USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1008
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO RODRIGUEZ CLAUDIO,
a/k/a PITO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
______________
____________________
James Kousouros for appellant.
_______________
Richard A. Friedman, Department of

Justice, with whom

Guille

____________________
______
Gil, United States Attorney, and Rosa E. Rodriguez-Velez, Assist
___
________________________
United States Attorney, were on brief for the United States.
____________________
January 5, 1995
____________________

BOUDIN,
Rodriguez

Circuit Judge.
______________

Claudio

was

On May

indicted,

indictment in this case, for

U.S.C.

1992,

the last

Francisco
superseding

conspiring to import heroin, 21

952(a), 963, and for conspiring to possess it with

intent

to

distribute.

indictment,
Rodriguez
drug

in

6,

which
and others

conspiracy to

distribute it
States.

21

embraced

23

841(a),

secure

heroin from

Rico and

defendants,

846.

co-defendants,

with participating

in Puerto

Various

U.S.C.

in a

The

charged

wide-ranging

Southeast Asia

elsewhere
including

in the
Rodriguez,

and

United
were

charged

with specific acts of possession, transportation and

money laundering.
At the time Rodriguez was indicted in the present
he

was serving a

sentence of 105

months as a

earlier guilty plea entered in October 1990.

case,

result of an

In this earlier

case, Rodriguez had pled guilty to one count of conspiring to

possess

heroin with intent

aiding and

and one

count of

abetting an attempt to possess heroin with intent

to distribute.
around a

to distribute

21 U.S.C.

841(a), 846.

specific reverse-sting

That case centered

drug transaction

in Puerto

Rico involving Rodriguez.

Following his indictment in May 1992, Rodriguez moved to
dismiss on

the ground

that the

new prosecution

was barred

under the double jeopardy clause, U.S. Const., amend. V.

The

government responded with an opposition including a number of

-2-2-

exhibits, three of which

were filed ex parte with

________

a request

that

they be

sealed.

Defense counsel

was advised

of the

nature of these sealed documents but not their contents.

sealed documents

were

two

DEA-6

forms

recording

The

witness

interviews and one transcript containing grand jury testimony

of a co-conspirator.
The magistrate judge, to whom the double jeopardy motion
was

referred,

rejected

sealed materials.
report

Ultimately

recommending

disallowed.

that

On review,

double jeopardy defense

documents.

Rodriguez'

Neither

secure

the magistrate judge

the
the

attempt to

double
district

jeopardy

filed a

claim

be

court rejected

the

and upheld the sealing

the magistrate

the

of the three

judge nor

the district

court held an evidentiary hearing.

Rodriguez then entered into a conditional plea agreement
reserving his

right to

jeopardy defense.

Fed.

1993,

pled

Rodriguez

conspiracy charge
counts:

appeal the

rejection of the

R. Crim. P. 11(a)(2).
guilty

to

already mentioned

the

On

importation

and to two

substantive

one for money laundering, 18 U.S.C.

The

1956(a)(2)(A),

remaining charges against Rodriguez,

the distribution conspiracy count

846, were dismissed.

-3-3-

March 22,

drug

and the other for a specific act of importation.

952(a).

double

under 21 U.S.C.

21 U.S.C.
including
841(a),

The

district

sentences
to run

court sentenced

Rodriguez

to concurrent

of 112 months on all three counts, these sentences

concurrently with the previously

imposed (and partly

served) 105-month sentence in the earlier case that had ended

with

the

court's

guilty plea
object was

entered in

to

produce a

May

1990.

total

The district

punishment of

142

months' imprisonment for the

two cases pursuant to guideline

provisions discussed

The district

below.

court declined to

grant a downward departure or to defer sentencing in order to

hear

medical

experts

testify

about

the

condition

of

assails the

denial of

his

Rodriguez' son.
On

this appeal,

Rodriguez

double jeopardy claim and the sealing of the three documents.

He then argues
material

and

that the sealed items

were independently

Finally, Rodriguez
allowed the

medical

also constituted Brady

_____

required to

says that the district

experts to

testify in

be disclosed.

court should have

support of

the

downward departure request and that in any event the sentence

was improperly calculated.

We

address the

issues in

that

order.
1.

The

difficult.

double jeopardy issue is

On

appeal,

more complicated than

Rodriguez has

narrowed the

double

jeopardy claim to an attack on the import conspiracy count in

the May 1992

indictment.

In substance he

distribution conspiracy charged in

claims that

the

the earlier 1990 case was

-4-4-

merely an aspect of

the larger import conspiracy

the

Having been prosecuted

that

present case.

"single" offense--Rodriguez

prosecuted a second

time for

charged in

and convicted of

argues--he

cannot now

the same offense.

See
___

be

North
_____

Carolina v. Pearce, 395 U.S. 711 (1969).

________
______
The
conspiracy

government

has,

charges under

of

course,

brought

different statutes.

The

the

two

October

1990 plea in the prior case concerned a conspiracy to possess

with intent to

distribute and

the March 1993

case involved a conspiracy to import.

plea in

this

The former charge (but

not

the

latter) requires

element of the offense;

requires

an

intent

Thus, the

in Blockburger
___________

299, 304 (1932), is satisfied.

to import

may be

distribute as

and the latter (but not

an intent to import.

offenses adopted

to

an

the former)

test for separate

v. United States,
_____________

284 U.S.

Put differently, an agreement

punished separately

from an agreement

to

possess with intent to distribute.

In its

brief, the government appears to assume that the

presence

and

statutes,

each requiring an element that the other does not,

means

that

agreements.

applicability

there

were

of

two

two

different

That is not necessarily so.

a single

agreement

which had

(e.g., a
____

conspiracy to import

different

conspiratorial

There could be only

multiple criminal

objectives

and distribute heroin).

___

Braverman v. United States, 317 U.S. 49 (1942).

_________
______________

-5-5-

conspiracy

See
___

As best we

can

tell, that

is just

what Rodriguez

is arguing

in this

case.
But even
was

only

if Rodriguez is

otherwise),

single

right in claiming

agreement

it does not matter.

two different

the

purposes so long

United States,
______________

This is true of conspiracy,

450 U.S.

333

(1981)

(single

conspiracy embracing drug

importation and distribution),

well

E.g.,
____

as

are

statutes were violated and each requires an

element that the other does not.

v.

indications

A single act may constitute

______ ___

offenses for double jeopardy

as two different

Albernaz
________

(and

that there

other crimes.

Forlando, 838 F.2d

________

United States v.
______________

585, 589 (1st Cir.

as

Franchi________

1988) (importation of

drugs violating both prior approval and disclosure statutes).

This
successive
generally
Dixon,
_____

case involves

not only

prosecutions,

yet

multiple convictions
the

Blockburger
___________

applied in both situations.

113 S.

Ct. 2849,

where an acquittal occurred

such situation is
established in

Perhaps

in some

collateral estoppel or even due

process limitations on a second prosecution

(e.g.,
____

is

See United States v.

___ _____________

2859-64 (1993).

circumstances there might be

test

but

presented here.

Blockburger even
___________

for the same act

in the first
And

case).

No

under the principles

a single conspiracy

can be

two

different

"offenses"

for

double

jeopardy

purposes.

Albernaz, 450 U.S. at 339.

________

-6-6-

Thus, we do
between

not need

to consider

the two conspiracies

whether the

here charged--in

overlap

time, place,

conspirators, objects and the like--is such that there is one

unlawful agreement
Pabon, 911 F.2d 947
_____
1030 (1990).
that

the

or several.

See United States v. Gomez___ ______________

______

(1st Cir. 1989), cert. denied,

____________

In fact, the
distribution

indictment was a narrow

government has
conspiracy

493 U.S.

a colorable

charged

in

one and that, apart from

the

case
1990

the common

presence of Rodriguez and one confederate, that drug deal had

little

to

Southeast

do
Asia

with

the

imports.

evidentiary hearing was

large
But

ring
the

responsible
evidence

ever held, and it

for

is mixed,

the
no

is unnecessary to

resolve the matter.

For

the

interviews

same
and

reason,
the

grand

prejudicial in relation
only

jury

of

two

transcript

witness

cannot

to the double jeopardy defense.

be
The

its bearing on the question whether there was

one conspiracy or
fairness to

several, and the

the

parties, we

largely litigated in the

v.

sealing

relevance of the material (so far as double jeopardy is

concerned) was

In

the

Dixon,
_____

Corbin,
______
jeopardy

and

508

any

note

that this

matter.
case

was

district court before United States

_____________

overruled the

495 U.S.

answer does not

"same

conduct" test

(1990), and

related

under

disclosure

of

Grady v.
_____

Grady the
_____

claims

double

might

look

different.

-7-7-

2.
to

Looking to

comment

on

future prosecutions, we think

one aspect

of

the

sealing

it useful

issue and

the

government's defense

of the

procedure it

followed.

It is

true that from time to time, in special circumstances, judges

in

criminal cases

whose

do receive

contents are

extraordinarily

not made

rare

submissions
known to

cases

even

submission may be undisclosed.

996 F.2d 456, 487 (1st

the defense;

the

existence

of these

and in
of

the

United States v. Innamorati,

_____________
__________

Cir.), cert. denied, 114 S. Ct.

____________

459 (1993), 114 S. Ct. 1072, 1073 (1994).

make both

from prosecutors

409,

But our traditions

courses presumptively doubtful,

and the

burden of justification is upon the government.

In

this case it is difficult to tell from the materials

available
government
to

to

us

what

justification was

at the outset; we have

seal which

sought access

was granted.

the magistrate judge and

witness statements

when

the

the defense

government's response to

to the district court was

that the

materials which need

not be

disclosed before the witness testifies, see 18 U.S.C.

___

3500;

Fed. R. Crim.

were Jencks
______

by

only a boilerplate motion

Thereafter,

to the material, the

provided

P. 26.2,

protected by Fed.

and that grand

R. Crim. P. 6.

The

jury materials

were

government renews its

contention in this court.

The

contention is

so

fundamentally mistaken

that

we

cannot pass by it in silence for fear that the government may

-8-8-

think to repeat its approach in a case where it

matter.

Subject to

and Rule 6
is

on

government.

judge

discovery

to obtain

Jencks Act

when the defense

information

from

the

But this is an instance in which the government

was seeking
court as

various qualifications, the

are perfectly proper objections

fishing

turns out to

affirmatively to

evidence, to

and the

use the sealed

obtain a

district court

information in

ruling from the

on the

merits of

magistrate
the double

jeopardy issue.
Rodriguez' position on

appeal--that the government

can

never affirmatively use information

_____

in court and withhold it

___

from the defense--may overstate the

matter; but not by much.

To

be sure,

sealed submissions sometimes

situations where
information
because,
privileged
U.S.

it

for

the government seeks a

is

withholding

example, it

or outside the

83 (1963).

is

have to

occur in

ruling that certain

should

not

claimed to

be

irrelevant or

Brady v.
_____

Maryland, 373
________

scope of

be

disclosed

Even then, the courts customarily insist on

a particularized

showing of

substantial cause (e.g.,

____

secret, danger to an ongoing investigation).

state

See Innamorati,
___ __________

996 F.2d at 487 (citing cases).

The notion
defense

that the

dismissed

defendant

based

government can have

on

is not allowed to

government

a defendant's

evidence that

see goes even

the

further than the

withholding of irrelevant or privileged information.

And the

-9-9-

government's

asserted

reasons here

do

not

approach a justification for such an action.

is disclosed
jury

routinely after a witness

testimony can be made

even begin

Jencks material
______

testifies; and grand

available under Rule

all kinds of circumstances.

to

6 based on

The idea that general safeguards

against wide-ranging discovery like the Jencks Act and Rule 6

would

be

sufficient

to

justify

evidence is patently absurd.

conviction

on

secret

The government cites us to the alleged "flat preclusion"

of

the

Jencks

Act,

which

states

government witness or prospective

"shall be
until

the subject

the

3500.

statute

makes

But
it

353 U.S.

report

testified on

apparent
efforts.

657 (1957).

that

by

witness in a criminal case

even the barest

premature discovery

no

of subpena, discovery

witness has

U.S.C.

that

it

or inspection"

direct

at trial.

consideration of
is

a shield

See Jencks v.
___ ______

18
this

against

United States,
_____________

It is not a license for the government

to use such statements as evidence in court and then deny the

___
defense access to them.
Of course, a particular piece of evidence contained in a
Jencks statement or
______
protected

on

compelling.
grounds
use

in grand jury testimony

independent

grounds

that

might itself be
are

far

more

But we need not try to imagine in this case what

might be so compelling as to allow the government to

evidence

in court

but

withhold it

-10-10-

from

the defense.

Nothing

in the government's brief

has any justifications beyond

so much as

hints that it

its boilerplate Jencks Act and

Rule 6 assertions.
3.

We

violation.

turn

now

to

April 6,

of

Brady
_____

Kong.

debriefing of co-defendant Martinez

1992--which contains

Rodriguez provided
Hong

claim

Rodriguez now has access to one of the documents

previously sealed--a DEA

on

Rodriguez'

$150,000 for

Although

Martinez' assertion
the purchase of

the date of the

that

cocaine in

money transfer is not

stated, surrounding dates indicate that it occurred

sometime

during

April 4,

March 1990

and at

least some

1990, when Martinez traveled to

days before

Hong Kong to purchase drugs.

One of the overt acts charged against Rodriguez in aid of the

import conspiracy count was

that on or about March

provided $150,000 to Martinez in Puerto Rico to

1990, he

finance drug

purchases for import.

In

connection with the

plea agreement and

proffer,

the

transfer

by Rodriguez occurred on April 7, 1990.

Rodriguez
other

government twice

asserts that

the

government evidence,

Hong Kong on April

4.

asserted

that the

debriefing report,
confirm that

$150,000
On appeal,

as well

Martinez left

Since such evidence

government's plea-related assertions that the

occurred in Puerto Rico on April

its Rule 11

as
for

contradicted the
money transfer

7, it had to be turned over

under the Brady doctrine.

_____

-11-11-

The government assumes

where

withholding

of

causes a guilty plea,

arguendo that Brady might

________
_____
exculpatory

information

see Miller v. Angliker, 848

___ ______
________

apply

actually
F.2d 1312

(2d Cir.) cert. denied, 488 U.S. 890 (1988), but says that it
____________
has no record that the
in
make

the district court.

such

a request

Moran, 942 F.2d 1, 9

_____
to

defense ever requested Brady material

_____

explore

government

these
also

Rodriguez says that

is not

conclusive.

n. 6 (1st Cir. 1991).

interesting

points out,

the

subjects

the failure to
See
___

Ouimette v.
________

We see no reason
since,

discrepancy

as

here has

the
no

significance.
The

government

specified

in

the

indictment

that

Rodriguez transferred
that

this date

was

the $150,000
correct is

Martinez' debriefing and is

we have seen.
date

in or about

strongly

March 1990;

suggested by

the

not contradicted by any evidence

The government cannot explain how the April 7

crept into the

proceedings, but

it was

apparently an

error and would have been so explained in the district court,

had Rodriguez
indictment and
would

complained about
the proffer.

the discrepancy between

So explained,

the

the discrepancy

not have given Rodriguez any reason to alter his plea.

Tersely, Rodriguez'
1992,

report debriefing

quite different reason.

brief

asserts that

Martinez was

the

April

Brady material
_____

6,

for a

In the report, Martinez is reported

-12-12-

(by the

debriefing agent) as describing

a proposed per-unit

purchase

price for the drugs in an amount that Rodriguez now

says

implausible.

is

The

government,

responding

quite

briefly,

says

that

the

"completely immaterial"

accuracy of
to the

the

information

counts of conviction

was

and to

Rodriguez' decision to plead guilty.

The

misstatement as to the purchase price, if it were a

misstatement,

might

ammunition for

cross-examination if Martinez

But

no

there

is

conceivably

reason

to

have

think

deliberately withheld information:

asked

to search

significance
leap off
reason

for

of the

the page.
to

think

credibility

have

the

government

apparently never

and

in any

figures certainly

More important,
that

would

it was

even some

we have been

impairment

undermined

some

had testified.

that

Brady material
_____
drug price

furnished

what

of

case

the

does not
given no
Martinez'

was apparently

explain why

we

substantial case against Rodriguez.

Rodriguez'
should think
evidence

brief

that one

should

government's case

be

makes no

effort

to

piece of potential
deemed

likely

and Rodriguez'

cross-examination
to

undermine

inclination to plead.

the very least,

Rodriguez' belated Brady objection

_____

some

believe that

reason to

the plea

would not

entered if the price information had been disclosed.

848

F.2d at

1321-22.

We

need not

-13-13-

be

the
At

requires
have been
Miller,
______

precise about

the

required showing since no

such showing is even

attempted on

appeal.
4.

Rodriguez' remaining

claims relate to his sentence.

The first one, which can be disposed of quite simply, is that

the

district

postpone

court abused

the scheduled

submission

of

live

sentencing

Rodriguez

its

discretion

sentencing,
medical
had

testimony.

requested

because

of family circumstances,

him

care

to

for

12

year

neurological

condition and

had

submitted

son's

already

condition, but

in order

in refusing

to

to allow

the

Prior
downward

the

departure

specifically, the need for

old

son

suffering

a learning disorder.

some written
sought

to

information

a postponement

from

Rodriguez
about the

to offer

live

medical testimony claimed to be more specific.

The district court
explaining

at

rejected the requested postponement,

the sentencing

carefully considered

the

the

court had

requested downward

found it not to be warranted.

accept at the hearing

that

departure

and

But the court then offered to

a proffer of what the

medical testimony would be.

already

absent expert's

A proffer was made, but it

did

not alter the court's refusal to depart downward.

Rodriguez

does

not

claim

that

the

On appeal,

district

court

misunderstood the scope of its authority to depart--only that

the

refusal

to

hear

live

testimony

was

an

abuse

of

no authority

to

discretion.

-14-14-

The government tells

us that

we have

review the refusal to postpone because a refusal to depart is

itself largely
have

unreviewable, and that

been impermissible

to grant a

in any case

it would

downward departure.

shorter, less debatable, answer is that there is no automatic

right to present live
v. Tardiff, 969
_______

testimony at sentencing, United States

_____________

F.2d 1283,

testing the value of proposed

1286 (1st Cir.

live testimony by a

especially

where a

with

common

practice

and

brief

persuades

us

both

Rodriguez'

1992), and

postponement would

proffer--

be involved--accords

good sense.
that

that

Nothing

proffer

was

in
an

inadequate wayto convey thesubstance of themedical testimony.

5.

The remaining

sentencing issue is more complicated.

Because Rodriguez was already

serving a federal sentence for

drug offenses, he was sentenced in this case under U.S.S.G.

5G1.3(c).

Under

total punishment

this provision,
that would

the court

calculates the

have been imposed

if Rodriguez

had been convicted of both the prior offenses and the present
ones

in one case, and then imposes

consecutively
total

to the old to the extent needed to impose that

punishment on Rodriguez.

case, the

a new sentence that runs

Id. comment. (n.3).

___

district court fixed the total

In this

punishment for the

prior and present crimes as 142 months, a figure

that is not

here disputed.

-15-15-

Since

Rodriguez

sentence, the

was

already

serving

district court then computed

105

month

the new sentence

with

the object of achieving

imprisonment.

Stating

a total period

that Rodriguez had

of 142 months'

been incarcerated

for 30 months under the old sentence, the court fixed his new
sentence

at

112

concurrently with

months'

imprisonment

the prior

105 month

and

imposed

it

sentence; obviously,

the original 30 months and the new 112 months would equal the
target
first

of 142

months.

On appeal,

time that, at the

Rodriguez says

time of sentencing,

for the

he had already

served 37 rather than 30 months.

The
district

problem appears
court--Rodriguez

earlier sentence

may

because--unknown

have been

for seven months served

and before conviction.

______
government

to arise

18 U.S.C.

says that the

credited

to the
on

the

while under arrest

3585(b).

district court's

On

appeal, the

30-month premise

may have been mistaken but that the government is not certain
of the facts.

The government also argues that the error

been waived by Rodriguez'

district court.

failure to raise the point

has

in the

It adds that Rodriguez can arguably obtain a

correction, if his version

of the facts is borne

out, under

Fed. R. Crim. P. 36.

Rule 36

permits the

time "[c]lerical
oversight

or

district court

mistakes in judgments

omission."

The

-16-16-

to correct
. .

government

at any

. arising

from

agrees that

the

judgment
intend

and transcript
to

fix

the

already served

show

that the

present sentence

by Rodriguez on

target figure of

142 months.

district court

did

subtracting

time

by

his prior sentence

The question

from the

whether at

the

time of sentencing in this case Rodriguez had served 30 or 37

months

of his original sentence can

resort

to

Bureau

of

circumstances, we see
available

Prison

no reason

as a remedy.

probably be answered by

records.

Under

why Rule 36

United States v.
_____________

these

should not

be

Crecelius, 751 F.
_________

Supp. 1035, 1037 (D.R.I. 1990), aff'd, 946 F.2d 880 (1st Cir.
_____
1991) (table).
It

is

also the

more

appropriate

avenue for

relief.

Technically, Rodriguez did waive his right to appeal on

issue

this

by failing to raise it below, United States v. Elwell,

_____________
______

984 F.2d 1289, 1298 (1st Cir.), cert. denied, 113 S. Ct. 2429
____________
(1993).

Rodriguez

does

not

suggest

that

plain

error

occurred; probably the 30-month figure was plausibly based on

the

date

of

Rodriguez'

original

conviction.

Even

now

Rodriguez has not proved that there was in fact error.

______
these circumstances,

we agree

proper remedy

affirm without prejudice

is to

with the government

Under

that the

to Rodriguez'

filing of a Rule 36 motion supported by some documentation of

the 37 month figure.
Affirmed.
________

-17-17-