United States v. Pugliesi ( 1994 )

USCA1 Opinion

          December 9, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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        No. 94-1909

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                LUIS EDUARDO PUGLIESI,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                     [Hon. Carmen C. Cerezo, U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            Miriam Ramos Grateroles on brief for appellant.
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            Guillermo  Gil, United  States  Attorney, Joseph  J.  Frattallone,
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        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior
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        Litigation Counsel, on brief for appellee.


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                 Per Curiam.  Appellant Luis Eduardo Pugliesi appeals the
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            denial  by the  district court  of his  motion to  compel the

            government  to perform  its promise  to file  a motion  for a

            downward departure if appellant agreed to provide information

            which did not prove to be false or misleading.  We affirm.

                 Prior to entering into a plea agreement on  November 16,

            1993,  Pugliesi was subject to a series of debriefings by the

            government.   During the course of  the debriefings, Pugliesi

            changed  his  story  and  admits  to  having  provided  false

            information.   However,  he  claims that  the information  he

            provided as of the date of the agreement was truthful.

                 After  signing the  plea agreement,  Pugliesi  agreed to

            participate in a polygraph examination on November 23, 1993. 

            After  the  completion  of   the  examination,  Pugliesi  was

            informed  that,  in  the  opinion  of  the  examiner, he  had

            provided   answers  which   were  indicative   of  deception.

            According  to  the  testimony  of his  case  agent,  Pugliesi

            thereupon  admitted that  he  had lied  during the  polygraph

            examination and that he had not "been completely truthful" in

            the   previous   debriefings.   At    Pugliesi's   subsequent

            sentencing,  the  government  refused   to  file  a  downward

            departure motion.

                 The  district court supportably  found credible the case

            agent's  testimony that,  on  November 23,  Pugliesi admitted

            having lied when he provided information to the government at



















            and  after entering the plea agreement.  See United States v.
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            St.  Cyr., 977  F.2d  698,  706  (1st  Cir.  1992)  ("In  the
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            sentencing phase,  credibility determinations lie  within the

            domain of the district  court.").  According to the  terms of

            the  plea agreement,1  the  government was  thereby under  no

            obligation to  recommend a downward departure  at sentencing,

            and its decision not to file such a motion was neither in bad

            faith nor lacking in  a rational basis.  See United States v.
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            Catalucci, No. 93-2129, slip. op. (1st Cir: Sept. 27, 1994).
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                 Affirmed.
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            1.  The agreement states, in relevant part:

                 Should  evidence  of defendant's  mendacity, and/or
                 misleading  or  incomplete  replies  surface  after
                 defendant['s]  change  of plea,  the  United States
                 will not be bound  to file any motions or  make any
                 recommendations    favorable   to    defendant   at
                 sentencing.

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