Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit
2-4-1997
United States v. Arnold Precedential or Non-Precedential:
Docket 96-1174
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
Recommended Citation "United States v. Arnold" (1997). 1997 Decisions. Paper 29. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/29
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________
No. 96-1174 __________
UNITED STATES OF AMERICA,
Appellee
v.
DEAN MARTIN ARNOLD,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 95-00153)
__________
Argued September 17, 1996
Before: Becker, Nygaard and Roth, Circuit Judges __________
Michael A. Schwartz (Argued) Office of the U.S. Attorney Suite 1250 615 Chestnut Street Philadelphia, Pa. 19106
Counsel for the Appellee
Robert Epstein (Argued) Defender Association of Philadelphia, Federal Court Division 437 Chestnut Street Lafayette Building, Suite 800 Philadelphia, Pa. 19106
Edson A. Bostic Defender Association of Philadelphia 609 Hamilton Mall Sovereign Building, Suite 301 Allentown, Pa. 18101
1 Counsel for the Appellant
Filed February 4, 1997 __________
OPINION OF THE COURT __________
NYGAARD, Circuit Judge:
Dean Arnold appeals his conviction for attempting to murder
a witness, 18 U.S.C. § 1512(a)(1)(A), and raises various
challenges to his sentence. We will reverse Arnold’s attempted
murder conviction because it was based solely upon evidence that
the district court should have suppressed. Although, by
implication, this error also calls into question Arnold’s
conviction for witness intimidation, 18 U.S.C. § 1512(b)(3), we
conclude that the error was harmless, and will affirm. We will
also vacate Arnold's sentence and remand the matter to the
district court for resentencing.
I.
Arnold, while working as an armored car courier for Federal
Armored Express, stole $65,000. He told his then fiancee,
Jennifer Kloss, about the theft and showed her a lunch thermos in
which he had stuffed the stolen money. Later, Arnold stole an
additional $15,000 and again told Kloss what he had done. On
another occasion, while working as an assistant vault person,
Arnold stole $400,000 in cash directly from the main vault at
Federal Armored Express, and again told Jennifer Kloss.
Fearing that Kloss would tell the FBI about his crimes,
Arnold told a few individuals, including Edgardo Ramos and Alex
2 Introcaso, that he would pay someone up to $20,000 to kill Kloss.
Introcaso, a private investigator, suspected that Arnold had
committed the Federal Armored Express thefts. Seeking a reward,
Introcaso contacted the FBI to report his suspicions. He also
called the FBI to report Arnold’s offer to have Kloss killed.
The FBI, using Introcaso as part of a “sting” operation,
recorded a meeting on March 27, 1995, between Introcaso and
Arnold at Introcaso’s office. At this meeting, Introcaso told
Arnold that he had located a hit man willing to kill Kloss for
$20,000. Arnold agreed to meet with the hit man the next day and
reaffirmed that he had threatened to kill Kloss if she turned him
in.
On March 28, 1995 the government obtained a sealed
indictment against Arnold charging him with bank theft, money
laundering and witness intimidation. The witness intimidation
charge specifically alleged that Arnold had threatened to kill
Kloss if she provided information to law enforcement officers
about the thefts. That afternoon, Arnold met in Introcaso's
wired office with undercover officer Louis Tallarico, who was
posing as a professional hit man. At this meeting, Arnold
reasserted that he was serious about having Kloss killed and
showed Tallarico that he had the $20,000 necessary to pay for it.
As Arnold left the meeting, the FBI arrested him and seized the
$20,000.
The government next obtained a superseding indictment
charging Arnold with the additional count of attempted murder of
a witness. At trial, a tape recording made at the March 28
3 meeting with the undercover agent was played to the jury over
Arnold’s objection. The tape was the only evidence the
government submitted with respect to the attempted murder charge.
At the sentencing hearing, the district court separated the
offenses into three groups: (1) the two bank larceny counts
combined with the witness intimidation count; (2) the money
laundering counts; and, (3) the attempted killing of a witness
count. The base offense level for the attempted killing of a
witness offense was 28. Because the offense involved the offer
of money for the murder, the offense level was increased to 32.
Based upon a finding that Arnold’s testimony about his entrapment
defense was “willfully false,” the court increased Arnold's
offense level two more levels to 34 pursuant to § 3C1.1 of the
United States Sentencing Guidelines.
The court also granted the government’s motion for an upward
departure and increased the total offense level by one to 35.
The court justified the upward departure on two separate grounds:
(1) the grouping rules did not adequately punish the defendant in
this case; and, (2) there was still an outstanding sum of money
that had not been returned. With a total offense level of 35,
the guideline range was 168-210 months imprisonment. The court
imposed a 210 month sentence and ordered restitution in the
amount of $223,569.
II.
Arnold argues that the government violated his Sixth
Amendment right to counsel by eliciting uncounselled statements
from him after he had been indicted for threatening to kill
4 Kloss. Arnold contends that because the sealed indictment had
been returned against him, his right to counsel had attached for
the witness intimidation charge, and the government was
prohibited by the Sixth Amendment from deliberately eliciting
uncounselled statements about the closely related attempted
murder offense. The witness intimidation and attempted murder of
a witness charges are so closely related, Arnold argues, that
“the right to counsel for the pending offense [witness
intimidation] cannot constitutionally be isolated from the
uncharged offense [attempted murder of a witness].” Arnold
insists that the district court erred by denying his motion to
suppress the tape of his March 28th meeting with the undercover
agent. We agree.
III.
The Supreme Court has held that the Sixth Amendment right to
counsel attaches “at or after the initiation of adversary
judicial criminal proceedings -- whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.”
Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82
(1972). Under the Sixth Amendment, the government is prohibited
from deliberately eliciting incriminating evidence from an
accused “after he ha[s] been indicted and in the absence of his
counsel.” Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct.
1199, 1203 (1964).
The Court has made clear, however, that the Sixth Amendment
right is “offense specific” and “cannot be invoked once for all
future prosecutions . . . .” McNeil v. Wisconsin, 501 U.S. 171,
5 175, 111 S.Ct. 2204, 2207 (1991). Hence, when investigating new
or ongoing criminal activity for which an accused has not been
indicted, the government does not violate the Sixth Amendment.
Id. at 175-176, 111 S.Ct. at 2207-08. The government may
interrogate an accused about unrelated, uncharged offenses to
which the right of counsel has not yet attached. Moran v.
Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 1146 (1986).
Moreover, “[i]ncriminating statements pertaining to other crimes,
as to which the Sixth Amendment right has not yet attached, are,
of course, admissible at trial of these offenses.” Maine v.
Moulton, 474 U.S. 159, 180 n.16, 106 S.Ct. 477, 489 n.16 (1985);
accord Alston v. Redman, 34 F.3d 1237, 1252 n.16 (3d Cir. 1994),
cert. denied, 115 S.Ct. 1122 (1995).
Two Supreme Court cases establish a limited exception to the
“offense specific” rule. In Brewer v. Williams, 430 U.S. 387, 97
S.Ct. 1232 (1977), the defendant was formally charged with the
abduction of a little girl. After being charged with the
abduction, the police, using a “Christian burial speech” to gain
the trust of the defendant, elicited from him the location of the
girl’s body. The defendant was subsequently charged with murder
and convicted. The Supreme Court affirmed the reversal of the
murder conviction and in so doing held that the defendant’s
statements to the police about the location of the body were
inadmissible in his murder trial.
Similarly, in Moulton, supra, Moulton and a co-defendant
committed burglary but were originally only indicted for theft.
After the indictment was returned, the co-defendant agreed to
6 cooperate with the police and to attempt to elicit incriminating
statements from Moulton. This effort was successful, and the
incriminating statements made by Moulton to the co-defendant were
used as the basis for filing burglary and other additional
charges against Moulton. Moulton was convicted, but the Supreme
Court of Maine reversed, finding a violation of Moulton’s Sixth
Amendment right to counsel. The United States Supreme Court
affirmed. Significantly, in affirming the Court reversed both
the theft and burglary charges, notwithstanding the fact that
Moulton had not yet been charged with burglary when he made his
statements to the co-defendant.
Relying on Brewer and Moulton, many courts have held that
once the right to counsel attaches with respect to a charged
offense, it carries over to “closely related” but uncharged
crimes.1 The reasoning underlying this exception is consistent
with the purposes and protections of the Sixth Amendment. When
the pending charge is “so inextricably intertwined” with the
charge under investigation “the right to counsel for the pending
charge cannot constitutionally be isolated from the right to 1 See, e.g., United States v. Kidd, 12 F.3d 30, 32 (4th Cir. 1993) (recognizing but not applying the exception), cert. denied, 114 S.Ct. 1629 (1994); Hendricks v. Vasquez, 974 F.2d 1099, 1104 (9th Cir. 1992) (same); United States v. Carpenter, 963 F.2d 736, 740-41 (5th Cir.) (same), cert. denied, 506 U.S. 927 (1992); United States v. Hines, 963 F.2d 255, 257-58 (9th Cir. 1992) (same); United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir. 1991) (same), cert. denied, 504 U.S. 975 (1992); United States v. Michteltree, 940 F.2d 1329, 1342-43 (10th Cir. 1991) (applying the exception); People v. Clankie, 530 N.E.2d 448, 452 (Ill. 1988) (same); State v. Tucker, 645 A.2d 111, 120-25 (N.J. 1994) (recognizing but not applying the exception), cert. denied, 115 S.Ct. 751 (1995); In re Pack, 616 A.2d 1006, 1008-11 (Pa. 1992) (applying the exception).
7 counsel for the uncharged offense.” Hines, 963 F.2d at 257; see
also Cooper, 949 F.2d at 743. “[T]o hold otherwise[] would allow
the [government] to circumvent the Sixth Amendment right to
counsel merely by charging a defendant with additional related
crimes” after questioning him without counsel present. In re
Pack, 616 A.2d at 1011.
In a scholarly opinion we find instructive, the Maryland
Court of Appeals extensively analyzed the “closely related”
exception to the offense-specific requirement of the Sixth
Amendment in Whittlesey v. State, 665 A.2d 223 (Md. 1995), cert.
denied, 116 S.Ct. 1021 (1996). Collecting cases, the Whittlesey
Court identified two lines of decisions that had emerged from
courts considering the exception. In the first line of
decisions, courts invoke the exception where (1) the offenses are
“closely related,” construing that phrase relatively broadly, and
(2) there is evidence of deliberate police misconduct in the
process of eliciting the incriminating statements. See, e.g.,
United States v. Martinez, 972 F.2d 1100 (9th Cir. 1992)
(remanding to determine whether state prosecutors had
deliberately dropped charges against the defendant to facilitate
a federal investigation of the same conduct); Mitcheltree, 940
F.2d at 1329 (reversing witness tampering conviction where the
government exploited a contact between the defendant, who was
indicted for a drug offense, and a government witness, to acquire
evidence for both the drug prosecution and a tampering charge
related to the contact with the witness).
In the second line of decisions examined by the Whittlesey
8 court, the focus is entirely on whether the facts underlying the
charged and uncharged offenses are either “closely related” or
“inextricably intertwined”; two terms which we take to mean the
same thing. In these opinions, the unifying theme is that the
right to counsel will carry over from the pending charge to the
new charge only where the new charge arises from the same acts
and factual predicates on which the pending charges were based.
Whittlesey, 665 A.2d at 235 (citations omitted). In determining
whether the same acts and factual predicates underlie both the
pending and the new charges, courts have looked for similarities
of time, place, person and conduct. See, e.g., Kidd, 12 F.3d at
33; Hines, 963 F.2d at 257-58; Vasquez, 974 F.2d at 1104-05;
Carpenter, 963 F.2d at 740-41.
It is undisputed that before Arnold's arrest he retained an
attorney to represent him in connection with the government’s
ongoing investigation into the bank larcenies. It is also
undisputed that Arnold’s attorney advised the government that he
was representing Arnold and that Arnold should not be questioned
in his absence. Because Arnold’s right to counsel for the
larceny, laundering and witness intimidation charges attached on
the morning of March 28, 1995, when the sealed indictment on
these charges was returned, the issue is whether Arnold’s right
to counsel carried over to the March 28, 1995 “sting” operation
and the subsequent indictment for the attempted murder. We have
not decided whether to recognize the “closely related” exception
to the offense specific requirement of the Sixth Amendment. This
case requires that we now do so.
9 Arnold argues that both offenses involved the same witness
and arise out of precisely the same facts and circumstances --
namely, Arnold’s thefts and the threat that Kloss, as a potential
witness, posed to him. Most importantly, from Arnold’s
perspective, is the idea that his attempt to hire a hit man
strongly indicates that he threatened Kloss earlier and that the
threats were made to silence a potential witness, thereby
establishing a common base of evidence from which the charges of
attempted murder and witness intimidation arose. Finally, Arnold
correctly notes that the government’s failure to have sufficient
evidence to indict him on the attempted murder charge before the
March 28 “sting” cannot justify violating his Sixth Amendment
rights to gather the evidence necessary to support an indictment
for attempted murder.
We adopt the "closely related" exception and hold that it
applies here. Indeed, it is difficult to understand how the
witness intimidation and attempted murder of a witness offenses
could be any more closely related. As the record shows, both
charges: (1) involve the same witness; (2) arise from the same
facts and circumstances; (3) are closely related in time; and,
(4) involve conduct related to Arnold’s attempt to prevent
Jennifer Kloss from cooperating with federal authorities
concerning his crimes.
More specifically, the indictment for the witness
intimidation count explicitly charges that Arnold had threatened
to kill Jennifer Kloss if she told the authorities about his
crimes. This charge involved precisely the same type of
10 underlying conduct as the attempted murder charge -- violent
action taken to impede a witness's participation in or
cooperation with a federal criminal investigation. Given that
Arnold’s central purpose and the intended results of both
offenses were the same, we cannot but conclude that the two
offenses were sufficiently related for purposes of the Sixth
Amendment exception. Moreover, the crimes Arnold sought to
conceal by the murder he attempted were the same crimes that
motivated his acts of intimidation. Indeed, as the government
concedes, it was Arnold’s threats to kill Kloss if she disclosed
his crimes to the federal authorities that served as the impetus
for the March 28 “sting” operation.
In sum, we are persuaded that Arnold’s witness intimidation
and attempted murder of a witness were closely related offenses
and arose from the same predicate facts, conduct, intent and
circumstances. As a result, we hold that Arnold’s Sixth
Amendment right to counsel, which attached to the witness
intimidation charge on the morning of March 28 when he was
indicted, carried over to the attempted murder of a witness
charge. Consequently, the incriminating statements elicited from
Arnold during the “sting” operation on the afternoon of March 28
were obtained in violation of Arnold’s Sixth Amendment right to
counsel, and the district court erred by failing to suppress the
tape recording. Because the “sting” operation tape was the only
evidence against Arnold on the attempted murder charge, the
court’s error was not harmless. Accordingly, we will vacate
Arnold’s conviction for attempted murder of a witness, and remand
11 the matter to the district court either for retrial or for the
charge to be dismissed.2
IV.
Arnold also asserts that the district court erred by
enhancing his base offense level two points for perjury under
U.S.S.G. § 3C1.1. Section 3C1.1 of the U.S.S.G. provides that
“[i]f the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant offense,
increase the offense level by 2 levels.” The Guidelines
expressly include perjury as conduct to which this enhancement
applies. U.S.S.G. § 3C1.1, Application Note 3(b); United States
v. Dunnigan, 507 U.S. 87, 92-93, 113 S.Ct. 1111, 1115-16 (1993).
In applying this enhancement, Application Note 1 of U.S.S.G.
§ 3C1.1 states: This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant’s denial of guilt (other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision. In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant (emphasis added).
2 This decision calls Arnold's conviction for witness intimidation into question. Both parties admit that a limiting instruction for the use of the March 28 tape recording was neither requested nor given. We conclude, nonetheless, that the improper admission of the March 28 tape recording, even without a limiting instruction, was harmless beyond a reasonable doubt. The evidence against Arnold with respect to the intimidation charge was overwhelming. Therefore, we will affirm Arnold's witness intimidation conviction.
12 The record shows that at Arnold’s post-trial motion for
acquittal, the district court independently reviewed the trial
testimony. It did not believe Arnold’s claim that threatening
gestures were made toward him during the conversations recorded
on March 27 and 28, and therefore his request that Jennifer Kloss
be killed was made involuntarily. To support its conclusion, the
court stated for the record that “[i]t was obvious from the voice
timbre and content of the tape recordings that this claim was not
only absurd, it was willfully false.”
In addition, the court also reviewed the testimony of a
defense witness, Herbert Truhe, who testified that Introcaso was
responsible for Arnold’s plan to have Jennifer Kloss killed. The
court concluded that “Herbert Truhe’s testimony was highly
improbable in view of the content of the tape recordings and the
jury resolved the conflicting testimony in favor of the
government.” Finally, the court also noted that both Jennifer
Kloss and Edgardo Ramos testified about Arnold’s threats and
attempts to silence Jennifer Kloss.
At Arnold’s sentencing hearing, the court reaffirmed its
decision to apply the obstruction of justice enhancement to
Arnold’s sentence by noting that it had already made a finding
that Arnold’s testimony had been “willfully false.” Arnold
argues that the court erred because it viewed the evidence in the
light most favorable to the government during the post-trial
motion. Arnold contends that under U.S.S.G. § 3C1.1, the court
was required to make an independent finding whether he had
committed perjury, and in doing so was required to view the
13 evidence in a light most favorable to him, and under a clear and
convincing standard.
Courts of Appeals in other circuits have reached various
conclusions on this issue. Three courts interpret Application
Note 1 to Section 3C1.1 to require a higher standard of proof
than mere preponderance of the evidence. United States v.
Montague, 40 F.3d 1251, 1253-54 (D.C. Cir. 1994) (clear-and-
convincing); United States v. Onumonu, 999 F.2d 43, 45 (2d Cir.
1993) (clear-and-convincing); United States v. Willis, 940 F.2d
1136, 1140 (8th Cir. 1991) ("[n]o enhancement should be imposed
based on the defendant's testimony if a reasonable trier of fact
could find the testimony true"), cert. denied, 507 U.S. 971
(1993).
As the Court of Appeals explained in Montague, 40 F.3d at
1254, "[W]e must assume that, in writing the Application Note to
section 3C1.1, the Sentencing Commission intended to create an
exception to the usual practice of employing the preponderance-
of-the-evidence standard in sentencing decisions." In practice,
the application of a higher standard of proof in a § 3C1.1
perjury enhancement requires that “the fact finder give the
benefit of the doubt to the defendant . . . and find perjury only
on evidence with respect to which the judge is clearly
convinced.” Id. at 1255.
Other courts interpret this to require little more than
"simply instruct[ing] the sentencing judge to resolve in favor of
the defendant those conflicts about which the judge, after
weighing the evidence, has no firm conviction." United States v.
14 Franco-Torres, 869 F.2d 797, 801 (5th Cir. 1989); accord United
States v. Barbarosa, 906 F.2d 1366, 1370 (9th Cir.), cert.
denied, 498 U.S. 961 (1990). Other courts have applied the
standard a bit differently. United States v. Clark, 84 F.3d 506,
510 (1st Cir.) (". . . [A]mbiguities that plausibly suggest that
the testimony or statements were innocent as opposed to
obstructive . . . may have to be resolved in favor of the
innocent reading."), cert. denied, 1996 WL 514207; United States
v. Zajac, 62 F.3d 145, 150-51 (6th Cir.) (“firm conviction”),
cert. denied, 116 S.Ct. 681 (1995).
We have never directly decided the question, commenting only
generally on the issue in United States v. Colletti, 984 F.2d
1339, 1348 (3d Cir. 1992). In Colletti, a pre-Dunnigan case
challenging section 3C1.1 as unconstitutional, we stated: In our view, in order to warrant the two point enhancement for obstruction of justice, the perjury of the defendant must not only be clearly established, and supported by evidence other than the jury's having disbelieved him, but also must be sufficiently far-reaching as to impose some incremental burdens upon the government, either in investigation or proof, which would not have been necessary but for the perjury.
Colletti does not provide a clear indication of the specific
burden of proof to be applied. Nonetheless, its “clearly
established” requirement counsels toward a standard of proof
higher than a mere preponderance.
We are persuaded that the Application Note intends a higher
standard than a preponderance of evidence. We hold that the
Application Note’s command to evaluate a defendant’s alleged
false testimony or statements “in a light most favorable to the
15 defendant,” requires the sentencing court to refrain from
imposing a § 3C1.1 enhancement unless, in weighing the evidence,
it is clearly convinced that it is more likely than not that the
defendant has been untruthful.
Here, it is unclear what standard of proof the district
court used when reaching its determination that Arnold had
committed perjury. Moreover, because there is no indication in
the record that the district judge, when relying on his earlier
finding, placed the burden of proof upon the government and
viewed the evidence in the light most favorable to Arnold, we
conclude that the district judge’s decision that Arnold committed
perjury did not meet the requirements of § 3C1.1. Accordingly,
we will vacate Arnold’s sentence and remand the matter to the
district court for resentencing. On remand, the district court
must use the clear and convincing standard, place the burden of
proof upon the government, and support its decision with the
findings required by the Supreme Court’s decision in Dunnigan.3
The defendant raises three other sentencing issues. We can
3 Judge Roth does not believe that the "clear and convincing" standard is applicable here. In her opinion, the language of Application Note 1 of U.S.S.G. § 3C1.1 provides a sufficiently stringent basis to determine whether the enhancement is appropriate using a "preponderance of the evidence" standard. The adoption of a "clearly convincing" standard is not helpful to district court judges who must keep in mind a growing list of different standards of proof to apply in sentencing proceedings. Because the district judge did not, however, indicate that his determination of "willfully false" was made in a light most favorable to the defendant, Judge Roth agrees it is necessary to remand on the issue of the enhancement for obstruction of justice.
16 dispose of them briefly.
Arnold contends that the district court erred by its upward
departure because there was nothing “unusual or extraordinary”
about his crimes that would warrant a departure from the
Guidelines. We need not decide the merits of Arnold’s contention
because the district court must now recalculate Arnold’s
sentence. As such, the application of the grouping rules under §
3D1.4 of the Guidelines will change, rendering Arnold's upward
departure issue moot.
Second, Arnold argues that the district court failed to make
the proper findings that he had the ability to pay restitution.
The government concedes error, and we agree. See United States
v. Copple, 74 F.3d 479, 482 (3d Cir. 1996). Therefore, we will
vacate the restitution order and remand the matter for the
district court to find whether Arnold is able to pay restitution.
Finally, Arnold contends that the district court erred by
delegating the timing and the amount of his restitution payments
to his probation officer. The government again concedes error,
and again we agree. See United States v. Graham, 72 F.3d 352,
356 (3d Cir. 1995), cert. denied, 116 S.Ct. 1286 (1996). Hence,
on remand the district court itself must determine both the
timing and the amount of the restitution payments.
VI.
In summary, we will reverse Arnold's conviction for
attempted murder, affirm his conviction for witness intimidation,
vacate his sentence, and remand the matter to the district court
for proceedings in accordance with this opinion.
17 18