United States v. Conway

April 12, 1996
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-2232

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN J. CONWAY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

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

Before

Selya, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Lynch, Circuit Judge.

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

Spitzer were on brief for appellant.

Peter E. Papps, Assistant United States Attorney, orally; Donald

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

United States Attorney, and Michael J. Connolly, Assistant United

States Attorney, were on brief for appellee.

April 11, 1996

ALDRICH, Senior Circuit Judge. John J. Conway pled

guilty to one count of conspiracy to defraud the American

Honda Motor Company in violation of 18 U.S.C. 1343 and

1346. He now appeals his sentence, specifically the court's

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

four level downward departure for substantial assistance.

U.S.S.G. 5K1.1. Normally an appeal is not available for such

a broadly discretionary decision, United States v. Mariano,

983 F.2d 1150, 1153-54 (1st Cir. 1993), but there is an

exception in case of an error of law. Id. at 1153; 18 U.S.C.

3742.1 This is such a case. Defendant makes a colorable

claim that his Fifth Amendment rights to due process and not

to be made a witness against himself were violated when the

court based its decision to deny downward departure, and to

give the maximum sentence under the applicable guideline

range, on self-incriminating information he had divulged

pursuant to a plea agreement to provide the government with

substantial assistance in exchange for immunity and a motion

for downward departure.2 Noting the standard provision that

it was not bound to accept the government's recommendation,

Mariano, 983 F.2d at 1155, the court, while admitting the

1. Appellate jurisdiction exists for sentences "imposed in
violation of law." 18 U.S.C. 3742(a)(1). See United

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

2. The possibility that in its discretion the court might
have reached the same result absent any error does not defeat
jurisdiction. See Drown, 942 F.2d at 60.

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sufficiency of defendant's disclosures to warrant the

departure, denied it on the ground that it would lead to too

light a sentence for a defendant so revealed. Defendant

objects that the effective "countervailing factors" found by

the court to "militate against granting a motion for downward

departure" came to the court's attention solely by reason of

disclosures he had provided in exchange for a promise that

they would not be used against him. We concur, and remand

for resentencing.

The plea agreement read as follows:

No truthful information provided by Mr.
Conway to government attorneys or law
enforcement officers, pursuant to this
agreement, or any information directly or
indirectly derived from such information,
will be used against Mr. Conway by the
government provided that Mr. Conway
complies with the terms of this
agreement. As to information provided by
Mr. Conway regarding unlawful activities
involving himself and others that was not
known to the government prior to entering
into this agreement, such information
shall not be used in determining the
applicable guideline range, pursuant to
U.S.S.G. 1B1.8.

It is clear, first of all, that the plea agreement

does not bind the court "to comply blindly with the

prosecutor's wishes," Mariano, 983 F.2d at 1155, and that,

except as restricted by the Guidelines, other federal

statutes, or the United States Constitution, the court

"retains broad discretion to exhume factors unrelated to

substantial assistance before burying the [guideline

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sentencing range]." Id. at 1156-57. We also agree that the

language of the agreement, as written, deserves the

interpretation the court gave it at the time of sentencing:

defendant received a promise that, (1) the information

disclosed would not be used against him by the government --

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

a motion for downward departure, or for any other government

action against him -- and, (2) it would not be used in

calculating his guideline range -- no more. As written, the

agreement does not preserve the blanket protection defendant

claims he bargained for in exchange for waiver of his Fifth

Amendment right not to be a witness against himself. See

United States v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988)

(plea agreements are to be interpreted according to contract

law principles). So interpreted, defendant cannot state a

claim that his rights were violated.

There was, however, a difficulty, provided by the

court itself. At the hearing at which the court undertook to

determine, in lengthy converse with defendant, whether he

understood the consequences of entering the agreement and the

plea, see F.R.Crim.P. 11(c), the court did not quote the

agreement fully. After explaining to defendant his

obligation under the agreement to make full, truthful

disclosure, and the consequences of failing to do so, it

stated, "Now, any truthful information that you provide the

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government during the course of your cooperation will not be

used against you." The original limitation, to non-use "by

the government," was omitted. In all fairness, was defendant

supposed to remember it? The whole purpose of the plea

hearing is to assure full understanding. The objectively

reasonable understanding in defendant's ears when he signed,

see Hogan, 862 F.2d at 388, was that he was assuming an

obligation to speak in exchange for, among other things, a

grant of full use immunity for whatever he disclosed. True,

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

information "will not be used in determining the applicable

guideline range," which we observe would be superfluous if

the prior statement is interpreted to grant full use

immunity. The implication, and the principle inclusio unis

exclusio alterius est are rules of construction known to

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

lawyer's analytical tools in a colloquy conducted

specifically to assure his lay understanding. We are

particularly loathe to do so when the effect would be to

contradict apparent absoluteness. At best, the court's

second statement created an ambiguity that we must resolve in

favor of defendant's reasonable understanding.

The case comes down to this. A plea agreement is a

contract under which both parties give and receive

consideration. The government obtains a conviction that it

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otherwise might not have. The defendant, correspondingly,

receives less, or a chance at less, than he otherwise might

have. In this case the government received something more --

tangible disclosures concededly of substantial value in light

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

which was promised not merely as hope, but as firm. Under

F.R.Crim.P. 11(e)(3) and (4) the court may accept or reject

the agreement. Here the court expressly defined in absolute

terms the benefit defendant should expect. Under the

agreement the court could have denied the government's motion

for a downward departure, but it cannot be thought it should

do so by relying on the very disclosures that defendant was

bargained to make on an immunization promise. While

doubtless the court did not recall this record inadvertency,

surely due process, not to mention public perception of the

courts, should forbid such a result.3

This brings us to the remand itself. It will be

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

to address the issue of a downward departure. In this case,

however, the court should not change the finding that

defendant had rendered substantial assistance to the

government, and if it is to be rebutted it must be on new

3. To the extent that U.S.S.G. 1B1.8(b)(5) and application
note 1 appear to the contrary, the constitutional
prerogatives in this case must prevail.

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findings, which we suggest should be stated, independent of

defendant's disclosures.

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We vacate defendant's sentence and remand for

resentencing.

-Concurring opinion follows-
-Concurring opinion follows-

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SELYA, Circuit Judge (concurring). While I have no
SELYA, Circuit Judge (concurring).

doubt that the defendant in this case has been treated

fairly, I agree with my colleagues that the combination of

the district judge's unfortunate slip of the tongue during

the change-of-plea hearing and his frank use of information

elicited from the defendant during debriefing to impose a

sentence at the top of the guideline range creates a

perception of unfairness and requires vacation of the

sentence. I write separately, however, to highlight four

points.

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

a plea through a misrepresentation. Mr. Conway is an

intelligent, well-educated businessman who was represented

throughout by distinguished counsel. Insofar as I can tell,

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

no actual effect on the course of the proceedings.4

Nevertheless, I cannot vote to uphold the sentence. When the

public perception of justice is imperilled by the court's

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

do not apply.

4. This conclusion is underscored, if not compelled, by the
late blossoming of any argument based on the court's
misstatement at the change-of-plea hearing. The defendant's
brief on appeal is devoid of developed argumentation in this
regard, and the judge's statement was first mentioned at oral
argument in this court (and then, only in passing).

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Second, it is important to emphasize that this case

is sui generis. Under ordinary circumstances, the guidelines

permit information obtained from a cooperating defendant

during debriefing to be used in determining the defendant's

sentence (as long as the plea agreement does not impose a

further limitation on these uses). See U.S.S.G. 1B1.8(b)(5)

& n.1.

Third, the plea agreement in this case, interpreted

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

862 F.2d 386, 388 (1st Cir. 1988), imposed no such special

limitation. Were it not for the judge's inadvertent

misstatement during the change-of-plea colloquy, the court

could have used the information obtained during debriefing

either to deny the downward departure, or to fix the

defendant's sentence within the appropriate guideline range,

or for both purposes.

Fourth, under the plea agreement, the guidelines,

and binding precedent in this circuit, see United States v.

Mariano, 983 F.2d 1150, 1157 (1st Cir. 1993), the district

court was obliged fully to consider the elicited information

in determining whether to grant the government's section

5K1.1 motion for a downward departure. On remand, the

district court remains obliged to consider all the

information. And, moreover, even if the court finds that the

defendant substantially assisted the investigation, it is not

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obligated to grant the section 5K1.1 motion and depart

downward, see Mariano, 983 F.2d at 1156-57, or,

alternatively, to impose a sentence at the bottom of the

guideline range.

Despite the court's substantial discretion in these

respects, I agree with my colleagues that resentencing is

required. When, as now, a sentencing court makes clear that

a discretionary action even a discretionary action that the

court has no legal obligation to explain at all5 is

premised on an impermissible consideration, the court of

appeals must intervene. See United States v. Drown, 942 F.2d

55, 60 (1st Cir. 1991). To this extent, the judge pays a

high price for candor but justice demands the exaction.

5. A good example, apropos here, is that, subject to certain
exceptions not relevant in the circumstances at bar, a
sentencing court has no legal obligation to explain why it
chooses a particular sentence within a narrowly defined
guideline sentencing range. See, e.g., United States v.

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

Garrido, 38 F.3d 981, 986 (8th Cir. 1994); United States v.

Lively, 20 F.3d 193, 198 (6th Cir. 1994). By like token, a

sentencing court customarily need not explain the basis for
its refusal to depart downward. See, e.g., United States v.

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

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