U.S. v. Fernandez

• Citation: 127 F.3d 277
• Decision Date: 10 October 1997
• Docket Number: D,No. 1592,1592
• Parties: UNITED STATES of America, Appellee, v. Rafael A. FERNANDEZ, aka "Rafa", Defendant-Appellant. ocket 96-1673.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 277

127 F.3d 277

UNITED STATES of America, Appellee, v. Rafael A. FERNANDEZ, aka "Rafa", Defendant-Appellant.

No. 1592, Docket 96-1673.

United States Court of Appeals, Second Circuit.

Argued June 4, 1997.

Decided Oct. 10, 1997.

Adria De Landri, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Robert E. Rice, Assistant United States Attorney, New York City, on the brief), for Appellee.

Michael M. Milner, New York City (Emily R. Daniel, Milner & Daniel, New York City, on the brief), for Defendant-Appellant.

Before: NEWMAN, KEARSE, and CALABRESI, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Rafael A. Fernandez appeals from a judgment entered in the United States District Court for the Southern District of New York following his plea of guilty before John F. Keenan, Judge, convicting him of receiving and selling stolen vehicles, in violation of 18 U.S.C. § 2313 (1994), and of conspiring to do so, in violation of 18 U.S.C. § 371 (1994). Fernandez was sentenced principally to 46 months' imprisonment, to be followed by a three-year term of supervised release, and was ordered to pay $220,000 in restitution. On appeal, he contends that he was entitled to a downward adjustment for acceptance of responsibility and a downward departure for assistance to the government or to the legal system; and he contends that the district court erred in enhancing his sentence for obstruction of justice. Finding no merit in his contentions, we affirm.

I. BACKGROUND

From June 1992 to November 1993, Fernandez and others participated in a scheme in which they bought stolen cars and trucks in the Bronx, New York, and sold them, often to innocent third parties, through an automobile dealer in New Jersey. The ring would obtain from individuals in the Dominican Republic genuine certificates of origin covering vehicles that had been legitimately exported to that country from the United States; the thieves in the United States would then steal vehicles whose year, make, and model matched those certificates and would alter the stolen vehicles' identification numbers to match the numbers on the certificates.

A. Fernandez's Cooperation with the Government

In November 1993, Fernandez was arrested by the New Jersey State Police in connection with these activities. He soon began to cooperate with the police and the Federal Bureau of Investigation ("FBI"). His cooperation included introducing an FBI undercover agent to individuals in the Bronx from whom Fernandez had purchased stolen vehicles, and, under FBI supervision, traveling to the Dominican Republic to meet with the individuals who provided the certificates of origin. Fernandez's cooperation continued throughout the government's extensive investigation of the car theft ring. The investigation culminated in the execution of numerous search warrants and the indictment and arrests of 29 ring members in the Southern District of New York.

On the eve of those arrests, Fernandez entered into a formal agreement with the government, pursuant to which he agreed to cooperate with the government and to plead guilty to the substantive and conspiracy counts described above. (Letter from United States Attorney's Office to Ira D. London, Esq., dated January 25, 1995 ("Cooperation Agreement" or "Agreement").) The Cooperation Agreement required that Fernandez, inter alia, "truthfully and completely disclose all information with respect to the activities of himself and others concerning all matters about which th[e United States Attorney's] Office inquires of him," and "commit no further crimes whatsoever." (Cooperation Agreement at 2.)

The Agreement provided that, if the United States Attorney's Office determined that Fernandez "has provided substantial assistance in an investigation or prosecution, and if he has fully complied with the understandings specified in this Agreement, th[e] Office will file a motion, pursuant to Section 5K1.1 of the Sentencing Guidelines, requesting the Court to sentence Rafael Fernandez in light of the factors set forth in Section 5K1.1(a)(1)-(5)." (Cooperation Agreement at 3.) However, it also provided that

[i]t is understood that, should this Office determine that Rafael Fernandez has not provided substantial assistance in an investigation or prosecution, or has violated any provision of this Agreement, such a determination will release this Office from any obligation to file a motion pursuant to Section 5K1.1 of the Sentencing Guidelines (Id. at 4.)

but will not entitle Rafael Fernandez to withdraw his guilty plea once it has been entered.

B. Fernandez's Breach of the Cooperation Agreement

The prosecution of the 29 indicted defendants was ultimately divided into three cases, and the government intended to call Fernandez as a witness in two of them. The first trial, at which Fernandez was expected to testify against defendants Fernando Pena and Armando Torres, was scheduled for November 14, 1995, before District Judge Allen G. Schwartz. On November 8, however, Torres's attorney Charles D. Adler requested an ex parte conference with Judge Schwartz. In that conference, Adler informed the judge that Fernandez had approached Torres, trying to extort money from him and offering to have Fernandez's attorney "fix" Torres's case. Fernandez had proposed that Torres pay him $10,000, which would supposedly be used by Fernandez's lawyer to bribe Judge Schwartz to sentence Torres to a term of probation rather than imprisonment.

Torres had recorded several of the conversations in which Fernandez laid out this scheme. Adler requested an adjournment of trial and an authorization of funds pursuant to the Criminal Justice Act in order to enhance and transcribe the tapes. He also asked that the substance of his ex parte disclosures to the court not be revealed to either Assistant United States Attorney ("AUSA") assigned to the case. On November 8, Judge Schwartz granted an adjournment until January 1996 and so informed counsel for all parties; he initially disclosed the substance of the ex parte communication only to the senior management of the United States Attorney's Office.

Immediately after being informed of the adjournment, the two AUSAs in charge of the case, along with an FBI agent, all as yet unaware of Torres's allegations concerning Fernandez, interviewed Fernandez by telephone. They asked Fernandez when he had last seen or spoken to Torres; Fernandez responded, falsely, that he had not seen or spoken to Torres since approximately January 1995. In fact, Fernandez had had conversations with Torres on three occasions in October 1995, which Torres had tape-recorded, during which they discussed the scheme concerning Torres's sentence.

On November 10, Judge Schwartz convened a conference call with, inter alios, Adler and AUSA Matthew Fishbein, chief of the United States Attorney's Office's Criminal Division, to discuss the substance of Adler's information. The government had received from Adler four tapes, which it had quickly had translated and transcribed. Fishbein stated that although the current translations were rough, they appeared to "corroborate the version that Mr. Adler gave to your Honor the other day":

it does appear that the conversation involves a discussion of a payment of money to be, I guess, transferred ultimately to your Honor to get your Honor to give a more lenient sentence to Mr. Torres.

(United States v. Torres, 95 Crim. 130, Conference Call Transcript, November 10, 1995 ("Torres Transcript"), at 3.) Fishbein stated that "if ... in fact, Mr. Fernandez, the informant, is the one who is talking to Mr. Torres here, I think it is almost inconceivable that he would be a witness at trial." (Id. at 7.) The court agreed that "the government can't at this point put this witness on the stand, to allow that witness to perjure himself and to participate in continuing this crime that he is beginning." (Id. at 18.)

Torres subsequently met with the government and agreed to cooperate. Under government supervision, he made telephone calls to Fernandez that were recorded; he also met with Fernandez in New Jersey and recorded that conversation. In those conversations, Fernandez and Torres again discussed the scheme concerning Torres's sentence. After reviewing these recordings, the government voided its Cooperation Agreement with Fernandez. On the basis of his November 8, 1995 false denials of recent contacts with Torres, Fernandez was arrested and charged with making false statements to federal officers, in violation of 18 U.S.C. § 1001 (1994), a charge that was eventually dismissed. Torres and Pena pleaded guilty to the car theft ring conspiracy, making a trial unnecessary.

The government filed a § 5K1.1 motion on behalf of Torres in light of his "substantial assistance" in the government's investigation of Fernandez, which "enabled the Government to ferret out a duplicitous and deceitful informant." (Letter from United States Attorney's Office to Judge Schwartz in United States v. Torres, 95 Crim. 130, dated June 3, 1996, at 3.)

After the government voided Fernandez's cooperation agreement, Fernandez admitted that he had lied to the government in November 1995 when he claimed not to have spoken to Torres since January of that year. He claimed, however, that he had agreed to accept $10,000 from Torres because Torres had been pestering him, and he was only attempting to get Torres "off his back." Fernandez said he had had no intention of bribing Judge Schwartz but merely meant to pay the money to Fernandez's attorney, who would then represent Torres and argue for a favorable sentence. (See also Letter from Fernandez's new attorney Michael M. Milner, Esq., to Judge Keenan dated October 14, 1996, at 2 ("Mr. Fernandez ... told Torres that his lawyer had a social relationship with Judge Schwartz, the Judge presiding over Mr. Torres' case, and that if Torres could come up with...