USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1246

UNITED STATES,

Appellee,

v.

JUAN SANTIAGO-GONZALEZ,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

___________________

____________________

Before

Cyr, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and McAuliffe,* District Judge.

______________

_____________________

Luis F. Abreu-El as on brief for appellant.

___________________
Guillermo Gil,
______________
Espinosa,
________

Senior

United

Litigation

States
Counsel

Attorney, Jos
A. Quiles_________________
and

Miguel A. Pereira,
___________________

Assistant United States Attorney, on brief for appellee.

____________________

September 25, 1995

____________________

____________________

Of the District of New Hampshire, sitting by designation.

McAULIFFE,
McAULIFFE,

District Judge.
District Judge.
_______________

Juan

Santiago-Gonz lez

("defendant")

appeals

from

the

district

enforce a term of his written plea agreement

ostensibly required the

departure

under

Guidelines.

of his

court's

refusal

to

("Agreement") which

government to file a motion for downward

5K1.1

of

the

He also questions the

United

States

Sentencing

district court's calculation

base offense level under the Guidelines.

For the reasons

set forth below, we affirm.

I.
I.

On

July

2,

1992,

indicted on four counts of

Seguros

("CIS")

insurance company

of

BACKGROUND
BACKGROUND
__________

defendant and

three

others

were

defrauding the Corporaci n Insular de

$1,401,000.00.

CIS,

chartered in the Commonwealth

was controlled by the defendant

and two of three

privately

held

of Puerto Rico,

co-defendants.

Defendant was employed as

CIS's vice president for claims.

Two

of his co-defendants served as CIS's president and vice president

for

finance

and operations,

attorney, was engaged

respectively,

in private practice.

and

the third,

an

The three corporate

officers were effectively able to manage the company's assets and

authorize payment of claims made against its policies.

From

his

colleagues

Defendant,

closed

jointly

as vice

claim files

those accounts.

assigned

October of 1991 until May

The

ran

president

a false

for

so fictitious

of 1992, defendant and

insurance

claim

claims, reopened

claims could be

vice president for finance

previously

made against

established and

cash reserves to those reopened accounts.

-2-

scheme.

The attorney

then

submitted

clients,

fictitious

claims

behalf

of

non-existent

which were paid by CIS and charged against the reserves

assigned to the reopened accounts.

checks

on

drawn on

CIS's

The false claims were paid by

bank account

and

made payable

attorney, as counsel for the fictitious claimants.

cashed the checks,

distributed the

kept part

of the proceeds

remainder among the three

to

the

The attorney

for himself,

and

CIS officers, usually

in equal shares.

Defendant's collaborators

were charged, but defendant

trial.

Two

days

accepted a plea

motion

contingent

bargain.

downward

on

defendant's

and

trial,

polygraph

departure

entered

18 U.S.C.

under

anticipated

honest

examination

appropriate."

and stood

defendant reconsidered

In exchange for

assistance

Additionally, the plea agreement

after they

defendant's plea

and

of

agreed to exercise its discretion to file

for

forthright,

entered a not guilty plea

into his

guilty, the government

pled guilty soon

"should

U.S.S.G.

5K1.1,

"completely

truthful,

and

information."

required defendant to submit to

the

United

States

deem

it

After executing the Agreement, defendant dutifully

pleas of guilty to

1341; 18 U.S.C.

mail fraud and

2.

aiding and abetting.

In

late

April

1993,

the

government

deemed

it

appropriate for defendant to submit to a polygraph examination in

order to resolve some

doubt about whether he was

being entirely

truthful and cooperative in the ongoing investigation.

submitted to the polygraph

and, in the opinion of

Defendant

the examiner,

-3-

the test results indicated deception.

Accordingly, at sentencing

the government

U.S.S.G.

move for

a downward

testimony of

addition,

his

the

district

court,

accomplices, found

participant

in the

relying

that defendant

scheme, as

he

adjusting his offense level downward as

trial

departure under

5K1.1.

In

minor

refused to

claimed.

on

the

was not

Instead of

defendant had hoped, the

judge upwardly adjusted his base offense level, relying on

U.S.S.G.

2F1.1(2)

(more than minimal planning)

and U.S.S.G.

3B1.3 (abuse of position of trust).

II.
II.

On

challenges

government's

DISCUSSION
DISCUSSION
__________

appeal, defendant

the

district

obligation

raises

court's

to

move for

two issues.

refusal

downward

to

First,

enforce

he

the

departure under

5K1.1.

Next, he questions the district court's calculation of

his base offense level under the Guidelines.

A.
A.

Denial
Denial

of
of

Specific
Specific

Performance
Performance

of
of

the
the

Plea
Plea

Agreement
Agreement

Defendant says

providing truthful

that by

meeting with

the prosecution,

information, and submitting to

the requested

polygraph examination, he substantially performed his obligations

under

the Agreement, thereby

argues

was

earning the departure

that the government's obligation to file a

contingent only

upon his providing

motion.

He

5K1.1 motion

"truthful information,"

which, in substance, he did.

The

Agreement provides that "if in

[polygraph] examiner your answers

the opinion of the

indicate deception you will be

-4-

in

breach of

this

agreement."

polygraph examiner was of the

Defendant concedes

questions truthfully.

was

simply an

obligation to

additional

in fact he did

But, he says, successfully

passing a polygraph examination was not a

the government's

the

opinion that his answers indicated

deception, and he does not seriously dispute that

not answer all

that

condition precedent to

move for downward

undertaking intended

departure; it

to provide

the

government with some means of gauging the extent of his "truthful

cooperation" (which was the condition precedent).

___

His failure to

answer every question truthfully during the polygraph examination

may have frustrated the government's desire

for "corroboration,"

and the absence of corroboration may have devalued

cooperation"

by

substantially

some degree,

he

argues,

"truthfully cooperated."

He

but he

his "truthful

nevertheless

reasons that

he at

least earned the departure motion, and says that it is the extent
______

of

the

departure

that should

reflect

his

less than

perfect

performance.

We have held that plea

safeguards

agreements "must be attended by

to insure the defendant what is reasonably due in the

circumstances."

United States v.
_____________

Baldacchino, 762 F.2d 170, 179

___________

(1st

Cir. 1985)

(1971)).

(citing Santobello
__________

v. New York, 404

_________

U.S. 257

We have also recognized that principles of contract law

often provide useful references

when construing plea agreements.

See United States v.

___ _____________

Anderson, 921 F.2d 335, 337 (1st Cir. 1990)

________

("It is black letter

law that plea agreements, 'though

parcel

of criminal

jurisprudence,

-5-

are subject

part and

to contract-law

standards

in

certain

respects.'") (quoting

United States
______________

v.

Hogan, 862 F.2d 386, 388 (1st Cir. 1988)); see also United States
_____
________ _____________

v.

Papaleo,
_______

853 F.2d

16, 19

approach to plea agreements

(1st

Cir. 1988)

("A contractual

ensures not only that constitutional

rights are respected, but also that the integrity of the criminal

process is upheld."); United States v. Gonz lez-S nchez, 825 F.2d

_____________
________________

572, 578

as

(1st Cir. 1987) ("Contractual

principles apply insofar

they are relevant to determining what the government owes the

defendant.").

Applying contract-law principles in this case, we first

turn

to the specific language

of the Agreement.

See Anderson,
___ ________

921 F.2d at 338.

That language is unambiguous:

You
do

will submit, if you are requested to

so,

when

polygraphic
test)

requested
examination

should the

appropriate.
in

the

to

do

so,

(lie

to

detector

United States

deem it

If you fail to submit or if

opinion

of

the

examiner

your
your

answers indicate deception you will be in

answers indicate deception you will be in
breach of
breach of

this agreement.
this agreement.

(emphasis in

original)

This

plea

colloquy between

defendant's

understood

motion

obligation was

was

examination

own

defendant and the

comments

that the

leave

little

discussed during

trial judge.

doubt

government's obligation

conditioned

if

thoroughly

asked,

opinion of the examiner":

on

and

his

submitting

passing that

that

to file

to

examination

the

Indeed,

he

fully

5K1.1

polygraph

"in

the

THE COURT:
of

the

. . And if in

examiner

deception, you

the opinion

your answers

will be in

indicate

breach of the

-6-

agreement.

Have you understood what that

means?

THE DEFENDANT:

THE COURT:
pass the
understood

Yes your Honor.

That
lie

means that if you don't

detector test

that

you

are not

it will

be

providing

truthful

and

honest

assistance

and

information that is expected of you.

THE DEFENDANT:

The

given

its

I understand, your Honor.

only plausible

unambiguous

interpretation

language

and

of the

defendant's

Agreement,

acknowledged

understanding, is that it means exactly what it says.

States
______

v.

Atwood
______

963 F.2d

476,

interpreted plea agreement to

defendant

signed and

Defendant does not

in bad

faith or

interpretation

479

(1st

it in

the presence

claim that the examiner's

was

based on

of the

means of determining

anything but

examination results.

that because a polygraph

Cir. 1992)

mean precisely what it

agreed to

See United
___ ______

(Court

said where

of judge).

opinion was rooted

his own

objective

Rather,

he argues

examination is an inherently unreliable

truth, and such

results are not

generally

admissible in courts of law, that part of the Agreement requiring

him to submit to and pass the test should be deemed void.

But defendant was not

of the Agreement.

agreed

to

the

defendant's

truthful

In this case both defendant and the government

polygraph's

performance

would be

"required" to accept those terms

of

measured

use

his

as

obligation

by the

presumably had sufficient confidence

purpose.

Having

agreed to

the

to

government.

be

by

which

completely

Both

parties

in its reliability for that

the test,

-7-

standard

whatever

its scientific

weaknesses might be,1 defendant

cannot now be heard to

say that

his own

promise was illusory or that he was somehow misled.

can

credibly

he

argue

decision not to file

that

the

government's

discretionary

the departure motion was made

or without rational basis.

Nor

in bad faith

Defendant's integrity as a

possible

witness in

other matters was certainly undermined by his failure

to

questions truthfully.

answer

Catalucci,
_________

not

See,
___

e.g., United States v.

____ ______________

36 F.3d 151 (1st Cir. 1994).

Besides, defendant does

seriously

contest

questions truthfully.

the fact

that

he

did

not answer

all

Because the

to

be

defendant was in breach

"completely truthful,"

exercise

the

its discretion not to

under Guideline

B.
B.

government

of his obligation

was entitled

to

file a downward departure motion

5K1.1.

District Court's Calculation of

District Court's Calculation of

Defendant's Total
Defendant's Total

Offense Level
Offense Level

The

district court set defendant's total offense level

under the Guidelines

at 15,

in part by

base

offense level

than

minimal planning) and U.S.S.G.

of

trust).

downward

At

pursuant to

the same

adjustment

____________________

under

time,

upwardly adjusting

both U.S.S.G.

2F1.1(2) (more

3B1.3 (abuse of a position

the district

U.S.S.G

his

3B1.2

court

(minor or

refused a

minimal

We

agree with the conclusion of the Court

of Appeals for the

Third Circuit in United States v. Swinehart, 614 F.2d 853 n.2 (3d
_____________
_________
Cir.),

cert. denied,
_____________

449

U.S.

827

(1980):

"Although

infallibility of polygraphs is arguable, we decline to

the Government cannot rely

on the tests where the

the

hold that

parties agree

to such reliance in a plea bargain."

-8-

participant in

offense).

was clearly erroneous.

Defendant argues

Again, we disagree.

that the calculation

"Once the court of

appeals has defined the guideline's

meaning and scope, it reviews the sentencing court's fact finding

only for clear error."

701

United States v. St. Cyr, 977

_____________
_______

(1st Cir. 1992) (citing

United States v.
_____________

Tardiff, 969 F.2d

_______

1283, 1289 (1st Cir.

1992)); United States v. Connell,

_____________
_______

191,

1992); see also

_________

197

Sierra,
______

(1st Cir.

938 F.2d

1-2 (1st Cir.

F.2d 698,

United States
_____________

960 F.2d

v. Rosado_______

1991) ("[D]efendant

. .

. can

prevail on appeal only by demonstrating that the district court's

determination

as

to

his

role

in

the

offense

was

clearly

erroneous.") (per curiam); United States v. Garc a, 954

_____________
______

F.2d 12,

18

review a

(1st

sentencing

Cir.

1992) ("Absent

court's

mistake

role-in-the-offense

of law,

we

determination only

for

clear

error.") (citing United States

_____________

(1st Cir. 1991));

(1st

United States
_____________

Cir. 1991)).

plausible

choice

view

of

among

erroneous."

Additionally,

the

v. Dietz, 950
_____

v. Akitoye, 923
_______

supportable

F.2d 221,

"where there is

circumstances,

227

more than one

the sentencing

alternatives

United States v. Ruiz, 905

_____________
____

F.2d 50, 52

cannot

be

court's

clearly

F.2d 499, 508 (1st Cir.

1990); see also Rosado-Sierra, 938 F.2d at 2.

________ _____________

The

supported

district court's

by the record,

determination

and a two-level

more than minimal planning under

erroneous.

minimal

The

distinction

this case

is

upward adjustment for

2F1.1(b)(2)(A) was not clearly

between "minimal"

planning" as those terms

in

are used in

and "more

than

the Guidelines is

-9-

illustrated by the example given in the accompanying comment:

"a

single taking accomplished by a false book entry would constitute

only minimal planning .

money, each

. . [while] several instances

accompanied by false entries

than minimal planning]."

of taking

[would constitute more

1B1.1(f), comment.

Here, the record

reveals a number of instances of taking money by false entries as

part of an overall scheme to defraud.

More than minimal planning

was

obviously required

claims scheme.

to

carry out

See United States

___ _____________

(1st Cir. 1994) ("[W]e are not

more

than

minimal

planning

conclusion that the defendant's

'spur of the

F.2d

this sophisticated

v. Brandon, 17 F.3d
_______

false

409, 459

inclined to reverse a finding

unless the

evidence

compels

889 F.2d 357, 361

Cir. 1989)); cf. also

__ ____

minimal planning.").

fraudulent loan would

956

United States v. Fox,

_____________
___

(1st Cir. 1989) ("[W]e cannot

even obtaining one

the

actions were purely opportune or

moment.'") (citing United States v. Gregorio,

______________
________

341, 343 (1st

of

conceive of how

not require more

than

The trial judge properly concluded from the

undisputed facts that defendant's participation in at least seven

separate

"false entries"

approximately

for the purpose

of defrauding

CIS of

$1.4 million, required more than minimal planning,

and we will not disturb that finding on appeal.

Defendant also asserts that the district court erred by

increasing his offense level by two based on his alleged abuse of

position

of

trust,

pursuant

to

U.S.S.G.

3B1.3.

guideline calls for an upward adjustment where:

[T]he
public

defendant
or

abused

private

trust,

-10-

position
or

used

of
a

That

special

skill,

in

manner

significantly facilitated

that

the commission

or concealment of the offense.

U.S.S.G.

3B1.3.

When

under

as

reviewing

a district

court's

upward adjustment

3B1.3, we first determine the legal meaning of terms such

"position

of

private

trust,"

then

we

ask

"whether

the

defendant actually used the position to facilitate or conceal the

offense

. . . and if so, whether the position contributed to the

misconduct

F.2d

in a significant way."

1283,

1289

(1st

determination on each

Cir.

United States v. Tardiff, 969

_____________
_______

1992).

point is of course

and is reviewed only for clear error.

Defendant

The

unquestionably

district

court's

afforded due deference

Id.
__

held a

position

of private

trust.

As

we

have stated

before,

"'the primary

trait

that

distinguishes a person in a position of trust from one who is not

is

the

extent to

which the

position

commit a difficult-to-detect wrong.'"

v.

Hill, 915
____

officer of

not only

F.2d 502,

enabled him

same

freedom to

Id. (citing United States

__
_____________

Cir.

1990)).

the corporation, occupied a high

over the payment of

the

505 (9th

provides the

to exercise broad

Defendant, an

level position that

discretionary authority

claims made against CIS's policies,

time, allowed

him

to

"commit

difficult

to

but, at

detect

wrongs," id., such as the fraudulent scheme charged in this case.

___

The record establishes that defendant actually used his

position to facilitate or conceal the crime, and so, the position

contributed to

the misconduct.

Defendant conceded,

after all,

-11-

that as

vice president for claims he

cases and approved payment

reopened previously closed

of known false claims filed

in those

cases.

Furthermore, it is self-evident that defendant's position

within

the company enabled him

and attempted concealment of that

to facilitate both the execution

scheme.

The district

court's

finding

that defendant

warranting

an

upward

abused

his position

adjustment

of private

under

3B1.3,

trust,

was

fully

supported by the record.

The district court's decision

under

also

3B1.2 (minor

or minimal participant

fully justified by the

for a

not to downwardly adjust

record.

U.S.S.G.

downward adjustment where defendant's

the offense . .

average

is

3B1.2 provides

role "in committing

. makes him substantially less culpable than the

participant."

participant

in the offense)

to perform

The scheme

involved here

significant and

required each

necessary role;

the

contribution of one participant was no less significant than that

of

another in effecting

court

less

the scheme.

correctly determined that

culpable

than his

Accordingly, the district

defendant was not substantially

associates and

was

not entitled

to a

downward adjustment.

III.
III.

For the

CONCLUSION
CONCLUSION
__________

reasons stated

court in all respects.

AFFIRMED.
________

-12-

above, we affirm

the district