United States v. Frazer

Opinion

USCA1 Opinion

September 7, 1993     [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1110

UNITED STATES,

                                      Appellee,

                                          v.

                                   JAMES E. FRAZER,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                    [Hon. Paul J. Barbadoro, U.S. District Judge]
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                                 ___________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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                                 ___________________

               Robert P. Woodward on brief for appellant.
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               Peter  E.  Papps,  United  States  Attorney,  on  brief  for
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          appellee.

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                                  __________________

Per Curiam.    Appellant, James Frazer, pled guilty to a
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            fourteen  count indictment charging  conspiracy to commit and

            the commission of bank fraud in violation of 18 U.S.C.    371

            & 1344.  He was sentenced to a term of imprisonment of thirty

            months.  In imposing  this sentence, the court applied  a two

            level upward adjustment for  obstruction of justice, pursuant

            to  U.S.S.G.  3C1.1.  The  court also denied Frazer's request

            for a two level downward adjustment in his sentence, pursuant

            to U.S.S.G.  3B1.2(b), on the ground that he had been a minor

            participant.   Frazer appeals both the  upward adjustment and

            the denial of the downward adjustment in his sentence.  

The facts in this case are not in dispute.  According to

            the Pre-Sentence Report, Frazer was a participant with ten to

            fifteen  other individuals in a scheme to defraud banks.  The

            scheme  involved the illegal  acquisition of  business checks

            and check writing machines, the acquisition of information on

            actual  account  holders,  and  the  manufacturing  of  false

            identification.    A stolen  check  was made  payable  to the

            actual account holder who  was identified on the check  as an

            employee  of  the business  from  which  the check  had  been

            obtained.  A conspirator then would  go to each branch of the

            actual account holder's bank and, using false identification,

            either  cash  the  check  or  split  deposit  it,  i.e.,  the

            conspirator would deposit part and receive part in cash.  The

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scheme  defrauded banks  throughout  New England  of tens  of

            thousands of dollars.   Frazer  was one of  the "runners"  or

            check cashers in this scheme.    From July to September 1991,

            Frazer  cashed checks  which  defrauded banks  of over  eight

            thousand  dollars.  He received  one third of  the total take

            from his role in the scheme.

                 After pleading  guilty, Frazer was released  on bail and

            scheduled  to be  sentenced on  December 2,  1992.   This was

            later  continued by the court until December 7, 1992.  Frazer

            did not appear on December 7.  A bench warrant was issued and

            Frazer was arrested on January 5, 1993.  On January 13, 1993,

            he  appeared before the court and  was sentenced.  Due to his

            previous failure  to appear  for sentencing, the  court found

            Frazer willfully to have obstructed justice and increased his

            sentence, pursuant to U.S.S.G.  3C1.1.1

Frazer contends  that the court erred  when it increased

            his  offense  level two  levels  for  obstructing justice  by

            willfully  failing to  appear  at his  sentencing hearing  on

            December 7, 1992.   Frazer argues first that the  court erred

            when it allowed the government to recall a witness to correct

            earlier  testimony as to the  date of his  failure to appear.

            He  also contends  that  the government  failed  to meet  its

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            1.    Subsequently, Frazer was indicted and  pled guilty to a
            violation  of 18 U.S.C.  3146(a)(1) for his failure to appear
            at sentencing.  

                                         -3-

burden of proving by a preponderance of the evidence that his

            failure  to appear was "willful."   We find  merit in neither

            argument.

                 On the  afternoon of  the sentencing hearing  on January

            13, 1993, the  court allowed the government  to recall Deputy

            Marshall Shurtleff.  The government had previously rested its

            case after the  morning recess.   Shurtleff had testified  on

            that  morning that he had been in  court on December 2, 1992,

            and that Frazer had  failed to appear for sentencing  on that

            date.   When the court returned for its afternoon session, it

            became  apparent that there  was confusion as  to whether the

            sentencing hearing at which Frazer  had not appeared had been

            on December 2 or on December 7.  Over Frazer's objection, the

            court  allowed   the  government  to  recall   Shurtleff  who

            testified that he had been mistaken in his  morning testimony

            and that in fact the date of the hearing had been December 7.

                 We  find  no  merit  in  appellant's  objection  to  the

            admission of this evidence.  To be sure, the defendant enjoys

            a due process right to be sentenced only upon information the

            court  has  determined to  be  neither  false nor  materially

            incorrect.  United  States v.  Curran, 926 F.2d  59, 63  (1st
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            Cir. 1991).   In this case,  however, there is no  claim that

            the amended  testimony was inaccurate  nor that the  error in

            the  morning  testimony  was   due  to  anything  other  than

            confusion  caused by the change in sentencing dates.  We find

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the sentencing court to have been  well within its discretion

            in  allowing  the  government  to  recall  Shurtleff  and  in

            permitting him to amend  his previous testimony.  See  Id. at
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            61 ("district  court has broad discretion  in the information

            it  may  receive and  consider  regarding  defendant and  his

            conduct").  

                      According to the commentary to Section 3C1.1 of the

            Sentencing Guidelines,  a defendant's offense level  is to be

            increased  two  levels  for  obstruction  of  justice  if  he

            "willfully  fail[s] to  appear,  as ordered,  for a  judicial

            proceeding."   U.S.S.G.  3C1.1,  comment. (n.3(e)).   As with

            other upward adjustments, the  government bears the burden of

            proving  the  requisite  facts  by  a  preponderance  of  the

            evidence.  United  States v.  Aymelek, 926 F.2d  64, 67  (1st
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            Cir. 1991).  This  court reviews a finding of  obstruction of

            justice only for clear error.  United States v. McCarthy, 961
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            F.2d 972, 978 (1st Cir. 1992).

                 In  this  case,  Frazer  stipulated  at  the  sentencing

            hearing that he was  aware of the requirement that  he attend

            his  sentencing hearing on December 7, 1992, and the evidence

            that  he  did  not  attend is  undisputed.    Frazer  argues,

            however, that  the government presented no  evidence that his

            absence was  willful.   In particular,  he suggests  that his

            absence  may have been due to  a "mind-altering state, caused

            by cocaine" and that he thus did not possess the mens rea for
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obstruction of justice.   At the sentencing hearing, however,

            Frazer's  attorney  only suggested  that  cocaine  use was  a

            possible  "scenario" for  explaining  his client's  absence.2

            No representation was  made that  this had in  fact been  the

            reason for Frazer's absence on December 7.  Nor was there any

            proffer of proof to this effect.

                 Courts which have considered the mens rea requirement of
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            U.S.S.G.   3C1.1  have  found  that  it  "requires  that  the

            defendant consciously  act  with the  purpose of  obstructing

            justice."  United  States v.  Thompson, 962  F.2d 1069,  1071
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            (D.C.Cir. 1992), cert. denied,  113 S.Ct. 1418 (1993) (citing
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            United  States v.  Lofton, 905  F.2d 1315,  1317 (9th  Cir.),
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            cert. denied, 498  U.S. 948  (1990)).    "[K]nowledge of  the
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            requirements placed upon  him by the court  and his conscious

            decision to ignore its mandates" have been found central to a

            finding of willfulness.   United States  v. Monroe, 990  F.2d
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            1370, 1376 (D.C.Cir. 1993) (citing United States v. Teta, 918
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            F.2d 1329, 1334 (7th  Cir. 1990) and United States  v. Perry,
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            908  F.2d  56, 59  (6th Cir.),  cert.  denied, 498  U.S. 1002
                                            ____   ______

            (1990));  see  also, McCarthy,  961  F.2d  at 980  (upholding
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            upward adjustment  under  3C1.1 where "[d]efendant  was fully

            aware that he was delaying his sentence by fleeing").  

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            2.   Frazer's  attorney did  indicate that Frazer  had tested
            positive for cocaine when he reported to the probation office
            in November 1992.

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In   the  instant   case,   the   government   presented

            uncontradicted evidence  that Frazer  was, as a  condition of

            bail,  required  to  report  for the  sentencing  hearing  on

            December 7, 1992 and that he did not appear.   Frazer himself

            stipulated  to  having been  aware  of  the sentencing  date.

            Moreover,  evidence was  presented  that he  made no  effort,

            after  the hearing date, to  contact the court  or the United

            States Marshals Office prior  to his arrest in January.3   On

            this basis,  the sentencing court found that "the elements of

            the offense  of willfully  failing to appear  have occurred."

            The  evidence  supporting  the  finding  was  circumstantial.

            However,  the  court  did  not commit  clear  error  when  it

            inferred from  this evidence  that Frazer's absence  from the

            sentencing hearing was willful.   See e.g. Teta, 918  F.2d at
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            1332 (upholding finding of  "willful" failure to appear where

            sentencing court found credible evidence that  defendant knew

            he was to appear on date but did not).

Frazer also  asserts that the sentencing  court erred in

            refusing to  grant him  a two level  downward adjustment  for

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            3.   Frazer  unavailingly seeks analogous  support in  United
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            States  v. Stroud,  893  F.2d 504  (2d  Cir. 1990),  for  his
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            assertion  that mere  failure  to appear  is insufficient  to
            establish willfulness.   Stroud found that mere flight in the
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            immediate aftermath of a crime  is not obstruction of justice
            because it is "instinctual"  and a "natural attempt  to avoid
            apprehension."   Id.  at  508.   Frazer's  failure to  report
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            either for sentencing on  December 7 or during the  next five
            weeks is clearly more conscious behavior.

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having  been a minor participant  in the bank  fraud scheme. 

            He contends that,  while the conspiracy to defraud  the banks

            involved  a complex  scheme,  including stealing  checks from

            businesses, the acquisition of information on account holders

            and the production  of false identification, his  role in the

            scheme  was limited  to  the cashing  of  checks.   Moreover,

            Frazer  notes  that  he was  not  the  only  "runner" in  the

            conspiracy.4   According  to  Frazer, he  was "less  culpable

            than  most  other  participants"  in  the  scheme  and  hence

            entitled to the two point downward  adjustment for having had

            a  minor role.  U.S.S.G.   3B1.2, comment. (n.3).   We review

            role  in the  offense  determinations only  for clear  error.

            United  States v.  St. Cyr,  977 F.2d  698, 705-06  (1st Cir.
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            1992); United States v. Gregorio, 956 F.2d 341, 344 (1st Cir.
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            1992). 

                 Frazer  bears   the   burden  of   establishing   by   a

            preponderance  of  the  evidence  that he  is  entitled  to a

            downward adjustment  for his  role in  the  offense.   United
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            States  v.  Ocasio-Rivera, 991  F.2d  1, 3  (1st  Cir. 1993).
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            Furthermore,  the mere  fact that  a  defendant is  the least

            culpable  among those  charged  does not  entitle  him to  an

            adjustment for  having had  a  minor role.  United States  v.
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            Daniel,  962  F.2d 100,  103 (1st  Cir.  1992).   Rather, the
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            4.   Frazer  did, however,  cash more checks  than any  other
            runner in the scheme.

                                         -8-

defendant must show that  his conduct was "substantially less

            culpable than  the  average participant."   U.S.S.G.   3B1.2,

            comment. (backg'd); Gregorio, 956 F.2d at 344.
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                 In  this case, the court found that Frazer's role in the

            offenses with which he was charged was "no less important and

            significant to the successful  completion of this scheme than

            the  other participants,  with perhaps  the exception  of the

            organizers."  In  each instance  he  was  the individual  who

            entered  the bank and  cashed the check.5   The fact that the

            defendant may have  had a  lesser role in  a larger  criminal

            activity with which he was not charged is not relevant to any

            role  in the offense adjustment.  See  Id. (appellant's focus
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            on wider fraud rather than the particular offense with  which

            he was charged irrelevant to role in the offense adjustment);

            United  States v.  Cepeda, 907  F.2d 11,  12 (1st  Cir. 1990)
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            (even  if defendant  had a  lesser involvement  in  the large

            conspiracy  he  is  not  entitled  to  role  in  the  offense

            adjustment because  his role in the offense of conviction was

            not  "minor").   The court  also found  that Frazer  may have

            contributed to the conspiracy  through his involvement in the

            illegal obtaining of  one of the check  writing machines used

            by  the  conspirators.    Given  the  deference  owed  to the

            sentencing court  in  factual determinations,  we cannot  say

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            5.    Although  the  bank  fraud  conspiracy  included  other
            runners, Frazer was charged only with those instances of bank
            fraud in which he cashed the check.

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that  the court  was  clearly erroneous  in determining  that

            Frazer did  not have a minor role in the charged conspiracy. 

            See Gregorio,  956 F.2d  at 344  (criminal conduct  not minor
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            where it was "important" to the criminal enterprise charged);

            United  States v. Ocasio, 914  F.2d 330, 333  (1st Cir. 1990)
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            (same).  

                 The sentence imposed by the district court is affirmed.
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