U.S. v. Diaz-Villafane

• Decision Date: 28 February 1989
• Docket Number: D,No. 88-1998,DIAZ-VILLAFAN,88-1998
• Citation: 874 F.2d 43
• Parties: UNITED STATES of America, Appellee, v. Wilfredoefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 43

874 F.2d 43

57 USLW 2674

UNITED STATES of America, Appellee, v. Wilfredo DIAZ-VILLAFANE, Defendant, Appellant.

No. 88-1998.

United States Court of Appeals, First Circuit.

Heard Feb. 28, 1989.

Decided May 4, 1989.

Rehearing and Rehearing En Banc Denied June 6, 1989.

Rafael F. Castro Lang, San Juan, P.R., by Appointment of the Court, for defendant, appellant.

Jorge L. Arroyo, Asst. U.S. Atty., Old San Juan, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the U.S.

Before BREYER, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This appeal necessitates that we consider the effect of the district court's failure to adhere to a local rule. It also requires, for what seems to be the first time, that we review a sentence in order to determine whether the district court correctly calculated, and thereafter appropriately departed from, the newly-minted sentencing guidelines (Guidelines) promulgated by the United States Sentencing Commission pursuant to the Commission's statutory mandate. See Sentencing Reform Act, as amended, 18 U.S.C. Sec. 3551 et seq. (1982 & Supp.1988); 28 U.S.C. Secs. 991-998 (Supp.1988) (collectively, the Act). Finding no reversible error, we affirm.

I. BACKGROUND

Defendant-appellant Wilfredo Diaz-Villafane pled guilty to a single count (of a multicount indictment) charging possession with intent to distribute 20 grams (net weight) of heroin in violation of 21 U.S.C. Sec. 841(a)(1) (1982) (maximum allowable sentence: 20 years). Following standard convention, see Fed.R.Crim.P. 32(c), the judge ordered that a presentence investigation report (PSI) be prepared. When completed, the PSI concluded that Diaz-Villafane's total offense level and criminal history category placed him in a sentencing range of 27-33 months under the Guidelines.

Appellant objected to the PSI on several grounds. The district court held a hearing on September 1, 1988. Two government witnesses testified. The court made certain sentencing findings (later committed to writing), and, grounding its upward departure from the Guidelines on these findings, sentenced defendant to a 10-year prison term.

On appeal, Diaz-Villafane argues that (1) the sentencing hearing was contaminated by failure to comply with a court rule; (2) the district judge calculated the offense level inaccurately; and (3) the judge's substantial departure from the sentencing range indicated by the Guidelines was altogether impermissible.

II. NONCOMPLIANCE WITH LOCAL RULES

When appellant was sentenced, the Local Rules of the District of Puerto Rico seemingly provided that:

If either party wishes to call any witnesses at the imposition of sentence hearing, counsel shall submit, in writing to the Court, the Probation Officer, and opposing counsel, not later than five (5) days before the imposition of sentence, a statement containing (a) the names of the witness[es], (b) a synopsis of their anticipated testimony, and (c) an estimate of the anticipated length of the hearing.

D.P.R.L.R. 418.6 (emphasis supplied). It is uncontested that the prosecutor did not give the 5-day written notice contemplated by the rule. Notwithstanding, when the government sought to call witnesses at the sentencing hearing and the defense objected, the court refused to invoke the rule, declaring that it was "suspended" and "not in effect." Although we find the local rule to have been in force, we think that the court had power to suspend it in this instance.

Local Rule 418.6 was adopted on May 20, 1988. According to the June 2, 1988 minutes of the Committee for the Revision of the Local Rules for the United States District Court for the District of Puerto Rico, Rule 418 "as already approved, [remained] in effect until further order." Once so adopted:

A local rule ... shall remain in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located.

Fed.R.Crim.P. 57. On September 1, neither of these conditions had been fulfilled: the district court had not perfected an amendment and the circuit council had not intervened. The government acknowledges that the operation of Rule 418.6 had not been stayed. Although the district court was actively considering amendments to Rule 418 (on June 28, the court had issued a public notice suggesting that the rule needed modification and requesting comments on certain proposed amendments), none had been enacted. Without more, publication of a notice of contemplated revision does not constitute withdrawal or suspension of a local rule.

Our conclusion that Local Rule 418.6 was in force does not end our inquiry. Local Rule 105 authorized the district court to suspend local rule requirements in a given case. ¹ The savings clause contained in D.P.R.L.R. 105 mirrors the widely-accepted idea that a district court should be accorded considerable latitude in applying local procedural rules of its own making, and in departing from them. See Trundle v. Bowen, 830 F.2d 807, 809 (8th Cir.1987); Atlas Truck Leasing, Inc. v. First NH Banks, Inc., 808 F.2d 902, 903 (1st Cir.1987); United States v. Warren, 601 F.2d 471, 474 (9th Cir.1979); United States v. Cicilline, 571 F.Supp. 359, 364 (D.R.I.1983). In general, "[i]t is for the district court to determine what departures from its rules may be overlooked." Braxton v. Bi-State Dev. Agency, 728 F.2d 1105, 1107 (8th Cir.1984).

Let us be perfectly clear. We do not suggest that such discretion is unbridled. Once local rules have been promulgated, lawyers and their clients have a right to place reasonable reliance on them. See United States v. Ferretti, 635 F.2d 1089, 1093 (3d Cir.1980). To set the strictures of a local rule to one side without advance notice, the court (1) must have a sound reason for doing so, and (2) must ensure that no party's substantial rights are unfairly jeopardized. These preconditions, we believe, were met in this case.

The record indicates that the trial judge had two excellent reasons for sidestepping literal compliance with D.P.R.L.R. 418.6:

1. The judges of the district court and the committee on rule revisions had come to doubt the workability of the Rule, and there was a legitimate question as to whether it remained in effect. (Indeed, the judge had been the principal draftsman of a proposed amendment; and the amendment was, at the time, circulating among the judges of the district court for signature.)

2. In this case, sentencing had been set for September 1. Defense counsel received notice no later than August 22 that the PSI was complete. Yet, he did not serve his objections to it until August 29. Thus, the prosecutor could not possibly have given the 5-day notice contemplated by Rule 418.6.

These reasons, we think, were sufficient to justify suspension of the local rule in the absence of cognizable prejudice. To be sure, appellant claims prejudice: had counsel been armed with the witnesses' names and a synopsis of anticipated testimony, cross-examination would have been enhanced and rebuttal evidence assembled. But, appellant is brandishing a cardboard sword. His claim consists mainly of gauzy generalities. He has been unable credibly to suggest how cross-examination might more fruitfully have been conducted or what material evidence, not available at the time, he would have submitted.

On the other pan of the scale, there was scant potential for surprise: all of the matters traversed by the testimony were within the framework of, and covered by, the PSI--which had been available to defendant for upward of a week before the hearing. Moreover, it was Diaz-Villafane, by and large, who set the agenda for the evidence. In objecting to the PSI, he contested certain facts. He knew that the purpose of the sentencing hearing was to resolve those contests. See Fed.R.Crim.P. 32(c)(3)(D). Having put the prosecution to its proof of the disputed items, any claim of surprise on his part is as empty as a beggar's purse. ²

And there is more. We find it of decretory significance that defense counsel, although seeking unsuccessfully to block the testimony entirely, never moved for a continuance to prepare for cross-examination or to muster additional evidence. Appellant's present claim that he was unfairly surprised is severely undermined, if not entirely undone, by his neglect to ask the district court for a continuance to meet the claimed exigency. See, e.g., United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.1986) (defendant's failure to move for continuance despite delayed disclosure of files indicates lack of prejudice). If, indeed, this was a sneak attack, then a continuance would have been a complete cure. It is, we think, incumbent upon a party faced with such a situation to ask explicitly that the court grant the time needed to regroup, or waive the point. See Szeliga v. General Motors Corp., 728 F.2d 566, 568 (1st Cir.1984) ("remedy for coping with surprise is not to seek reversal after an unfavorable verdict, but a request for continuance at the time the surprise occurs"); United States v. Long, 674 F.2d 848, 855 (11th Cir.1982) (similar). Appellant apparently did not need more time; the transcript shows that the witnesses were cross-questioned vigorously, thoroughly, and with an understanding born of familiarity.

Appellant makes one final (related) argument: that the failure to provide advance notice violated due process. The contention is meritless. A defendant has a right to fair sentencing procedures, see United States v. Stevens, 851 F.2d 140, 143 (6th Cir.1988), but he has no due process right to be informed in advance of the identity of witnesses or of the expected substance of their testimony. At most, a "[d]efendant ... has a constitutional right not to be sentenced on the basis of invalid information and, therefore, must be given an opportunity to rebut any challenged information." United States v. Fogel, 829 F.2d 77, 90 (D.C.Cir.1987) (citations...