United States Court of Appeals
For the First Circuit
No. 07-1569
UNITED STATES OF AMERICA,
Appellee,
v.
MARK S. SHINDERMAN, M.D.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Selya, Senior Circuit Judges.
Michael A. Cunniff, with whom Jay P. McCloskey, Thimi R. Mina,
and McCloskey, Mina, Cunniff & Dilworth, LLC were on brief, for
appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
January 29, 2008
SELYA, Senior Circuit Judge. The admonition "physician,
heal thyself" is a biblical proverb, Luke 4:23 (King James),
suggesting that people should address their own failings. In the
case at hand, this admonition has both literal and figurative
application. The tale follows.
Mark S. Shinderman, M.D., is a physician specializing in
psychiatry and the treatment of addiction. The federal government
indicted him on a gallimaufry of criminal charges stemming from his
unauthorized use of another doctor's name and Drug Enforcement
Administration (DEA) registration number. A jury convicted him on
many of those charges.
On appeal, the defendant challenges both his convictions
and his sentence. He advances four assignments of error, which
impugn (i) the district court's refusal to apply the exclusionary
rule to evidence allegedly obtained in violation of federal
regulations designed to protect the confidentiality of substance
abuse treatment records, (ii) the foreclosure of a proposed
entrapment defense, (iii) an evidentiary ruling, and (iv) the use
of an obstruction of justice enhancement during sentencing.
Concluding, as we do, that each and all of these animadversions
lack merit, we affirm the judgment below.
I. BACKGROUND
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We rehearse here only those facts that are necessary to
place this appeal in perspective. Other facts are added in our
subsequent discussion of particular issues.
Following a dramatic increase in drug-overdose deaths in
Maine, the United States Department of Health and Human Services
(HHS) began investigating possible links between this spike in
mortality and health-care clinics specializing in the treatment of
drug addiction. One of the providers scrutinized in the course of
this administrative inquiry was CAP Quality Care, a high-dose
methadone treatment clinic located in Westbrook, Maine.
The defendant, an advocate of the combined use of
methadone and benzodiazepine in the treatment of patients addicted
to opiates, served as CAP's sponsor and national medical director.
Federal law stipulates that any doctor who prescribes a controlled
substance must possess a state-specific DEA registration number.
See 21 U.S.C. § 822(a), (e). When CAP opened in 2001, the
defendant had only an Illinois medical license and DEA number
(although he had obtained a temporary license to practice medicine
in Maine).
In the course of HHS's administrative inquiry into CAP's
affairs, its investigators took a hard look at the defendant's
prescription-writing practices. The defendant apparently attempted
to write prescriptions for controlled substances using his Illinois
DEA number. After Maine pharmacies refused to fill those
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prescriptions, he started writing benzodiazepine prescriptions
under the name and Maine-specific DEA number of Dr. Steven Keefe,
a fully credentialled physician affiliated with CAP.
At that point, the inquiry intensified. The government's
next step was to subpoena CAP's Medicaid records. Under statutes
and regulations governing the disclosure of substance abuse
treatment records, the government was required to obtain court
authorization to use the subpoenaed documents for prosecutorial
purposes. See 42 U.S.C. § 290dd-2(b)(2)(C); 42 C.F.R. § 2.66(a).
On April 24, 2003 — shortly after the government launched
a criminal investigation aimed at the defendant — a federal
magistrate judge granted an ex parte motion seeking leave to
disclose to federal law enforcement personnel the Medicaid records
garnered from CAP pursuant to HHS's original administrative
subpoena. On August 22, the magistrate judge granted a second ex
parte motion seeking authorization to release CAP patient treatment
records to the prosecutors. On September 5, the magistrate judge
granted yet a third ex parte motion; this motion sought access to
medical records seized in the course of executing a search warrant.
In each instance, the magistrate judge found good cause
for disclosure and honored the government's supplication that he
delay notice of the order granting the motion to avoid compromising
the criminal investigation. To that end, the magistrate judge
maintained the orders under seal and decreed that notice to the
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defendant and all other affected parties could be deferred for up
to ninety days.1 The record contains copies of the notices
subsequently sent by the government to the defendant as well as an
affidavit from an HHS official attesting that notice of the
issuance of the disclosure orders had been given within the
allotted time frame.
The dénouement came much later. On August 25, 2005 — the
same date on which the government filed a civil action against CAP
for, among other things, Medicaid fraud — a federal grand jury
handed up a sixty-eight count indictment. The first twenty-five
counts charged the defendant with unlawful use of a DEA
registration number issued to another physician, in violation of 21
U.S.C. § 843(a)(2). Counts 26 through 50 charged him with aiding
and abetting the acquisition of a controlled substance by
misrepresentation, in violation of 21 U.S.C. § 843(a)(3). Counts
51 and 52 charged him with falsifying pharmacy records, in
violation of 21 U.S.C. § 843(a)(4)(A). The last sixteen counts
charged him with making false statements related to the delivery of
or payment for health-care benefits, in violation of 18 U.S.C. §
1035(a)(2).
The defendant filed a host of motions, seeking among
other things to suppress the fruits of the administrative subpoenas
1
On July 20, 2003, the magistrate judge granted the government
an additional sixty days within which to furnish notice of the
issuance of the April 24 disclosure order.
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and the search. Pertinently, he argued that all of the evidence
disclosed in pursuance of the ex parte court orders should be
excluded because the government had flouted the notice requirements
imposed by federal substance abuse treatment regulations.
The district court found that the reprieve for the giving
of notice granted by the magistrate judge had no legal basis and
that the defendant should have been given notice as soon as the
patient records were disclosed to prosecutors. United States v.
Shinderman, 432 F. Supp. 2d 149, 154 (D. Me. 2006). The court
nevertheless refused to suppress the evidence, reasoning that
suppression was too drastic a remedy. Id.
The trial lasted for nearly two weeks. A parade of CAP
patients testified to having seen the defendant write Keefe's name
and DEA number on controlled substance prescriptions. The
centerpiece of the government's case was Keefe's testimony that,
while he agreed to provide the defendant with pre-signed
prescription blanks, he never authorized the defendant to sign his
name or use his DEA number. In the defense case, the defendant
testified that Keefe had given him such permission.
After a day and a half of deliberations, the jury found
the defendant guilty on the twenty-five counts that alleged
unlawful use of a DEA number belonging to another physician,
twenty-four of the twenty-five aiding and abetting counts, both
counts dealing with falsification of pharmacy records, and seven of
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the sixteen false statement counts. The government voluntarily
dismissed the remaining aiding and abetting count, and the jury
acquitted the defendant on nine of the false statement counts.
The sentencing phase followed. The district court
applied enhancements for obstruction of justice and abuse of a
position of trust, and set the guideline sentencing range (GSR) at
15 to 21 months. The court then departed downward and imposed a
six-month incarcerative sentence. This timely appeal followed.
II. ANALYSIS
We separate the defendant's asseverational array into its
four component parts and treat those parts sequentially.
A. Suppression.
In the interest of guaranteeing the efficacy of substance
abuse treatment programs, Congress has directed that all substance
abuse treatment records be kept confidential. See 42 U.S.C. §
290dd-2(a). Disclosure is permitted only in narrow sets of
circumstances. These include consent, id. § 290dd-2(b)(1); audit,
id. § 290dd-2(b)(2)(B); and court order, id. § 290dd-2(b)(2)(C).
Applicable regulations confirm and elaborate upon the
statute's commitment to confidentiality. See 42 C.F.R. §§ 2.1-
2.67. The regulations warn that such records "may be disclosed or
used only as permitted by these regulations and may not otherwise
be disclosed or used in any civil, criminal, administrative, or
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legislative proceedings conducted by any Federal, State, or local
authority." Id. § 2.13.
The regulatory mosaic provides safeguards attendant to
the disclosure and use of substance abuse treatment records in
connection with a criminal case. See id. §§ 2.65-2.67. To
investigate or prosecute either a substance abuse "program" or a
"person holding the records," law enforcement personnel must obtain
a court order premised upon a showing of good cause, id. § 2.66(c)
(cross-referencing § 2.64(d)-(e)), and must employ certain
prophylactic measures to shield patients' identities, id. §
2.66(d). While a court may issue a disclosure order without any
particular form of prior notice, the regulations require that "upon
implementation of an order" the program, the person holding the
records, and any patient whose records are disclosed — a group whom
we shall call "the protected parties" — "must be afforded an
opportunity to seek revocation or amendment of that order." Id. §
2.66(b).
The district court found that the defendant (as the
sponsor of CAP) qualified as a "program" for purposes of this
regulation and, thus, was entitled to seek revocation or amendment
of the ex parte disclosure orders issued by the magistrate judge.2
2
The term "program" includes "an individual or entity . . .
who holds itself out as providing, and provides, alcohol or drug
abuse diagnosis, treatment, or referral for treatment." 42 C.F.R.
§ 2.11. We assume arguendo (and neither review nor pass upon) the
correctness of the district court's holding that the defendant
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Shinderman, 432 F. Supp. 2d at 154. Building on this foundation,
the court ruled that the "opportunity" to revoke or amend each
order arose immediately upon disclosure of the records in question
to law enforcement personnel, that the regulations mandated
immediate notice to the protected parties at that juncture, and
that the window of delay countenanced by the magistrate judge
violated section 2.66(b). Id. The court concluded, however, that
since neither bad faith nor prejudice to the defendant existed,
suppression "was too drastic a remedy." Id.
Before us, the defendant claims that once the district
court found a regulatory violation, another section of the rules —
42 C.F.R. § 2.13 — required the suppression of any evidence
disclosed pursuant to the tainted order. His claim raises
potentially important questions anent the meaning of the
regulations and the appropriate use of the exclusionary rule to
address a regulatory infraction. When all is said and done,
however, we need not reach those questions; after all, "[w]e are
not wedded to the lower court's rationale, but, rather, may affirm
its order on any independent ground made manifest by the record."
InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003).
In this case, any application of the exclusionary rule
must be premised on an underlying regulatory violation — and we
qualifies under this rubric.
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discern none. The regulation at issue, 42 C.F.R. § 2.66(b), is
entitled "[n]otice not required." Its principal purpose is to
invest the court with discretion to grant disclosure orders ex
parte, that is, without notice to any protected party. It is thus
apparent that neither the text nor the purpose of the regulation
supports the notion that a delay in notice is per se unlawful.
To be sure, the regulation does direct that protected
parties be afforded an opportunity to revoke or amend any judicial
disclosure order. But in setting forth that directive, the
regulation nowhere makes explicit a duty to notify the protected
parties at a particular point in time. As we read its plain
language, section 2.66(b) requires only that protected parties be
given a chance to revoke or amend the order "upon [its]
implementation." It would be perverse to graft an immediate notice
requirement onto a regulation that explicitly grants district
courts the discretion to relax notification requirements.
In our view, section 2.66(b) should be construed as it is
written. Its text demands that a court issuing a disclosure order
afford protected parties with an opportunity to contest the
underlying validity and scope of the disclosure — nothing more. Of
course, that opportunity must be meaningful; otherwise, the
regulation would hold out only an empty promise. With this
qualification in mind and with full realization that each
individual case depends largely on context, we are confident that
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notice of a disclosure order does not always have to be coterminous
with the entry of the order.
An opportunity to challenge a judicial decree does not
have to arise instantaneously in order to be meaningful. Analogies
are plentiful. Indeed, it is commonplace for a court to delay
notice of a search or seizure in order to protect the integrity of
a criminal investigation. See, e.g., 18 U.S.C. § 2518(8)(d)
(allowing district court to withhold notice from a person subject
to a wiretap for up to ninety days after the termination of the
underlying order); id. § 3103a(b) (giving district courts
discretion to delay any notice required in connection with the
issuance of a search warrant intended to obtain evidence of a
criminal offense). As long as the delay in notice does not erode
a protected party's right to challenge the order, we believe that
section 2.66(b) allows judges to exercise discretion as to the
timing and form of post-order notice. Up to the point where
prejudice looms, it makes no difference when the opportunity to
seek the revocation or narrowing of a disclosure order arises.
This reading of section 2.66(b) does not eviscerate the
confidentiality protections afforded by the regulatory scheme. A
court can issue an ex parte disclosure order only after a finding
of good cause. See 42 C.F.R. § 2.66(c) (cross-referencing §
2.64(d)). Even then, no document released pursuant to such an
order can be used to investigate or prosecute a patient. Id. §
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2.66(d)(2). In this vein, no public disclosure can be made without
redaction of all patient-related information. Id. § 2.66(d)(1).
And, finally, all protected parties retain the right to challenge
the issuance of the order. Given these features of section 2.66
and its eschewal of pre-order notice, reading that regulation to
require notice immediately upon release of the records to law
enforcement personnel would seem to create a curious anomaly and,
in the bargain, rein in the district court's normal discretion
without advancing any significant interest in confidentiality.
Against this backdrop, we turn to the specifics of the
instant case. The record makes manifest that the delay in notice
did not erode the defendant's ability to contest the validity and
scope of the court orders. The periods of delay authorized by the
magistrate judge were not unreasonable. More importantly, the
district court found as a fact, at the hearing on the motion to
suppress, that the delay did not prejudice the defendant.
Shinderman, 432 F. Supp. 2d at 154-55. That finding is
unimpugnable: the defendant has identified no argument that he
could have employed immediately upon the issuance of a disclosure
order that was adversely affected by a delay in notice.3
3
The absence of prejudice is unsurprising because section
2.66(b) limits challenges "to the presentation of evidence on the
statutory and regulatory criteria for the issuance of the court
order." We can perceive no argument based on those criteria that
the defendant might have lost in consequence of the delay. For
example, to issue a court order under section 2.66, a court must
find that "[o]ther ways of obtaining the information are not
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In all events, any profession of prejudice would be
undone by the defendant's failure to move under section 2.66(b) for
revocation or amendment. After all, once the government notified
him of the issuance of the disclosure orders, he had the
opportunity to object to their validity and scope — yet he
conspicuously failed to move for relief at that point. Instead, he
did nothing for almost two years and launched an effort to suppress
the fruits of the orders only after the grand jury handed up an
indictment.
The short of it is that no prejudice occurred here.
Given this lack of prejudice, the magistrate judge's authorization
of brief periods of delay in the giving of notice did not violate
the defendant's rights under the regulatory scheme. The lower
court's denial of the defendant's motion to suppress was,
therefore, unexceptionable.
B. Entrapment.
The defendant next challenges the district court's
refusal to instruct the jury on his envisioned entrapment defense.
We review a claim of erroneous failure to instruct a criminal jury
on a proffered theory of defense de novo. United States v.
Sánchez-Berríos, 424 F.3d 65, 76 (1st Cir. 2005); United States v.
available or would not be effective," 42 C.F.R. § 2.64(d)(1), and
that "[t]he public interest and need for the disclosure outweigh
the potential injury to the patient, the physician-patient
relationship and the treatment services," id. § 2.64(d)(2).
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Rodríguez, 858 F.2d 809, 812 (1st Cir. 1988). In conducting that
assay, we must refrain from differential factfinding and examine
the evidence in the light most favorable to the accused so as to
determine whether the record supports an entrapment theory. See
United States v. Ramos-Paulino, 488 F.3d 459, 462 (1st Cir. 2007);
Rodríguez, 858 F.2d at 812.
Entrapment is an affirmative defense. See United States
v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994). To undergird that
defense, the accused must make a prima facie showing both that the
government induced the commission of the charged crime and that he
(the accused) lacked a predisposition to engage in it.4 See
Mathews v. United States, 485 U.S. 58, 62-63 (1988); United States
v. Luisi, 482 F.3d 43, 52 (1st Cir. 2007). This is merely a burden
of production; once it is satisfied, the government must prove
beyond a reasonable doubt that no entrapment occurred. See
Sánchez-Berríos, 424 F.3d at 76; Rodríguez, 858 F.2d at 814-15.
The issue here is whether the defendant satisfied his
entry-level burden. This burden, though modest, see United States
v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998), requires more than self-
serving assertions. The defendant must adduce "some hard evidence"
that "governmental actors induced [him] to perform a criminal act
4
The defendant's claim is one of classic entrapment. He has
expressly disavowed any claim of entrapment by estoppel. See,
e.g., United States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006);
United States v. Bunnell, 280 F.3d 46, 49 (1st Cir. 2002).
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that he was not predisposed to commit." Rodríguez, 858 F.2d at
814.
Here, the district court concluded that the defendant had
not cleared this unprepossessing hurdle and, thus, refused to
instruct the jury on the entrapment defense. We test the strength
of this conclusion.
As enunciated at trial, the defendant's theory of
entrapment was configured as follows. He presented evidence which,
if credited, was competent to show that he possessed only a
temporary Maine medical license; that the DEA improperly withheld
the issuance of a Maine-specific DEA registration number; that
JoAnn Masar, a DEA agent, informed him that a permanent Maine
medical license was necessary in order to receive a Maine-specific
DEA number;5 that this information was incorrect; and that,
therefore, he had no choice but to use another physician's name and
DEA number to prescribe the benzodiazepine that his patients
needed.
This evidence is inadequate to satisfy the defendant's
entry-level burden of showing improper inducement. Taking that
evidence in the light most flattering to the defendant, the most
5
The government contends that any conversation between Masar
and the defendant occurred after the defendant had forged Keefe's
name and DEA number. Given the reasoning through which we resolve
the entrapment issue, we need not deal with this chronological
dispute.
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that can be said is that Masar's incorrect information and the
DEA's improper withholding of a Maine-specific DEA number were "but
for" causes of the later criminal conduct. That is not enough: the
tort concept of "but for" causation does not constitute the
appropriate test for inducement, and that concept is ultimately too
attenuated a link on which to hinge an entrapment defense.
Improper inducement requires a showing not only that the government
afforded a defendant an opportunity to commit a crime but also that
it brought to bear "something more — something akin to excessive
pressure, threats, or the exploitation of an unfair advantage."
Ramos-Paulino, 488 F.3d at 462; see also Sorrells v. United States,
287 U.S. 435, 454 (1932) (Roberts, J., concurring) (defining
entrapment as "the conception and planning of an offense by an
officer, and his procurement of its commission by one who would not
have perpetrated it except for the trickery, persuasion, or fraud
of the officer").
In this instance, the defendant's evidence does not even
show that the government furnished him with an opportunity to
commit a crime, much less that the government took unfair advantage
of him. We cannot tease from the defendant's proffer anything that
might reasonably be expected to encourage an individual to engage
in criminality. See, e.g., Gamache, 156 F.3d at 9 (explaining that
government action must "create[] a risk of causing an otherwise
unwilling person to commit the crime charged"). Even if the
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defendant was fed incorrect information and the issuance of a DEA
number was wrongfully withheld, there is simply no evidence that
Masar ever urged or instructed the defendant, nor even hinted to
him, that he should try to evade the law either by using another
physician's DEA number or by forging another physician's signature.
The archetypical entrapment case involves a government
"sting" operation, see, e.g., United States v. Gendron, 18 F.3d
955, 961 (1st Cir. 1994), or some other situation in which the
government procures the defendant's commission of a crime, see,
e.g., Sorrells, 287 U.S. at 454, or at least a situation in which
the government provides material assistance to the defendant in
order to enable him to commit a crime, see, e.g., United States v.
Russell, 411 U.S. 423, 427 (1973). This case does not come close
to fitting that mold.
At the expense of carting coal to Newcastle, we add that
even if the government provided the defendant with the opportunity
to commit a crime — which it did not — the necessary "plus" factor
is entirely lacking. There is no evidence of excessive pressure,
threats, or unfair exploitation on the government's part. There is
no suggestion that the government used coercive tactics, see, e.g.,
United States v. Stanton, 973 F.2d 608, 610 (8th Cir. 1992);
employed any hard-sell rhetoric or dogged insistence, see, e.g.,
Rodríguez, 858 F.2d at 815-16; or engaged in any arm-twisting or
exploitation of economic need, see, e.g., Sherman v. United States,
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356 U.S. 369, 376 (1958). While such evidence, standing alone,
would be insufficient to demonstrate improper inducement, it may in
certain circumstances be a starting place for mounting a colorable
showing of inducement.
To be sure, we have suggested that, in certain
circumstances, a government agent's false statements might sustain
a finding of improper inducement. See Gamache, 156 F.3d at 9. But
in the classic entrapment context, false statements constitute
improper inducement only when they have the purpose or effect of
preying on the sympathy, weakness, or goodwill of a defendant.
See, e.g., United States v. Sullivan, 919 F.2d 1403, 1419 & n.21
(10th Cir. 1990) (telling defendant that undercover agent was
suicidal and in desperate need of money). We discern no proof of
any such manipulative behavior here.
We have said enough on this score.6 We conclude, without
serious question, that the entrapment defense cobbled together here
was a mirage and that the district court appropriately declined to
instruct the jury on it.
C. Cross-Examination.
The defendant further complains that the district court
violated Rules 403 and 608(b) of the Federal Rules of Evidence when
6
Since we find that the defendant failed to carry his entry-
level burden as to the first prong of the entrapment defense, we
need not inquire as to whether the record contains any evidence
showing a lack of predisposition.
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it allowed the government to cross-examine him, over objection,
about his responses to certain questions when applying for medical
licensure in Maine. We review the disputed ruling for abuse of
discretion. See, e.g., United States v. Brown, 500 F.3d 48, 58
(1st Cir. 2007); United States v. Winchenbach, 197 F.3d 548, 557
(1st Cir. 1999).
We set the stage. The defendant applied for a Maine
medical license in 2001 and again in 2002. As part of each
application, he answered "no" to the following question: "have you
EVER been charged, summonsed, indicted, arrested or convicted of
any criminal offense, including motor vehicle offenses, but not
including minor traffic or parking violations?"7 Evidence
available to the government suggested that the defendant had been
arrested in 1965 and again in 1970 for drug-related offenses
(although neither arrest culminated in a conviction).
At trial, the defendant testified in his own behalf. The
government sought to cross-examine him about these answers, seeking
to cast doubt upon his credibility. The defendant objected and
moved in limine to exclude any such inquiry. While he admitted
that he had been arrested, he asserted that the arrests had been
expunged and that, therefore, he had answered the questions
7
We quote this question substantially as it appears in the
transcript and in other filings, disregarding minor linguistic
variations. We note that the record on appeal does not contain the
original applications (and, thus, does not contain the actual
question).
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truthfully and in line with the advice of counsel. In support of
this assertion, he submitted an affidavit from his Illinois lawyer
attesting that, to the best of the lawyer's recollection, the
arrests had been expunged. The defendant also argued, in the
alternative, that any probative value that might be derived from
the cross-examination would pale in comparison to the prejudice
that would accrue.
The district court concluded that the carefully worded
affidavit provided "no convincing ground" to support the
defendant's professed belief that the arrests had vanished and did
not have to be revealed on the license applications. Then, in the
exercise of its discretion, the court ruled that the government
could cross-examine the defendant about his arrest-related answers.
Withal, the court precluded the government from introducing the
arrest records themselves into evidence. The defendant ascribes
error to the former ruling.
The touchstone of our analysis is Federal Rule of
Evidence 608(b), which pretermits the use of extrinsic evidence of
specific instances of a witness's conduct for the purpose of
bolstering or attacking the witness's credibility. Despite this
general proscription, the rule explicitly grants district courts
discretion to allow cross-examination of a witness about specific
instances of misconduct as long as those instances are probative of
his "character for truthfulness or untruthfulness."
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Typically, a trial court's discretion to determine the
scope and extent of cross-examination is broad. See, e.g.,
Delaware v. Van Ardsdall, 475 U.S. 673, 679 (1986); United States
v. Beltrán, 761 F.2d 1, 11 (1st Cir. 1985). That discretion is
nonetheless subject to the overarching need to balance probative
worth against prejudicial impact. See United States v. Simonelli,
237 F.3d 19, 23 (1st Cir. 2001); Fed. R. Evid. 608(b) advisory
committee notes. That balancing function is spelled out in Federal
Rule of Evidence 403, which states in pertinent part that relevant
evidence "may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury."
Rule 403 judgments are typically battlefield
determinations, and great deference is owed to the trial court's
superior coign of vantage. "Only rarely — and in extraordinarily
compelling circumstances — will we, from the vista of a cold
appellate record, reverse a district court's on-the-spot judgment
concerning the relative weighing of probative value and unfair
effect." Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st
Cir. 1988).
In this instance, we discern no abuse of discretion.
After all, a witness's willingness to lie to the government in an
application for a license is highly probative of his character for
truthfulness. See, e.g., United States v. Carlin, 698 F.2d 1133,
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1137 (11th Cir. 1983); see also United States v. Tse, 375 F.3d 148,
166 (1st Cir. 2004) (discussing false statements in employment
application).
Here, moreover, temporal considerations favored use of
the evidence; the defendant's answers were not remote in time but,
rather, were roughly contemporaneous with the criminal conduct with
which he had been charged.8 See Simonelli, 237 F.3d at 23. And,
finally, the central factual issue at trial revolved around the
defendant's intent. Hence, his credibility was highly relevant to
the outcome of the case. See United States v. Mateos-Sánchez, 864
F.2d 232, 237 (1st Cir. 1988). Taking all of these factors into
account, the district court's determination that the defendant's
untruthful answers in his license applications were fair game for
cross-examination falls comfortably within the encincture of
judicial discretion.
This brings us to the question of prejudice. While we
agree with the defendant that the revelation of his prior arrests
carried with it some potential for untoward effect, we do not
believe that effect was so stark as to compel the exclusion of the
evidence. We long have recognized that "all evidence is meant to
8
The defendant attempts to use the gap between the dates of
the unreported arrests and the time of trial as a basis for a
finding that temporal considerations cut the other way. This
tactic is disingenuous. The relevant issue at trial was whether
the defendant had lied on his license applications in 2001 and
2002. Consequently, the relevant temporal span is the time between
those answers and the occurrence of the alleged criminal acts.
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be prejudicial; it is only unfair prejudice which must be avoided."
United States v. Rodríguez-Estrada, 877 F.2d 153, 156 (1st Cir.
1989) (emphasis in original). Thus, the court appropriately could
discount whatever prejudice flowed from the impeaching effect of
the answers. Beyond that, the answers themselves were not
particularly inflammatory, and the court did not permit the
government to elicit any tawdry details.
It is also noteworthy that the court took affirmative
steps to minimize any risk of unfair prejudice. For example, it
allowed the defendant to tell the jury about the ultimate
disposition of the arrests and about his belief that they had been
expunged. Furthermore, the court offered to give a limiting
instruction; that the defendant eschewed this course does not
minimize the value of the court's offer. Given the totality of the
circumstances, we find unconvincing the argument that the court
committed a palpable error in judgment in allowing the cross-
examination to proceed.
The defendant cites our decision in United States v. Tse
for the proposition that cross-examining a witness about responses
to questions included in an employment application violated Rule
608(b). This argument misreads Tse, in which the court permitted
the defendant to cross-examine a government witness regarding his
answers in an employment application. 375 F.3d at 166.
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Tse also upheld the trial court's discretion to deny the
defendant the opportunity to refresh the witness's recollection by
showing him the application, itself excludable as extrinsic
evidence under Rule 608(b). See id. From this portion of the
opinion, the defendant selectively quotes out of context dicta to
the effect that "[u]sing the employment application [to impeach the
witness] would be a clear violation of Rule 608(b)." Id. (dictum).
The defendant misreads this as suggesting a barrier to
any and all use of evidence deemed "extrinsic" under Rule 608(b) to
refresh a witness's recollection. The statement can equally as
well be read to articulate the less controversial proposition that
introducing such extrinsic evidence for the purpose of proving the
witness's truthfulness (as opposed to using it merely to refresh
the witness's memory) would violate the express prohibition of Rule
608(b).
We believe the latter reading is sounder and correctly
captures the meaning of the Tse court. For one thing, Rule 612,
rather than rule 608(b), governs the use of evidence to refresh a
witness's recollection. That rule never has been construed to
require that a writing used to refresh a witness's recollection
must be independently admissible into evidence. The case law holds
to the contrary. See, e.g., United States v. Kusek, 844 F.2d 942,
949 (2d Cir. 1988); United States v. Scott, 701 F.2d 1340, 1346
(11th Cir. 1983). The commentators agree. See, e.g., Jack B.
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Weinstein & Margaret A. Berger, 4 Weinstein's Federal Evidence §
612.03[3][b], at 612-14 (2d ed. 2007).
For another thing, as stated in a leading treatise,
"[w]hile extrinsic evidence in the form of documents may not be
admitted under Rule 608(b) to impeach, nothing in that rule
prohibits the use of documents merely to refresh the recollection
of a witness who is the target of impeachment." 28 Charles Alan
Wright & Victor James Gold, Federal Practice & Procedure: Evidence
§ 6117, at 12 (1993 & Supp. 2007) (citing United States v.
Chevalier, 1 F.3d 581, 584 n.2 (7th Cir. 1993)). Thus, Tse does
not help the defendant here.
D. Sentencing.
In sentencing the defendant, the district court placed
him in criminal history category I, set his base offense level at
10, and applied two-level enhancements for abuse of a position of
trust and obstruction of justice, see USSG §§3B1.3, 3C1.1. The
court then departed downward, USSG §5K2.0, on the basis that the
defendant's actions were outside the heartland of offenses
typically occurring under the principal statute of conviction, 21
U.S.C. § 843(a)(3). The court sentenced the defendant to a six-
month term of immurement and a two-year term of supervised release.
On appeal, the defendant protests only the obstruction of
justice enhancement. His protestation targets the district court's
finding that he committed perjury at trial (and, thus, obstructed
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justice). Because this is a direct challenge to a factual finding
made at sentencing, our review is for clear error. See United
States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006); United States
v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).
The applicable sentencing guideline requires a two-level
increase in a defendant's offense level if the sentencing court
finds that "the defendant willfully obstructed or impeded, or
attempted to obstruct or impede the administration of justice with
respect to the investigation, prosecution, for sentencing of the
instant offense of conviction." USSG §3C1.1. A finding of perjury
falls within the purview of this guideline. See United States v.
Dunnigan, 507 U.S. 87, 92-94 (1993); USSG §3C1.1, cmt. n.4(b).
Perjury consists of false testimony under oath concerning
a matter material to the proceeding, as long as the testimony is
given "with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory."
Dunnigan, 507 U.S. at 94 (citing 18 U.S.C. § 1621(1)). To impose
an obstruction of justice enhancement premised on perjury, a
sentencing court must make an independent finding that the elements
of perjury have been satisfied. Id. at 95; Gobbi, 471 F.3d at 314.
The record makes pellucid that the district court
followed these teachings. In a presentence order, the court
carefully evaluated the defendant's veracity, identified material
inconsistencies in his trial testimony, and concluded that he had
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prevaricated. In the process, the court expressly found that the
fabricated portions of the defendant's testimony were part and
parcel of "a willfully false reconstruction" of what had transpired
and could not "be attributed to confusion, mistake, or faulty
memory."
In particular, the court found irreconcilable differences
between the defendant's testimony and Keefe's testimony as to
whether Keefe had authorized the defendant to coopt his name and
DEA number.9 This was no garden-variety testimonial conflict about
a peripheral matter but, rather, a head-on clash about a central
issue in the case. Where, as here, the sentencing judge has
presided over the trial, we must allow him reasonable latitude for
credibility assessments. See Gobbi, 471 F.3d at 314-15; Akitoye,
923 F.2d at 228; see also United States v. Ruiz, 905 F.2d 499, 508
(1st Cir. 1990) (explaining that, insofar as factfinding is
concerned, "the sentencing court's choice among supportable
alternatives cannot be clearly erroneous").
9
While it would be improper to impose an obstruction of
justice enhancement "merely . . . because the jury rejects the
defendant's explanation of the facts and finds him guilty," Gobbi,
471 F.3d at 314, that verdict nonetheless can provide support for
the sentencing court's independent findings, see United States v.
Villarmán-Oviedo, 325 F.3d 1, 16 (1st Cir. 2003) (upholding a
finding of perjury in part because the jury "must perforce have
determined that [the defendant's] testimony was false"). Here, the
court noted that the jury must have chosen to credit Keefe's
account. The jury's view thus supported the district court's
rationale. See id.
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The defendant strives to weaken this robust finding by
suggesting that there was no direct conflict between his testimony
and Keefe's. This suggestion elevates hairsplitting to an art
form. A review of the record leaves no doubt about the direct and
inescapable contradiction between these two men concerning the
defendant's use of Keefe's name and DEA number. Keefe testified
unequivocally that he did not give the defendant permission to use
his name and DEA number in issuing prescriptions; the defendant
testified to the contrary. The district court acted within its
proper province in concluding that Keefe's testimony was truthful
and that the defendant's was not.
The defendant offers two last arguments. First, he
cautions that in evaluating his trial testimony the district court
had to afford him "the benefit of any plausible doubt." Gobbi, 471
F.3d at 314. That is true as far as it goes — but it does not go
very far.
This cautionary language to which the defendant adverts
"does not mandate the resolution of every conflict in testimony in
favor of the defendant." United States v. Rojo-Alvarez, 944 F.2d
959, 969 (1st Cir. 1991) (quoting United States v. Wallace, 904
F.2d 603, 605 (11th Cir. 1990)). It merely resolves in the
defendant's favor "those conflicts about which the judge, after
weighing the evidence, has no firm conviction." Id. (quoting
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Wallace, 904 F.2d at 605). The firmness of the sentencing court's
conviction here scarcely can be questioned.
Finally, the defendant suggests that upholding an
obstruction of justice enhancement may chill a criminal defendant's
exercise of his constitutional right to testify. This suggestion
is baseless: sentencing enhancements for obstruction of justice
premised on perjurious trial testimony do not give rise to Sixth
Amendment concerns. See Dunnigan, 507 U.S. at 96; Akitoye, 923
F.2d at 228.
III. CONCLUSION
We need go no further. For aught that appears, the
defendant was fairly tried, fairly convicted, and fairly sentenced.
Affirmed.
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United States v. Shinderman
Court: Court of Appeals for the First Circuit
Date filed: 2008-01-29
Citations: 515 F.3d 5
Copy CitationsCombined Opinion