United States v. Brady

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1561



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                        ROBERT HUGH BRADY,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. William G. Young, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

                 Coffin, Senior Circuit Judge,

                                

                   and Lynch, Circuit Judge.


Leo T. Sorokin, Federal Defender Office, for appellant.

     Ben T. Clements, Assistant U.S. Attorney, with whom Donald K.

Stern, United States Attorney, was on brief for the United States.


February 26, 1999


BOUDIN, Circuit Judge.  Because this appeal involves

sentencing issues following a guilty plea, we take the background

facts from the presentence report that followed Robert Brady's

conviction for criminal contempt.  See United States v. Gill, 99

F.3d 484, 485 (1st Cir. 1996).  According to the presentence

report, Brady and two close friends traveled in late July 1996 to

Boston's North End from nearby Charlestown.  The two friends,

Brendan Brennan and Paul Hansen, then stole a minivan; at about the

same time, Brady stole a Pontiac Bonneville parked several blocks

away from the minivan.

  Brennan and Hansen had previously agreed to steal a

vehicle for use by other Charlestown men in a planned robbery of an

armored car (Brady's involvement vel non is a separate matter

discussed below).  On July 31, 1996, three masked men used the

stolen van to rob an armored car in a shopping plaza in Somerville,

Massachusetts.  In the course of the robbery, one of the robbers

deliberately shot and killed one of the guards.  Federal

authorities began an investigation.

  In the fall of 1996, Brady was photographed and

fingerprinted as part of the FBI's investigation of the robbery; in 

connection with this investigation, Brady made statements more or

less admitting that he had stolen the Bonneville.  In March 1997,

Brady was summoned before the federal grand jury investigating the

robbery, and he took the Fifth Amendment; subsequently, Brady was

made  the subject of an immunity order compelling him to testify

and providing that information he gave could not be used against

him.  See 18 U.S.C.  6002.

  When Brady refused to testify despite the immunity order,

U.S. District Judge Saris held him in civil contempt and jailed him

until October 24, 1997, when the grand jury expired without

returning indictments against the robbers.  At various times, the

government offered Brady protection against reprisal, but he still

declined to testify.  Brady never suggested that he was concerned

about reprisals and affirmatively rejected the suggestion on one

occasion; he did say at least once that he intended not to "rat" on

anyone.  On September 17, 1997, Brady was indicted for criminal

contempt for refusing to testify.  See 18 U.S.C.  401(3).

  On January 30, 1998, Brady pled guilty to criminal

contempt before U.S. District Judge Young.  On two different

occasions, both before and after the plea, Brady expressed a

willingness to testify if different conditions were met; one

condition (that no prior interview or proffer be required) was

agreed to, but the other (a promise that Brady would not be

prosecuted for perjury if he lied) was naturally rejected.  After

postponing sentencing to allow further negotiations, Judge Young

held a final sentencing hearing on April 21, 1998.

  As we shall explain in more detail, the sentencing

guidelines provide that for criminal contempt, the court should

adopt the guideline for the most analogous criminal conduct.  The

presentence report, which Judge Young adopted, recommended that

Brady be sentenced under the sentencing guideline that applies to

obstruction of justice, U.S.S.G.  2J1.2.  The obstruction

guideline provides that where the obstruction interferes with a

criminal investigation, the offense level to be adopted is taken

from the guideline for the offense of accessory after the fact. 

See id.   2J1.2(c)(1).

  In the course of sentencing, Judge Young found that Brady

had been "involved" with Brennan and Hansen, that he knew of their

plans, and that Brady's theft of the Bonneville was "in some way"

related to the robbery.  Accordingly, he employed the offense level

set forth in the accessory-after-the-fact guideline, U.S.S.G. 

2X3.1, which increases the offense level (up to a maximum of 30)

based on the underlying criminal conduct--here, a robbery and

murder.  After an adjustment for acceptance of responsibility,

Brady's offense level was found to be 27.  The district court

sentenced Brady to the maximum amount permitted by the guidelines--

87 months--and Brady now appeals.  

  On this appeal, Brady quarrels with the district court's

choice of guidelines, with its legal analysis, and with its

findings.  In response, the government invokes our own recent

decision in United States v. Marquardo, 149 F.3d 36 (1st Cir.

1998), upholding use of the obstruction guideline in somewhat

similar circumstances.  This case presents several  issues that

recur in obstruction-related matters against a backdrop of

confusing case law; whether we can do much to clarify the case law

remains to be seen.

  Under the guidelines, the offense of criminal contempt

embraces misconduct so varied in type and context that "the

Commission has not provided a specific guideline for this offense." 

U.S.S.G.  2J1.1 app. note (1).  Instead, the Commission in section

2J1.1 directs the court by cross reference to "apply the most

analogous offense guideline," U.S.S.G.  2X5.1 (Other Offenses),

while noting in section 2J1.1 app. note (1) that in some cases the

best analogy may be to U.S.S.G.  2J1.2, the obstruction of justice

guideline.  See United States v. Ryan, 964 F. Supp. 526, 528 (D.

Mass. 1997).

  Brady argues that the choice of analogies is a question

of law, subject to de novo review.  See United States v. Hornsby,

88 F.3d 336, 338 (5th Cir. 1996).  Marquardo, by contrast, said

that the district court enjoyed some latitude in its choice,

especially where factual issues were involved.  See 149 F.3d at 45. 

The truth is that the choice of an analogy can involve different

kinds of questions: abstract legal questions reviewed de novo, raw

issues of fact reviewed under the clearly erroneous standard, and

issues of law application (applying abstract standards to

particular facts) where deference is common but not invariable. 

See Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 181

(1st Cir. 1997); see also United States v. Cefalu, 85 F.3d 964, 966

(2d Cir. 1996).

  Where the contempt is a refusal to testify before a grand

jury, courts have resorted to several different guidelines as

analogies, including the obstruction guideline, the misprision

guideline, and the guideline governing the refusal of a material

witness to appear.  See Ryan, 964 F. Supp. at 528-30.  No one of

these is the "right" answer as a matter of law for all cases of

refusal to testify; rather, the choice of the best analogy is

likely to depend in part on the circumstances.  See Cefalu, 85 F.3d

at 966-68 & n.6.  Once the  circumstances are determined, the

district court's choice of an analogy should be upheld if it is

reasonable.  See Marquardo, 149 F.3d at 45; Cefalu, 85 F.3d at 968.

  "Reasonableness" in this context  means that the

defendant's conduct (including state of mind) is closely similar to

conduct that would constitute the crime set forth in the more

specific guideline selected as the analogy.  Similarity, not

identity, is what is required for an analogy, and similarity does

involve judgment.  Thus, some latitude for the district court on

this judgment call seems appropriate, but it is not unlimited. 

Either side may still argue on appeal that the similarity is fartoo slight or that there is manifestly a better analogy.

  Here, the district court chose as the analogy the

"obstruction of justice" guideline. Our presumption is that the

Commission intended the quoted phrase to have the same meaning as

the crime defined in 18 U.S.C.  1503, which is cross-referenced by

the guideline, U.S.S.G.  2J1.2, comment. (statutory provisions),

and we see nothing to rebut the presumption.  The elements of the

obstruction offense--purely an issue of law--are defined by the

statute and interpretive case law.    The pertinent statutory

language is as follows:

  Whoever . . . corruptly . . . influences,

  obstructs, or impedes, or endeavors to

  influence, obstruct or impede, the due

  administration of justice shall be punished as

  provided in [18 U.S.C.  1503(b)].



18 U.S.C.  1503(a).



   It is settled by case law that "the due administration

of justice" includes the operation of the grand jury, and that

depriving the grand jury of information may constitute obstruction

under the statute.  See, e.g., United States v. Banks, 942 F.2d

1576, 1578 (11th Cir. 1991); United States v. Cintolo, 818 F.2d

980, 990 (1st Cir. 1987).  Here, we think it was a fair inference

that Brady possessed some information that could assist the grand

jury; this is suggested by his association on the night of the

minivan robbery with two friends who stole the van used in the

robbery and by Brady's refusal to testify, which (given the

immunity order and absent a showing of actual fear) suggests that

he knew something useful.  In all events the district court thought

that Brady had useful information and, as we will see, this view is

not clearly erroneous.

  The robbery grand jury may well have been obstructed

given that it was initially unable to indict, but actual

obstruction is not needed if the defendant "endeavors" to obstruct. 

18 U.S.C.  1503(a).  "Endeavors" suggests both a purpose to

obstruct and some step in that direction.  United States v.

Tedesco, 635 F.2d 902, 906-07 (1st Cir.), cert. denied, 452 U.S.

962 (1981).  However, neither obstruction nor an endeavor to

obstruct normally violates the statute unless there is a "corrupt"

purpose, and this brings us to the single most difficult legal

issue in the case.

     The scienter element in the obstruction statute is the

subject of more confusing case law than can be described in brief

compass.  In part, this results from the promiscuous use in the

cases of the ambiguous word "intent," which can mean either

knowledge (of consequences) or purpose (to achieve them), see Model

Penal Code  2.02 & explanatory note (Official Draft 1962); in

part,  it results from the great range of varying motives that can

underlie a refusal to testify (e.g., loyalty of various kinds,

concern as to reputation, fear of reprisal, concern about self-

incrimination).  Further, cases that purport to be setting legal

standards are often instead concerned with the inferences  to be

drawn from particular facts.

     The issue, and this case, would be very easy if one

accepted the view advanced in the government's brief that it is

sufficient for the contemnor to know (i.e., be aware) that silence

will  in fact obstruct.  Some language in cases arguably  supports

this view although it is rarely the focus of the discussion.  See,

e.g., Marquardo, 149 F.3d at 45-46; United States v. Voss, 82 F.3d

1521, 1531 (10th Cir. 1996).  Further, there is a textual argument

for this result growing out of a 1996 amendment to the Criminal

Code, which provides that:

     As used in [18 U.S.C.] section 1505 [a sister

     provision to section 1503], the term

     "corruptly" means acting with an improper

     purpose, personally or by influencing another,

     including making a false or misleading

     statement, or withholding, concealing,

     altering or destroying a document or other

     information.



18 U.S.C.  1515(b) (emphasis added).  But that amendment, which is

not itself directly applicable to section 1503, turns out to have

a very narrow purpose.

     More important, the government's reading of the

obstruction statute would not only make the "corruptly" requirement

meaningless, but it would make an obstruction of justice out of

refusals to speak that no one could have intended to punish.  For

example, every lawyer who advises a client to invoke the Fifth

Amendment before the grand jury on a material issue, and almost

every client who takes this advice, must "know" that this will

often obstruct the grand jury, yet only a corrupt purpose creates

guilt.  See Cintolo, 818 F.2d at 990-94.  In short, to make any

sense out of the statute, "corruptly" needs to have some content

beyond mere knowledge of consequence. 

     There is no hope in one opinion of providing a definitive

gloss on the word "corruptly"; neither would it be wise to try. 

However, we think it is ordinarily sufficient to satisfy the

"corruptly" requirement in the statute--without regard to other

circumstances that might also establish corruption (e.g., offering

a bribe)--if the contemnor's purpose for refusing to testify is to

prevent the grand jury from locating the criminals.  This is

broadly consistent with a standard instruction for the obstruction

statute, captures most of the malign cases, and will need

qualification only in the rare cases where such a purpose may be

privileged by law or otherwise.

     Here, there is no doubt that the district judge found

that Brady's purpose was to hinder the grand jury.  Rejecting the

view that Brady was merely an onlooker, the judge said at

sentencing that Brady "was in the thick of it apparently" and then

three pages later elaborated:

     I find by a fair preponderance of the evidence

     . . . that Mr Brady was involved with the

     other two, that . . . he in fact has knowledge

     of their plans, and that the stealing of the

     Bonneville was in some way related to the

     general plan for which the minivan, the

     minivan [sic] was stolen.  I find that for

     sentencing purposes that his obdurate refusal

     to testify is part and parcel of his

     involvement with these individuals, and that

     the accessory after the fact guideline is

     appropriate.



Given deliberate obstruction of justice, it then follows that the

severe offense level prescribed in the accessory after the fact

guideline must be used where--as here--the offense involved

"obstructing the investigation or prosecution of a criminal

offense."  U.S.S.G.  2J1.2(c)(1).

     The much closer issue is whether the evidence permitted

the district court to find that Brady was part of the robbery plot

or at least was involved in a phase of it.  The burden of proof was

upon the government to bring the case within the obstruction

guideline.  See Ryan, 964 F. Supp. at 531.  On the other hand, the

district court was not limited to evidence that would be admissible

in court or that established facts "beyond a reasonable doubt." 

See United States v. Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir.

1994).  And, further complicating Brady's appeal, the district

court's raw findings of fact must stand unless they are "clearly

erroneous."  See id. at 24.

     The "evidence" available to the district court is

virtually all summarized--indeed, is comprised by--four paragraphs

of the presentence report.  This may be nothing more than the

version supplied by the government's lawyer, but where accepted by

the probation officer, it is sufficient unless rebutted, seeGonzalez-Vazquez, 34 F.3d at 25, and Brady did not seek to rebut

the raw facts (although he did and does challenge the inferences to

be drawn).  The paragraphs are as follows:

          (12) On an evening in late July of

     1996, Robert Brady and two of his closets

     [sic] friends, Brendan Brennan and Paul James

     Hansen, went from their home neighborhood in

     the Charlestown section of Boston to the North 

     End neighborhood of Boston for the purpose of

     stealing cars.  At least one of these stolen

     cars was to be used in connection with a

     planned robbery of an armored car.  Bradyproceeded to steal a Pontiac Bonneville. 

     Brennan and Hansen stole a minivan, which they

     had previously agreed to provide to other

     Charlestown men to be used in executing the

     armed robbery of an armored car.



          (13) On July 31, 1996, the minivan

     stolen by Brennan and Hansen was in fact used

     by three masked men to rob a Dunbar armored

     car at the Twin City Plaza in Somerville, MA. 

     During the course of this robbery, one of the

     robbers intentionally shot and killed, at

     point blank range, one of the armored car

     guards, Edward Kubera.  Following the robbery

     and murder, the robbers made their escape in

     the stolen minivan.



          (14) On August 23, 1996, agents of the

     FBI issued a grand jury subpoena requesting

     that Brady appear to provide fingerprints and

     photographing.  The agents advised Brady that

     the information was being requested in

     connection with the investigation of the July

     31, 1996 armored car robbery and murder, and

     of Brady's possible involvement in the

     incident.  At that time, Brady stated: "I'm a

     car thief.  So I stole a car.  Big deal,

     everybody knows I'm a car thief."



          (15) When Brady later appeared at the

     FBI to provide prints, he made reference to

     the incident under investigation, stating,

     I've always been "partial to the Bonneville,"

     or words to that effect.



     Different inferences are possible, but one that easily

fits the facts is that Brady and his two friends went to steal two

different vehicles for the proposed robbery--the minivan to be used

in carrying out the robbery itself and the Bonneville as a

temporary getaway car or for some similar purpose.  This is

suggested by the fact that Brady was friends with the other two,

that they apparently traveled together to the same area in the

North End for the thefts, and that Brady had some kind of further

knowledge that made him reluctant to testify to the grand jury.

     Of course, it is possible that Brady and his two

companions were on different missions and wholly ignorant of each

other's plans.  The line between a permissible inference and

impermissible speculation is one of the hardest in the law to

articulate since it is largely a matter of degree; much depends on

how the factfinder conceives of likelihoods based on his or her

real world experience and assumptions.  Cf. Stewart v. Coalter, 48

F.3d 610, 616 (1st Cir.), cert. denied, 516 U.S. 853 (1995).  About

all we can say is that the district court does not seem to us

"clearly erroneous" in finding it more likely than not that Brady

was involved in the plot and that his refusal to testify was "part

and parcel" of that involvement.

     On appeal, the defense points to two other possible

motives for Brady's refusal to testify, arguing that either is

plausible and neither is corrupt.  The first is that Brady was

simply afraid of retaliation if he testified.  If this had been

Brady's controlling motive, we doubt very much whether we would

regard it as corrupt, see United States v. Underwood, 880 F.2d 612,

620 (1st Cir. 1989), but the point need not be definitively

decided.  Although Brady's counsel has done his best with a few

scraps, the evidence of fear as the motive is so slight--Brady

himself denied it--that we do not even think the matter worth

discussing further.

     Alternatively, Brady's counsel argues that his motive was

merely a desire not to "rat" (an argument tending to bear out the

suspicion that Brady did have something to rat about).  Whether

such a desire, if it stood as the only motive, would be "corrupt"

is a very tricky question--perhaps not one entirely divorced from

circumstances;  a parent's refusal to testify against a child could

easily be a punishable contempt (absent a privilege) but would be less easily described as "corruptly" motivated.  In all events, the

district court's findings essentially refute the notion that a 

desire to avoid ratting was Brady's predominant motive.

     The district court findings that Brady was friends with

the minivan thieves and somehow involved in the plot make it highly

likely, and certainly more likely than not, that his refusal to

testify was significantly motivated by a desire to frustrate the

investigation of the robbery and thereby protect his friends.  Cf.United States v. Tedesco, 635 F.2d 902, 907 (1st Cir. 1980). 

Obviously the two motives--to obstruct and not to be a rat--will

often go together; probably, they did so here.  But a significant

purpose to obstruct is enough, even if we assume dubitante that a

pure desire not to rat would avoid the obstruction charge.  CompareUnited States v.  Ortiz, 84 F.3d 977, 981 (7th Cir.), cert. denied,

117 S. Ct. 250 (1996).

     We have now come full circle.  The findings of the

district court are either findings of obstruction of justice by

Brady or so close as to confirm that the analogy to the obstruction

guideline is entirely apt.  On different findings, the analogy

could be weaker, might even fail, and could require resort to some

other guideline.  Without endorsing the topology offered in the

opinion, we agree completely with Ryan that--even where the conduct

is (as here) narrowed to a contemptuous refusal to testify to a

grand jury--the choice of the best analogy  depends upon the

circumstances.  See Ryan, 964 F. Supp. at 528-30.

     The contempt penalty in this case is a severe one--87

months for a then 19-year-old youth with an otherwise clean record

and a good many touching letters in his favor.  Yet the high

maximum set by the guidelines is because the robbery resulted in a

murder, and Brady, through his refusal to testify, sought to

obstruct this investigation.  So long as his withheld evidence

remains useful, he has it within his power to obtain a reduction in

his sentence under the "substantial assistance" provisions, Fed. R.

Crim. P. 35(b); U.S.S.G.  5K1.1--a hard choice for Brady but one

he has constructed for himself.

     Affirmed.