
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1176                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JULIAN DUPONT,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                                Boudin, Circuit Judge,                                        _____________                         and Pollak,* Senior District Judge.                                      _____________________                                 ____________________            Howard J.  Castleman with whom Janis  M. Berry, by Appointment  of            ____________________           _______________        the Court, and Ropes & Gray were on brief for appellant.                       ____________            David A.  Vicinanzo, Assistant United  States Attorney,  with whom            ___________________        Peter E.  Papps, United States  Attorney, and Jean B.  Weld, Assistant        _______________                               _____________        United States Attorney, were on brief for the United States.                                 ____________________                                   January 31, 1994                                 ____________________                                    ____________________        *Of the Eastern District of Pennsylvania, sitting by designation.                 BOUDIN,  Circuit Judge.   Julian Dupont was  indicted in                          _____________            November 1988, together  with many others, for  participating            in a drug trafficking ring  headed by Jean Lemieux.  Pursuant            to  a  plea agreement  Dupont  pleaded  guilty to  one  count            charging  him with  conspiracy  to  possess  with  intent  to            distribute.   In the agreement the government stipulated with            Dupont  that Dupont  had conspired  to  distribute about  4.5            kilograms   of  cocaine.    The  government  also  agreed  to            recommend  a sentence of  five years' imprisonment.   Despite            that recommendation, on  August 15, 1989, the  district court            sentenced Dupont to seven years in prison.1                 In  this case,  the most recent  of several  attempts by            Dupont to alter his sentence  or limit forfeitures, Dupont in            a section 2255  proceeding persuaded the district  court that            he was entitled to  be resentenced.  The court  found that at            the original sentencing Dupont and  his counsel had not  been            provided  sufficient time to  review the  pre-sentence report            and  that  findings had  not  been made  on  certain disputed            issues, as  provided for  in the  then-applicable version  of            Fed.  R.   Crim.  P.  32(c)(3).     The  court   scheduled  a            resentencing  hearing and made  clear that either  side could            present evidence.                                            ____________________                 1The  Sentencing Guidelines did not apply to the offense            and  the district  court was  limited only  by the  statutory            maximum of 20 years.                                         -2-                                         -2-                 At the  resentencing hearing  on February  9, 1993,  the            government offered two witnesses.   Most important, Lemieux--            whose sentence had been reduced from almost 20 years to seven            years in exchange  for his help to the  government in several            trials--appeared.  Countering Dupont's claim that he was only            a minor  player in  the ring,  Lemieux testified that  Dupont            introduced  Lemieux to a  new source of  cocaine, that Dupont            acted  as his  partner and  shared profits  for a  year while            Lemieux was doing kilogram size deals, and that Dupont joined            him on over 10 trips to collect cocaine from the new source.                 Agent  Ryan, who had  testified at the  first sentencing            hearing,  testified again.   He reaffirmed that  over $20,000            had been seized  at Dupont's residence, and  he now described            the DEA's seizure  of a 125 pound scale, two rifles and a .25            calibre handgun, which  was found in Dupont's bedroom.  Ryan,            who  had  not  been  present at  the  arrest,  was apparently            relying  on  information  from  the  arresting  agents.    He            conceded that only small  amounts of cocaine had  been seized            at the arrest.                 The  district  court  then resentenced  Dupont  to seven            years' imprisonment.  The  court credited Lemieux's testimony            and found that Dupont was "a substantial drug dealer" who had            offered no assistance to the government.  The court described            the items found in  the apartment as tools of the  trade.  It            also referred to the role of Carlos Arboleda--a major Florida                                         -3-                                         -3-            source, see United States v. Arboleda, 929 F.2d 858 (1st Cir.                    ___ _____________    ________            1991)--in  supplying  the Lemieux  conspiracy.    Lemieux had            testified that Dupont knew that Arboleda was one of Lemieux's            other sources of cocaine.                 On  this appeal from the resentencing, Dupont begins his            attack by  arguing that  this court  should follow the  Third            Circuit and  hold  that the  government must  produce to  the            defense prior statements of  the witnesses whom it offers  at            sentencing proceedings.  See United States  v. Rosa, 891 F.2d                                     ___ _____________     ____            1074 (3d Cir.  1989).2  This rule,  urges Dupont, would  be a            proper exercise of this court's  supervisory power in view of            the enormous impact of sentencing determinations.  No request            for  such  statements was  made  by  defense counsel  at  the            resentencing, and  no such  statements were  produced by  the            government.                 We  think  that  there  is  little  reason  to  consider            extending Jencks retroactively in  a case where, even if  the                      ______            Jencks  Act applied  by its  own  terms, no  appeal would  be            permitted  because no  request for  the  materials was  made.            Jencks Act, 18 U.S.C.   3500(b) (materials to be produced "on            motion of the defendant); see United States v. Mack, 892 F.2d                                      ___ _____________    ____                                            ____________________                 2The Jencks Act,  18 U.S.C.   3500,  codifying Jencks v.                                                                ______            United  States, 353 U.S. 657 (1957), imposes this requirement            ______________            with  respect to government  witnesses at trials.   Effective            December 1,  1993, a new  amendment, Fed. R. Crim.  P. 32(e),            codifies  Rosa  and  extends Jencks  to  sentencing hearings,                      ____               ______            provided that a  request is made by  defendant.  See  Fed. R.                                                             ___            Crim. P. 26.2.                                         -4-                                         -4-            134,  137 (1st  Cir.  1989),  cert. denied,  111  S. Ct.  162                                          ____________            (1990).   Dupont could  easily have made  the request  in the            district  court.    While  a  district  court  might  well be            reluctant to  make new  law by  adopting the  Third Circuit's            approach simpliciter, nothing prevented Dupont from trying to                     ___________            show  the district court why prior statements were critically            important in this case.                 We might overlook the  failure to make either a  request            or a  detailed showing  if there were  any indication  that a            miscarriage of  justice had  resulted.  On  the contrary,  in            this instance  the discrepancies in  Ryan's testimony between            the first  and second hearing  are minor and would  have been            apparent  from reviewing a  transcript of the  first hearing.            As  to Lemieux,  a  far more  damaging witness,  the district            court deemed him credible despite the very large reduction in            sentence he had received for  his past aid to the government.            There is  no hint that anything in Lemieux's prior statements            would have altered that judgment, and  pure speculation is no            evidence that justice has miscarried.                 Dupont's brief next recasts the Jencks Act argument as a                                                 ______            Brady  argument, contending  that  the  government failed  to            _____            disclose  exculpatory material.   See Brady v.  Maryland, 373                                              ___ _____     ________            U.S.  83 (1963).    The main  materials identified  are prior                                         -5-                                         -5-            statements  of Lemieux  and  statements  or  notes  of  Agent            Ryan.3  While  impeachment material may sometimes  qualify as            exculpatory under Brady,  we have no  reason to believe  that                              _____            any  of the  prior  statements significantly  undermined  the            testimony of  the government witnesses.   There is  even less            basis for  finding "a reasonable probability" that disclosure            would have altered the result.   United States v. Bagley, 473                                             _____________    ______            U.S. 667, 682 (1985) (plurality opinion).                 Next,  Dupont contends that "due process requires that a            defendant not be sentenced upon materially untrue assumptions            or  misinformation" and argues that such a violation occurred            in  this case.    Although  the  Supreme Court  used  related            language in Townsend  and it is echoed in  our decisions,4 it                        ________            would   be  hard  to  find  a   general  statement  so  often            misunderstood.   Only  a  naive  observer  could  doubt  that            defendants are from time to  time convicted and sentenced  on                                                        ___                                            ____________________                 3Dupont also says  that the government did  not disclose            that it had  returned $75,000 seized from Lemieux  so that he            could pay attorney's fees.  This fact, stated in the Arboleda                                                                 ________            decision,  929 F.2d  at 865  n.10,  pales in  importance when            compared with the  drastic reduction in sentence  received by            Lemieux,  a  benefit  fully  disclosed  in  the  resentencing            hearing.                 4Townsend v.  Burke, 334  U.S. 736,  740-41 (1948)  (due                  ________     _____            process violated,  "while disadvantaged by  lack of  counsel,            this  prisoner  was  sentenced on  the  basis  of assumptions            concerning his criminal record which were materially untrue")            (Jackson, J.); United States v.  Curran, 926 F.2d 59, 61 (1st                           _____________     ______            Cir.  1991)  ("defendant  has  a  due  process  right  to  be            sentenced upon information  which is not false  or materially            incorrect").                                         -6-                                         -6-            the    basis   of    "materially   untrue    assumptions   or            misinformation":  witnesses  may lie,  or make  mistakes, and            trial juries or sentencing judges  may believe them.  It does            happen.                 Yet no one supposes that a defendant can  relitigate any            issue of fact at any time he  or she likes merely by invoking            the due  process clause and  offering to show that  a mistake            was  made.    "[E]ven  an  erroneous  judgment,  based  on  a            scrupulous and diligent search for truth,  may be due process            of law."   Townsend,  334 U.S. at  741.  Townsend  involved a                       ________                      ________            defendant, unrepresented  by  counsel  at  sentencing,  whose            sentence  was seemingly  enhanced based on  three nonexistent            criminal convictions.  Justice Jackson explained (id. at 741)                                                              ___            that it was the false  foundation of the sentence, "which the            prisoner had no  opportunity to correct by the services which            counsel would provide,  that renders the proceedings  lacking            in due process."  See also id. at 739  ("absence of counsel,"                              ________ ___            where prejudicial, is "violation of due process").5                 Today, a whole  skein of complex rules  determines which            issues may  be relitigated,  in what  circumstances, at  what                                            ____________________                 5Evidently,  the  record  before  the  Supreme Court  in            Townsend  did not  make clear  whose  fault it  was that  the            ________            sentencing   judge   credited   the  defendant   with   three            nonexistent convictions.   Justice Jackson contented  himself            with saying:  "We believe that on the record before us, it is            evident   that   this   uncounseled  defendant   was   either            overreached by the prosecutor's  submission of misinformation            to the court or was  prejudiced by the court's own misreading            of the record."  Id. at 740.                             ___                                         -7-                                         -7-            stage,  and under  what standard  of  review.   See generally                                                            _____________            W. LaFave & J.  Israel, Criminal Procedure (1984);  "Project:                                    __________________            22nd Annual Review of Criminal Procedure," 81 Georgetown L.J.                                                          _______________            853 (1993).   Thus,  a prosecutor's  knowing use  of perjured            testimony  may pose  one issue,  2  LaFave at    19.5;  newly                                                ______            discovered evidence a  different issue, 3  id. at    27.3(d);                                                       ___            and simple  disagreement with  a jury's  reasonable inference            yet another,  3 id.  at    26.5.   In criminal  procedure, as                            ___            elsewhere, generalities are no substitute for analysis.                 Here,  Dupont argues that the court relied on materially            untrue assumptions  and misinformation when  it concluded  at            sentencing that Dupont was a substantial drug dealer and that            the items seized in his apartment were tools of the trade and            that Arboleda  had some relationship  to the conspiracy.   An            examination of the  argument shows it to be  a garden variety            disagreement with the  district court's  finding that  Dupont            played a significant  role in the conspiracy.   At best, this            is  a finding  that would  be  subject, even  under the  more            rigorous  Sentencing  Guidelines, to  review  based upon  the            "clearly erroneous" standard.  18 U.S.C.   3742(e).  We think            that the finding is amply supported by Lemieux's testimony.                 Dupont's quarrels  with details are  wholly unimportant.            It makes no difference whether, as Dupont contends,  the over            $20,000 found were gambling proceeds, the scale calibrated in            ounces rather  grams, or the  rifles used for hunting.   Once                                         -8-                                         -8-            the district  court credited Lemieux's testimony,  Dupont was            going to be  labeled as a substantial  drug dealer regardless            of  what tools  he possessed or  of Arboleda's  precise role.            The  district  judge,  whose credibility  determinations  are            entitled  to great weight, noted in his post-sentence written            findings that  he  heard  Lemieux testify  not  only  at  the            hearing but in a number of jury trials.                 As  for the  length of  the sentence, which  Dupont also            attacks,  this  is  largely  unreviewable  for  pre-guideline            sentences, and Dupont does not  come within a mile of raising            a  serious constitutional issue  regarding length.   A seven-            year sentence  is no  tap on the  wrist, but  in one  respect            Dupont may  be fortunate: a  guideline sentence for 3.5  to 5            kilograms of cocaine,  even for a first time  offender, is 97            to 121 months, and under  the guidelines, there is no parole.            See U.S.S.G.   2D1.1(c)(7) and sentencing table.            ___                 In conclusion,  we note that  on this appeal  Dupont has            had the  benefit of  a sophisticated brief  and an  able oral            argument by  defense counsel.   His problem  lies not  in his            representation,  but in  the fact  that  in the  resentencing            proceeding  he received  a  legally  valid  sentence.    That            sentence is affirmed.                        ________                                         -9-                                         -9-
