
USCA1 Opinion

	




          March 25, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1050                                    UNITED STATES,                                      Appellee,                                          v.                                     HILDA BROWN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Juan  E. Alvarez,  First  Assistant Federal  Public  Defender  for            ________________        Benicio Sanchez  Rivera, Federal Public  Defender for the  District of        Puerto Rico, and Gustavo A. Gelpi,  Assistant Federal Public Defender,                         ________________        on brief for appellant.            Guillermo  Gil,  United  States  Attorney, Esther  Castro-Schmidt,            ______________                             ______________________        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Defendant-appellant  Hilda  M. Brown                      ___________            appeals from her  sentence on three grounds, all  arising out            of her unsuccessful motion for  a downward departure from the            guideline   sentencing   range   for   extraordinary   family            circumstances.   We have  jurisdiction to review  appellant's            claims  that  the  district court's  departure  decision  was            affected by mistakes of law. See United States v. Webster, 54                                         ___ _____________    _______            F.3d 1, 4 (1st Cir. 1995).  We affirm.                   1. Fifth Amendment Violation                    _________________________                 The Fifth  Amendment "has long been  interpreted to mean            that a defendant may refuse to 'answer official questions put            to him in any  other proceding, civil or criminal,  formal or            informal, where  the answers might incriminate  him in future            criminal  proceedings.'" United  States v.  Perez-Franco, 873                                     ______________     ____________            F.2d  455, 462 (1st Cir. 1989)  (quoting Lefkowitz v. Turley,                                                     _________    ______            414  U.S. 70 (1973)).   The Supreme Court, while interpreting            the privilege broadly, has ruled that it "must be confined to            instances where the witness has reasonable cause to apprehend            danger from a direct  answer." Hoffman v. United  States, 341                                           _______    ______________            U.S. 479, 486 (1951).                   Appellant  has  failed  to demonstrate,  and  we  cannot            conceive,  how any testimony that she might have given at the            downward departure  hearing  could have  been  incriminating.            Therefore, her decision not to testify at the  hearing cannot            properly  be construed as an  exercise of her Fifth Amendment                                         -2-            privilege  against  self-incrimination.     Accordingly,  the            district court's  consideration of her failure  to testify in            denying the departure did not violate the Fifth Amendment.                 2. Credibility Assessment                    ______________________                 Appellant's second argument is that the sentencing court            impermissibly relied upon  appellant's "criminal character in            the underlying offense of  conviction" in concluding that she            had   fabricated  her  allegation   of  extraordinary  family            circumstances.  Appellant is referring here to the sentencing            court's statement that "[t]he nature of the offense committed            by her points to her skills at deception."                   Appellant's reliance upon United  States v. O'Brien,  18                                           ______________    _______            F.3d 301 (5th Cir.), cert.  denied, ___ U.S. ___, 115  S. Ct.                                 _____________            199  (1994),  is  misplaced.     In  the  instant  case,  the            sentencing court did not base its departure decision  upon an            assessment  of appellant's worth or rehabilitative potential,            see  id.    Instead,  the  district  court's  comment  merely            ___  ___            indicated that  it considered the nature  of Brown's criminal            conduct in assessing  her credibility.   There was no  error.            Cf. United States  v. O'Neil,  936 F.2d 599  (1st Cir.  1991)            ___ _____________     ______            (affirming  sentencing  court's  refusal to  award  two-level            credit for acceptance of responsibility  and finding "nothing            unlawful  about  a court's  looking  to  a defendant's  later            conduct  in  order  to  help  the  court  decide whether  the            defendant is truly sorry for the crimes he is charged with").                                         -3-                 Even  if the  district  court erred  in considering  the            nature  of  Brown's  offense,  any error  was  harmless.  See                                                                      ___            Williams v.  United States, 503  U.S. 193 (1992)  (remand not            ________     _____________            required  for incorrect  application of the  guidelines where            reviewing court determines that  the same sentence would have            been  imposed had  the  district court  not  relied upon  the            invalid factor).  The deceptive nature of Brown's offense was            only  one of several  factors upon  which the  district court            relied  in deciding not  to depart.  It  is apparent from the            record that the district court would  have denied the request            for  a departure even  absent consideration of  the nature of            her offense.                 3. Refusal to Authorize Funds                    __________________________                 Brown's  final argument  is  that  the district  court's            denial without a  hearing of  her request under  18 U.S.C.               3006(A)(e)(1), constitutes reversible error.  A      district            court's refusal to authorize  funds for an expert constitutes            reversible error  only where there is  "'clear and convincing            evidence showing prejudice to the accused.'" United States v.                                                         _____________            Canessa,  644 F.2d 61,  64 (1st  Cir. 1981).   In  this case,            _______            Brown was able to hire an expert despite the district court's            denial of her request for funds.   We conclude that Brown has            not shown  by "clear  and convincing evidence"  any prejudice            arising from the denial of her request for funds.                                         -4-                 Accordingly,  appellant's  conviction  and sentence  are            summarily affirmed.  See Loc. R. 27.1.            __________________                                         -5-
