
USCA1 Opinion

	




          April 12, 1996                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2232                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JOHN J. CONWAY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Barry T. Albin with whom Peter  A. Gaudioso and Wilentz, Goldman &            ______________           __________________     __________________        Spitzer were on brief for appellant.        _______            Peter E. Papps,  Assistant United States Attorney, orally;  Donald            ______________                                              ______        A.  Feith, Assistant United States Attorney, with whom Paul M. Gagnon,        _________                                              ______________        United  States Attorney,  and  Michael J.  Connolly, Assistant  United        _______________________        ____________________        States Attorney, were on brief for appellee.                                 ____________________                                    April 11, 1996                                 ____________________                      ALDRICH, Senior Circuit Judge.  John J. Conway pled                               ____________________            guilty to  one count  of conspiracy to  defraud the  American            Honda Motor Company  in violation  of 18 U.S.C.     1343  and            1346.  He now appeals his sentence, specifically the  court's            refusal  to grant the government's motion on his behalf for a            four  level downward  departure  for substantial  assistance.            U.S.S.G. 5K1.1.  Normally an appeal is not available for such            a broadly discretionary  decision, United States v.  Mariano,                                               _____________     _______            983  F.2d  1150, 1153-54  (1st Cir.  1993),  but there  is an            exception in case of an error of law.  Id. at 1153; 18 U.S.C.                                                   ___              3742.1  This is  such a case.  Defendant makes  a colorable            claim  that his Fifth Amendment rights to due process and not            to be made a  witness against himself were violated  when the            court based its  decision to deny downward  departure, and to            give  the  maximum sentence  under  the  applicable guideline            range,  on self-incriminating  information  he  had  divulged            pursuant to a plea agreement  to provide the government  with            substantial assistance in exchange  for immunity and a motion            for downward departure.2   Noting the standard provision that            it was  not bound to accept  the government's recommendation,            Mariano, 983  F.2d at  1155, the  court, while  admitting the            _______                                            ____________________            1.  Appellate jurisdiction exists  for sentences "imposed  in            violation  of  law."   18 U.S.C.     3742(a)(1).   See United                                                               ___ ______            States v. Drown, 942 F.2d 55, 58 and n.6 (1st Cir. 1991).            ______    _____            2.  The possibility  that in  its discretion the  court might            have reached the same result absent any error does not defeat            jurisdiction.  See Drown, 942 F.2d at 60.                           ___ _____                                         -2-            sufficiency  of  defendant's   disclosures  to  warrant   the            departure, denied  it on the ground that it would lead to too            light  a sentence  for a  defendant so  revealed.   Defendant            objects  that the effective "countervailing factors" found by            the court to "militate against granting a motion for downward            departure" came to the court's attention solely by  reason of            disclosures he had  provided in exchange  for a promise  that            they would not be  used against him.   We concur, and  remand            for resentencing.                      The plea agreement read as follows:                      No truthful information  provided by  Mr.                      Conway  to  government  attorneys or  law                      enforcement  officers,  pursuant to  this                      agreement, or any information directly or                      indirectly derived from such information,                      will be  used against Mr.  Conway by  the                      government   provided  that   Mr.  Conway                      complies   with   the   terms   of   this                      agreement.  As to information provided by                      Mr. Conway  regarding unlawful activities                      involving himself and others that was not                      known to the government prior to entering                      into  this  agreement,  such  information                      shall  not be  used  in  determining  the                      applicable  guideline range,  pursuant to                      U.S.S.G.   1B1.8.                      It is clear, first of all, that the  plea agreement            does  not  bind   the  court  "to  comply  blindly  with  the            prosecutor's wishes,"  Mariano, 983  F.2d at 1155,  and that,                                   _______            except  as   restricted  by  the  Guidelines,  other  federal            statutes,  or  the  United  States  Constitution,  the  court            "retains  broad discretion  to  exhume  factors unrelated  to            substantial   assistance   before   burying  the   [guideline                                         -3-            sentencing range]."  Id. at 1156-57.  We also  agree that the                                 ___            language   of  the  agreement,   as  written,   deserves  the            interpretation the court  gave it at the  time of sentencing:            defendant  received  a  promise  that,  (1)  the  information            disclosed  would not be used against him by the government --                                                     _________________            e.g., as a basis for future prosecution, for refusing to make            a motion for  downward departure, or for any other government            action  against  him --  and, (2)  it  would not  be  used in            calculating  his guideline range -- no more.  As written, the            agreement does not preserve the blanket protection  defendant            claims he bargained for  in exchange for waiver of  his Fifth            Amendment right not  to be  a witness against  himself.   See                                                                      ___            United States v.  Hogan, 862  F.2d 386, 388  (1st Cir.  1988)            _____________     _____            (plea agreements are to  be interpreted according to contract            law principles).   So  interpreted, defendant cannot  state a            claim that his rights were violated.                      There was,  however, a difficulty,  provided by the            court itself.  At the hearing at which the court undertook to            determine,  in lengthy  converse with  defendant,  whether he            understood the consequences of entering the agreement and the            plea,  see F.R.Crim.P.  11(c), the  court did  not quote  the                   ___            agreement  fully.     After  explaining   to  defendant   his            obligation  under  the  agreement  to  make   full,  truthful            disclosure,  and the  consequences  of failing  to do  so, it            stated, "Now,  any truthful information that  you provide the                                         -4-            government during the course of your  cooperation will not be            used against you."   The original limitation, to  non-use "by            the government," was omitted.  In all fairness, was defendant            supposed  to  remember it?   The  whole  purpose of  the plea            hearing  is to  assure full  understanding.   The objectively            reasonable understanding in defendant's  ears when he signed,            see  Hogan, 862  F.2d at  388,  was that  he was  assuming an            ___  _____            obligation  to speak in  exchange for, among  other things, a            grant  of full use immunity for whatever he disclosed.  True,            the court went on to quote the agreement's provision that the            information "will  not be used in  determining the applicable            guideline range,"  which we  observe would be  superfluous if            the  prior  statement  is   interpreted  to  grant  full  use            immunity.   The implication, and the  principle inclusio unis                                                            ________ ____            exclusio  alterius est  are  rules of  construction known  to            ________  ________ ___            lawyers, but a defendant surely cannot be expected to apply a            lawyer's   analytical   tools   in   a   colloquy   conducted            specifically  to  assure  his  lay  understanding.    We  are            particularly  loathe to  do so  when the  effect would  be to            contradict  apparent  absoluteness.   At  best,  the  court's            second statement created an ambiguity that we must resolve in            favor of defendant's reasonable understanding.                      The case comes down to this.  A plea agreement is a            contract   under  which   both   parties  give   and  receive            consideration.   The government obtains a  conviction that it                                         -5-            otherwise might not  have.   The defendant,  correspondingly,            receives less, or a  chance at less, than he  otherwise might            have.  In this case the government received something more --            tangible disclosures concededly of substantial value in light            of the return offered defendant (non-use of the information),            which was promised  not merely as hope,  but as firm.   Under            F.R.Crim.P.  11(e)(3) and (4) the  court may accept or reject            the agreement.  Here the court expressly  defined in absolute            terms  the  benefit  defendant  should  expect.    Under  the            agreement the court could have denied the government's motion            for  a downward departure, but it cannot be thought it should            do so by relying  on the very disclosures that  defendant was            bargained  to  make  on   an  immunization  promise.    While            doubtless the court did  not recall this record inadvertency,            surely  due process, not to mention  public perception of the            courts, should forbid such a result.3                      This  brings us to the  remand itself.   It will be            open to the court, after vacating the present sentence, again            to address the issue  of a downward departure.  In this case,            however,  the  court  should  not  change  the  finding  that            defendant   had  rendered   substantial  assistance   to  the            government, and if  it is to  be rebutted it  must be on  new                                            ____________________            3.  To the extent that U.S.S.G.   1B1.8(b)(5) and application            note   1  appear   to   the  contrary,   the   constitutional            prerogatives in this case must prevail.                                         -6-            findings, which  we suggest should be  stated, independent of            defendant's disclosures.                                         -7-                      We  vacate  defendant's  sentence  and  remand  for            resentencing.                             -Concurring opinion follows-                             -Concurring opinion follows-                                         -8-                      SELYA, Circuit Judge (concurring).  While I have no                      SELYA, Circuit Judge (concurring).                             _____________            doubt  that  the defendant  in  this  case  has been  treated            fairly, I  agree with my  colleagues that the  combination of            the district  judge's unfortunate  slip of the  tongue during            the change-of-plea  hearing and his frank  use of information            elicited  from the  defendant during  debriefing to  impose a            sentence  at  the  top  of  the  guideline  range  creates  a            perception  of  unfairness  and  requires   vacation  of  the            sentence.   I  write separately,  however, to  highlight four            points.                      First, this is not a case in which the court coaxed            a  plea  through  a  misrepresentation.   Mr.  Conway  is  an            intelligent,  well-educated  businessman who  was represented            throughout by distinguished counsel.   Insofar as I can tell,            he was not actually misled and the judge's lapsus linguae had                                                       ______ _______            no  actual   effect  on  the  course   of  the  proceedings.4            Nevertheless, I cannot vote to uphold the sentence.  When the            public  perception of  justice is  imperilled by  the court's            actions in a criminal case, the usual rules of harmless error            do not apply.                                            ____________________            4.  This conclusion is underscored,  if not compelled, by the            late  blossoming  of  any   argument  based  on  the  court's            misstatement at the change-of-plea hearing.   The defendant's            brief on appeal is devoid of developed argumentation  in this            regard, and the judge's statement was first mentioned at oral            argument in this court (and then, only in passing).                                         -9-                      Second, it is important to emphasize that this case            is sui generis.  Under ordinary circumstances, the guidelines               ___ _______            permit  information  obtained  from a  cooperating  defendant            during debriefing  to be used in  determining the defendant's            sentence (as long  as the  plea agreement does  not impose  a            further limitation on these uses).  See U.S.S.G.  1B1.8(b)(5)                                                ___            & n.1.                      Third, the plea agreement in this case, interpreted            under principles of contract law, see United States v. Hogan,                                              ___ _____________    _____            862  F.2d 386, 388 (1st  Cir. 1988), imposed  no such special            limitation.    Were  it   not  for  the  judge's  inadvertent            misstatement  during the  change-of-plea colloquy,  the court            could have  used the  information obtained  during debriefing            either  to  deny  the  downward  departure,  or  to  fix  the            defendant's sentence within  the appropriate guideline range,            or for both purposes.                      Fourth,  under the plea  agreement, the guidelines,            and binding precedent in  this circuit, see United States  v.                                                    ___ _____________            Mariano, 983 F.2d  1150, 1157 (1st  Cir. 1993), the  district            _______            court was obliged fully  to consider the elicited information            in  determining whether  to  grant  the government's  section            5K1.1  motion for  a  downward  departure.   On  remand,  the            district  court   remains   obliged  to   consider  all   the            information.  And, moreover, even if the court finds that the            defendant substantially assisted the investigation, it is not                                         -10-            obligated  to  grant  the  section 5K1.1  motion  and  depart            downward,   see   Mariano,   983   F.2d   at   1156-57,   or,                        ___   _______            alternatively,  to impose  a sentence  at the  bottom of  the            guideline range.                      Despite the court's substantial discretion in these            respects,  I agree  with my  colleagues that  resentencing is            required.   When, as now, a sentencing court makes clear that            a discretionary action   even a discretionary action that the            court  has  no  legal obligation  to  explain  at  all5    is            premised  on an  impermissible  consideration, the  court  of            appeals must intervene.  See United States v. Drown, 942 F.2d                                     ___ _____________    _____            55, 60  (1st Cir. 1991).   To this  extent, the judge  pays a            high price for candor   but justice demands the exaction.                                            ____________________            5.  A good example, apropos here, is that, subject to certain            exceptions  not  relevant  in  the circumstances  at  bar,  a            sentencing court  has no legal  obligation to explain  why it            chooses  a  particular  sentence within  a  narrowly  defined            guideline  sentencing range.    See, e.g.,  United States  v.                                            ___  ____   _____________            Levinson,  56 F.3d 780, 780 (7th Cir. 1995); United States v.            ________                                     _____________            Garrido, 38 F.3d 981,  986 (8th Cir. 1994); United  States v.            _______                                     ______________            Lively,  20 F.3d 193, 198 (6th Cir.  1994).  By like token, a            ______            sentencing court  customarily need not explain  the basis for            its  refusal to depart downward.  See, e.g., United States v.                                              ___  ____  _____________            Lombardi, 5 F.3d 568, 572 (1st Cir. 1993).            ________                                         -11-
