously,  the            presence or absence of  fear in Tracy's mind is  a subjective            matter.   But the district  judge did not  commit clear error            when  he weighed  the conflicting  inferences and  found that            Tracy had lied about his own state of mind.                 In particular,  Tracy's claim  that he  was  in fear  of            Wright must have been very hard to reconcile with Tracy's own            claim that in  the final  abortive sale he  had attempted  to            sell  Wright fake LSD (and was therefore not guilty of a drug                         ____            offense regardless of entrapment).  The notion that one would            sell fake  drugs to a buyer whom one knows and fears, and who            could easily  return to retaliate,  is doubtful on  its face.                                         -8-                                         -8-            Tracy's explanation--that Wright would merely seek to get his            money back--sounds especially lame.                 In  the  second   perjury  episode,  concerning  Tracy's            failure to  appear for  trial,  the inferences  are not  even            close.    Tracy  obtained  several  postponements  and  then,            instead of  appearing on the  final trial date,  absconded to            Florida.   At trial, the  government offered evidence that he            had fled, coupled with further  evidence that when caught  he            was carrying  false identification and using a false name, in            order to create  an inference  of guilt on  the drug  counts.            Tracy's own testimony-- that he had gone to Florida merely to            be with  his pregnant  girlfriend during  the birth  of their            child and intended to return to trial--was material testimony            because  it sought to refute  the inference that  he had fled            because he was guilty.                 Most people  would be fairly skeptical  at Tracy's claim            that he had coincidentally  learned of the possible pregnancy            just  before the  date  of his  oft-postponed  trial and  had            departed without  explanation from  Maine for the  purpose of            bringing  comfort to his girlfriend.  They would be even more            skeptical  of Tracy's claim that by coincidence he was (so he            claimed)  about to return to Maine just when he was arrested.            News that Tracy had given a false name when  arrested and had            been carrying a driver's license and birth certificate in the            name  of  another  person   would  for  most  people  convert                                         -9-                                         -9-            skepticism into  hardfast disbelief.   The evidence,  in sum,            was sufficient to support the perjury finding.                 Turning from the  evidence to other claims  of error, we            begin with Tracy's assertion that the district court made its            Dunnigan  findings  "in  the most  conclusory  and threadbare            ________            fashion"  and  "inadequately  explained  its  basis  for  its            purported findings .  . . ."   Tracy does  not deny that  the            district judge made, for both  perjury episodes, each of  the            three  ultimate  findings   of  inaccuracy,  willfulness  and            materiality.     Nor  is  there  any   confusion  about  what            statements were  found perjurious:   the district  court took            the  occasion to  identify  (by line  and  page numbers)  six            separate perjurious statements by Tracy, four relating to the            intimidation  claim and  two  to the  Florida  flight.   Yet,            putting  aside  rhetoric about  threadbareness,  Tracy  is in            substance  correct  that  there  are  no  further  subsidiary            findings,  nor  any  explanation  of  the  district   court's            analysis or  evaluation of Tracy's testimony  to underpin the            trial judge's finding that Tracy was willfully and materially            inaccurate.                 But the district court had no obligation to provide such            subsidiary findings  or, as would be more  pertinent here, an            explanation as to the district court's own reasoning process.            There is  no such requirement  in sentencing  determinations,            and Dunnigan imposed nothing more than a requirement that the                ________                                         -10-                                         -10-            requisites of  perjury be  found, preferably in  explicit and            separate  findings.  In fact, it is commonplace in sentencing            for  a  district  judge   to  announce  the  court's  factual            conclusion--e.g., the  quantity  of  drugs  foreseen  by  the                        ____            defendant or  the presence  of a  weapon--without in  any way            providing subsidiary findings or an evaluation of conflicting            evidence.                   On review, the appeals court  must be able to  ascertain            the ultimate  finding and there must  be evidence (regardless                                  ___            of  whether  it  has  been  specifically  identified  by  the            district judge) that would permit a reasonable fact finder to            make such a determination, giving  such deference to the fact            finder as may be appropriate.  Perhaps in some cases it would            be impossible  to exercise a review  function without further            information about what the district judge had found or how he            or she had reasoned about the  evidence.  For the most  part,            as here, no  such need exists.   In this respect we  normally            review  the evidence and the result, but not the reasoning by            which the result was reached by the district court.                 This discussion  also answers  the substance  of Tracy's            related  claim, namely,  that  the district  court failed  to            explain  why  it  rejected  the  possibility  of  mistake  in            appraising Tracy's  testimony.  The Supreme  Court did advert            in  Dunnigan to  the  possibility of  "confusion, mistake  or                ________            faulty memory."  113 S. Ct.  at 1117.  But where as here  the                                         -11-                                         -11-            evidence would  permit a  reasonable fact finder  to conclude            that  an inaccuracy  was  willful rather  than mistaken,  the            judge has no  separate obligation  to explain why  he or  she                                                          ___            rejected the  inference of mistake and  adopted the inference            of willfulness.     This brings  us  to Tracy's  next  point.            His  appeal  brief  calls  our  attention  to  commentary  to            U.S.S.G.     3C1.1  that  "[i]n applying  this  provision  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."   Id. comment.                                                             ___            (n.1).   Tracy is  apparently under the  impression (based on            other  statements in  his  brief) that  this quoted  language            means  that, in  general, "close"  cases under  section 3C1.1            must  be resolved  in  favor of  the defendant.    This is  a            misreading  of  the commentary  and  an  exaggeration of  the            government's burden.                 We have repeatedly said that this "commentary" "does not            mandate  the resolution  of  every conflict  in testimony  in            favor  of   the  defendant";   it  merely  resolves   in  the            defendant's  favor "those  conflicts about  which the  judge,            after weighing the evidence, has no firm conviction."  United                                                                   ______            States  v. Rojo-Alvarez,  944 F.2d 959,  969 (1st  Cir. 1991)            ______     ____________            (quoting  other circuits).   Otherwise, "the  safeguard would            swallow  the  rule  in a  single  gulp,"    United States  v.                                                        _____________            Akitoye, 923 F.2d 221, 228 (1st Cir. 1991), since to take the            _______                                         -12-                                         -12-            evidence in the light  most favorable to the defendant  is to            credit his or her testimony.   In this case, the  trial judge            did have a firm, and amply warranted, conviction that perjury            had been committed.                 We note,  in addition,  that the quoted  commentary read                                                                     ____            literally  addresses  a  rather narrow  problem  peculiar  to            _________            perjury and other charges  that match a defendant's testimony            against  "the truth"  as later  found by  the judge  or jury.            Words,  even  in context,  can be  subject  to more  than one            plausible  reading;  and  this  is  as true  in  parsing  the            testimony of a defendant at trial as in construing a statute.            In a  perjury case, one  of the plausible readings  may be in            conflict  with "the  truth" and  undoubtedly willful  if that            meaning were intended; the  other reading, also plausible but            perhaps  less  so,  may  render   the  defendant's  statement            accurate, or at least make willfulness unlikely.                 The precise words of quoted commentary say  that in such            cases the defendant's "testimony or statement" should be read            in the light most  favorable to the defendant.  To the extent            that  an  innocent  reading  may be  plausible  (even  though            perhaps  less   plausible  than  an  inculpatory   one),  the            commentary  resolves this  doubt in  favor of  the defendant.                                 ____            The Sixth Circuit recently put the matter thusly:                         We  note  that this  [commentary] does                      not  require  that  the  evidence  in its                                                         ______                      entirety  be  taken   in  a  light   most                      ________                      favorable to the  defendant.  It is  only                                         -13-                                         -13-                      the defendant's statement  that is to  be                      taken in a light  most favorable to  him.                      So, if  the  meaning of  the  defendant's                      statement  is  ambiguous,  the  ambiguity                      should  be  resolved   in  his  favor  to                      prevent a  finding  of perjury  when  the                      defendant's statement, taken another way,                      would not have been perjurious.            United States v. Crousore, 1 F.3d 382, 385 (6th Cir. 1993).            _____________    ________                 Here, as  in  Crousore, there  is  no ambiguity  in  the                               ________            meaning of Tracy's statements.   We hasten to add  that there            is also nothing  that suggests  that the present  case was  a            close one as to either inaccuracy or willfulness.  Still less            is there  any possibility of  a mistake,  that is,  testimony            that was not  true but was  honestly believed  to be so  when            delivered.  The color  and design of the blotter  paper might            have involved a possibility  of mistake, but Tracy could  not            have been mistaken about his fear or lack  of fear of Wright,            or about  his  motive for  going  to Florida  (putting  aside            psychological subtleties that are not involved in this case).                 We  conclude  by  rejecting,  and  mildly  reprimanding,            Tracy's claim that  a reasonable doubt of  perjury existed in            the trial judge's own  mind.  Tracy's brief quotes  the trial            judge as saying, at the original sentencing, that he was then            "not comfortable  in  its own  mind  in concluding  that  the            conduct amounts to perjury . . ."  (sic).  Tracy argues that,            if the district court had such a doubt about the presence  of            perjury, then the  government could not have met  its burden.            Apart  from the fact that the district court was then talking                                         -14-                                         -14-            about a  different perjurious  episode (the fake  LSD claim),                     _________            the  argument is  undercut by  other words  of the  judge not            quoted in Tracy's brief.                 The full sentence was as follows:  "And the Court simply            is not comfortable  in its  own mind in  concluding that  the            conduct  amounts to  perjury  of  sufficient significance  to            justify  an enhancement."  Reading  this full sentence in the            context  of the two  full paragraphs (quoted  earlier in this            opinion), one would probably  conclude that when the district            court said that this was a "close call" and said  it was "not            comfortable in its  own mind,"  it was referring  not to  the            evidence of inaccuracy or willfulness or even materiality but            rather  to   the  policy  arguments  against   sanctioning  a            defendant for testifying at trial in any but the most extreme            case.                 We  were ourselves uncertain  enough about  the district            court's  intention to remand, but  we do not  think that this            doubt warranted  Tracy's brief in omitting the balance of the            sentence  it quoted.  As  it happens, on  remand the district            judge  addressed  this very  issue,  explaining  that he  had            originally given  the defendant the  benefit of the  doubt on            the enhancement  because "I  was  very concerned  that, as  a            matter  of policy,  imposition  of that  kind of  enhancement            might  chill other  defendants'  exercise of  their right  to            testify at  trial."   Needless to  say, the district  court's                                         -15-                                         -15-            concern  is a reasonable one,  but Dunnigan binds  us and the                                               ________            district court alike.   Any charge that the  district court's            original policy doubts and present findings are  inconsistent            is without basis.                   Tracy's  final   claim  concerns  an  amendment  to  the            sentencing  guidelines   that  became  effective   after  the                                                               _____            district court resentenced Tracy  in the remanded proceeding.            Effective November 1,  1993, the  sentencing guidelines  have            altered the method for computing LSD in a manner that Tracy's            brief claims is favorable to his position and would result in            a lower  guideline range.   U.S.S.G. App.  C, Amendment  488.            The Sentencing Commission has  determined that the  amendment            applies  retroactively.  Id., Amendment 502.  See 28 U.S.C.                                       ___                  ___            994(u).   A  sentence  imposed before  the new  computational            method  can therefore be readjusted by  the district court to            conform to the amended approach.  18 U.S.C.   3582(c)(2).                   Tracy at the close of his brief  asks that we remand the            matter  to  the  district  court to  permit  resentencing  in            accordance  with   the  amendment.    Such  a  recomputation,            however,  presents  issues  of  fact and  may  involve  other            questions about which  the government and Tracy  differ.  The            statute  providing for  retroactive  adjustments  allows  the            defendant to  file a motion  with the district  court seeking            such  an adjustment.  18 U.S.C.   3582(c)(2).  Our affirmance            in this case is without prejudice to Tracy's right to do so.                                         -16-                                         -16-                 We  have  a  final  observation about  the  government's            earlier  appeal.   It now  appears from  its position  at the            remand  hearing that  the government  was satisfied  with the            sentence  originally  imposed.    Yet  as  a  result  of  the            government's appeal Tracy has now  to serve an additional two            years over  and above the ten  years' imprisonment originally            imposed.  Some  portion of the full sentence reflects Tracy's            criminal history, and his  flight to Florida.  But  neither a            ten  nor  a  twelve-year  sentence  could  be  called  unduly            lenient.                 Understandably,  the government wished  to establish the            principle that  perjury, and not "something  more," merits an            enhancement.  But this  point could have been made  as easily            in a later case where the government actually wanted a longer            sentence.  A  litigant is  not obligated to  worry about  the            price  paid by  others to  establish a  matter  of principle.            Still,  one hopes that  a prosecuting agency  would weigh the            price in its own calculus.                 Affirmed.                 ________                                         -17-                                         -17-
