On Appeal From the United States District Court For the Middle District of Pennsylvania. (D.C. Criminal Action No. 90-00239)
Before: Mansmann, Cowen and Roth, Circuit Judges
Henry G. Barr appeals to this court the judgment of conviction and sentence entered in the district court on May 30, 1991. Barr was indicted on August 10, 1990, by a federal grand jury sitting in Harrisburg, Pennsylvania. The indictment charged Barr with making a false written statement in violation of 18 U.S.C. § 1001 (1988) (Count One); a false oral statement in violation of 18 U.S.C. § 1001 (1988) (Count Two); conspiracy to possess cocaine in violation of 21 U.S.C. § 846 (1988) (Count Three); and possession of cocaine in violation of 21 U.S.C. § 844 (1988) (Count Four). At his arraignment on August 22, 1990, Barr entered a plea of not guilty. His trial began on February 4, 1991. On February 7, the jury returned a verdict of guilty on all counts.
The district court sentenced Barr to a term of sixteen months imprisonment on Counts One and Two, and twelve months imprisonment on Counts Three and Four, to be served concurrently. Following this period of incarceration, Barr was sentenced to a two-year term of supervised release. A fine of $2,500 was also imposed for each of the counts.
On June 6, 1991, Barr appealed his conviction and sentence to this court. We have jurisdiction of this appeal pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 1291. Barr cites eight grounds for the appeal: (1) the false statements charged in Counts One and Two fall within the "exculpatory no" doctrine, and so cannot provide a basis for conviction under 18 U.S.C. § 1001; (2) there was a fatal variance between Count Three of the indictment, which charged a single conspiracy to possess cocaine, and the proof at trial, which demonstrated multiple conspiracies; (3) the evidence was not sufficient to establish beyond a reasonable doubt that the substance in question in Count Four was cocaine; (4) Count Two of the indictment was multiplicitous; (5) the district court erred in denying discovery of documents relevant to the claim of selective prosecution; (6) Count Four should have been severed from the other three counts; (7) the district court's upward departure of four guideline levels in sentencing Barr was in violation of federal law; and (8) the district court erred in failing to adjust Barr's sentence for acceptance of responsibility.
After considering each of Barr's first six grounds for appeal, we find them to be without merit. We will discuss in detail two of these grounds, the "exculpatory no" doctrine, and the question of whether the proof under Count Three demonstrated multiple conspiracies, rather than a single conspiracy, to possess cocaine. With regard to the sentencing claims, we reject Barr's argument that the district court erred in failing to adjust Barr's sentence for acceptance of responsibility. For the reasons we will set forth below, however, we conclude that the district court in sentencing Barr failed to give him the requisite notice of its intent to depart from the sentencing guidelines. Consequently, we will vacate Barr's sentence and remand the case to the district court for resentencing.
The Relevant Facts of Record.
The relevant facts may be summarized as follows. From September 6, 1988, to May 12, 1989, Henry Barr served as an Assistant to the Attorney General of the United States in Washington, D.C. In this position Barr acted as a liaison with law enforcement agencies and carried out assignments, given to him by the Attorney General, which related to pending matters within the criminal and intelligence communities. In addition, Barr was responsible for briefing the Attorney General on Foreign Intelligence Security Act cases. Consequently, Barr had access to sensitive information relating to intelligence and law enforcement areas.
Before assuming his duties as Assistant Attorney General, Barr completed Standard Form 171, entitled "Application for Federal Employment." This form includes questions concerning prior criminal convictions but does not address any uncharged or unadjudicated criminal conduct. In addition, persons appointed to sensitive positions in the Department of Justice are usually required to complete Standard Form 86 (SF-86) prior to taking the position. This form includes specific questions concerning the applicant's drug use and offers a warning to the applicant that failure to provide truthful answers could result in criminal prosecution. At the Attorney General's request, the Security Officer of the Department of Justice granted Barr an interim or temporary security clearance, pending the completion of his full-field background investigation. Barr completed the SF-86 form six days after entering on duty as Assistant to the Attorney General.
In response to the SF-86 question, "Do you now use or supply, or within the last 5 years, have you used or supplied marijuana, cocaine, narcotics, hallucinogenics, or other dangerous or illegal drugs?", Barr typed an "X" beneath the word "no." Barr signed the SF-86, certifying that his answers were true.
On November 1, 1988, Barr was interviewed in Washington, D.C., by a Special Agent of the Federal Bureau of Investigation. The Special Agent reviewed the specific questions on the SF-86, and asked Barr if he had ever used illegal drugs. Barr responded that he had not. The Security Officer relied upon Barr's answers recorded on the SF-86 in deciding to grant a temporary clearance. The Security Officer further relied upon the statements made by Barr in his interview with the FBI special agent in granting Barr a final security clearance.
Barr remained at the Department of Justice for approximately nine months. On April 27, 1989, he submitted a letter of resignation to the Attorney General, citing his desire to return to his family in Pennsylvania. The resignation was effective May 12, 1989.
After Barr had left the Department of Justice, information that he had used illegal drugs, specifically cocaine, was disclosed during a federal grand jury investigation into drug use by public officials in Pennsylvania. The evidence indicated that Barr had used cocaine in the years 1984 through 1988, and on at least one occasion in 1989, during his employment as Assistant to the Attorney General. Ultimately, in addition to Barr, two former public officials were charged with drug activities as a consequence of this investigation: Richard L. Guida, former Executive Deputy Attorney General for the Commonwealth of Pennsylvania, and W. Michael Trant, former Deputy Attorney General in charge of legislative liaison for the Pennsylvania Attorney General's Office. Other private citizens were also prosecuted.
At Barr's trial, then-Attorney General Richard Thornburgh testified that, had he known of Barr's past cocaine use, he would not have made Barr part of his staff. The Director of Security for the Department of Justice testified that he would not have approved Barr's interim security clearance and would not have recommended final clearance if he had been aware of Barr's past cocaine use. Testimony was also presented concerning Barr's duties within the Department of Justice. Five other witnesses testified that they had used cocaine with Barr on various social occasions from 1984 to 1989. On February 7, 1991, the jury returned a guilty verdict on all counts.
On May 30, 1991, Barr appeared before the district court for sentencing. The court found that an aggravating circumstance existed which had not adequately been taken into consideration by the Sentencing Commission in formulating the sentencing guidelines, specifically that Henry Barr had held a high-ranking position within the Department of Justice and that criminal activity by public officials tended to erode public confidence in government. As a result, the court concluded that an upward departure of four levels to a guideline range of 10-16 months was appropriate. Barr was sentenced to 16 months imprisonment on both of the felonies and to 12 months imprisonment on both of the misdemeanors, all sentences to run concurrently.
I. The "Exculpatory No" Doctrine.
Counts One and Two of the indictment charged Barr with making a false written statement and a false oral statement to the government in violation of 18 U.S.C. § 1001. The underlying false statements are based on Barr's negative replies to questions concerning his illegal drug use, made both on the Department of Justice Standard Form 86 and in response to the November 1, 1988, questioning by the FBI Special Agent.
A conviction under § 1001 requires that five elements be proved: (1) a statement, (2) falsity, (3) materiality, (4) specific intent, and (5) agency jurisdiction.*fn1 See United States v. Herring, 916 F.2d 1543, 1546 (11th Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2248, 114 L. Ed. 2d 488 (1991). Barr does not contend that the Government failed to prove any of these elements, but rather argues that his denials of possession and use of illegal drugs, charged in Counts One and Two as false statements in violation of 18 U.S.C. § 1001, do not provide a basis for conviction under that statute. According to Barr, these denials are encompassed within the "exculpatory no" doctrine, which provides a defense to prosecution under § 1001 if the statements at issue amount to no more than a denial of criminal conduct in response to investigatory questioning by the government.
This court has neither adopted nor rejected the "exculpatory no" doctrine.*fn2 Thus, we find a review of this doctrine as developed by our sister circuits instructive with regard to the case before us.
The "exculpatory no" doctrine is a judicially created exemption from prosecution under 18 U.S.C. § 1001 for certain negative exculpatory responses to questions posed by investigating government agents. See United States v. Berisha, 925 F.2d 791, 796 (5th Cir. 1991); United States v. Holmes, 840 F.2d 246, 249 (4th Cir.), cert. denied, 488 U.S. 831, 109 S. Ct. 87, 102 L. Ed. 2d 63 (1988). This doctrine, first articulated in United States v. Stark, 131 F. Supp. 190 (D. Md. 1955), has more recently been described as an exception, which excludes from the definition of "statements" under § 1001 "mere exculpatory denials" made during government investigations. See United States v. White, 281 App. D.C. 39, 887 F.2d 267, 273 (D.C. Cir. 1989). The purpose of the "exculpatory no" doctrine has been explained as follows: "section 1001 plays an important role in protecting the effectiveness of government agencies whose functions require them to rely on the accuracy of the information they receive. The statute, however, was not intended to compel persons suspected of crimes to assist criminal investigators in establishing their guilt." United States v. Cogdell, 844 F.2d 179, 185 (4th Cir. 1988).
The Ninth Circuit Court of Appeals has developed five conditions it deems must be met in order for the "exculpatory no" doctrine to be invoked as a defense to a charge brought under § 1001:
(1) the false statement must be unrelated to a privilege or claim against the government;
(2) the false statement must have been made in response to inquiries initiated by an agency of the federal government ;
(3) the false statement must not impair the basic functions entrusted by law to the inquiring agency;
(4) the inquiries must not have been part of a regular exercise of administrative responsibility; and
(5) a truthful response would have incriminated the declarant.
United States v. Myers, 878 F.2d 1142, 1143-44 (9th Cir. 1989) (citing United States v. Becker, 855 F.2d 644, 646 (9th Cir. 1988)) (emphasis added). See also United States v. Taylor, 907 F.2d 801, 805-06 (8th Cir. 1990) (applying the Ninth Circuit's five-factor test); Cogdell, 844 F.2d at 183 (stating that the
five-factor test articulated by the Ninth Circuit appropriately balances the considerations implicated in applying the "exculpatory no" doctrine to a § 1001 prosecution).*fn3 These factors are listed in the conjunctive; thus, the failure to meet any one of them renders the "exculpatory no" doctrine unavailable to the accused. Myers, 878 F.2d at 1144.
Other circuits, while not explicitly endorsing this structured five-factor test, have emphasized that a defendant's ability to invoke this doctrine, and so avoid prosecution under § 1001, turns on whether the negative exculpatory denials were made in response to questions in an investigative, rather than an administrative, proceeding. See White, 887 F.2d at 273-74 (noting that this doctrine "does not shield from prosecution under section 1001 false responses to questions in an administrative rather than investigative proceeding."); United States v. Morris, 741 F.2d 188, 191 (8th Cir. 1984) (noting, in declining to adopt this doctrine, that it does not apply to a routine administrative inquiry); United States v. Hajecate, 683 F.2d 894, 900 (5th Cir. 1982), cert. denied, 461 U.S. 927, 103 S. Ct. 2086, 77 L. Ed. 2d 298 (1983); United States v. Fitzgibbon, 619 F.2d 874, 880 (10th Cir. 1980); cf. United States v. Payne, 750 F.2d 844, 863 n.21 (11th Cir. 1985) (rejecting the administrative/investigative distinction in applying the "exculpatory no" doctrine to 18 U.S.C. § 1006, in part because "this distinction is based on the legislative intent behind 18 U.S.C. § 1001"). But see Steele, 933 F.2d at 1321 (rejecting the administrative/investigative distinction as "unwarranted").
The idea that the government should not "be allowed to coerce a person into admitting wrongdoing, on pain of prosecution," also has been advanced in support of this doctrine. Payne, 750 F.2d at 862. See also United States v. Lambert, 501 F.2d 943, 946 n.4 (5th Cir. 1974) ("Undoubtedly the judicial gloss put on § 1001 by the "exculpatory no" decisions originates at least in part from latent distaste for an application of the statute that is uncomfortably close to the Fifth Amendment.").
The protection from self-incrimination afforded by the "exculpatory no" doctrine, however, must be balanced against the fact that § 1001 was drafted by Congress in an expansive fashion to promote the "valid legislative interest in protecting the integrity of official inquiries." United States v. Rodgers, 466 U.S. 475, 479-80, 104 S. Ct. 1942, 1946-47, 80 L. Ed. 2d 492 (1984) (quotation and citation omitted). Indeed, in invoking this doctrine, courts necessarily balance "the need for protecting the basic functions of government agencies with the concern that a criminal suspect not be forced to incriminate himself in order to avoid punishment under section 1001." United States v. Cogdell, 844 F.2d 179, 183 (4th Cir. 1988).
As noted above, this court has not taken a position on the "exculpatory no" doctrine. We conclude, however, that, given the facts of this case, Barr would not be able to invoke this doctrine, as it has been interpreted in other circuits, as a defense to the violations of 18 U.S.C. § 1001 charged in Counts One and Two of his indictment. Moreover, because we decline to apply the "exculpatory no" doctrine to the facts of this case, we need not decide whether the doctrine is viable under other circumstances. See Steele, 933 F.2d at 1315.
An examination of the facts before us demonstrates why the elements necessary to invoke the doctrine do not exist here. Barr contends that he is entitled to the exemption from prosecution provided by this doctrine because he made the false statements "in response to inquiries initiated by an agency of the federal government." He points to the indictment, which charged that after assuming his duties, he was required to submit to the investigation. Further, Barr alleges that the statements in question were unrelated to a claim or privilege against the United States because he "did not ask for a security clearance."
We find this argument to be without merit. We agree with the Government's assertion that Barr himself made the decision either "to secure or accept a prestigious appointment with the Office of the Attorney General of the United States." The questions regarding drug use and Barr's resulting false denials were the direct result of his decision to accept employment with the government as Assistant to the Attorney General. Thus, in effect, Barr himself precipitated the background investigation that led to his false denials of illegal drug use. The policy underlying the judicial creation of the "exculpatory no" doctrine, that of limiting the government's ability to coerce individuals suspected of wrong-doing into self-incrimination during the course of governmental investigations, certainly would not be advanced through protecting persons from prosecution under § 1001 who, like Barr, make false statements in connection with their quest for government employment. See United States v. Taylor, 907 F.2d 801, 804 (8th Cir. 1990) (explaining the rationale for the "exculpatory no" doctrine: "under certain circumstances, the government may not prosecute an individual for false or fraudulent statements which were made in response to questioning initiated by the government where a truthful statement would have incriminated the defendant.") (citation omitted) (emphasis added); United States v. Bush, 503 F.2d 813, 818 (5th Cir. 1974) (explaining "that there is a valid distinction between negative exculpatory denial of a suspected misdeed and an affirmative representation of the facts peculiarly within the knowledge of the suspect not otherwise obtainable by the investigator."). Thus we conclude that Barr cannot rely upon the "exculpatory no" doctrine to evade conviction under 18 U.S.C. § 1001 for the false statements charged in Counts One and Two of his indictment.
Count Three of Barr's indictment charged a single conspiracy to possess cocaine, beginning in December, 1984, and ending in January of 1988. Barr contends that because each of his alleged co-conspirators denied the existence of an ongoing agreement, the evidence adduced at trial was insufficient as a matter of law to prove the single conspiracy charged. Thus, Barr argues, his conviction under Count Three should be vacated, and a judgment of acquittal entered. The Government counters that "Barr's pervasive involvement with co-conspirators and his possession of cocaine is sufficient to support an inference that he was aware of an ongoing conspiracy and voluntarily associated himself with it."
We must vacate a conviction if there is a "variance" between the indictment and the proof at trial, to the prejudice of the defendant's substantial rights. United States v. Salmon, 944 F.2d 1106, 1116 (3d Cir. 1991) (citing Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946); United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989), cert. denied, U.S. , 110 S. Ct. 3243, 111 L. Ed. 2d 754 (1990)), cert. denied, U.S. , 112 S. Ct. 1213, 117 L. Ed. 2d 451 (1992). If "a single conspiracy has been alleged, a variance of proof occurs if the evidence shows merely multiple conspiracies." Id. See also Kotteakos, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946). This "variance doctrine" is designed to protect a defendant from being tried " en masse for the conglomeration of distinct and separate offenses committed by others." Id. (quoting Kelly, 892 F.2d at 258). The doctrine is intended to prevent a situation in which the jury might "be unable to separate offenders and offenses and easily could . . . transfer the guilt from one alleged co-schemer to another." Id. (quoting United States v. ...