USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1713
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN L. TRACY,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________
____________________

J. Michael McGuinness, by Appointment of the Court, with w

______________________
McGuinness & Parlagreco was on brief for appellant.
_______________________
Michael M. DuBose, Assistant United States Attorney, with w
__________________
Jay P. McCloskey, United States Attorney, was on brief for the Uni

_________________
States.
____________________
September 28, 1994
____________________

BOUDIN, Circuit Judge.

_____________

John

Tracy was

indicted by

federal grand jury in Maine on five counts of distribution or

attempted distribution
841(a)(1),
trial

846.

in August

of LSD in

Tracy failed to
1991 and

violation of 21
appear for

was arrested

U.S.C.

his scheduled

two weeks

later in

Florida, carrying a false identification and pretending to be

someone else.

He was then separately indicted for failing to

appear in violation of 18 U.S.C.

In
of the

3146(a)(1).

October 1991, Tracy was convicted by a jury on three

five drug counts

following

and acquitted on

month he pleaded

guilty to the

two others.

The

failure to appear

charge.
the

In April 1992, Tracy

was sentenced to 97 months on

drug convictions and an additional 24 month term, to run

consecutively to

the first sentence, for

Tracy's failure to

appear for trial.

Tracy

then

appealed but

Tracy's claims as to both

States v. Tracy,
______
_____

this

court

rejected all

convictions and sentence.

989 F.2d 1279 (1st Cir.

1993).

of

United
______

The United

States cross-appealed because of the district court's refusal

to

enhance Tracy's sentence for obstruction of justice.

U.S.S.G.
remanded for
The

facts

3C1.1.

On

the government's

further proceedings.
pertaining

to

appeal this

See 989
___

the remand

need

See
___
court

F.2d at 1288-90.
to

be

briefly

for the

present

-2-2-

recounted, as the

remand is

the predicate

appeal.
In

the original

pre-sentence report

convictions and guilty plea,

the drug weight

justice,

because

between Tracy's
an

the probation officer said that

established a base offense level of 26.

officer recommended
of

following Tracy's

a two-level enhancement
of an

asserted

individual

who

had

for obstruction

direct

trial testimony and that

The

contradiction

of Russell Wright,

purchased drugs

from

Tracy

while

secretly cooperating with Maine's Bureau of Intergovernmental

Drug

Enforcement.

Tracy had

transaction involved
pointing in

claimed

fake LSD.

that the

Wright had

the other direction, and the

final drug

given testimony

jury seemingly had

believed that Tracy was not telling the truth.

Based

on

Tracy's

recommended two-point
have

created

months.

criminal

history

enhancement (to

sentencing

category,

a level of

guideline range

of

the

28) would
97

to 121

At sentencing, the district court declined to impose

the two-point enhancement.

The court said:

[It] is a very close call.

It is
apparent to the Court that the jury
rejected
the
credibility
of
this
defendant and of his testimony at trial.
This Court was present at that time and
heard that testimony. This Court, too,
disbelieved
the
accuracy
of
this
testimony.
Nevertheless, there are many policy
considerations that surround the question
of enhancing a base offense level which
-3-3-

creates potential punishment on the basis

of the Court's conclusion that perjury
has been committed.
And the Court is
simply not comfortable in its own mind in
concluding that the conduct amounts to
perjury of sufficient significance to
justify such an enhancement.
Absent the

enhancement, the base offense level remained

at 26 and the guideline range was

The

district court imposed a

drug offenses, as well as

sentence--not
offense.

here

in

therefore 78 to 97 months.

sentence of 97

the separate consecutive 24

issue--for

Apparently,

months for the

as

the

matter

failure
of

to

month
appear

principle,

the

government appealed the district court's refusal to adopt the

two-point enhancement.
On the appeal, this court held that under United States
______________
v.

Dunnigan, 113
________

S.

Ct. 1111

(1993),

the obstruction

justice enhancement is mandatory under U.S.S.G.

the

defendant willfully obstructed

the administration
case.

The

of

3C1.1 where

or attempted to obstruct

of justice during the

prosecution of the

application note specifically

identifies perjury

as conduct comprising obstruction, U.S.S.G.

(n.3(b)), and

Dunnigan requires

3C1.1, comment.

sentencing courts

to apply

________
the generally accepted definition

of perjury under 18 U.S.C.

1621, 113 S. Ct. at 1116.

The

Supreme

Court

said

that,

under

the

statutory

definition of perjury, a witness commits perjury if he or she

-4-4-

"gives false

testimony concerning

willful intent to

provide false testimony, rather than

result of confusion, mistake

at 1116.

a material matter

or faulty memory."

that "it is preferable

each element of the

finding."

S. Ct.

for a district

the enhancement
court to address

alleged perjury in a separate

and clear

Id. at 1117.
___

On the
the

as a

Dunnigan added that the sentencing court must "make

________

independent findings necessary" to establish

and

113

with a

district

original appeal in
court had

made

Tracy, this court

_____
clear that

it

said that

found Tracy's

testimony inaccurate but had

not specifically found that the

testimony concerned a material

was deliberate.

989 F.2d at 1289-90.

court made clear

district court

At the same time, this

that under the guideline

could not both

"something more than basic

. . . ."

matter or that the inaccuracy

Id. at
___

1290.

and Dunnigan, the

________

find perjury and

yet require

perjury to justify an enhancement

In other words, the enhancement

had

to be imposed where the requisites of perjury existed.

On
district

remand,
court

the

to make

government
an

explicit

testimony, contradicted by Wright,

having

made

its

point,

the

satisfied

with the 97-month

the drug

counts, noting that

under the

new

guideline

apparently

asked

finding that

the

Tracy's

had been perjurious.

government

professed

But

itself

sentence previously imposed for

it was a

range that

permissible sentence
would

result

if

the

-5-5-

district

court

enhancement

did find

perjury

to the base offense

and

added the

level of 26.

two-level

The district

court took quite a different course.

Instead
perjury
court

of

focusing

identified by

upon

the

instance

of

possible

the probation

officer,

the district

held a hearing on remand, in June 1993, and determined

that Tracy had

lied at his

trial on two

other points:

in

testifying that he had sold LSD to Wright only because he was

afraid of Wright, and in claiming that he

had left Maine for

Florida because he believed his girlfriend to be pregnant but

intended after the child's birth to return to Maine and stand
trial.

The

court found

material and that the

that these

lies were

willful and

requirements of perjury were therefore

satisfied.
The

two-level

findings increased
guideline

range of

criminal history.

enhancement
Tracy's offense
97 to

This

failure

is to

these

level to 28,

121 months

Tracy at the

time, however,

sentence now imposed on

before, this

on

for one

perjury

yielding a
with Tracy's

As he had done in the first instance,

district judge sentenced

range.

based

the range went

by a

-6-6-

months.

24-month term

Tracy has now

new sentence.

guideline

higher and

the drug counts was 121

be followed

to appear count.

top of the

the

the
As

on the

appealed from this

On appeal, Tracy contends

not

on this

that the district court could

record properly

find

brief contrasts Tracy's situation

in

Dunnigan where
________

the

perjury.

with that of the defendant

Supreme Court

witnesses" contradicting

pointed to

the defendant on "so

which she could not have been mistaken."

Tracy's

His appellate

brief also tries to

"numerous

many facts on

113 S. Ct. at 1117.

focus attention on the original

conflict between Tracy and Wright, one part of which involved

the

color and design

of the blotter paper

on which the LSD

was tendered.
The district court's
this

findings that perjury

case

can

be

erroneous.

See
___

United States
_____________

(1st Cir. 1991).

in the

would suffice
not

evidence,

if

they

are

v. Aymelek, 926
_______

clearly

F.2d 64,

68

ample evidence

district court's determination

two separate episodes of perjury (either one

for an

argue
we

only

In this instance, there is

record to support the

that there were

does

overturned

occurred in

in

have

enhancement).
detail

about

nevertheless

recount the evidence quite briefly.

Although
the

Tracy's brief

adequacies

reviewed

the

of

the

record

and

At his trial, Tracy

the transactions

were difficult to deny since

recorded--and in aid
he

had offered an entrapment defense--

of that defense, he

had been afraid of Wright

manner.

they had been

had testified that

because of Wright's aggressive

Tracy's sixteen year old stepdaughter testified that

-7-7-

she

had

been frightened

supported

by

Wright and

Tracy's claim of fear.

the drug transactions had

in

other respects

On the other hand, because

been monitored and recorded, there

was also evidence from witnesses, presumably supported by the

tapes,

that at no point had Wright said anything to threaten

or intimidate Tracy.
The district judge at the hearing after remand expressly
found

Tracy

that it

was "known by the

and it goes to
The

had manufactured

witness at the time

a material element of the

district court

testify

the intimidation

judge heard

defense and
to be untrue

case against him."

Tracy and

his stepdaughter

and also had before him the evidence that no threats

or intimidating remarks were made by Wright.

Obviously,

the

presence or absence of
matter.
when

fear in Tracy's mind is

But the district

he weighed

judge did not

the conflicting

a subjective

commit clear error

inferences and

found that

Tracy had lied about his own state of mind.

In particular,

Tracy's claim

that he

was

in fear

of

Wright must have been very hard to reconcile with Tracy's own
claim that in
sell

the final

abortive sale he

had attempted

to

Wright fake LSD (and was therefore not guilty of a drug

____

offense regardless of entrapment).

sell fake

The notion that one would

drugs to a buyer whom one knows and fears, and who

could easily

return to retaliate,

is doubtful on

its face.

-8-8-

Tracy's explanation--that Wright would merely seek to get his

money back--sounds especially lame.
In

the

failure to
close.

second

perjury

appear for

trial,

Tracy

obtained

episode,

concerning

the inferences

several

Tracy's

are not

postponements

and

even
then,

instead of
Florida.

appearing on the
At trial, the

final trial date,

government offered evidence that he

had fled, coupled with further

was carrying

absconded to

evidence that when caught

he

false identification and using a false name, in

order to create

an inference

of guilt on

the drug

counts.

Tracy's own testimony-- that he had gone to Florida merely to

be with

his pregnant

girlfriend during

the birth

of their

child and intended to return to trial--was material testimony

because

it sought to refute

the inference that

he had fled

because he was guilty.

Most people

would be fairly skeptical

that he had coincidentally

just

before the

departed without
bringing

date

at Tracy's claim

learned of the possible pregnancy

of his

oft-postponed

explanation from

trial and

Maine for the

comfort to his girlfriend.

had

purpose of

They would be even more

skeptical

of Tracy's claim that by coincidence he was (so he

claimed)

about to return to Maine just when he was arrested.

News that Tracy had given a false name when

arrested and had

been carrying a driver's license and birth certificate in the

name

of

another

person

would

-9-9-

for

most

people

convert

skepticism into

hardfast disbelief.

The evidence,

in sum,

was sufficient to support the perjury finding.

Turning from the

evidence to other claims

of error, we

begin with Tracy's assertion that the district court made its
Dunnigan
________

findings

fashion"

and

"in

the most

"inadequately

purported findings .

explained

. . ."

ultimate

findings

its

not deny that

the

perjury episodes, each of

the

inaccuracy,

materiality.

Nor

statements were

found perjurious:

the

occasion to

there

identify

and threadbare
for

of

is

its

Tracy does

district judge made, for both

three

conclusory

any

basis

willfulness

confusion

about

the district

(by line

and

and
what

court took

page numbers)

six

separate perjurious statements by Tracy, four relating to the

intimidation
putting

claim and

aside

to the

rhetoric about

substance

correct

findings,

nor

analysis or

two

any

that

Florida

flight.

Yet,

Tracy

is in

threadbareness,

there

explanation

are

no

of

the

further
district

evaluation of Tracy's testimony

subsidiary
court's

to underpin the

trial judge's finding that Tracy was willfully and materially

inaccurate.
But the district court had no obligation to provide such
subsidiary findings

or, as would be more

pertinent here, an

explanation as to the district court's own reasoning process.

There is

no such requirement

in sentencing

determinations,

and Dunnigan imposed nothing more than a requirement that the

________

-10-10-

requisites of
separate
for

perjury be

findings.
district

defendant or

explicit and

In fact, it is commonplace in sentencing

judge

conclusion--e.g., the
____

found, preferably in

to

announce

quantity

the presence

of

of a

the

drugs

court's
foreseen

weapon--without in

factual
by

the

any way

providing subsidiary findings or an evaluation of conflicting

evidence.
On review, the appeals court
the ultimate
of

whether

must be able to

finding and there must

___
it

has

been

ascertain

be evidence (regardless

specifically

identified

by

the

district judge) that would permit a reasonable fact finder to

make such a determination, giving
finder as may be appropriate.
be impossible

such deference to the fact

Perhaps in some cases it would

to exercise a review

function without further

information about what the district judge had found or how he

or she had reasoned about the

as here, no
review

evidence.

such need exists.

For the most

In this respect we

part,

normally

the evidence and the result, but not the reasoning by

which the result was reached by the district court.

This discussion

also answers

related

claim, namely,

explain

why

it

rejected

appraising Tracy's
in

Dunnigan to
________

faulty memory."

that

the

the substance

the district

the

testimony.

113 S. Ct.

court failed

possibility
The Supreme

possibility of
at 1117.

of Tracy's

of

mistake

to
in

Court did advert

"confusion, mistake

or

But where as here

the

-11-11-

evidence would
that

permit a

an inaccuracy

was

reasonable fact finder

willful rather

judge has no

separate obligation

rejected the

inference of mistake and

of willfulness.

This brings

His

calls

appeal

brief

our

than mistaken,

to explain why
___

us

to conclude

he or

the
she

adopted the inference

to Tracy's

attention

to

next

point.

commentary

to

U.S.S.G.

3C1.1

respect

to

defendant,
in

that

"[i]n applying

alleged false

testimony

such testimony or

a light most favorable

(n.1).

Tracy is

other

statements in

means

that, in

must

be resolved

misreading

of

this

or

statements by

to the defendant."

his

in
the

statements should be evaluated

apparently under the

brief) that

general, "close"
in

provision

favor of

the commentary

Id. comment.
___

impression (based on
this quoted

language

cases under

section 3C1.1

the defendant.

This is

and

an

exaggeration of

a
the

government's burden.
We have repeatedly said that this "commentary" "does not
mandate
favor

the resolution
of

the

defendant's

of

every conflict

defendant";

merely

resolves

the

judge,

after weighing the evidence, has no firm conviction."

United
______

(quoting
swallow

v. Rojo-Alvarez,
____________
other circuits).
the

rule

in a

conflicts about

in

in

which the

States
______

favor "those

it

in testimony

944 F.2d 959,

969 (1st

Otherwise, "the
single

gulp,"

Cir. 1991)

safeguard would
United States
_____________

v.

Akitoye, 923 F.2d 221, 228 (1st Cir. 1991), since to take the
_______

-12-12-

evidence in the light

most favorable to the defendant

credit his or her testimony.

In this case, the

is to

trial judge

did have a firm, and amply warranted, conviction that perjury

had been committed.
We note,
literally
_________

in addition,

addresses

rather narrow

perjury and other charges

against
Words,

"the truth"
even

plausible

commentary read
____

problem

peculiar

to

that match a defendant's testimony

as later

in context,

reading;

that the quoted

found by

can be

and

this

the judge

or jury.

to more

than one

subject

is

as true

in

parsing

the

testimony of a defendant at trial as in construing a statute.

In a

perjury case, one

conflict

with "the

of the plausible readings

truth" and

meaning were intended; the

perhaps

less

so,

may

may be in

undoubtedly willful

if that

other reading, also plausible but

render

the

defendant's

statement

accurate, or at least make willfulness unlikely.

The precise words of quoted commentary say

that in such

cases the defendant's "testimony or statement" should be read

in the light most
that

an

perhaps

innocent
less

commentary

favorable to the defendant.

reading

plausible

resolves this
____

may be
than

an

doubt in

To the extent

plausible

(even

inculpatory
favor of

though

one),

the

the defendant.

The Sixth Circuit recently put the matter thusly:

We

note that this [commentary] does

not require that the evidence in its
______
entirety be taken
in a light
most
________
favorable to the defendant. It is only
-13-13-

the defendant's statement that is to be

taken in a light most favorable to him.
So, if the meaning of the defendant's
statement is ambiguous, the ambiguity
should be resolved
in his favor to
prevent a finding of perjury when the
defendant's statement, taken another way,
would not have been perjurious.
United States v. Crousore, 1 F.3d 382, 385 (6th Cir. 1993).
_____________
________
Here, as

in

Crousore, there
________

meaning of Tracy's statements.

is also nothing

that suggests

is

no ambiguity

We hasten to add
that the present

close one as to either inaccuracy or willfulness.

is there

any possibility of

that was not

delivered.

true but was

The color

a mistake,

that is,

honestly believed

in

that there
case was

Still less
testimony

to be so

and design of the blotter

the

when

paper might

have involved a possibility

of mistake, but Tracy could

have been mistaken about his fear or lack

or about

his

motive for

going

not

of fear of Wright,

to Florida

(putting

aside

psychological subtleties that are not involved in this case).

We

conclude

by

Tracy's claim that

rejecting,

and

mildly

a reasonable doubt of

the trial judge's own

mind.

reprimanding,

perjury existed in

Tracy's brief quotes

the trial

judge as saying, at the original sentencing, that he was then

"not comfortable

in

its own

mind

conduct amounts to perjury . . ."

in concluding
(sic).

that

Tracy argues that,

if the district court had such a doubt about the presence

perjury, then the
Apart

the

government could not have met

of

its burden.

from the fact that the district court was then talking
-14-14-

about a
the

different perjurious
_________

argument is

undercut by

episode (the fake

other words

of the

LSD claim),
judge not

quoted in Tracy's brief.

The full sentence was as follows:

"And the Court simply

is not comfortable

in its

conduct

amounts to

justify

an enhancement."

context

of the two

own mind in

perjury

of

concluding that

sufficient significance

Reading

to

this full sentence in the

full paragraphs (quoted

opinion), one would probably

the

earlier in this

conclude that when the district

court said that this was a "close call" and said

it was "not

comfortable in its

not to

own mind,"

it was referring

the

evidence of inaccuracy or willfulness or even materiality but

rather

to

the

policy

arguments

against

sanctioning

defendant for testifying at trial in any but the most extreme

case.
We

were ourselves uncertain

enough about

court's

intention to remand, but

we do not

doubt warranted
sentence
judge

addressed

As

it happens, on

this very

originally given

issue,

the defendant the

because "I

was

matter

of policy,

imposition

might

chill other

defendants'

testify at

think that this

Tracy's brief in omitting the balance of the

it quoted.

the enhancement

the district

trial."

remand the district

explaining

benefit of the

very concerned
of that

Needless to

-15-15-

that he

kind of

exercise of

had

doubt on

that, as

enhancement

their right

say, the district

to

court's

concern

is a reasonable one,

district court alike.

but Dunnigan binds

________

Any charge that the

us and the

district court's

original policy doubts and present findings are

inconsistent

is without basis.
Tracy's
sentencing

final

claim

guidelines

concerns

that

an

became

amendment

effective

to

the

after
_____

the

district court resentenced Tracy

in the remanded proceeding.

Effective November 1,

sentencing guidelines

1993, the

have

altered the method for computing LSD in a manner that Tracy's

brief claims is favorable to his position and would result in
a lower

guideline range.

U.S.S.G. App.

The Sentencing Commission has

applies

retroactively.

994(u).
method

sentence

determined that the

Id., Amendment 502.

___
imposed before

to

accordance
however,

the

district

with

the

presents

statute

amendment.

issues

questions about which

providing for

court to

of

computational

3582(c)(2).

asks that we remand the

permit
Such

fact and

resentencing
a

may

in

recomputation,
involve

the government and Tracy

retroactive

amendment

the district court to

18 U.S.C.

Tracy at the close of his brief

488.

See 28 U.S.C.
___

the new

can therefore be readjusted by

conform to the amended approach.

matter

C, Amendment

adjustments

other

differ.

The

allows

the

defendant to
such

file a motion

an adjustment.

with the district

18 U.S.C.

court seeking

3582(c)(2).

Our affirmance

in this case is without prejudice to Tracy's right to do so.

-16-16-

We

have

earlier
remand

appeal.

final
It now

hearing that

sentence

observation about

originally

appears from

the government
imposed.

years over
imposed.

and above the ten

Some

nor

its position

as

at the
with the

result

of

the

to serve an additional two

years' imprisonment originally

portion of the full sentence reflects Tracy's

criminal history, and his

ten

government's

was satisfied

Yet

government's appeal Tracy has now

the

twelve-year

flight to Florida.
sentence

could

be

But

neither a

called

unduly

lenient.
Understandably,
principle that
enhancement.

the government wished

to establish the

perjury, and not "something

more," merits an

But this

point could have been made

as easily

in a later case where the government actually wanted a longer

sentence.

litigant is

not obligated to

worry about

the

price

paid by

Still,

others to

one hopes that

establish a

matter

a prosecuting agency

price in its own calculus.

Affirmed.
________

-17-17-

of principle.
would weigh the