U.S. v. Barr

• Decision Date: 24 June 1992
• Docket Number: No. 91-5486,91-5486
• Citation: 963 F.2d 641
• Parties: UNITED STATES of America, v. Henry G. BARR, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 641

963 F.2d 641

UNITED STATES of America, v. Henry G. BARR, Appellant.

No. 91-5486.

United States Court of Appeals Third Circuit.

Argued Nov. 19, 1991.

Decided May 15, 1992.

Rehearing and Rehearing In Banc

Denied June 24, 1992.

Gordon A.D. Zubrod (argued), Office of U.S. Atty., Harrisburg, Pa., William J. Corcoran, Crim. Div., U.S. Dept. of Justice, Washington, D.C., for appellee.

Charles F. Scarlata, Ellen M. Viakley (argued), Scarlata & Plastino, Pittsburgh, Pa., for appellant.

Before: MANSMANN, COWEN and ROTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge.

Henry G. Barr appeals to this court the judgment of conviction and sentence entered in the district court on May 30, 1991. Barr was indicted on August 10, 1990, by a federal grand jury sitting in Harrisburg, Pennsylvania. The indictment charged Barr with making a false written statement in violation of 18 U.S.C. § 1001 (1988) (Count One); a false oral statement in violation of 18 U.S.C. § 1001 (1988) (Count Two); conspiracy to possess cocaine in violation of 21 U.S.C. § 846 (1988) (Count Three); and possession of cocaine in violation of 21 U.S.C. § 844 (1988) (Count Four). At his arraignment on August 22, 1990, Barr entered a plea of not guilty. His trial began on February 4, 1991. On February 7, the jury returned a verdict of guilty on all counts.

The district court sentenced Barr to a term of sixteen months imprisonment on Counts One and Two, and twelve months imprisonment on Counts Three and Four, to be served concurrently. Following this period of incarceration, Barr was sentenced to a two-year term of supervised release. A fine of $2,500 was also imposed for each of the counts.

On June 6, 1991, Barr appealed his conviction and sentence to this court. We have jurisdiction of this appeal pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 1291. Barr cites eight grounds for the appeal: (1) the false statements charged in Counts One and Two fall within the "exculpatory no" doctrine, and so cannot provide a basis for conviction under 18 U.S.C. § 1001; (2) there was a fatal variance between Count Three of the indictment, which charged a single conspiracy to possess cocaine, and the proof at trial, which demonstrated multiple conspiracies; (3) the evidence was not sufficient to establish beyond a reasonable doubt that the substance in question in Count Four was cocaine; (4) Count Two of the indictment was multiplicitous; (5) the district court erred in denying discovery of documents relevant to the claim of selective prosecution; (6) Count Four should have been severed from the other three counts; (7) the district court's upward departure of four guideline levels in sentencing Barr was in violation of federal law; and (8) the district court erred in failing to adjust Barr's sentence for acceptance of responsibility.

After considering each of Barr's first six grounds for appeal, we find them to be without merit. We will discuss in detail two of these grounds, the "exculpatory no" doctrine, and the question of whether the proof under Count Three demonstrated multiple conspiracies, rather than a single conspiracy, to possess cocaine. With regard to the sentencing claims, we reject Barr's argument that the district court erred in failing to adjust Barr's sentence for acceptance of responsibility. For the reasons we will set forth below, however, we conclude that the district court in sentencing Barr failed to give him the requisite notice of its intent to depart from the sentencing guidelines. Consequently, we will vacate Barr's sentence and remand the case to the district court for resentencing.

The Relevant Facts of Record.

The relevant facts may be summarized as follows. From September 6, 1988, to May 12, 1989, Henry Barr served as an Assistant to the Attorney General of the United States in Washington, D.C. In this position Barr acted as a liaison with law enforcement agencies and carried out assignments, given to him by the Attorney General, which related to pending matters within the criminal and intelligence communities. In addition, Barr was responsible for briefing the Attorney General on Foreign Intelligence Security Act cases. Consequently, Barr had access to sensitive information relating to intelligence and law enforcement areas.

Before assuming his duties as Assistant Attorney General, Barr completed Standard Form 171, entitled "Application for Federal Employment." This form includes questions concerning prior criminal convictions but does not address any uncharged or unadjudicated criminal conduct. In addition, persons appointed to sensitive positions in the Department of Justice are usually required to complete Standard Form 86 (SF-86) prior to taking the position. This form includes specific questions concerning the applicant's drug use and offers a warning to the applicant that failure to provide truthful answers could result in criminal prosecution. At the Attorney General's request, the Security Officer of the Department of Justice granted Barr an interim or temporary security clearance, pending the completion of his full-field background investigation. Barr completed the SF-86 form six days after entering on duty as Assistant to the Attorney General.

In response to the SF-86 question, "Do you now use or supply, or within the last 5 years, have you used or supplied marijuana, cocaine, narcotics, hallucinogenics, or other dangerous or illegal drugs?", Barr typed an "X" beneath the word "no." Barr signed the SF-86, certifying that his answers were true.

On November 1, 1988, Barr was interviewed in Washington, D.C., by a Special Agent of the Federal Bureau of Investigation. The Special Agent reviewed the specific questions on the SF-86, and asked Barr if he had ever used illegal drugs. Barr responded that he had not. The Security Officer relied upon Barr's answers recorded on the SF-86 in deciding to grant a temporary clearance. The Security Officer further relied upon the statements made by Barr in his interview with the FBI special agent in granting Barr a final security clearance.

Barr remained at the Department of Justice for approximately nine months. On April 27, 1989, he submitted a letter of resignation to the Attorney General, citing his desire to return to his family in Pennsylvania. The resignation was effective May 12, 1989.

After Barr had left the Department of Justice, information that he had used illegal drugs, specifically cocaine, was disclosed during a federal grand jury investigation into drug use by public officials in Pennsylvania. The evidence indicated that Barr had used cocaine in the years 1984 through 1988, and on at least one occasion in 1989, during his employment as Assistant to the Attorney General. Ultimately, in addition to Barr, two former public officials were charged with drug activities as a consequence of this investigation: Richard L. Guida, former Executive Deputy Attorney General for the Commonwealth of Pennsylvania, and W. Michael Trant, former Deputy Attorney General in charge of legislative liaison for the Pennsylvania Attorney General's Office. Other private citizens were also prosecuted.

At Barr's trial, then-Attorney General Richard Thornburgh testified that, had he known of Barr's past cocaine use, he would not have made Barr part of his staff. The Director of Security for the Department of Justice testified that he would not have approved Barr's interim security clearance and would not have recommended final clearance if he had been aware of Barr's past cocaine use. Testimony was also presented concerning Barr's duties within the Department of Justice. Five other witnesses testified that they had used cocaine with Barr on various social occasions from 1984 to 1989. On February 7, 1991, the jury returned a guilty verdict on all counts.

On May 30, 1991, Barr appeared before the district court for sentencing. The court found that an aggravating circumstance existed which had not adequately been taken into consideration by the Sentencing Commission in formulating the sentencing guidelines, specifically that Henry Barr had held a high-ranking position within the Department of Justice and that criminal activity by public officials tended to erode public confidence in government. As a result, the court concluded that an upward departure of four levels to a guideline range of 10-16 months was appropriate. Barr was sentenced to 16 months imprisonment on both of the felonies and to 12 months imprisonment on both of the misdemeanors, all sentences to run concurrently.

I. THE "EXCULPATORY NO" DOCTRINE.

Counts One and Two of the indictment charged Barr with making a false written statement and a false oral statement to the government in violation of 18 U.S.C. § 1001. The underlying false statements are based on Barr's negative replies to questions concerning his illegal drug use, made both on the Department of Justice Standard Form 86 and in response to the November 1, 1988, questioning by the FBI Special Agent.

A conviction under § 1001 requires that five elements be proved: (1) a statement, (2) falsity, (3) materiality, (4) specific intent, and (5) agency jurisdiction. ¹ See United States v. Herring, 916 F.2d 1543, 1546 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2248, 114 L.Ed.2d 488 (1991). Barr does not contend that the Government failed to prove any of these elements, but rather argues that his denials of possession and use of illegal drugs, charged in Counts One and Two as false statements in violation of 18 U.S.C. § 1001, do not provide a basis for conviction under that statute. According to Barr, these denials are encompassed within the "exculpatory no" doctrine, which provides a defense to prosecution under § 1001 if the statements at issue amount to no more than a denial of criminal conduct in response to investigatory questioning by the government.

This court has neither adopted nor rejected the "exculpatory no" doctrine. ² Thus, we find a review...