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USCA1 Opinion
October 29, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1016
MICHAEL F. CORCORAN,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Michael F. Corcoran on brief pro se.
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Richard S. Cohen, United States Attorney, Nicholas M. Gess,
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Assistant United States Attorney, and Margaret D. McGaughey, Assistant
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United States Attorney, on brief for appellee.
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Per Curiam. Pro se appellant Michael Corcoran
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appeals from a district court judgment dismissing his motion
to vacate his conviction and sentence under 28 U.S.C. 2255.
We affirm.
I.
Corcoran was convicted upon pleading guilty to
three counts of a superseding indictment that charged him
with conspiring to possess with intent to distribute cocaine
and with the substantive offenses of distributing and
possessing with intent to distribute cocaine between June 13
and August 13, 1990. See 21 U.S.C. 841(a)(1),
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841(b)(1)(C), 846. The charges stemmed from transactions
between Corcoran and various codefendants and undercover
agents during that time. Also indicted and convicted on
guilty pleas were five other members of the alleged
conspiracy: Peter Garuti, Carmen Corcimiglia, Deborah
Corcimiglia, and Warren Williams.1
The indictment generally alleged that Garuti
obtained cocaine from sources outside Maine and distributed
it to Corcoran and Williams. Corcoran allegedly
redistributed the cocaine to Carmen Corcimiglia. On December
13, 1990, Corcoran pled guilty to the general charge of
conspiracy (count one) and the substantive charges of
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1. Similar charges against a fifth defendant, George Vokey,
were dismissed.
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distributing cocaine on September 6 and 12, 1990 (counts
thirteen and sixteen). There was no plea agreement.
Thereafter, the probation department prepared a presentence
report which attributed 1015.53 grams of cocaine to Corcoran
and recommended a base offense level of 26. The district
court held a presentencing conference on May 7, 1991.
Defense counsel objected to the 1015.53 grams and argued in
favor of 603.16 grams, although this did not change the
applicable base offense level. The government agreed to
stipulate to this amount. On May 21, 1991, the district
court held a sentencing hearing and accepted a stipulation,
signed by Corcoran and both counsel, which specified that the
total drug quantity applicable to Corcoran was 603.16 grams
of a mixture or substance containing cocaine. The district
court sentenced Corcoran to 59 months imprisonment plus 4
years of supervised release, and imposed $150 in special
assessments. Corcoran did not appeal his sentence.2
In October 1991 Corcoran filed a motion to vacate
his conviction and sentence under 28 U.S.C. 2255. The
motion asserted three grounds for relief. First, Corcoran
claimed that he did not understand the consequences of his
plea because he was not made aware that the federal
Sentencing Guidelines mandated the inclusion of other
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2. The prison sentences of the other defendants ranged from
12 to 54 months.
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defendants' conduct in calculating Corcoran's "relevant
conduct" for sentencing purposes. In elaborating on this
claim, Corcoran specifically complained that his base offense
level (26) included drug quantities attributed to him as a
result of a statement made by codefendant Warren Williams to
DEA Agent Stephen Georges. This statement was not produced
to Corcoran's attorney until after Corcoran pled guilty.
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Corcoran claimed that consequently, when he changed his plea,
he did not know that the drug quantities identified in Agent
George's report would be included in calculating his
sentence. This, Corcoran asserted, rendered his guilty plea
invalid. Corcoran's second 2255 claim alleged that his
plea was invalid because the prosecution failed to disclose
Agent Georges' report before Corcoran changed his plea,
thereby violating Corcoran's right to exculpatory evidence
and discovery.3 Finally, Corcoran alleged that his attorney
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3. Corcoran's 2255 motion incorporated a letter that his
counsel sent to the Assistant United States Attorney
prosecuting the case. The letter stated, in relevant part:
I was quite disturbed to receive your December
17, 1990 letter enclosing the four page typed
report of Agent Georges which indicates that it
was prepared on October 3, 1990. That report
contains information which was not made
available to the defendant prior to his
decision to plead guilty and which in my
opinion should have been. While recognizing
that this delay is certainly not your fault
personally, I do feel it is a discovery
violation and prejudicial to the Defendant and
I am requesting that this report not be used in
connection with any aspect of Mr. Corcoran's
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rendered him ineffective assistance by stipulating that
603.16 grams of cocaine were attributable to Corcoran instead
of challenging the quantities reported in Williams'
statement. Corcoran alleged that his counsel failed to
assure that Corcoran's sentence reflected his minor role in
the conspiracy.4 Corcoran also alleged that his attorney
failed to conduct full discovery, and to raise diminished
capacity and entrapment defenses, and erroneously advised him
not to appeal his sentence.
After the government filed an answer and
memorandum in opposition, the district court dismissed the
2255 motion on the grounds that the record of the change of
plea hearing conclusively negated Corcoran's assertion that
his guilty plea was unlawfully induced and not knowingly
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sentencing.
Also attached to the 2255 motion was a letter from defense
counsel which forwarded Agent Georges' report to Corcoran and
observed:
I am sure that you will be as disturbed as I
was by the fact that we just received this
report ... but this is something I will have to
take up with the U.S. Attorney and perhaps
eventually with the Judge. ...
4. Corcoran claimed that his base offense level should have
been 20, the level that would have applied had defense
counsel, in addition to securing the government's stipulation
to 603.16 grams, successfully excluded the 368.55 grams
identified in Williams' statement. Corcoran argues that his
counsel should have insisted that his sentence be limited to
33 months.
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entered. The court ruled that Corcoran had no right to Agent
Georges' report before entering his guilty plea because it
was not discovery material but rather a DEA report on a
codefendant to which Corcoran had no right under the Jencks
Act.5 The court concluded that the absence of merit in
Corcoran's first two claims defeated his ineffective
assistance of counsel claim. From this order, Corcoran has
taken a timely appeal.
II.
On appeal, Corcoran seeks to vacate his plea
and/or sentence essentially because he agreed to plead guilty
based on an underestimate of how much cocaine he would
ultimately be held responsible for, an underestimate fostered
by the government's failure to produce and his counsel's
failure to discover Agent Georges' summary of codefendant
Williams' post-arrest statement. We conclude that Corcoran's
2255 claims were properly dismissed without an evidentiary
hearing because "'it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in
the case that [Corcoran] is not entitled to relief... .'"
Myatt v. United States, 875 F.2d 8, 11 (1st Cir. 1989),
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5. The Jencks Act, 18 U.S.C. 3500(a), in relevant part,
provides that, "no statement or report in the possession of
the United States which was made by a Government witness or
prospective Government witness (other than the defendant)
shall be the subject of subpena (sic), discovery, or
inspection until said witness has testified on direct
examination in the trial of the case."
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(quoting Rule 4(b) of the Rules Governing Proceedings in U.S.
District Courts under 28 U.S.C. 2255). We sketch the
background.
Agent Georges' report was a typed summary of the
post-arrest statements of codefendant Warren Williams.
Paragraphs 9 through 12 of the report indicated that Williams
introduced Corcoran to codefendant Peter Garuti and that
Williams personally sold Corcoran a total of 6 ounces (170.1
grams) of cocaine that Williams had procured from Garuti.
Williams further related that he witnessed Corcoran purchase
an additional 7 ounces (198.45 grams) of cocaine directly
from Garuti and estimated that, based on his conversations
with these defendants, Corcoran had completed at least 10
additional transactions with Garuti, although Williams did
not witness them.
Corcoran's counsel filed a pre-trial motion
seeking all defendants' statements under Fed. R. Crim. P.
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16(a)(1)(A).6 The government's response to this motion
stated,
Although Rule 16(a)(1)(A) ... does not
require the production of statements
as to coconspirators or codefendants,
the United States will not quibble
over such issue. The government has
agreed to and has in fact, provided to
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all defendants any statement which is
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Rule 16(a)(1)(A) . . . material as to
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any defendant . . . [including]
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reports detailing statements to
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arresting officers by defendants
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Williams and Vokey. (emphasis
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supplied).
In conjunction with this response, which was filed almost two
months before Corcoran changed his plea, the government
produced the handwritten notes of another DEA agent, Agent
Bryfonski, who was also present for Williams' debriefing.
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6. Federal Rule of Criminal Procedure 16(a)(1)(A) then
provided, in relevant part, that:
Upon request of a defendant the government
shall permit the defendant to inspect and copy
...: any relevant written or recorded
statements made by the defendant, or copies
thereof, within the possession, custody or
control of the government, the existence of
which is known, or by the exercise of due
diligence may become known, to the attorney for
the government; the substance of any oral
statement [which the government intends to
offer in evidence at trial] made by the
defendant whether before or after arrest in
response to interrogation by any person then
known to the defendant to be a government
agent; and recorded testimony of the defendant
before a grand jury which relates to the
offense charged... .
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Agent Bryfonksi's report was not as detailed as Agent
Georges' report. While both reports related that Williams
introduced Corcoran to Garuti and sold 6 ounces (170.1 grams)
of cocaine to Corcoran, Agent Bryfonski's report failed to
describe the other cocaine purchases (partially totalling
198.45 grams) that Williams attributed to Corcoran.
Thus, the record discloses that certain details
concerning Williams' post-arrest statements were produced to
Corcoran's counsel before Corcoran changed his plea. The
additional details in Agent Georges' report were produced
four days after Corcoran pled guilty and some five months
before Corcoran's sentencing. Corcoran did not move to
withdraw his plea nor appeal his sentence. The presentence
report (p. 24, Objection #7) indicates that Corcoran admitted
purchasing the specific quantities (totalling 368.55 grams)
identified in Agent Georges' report. The ten additional
transactions Williams accused Corcoran of completing directly
with Garuti were not part of the district court's assessment
of Corcoran's relevant conduct. We analyze Corcoran's claims
in light of this record.
III.
We emphasize that this is not a case involving a
plea agreement. Moreover, Corcoran has not alleged that
anyone (defense counsel included), made any promises to him
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concerning the likely sentence he would receive. Rather,
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Corcoran's claim is that the government failed to produce
certain information before he changed his plea, and the
absence of this information now renders his plea invalid.
"In the absence of an explicit plea agreement, a
court must distinguish between the situation where a
prosecutor omits information, and where he provides
inaccurate or misleading information, in securing guilty
pleas." Wellman v. Maine, 962 F.2d 70, 72-73 (1st Cir.
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1992). While the government's response to defense counsel's
discovery motion might reasonably have led counsel to believe
that the government had produced all the codefendants'
statements it had, we think this case, like Wellman, involves
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a simple inadvertent omission by the prosecutor.7 Under
these circumstances, "a defendant seeking to set aside a
guilty plea must at the very least show that correct
information would have made a difference in his decision to
plead guilty." Id. at 73, (citing Cepulonis v. Ponte, 699
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F.2d 573, 577 (1983)). On this record, we cannot accept
Corcoran's conclusory assertion - made for the first time on
appeal - that he would not have pled guilty had he known of
Agent Georges' report. Corcoran cites the report's reference
to the facts that Williams introduced Corcoran to Garuti and
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7. This conclusion is supported by defense counsel's letter
to the prosecutor, which observed that the delay in the
production of Agent Georges' report was not the prosecutor's
fault.
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initially procured cocaine for Corcoran, as "evidence
favorable" to Corcoran. While such evidence might have been
used to portray Williams as the more culpable of the two,8
the substance of Georges' report was far more inculpatory
than exculpatory of Corcoran. The report provided no basis
to construct a defense that might have been a plausible
alternative to pleading guilty. Moreover, this part of
Williams' statement had, in fact, been produced to defense
counsel in Agent Bryfonski's report. Where Corcoran had
ample time to challenge any inaccuracies in the report before
sentencing, and the allegedly exculpatory portions of
Williams' statement were available to defense counsel before
Corcoran changed his plea, Corcoran's conclusory allegation
that he was prejudiced by the tardy production of Agent
Georges' report is conclusively refuted by the record.
The district court dismissed this claim on the
ground that Agent Georges' report was not subject to pretrial
discovery under the Jencks Act. While this court has yet to
address the issue, other circuits have held that
coconspirators' statements are not discoverable under Fed. R.
Crim. P. 16(a)(1)(A). See, e.g., United States v. Orr, 825
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F.2d 1537, 1541 (11th Cir. 1987); United States v. Roberts,
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8. We note that at Corcoran's sentencing the prosecutor
expressly stated that, if anything, Corcoran was less
culpable than Williams. (Tr. 37). Corcoran's sentence was
longer than Williams because Corcoran had a more significant
criminal history and had not cooperated with the government.
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811 F.2d 257, 258 (4th Cir. 1987) (en banc). See also 8
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Moore's Federal Practice, 16.04[1][a], p. 16-64 ("A
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defendant may discover only his own statements, not those of
a codefendant." (footnote omitted)). We need not resolve
this point on appeal. Insofar as Corcoran asserts a
violation of Rule 16(a)(1)(A), his claim is subject to the
general rule that "nonconstitutional claims may not be
presented in a section 2255 proceeding unless 'the claimed
error of law [represents] "a fundamental defect which
inherently results in a complete miscarriage of justice."'"
Barrett v. United States, 965 F.2d 1184, 1188 (1st Cir. 1992)
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(citations omitted). On this record, we have no hesitation
in holding that the government's failure to produce Agent
Georges' report before Corcoran pled guilty did not result in
a miscarriage of justice.
To be sure, a defendant who pleads guilty has a
right to know the nature of the charges against him and the
possible punishment he faces. Iaea v. Sunn, 800 F.2d 861,
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866 (9th Cir. 1986). Toward that end, Fed. R. Crim. P.
11(c)(1) requires that district judges determine that
defendants understand:
. . . the mandatory minimum penalty
provided by law, if any, and the
maximum possible penalty provided by
law, including the effect of any
special parole or supervised release
term, the fact that the court is
required to consider any applicable
sentencing guidelines but may depart
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from those guidelines under some
circumstances, and, when applicable,
that the court may also order the
defendant to make restitution to any
victim of the offense; . . .
The record of Corcoran's change of plea hearing
establishes that the district judge satisfied these
requirements. He advised Corcoran that upon conviction he
would be subject to imprisonment up to twenty years, a fine
of up to $1 million (or any combination of the two), a
minimum of three years supervised release, and $150 in
special felony assessments. Corcoran acknowledged that he
understood these penalties. He also acknowledged that he had
conferred with counsel concerning the likely application of
the Sentencing Guidelines to his case. Although that "likely
application" was not discussed in terms of specific
guidelines, Corcoran acknowledged that he understood the
court could not determine the applicable guideline sentence
until after the presentence report was prepared. Corcoran
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denied that any promises had been made to him concerning the
sentence the court would impose. Having reviewed the entire
record, we are satisfied that Corcoran's plea was a voluntary
and intelligent act.9
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9. Rule 11 does not require district courts to advise
defendants how their "relevant conduct" might be determined
under the Sentencing Guidelines. Such a requirement often
would be unworkable, for, as the Advisory Committee notes to
the 1989 Amendment to Rule 11 observe, "it will be
impracticable, if not impossible, to know which guidelines
will be relevant prior to the formulation of a presentence
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Finally, Corcoran has failed to state a basis to
set aside his plea based on the alleged ineffective
assistance of his counsel. Corcoran argues that defense
counsel led Corcoran to believe he would only be held
responsible for cocaine quantities related to the counts to
which he pled guilty and that counsel's failure to discover
Agent Georges' report resulted in a concomitant failure to
advise Corcoran precisely how his "relevant conduct" would be
determined. But the record discloses that defense counsel
discovered part of the quantities Williams attributed to
Corcoran through Agent Bryfonski's report. Even if we assume
that, absent Agent Georges' report, defense counsel erred in
estimating the applicable guideline, a mere inaccurate
prediction as to a defendant's likely sentence does not
constitute ineffective assistance. See, e.g., United States
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v. Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990); United
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States v. Pallotta, 433 F.2d 594, 595 (1st Cir. 1970). Where
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Corcoran admitted purchasing the quantities identified in
Agent Georges' report, there was no basis for defense counsel
to challenge their inclusion at sentencing. Indeed, such a
challenge would have been inconsistent with the notion of
acceptance of responsibility, for which Corcoran received a
two level downward adjustment. We also discern no error in
defense counsel's advice that Corcoran not appeal his
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report and resolution of disputed facts... ."
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sentence. Corcoran's remaining ineffective assistance claims
are patently meritless. While Corcoran's 2255 motion
asserted that he was drug dependent when he committed these
crimes, the presentence report contradicts this assertion and
indicates that, despite a history of drug and alcohol abuse,
Corcoran had stopped drinking in 1987 and stopped using
cocaine in June 1990. Defense counsel's alleged failure to
explore a diminished capacity or entrapment defense was not
ineffective assistance.10
Judgment affirmed.
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10. Corcoran does not allege that he was under the influence
of drugs or alcohol when he changed his plea.
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Document Info
Docket Number： 92-1016
Filed Date： 10/29/1992
Precedential Status： Precedential
Modified Date： 9/21/2015