USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1246
UNITED STATES,
Appellee,
v.
JUAN SANTIAGO-GONZALEZ,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge] ___________________
____________________
Before
Cyr, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and McAuliffe,* District Judge. ______________
_____________________
Luis F. Abreu-El as on brief for appellant. ___________________
Guillermo Gil, United States Attorney, Jos A. Quiles- ______________ _________________
Espinosa, Senior Litigation Counsel and Miguel A. Pereira, ________ ___________________
Assistant United States Attorney, on brief for appellee.
____________________
September 25, 1995
____________________
____________________
* Of the District of New Hampshire, sitting by designation.
McAULIFFE, District Judge. Juan Santiago-Gonz lez McAULIFFE, District Judge. _______________
("defendant") appeals from the district court's refusal to
enforce a term of his written plea agreement ("Agreement") which
ostensibly required the government to file a motion for downward
departure under 5K1.1 of the United States Sentencing
Guidelines. He also questions the district court's calculation
of his base offense level under the Guidelines. For the reasons
set forth below, we affirm.
I. BACKGROUND I. BACKGROUND __________
On July 2, 1992, defendant and three others were
indicted on four counts of defrauding the Corporaci n Insular de
Seguros ("CIS") of $1,401,000.00. CIS, a privately held
insurance company chartered in the Commonwealth of Puerto Rico,
was controlled by the defendant and two of three co-defendants.
Defendant was employed as CIS's vice president for claims. Two
of his co-defendants served as CIS's president and vice president
for finance and operations, respectively, and the third, an
attorney, was engaged in private practice. The three corporate
officers were effectively able to manage the company's assets and
authorize payment of claims made against its policies.
From October of 1991 until May of 1992, defendant and
his colleagues jointly ran a false insurance claim scheme.
Defendant, as vice president for claims, reopened previously
closed claim files so fictitious claims could be made against
those accounts. The vice president for finance established and
assigned cash reserves to those reopened accounts. The attorney
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then submitted fictitious claims on behalf of non-existent
clients, which were paid by CIS and charged against the reserves
assigned to the reopened accounts. The false claims were paid by
checks drawn on CIS's bank account and made payable to the
attorney, as counsel for the fictitious claimants. The attorney
cashed the checks, kept part of the proceeds for himself, and
distributed the remainder among the three CIS officers, usually
in equal shares.
Defendant's collaborators pled guilty soon after they
were charged, but defendant entered a not guilty plea and stood
trial. Two days into his trial, defendant reconsidered and
accepted a plea bargain. In exchange for defendant's plea of
guilty, the government agreed to exercise its discretion to file
a motion for downward departure under U.S.S.G. 5K1.1,
contingent on defendant's anticipated "completely truthful,
forthright, and honest assistance and information."
Additionally, the plea agreement required defendant to submit to
a polygraph examination "should the United States deem it
appropriate." After executing the Agreement, defendant dutifully
entered pleas of guilty to mail fraud and aiding and abetting.
18 U.S.C. 1341; 18 U.S.C. 2.
In late April 1993, the government deemed it
appropriate for defendant to submit to a polygraph examination in
order to resolve some doubt about whether he was being entirely
truthful and cooperative in the ongoing investigation. Defendant
submitted to the polygraph and, in the opinion of the examiner,
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the test results indicated deception. Accordingly, at sentencing
the government refused to move for a downward departure under
U.S.S.G. 5K1.1.
In addition, the district court, relying on the
testimony of his accomplices, found that defendant was not a
minor participant in the scheme, as he claimed. Instead of
adjusting his offense level downward as defendant had hoped, the
trial judge upwardly adjusted his base offense level, relying on
U.S.S.G. 2F1.1(2) (more than minimal planning) and U.S.S.G.
3B1.3 (abuse of position of trust).
II. DISCUSSION II. DISCUSSION __________
On appeal, defendant raises two issues. First, he
challenges the district court's refusal to enforce the
government's obligation to move for downward departure under
5K1.1. Next, he questions the district court's calculation of
his base offense level under the Guidelines.
A. Denial of Specific Performance of the Plea A. Denial of Specific Performance of the Plea
Agreement Agreement
Defendant says that by meeting with the prosecution,
providing truthful information, and submitting to the requested
polygraph examination, he substantially performed his obligations
under the Agreement, thereby earning the departure motion. He
argues that the government's obligation to file a 5K1.1 motion
was contingent only upon his providing "truthful information,"
which, in substance, he did.
The Agreement provides that "if in the opinion of the
[polygraph] examiner your answers indicate deception you will be
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in breach of this agreement." Defendant concedes that the
polygraph examiner was of the opinion that his answers indicated
deception, and he does not seriously dispute that in fact he did
not answer all questions truthfully. But, he says, successfully
passing a polygraph examination was not a condition precedent to
the government's obligation to move for downward departure; it
was simply an additional undertaking intended to provide the
government with some means of gauging the extent of his "truthful
cooperation" (which was the condition precedent). His failure to ___
answer every question truthfully during the polygraph examination
may have frustrated the government's desire for "corroboration,"
and the absence of corroboration may have devalued his "truthful
cooperation" by some degree, he argues, but he nevertheless
substantially "truthfully cooperated." He reasons that he at
least earned the departure motion, and says that it is the extent ______
of the departure that should reflect his less than perfect
performance.
We have held that plea agreements "must be attended by
safeguards to insure the defendant what is reasonably due in the
circumstances." United States v. Baldacchino, 762 F.2d 170, 179 _____________ ___________
(1st Cir. 1985) (citing Santobello v. New York, 404 U.S. 257 __________ _________
(1971)). We have also recognized that principles of contract law
often provide useful references when construing plea agreements.
See United States v. Anderson, 921 F.2d 335, 337 (1st Cir. 1990) ___ _____________ ________
("It is black letter law that plea agreements, 'though part and
parcel of criminal jurisprudence, are subject to contract-law
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standards in certain respects.'") (quoting United States v. ______________
Hogan, 862 F.2d 386, 388 (1st Cir. 1988)); see also United States _____ ________ _____________
v. Papaleo, 853 F.2d 16, 19 (1st Cir. 1988) ("A contractual _______
approach to plea agreements ensures not only that constitutional
rights are respected, but also that the integrity of the criminal
process is upheld."); United States v. Gonz lez-S nchez, 825 F.2d _____________ ________________
572, 578 (1st Cir. 1987) ("Contractual principles apply insofar
as they are relevant to determining what the government owes the
defendant.").
Applying contract-law principles in this case, we first
turn to the specific language of the Agreement. See Anderson, ___ ________
921 F.2d at 338. That language is unambiguous:
You will submit, if you are requested to
do so, when requested to do so, to
polygraphic examination (lie detector
test) should the United States deem it
appropriate. If you fail to submit or if
in the opinion of the examiner your your
answers indicate deception you will be in answers indicate deception you will be in
breach of this agreement. (emphasis in breach of this agreement.
original)
This obligation was thoroughly discussed during the
plea colloquy between defendant and the trial judge. Indeed,
defendant's own comments leave little doubt that he fully
understood that the government's obligation to file a 5K1.1
motion was conditioned on his submitting to a polygraph
examination if asked, and passing that examination "in the
opinion of the examiner":
THE COURT: . . . And if in the opinion
of the examiner your answers indicate
deception, you will be in breach of the
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agreement. Have you understood what that
means?
THE DEFENDANT: Yes your Honor.
THE COURT: That means that if you don't
pass the lie detector test it will be
understood that you are not providing
truthful and honest assistance and
information that is expected of you.
THE DEFENDANT: I understand, your Honor.
The only plausible interpretation of the Agreement,
given its unambiguous language and defendant's acknowledged
understanding, is that it means exactly what it says. See United ___ ______
States v. Atwood 963 F.2d 476, 479 (1st Cir. 1992) (Court ______ ______
interpreted plea agreement to mean precisely what it said where
defendant signed and agreed to it in the presence of judge).
Defendant does not claim that the examiner's opinion was rooted
in bad faith or was based on anything but his own objective
interpretation of the examination results. Rather, he argues
that because a polygraph examination is an inherently unreliable
means of determining truth, and such results are not generally
admissible in courts of law, that part of the Agreement requiring
him to submit to and pass the test should be deemed void.
But defendant was not "required" to accept those terms
of the Agreement. In this case both defendant and the government
agreed to the polygraph's use as the standard by which
defendant's performance of his obligation to be completely
truthful would be measured by the government. Both parties
presumably had sufficient confidence in its reliability for that
purpose. Having agreed to the test, whatever its scientific
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weaknesses might be,1 defendant cannot now be heard to say that
his own promise was illusory or that he was somehow misled. Nor
can he credibly argue that the government's discretionary
decision not to file the departure motion was made in bad faith
or without rational basis. Defendant's integrity as a possible
witness in other matters was certainly undermined by his failure
to answer questions truthfully. See, e.g., United States v. ___ ____ ______________
Catalucci, 36 F.3d 151 (1st Cir. 1994). Besides, defendant does _________
not seriously contest the fact that he did not answer all
questions truthfully.
Because the defendant was in breach of his obligation
to be "completely truthful," the government was entitled to
exercise its discretion not to file a downward departure motion
under Guideline 5K1.1.
B. District Court's Calculation of Defendant's Total B. District Court's Calculation of Defendant's Total
Offense Level Offense Level
The district court set defendant's total offense level
under the Guidelines at 15, in part by upwardly adjusting his
base offense level pursuant to both U.S.S.G. 2F1.1(2) (more
than minimal planning) and U.S.S.G. 3B1.3 (abuse of a position
of trust). At the same time, the district court refused a
downward adjustment under U.S.S.G 3B1.2 (minor or minimal
____________________
1 We agree with the conclusion of the Court of Appeals for the
Third Circuit in United States v. Swinehart, 614 F.2d 853 n.2 (3d _____________ _________
Cir.), cert. denied, 449 U.S. 827 (1980): "Although the _____________
infallibility of polygraphs is arguable, we decline to hold that
the Government cannot rely on the tests where the parties agree
to such reliance in a plea bargain."
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participant in offense). Defendant argues that the calculation
was clearly erroneous. Again, we disagree.
"Once the court of appeals has defined the guideline's
meaning and scope, it reviews the sentencing court's fact finding
only for clear error." United States v. St. Cyr, 977 F.2d 698, _____________ _______
701 (1st Cir. 1992) (citing United States v. Tardiff, 969 F.2d _____________ _______
1283, 1289 (1st Cir. 1992)); United States v. Connell, 960 F.2d _____________ _______
191, 197 (1st Cir. 1992); see also United States v. Rosado- _________ _____________ _______
Sierra, 938 F.2d 1-2 (1st Cir. 1991) ("[D]efendant . . . can ______
prevail on appeal only by demonstrating that the district court's
determination as to his role in the offense was clearly
erroneous.") (per curiam); United States v. Garc a, 954 F.2d 12, _____________ ______
18 (1st Cir. 1992) ("Absent a mistake of law, we review a
sentencing court's role-in-the-offense determination only for
clear error.") (citing United States v. Dietz, 950 F.2d 50, 52 _____________ _____
(1st Cir. 1991)); United States v. Akitoye, 923 F.2d 221, 227 _____________ _______
(1st Cir. 1991)). Additionally, "where there is more than one
plausible view of the circumstances, the sentencing court's
choice among supportable alternatives cannot be clearly
erroneous." United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. _____________ ____
1990); see also Rosado-Sierra, 938 F.2d at 2. ________ _____________
The district court's determination in this case is
supported by the record, and a two-level upward adjustment for
more than minimal planning under 2F1.1(b)(2)(A) was not clearly
erroneous. The distinction between "minimal" and "more than
minimal planning" as those terms are used in the Guidelines is
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illustrated by the example given in the accompanying comment: "a
single taking accomplished by a false book entry would constitute
only minimal planning . . . [while] several instances of taking
money, each accompanied by false entries [would constitute more
than minimal planning]." 1B1.1(f), comment. Here, the record
reveals a number of instances of taking money by false entries as
part of an overall scheme to defraud. More than minimal planning
was obviously required to carry out this sophisticated false
claims scheme. See United States v. Brandon, 17 F.3d 409, 459 ___ _____________ _______
(1st Cir. 1994) ("[W]e are not inclined to reverse a finding of
more than minimal planning unless the evidence compels the
conclusion that the defendant's actions were purely opportune or
'spur of the moment.'") (citing United States v. Gregorio, 956 ______________ ________
F.2d 341, 343 (1st Cir. 1989)); cf. also United States v. Fox, __ ____ _____________ ___
889 F.2d 357, 361 (1st Cir. 1989) ("[W]e cannot conceive of how
even obtaining one fraudulent loan would not require more than
minimal planning."). The trial judge properly concluded from the
undisputed facts that defendant's participation in at least seven
separate "false entries" for the purpose of defrauding CIS of
approximately $1.4 million, required more than minimal planning,
and we will not disturb that finding on appeal.
Defendant also asserts that the district court erred by
increasing his offense level by two based on his alleged abuse of
a position of trust, pursuant to U.S.S.G. 3B1.3. That
guideline calls for an upward adjustment where:
[T]he defendant abused a position of
public or private trust, or used a
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special skill, in a manner that
significantly facilitated the commission
or concealment of the offense.
U.S.S.G. 3B1.3.
When reviewing a district court's upward adjustment
under 3B1.3, we first determine the legal meaning of terms such
as "position of private trust," then we ask "whether the
defendant actually used the position to facilitate or conceal the
offense . . . and if so, whether the position contributed to the
misconduct in a significant way." United States v. Tardiff, 969 _____________ _______
F.2d 1283, 1289 (1st Cir. 1992). The district court's
determination on each point is of course afforded due deference
and is reviewed only for clear error. Id. __
Defendant unquestionably held a position of private
trust. As we have stated before, "'the primary trait that
distinguishes a person in a position of trust from one who is not
is the extent to which the position provides the freedom to
commit a difficult-to-detect wrong.'" Id. (citing United States __ _____________
v. Hill, 915 F.2d 502, 505 (9th Cir. 1990)). Defendant, an ____
officer of the corporation, occupied a high level position that
not only enabled him to exercise broad discretionary authority
over the payment of claims made against CIS's policies, but, at
the same time, allowed him to "commit difficult to detect
wrongs," id., such as the fraudulent scheme charged in this case. ___
The record establishes that defendant actually used his
position to facilitate or conceal the crime, and so, the position
contributed to the misconduct. Defendant conceded, after all,
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that as vice president for claims he reopened previously closed
cases and approved payment of known false claims filed in those
cases. Furthermore, it is self-evident that defendant's position
within the company enabled him to facilitate both the execution
and attempted concealment of that scheme. The district court's
finding that defendant abused his position of private trust,
warranting an upward adjustment under 3B1.3, was fully
supported by the record.
The district court's decision not to downwardly adjust
under 3B1.2 (minor or minimal participant in the offense) is
also fully justified by the record. U.S.S.G. 3B1.2 provides
for a downward adjustment where defendant's role "in committing
the offense . . . makes him substantially less culpable than the
average participant." The scheme involved here required each
participant to perform a significant and necessary role; the
contribution of one participant was no less significant than that
of another in effecting the scheme. Accordingly, the district
court correctly determined that defendant was not substantially
less culpable than his associates and was not entitled to a
downward adjustment.
III. CONCLUSION III. CONCLUSION __________
For the reasons stated above, we affirm the district
court in all respects.
AFFIRMED. ________
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