
USCA1 Opinion

	




                            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-
