U.S. v. Cornielle

• Decision Date: 24 March 1999
• Docket Number: Docket No. 98-1254
• Citation: 171 F.3d 748
• Parties: UNITED STATES of America, Appellee, v. Omar CORNIELLE, Defendant, Melvin Feliz, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 748

171 F.3d 748

UNITED STATES of America, Appellee, v. Omar CORNIELLE, Defendant, Melvin Feliz, Defendant-Appellant.

Docket No. 98-1254.

United States Court of Appeals, Second Circuit.

Argued Sept. 2, 1998.

Decided March 24, 1999.

Joshua G. Berman, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney, Alexandra A.E. Shapiro, Assistant United States Attorney, Southern District of New York, New York, New York, of counsel), for Appellee.

Noah L. Shube, New York, New York (Law Offices of Gary B. Friedman, New York, New York, of counsel), for Defendant-Appellant.

Before: NEWMAN, CARDAMONE, and PARKER, Circuit Judges.

CARDAMONE, Circuit Judge:

We deal on this appeal with a criminal conviction for perjury, 18 U.S.C. § 1623 (1994), that occurred during the course of a civil trial in which the perjurer sought to collect money damages. The perjury is not disputed. Instead, the issue raised is whether the government's four-year delay in prosecuting defendant Melvin Feliz ¹--during which defendant, having been released from prison, had ostensibly rehabilitated himself and reestablished ties to his community--violated defendant's right to due process of law. Following a guilty plea to perjury, defendant appeals from his sentence entered on April 27, 1998 in the United States District Court for the Southern District of New York before Judge Jed S. Rakoff.

BACKGROUND

A. Defendant's Criminal Conduct

Defendant was arrested on August 16, 1988 for his involvement in a narcotics sale to an undercover detective with the New York Drug Enforcement Task Force. In May 1989 Feliz and his co-conspirators, including his brother-in-law Omar Cornielle, pled guilty in New York State Supreme Court to drug offenses. For these crimes, Feliz was sentenced to state prison for a term of seven years to life. Cornielle was sentenced to terms of three years and six years to life, respectively, on convictions for the August 16, 1988 sale and for a prior, related drug sale.

In early spring 1989 Feliz, Cornielle and a third person, who was also arrested on August 16, 1988, brought civil rights lawsuits, pro se, pursuant to 42 U.S.C. § 1983, against several of the New York Drug Enforcement Task Force officers alleging police brutality during the arrest. In August 1993 the civil suit went to trial before District Court Judge John S. Martin, Jr. and a jury in the Southern District of New York. Feliz and Cornielle asserted in their testimony that in the course of the arrest the police had beaten them. Feliz also declared under oath that Cornielle had not been involved in the August 16, 1988 drug sale. That sworn statement directly contradicted the plea allocution Feliz had made in the New York State Supreme Court criminal proceedings. The jury returned a verdict for the Task Force officers.

At the conclusion of the civil trial, Judge Martin was of the opinion that Feliz and Cornielle had perjured themselves at the trial before him and referred the matter to the United States Attorney's Office for it to consider whether to prosecute them for perjury.

B. Feliz's Guilty Plea and Sentencing

On August 19, 1997 the Southern District U.S. Attorney's Office filed criminal complaints charging both Feliz and Cornielle with perjury in connection with their testimony during the August 1993 civil trial. On September 11, 1997 a grand jury indicted them charging each of them with two counts of perjury in violation of 18 U.S.C. § 1623. Feliz pled guilty to count four of the indictment on November 25, 1997, admitting he falsely declared that Cornielle had not been involved in the August 1988 drug sale.

Following Feliz's guilty plea, the U.S. Probation Office prepared a Presentence Investigation Report that proposed a sentencing range of ten to 16 months imprisonment, with no recommendation for any downward departure. Defendant's attorney sought a downward departure for him on five grounds: (1) the government's pre-indictment delay in prosecuting him; (2) Feliz's rehabilitation while in state prison and thereafter; (3) his mitigating role in the offense; (4) his assistance to the prosecution in securing Cornielle's guilty plea; and (5) his criminal history category overrepresented the seriousness of his criminal history. With respect to his claims of pre-indictment delay and rehabilitation, Feliz averred he had been prejudiced by the four-year delay between the 1993 perjury and the filing of perjury charges against him in 1997, because in the meanwhile he had rehabilitated himself and reestablished his ties in the community. The government opposed a downward departure.

Defendant was subsequently sentenced before Judge Rakoff on April 27, 1998. At this proceeding, the sentencing court ruled that none of the grounds advanced independently warranted a downward departure.

The record before the sentencing court regarding defendant's claim of rehabilitation revealed that prior to being placed on parole from state prison on August 14, 1995 Feliz had spent eight months in a work release program. The various organizations for whom he worked during this period uniformly described him in the most glowing terms: hard working, conscientious, respectful, productive, driven to The sentencing court leavened these letters and took them, so to speak, with a grain of salt, because statements in some of them suggested the writers did not know the facts of Feliz's case, and that defendant had perhaps not portrayed to these writers an accurate account of what had occurred in the criminal prosecution against him. In short, the sentencing court believed the defendant had a tendency to manipulate the information regarding his background to make it appear consistent with the model picture of total rehabilitation that defense counsel was urging and that the letters portrayed.

improve himself, responsible and entirely trustworthy. Even his parole officer wrote a letter on his behalf reciting that Feliz reported regularly, that he had a stable residence and stable employment, and that there were no negative reports about him from any local law enforcement agency. After release from prison, he married and at the time of his 1998 sentencing for perjury his pregnant wife was present. In addition, Feliz had returned to college and earned all "A's" and "B's" and had undertaken volunteer work for PROMESA, a Bronx-based Health, Human Services and Development Organization, where he counseled HIV-infected residents.

Nonetheless, considering the totality of Feliz's circumstances, the trial court granted a one-level downward departure. The sentencing court stated that the facts in appellant's case were sufficiently extraordinary to warrant a modest departure. The one-level departure reduced defendant's sentence range from ten to 16 months to eight to 14 months imprisonment. Judge Rakoff then sentenced Feliz to a term of eight months, the bottom end of the adjusted range. It is from this sentence that defendant appeals. We affirm.

DISCUSSION

I Due Process Claim

At the outset we observe that although it is undoubtedly the case that a good many untruthful statements occur during the course of a civil trial, many such falsehoods essentially are resolved by adverse jury verdicts, leaving for criminal prosecution those few instances where a witness' lie is so material to the truth-seeking function of a trial that the prosecutor (sometimes, upon the referral of the trial judge) elects to seek an indictment. Such is the present case. Moreover, that this criminal conviction for perjury arose in a civil context is unremarkable. We and other Circuits have reviewed perjury convictions arising from civil proceedings. See, e.g., United States v. Thompson, 29 F.3d 62 (2d Cir.1994) (one count of perjury in connection with separate civil judicial proceeding); United States v. Kross, 14 F.3d 751 (2d Cir.1994) (false declarations in civil forfeiture deposition); United States v. Wilkinson, 137 F.3d 214 (4th Cir.1998) (false statement during deposition in civil case); United States v. Clark, 918 F.2d 843 (9th Cir.1990) (false testimony in civil rights suit against police department), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir.1998).

A. Delay

Feliz's contention is that his sentence violates the Due Process Clause of the U.S. Constitution because he was not indicted until four years after the crime for which he was charged was committed. As the Supreme Court stated in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the statute of limitations is " 'the primary guarantee against bringing overly stale criminal charges.' " Id. at 322, 92 S.Ct. 455 (quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). A set period within which prosecution must be initiated safeguards citizens from standing trial on charges whose underlying facts have grown dim with age, and from having to face possible punishment because of acts An indictment brought within the time constraints of the statute may nevertheless violate due process where pre-indictment delay has been shown to cause "substantial prejudice" to the defendant's ability to present his defense and "the delay was an intentional device to gain [a] tactical advantage over the accused." Marion, 404 U.S. at 324, 92 S.Ct. 455. As the Supreme Court further has explained, where delay prejudices the presentation of a defense and is engaged in for an improper purpose it violates the Due Process Clause because such conduct departs from fundamental notions of "fair play." United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). A defendant bears the "heavy burden" of proving both that he suffered actual prejudice because of the alleged pre-indictment delay and that such delay was a course intentionally pursued by the government for an improper purpose. See United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir.1990); ...