U. S. v. Farrow

Decision Date06 August 1999
Docket NumberNo. 98-4057,98-4057
Citation198 F.3d 179
Parties(6th Cir. 1999) United States of America, Plaintiff-Appellee, v. David J. Farrow, Defendant-Appellant. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Northern District of Ohio at Akron, No. 98-00101--Sam H. Bell, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Edward G. Bryan, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant.

Phillip J. Tripi, OFFICE OF THE U.S. ATTORNEY, Cleveland, Ohio, for Appellee.

Before: NELSON and MOORE Circuit Judges; ROSEN, District Judge. *

ROSEN, D.J., delivered the opinion of the Court, in which NELSON, J., concurred except as to Part IV.B and MOORE, J., concurred except as to Part IV.C. NELSON (pp. 200-02), and MOORE (pp. 202-05), JJ., delivered separate opinions concurring in part and dissenting in part.

OPINION

ROSEN, District Judge.

I. INTRODUCTION

Defendant/Appellant David J. Farrow appeals from his conviction and thirty-six (36) month sentence for assault on a federal officer in violation of 18 U.S.C. § 111(a)(1). Farrow raises four arguments on appeal: (1) that the evidence at trial was insufficient to sustain a conviction; (2) that the trial court engaged in impermissible double counting by imposing a four-level enhancement under United States Sentencing Guideline ("U.S.S.G") §2A2.2(b)(2) for otherwise using a dangerous weapon; (3) that the trial court erred by imposing a three-level enhancement under U.S.S.G. § 3A1.2(a) for the official status of the victim; and (4) that the District Court abused its discretion by failing to grant a downward departure based on Farrow's alien status. For the reasons stated below, we affirm the District Court's determinations on three of these four issues, but conclude that the application of U.S.S.G. §2A2.2(b)(2) does, in this case, constitute impermissible double counting.

II. FACTUAL BACKGROUND

Defendant/Appellant David J. Farrow entered the United States from Great Britain on March 27, 1994 for an authorized visit of up to 90 days pursuant to the Visa Waiver Pilot Program. 2 During this visit, Farrow intended to marry his fiance, Gail Walker, an American citizen from Ohio who Farrow had met on a 1993 trip to the United States to visit his aunt. Walker and Farrow were wed on May 28, 1994 in Farmington, Ohio, but the relationship quickly deteriorated and the couple separated four months later. During their separation, the couple had a child, Tiffany Walker, who was born on February 8, 1995 and lives with her mother.

Shortly before Farrow's 90-day visitation period was set to expire, he and Walker obtained paperwork from the Immigration and Naturalization Service ("INS") that would have permitted him to remain in the country as the spouse of an American citizen. Following the couple's separation, however, Walker elected not to file this paperwork. Instead, she notified the INS in March of 1997 that Farrow had remained in the United States beyond his period of authorization.

Several months passed before the INS pursued this lead. Eventually, on February 5, 1998, INS Agent Timothy Ward embarked upon an effort to locate Farrow. Agent Ward first spoke with Darren LaForce, the manager of an apartment complex in Burton, Ohio, where Farrow had stayed from time to time. When Agent Ward inquired about Farrow's whereabouts, LaForce asked in turn about the nature of Agent Ward's inquiry. Although Agent Ward advised LaForce that he was pursuing an INS investigation, and although he "quick[ly]" flashed a badge, LaForce declined to provide any information, citing the variety of inquiries he receives about apartment residents and his uncertainties about Agent Ward's identity and the purpose of his visit. (J.A. at 174-76.)

Agent Ward next proceeded to West Farmington, Ohio, where he spoke with Farrow's friend, Don Malone. Agent Ward gave his name, stated that he was with a "law enforcement agency," and advised Malone that he needed to "serve some paperwork on" Farrow. (J.A. at 139.) Like LaForce, Malone failed to provide any information on Farrow's whereabouts. As Agent Ward left, he noticed a vehicle parked nearby and copied down its license plate number. He later learned that this car was registered to Farrow.

Finally, Agent Ward telephoned Farrow's estranged wife, Gail Walker. Walker informed Agent Ward that Farrow was scheduled to visit her apartment in Warren, Ohio, that very night at 10:00 p.m. Agent Ward also learned that Walker had arranged for a process server to serve divorce papers on Farrow during his scheduled visit.

In the meantime, Farrow learned that afternoon about Agent Ward's efforts to locate him. In a written statement given to the INS on February 7, 1998, Farrow stated that he had learned on February 5 that an immigration agent named Tim Ward was looking for him, and that Don Malone also had advised him that day that a law enforcement officer was looking for him. (J.A. at 238.) In addition, Darren LaForce testified at trial that Farrow had visited him at around 2:30 p.m. that afternoon, and that Farrow already was aware that the INS was looking for him regarding "some paperwork he needed to sign." (J.A. at 176-77.)

Later in the day, Farrow visited a friend, Stanley Allison, and informed Allison that he was going to meet his wife at her apartment later that evening. Allison testified at trial that he advised Farrow to "watch his self and that it might be some kind of a set up," because "when people are not getting along, or like getting a divorce or something, you know, people do strange things." (J.A. at 144.) 3

That evening, Agent Ward and INS Special Agent Mark Baskfield arrived at Walker's apartment at approximately 9:00 p.m., dressed in plain clothes. Process server Thomas Cool and a friend, Gordon Pflager, also had just arrived at the apartment, and all four men learned from Walker's mother that Walker was not home, that Farrow had already stopped by the apartment at approximately 7:00 p.m., and that he planned to return at around 10:00 p.m. Armed with this information, the INS agents invited the two other men to wait for Farrow in the agents' unmarked car, 4 which was parked in the apartment parking lot with a view of the entire complex. The INS agents asked Cool and Pflager to wait for the agents to complete their interview with Farrow before serving him with the divorce papers.

At approximately 9:50 p.m., Farrow arrived at the apartment complex, driving a car that matched the description obtained by the INS agents. It was dark at that hour, but the parking lot was illuminated. Farrow drove past the government vehicle, continued through the parking lot, and backed into a space at the end of the lot, parking next to a van on the passenger side of his vehicle. Without activating the police lights, Agent Ward followed Farrow to the end of the lot and stopped in front of the van, at a location where Farrow's view of the INS vehicle was obscured by the van. All four men then exited the INS vehicle and approached Farrow's car from around the van. Agents Ward and Baskfield did not identify themselves as INS officers, show their badges, or display any weapons.

As Agent Ward walked in front of Farrow's car toward the driver's side, Farrow shifted his car into gear, pulled forward, and struck Ward on the left knee. 5 Agent Ward deflected the impact by jumping onto the hood of the car, and he and Agent Baskfield began to yell "police," "stop," and "federal agents." While Agent Ward remained on the hood of the car, Farrow continued to pull his vehicle out of its parking space, turned right, and sideswiped the right front bumper of the INS vehicle. As Farrow traveled a few car lengths past the INS vehicle, Agent Ward drew his gun, put it to the windshield, and yelled, "Stop. Police." Farrow stopped the car and Agent Baskfield, who had pursued on foot, removed Farrow from the car and placed him under arrest. As Agent Baskfield removed Farrow from the car, Farrow began to apologize. Agent Ward suffered minor injuries to his left knee from the incident.

Two days later, Agents Ward and Baskfield interviewed Farrow and obtained a written statement from him. In this statement, Farrow cited the prior threat from his wife and her neighbor as the reason why he "panicked" when he saw men approaching his car on the night of February 5, 1998. (J.A. at 238-39.) In an oral statement to Agent Baskfield, Farrow claimed that he was not concerned that an INS agent was looking for him, and that he was unsure whether he could stay in the United States, in light of his marriage and his daughter born in the country. (J.A. at 158.)

III. PROCEDURAL BACKGROUND
A. The Charge and Trial

On March 11, 1998, Farrow was charged in a one-count indictment with knowingly and forcibly assaulting a federal officer, in violation of 18 U.S.C. § 111(a)(1) and punishable under 18 U.S.C. § 111(b). 6 Specifically, the indictment alleged that Farrow used a motor vehicle to assault Agent Ward while the INS agent was engaged in the performance of his official duties.

Trial commenced on May 19, 1998 before U.S. District Judge Sam H. Bell. The jury returned a verdict of guilty on May 22, 1999. By Order issued July 16, 1998, the District Court denied Farrow's motion for judgment of acquittal or new trial.

B. The Sentencing

Following Farrow's conviction, the United States Probation Department prepared a Presentence Investigation Report stating that Farrow was subject to the enhanced penalty of 18 U.S.C. § 111(b), and assigning a base offense level of 15 under the sentencing guideline for aggravated assault, U.S.S.G. § 2A2.27. The sentencing report then applied three enhancements to this base offense level: (1) a four-level enhancement under U.S.S.G. § 2A2.2(b)(2)(B) for "otherwise us[ing]" a...

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