U.S. v. Tardiff

• Decision Date: 02 June 1992
• Docket Number: No. 91-2040,91-2040
• Parties: UNITED STATES of America, Appellee, v. Claude Paul TARDIFF, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1283

969 F.2d 1283

UNITED STATES of America, Appellee, v. Claude Paul TARDIFF, Defendant, Appellant.

No. 91-2040.

United States Court of Appeals, First Circuit.

Heard June 2, 1992.

Decided July 8, 1992.

William A. Brown, Boston, Mass., by Appointment of the Court, for appellant.

Richard E. Welch, III, Asst. U.S. Atty., with whom A. John Pappalardo, Acting U.S. Atty., Boston, Mass., was on brief, for appellee.

Before SELYA, Circuit Judge, RONEY, ^* Senior Circuit Judge, and PIERAS, ^** District Judge.

SELYA, Circuit Judge.

Defendant-appellant Claude Paul Tardiff pled guilty to a 20-count information charging him with numerous acts of mail fraud in violation of 18 U.S.C. § 1341 (1988). At sentencing, the district court fixed the applicable guideline sentencing range (GSR) and imposed an incarcerative sentence at the low end of the range. ¹ Defendant appeals. We affirm.

I. Overview

An overview of the facts suffices to put this appeal into workable perspective. The defendant was the proprietor of "CPT Business Services." In that capacity, he successfully encouraged more than 70 persons to entrust funds to him for pooled investment. He also acted as a tax accountant and tax-return preparer for many of these individuals.

Tardiff mailed periodic statements to his clients, apprising them of the status of their accounts. In late 1986, when his investment decisions started to turn sour, Tardiff began falsifying these statements in order to paint a brighter picture. He lent credence to the confabulations by using newcomers' capital as well as his own funds to finance redemptions and other interim payments to investors. The web of lies became more and more elaborate as the losses mounted. Tardiff began taking greater and greater risks with clients' funds, striving valiantly to recapture lost ground. His efforts proved counterproductive: by the end of 1990, the pooled investment account, like Mother Hubbard's cupboard, see M. Goose, Old Mother Hubbard, reprinted in Oxford Dictionary of Nursery Rhymes 317 (1966 ed.), was bare. Tardiff retained counsel, disclosed his peccadillos to the United States Attorney, and notified his erstwhile clients that their funds had vanished.

II. Discussion

On appeal, defendant challenges three separate rulings made in the course of compiling the GSR. He also attempts to challenge the lower court's failure to depart downward. We deal with these points in sequence. ²

A. Amount of Loss

In respect to fraud crimes, the applicable offense level increases in proportion to the monetary magnitude of the fraud. Here, the district court found that the amount of loss to investors exceeded $800,000 and increased the offense level accordingly. See U.S.S.G. § 2F1.1(b)(1)(L) (in respect to fraud crimes, add 11 levels if the loss is more than $800,000 but not more than $1,500,000). Tardiff demurs. His counsel presses his objection from several directions, in a manner reminiscent of an all-out attack on a wagon train. We have managed to pluck four arrows from amidst the war whoops. Without exception, these arrows fly wide of the mark.

1. Right of Rebuttal. Tardiff insists that he was not given a sufficient opportunity either to rebut the assertions contained in the presentence investigation report (PSI Report) or to counter the impressions that the district court gleaned from certain victim impact statements presented in conjunction therewith. The record belies his claim.

The PSI Report was completed on July 9, 1991. It incorporated the relevant portions of the victim impact statements. The materials were promptly tendered for review. Tardiff sent a ten-page reply to the probation officer in July. On August 2, his counsel made extensive written objections to the PSI Report. The defense also moved to postpone sentencing because Tardiff "need[ed] more time to prepare his response." The motion was granted and sentencing was delayed until September 20, 1991. The defense used the time to advantage, filing a supplementary rejoinder to the PSI Report on August 20, 1991. The probation officer answered the defendant's objections point by point. The last addendum to the PSI Report was delivered to the defense on September 5--more than two full weeks before the sentencing hearing.

The sentencing hearing was convened on September 20. The prosecutor pulled no rabbits out of his hat. He merely presented the same information that the defense had previously received and reviewed. The defendant did not move for a further continuance. He did not request an evidentiary hearing. He did not subpoena any witnesses or offer any evidence. In short, the defendant did not seek in any way to secure a further right of rebuttal.

It is clear that a defendant is not automatically entitled to a full-blown evidentiary hearing at the time of sentencing. See, e.g., United States v. Shattuck, 961 F.2d 1012, 1014-15 (1st Cir.1992) ("The denial of an evidentiary hearing on a sentencing guideline issue is reviewable only for 'abuse of discretion.' "); United States v. Upshaw, 918 F.2d 789, 791 (9th Cir.1990) ("An evidentiary hearing may be conducted by the district court in its discretion [at the time of sentencing], but such a hearing is not mandatory."), cert. denied, --- U.S. ----, 111 S.Ct. 1335, 113 L.Ed.2d 266 (1991). It is just as clear that, at a bare minimum, he who expects to receive a discretionary dispensation must first seek it. Thus, the failure to ask the district court to convene an evidentiary hearing ordinarily spells defeat for a contention that one should have been held. See United States v. Wells Metal Finishing, Inc., 922 F.2d 54, 58-59 (1st Cir.1991); ("Due process does not entitle the defendant to an evidentiary hearing where the defendant has failed to request one."); United States v. Rigby, 896 F.2d 392, 395 (9th Cir.1990) (similar); see generally Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1120 (1st Cir.1989) ("[W]e regularly turn a deaf ear to protests that an evidentiary hearing should have been convened but was not, where, as here, the protester did not seasonably request such a hearing in the lower court."). Tardiff's case is engulfed within this generality.

Tardiff's claim that the court should have continued the sentencing hearing to afford him more of an opportunity to rebut the prosecution's evidence is equally specious. In the first place, Tardiff asked for, and received, a continuance of over five weeks. He did not request a further continuance. In the second place, the evidence presented at the sentencing hearing came as no surprise: Tardiff and his counsel had reviewed it well in advance. There was enough time to prepare a rebuttal. Lastly, even if a defendant is faced at sentencing with information that he has not had a chance to rebut--a situation that does not exist in this case--we think it incumbent upon the defendant to ask for a continuance then and there. After all, district judges are not mind readers. When, as here, the defense is confronted with the government's proffer at a sentencing hearing and does not move for a continuance, a later claim of surprise will not be countenanced. See, e.g., United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989).

To sum up, Tardiff waived the right to complain about the lack of either an evidentiary hearing or a continuance. At any rate, he had ample opportunity to rebut the evidence massed against him at sentencing. No more was legally required. ³ See U.S.S.G. § 6A1.3 (providing that, when a factor important to sentencing is in dispute, the parties "shall be given an adequate opportunity to present information to the court regarding that factor").

2. Right to Confrontation. Next, Tardiff argues that the district court, which did not take testimony but based its assessment of the loss on the PSI Report, victim impact statements, and the like, violated the Confrontation Clause of the federal Constitution. ⁴ The short answer to this plea is that Tardiff, although citing the Confrontation Clause at the time of sentencing, never requested an evidentiary hearing, thereby waiving the point. The slightly longer--and more definitive--answer is that, in the usual case, a defendant's Sixth Amendment right to confront the witnesses against him does not attach during the sentencing phase. See, e.g., United States v. Kikumura, 918 F.2d 1084, 1102-03 & n. 19 (3d Cir.1990) (declining to apply Confrontation Clause to guideline sentencing); United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990) (similar), cert. denied, --- U.S. ----, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991); United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir.1990) (similar), cert. denied, --- U.S. ----, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991). ⁵ There is nothing about this case that warrants some special prophylaxis.

3. The Quality of the Proof. In a sally that bears a family resemblance to his Confrontation Clause foray, Tardiff lambastes the quality of the evidence upon which the sentencing court based its evaluation of the loss. This offensive does not get him very far.

At sentencing, "the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." U.S.S.G. § 6A1.3(a). Under this generous formulation, the sentencing court has broad discretion to determine what data is, or is not, sufficiently dependable to be used in imposing sentence. United States v. Figaro, 935 F.2d 4, 8 (1st Cir.1991); United States v. Iguaran-Palmar, 926 F.2d 7, 10 (1st Cir.1991). The court may, of course, rely on hearsay evidence, even hearsay not previously tested in the crucible of cross-examination. See United States v. Aymelek, 926 F.2d 64, 68 (1st Cir.1991); United States v. Zuleta-Alvarez, 922 F.2d 33, 36-37 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct....