U.S. v. Dailey, 84-1578

• Decision Date: 05 April 1985
• Docket Number: No. 84-1578,84-1578
• Citation: 759 F.2d 192
• Parties: UNITED STATES of America, Appellant, v. Kevin R. DAILEY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 192

759 F.2d 192

53 USLW 2524

UNITED STATES of America, Appellant, v. Kevin R. DAILEY, Defendant, Appellee.

No. 84-1578.

United States Court of Appeals, First Circuit.

Argued Jan. 9, 1985.

Decided April 5, 1985.

Janis M. Berry, Asst. U.S. Atty., Boston Mass., with whom William F. Weld, U.S. Atty., and Jeremiah T. O'Sullivan, Sp Atty., U.S. Dept. of Justice, Boston, Mass., were on brief for appellant.

Martin G. Weinberg, Boston, Mass., with whom Kimberly Homan, Oteri, Weinberg & Lawson and Gerald B. Lefcourt, Boston, Mass., were on brief, for defendant, appellee.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

The United States appeals a pre-trial order barring three of defendant's alleged accomplices from testifying against him. The district court's decision to exclude their testimony was based on its conclusion that the plea agreements entered into by the accomplices were so likely to induce perjurious testimony that to allow them to testify would be to violate defendant's due process rights. United States v. Dailey, 589 F.Supp. 561 (D.Mass.1984). Finding ourselves in disagreement with the district court, we reverse.

I. BACKGROUND

On November 25, 1983, a federal grand jury for the District of Massachusetts returned two major drug smuggling indictments. In the first indictment defendant Kevin R. Dailey is named as one of two lead defendants. In Count One, he is charged as an organizer, supervisor, and manager of a continuing criminal enterprise to violate the controlled substances laws, 21 U.S.C. Sec. 848, and in particular with helping to organize a number of drug smuggling ventures involving an aggregate of approximately 185,000 pounds of marihuana. The remaining counts of the indictment charge Dailey, as well as several others, ¹ with specific drug violations based upon certain of the transactions cited as predicates in Count One.

The lead defendant named in the second indictment is Salvatore Michael Caruana. In Count One he is charged under section 848 as an organizer, supervisor, and manager of a second continuing criminal enterprise to import and distribute large quantities of marihuana. The remaining counts of the indictment charge him and several others with a number of specific drug offenses.

The Dailey and Caruana indictments are related and have common counts. Dailey's enterprise allegedly worked with Caruana's on a number of drug ventures, including: (1) the importation of approximately 90,000 pounds of marihuana into Greenleaf Cove, Maine, and other ports in or about May 1979; and (2) the importation of approximately 45,000 pounds of marihuana into Stonington, Maine, and other ports in or about September 1979. Both the Dailey and Caruana indictments include counts covering these two ventures. Also involved in these ventures was a third enterprise, one run by Robert L. Frappier and Timothy I. Minnig. They and one of their subordinates, Tommy Tindall, are the three accomplices whose plea agreements are the subject of this appeal.

Ten of the defendants charged in the Caruana indictment were tried during May and June of 1984 and eight of them were found guilty. ² An important subject of that trial was the September 1979 venture. Among the several witnesses who testified for the government were Frappier and Minnig, who had agreed to cooperate with the government four months after Dailey and Caruana were indicted, and Tommy Tindall, who had agreed to cooperate a year-and-a-half earlier. After the trial was underway and Frappier, Minnig, and Tindall had testified, defense counsel moved to strike their testimony, making the same basic argument that Dailey advances here. Counsel argued that certain promised benefits to the accomplices were, by the terms of their plea agreements, made contingent upon the successful prosecution of the accomplices' confederates. The contingent nature of these benefits, it was contended, had provided such an inducement for the accomplices to testify falsely that their testimony should be stricken from the record.

This argument was made after the accomplices had testified because it was not until then that any federal case authority in support of the argument had come to defense counsel's attention. When, however, the Court of Appeals for the Eighth Circuit published its initial panel decision in United States v. Waterman, 732 F.2d 1527, 1531 (8th Cir.1984), later to be vacated en banc, id. at 1533, counsel had one case standing for the proposition that a plea agreement made contingent upon the return of further indictments constitutes a violation of the due process rights of any defendant against whom the confederate who entered the agreement might testify.

In Caruana, although the district court carefully considered Waterman, it denied defendants' motions to strike. While noting that the plea agreements were somewhat unusual, the court held that the standard procedural safeguards--having the agreements read to the jury, allowing defense counsel to cross-examine the witnesses with respect to the agreements, and instructing the jury to scrutinize the accomplices' testimony with care--were sufficient to protect defendants' due process rights. In ruling on the motion, the court found compelling the existence of "corroborating evidence in the form of repair records, telephone records, [the] police testimony and [another] witness's testimony." District Judge Zobel commented:

"I credit, in general, the testimony of Messrs. Tindall, Frappier [and] Minnig.... Such discrepancies as there were in details are minor and they do not, in my judgment, substantially affect their stories which are remarkably consistent, both internally and with respect to each other. I do not find the testimony of ... these people ... blurred by the plea agreements which they had entered."

Three days later, however, just before Dailey's trial was to commence, District Judge Tauro considered the same plea agreements and came to the opposite conclusion. United States v. Dailey, 589 F.Supp. at 564-65. Relying exclusively upon the original panel decision in Waterman, he found that use of the three accomplices' testimony would violate Dailey's due process rights. Accordingly, he barred the three from giving any testimony, including testimony concerning the same September 1979 venture about which they had already testified in the Caruana trial. Id. It is this pre-trial exclusionary ruling that the government now appeals.

II. THE PLEA AGREEMENTS

A. The Frappier-Minnig Agreement

Frappier and Minnig signed virtually identical written plea agreements. They cover many drug smuggling ventures and charges brought in Maine, Massachusetts, and Oregon. Paragraph 5 of each agreement, the primary provision at issue on appeal, reads as follows:

"The defendant agrees to fully cooperate, as defined in Paragraph 2. If, at the time of sentencing on the Maine indictment, the defendant has fully cooperated with the United States, as defined in Paragraph 2, the Government will recommend a specific term of imprisonment which does not exceed twenty (20) years and, depending principally upon the value to the Government of the defendant's cooperation, the Government, in its sole discretion, may recommend a sentence of ten (10) years; the defendant may argue for a sentence less than the Government's recommendation; in any event, the Court shall impose a sentence no greater than that recommended by the Government. If, at the time of sentencing on the Maine indictment, the Government presents evidence and the Court finds by a preponderance of the evidence that the defendant has not fully cooperated as defined in Paragraph 2, then the court shall sentence the defendant to a term of imprisonment of thirty-five (35) years. The Court shall not sentence the defendant to pay a fine on either the Maine or Oregon indictment."

"Full cooperation" is defined in Paragraph 2 of each agreement as: (1) the disclosure of all criminal activities known to the defendant, whether undertaken by the defendant or others; (2) the provision of all records, receipts, etc., which tend to corroborate the occurrence of such criminal activities; and (3) the giving of "complete and honest testimony at any and all proceedings" concerning such activities.

The district court read Paragraph 5 to mean that failure to fully cooperate would result in a sentence of 35 years, complete and honest cooperation would result in a sentence of 20 years, and cooperation that is of "value" to the government, or, as the district court rephrased the matter, which results in "the success of the underlying prosecution", would result in a sentence of 10 years. 589 F.Supp. at 564. So viewing the contingent nature of the ultimate sentence, the district court found that the plea agreements on their face impose a subjective pressure on the accomplices to testify as the government wants rather than truthfully and that the creation of such an inducement to lie necessitates excluding all their testimony. Id.

On appeal, the government notes that the plea agreements do not make the ultimate sentences contingent upon the prosecution or conviction of anyone, and that neither Frappier nor Minnig, according to their testimony in the Caruana trial, understood the agreements to intend such a contingency. In addition, the government disagrees with the district court's isolation of the "value to the Government" provision from the rest of the agreement. The government contends that what was intended and understood by the parties was that this provision effectively promised that "complete and honest" cooperation would result in a sentence which could range from ten to twenty years, depending upon the extent and quality of the information that Frappier and Minnig provided.

Among the circumstances cited by the government as requiring it to set a range of years rather than choose a specific number are the following: the fact that, although Frappier and...