United States v. Humphrey

UNTIED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-1207

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UNITED STATES OF AMERICA,

Plaintiff-Appellee

Cross-Appellant,

versus

VINCENT EDWARD HUMPHREY,

Defendant-Appellant

Cross-Appellee.

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Appeals from the United States District Court

for the Northern District of Texas

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(November 12, 1993)

Before WIENER and EMILIO M. GARZA, Circuit Judges, and CLEMENT,*

District Judge.

CLEMENT, District Judge:

I. FACTS AND PROCEDURAL HISTORY

Defendant-Appellant Vincent Edward Humphrey was arrested on

August 30, 1991, and charged with selling cocaine base and

possession of cocaine base with the intent to distribute. Humphrey

pleaded not guilty to both counts.

On September 17, 1991, a grand jury returned a one-count

indictment against Humphrey. The indictment alleged Humphrey

*

District Judge of the Eastern District of Louisiana,

sitting by designation.

possessed with intent to distribute 24.57 grams of cocaine base.

On October 29, 1991, the original indictment was superseded by a

new indictment adding a second count alleging that Humphrey

distributed 0.99 grams of cocaine base.

The superseding indictment alleged that Humphrey took part in

two separate drug transactions.

The first transaction was the sale of 0.99 grams of cocaine

base to a cooperating individual in an apartment located in

Lubbock, Texas on August 6, 1991. Electronic monitoring devices

attached to the cooperating individual recorded the conversation,

which took place while the cooperating individual purchased the

cocaine base. Although the cooperating individual referred to

Humphrey by name during the conversation, the tape did not record

a clear response from the seller. At trial, Humphrey testified

that he did not sell the cocaine base to the cooperating

individual, and that he was in another room of the apartment at the

time of the transaction. Two other witnesses corroborated

Humphrey's testimony, testifying that Humphrey did not participate

in the transaction. The cooperating individual testified that he

purchased the cocaine base from Humphrey.

The second transaction was the alleged possession of, with the

intent to distribute, 24.57 grams of cocaine base on August 30,

1991. On that date, police officers executed a search warrant for

a second residence, also in Lubbock, Texas. As the police officers

exited their vehicles to conduct the search, four black males

standing in a driveway adjacent to the residence, including

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Humphrey, ran from the scene. As the suspects fled, one of them

threw a package to the ground. The package contained 24.57 grams

of cocaine base. Officer William Bates testified that he saw

Humphrey throw the package. Humphrey testified that a friend of

his threw the package.

During the trial, the district court admitted into evidence,

over Humphrey's objection, photographs of Humphrey's automobile,

and a photograph of Humphrey taken shortly after the August 30,

1991 incident.

On December 12, 1991, Humphrey was convicted on both counts of

the superseding indictment. Prior to sentencing, the government

filed an objection to the Presentence Report prepared by the United

States Probation Officer. The government objected to the probation

officer's failure to recommend an upward adjustment of the

defendant's Guideline Level in accordance with U.S.S.G. § 3C1.1,

which mandates an upward adjustment for the willful obstruction of

justice. The government contended that Humphrey perjured himself

by testifying that he did not participate in the drug transactions.

Comment 3(c) to § 3C1.1 provides that "committing, suborning, or

attempting to suborn perjury" is one of the "types of conduct to

which this enhancement applies." In the presentence report, the

probation officer indicated that he was unable to recommend an

upward adjustment because he was not sufficiently familiar with

Humphrey's trial testimony to determine whether he committed

perjury.

The sentencing hearing was held on March 6, 1992. At the

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beginning of the hearing, the district court acknowledged the

government's objection, and permitted the government to introduce

into evidence the Presentence Report, Humphrey's response to that

report, and a transcript of Humphrey's testimony. The hearing then

proceeded as follows:

Mr. Mateja (for the government): And finally,

I didn't know how the Court wanted to approach

the matter, but we can ask the Court to take

judicial notice of the testimony of the

witness at the trial of this proceeding. In

the alternative we have Officer Gregg who can

recap the pertinent parts of the testimony.

The Court: That is not necessary. I recall

the testimony in this case.

Mr. Mateja: All right. Your Honor, that is

all the evidence that we have at this time.

Would you like for us to move into argument?

The Court: No, sir. I have read your

objections. I understand fully what your

position is. I don't need any response to

those objections. Those objections are

overruled. Mr. Anderson, you filed some

objections to the Presentence Report. Do you

have any evidence to submit in support of your

objections?

Mr. Anderson: We have no objections.

The Court: All right, sir. Your objections

are overruled. The Court will adopt as the

Court's findings those matters set forth in

the Presentence Report1 -- not only the

background data and information, but also the

analysis made under the Sentencing Guidelines.

. . .

After rejecting the government's objection, the district court

sentenced Humphrey to 78 months imprisonment, a sentence within his

1

As noted above, the presentence report did not contain a

finding of whether Humphrey committed perjury.

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guideline range. The district court found that there were "no

aggravating or mitigating factors which would warrant a departure

from the guideline range."

The government has appealed, seeking review of Humphrey's

sentence under 28 U.S.C. § 3742(b)(2), which provides that the

government may file a notice of appeal for review of an otherwise

final sentence if the sentence "was imposed as a result of an

incorrect application of the sentencing guidelines." The

government contends that the district court erred in failing to

make a specific finding of whether Humphrey committed perjury.

Humphrey contends that the district court need not make an explicit

finding on the question of perjury when presented with an objection

by the government to a failure to award an upward adjustment under

§ 3C1.1 of the Sentencing Guidelines.

On April 9, 1992, Max R. Tarbox was appointed by the district

court to represent Humphrey on appeal, and Tarbox filed a timely

notice of appeal. In lieu of presenting arguments in support of

that appeal, however, Tarbox has requested from this Court leave to

withdraw as counsel for Humphrey. Tarbox states that, after

diligently investigating possible grounds for reversing Humphrey's

conviction, he has determined that Humphrey's appeal is frivolous.

He also states that Humphrey has not cooperated with him in

preparing Humphrey's appeal or opposing the government's appeal.

Tarbox has submitted an August 10, 1992 letter to Humphrey, in

which he expressed his view that there appeared to be no basis for

an appeal, but informed Humphrey that he was still investigating

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the matter. Tarbox states that he has made repeated efforts to

contact Humphrey since that date, but that Humphrey has not

responded.

II. HUMPHREY'S SENTENCE

In the appellate review of sentences, we examine factual

findings subject to the "clearly erroneous" standard mandated by 28

U.S.C. § 3742(e), and we accord great deference to the trial

judge's application of the sentencing guidelines. United States v.

Martin, 893 F.2d 73, 74 (5th Cir. 1990); United States v. Mejia-

Orosco, 867 F.2d 216, 218 (5th Cir.), clarified, 868 F.2d 807,

cert. denied, 492 U.S. 924 (1989). However, a sentence "'imposed

as a result of an incorrect application of the sentencing

guidelines' must be reversed even if reasonable." Mejia-Orosco,

867 F.2d at 218; 28 U.S.C. § 3742(e)(1).

If a district court determines that an "accused has committed

perjury at trial, an enhancement is required" under § 3C1.1.

United States v. Dunnigan, U.S. , 113 S. Ct. 1111, 1119

(1993). Thus, the district court may not "simply [choose] not to

apply the enhancement." United States v. Friedman, F.2d ,

1993 U.S. App. LEXIS 13623 at *14 (2d Cir. June 10, 1993). If the

district court made an arbitrary decision not to enhance Humphrey's

sentence, without considering whether Humphrey committed perjury,

it has committed reversible error. The application of § 3C1.1 is

not discretionary.

The difficulty facing this Court is that it is not clear

whether the district court rejected the government's objection

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based on (1) an unstated finding that Humphrey did not commit

perjury, or (2) an arbitrary decision not to apply § 3C1.1 of the

sentencing guidelines. Humphrey contends that the district court

need not make a finding on the perjury issue on the record, as such

a finding may be presumed from the district court's rejection of

the government's objection. We disagree.

In Dunnington, supra, the Supreme Court held that where a

defendant objects to the district court's imposition of an upward

adjustment under § 3C1.1, the

district court must review the evidence and

make independent findings necessary to

establish a willful impediment to or

obstruction of justice, or an attempt to do

the same, under the perjury definition we have

set out. See U.S.S.G. § 6A1.3 (Nov. 1989);

Fed. Rule Crim. Proc. 32(c)(3)(D). See also

Burns v. United States, 501 U.S. , , 111

S. Ct. 2182, , 115 L. Ed. 2d 123 (1991).

When doing so, it is preferable for a district

court to address each element of the alleged

perjury in a separate and clear finding. The

district court's determination that

enhancement is required is sufficient,

however, if as was the case here, the court

makes a finding of an obstruction or

impediment of justice that encompasses all of

the factual predicates for a finding of

perjury. See App. 29 ("The court finds that

the defendant was untruthful at trial with

respect to material matters in this case. By

virtue of her failure to give truthful

testimony on material matters that were

designed to substantially affect the outcome

of the case, the court concludes that the

false testimony at trial warrants an upward

adjustment by two levels") (emphasis added).

113 S. Ct. at 1117. As the Court noted, this requirement is

mandated by Fed. R. Crim. P. 32(c)(3)(D), which provides that where

a defendant alleges any factual inaccuracy in the presentence

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report, the district court must "(i) make a finding as to the

allegation, or (ii) a determination that no such finding is

necessary because the matter controverted will not be taken into

account in sentencing."

This Court has often ordered district courts to make

supplemental factual findings necessary to support the courts'

rejections of defendants' objections to guideline determinations.

See United States v. Buss, 928 F. 2d 150 (5th Cir. 1991) (remanded

for finding of whether defendant used firearm solely for sport or

recreation, which would entitle defendant to reduction under §

2K2.1(b)(2) of the Guidelines); United States v. Melton, 930 F. 2d

1096 (5th Cir. 1991) (remanded for finding of whether defendant was

minor participant, which would entitle defendant to reduction under

§ 3B1.2); United States v. Hooten, 942 F.2d 878 (5th Cir. 1991)

(remanded for finding of whether defendant possessed firearm during

the commission of drug offense, necessary to justify the court's

enhancement of defendant's sentence under § 2D1.1(b)(1)).

Humphrey points out that Dunnigan and the aforementioned

decisions of this Court involved challenges by defendants to

guideline level determinations, and that Fed. R. Crim. P.

32(c)(3)(D) only applies to objections made by defendants.

Humphrey contends that the government, unlike criminal defendants,

is not entitled to have the district court make specific factual

findings necessary to the resolution of its objections to

sentencing decisions.

Although this result is not explicitly compelled by Dunnigan,

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Rule 32(c)(3)(D), or our prior decisions, we find that the district

court did have an obligation to make a finding of whether Humphrey

committed perjury in its consideration of the government's

objection. We see little merit in Humphrey's contention that the

district court is only required to make specific findings when

addressing objections made by a defendant. Implicit in the

government's right to object to guideline determinations, and our

obligation to review those determinations, is the district court's

obligation to make all factual findings necessary to establish the

basis for its decisions.

We find persuasive the First Circuit's decision in United

States v. Tracy, 989 F.2d 1279 (1st Cir. 1993). In Tracy, as in

this case, the district court rejected the government's objection

to the court's failure to impose an enhanced sentence for

obstruction of justice, under § 3C1.1, based on the defendant's

perjury. Id. at 1289. The district court reasoned as follows:

[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 the testimony. This

Court, too, disbelieved the accuracy of his

testimony.

Nevertheless, there are many policy

considerations that surround the question of

enhancing a base offense level which increases

potential punishment on the basis of the

Court's conclusion that perjury has been

committed. And the Court simply is not

comfortable in its own mind in concluding that

the conduct amounts to perjury of sufficient

significance to justify such an enhancement.

Id. The First Circuit found itself unable to determine the basis

of the district court's decision:

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[I]t is not clear from the district court's

discussion of obstruction of justice whether

the court found that all of the elements of

perjury were satisfied. While the district

court expressly stated that it "disbelieved

the accuracy of [Tracy's] testimony," we are

unable to determine whether the court also

found that the testimony concerned a material

matter, or that Tracy intentionally provided

the false testimony. It is also possible to

interpret the district court's statements as

finding perjury, but requiring something more

than basic perjury to justify an enhancement

for obstruction of justice.

Id. at 1289-90. The appeals court determined that the "proper

resolution" was to "vacate the sentence and remand to the district

court 'to make findings to support all the elements of a perjury

violation,' or to articulate clearly the elements it believes have

not been satisfied." Id. at 1290 (quoting Dunnigan, 113 S. Ct. at

1118).

Also persuasive is United States v. Ferrin, F.2d , 1993

U.S. App. LEXIS 11579 (9th Cir. May 20, 1993). In Ferrin, the

defendant pleaded guilty to aiding and abetting the illegal

disposal of hazardous waste. The district court denied the

government's request for an upward adjustment based on §

2Q1.2(b)(1), which requires an upward adjustment if the offense

resulted in an "ongoing, continuous or repetitive discharge,

release, or emission of a hazardous or toxic substance or pesticide

into the environment." However, the district court failed to make

a finding of whether the gas released into the air as a result of

the defendant's conduct was hazardous. Id. at *17. The Ninth

Circuit vacated the sentence, and remanded the case to the district

court for a finding on that issue. Id. at *24.

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Likewise, we find that the proper disposition of the

government's appeal in this action is to vacate Humphrey's

sentence, and remand the case to the district court for a specific

finding of whether Humphrey committed perjury. If the district

court finds that Humphrey did commit perjury, it must impose a two-

level enhancement of his sentence. If the district court finds

otherwise, Humphrey's sentence will not be changed. If appealed,

we will review the district court's finding under the "clearly

erroneous" standard of 28 U.S.C. § 3742(e).

III. TARBOX'S MOTION FOR LEAVE TO WITHDRAW

Because further proceedings will be required in connection

with the government's appeal, the Court will not permit Tarbox to

withdraw entirely from his representation of Humphrey.2

Nonetheless, the Court will consider whether he may be relieved of

any further obligation to pursue Humphrey's appeal, and whether

that appeal should be dismissed as frivolous.

An attorney, "whether appointed or paid," is "under an ethical

obligation to refuse to prosecute a frivolous appeal." McCoy v.

Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988).

An attorney presented with this dilemma is under an obligation to

(1) advise his client that it would be a waste of money to

prosecute the appeal and unethical for the lawyer to go forward

with it, and (2) inform the court of his conclusion in a motion to

withdraw. Id. at 437-39; Anders v. State of California, 386 U.S.

2

Of course, if Tarbox believes that he is unable to

effectively represent Humphrey in the upcoming district court

proceedings, he may seek leave to withdraw from that court.

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738, 744 (1967). The motion to withdraw must be accompanied by a

so-called "Anders" or "no merit" brief referring to anything in the

record that might arguably support the appeal. McCoy, 486 U.S. at

439.

In his Anders brief, Tarbox points out that the jury's verdict

was supported by substantial evidence. First, the cooperating

individual testified that he purchased cocaine base from Humphrey.

The jury had the discretion to believe this testimony and

disbelieve the testimony of Humphrey and others who testified to

the contrary. Second, Officer Bates testified that Humphrey threw

the package of cocaine base while fleeing from the police -- an

allegation which Humphrey denied. Again, it was within the jury's

discretion to believe the government witness, Officer Bates, and

disbelieve Humphrey and his witnesses.

Tarbox also draws the Court's attention to the two evidentiary

objections timely made by Humphrey's trial counsel.

As noted above, the district court admitted into evidence

photographs of Humphrey's automobile, which Humphrey objected to as

irrelevant and prejudicial. The photographs probably were

irrelevant, as it was not disputed that Humphrey was present at the

apartment complex at the time of the August 6, 1991 transaction,

and Humphrey's automobile played no role in that transaction.

However, it is clear that their admission, if erroneous, was

harmless error. From a review of the record, it is clear that the

photographs could not have "substantially influenced" the result,

nor is there is "grave doubt" that the result was free from the

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substantial influence of the evidence. Bank of Nova Scotia v.

United States, 487 U.S. 250, 256 (1988); Fed. R. Crim. P. 52(a);

Fed. R. Evid. 103(a).

Tarbox also notes that the district court admitted over

Humphrey's objection a photograph of Humphrey taken shortly after

the August 30, 1991 incident. The photograph was admissible for

identification purposes, as the central issue concerning the August

30, 1991 incident was the identification of the individual who

discarded the package containing cocaine base. Even if

inadmissible, its admission was harmless error under Fed. R. Crim.

P. 52(a) and Fed. R. Evid. 103(a).

In addition to considering the points raised by Tarbox, the

Court has conducted an independent examination of the record. The

record reveals that the district court made several other

evidentiary rulings adverse to Humphrey other than those described

by Tarbox. However, none of them constitute reversible error.

First, the district court admitted into evidence, during the

direct testimony of Officer Brumley (the officer who arranged that

purchase), the (alleged) cocaine base purchased by the cooperating

individual in the August 6, 1991 transaction. Humphrey objected to

the admission of the evidence, arguing that Brumley was unqualified

to identify the substance as cocaine base. The material was later

identified by a qualified chemist as cocaine base, however,

rendering any error made by the court harmless.

Second, the district court sustained the government's

objection to Humphrey's attempt to elicit personal background

13

information from the cooperating individual. Even if this

information was relevant, its exclusion was clearly harmless.

Third, Humphrey objected on relevancy grounds to the admission

of his statement that he was not employed. The district court's

decision to overrule this objection was correct, as the statement

was relevant to the issue of how Humphrey acquired the $639 in cash

found on his person when he was arrested on August 30, 1991.

Fourth, the district court permitted the government to cross-

examine James Clark, a defense witness, about prior cocaine arrest.

The district court ruled correctly, as Clark's prior arrest

contradicted Clark's testimony that he knew nothing about the drug

trade.

Finally, Officer Gregg testified that he recognized Humphrey

from prior drug arrests or other dealings, implying that Humphrey

had been involved in other drug transactions. Because the district

court promptly instructed the jury to disregard that testimony, any

prejudice it may have caused is insufficient to warrant a new

trial.

The Court is unable to identify any possible grounds for

appeal. From a review of the record, and the points raised in

Tarbox's Anders brief, the Court concurs with Tarbox's conclusion

that Humphrey's appeal is frivolous.

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IV. CONCLUSION

Accordingly,

Humphrey's appeal is DISMISSED, his conviction is AFFIRMED,

his sentence is VACATED, and this action is REMANDED for

resentencing in accordance with this opinion.

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