United States v. Tavares

September 3, 1996
United States Court of Appeals
For the First Circuit

No. 96-1763

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL D. TAVARES,

Appellant.

ERRATA SHEET
ERRATA SHEET

The opinion of this Court issued on August 21, 1996, is corrected
as follows:

On page 15, line 23: replace "inch deep" with "inch long"

United States Court of Appeals
For the First Circuit

No. 95-1763

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL D. TAVARES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Kevin S. Nixon for appellant.

Daniel D. Tavares, on brief pro se.

Michael J. Pelgro, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for the United

States.

August 21, 1996

LYNCH, Circuit Judge. An early-morning assault in
LYNCH, Circuit Judge.

Mashpee, Massachusetts, on August 29, 1991, resulted in a

chase through nearby woods and the arrest of Daniel D.

Tavares. On May 15, 1992, Tavares was convicted of violating

18 U.S.C. 922(g), the felon in possession of a firearm

statute. Tavares appealed, and this court, sitting en banc,

reversed his conviction on the ground that the district

court's decision to allow the government to prove the "prior

felon" element of Section 922(g) rather than accept a defense

stipulation created unfair prejudice. See United States v.

Tavares, 21 F.3d 1 (1st Cir. 1994) (en banc). There was a

second trial and, on March 30, 1995, Tavares was again found

guilty. He appeals, asserting: (i) a variety of trial errors

in a pro se submission; and (ii) two sentencing errors

through a counsel assisted submission. We affirm the

district court on the claimed trial errors, but vacate and

remand on the sentencing issues.

I.

On August 29, 1991, Tavares and his companion,

Cyril Pocknett, Jr., were in a confrontation with Sheldon

Blake and Rodney Hunt over accusations of the theft of a car

stereo. Threats were exchanged, but no violence ensued, and

Tavares and Pocknett left the area. Blake and Hunt then went

to Blake's apartment. Blake lived in a second-floor

apartment with his girlfriend, Nicole Cain, and their infant

daughter. About an hour and a half later, Tavares and

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Pocknett returned and buzzed Blake's front door. Hunt opened

the door and Tavares greeted him with a shotgun to the head

and the words, "What's up now, motherfucker?" Standing next

to Tavares was Pocknett, aiming a .22 caliber rifle at Hunt.

Acting on instinct, Hunt grabbed the barrels of

both rifles, pushed them down, and fled up the stairs into

Blake's apartment. Tavares then fired his shotgun repeatedly

into Blake's nearby parked car. Meanwhile, Hunt noticed that

his hand was bleeding. Apparently, in grabbing the barrel of

Tavares' shotgun, he had ripped the palm of his hand on the

gun's sight.

Cain, on hearing the gunshots, rushed to her

daughter's bedroom to protect her from danger. After the

shots subsided, she looked out the window and saw Tavares and

Pocknett running toward the nearby woods. Shortly

thereafter, the police arrived. They searched the woods, and

after a chase, captured Tavares. They also found the shotgun

and .22 caliber rifle, hidden under pine needles.

Back at the apartment building, Hunt, whose right

hand was bleeding profusely, wrapped it in a rag which soon

became bloodsoaked. On entering the building, Officer Alan

Roguzac observed pools of blood in both the hallway and on

the carpeting leading up to Blake's apartment. Soon after,

on seeing Hunt's wound, Roguzac radioed for an ambulance.

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Hunt was taken to the Falmouth Hospital emergency room, where

his hand received eight stitches.

Cain, Blake and Hunt were interviewed by the

police. Specifically, Cain spoke to Sergeant David Mace and

Detective Doris Dottridge.

Trial

Cain did not testify at Tavares' first trial. At

his second trial, however, she testified that on the night of

the incident she had told a male police officer and Dottridge

that she had seen Tavares with a gun. Dottridge could not

recollect any such statement by Cain, but Mace testified

that he was the male police officer to whom Cain had made her

statement. Tavares attacked Mace's testimony by pointing out

that Mace's police report did not specifically report Cain's

statement. Instead, Mace's report said only that "they" had

seen Tavares with a gun. Tavares argued that "they" meant

only Hunt and Blake, whereas Mace asserted that "they"

included Cain as well.

At the conclusion of the six-day second trial, the

jury requested the transcripts of the testimony of Cain,

Hunt, Blake, and Earl Cash, another witness. The court

explained to the jury that, thanks to the court reporter's

personal investment in certain equipment, the court had the

unusual ability to provide them with transcripts within a

short period of time. The court noted, however, that despite

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the reporter's speed, skill and equipment, since the reporter

was needed on a different case the next morning, he might not

be able to satisfy all of the jury's requests, and that the

jury was to proceed in its deliberations nevertheless. The

next morning, the jury was provided with the transcripts for

Cain, Hunt, and Cash, but not Blake. The court told the jury

that, if possible, it would get them the transcript of

Blake's testimony, but reiterated that they should proceed

regardless. Within a little over an hour, and without having

received the transcript of Blake's testimony, the jury

returned a verdict of guilty.

Sentencing

Tavares was sentenced to ten years in prison. The

guideline applicable to his offense of conviction was Section

2K2.1 (unlawful possession of a firearm). See U.S.S.G.

2K2.1 (Nov. 1990).1 The court then applied Section 2A2.2

(aggravated assault) by way of a cross-reference in Section

2K2.1.2 As a result of applying the cross-reference,

Tavares' offense level jumped from twelve to twenty-three.

Level twenty-three represented a starting offense level of

fifteen for aggravated assault plus an increase of eight

levels for specific offense characteristics -- a three-level

1. The court applied the version of the Guidelines in effect
at the time of Tavares' offense. Neither party contends that
a different version should apply.

2. See U.S.S.G. 2K2.1(c)(2) and 2X1.1(c)(1).

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increase for the victim's bodily injury and a five-level

increase for the discharge of a firearm. The Pre-Sentence

Investigation Report recommended that the court sentence

Tavares under the aggravated assault guideline because he had

pointed a loaded shotgun at his victim's head, thereby

evincing an "intent to do bodily harm." See U.S.S.G.

2A2.2, comment. (n.1(a)). The Guidelines define "aggravated

assault" as "a felonious assault that involved" either "a

dangerous weapon with intent to do bodily harm (i.e., not

merely to frighten)" or "serious bodily injury" or "intent to

commit another felony." U.S.S.G. 2A2.2, comment. (n.1).

At sentencing, however, Tavares protested that

there was insufficient record support for either a finding

that he had had the requisite intent to do bodily harm or a

finding that serious bodily injury had resulted. Instead, he

said, the evidence showed that he had merely meant to

frighten his victim. Additionally, Tavares argued that,

under the Guidelines, a serious bodily injury was one that

required hospitalization or surgery. The government argued

that the injury Tavares' victim had suffered, i.e., a cut to

the hand requiring a trip to the emergency room and eight

stitches, was in fact a serious bodily injury within the

Guidelines' definition. See id. and U.S.S.G. 1B1.1,

comment. (n.1(j)). The court accepted this argument. The

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resulting Guidelines sentencing range, given Tavares'

criminal history category ("CHC") of IV, was 70-87 months.

The sentencing court then departed upward by two

CHC levels and one offense level to achieve a final

sentencing range of 110-125 months. See U.S.S.G. 4A1.3,

p.s. (departures beyond CHC VI may occasionally be

appropriate in cases of an "egregious, serious criminal

record"). The court's stated basis for the upward departure

was that Tavares had, in fact, committed three state crimes

(that had resulted in "guilty filed" dispositions as opposed

to outright convictions3) that were not counted in his CHC

score and that a CHC of IV did not adequately reflect the

true seriousness of Tavares' chronic criminality.

Tavares appeals, asserting errors in both the trial

and sentencing.

II.

Trial

3. "Guilty filed" dispositions in the Commonwealth of
Massachusetts involve an admission of sufficient facts for a
possible finding of guilt, but not an explicit admission of
guilt. The primary focus of the sentencing hearing after
Tavares' second federal trial was whether three of his
"guilty filed" dispositions counted as predicate convictions
under the Armed Career Criminal Act ("ACCA"). See 18 U.S.C.

924(e). The sentencing court ruled that the "guilty filed"
dispositions could not be counted as convictions under the
ACCA. The court explained, however, that as there was
sufficient evidence that Tavares had in fact committed the
state crimes, and because, had they been convictions, they
would have resulted in a minimum federal sentence of fifteen
years, it was going to depart upward and sentence Tavares to
ten years.

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Tavares' pro se brief asserts that the district

court committed reversible error in: (i) failing to provide

the jury with a transcript of a particular witness' testimony

that it had requested and instructing the jurors that they

should proceed to deliberate without that transcript; (ii)

permitting the jury to "view" the allegedly perjured

testimony of a witness; (iii) failing to ask the jury whether

its request for transcripts pertained to the instant trial or

prior proceedings. Because contemporaneous objections were

not made with respect to any of the claims, review is for

plain error. See, e.g., United States v. Cruz-Kuilan, 75

F.3d 59, 62 (1st Cir. 1996). We discern no miscarriage of

justice and Tavares' claims fail this review. See, e.g.,

United States v. Sullivan, 85 F.3d 743, 751 (1st Cir. 1996).

A. Failure to Provide Transcript

After deliberations commenced, the jury asked to

review the testimony of four witnesses: Cain, Hunt, Cash and

Blake. The next morning, the court was able to provide the

jury with transcripts for Cain, Hunt and Cash, but Blake's

was not yet ready. The court reporter was needed on another

case and the court told the jurors that, if possible, they

would be provided with the transcript, but that they should

proceed with their deliberations regardless. Tavares argues

that this was reversible error.

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Decisions regarding the provision of trial

transcripts to the jury are within the discretion of the

trial judge. See United States v. Akitoye, 923 F.2d 221, 226

(1st Cir. 1991) (decision as to whether requested testimony

should be reread to jury rests in trial court's discretion).

In making its decision, the trial judge is to consider

factors such as the ease or difficulty of compliance with the

jury's request and what is likely to be gained or lost. Id.

The court here provided the jury with three of the four

transcripts requested. The one transcript not provided was

that of Blake, who had testified most recently, and that was

because the court reporter was needed for another case. Cf.

id. (where testimony is fresh in jury's mind there is less of

a need for rereading). We discern no plain error either in

the non-provision of the transcript or in the instruction

that the jury should continue deliberations.

B. Perjured Testimony

Tavares argues that the court erred in permitting

the jury to "view" the perjured testimony of Cain, a

government witness.4 Tavares further asserts that the

government knew or should have known that not only was Cain's

testimony perjured, but that the supporting testimony of

Sergeant Mace was perjured as well. Tavares, however, has

4. We assume that Tavares is referring to the court's
provision of the jury with the transcript of Cain's testimony
during deliberations.

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not shown that either witness committed perjury. And so the

argument fails for want of a foundational piece.

Cain testified at the instant trial that: (a) on

the night of the incident, she saw Tavares with a gun; and

(b) that she had told this to the police on the scene. Cain

did not, however, testify at Tavares' first trial.

Tavares says that her testimony at the instant

trial must have been perjured because there was no record of

her having related this information to the police on the

night in question. Tavares theorizes that the government,

having been reversed once, used perjured testimony to ensure

its victory in the second trial. As support, he points to

the testimony of Dottridge, one of the officers whom Cain

allegedly told of having seen Tavares with a gun. Dottridge

testified that she could not recall Cain having stated that

she saw Tavares with a gun. There was, however, testimony

from Dottridge's colleague, Mace, that he had heard Cain's

statement. But Tavares says that Mace's testimony must have

been perjury as well because Mace's police report did not

state specifically that Cain had seen Tavares with a gun.

Instead, Mace's report stated that "they" had seen Tavares

with a gun, without specifying which witnesses "they"

referred to.

"[A] conviction obtained by the knowing use of

perjured testimony is fundamentally unfair, and must be set

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aside if there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury."

United States v. Agurs, 427 U.S. 97, 103 (1976) (footnotes

omitted). Under federal law, perjury occurs when a "witness

testifying under oath or affirmation . . . gives false

testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory." United States v.

Dunnigan, 507 U.S. 87, 94 (1993) (referring to the definition

of perjury under 18 U.S.C. 1621). Tavares, however, has

pointed to no more than an inconsistency (between Cain's

testimony and that of Dottridge) and an unclear police report

(that of Mace). Inconsistent testimony by itself does not

amount to perjury, nor does an unclear police report make it

so. See United States v. Gary, 74 F.3d 304, 314 (1st Cir.)

("it is axiomatic that inconsistent testimony is not per se

perjurious"), cert. denied, 116 S.Ct. 2567 (1996). Further,

the fact that Cain did not testify at Tavares' first trial,

but did at the second, avails Tavares naught. See Anderson

v. United States, 403 F.2d 451, 454 (7th Cir. 1968)

(inconsistency in witness' testimony between trials is not,

alone, enough to show perjury), cert. denied, 394 U.S. 903

(1969); cf. United States v. Lebon, 4 F.3d 1, 2 (1st Cir.

1993) (defendant did not show perjury merely by showing that

witness changed her story between post-arrest interview and

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trial). Tavares made no request that the trial court make a

finding of perjury. We decline his invitation that we now

find willful intent to provide false testimony based on no

more than an inconsistency in testimony and a dispute over

the clarity of a police report.

C. Transcript From Prior Trial

Tavares' final trial-related claim is that the

court misunderstood the jury's request for transcripts and

sent in the wrong transcripts. The court sent in the

transcripts of the instant trial, but Tavares says that the

jury was, in fact, requesting the transcripts of his prior

trial for the same offense. The claim is unavailing.

To the extent there was ambiguity in the jury's

request for transcripts, Tavares had the ability to

contemporaneously request clarification. He did not do so.

Nor has Tavares pointed to any sign that the jury thought

that they had been given the wrong transcripts. We reject

the claim.

III.

Sentencing

In his counsel-assisted submission, Tavares claims

that the sentencing court erred in: (i) determining that he

had committed an aggravated assault and that his sentence was

thus governed by Section 2A2.2; and (ii) in determining that

he had an egregious, serious criminal record that, under

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Section 4A1.3, warranted an upward departure from the

Guidelines' recommended range of 70-87 months to a sentence

of 120 months.5 A. Aggravated Assault

Tavares argues that the sentencing court erred in

determining that his offense was an aggravated assault within

the meaning of Section 2A2.2. However, because of a fact-

based internal inconsistency in the court's application of

Section 2A2.2, we are unable to decide the merits of Tavares'

challenge and remand for clarification and resentencing.

The aggravated assault guideline is structured so

that a victim's serious bodily injury both functions as a

trigger for the application of the guideline as a whole and

provides a basis, in applying the guideline, for an

additional upward offense level adjustment. In effect, the

guideline provides two separate opportunities for a court to

give effect to a finding of serious bodily injury. See

United States v. Newman, 982 F.2d 665, 673-75 (1st Cir. 1992)

(double counting of victim's serious bodily injury

permissible under Section 2A2.2), cert. denied, 510 U.S. 812

(1993). Here, the sentencing court appeared to determine

that the victim had suffered serious bodily injury for

purposes of deciding the applicability, vel non, of the

aggravated assault guideline, but also determined that the

5. Tavares' pro se brief raises the same sentencing issues,

albeit with less clarity. We, therefore, focus on his
counsel-assisted submission.

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victim had suffered something less than serious bodily injury

for purposes of applying the guideline's internal provisions

for offense level adjustment.

The Guidelines define aggravated assault as a

felonious assault involving:

(a) a dangerous weapon with intent to do
bodily harm (i.e., not merely to

frighten), or
(b) serious bodily injury, or
(c) an intent to commit another felony.

U.S.S.G. 2A2.2, comment. (n.1). Serious bodily injury, in

turn, is defined as:

[(i)] injury involving extreme pain or
the impairment of a function of a bodily
member, organ or mental faculty; or
[(ii)] requiring medical intervention
such as surgery, hospitalization, or
physical rehabilitation.6

U.S.S.G. 1B1.1, comment. (n.1(j)). Tavares caused his

victim to suffer a laceration to the hand that required a

trip to the emergency room and eight stitches. The court

determined that that injury was sufficiently analogous to an

injury requiring surgery, hospitalization, or physical

rehabilitation to fall within the definition of serious

bodily injury; thus, Section 2A2.2 applied.

6. In contrast, "bodily injury" is defined as "any
significant injury; e.g., an injury that is painful and

obvious, or is of a type for which medical attention
ordinarily would be sought." U.S.S.G. 1B1.1, comment.
(n.1(b)).

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The court did not find on the record before it that

the brandishing of the shotgun itself was done with the

"intent to do bodily harm." Absent such a finding, the

aggravated assault determination could not be premised on

note 1, part (a), of the commentary to Section 2A2.2. While

such an intent may in fact have been present, the record

before the district court did not require such a finding.

We, therefore, cannot rest an affirmance on such a ground.

The next step was to calculate adjustments to

Tavares' offense level under the specific offense adjustment

provisions of the aggravated assault guideline. The

aggravated assault guideline provides for different increases

in the offense level, depending on the seriousness of the

victim's injury:

If the victim sustained bodily injury,
increase the offense level according to
the seriousness of the injury:

Degree of Bodily Injury Increase in Level

(A) Bodily Injury add 2
(B) Serious Bodily Injury add 4

(C) Permanent or
Life-Threatening
Bodily Injury add 6

(D)If the degree of injury is between that

specified

in subdivision (A) and (B), add 3 levels; or

(E)If the degree of injury is between that
specified
in subdivisions (B) and (C), add 5 levels.

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U.S.S.G. 2A2.2(b)(3) (emphasis added). The sentencing

court increased Tavares' offense level by three. A three

level increase applies when the magnitude of the victim's

injury is between bodily injury and serious bodily injury.

See U.S.S.G. 2A2.2(b)(3)(D). But this determination --

that the victim's injury was less than a serious bodily

injury -- is in direct conflict with the court's basis for

applying the aggravated assault guideline in the first place,

i.e., that the victim had suffered a serious bodily injury.7

Were the inconsistency in the court's application

of Section 2A2.2 a purely legal matter, we might be able to

resolve it ourselves, without the need to remand. But we do

not think that the question can be reduced to a purely legal

one. Depending on context, an inch long laceration requiring

eight stitches might or might not constitute serious bodily

injury. For example, if there was a great deal of blood

loss, or the victim was a hemophiliac, such an injury might

well be thought serious. More generally, we cannot say that

the victim's injury in this case is of a kind that would

categorically call for its characterization as "serious" or

not. Lacerations can be life-threatening or trivial; where

7. We note that a three level increase in offense level
would not have produced such a conflict if the court's
decision to apply Section 2A2.2 had been premised on a
determination that there was an "intent to do bodily harm."
See U.S.S.G. 2A2.2, comment. (n.1(a)).

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on the sliding scale of severity a particular laceration

falls is not a determination that can be made solely as a

matter of law.

As explained in Newman, we review the sentencing

court's "fact dominated evaluative judgment" of the

seriousness of the victim's injury for clear error. 982 F.2d

at 671. This is not a case in which the record either

clearly precludes or mandates a finding of serious bodily

injury. In the context of clear error review, it is not for

this court to choose between two mutually inconsistent fact-

based determinations that each has some plausibility in light

of the record. Since, on this record, we cannot reconcile

or resolve the sentencing court's dual findings of the

severity of the victim's injury, we are left no alternative

but to vacate the sentence and remand for resentencing. The

district court is free to make new findings or reconsider the

basis for the adjustment entirely. Cf. United States v.

Wester, F.3d , , slip op. at 21, No. 95-1143 (1st Cir.

July 22, 1996).

B. Egregious, Serious Criminal Record

Tavares next argues that the court erred in

departing upward from the recommended 70-87 month sentencing

range (that applied as a result of applying the aggravated

assault guideline) to a sentence of 120 months. The

sentencing court made the departure because it determined

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that the CHC of IV that had produced the 70-87 month

recommended range did not adequately reflect Tavares'

extensive criminal record. It therefore increased Tavares'

CHC level by two, to CHC VI (the Guidelines' highest level,

resulting in a sentencing range of 92-115 months), and then

within CHC VI, departed higher still, to a sentence of 120

months. The Guidelines, in the proper circumstances,

encourage departures in CHC levels, but, for departures

beyond CHC VI, require that the defendant have an "egregious,

serious criminal record." U.S.S.G. 4A1.3, p.s.; see also

United States v. Doe, 18 F.3d 41, 48-49 (1st Cir. 1994);

United States v. Mendez-Colon, 15 F.3d 188, 190 (1st Cir.

1994). Tavares argues that his criminal record was not

egregious and serious and that the sentencing court erred in

determining so.

The sentencing court explained that had Tavares'

three "guilty filed" dispositions from the state court been

convictions, a minimum sentence of fifteen years would have

resulted under the ACCA. See 18 U.S.C. 924(e). Since

there were sufficient facts for the court to find by a

preponderance of the evidence that the three state crimes

were in fact committed, it found a ten year sentence

appropriate. Based on Tavares' extensive criminal history,

we see no abuse of discretion in the court's upward CHC

departure. See United States v. Koon, 116 S. Ct. 2035, 2047-

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48 (1996) (abuse of discretion standard appropriate when

examining district court's decision to depart from the

Guidelines). Similarly, we see no abuse of discretion in the

extent of the departure. See id. However, since the

sentencing court's offense level determination is in

question, we leave it to the sentencing court to redetermine,

on remand, the extent of CHC departure warranted.

77 IV.

The judgment of conviction is affirmed. The

sentence, however, is vacated, and the case is remanded for

resentencing.

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