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USCA1 Opinion
March 25, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1050
UNITED STATES,
Appellee,
v.
HILDA BROWN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Stahl and Lynch, Circuit Judges. ______________
____________________
Juan E. Alvarez, First Assistant Federal Public Defender for ________________
Benicio Sanchez Rivera, Federal Public Defender for the District of
Puerto Rico, and Gustavo A. Gelpi, Assistant Federal Public Defender, ________________
on brief for appellant.
Guillermo Gil, United States Attorney, Esther Castro-Schmidt, ______________ ______________________
Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior _______________________
Litigation Counsel, on brief for appellee.
____________________
____________________
Per Curiam. Defendant-appellant Hilda M. Brown ___________
appeals from her sentence on three grounds, all arising out
of her unsuccessful motion for a downward departure from the
guideline sentencing range for extraordinary family
circumstances. We have jurisdiction to review appellant's
claims that the district court's departure decision was
affected by mistakes of law. See United States v. Webster, 54 ___ _____________ _______
F.3d 1, 4 (1st Cir. 1995). We affirm.
1. Fifth Amendment Violation _________________________
The Fifth Amendment "has long been interpreted to mean
that a defendant may refuse to 'answer official questions put
to him in any other proceding, civil or criminal, formal or
informal, where the answers might incriminate him in future
criminal proceedings.'" United States v. Perez-Franco, 873 ______________ ____________
F.2d 455, 462 (1st Cir. 1989) (quoting Lefkowitz v. Turley, _________ ______
414 U.S. 70 (1973)). The Supreme Court, while interpreting
the privilege broadly, has ruled that it "must be confined to
instances where the witness has reasonable cause to apprehend
danger from a direct answer." Hoffman v. United States, 341 _______ ______________
U.S. 479, 486 (1951).
Appellant has failed to demonstrate, and we cannot
conceive, how any testimony that she might have given at the
downward departure hearing could have been incriminating.
Therefore, her decision not to testify at the hearing cannot
properly be construed as an exercise of her Fifth Amendment
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privilege against self-incrimination. Accordingly, the
district court's consideration of her failure to testify in
denying the departure did not violate the Fifth Amendment.
2. Credibility Assessment ______________________
Appellant's second argument is that the sentencing court
impermissibly relied upon appellant's "criminal character in
the underlying offense of conviction" in concluding that she
had fabricated her allegation of extraordinary family
circumstances. Appellant is referring here to the sentencing
court's statement that "[t]he nature of the offense committed
by her points to her skills at deception."
Appellant's reliance upon United States v. O'Brien, 18 ______________ _______
F.3d 301 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. _____________
199 (1994), is misplaced. In the instant case, the
sentencing court did not base its departure decision upon an
assessment of appellant's worth or rehabilitative potential,
see id. Instead, the district court's comment merely ___ ___
indicated that it considered the nature of Brown's criminal
conduct in assessing her credibility. There was no error.
Cf. United States v. O'Neil, 936 F.2d 599 (1st Cir. 1991) ___ _____________ ______
(affirming sentencing court's refusal to award two-level
credit for acceptance of responsibility and finding "nothing
unlawful about a court's looking to a defendant's later
conduct in order to help the court decide whether the
defendant is truly sorry for the crimes he is charged with").
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Even if the district court erred in considering the
nature of Brown's offense, any error was harmless. See ___
Williams v. United States, 503 U.S. 193 (1992) (remand not ________ _____________
required for incorrect application of the guidelines where
reviewing court determines that the same sentence would have
been imposed had the district court not relied upon the
invalid factor). The deceptive nature of Brown's offense was
only one of several factors upon which the district court
relied in deciding not to depart. It is apparent from the
record that the district court would have denied the request
for a departure even absent consideration of the nature of
her offense.
3. Refusal to Authorize Funds __________________________
Brown's final argument is that the district court's
denial without a hearing of her request under 18 U.S.C.
3006(A)(e)(1), constitutes reversible error. A district
court's refusal to authorize funds for an expert constitutes
reversible error only where there is "'clear and convincing
evidence showing prejudice to the accused.'" United States v. _____________
Canessa, 644 F.2d 61, 64 (1st Cir. 1981). In this case, _______
Brown was able to hire an expert despite the district court's
denial of her request for funds. We conclude that Brown has
not shown by "clear and convincing evidence" any prejudice
arising from the denial of her request for funds.
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Accordingly, appellant's conviction and sentence are
summarily affirmed. See Loc. R. 27.1. __________________
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Document Info
Docket Number： 95-1050
Filed Date： 3/25/1996
Precedential Status： Precedential
Modified Date： 9/21/2015