USCA1 Opinion

April 12, 1996

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 95-2232

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN J. CONWAY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Barry T. Albin with whom Peter A. Gaudioso and Wilentz, Goldma

______________
__________________
_______________
Spitzer were on brief for appellant.
_______
Peter E. Papps,
______________

Assistant United States Attorney, orally;

Don
___

A. Feith, Assistant United States Attorney, with whom Paul M. Gagn

_________
____________
United States Attorney,
_______________________

and

Michael J. Connolly, Assistant

____________________

States Attorney, were on brief for appellee.

____________________

April 11, 1996

____________________

Uni

ALDRICH, Senior Circuit Judge.

____________________

guilty to

one count

Honda Motor Company

1346.

in violation

of 18 U.S.C.

level downward

departure

1343

and

court's

F.2d

for substantial

1150, 1153-54

decision, United States v.

_____________

(1st Cir.

exception in case of an error of law.

3742.1

This is

assistance.

Normally an appeal is not available for such

a broadly discretionary

claim

American

to grant the government's motion on his behalf for a

U.S.S.G. 5K1.1.

983

defraud the

He now appeals his sentence, specifically the

refusal

four

of conspiracy to

John J. Conway pled

such a case.

1993),

Mariano,
_______

but there

is an

Id. at 1153; 18 U.S.C.

___

Defendant makes

a colorable

that his Fifth Amendment rights to due process and not

to be made a

witness against himself were violated

when the

court based its

give

the

range,

decision to deny downward

maximum sentence

under

on self-incriminating

pursuant to a plea agreement

it was

F.2d at

he

had

divulged

to provide the government

with

for immunity and a motion

Noting the standard provision that

not bound to accept

Mariano, 983
_______

applicable guideline

information

substantial assistance in exchange

for downward departure.2

the

departure, and to

the government's recommendation,

1155, the

court, while

admitting the

____________________

1.

Appellate jurisdiction exists

violation

of

law."

18 U.S.C.

for sentences "imposed

3742(a)(1).

in

See United
___ ______

States v. Drown, 942 F.2d 55, 58 and n.6 (1st Cir. 1991).
______
_____

2.

The possibility

that in

its discretion the

court might

have reached the same result absent any error does not defeat

jurisdiction.

See Drown, 942 F.2d at 60.

___ _____

-2-

sufficiency

of

defendant's

disclosures

to

warrant

the

departure, denied

it on the ground that it would lead to too

light

for a

objects

a sentence

defendant so

revealed.

Defendant

that the effective "countervailing factors" found by

the court to "militate against granting a motion for downward

departure" came to the court's attention solely by

disclosures he had

they would not be

provided in exchange

used against him.

for a promise

We concur, and

for resentencing.

The plea agreement read as follows:

No truthful information
Conway

to

provided by

Mr.

government

attorneys or

law

officers,

pursuant to

this

enforcement

agreement, or any information directly or

indirectly derived from such information,
will be

used against Mr.

government
complies

provided
with

Conway by

that

the

terms

Mr.

the

Conway

of

this

agreement.

As to information provided by

Mr. Conway

regarding unlawful activities

involving himself and others that was not

known to the government prior to entering
into
shall

this

agreement,

not be

applicable
U.S.S.G.

used

in

such

information

determining

guideline range,
1B1.8.

reason of

the

pursuant to

that

remand

It is clear, first of all, that the

does

not

bind

the

prosecutor's wishes,"

except

as

or

the

by

United

broad discretion

substantial

"to

comply

Mariano, 983
_______

restricted

statutes,

"retains

court

assistance

the

to

with

F.2d at 1155,

the

and that,

other

Constitution,

exhume

before

-3-

blindly

Guidelines,

States

plea agreement

the

federal

court

factors unrelated

burying

the

to

[guideline

sentencing range]."

language

of

the

Id. at 1156-57.
___

agreement,

interpretation the court

as

We also

written,

gave it at the

promise

agree that the

that,

deserves

the

time of sentencing:

defendant

received

(1)

the

information

disclosed

would not be used against him by the government -_________________

e.g., as a basis for future prosecution, for refusing to make

a motion for

action

downward departure, or for any other government

against

calculating

him --

and, (2)

it

would not

his guideline range -- no more.

be

used in

As written, the

agreement does not preserve the blanket protection

defendant

claims he bargained for

his Fifth

in exchange for waiver of

Amendment right not

United States v.
_____________

to be

a witness against

Hogan, 862
_____

F.2d 386, 388

(plea agreements are to

law principles).

So

himself.

See
___

(1st Cir.

1988)

be interpreted according to contract

interpreted, defendant cannot

state a

claim that his rights were violated.

There was,

court itself.

determine,

however, a difficulty,

provided by the

At the hearing at which the court undertook to

in lengthy

converse with

defendant,

whether he

understood the consequences of entering the agreement and the

plea,

see F.R.Crim.P.
___

agreement

fully.

obligation

under

disclosure,

11(c), the

After

the

and the

court did

explaining

agreement

consequences

to

to

make

of failing

not quote

defendant

full,

to do

the

his

truthful

so, it

stated, "Now,

any truthful information that

you provide the

-4-

government during the course of your

used against you."

The original limitation, to

the government," was omitted.

supposed

to

cooperation will not be

remember it?

non-use "by

In all fairness, was defendant

The

whole

purpose of

the plea

hearing

is to

assure full

understanding.

reasonable understanding in defendant's

see
___

Hogan, 862
_____

obligation

grant

F.2d at

388,

to speak in

The objectively

ears when he signed,

was that

he was

exchange for, among

assuming an

other things, a

of full use immunity for whatever he disclosed.

True,

the court went on to quote the agreement's provision that the

information "will

not be used in

guideline range,"

which we

the

prior

immunity.

exclusio
________

statement

is

determining the applicable

observe would be

interpreted

The implication, and the

alterius est
________ ___

are

to

superfluous if

grant

full

use

principle inclusio unis

________ ____

rules of

construction known

to

lawyers, but a defendant surely cannot be expected to apply a

lawyer's

analytical

tools

in

colloquy

conducted

specifically

to

particularly

loathe to

contradict

assure

apparent

his

lay

do so

understanding.

when the

absoluteness.

effect would

At

best,

the

We

are

be to

court's

second statement created an ambiguity that we must resolve in

favor of defendant's reasonable understanding.

The case comes down to this.

contract

under

consideration.

which

both

A plea agreement is a

parties

The government obtains a

-5-

give

and

receive

conviction that it

otherwise might not

have.

receives less, or a

chance at less, than he

have.

The defendant,

correspondingly,

otherwise might

In this case the government received something more --

tangible disclosures concededly of substantial value in light

of the return offered defendant (non-use of the information),

which was promised

F.R.Crim.P.

11(e)(3) and (4) the

the agreement.

terms

the

not merely as hope,

defendant

Under

court may accept or reject

Here the court expressly

benefit

but as firm.

should

defined in absolute

expect.

Under

the

agreement the court could have denied the government's motion

for

a downward departure, but it cannot be thought it should

do so by relying

bargained

to

on the very disclosures that

make

on

doubtless the court did

surely

an

immunization

defendant was

promise.

While

not recall this record inadvertency,

due process, not to mention

public perception of the

courts, should forbid such a result.3

This

brings us to the

remand itself.

It will be

open to the court, after vacating the present sentence, again

to address the issue

of a downward departure.

In this case,

however,

should

finding

defendant

the

had

court

rendered

government, and if

____________________

it is to

not

change

substantial

the

assistance

be rebutted it

that

to

the

must be on

new

3.
note

To the extent that U.S.S.G.

1

appear

to

the

1B1.8(b)(5) and application

contrary,

the

constitutional

prerogatives in this case must prevail.

-6-

findings, which

we suggest should be

defendant's disclosures.

stated, independent of

-7-

We

vacate

defendant's

sentence

resentencing.

-Concurring opinion follows-Concurring opinion follows-

and

remand

for

-8-

SELYA, Circuit Judge (concurring).

SELYA, Circuit Judge (concurring).
_____________

doubt

that

fairly, I

the defendant

agree with my

in

this

case

While I have no

has been

colleagues that the

treated

combination of

the district

judge's unfortunate

slip of the

the change-of-plea

hearing and his frank

elicited

from the

defendant during

sentence

at

the

perception

of

sentence.

top

tongue during

use of information

debriefing to

impose a

of

the

guideline

range

unfairness

and

requires

vacation

write separately,

however, to

creates

of

the

highlight four

points.

First, this is not a case in which the court coaxed

plea

through

intelligent,

misrepresentation.

well-educated

Mr.

businessman who

throughout by distinguished counsel.

Conway

is

an

was represented

Insofar as I can tell,

he was not actually misled and the judge's lapsus linguae had
______ _______

no

actual

effect

on

the

course

of

the

proceedings.4

Nevertheless, I cannot vote to uphold the sentence.

When the

public

perception of

justice is

imperilled by

the court's

actions in a criminal case, the usual rules of harmless error

do not apply.

____________________

4.
late

This conclusion is underscored,

blossoming

of

any

argument

if not compelled, by the

based

misstatement at the change-of-plea hearing.

on

the

court's

The defendant's

brief on appeal is devoid of developed argumentation

in this

regard, and the judge's statement was first mentioned at oral

argument in this court (and then, only in passing).

-9-

Second, it is important to emphasize that this case

is sui generis.
___ _______

permit

Under ordinary circumstances, the guidelines

information

obtained

from a

during debriefing

to be used in

sentence (as long

as the

cooperating

determining the defendant's

plea agreement does

further limitation on these uses).

defendant

See U.S.S.G.
___

not impose

1B1.8(b)(5)

& n.1.

Third, the plea agreement in this case, interpreted

under principles of contract law, see United States v. Hogan,

___ _____________
_____

862

F.2d 386, 388 (1st

limitation.

misstatement

Were

it

not

during the

could have

used the

either

deny

to

Cir. 1988), imposed

for

the

judge's

inadvertent

change-of-plea colloquy,

information obtained

the

no such special

downward

defendant's sentence within

departure,

the court

during debriefing

or

to

fix

the

the appropriate guideline range,

or for both purposes.

Fourth,

under the plea

and binding precedent in

Mariano, 983 F.2d

_______

agreement, the guidelines,

this circuit, see United States

___ _____________

1150, 1157 (1st

Cir. 1993), the

v.

district

court was obliged fully

to consider the elicited information

in

to

determining whether

5K1.1

motion for

grant

downward

the government's

departure.

On

section

remand,

the

district

court

information.

remains

obliged

to

consider

all

the

And, moreover, even if the court finds that the

defendant substantially assisted the investigation, it is not

-10-

obligated

downward,

to

see
___

grant

the

Mariano,
_______

section 5K1.1

983

F.2d

motion

at

and

1156-57,

depart

or,

alternatively,

to impose

a sentence

at the

bottom of

the

guideline range.

Despite the court's substantial discretion in these

respects,

required.

I agree

with my

has

premised

even a discretionary action that the

no

legal obligation

on an

impermissible

appeals must intervene.

55, 60

resentencing is

When, as now, a sentencing court makes clear that

a discretionary action

court

colleagues that

(1st Cir. 1991).

high price for candor

to

explain

at

consideration, the

all5

is

court

of

See United States v. Drown, 942 F.2d

___ _____________
_____

To this

extent, the judge

pays a

but justice demands the exaction.

____________________

5.

A good example, apropos here, is that, subject to certain

exceptions

not

sentencing court
chooses

relevant

in

the circumstances

has no legal

particular

at

obligation to explain

sentence within

why it
defined

guideline

sentencing range.

Levinson,
________

56 F.3d 780, 780 (7th Cir. 1995); United States v.

_____________

Garrido, 38 F.3d 981,

_______
Lively,
______

United States
_____________

v.

986 (8th Cir. 1994); United States v.

______________

20 F.3d 193, 198 (6th Cir.

sentencing court
its

See, e.g.,
___ ____

narrowly

bar,

1994).

By like token, a

customarily need not explain

refusal to depart downward.

See, e.g., United States v.

___ ____ _____________

Lombardi, 5 F.3d 568, 572 (1st Cir. 1993).

________

-11-

the basis for