United States v. Clark

United States Court of Appeals
For the First Circuit

No. 95-2308

UNITED STATES OF AMERICA,

Appellee,

v.

CRAIG J. CLARK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

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

Before

Torruella, Chief Judge,

Stahl and Lynch, Circuit Judges.

Kevin E. Buchholz, with whom Bianco, P.A., was on brief, for

appellant.

Peter E. Papps, First Assistant United States Attorney, with

whom Paul M. Gagnon, United States Attorney, was on brief, for

the United States.

May 30, 1996

LYNCH, Circuit Judge. The kidnapping at knife point

of a young New Hampshire woman by defendant Craig Clark and

others resulted in Clark ultimately pleading guilty to two

federal charges: conspiracy to interfere with and

interference with interstate commerce by threats of violence,

both in violation of 18 U.S.C. 1951. This is Clark's

second trip to this court on his sentence. He was successful

before, and now finds, to his chagrin, that his new sentence

is higher than the one that was overturned in his first

appeal.

In United States v. Clark, 55 F.3d 9 (1st Cir. 1995),

this court vacated Clark's original 188 month sentence and

remanded for resentencing before a new judge on grounds that

the government had not kept its end of the plea agreement.

Clark now appeals from the 223 month sentence imposed on

resentencing by the second sentencing judge after remand.

Relying on the Supreme Court's decision in North

Carolina v. Pearce, 395 U.S. 711 (1969), Clark argues that

the district court's imposition of a prison term on

resentencing that was more severe than the sentence vacated

on appeal effectively punishes him for exercising his right

to appeal and violates his right to due process of law. He

also contends that the district court erred in enhancing his

sentence based on a determination that he had obstructed

justice by suborning perjury and making false statements to

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his probation officer. The decisions of the Supreme Court

and this court interpreting the holding of Pearce doom

Clark's first attack. His second attack is without merit on

the law and the facts. We affirm.

I

In Pearce, the Supreme Court held that a court

violates the Due Process Clause when it imposes a heavier

sentence upon a reconvicted defendant for the purpose of

penalizing the defendant for having successfully appealed

from his original conviction. See id. at 723-24. As a

prophylactic measure, the Court created a "'presumption of

vindictiveness' . . . which is triggered whenever the same

judge imposes a more severe sentence upon a defendant after

retrial." Johnson v. Vose, 927 F.2d 10, 11 (1st Cir. 1991)

(quoting United States v. Goodwin, 457 U.S. 368, 374 (1982)).

However, the "presumption of vindictiveness" does not arise

in every case in which a defendant receives a greater

sentence the second time around. Texas v. McCullough, 475

U.S. 134, 138 (1986). As the Court said in McCullough,

"vindictiveness of a sentencing judge is the evil the Court

sought to prevent rather than simply enlarged sentences after

a new trial." Id. Thus, the presumption of vindictiveness

created by Pearce arises only when "there is a 'reasonable

likelihood' . . . that the increase in sentence is the

product of actual vindictiveness on the part of the

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sentencing authority." Alabama v. Smith, 490 U.S. 794, 799

(1989) (citation omitted).

The Pearce presumption does not arise where "different

sentencers assessed the varying sentences that [defendant]

received." McCullough, 475 U.S. at 140; see also Hurlburt v.

Cunningham, 996 F.2d 1273, 1275 n.2 (1st Cir. 1993) (per

curiam) ("Our research indicates that decisions by the

circuit courts of appeals after McCullough have uniformly

held that the Pearce presumption does not apply to the two-

sentencer situation."). In this case, the defendant's second

sentence was imposed by a different judge. Thus, no

presumption of vindictiveness arises. Absent such a

presumption, the defendant cannot prevail on his due process

claim unless he demonstrates "actual vindictiveness."

Johnson, 927 F.2d at 11.

Clark falls far short. He argues that vindictiveness

should be inferred because the New Hampshire federal district

court has only four judges and is a small court. Neither

logic nor experience warrants any such inference. Further,

he says, an increased sentence may not be imposed without

additional findings to support the increase. Pearce implies

no such requirement. The second trial judge heard all of the

sentencing evidence anew and made findings adequate to

support the sentence imposed, which was within the range

prescribed by the Guidelines. The length of a sentence

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vacated on appeal does not automatically function as a cap on

the term of imprisonment that can be imposed on resentencing.

One of the risks of appealing a sentence is that a different

judge, on remand, may take a different view of the facts (or

the law) relevant to the required Guidelines findings, a view

less favorable to the defendant. We note that Clark makes no

argument that the second sentencing judge misapplied the

Guidelines (aside from his assertion of error as to the

obstruction-of-justice enhancement, which we reject below).

There is no basis in the record for a finding of

vindictiveness. Cf. McCullough, 475 U.S. at 140 (no

vindictiveness where "second sentencer provides an on-the-

record, wholly logical, nonvindictive reason for the

sentence").

II

Under 3C1.1 of the Guidelines, the sentencing judge

is directed to increase the offense level by two "[i]f the

defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant

offense." U.S.S.G. 3C1.1 (Nov. 1993).1 Clark argues that

the district court erroneously enhanced his sentence based on

this provision. A brief description of the facts underlying

1. The district court apparently applied the 1993 version of
the Guidelines. The current version of 3C1.1 is the same.

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the district court's obstruction of justice finding sets the

stage for resolution of Clark's claim.

After his arrest and prior to his arraignment, Clark

apparently hatched the thought that if the district court

could be persuaded that the victim herself had been involved

in the scheme to kidnap and hold her for ransom, the

defendants would either receive more lenient sentences or

"all walk away scott [sic] free." In order to make the story

-- which had no basis in fact -- stick, he had to convince

his co-defendants to keep to the story line when they

testified. That is exactly what he tried to do while in the

U.S. Marshal's lockup. Clark's co-defendants, however,

refused to go along with his fabrication and told the

probation officer of Clark's efforts to induce them to lie to

the court. When the probation officer asked Clark about the

scheme, he denied it and claimed that his co-defendants must

have misunderstood him or were lying. The probation officer

included this information in the Pre-Sentence Report and

recommended that Clark's conduct be found to constitute

obstruction of justice and that he be denied any credit for

acceptance of responsibility.

After hearing testimony from Clark's two co-defendants

that Clark had tried to induce them to lie to the court, the

district court increased Clark's offense level from 34 to 36

pursuant to U.S.S.G. 3C1.1. This enhancement had the

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effect of increasing his Guidelines sentencing range from

151-188 months to 188-235 months. Clark contends that the

district court committed three errors: that the court should

not have applied the preponderance-of-the-evidence standard

with respect to its finding that Clark obstructed justice;

that the court failed to view his testimony in the light most

favorable to him; and that (in light of the first two points)

the court's finding of obstruction was clearly erroneous.

On the first point, Clark appears to argue that if he

had been separately charged with the crime of suborning

perjury and been convicted of that crime (as well as the

crimes of which he was actually convicted) by proof beyond a

reasonable doubt, he would have received a lesser sentence

than he received as a result of the obstruction of justice

being considered at sentencing. From this, he contends that

due process required the government to prove the facts

underlying the 3C1.1 enhancement beyond a reasonable doubt.

The argument is doubly flawed. First, Clark's premise is

presented without any effort to elaborate its basis under the

Guidelines and is far from obviously true. Second, precedent

disposes of his argument that anything but a preponderance-

of-the-evidence standard governs the district court's

factfinding at sentencing. See, e.g., United States v.

Lombard, 72 F.3d 170, 175-76 (1st Cir. 1995); United States

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v. Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir. 1994); United

States v. Mocciola, 891 F.2d 13, 17 (1st Cir. 1989).

Clark's second argument rests on his reading of

application note1 to 3C1.1. Thatapplication note provides:

In applying [ 3C1.1] in respect to alleged
false testimony or statements by the defendant,
such testimony or statements should be evaluated
in a light most favorable to the defendant.

U.S.S.G. 3C1.1, comment. (n.1). Clark argues that this

instruction required the district court to credit Clark's

version of the events (that his co-defendants were lying or

misunderstood him) over the testimony of the co-defendants as

described in the PSR and given at the sentencing hearing.

But the application note cannot mean, as Clark

apparently would have it, that the court must resolve all

factual or testimonial disputes in favor of the defendant.

Nor does it require the district court, in deciding whether

an obstruction of justice occurred, to accept a defendant's

self-serving denials over the testimony of other witnesses it

finds more credible. See United States v. Tracy, 36 F.3d

199, 203-04 (1st Cir.), cert. denied, 115 S. Ct. 609 (1994);

see also United States v. Akitoye, 923 F.2d 221, 228 (1st

Cir. 1991) ("Were that so, the safeguard [of application note

1] would swallow the rule in a single gulp."); United States

v. Franco-Torres, 869 F.2d 797, 801 (5th Cir. 1989) (such a

reading "would effectively enable every defendant to nullify

its application by self-serving testimony").

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Indeed, the plain language of the application note is

not nearly so broad as to permit Clark's reading. The note's

instruction is specifically limited to the application of

3C1.1 "in respect to alleged false testimony or statements

by the defendant" and provides that only "such testimony or

statements" should receive the benefit of a defendant-

favorable light. U.S.S.G. 3C1.1, comment. (n.1) (emphases

added).2 We understand this language to mean that if the

defendant is alleged to have obstructed justice by means of

false testimony or statements, and if such testimony or

statements encompass genuine ambiguities that plausibly

suggest that the testimony or statements were innocent as

opposed to obstructive, then those ambiguities may have to be

resolved in favor of the innocent reading. See Tracy, 36

F.3d at 204 (quoting United States v. Crousore, 1 F.3d 382,

385 (6th Cir. 1993)). As this court has recently said:

[The] interpretive principle [contained in
application note 1] only applies to the
construction of allegedly perjurious language,
not the determination of credibility of fact
witnesses. . . . Furthermore, lenitive
interpretations only apply 'to the extent that
an innocent reading may be plausible.'

2. We find it significant that an earlier version of the
application note provided, more expansively, that "the
defendant's testimony and statements should be evaluated in a
light most favorable to the defendant." U.S.S.G. 3C1.1,
comment. (n.1) (Nov. 1990). In amending the application note
to read as it currently does, the Sentencing Commission
explained that "[t]his amendment more precisely states the
meaning of this commentary." U.S.S.G. App. C, amend. 415
(Nov. 1991).

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United States v. Kelley, 76 F.3d 436, 441 (1st Cir. 1996)

(quoting Tracy, 36 F.3d at 204). In sum, application note 1

requires at most that the district court indulge "lenitive

interpretations" of the defendant's allegedly obstructive

statements to the extent plausible, and only if those

statements are ambiguous. See Tracy, 36 F.3d at 204. It

does not require the district court to avoid a finding of

obstruction by contriving doubt as to the defendant's conduct

where the evidence is otherwise clear, merely because the

defendant denies he did anything obstructive. See id. at

203-04; United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st

Cir. 1991).

Here, there were two aspects of Clark's conduct that

the court found constituted obstruction of justice: his

attempts to induce his co-defendants to lie to the court, and

his statements to the probation officer denying any such

attempts. See U.S.S.G. 3C1.1, comment. (n. 3(b) & 3(h)).

We review the district court's factual findings underlying

the 3C1.1 enhancement only for clear error. See Akitoye,

923 F.2d at 229.

As to Clark's attempt to suborn perjury, the lenitive

interpretive principle of application note 1 is inapposite,

as that conduct did not strictly consist of the making of

false statements. The district court explicitly found the

testimony of Clark's co-defendants regarding Clark's conduct

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to be credible, notwithstanding Clark's denials.3 We cannot

say that the court's finding was clearly erroneous.

As for Clark's allegedly false statements to the

probation officer, there was nothing ambiguous about them.

There is no dispute that Clark made those statements. Once

the district court found that Clark had in fact attempted to

induce his co-defendants to perjure themselves, it clearly

did not err in finding that Clark's denials to the probation

officer constituted obstruction of justice for purposes of

3C1.1.

Affirmed.

3. The fact that the co-defendants did not recall the
precise language Clark used in his entreaties to them does
not undercut that finding.

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