United States v. Rodriguez Claudio ( 1994 )


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    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



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    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.





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    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



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    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 _________ ______________



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    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. ________





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    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.



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    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



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    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



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    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.



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    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. _____



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    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



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    (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



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    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.



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    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.





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    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



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    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. ________





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