JOSE LUIS HERNANDEZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-6586 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 7-24) is unreported, but the judgment is noted at 912 F.2d 1466 (Table). JURISDICTION The judgment of the court of appeals was entered on August 13, 1990. A petition for rehearing was denied on September 12, 1990. The petition for a writ of certiorari was filed on December 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's failure to require disclosure of an investigative report prepared by a government witness was harmless error. 2. Whether the district court erred in refusing to order full disclosure of medical records concerning the treatment of a government witness for substance abuse. 3. Whether the district court erred in determining that petitioner was not entitled to a reduction in his offense level under the Sentencing Guidelines based on his acceptance of responsibility for his criminal conduct. 4. Whether the district court erred in refusing to depart downward from the applicable Guideline range based on petitioner's claim that he was unable to produce the quantity of marijuana he had negotiated to supply. STATEMENT 1. In November 1988, Mark MacDonell met with petitioner in Houston, Texas, and asked petitioner if he could obtain 2,000 pounds of marijuana. Petitioner replied that he could. MacDonell relayed this information to his brother-in-law, William Clark. Clark located two prospective purchasers for the marijuana, Bob Parsons and Freddie Soto. In fact, both Parsons and Soto were federal agents. MacDonell and Parsons met with petitioner on January 30, 1989, to discuss the marijuana sale. Petitioner provided Parsons with a sample of marijuana and told Parsons that he hoped to have the marijuana to carry out the 2,000-pound transaction within the next few days. The planned sale never took place, however. Pet. App. 8-9. Following a jury trial in the United States District Court for the Western District of Louisiana, petitioner was convicted of conspiracy to possess marijuana with intent to distribute it, in violation of 21 U.S.C. 846. He was sentenced to 97 months' imprisonment. The court of appeals affirmed. Pet. App. 7-24. 2. Petitioner raised several claims in the court of appeals. First, he argued that the district court's failure to require disclosure of an investigative report prepared by Agent Soto, who testified at petitioner's trial, was a violation of the Jencks Act, 18 U.S.C. 3500. /1/ The court of appeals held that even if Soto's report qualified as a "statement" subject to disclosure under the Jencks Act, the district court's refusal to require the government to turn over the report was harmless error. The court noted that the report's only possible value to petitioner would have been "for impeachment purposes." Pet. App. 13. Because Soto did not mention petitioner during his testimony on direct examination, /2/ and petitioner's defense at trial was that he had never intended to produce the marijuana and was planning only to cheat the prospective purchasers out of their money, the court concluded that petitioner had no need to impeach the agent's trial testimony. Although the court of appeals "would have preferred" that the district court conduct an in camera inspection of the report, Pet. App. 14, it found that the district court's failure to require disclosure of the report did not have a "substantial influence" on the judgment. Pet. App. 14-15. Petitioner also argued that the district court erred in not requiring full disclosure of medical records prepared by a treatment center where MacDonell, who testified for the government at petitioner's trial, had been treated for addictions to drugs and alcohol. The district court conducted an in camera inspection of the records and determined that the only item "of any significance that could be remotely related" to petitioner's case was the information that MacDonell had reported experiencing various symptoms, including "blackouts." MacDonell consented to the release of this information. The district court concluded that further disclosure was barred by 42 U.S.C. 290ee-3, which provides that medical records maintained in connection with any federally assisted drug abuse program are confidential and may be released only upon a showing of "good cause." /3/ Pet. App. 15-16. The court of appeals rejected petitioner's claim that he was entitled to the entire medical record for use in cross-examining MacDonell at trial. Noting that "MacDonell's drug and alcohol problems were fully disclosed" at trial and that petitioner's counsel cross-examined MacDonell concerning the effects of his addictions, the court of appeals concluded that the district court's refusal to require disclosure of the entire medical record "properly balanced MacDonell's privacy interests with (petitioner's) rights." Pet. App. 15-18. Petitioner also challenged his sentence, arguing that the district court erred in determining that he was not entitled to a reduction in his offense level under the Sentencing Guidelines based upon his acceptance of responsibility for his criminal conduct. /4/ The district court found that petitioner's acknowledgment, after his conviction, of his involvement in the conspiracy was insufficient to justify a reduction for acceptance of responsibility. The court of appeals upheld the district court's "factual determination," concluding that it was "not without foundation." Pet. App. 18-20. The court of appeals also rejected petitioner's argument that the district court should have departed downward from the applicable Guideline range because he was not reasonably capable of producing 2,000 pounds of marijuana. /5/ The court concluded that the district court was not legally required to depart from the Guidelines. Noting that the district court's decision not to depart rested largely on its evaluation of the credibility of the witnesses, the court of appeals declined to disturb the lower court's finding that petitioner was able to deliver 2,000 pounds of marijuana. Pet. App. 20-24. ARGUMENT 1. Petitioner renews his contention (Pet. 3-4) that the district court's failure to require disclosure of Agent Soto's investigative report violated the Jencks Act. Petitioner does not, however, suggest any way in which disclosure of the report could have aided his defense. As the court of appeals explained, Soto did not mention petitioner in his direct testimony, and Soto conceded on cross-examination that he had never met, spoken with, or seen petitioner before trial. Moreover, nothing in Soto's testimony related in any way to petitioner's defense at trial that he had never actually intended to carry out the marijuana transaction. Because petitioner could not have furthered his defense by using the report to impeach Soto's testimony, the court of appeals correctly concluded that any Jencks Act violation was harmless. See United States v. Osgood, 794 F.2d 1087, 1092 (5th Cir.) (failure to require disclosure of investigative reports was harmless error where reports "would have had no impeachment value whatsoever"), cert. denied, 479 U.S. 994 (1986). /6/ 2. Petitioner contends (Pet. 5-6) that the district court's refusal to require full disclosure of medical records concerning MacDonell's treatment for substance abuse deprived him of "relevent (sic) impeachment material," in violation of his Sixth Amendment rights to compulsory process, assistance of counsel, and confrontation of adverse witnesses. Under 42 U.S.C. 290ee-3(b)(2)(C), a court may order disclosure of medical records maintained in connection with a federally assisted substance abuse program only for "good cause." This provision and the regulations implementing it are intended to encourage patients to seek treatment for substance abuse by ensuring the confidentiality of medical records concerning that treatment, see 42 C.F.R. 2.3(b)(2); United States v. Cresta, 825 F.2d 538, 552 (1st Cir. 1987); consequently, there is a "strong presumption against disclosing" such medical records, Cresta, 825 F.2d at 551; see also United States v. Graham, 548 F.2d 1302, 1314 (8th Cir. 1977). The district court conducted an in camera review of the medical records and determined that the only information that was "remotely related" to petitioner's case was one sentence in the medical report which stated that MacDonell had reported experiencing various symptoms as a result of drug and alcohol abuse. Pet. App. 16. That information was disclosed to petitioner with MacDonell's consent, and MacDonell was questioned extensively on direct and cross-examination concerning the effects of his addictions to drugs and alcohol. Pet. App. 17-18. The district court struck a proper balance between petitioner's Sixth Amendment rights and the public interest in maintaining the confidentiality of MacDonell's medical records. See Pennsylvania v. Ritchie, 480 U.S. 39, 60-61 (1987) (defendant's right to fair trial fully protected by submission of confidential records to trial court for in camera review). 3. Petitioner contends (Pet. 6-7) that the district court erred in refusing to grant him a reduction in his offense level under the Sentencing Guidelines based on his acceptance of responsibility for his criminal conduct. The district court's finding concerning petitioner's acceptance of responsibility is "largely dependent on credibility assessments," Pet. App. 19, and is therefore "entitled to great deference on review." Sentencing Guidelines Section 3E1.1, Application Note 5; see United States v. Castillo-Valencia, 917 F.2d 494, 500 (11th Cir. 1990), cert. denied, No. 90-6775 (1991); United States v. Fabregat, 902 F.2d 331, 334 (5th Cir. 1990); United States v. Royer, 895 F.2d 28, 29-30 (1st Cir. 1990); United States v. Evidente, 894 F.2d 1000, 1002 (8th Cir.), cert. denied, 110 S. Ct. 1956 (1990). The district court correctly concluded that petitioner's belated admission of his participation in the conspiracy -- after he had been tried and convicted -- was insufficient to demonstrate his acceptance of responsibility for his conduct. See United States v. Thomas, 870 F.2d 174, 177 (5th Cir. 1989) ("A defendant who maintains her innocence at trial, and then purports to accept responsibility afterward, may have a difficult time persuading the trial judge that her later position is sincere rather than merely convenient."); see also United States v. Lueddeke, 908 F.2d 230, 235 (7th Cir. 1990) (defendant properly denied reduction for acceptance of responsibility when he pleaded guilty "only after being confronted with evidence of his (crime)"); United States v. Figueroa, 900 F.2d 1211, 1219 (8th Cir.) (court need not accept a defendant's "untimely and insincere" apology), cert. denied, 110 S. Ct. 3228 (1990); see also United States v. Trujillo, 906 F.2d 1456, 1461-1462 (10th Cir.), cert. denied, 111 S. Ct. 396 (1990); United States v. Carroll, 893 F.2d 1502, 1511-1512 (6th Cir. 1990). /7/ 4. Finally, petitioner contends (Pet. 7-8) that the district court erred in refusing to depart from the applicable Guideline range. Petitioner claims that a downward departure was warranted because he was unable to produce the 2,000 pounds of marijuana he negotiated to supply, and that there was not "substantial evidence in the record" to support the district court's finding to the contrary. Petitioner is wrong. The district court found, after hearing petitioner's testimony and the testimony of other witnesses, /8/ that petitioner was capable of producing the 2,000 pounds of marijuana that he had agreed to supply, and the court of appeals upheld that finding. There is no basis for this Court to review the district court's factual finding on this issue. See United States v. Doe, 465 U.S. 605, 614 (1984). But even if the district court had found that petitioner could not have produced the negotiated quantity of marijuana, the court would not have been required to depart below the Guideline range on that basis. See note 5, supra; United States v. Alston, 895 F.2d 1362, 1370 n.8 (11th Cir. 1990); United States v. Thomas, 870 F.2d at 176. In any event, the courts of appeals have uniformly held that a sentencing court's refusal to depart from the applicable Guideline range is unreviewable. See, e.g., United States v. Tucker, 892 F.2d 8, 9-11 (1st Cir. 1989); United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.), cert. denied, 110 S. Ct. 553 (1989); United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989); United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 111 S. Ct. 65 (1990); United States v. Draper, 888 F.2d 1100, 1105 (6th Cir. 1989); United States v. Franz, 886 F.2d 973, 976 (7th Cir. 1989); United States v. Evidente, 894 F.2d 1000, 1003-1005 (8th Cir.), cert. denied, 110 S. Ct. 1956 (1990); United States v. Morales, 898 F.2d 99, 102-103 (9th Cir. 1990); United States v. Soto, 918 F.2d 882, 883 (10th Cir. 1990); United States v. Fossett, 881 F.2d 976, 979-980 (11th Cir. 1989); United States v. Ortez, 902 F.2d 61, 63-64 (D.C. Cir. 1990). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney APRIL 1991 /1/ Section 3500(b) provides, in pertinent part: After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement * * * of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. /2/ Soto's testimony mainly concerned his meetings and conversations with petitioner's co-defendant, William Clark. On cross-examination, Soto admitted that he had never met, spoken with, or seen petitioner before trial. Pet. App. 13-14. /3/ Under 42 U.S.C. 290ee-3(b)(2)(C), drug abuse treatment records may be disclosed "(i)f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor." /4/ Under Sentencing Guidelines Section 3E1.1, a defendant who "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct" is entitled to a two-level reduction in his offense level. /5/ At the time petitioner was sentenced, Application Note 1 to Sentencing Guidelines Section 2D1.4 provided, in pertinent part: If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. Where the defendant was not reasonably capable of producing the negotiated amount, the court may depart and impose a sentence lower than the sentence that would otherwise result. The application note was later amended to require the sentencing court to "exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing." /6/ Petitioner is incorrect in claiming (Pet. 4) that the failure to conduct an in camera inspection is not subject to harmless error analysis. See United States v. Gaston, 608 F.2d 607, 612 (5th Cir. 1979). /7/ Petitioner points to nothing in the record supporting his claim (Pet. 7) that the district court "confused 'acceptance of responsibility' with 'substantial assistance.'" /8/ MacDonell testified that petitioner told him that he was capable of producing 2,000 pounds of marijuana. Agent Parsons testified that petitioner had made detailed arrangements concerning the 2,000-pound deal. The district court also noted that petitioner had stated, after making arrangements regarding the deal over the telephone, that he had been speaking to "one of my truck drivers." Pet. App. 22-23 & n.10.