U.S. v. Grap

• Decision Date: 07 May 2004
• Docket Number: No. 03-3047.,03-3047.
• Citation: 368 F.3d 824
• Parties: UNITED STATES of America, Appellee, v. James GRAP, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

368 F.3d 824

UNITED STATES of America, Appellee, v. James GRAP, Appellant.

No. 03-3047.

United States Court of Appeals, Eighth Circuit.

Submitted: March 9, 2004.

Filed: May 7, 2004.

COPYRIGHT MATERIAL OMITTED

Gary G. Colbath, Jr., argued, Rapid City, SD, for appellant.

John E. Haak, Asst. U.S. Atty., argued, Sioux Falls, SD (Mark A. Vargo, Asst. U.S. Atty., Sioux Falls, SD, on the brief), for appellee.

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and COLLOTON, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

James Grap was convicted of violating 18 U.S.C. § 1512(b)(1) by tampering with a witness during the pendency of an earlier case. Mr. Grap had attempted to influence the testimony of his victim before he pleaded guilty to aggravated sexual abuse pursuant to a plea agreement. Before he pleaded guilty to the witness tampering charge, Mr. Grap filed a motion to dismiss the indictment, contending that the government's prosecution of this offense violated its plea agreement with him in the earlier case. The district court¹ denied his motion to dismiss, then accepted his guilty plea and sentenced him to 42 months imprisonment, to be served consecutively to the sentence imposed for the sex offense. He now appeals the district court's denial of his motion to dismiss and its application of the sentencing guidelines. We affirm.

I.

In Mr. Grap's plea agreement with respect to the sex offense, the government promised that in exchange for his guilty plea to one count of aggravated sexual abuse, it would dismiss a second count and would not further prosecute him "based on the information and evidence now available to the United States regarding [his] involvement with regard to the two factual scenarios underlying the two counts of the indictment." The government also promised in the plea agreement that, "unless there is significant evidence disclosed in the presentence investigation to the contrary," it would recommend that the district court "find that [Mr. Grap] clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, and in recognition thereof" that he receive a sentence reduction in accordance with U.S.S.G. § 3E1.1.

Mr. Grap signed this plea agreement on 25 March, 2002. The government signed and filed the agreement on 26 March, and Mr. Grap pleaded guilty to aggravated sexual abuse, in accordance with the agreement, on 27 March. The day before he signed the agreement, Mr. Grap asked a friend named Johnny Alvarez to talk to the sexual abuse victim at her school and tell her to go to the United States Marshal's office and state that she had lied in making the allegation that led to Mr. Grap's indictment. He further instructed Mr. Alvarez to tell her that if she did so, he would move away and he would not hurt her. He also told Mr. Alvarez that he had "some people that want to kick her ass" and "some people willing to smoke her ass." Finally, he instructed Mr. Alvarez to tell the victim that he would be friends with her if she went to the authorities and stated that she lied, but that otherwise "I got some friends that are willing to come after her."

Later the same day, Mr. Alvarez called the victim's home and spoke with the victim's sister, telling her that he had just talked to Mr. Grap, and that he was relaying a message to the victim that Mr. Grap wanted her to say that she was lying when she reported the sexual abuse because that would keep him from going to prison. Mr. Alvarez did not relay Mr. Grap's statements that if the victim failed to recant the allegation, people unnamed would "kick her ass," "smoke her ass," or "come after her." After this phone call, the victim's sister told the victim what had happened, the two sisters told their mother, the mother immediately contacted law enforcement officials, and on 25 March the government initiated an investigation into the witness contact.

Mr. Grap was sentenced for the sex offense about three months after he asked Mr. Alvarez to contact the victim and he entered into the plea agreement. The government concedes that it finished its investigation of the witness tampering incident before Mr. Grap was sentenced for the sex offense, and that it consciously withheld the information about the witness tampering from the district court and Mr. Grap's attorney during the sentencing process. At the time of sentencing, despite its knowledge of the witness tampering in relation to the sex offense, the government did not retreat from its promise to recommend to the court that Mr. Grap receive a sentence reduction for accepting responsibility for the offense.

About six months after the sentencing, the government indicted Mr. Grap for the instant offense based on his attempt to pressure the victim into lying about the occurrence of the sexual abuse. In contrast to the positions that it took during the sentencing that Mr. Grap deserved a reduction in his sentence because he had demonstrated an acceptance of responsibility for his commission of the aggravated sexual abuse, and that there was no evidence that Mr. Grap had engaged in obstructive conduct warranting a sentence enhancement, the government indicted Mr. Grap for "knowingly and corruptly persuad[ing] and attempt[ing] to persuade [the victim] by requesting that she lie in the [rape case] with the intent to influence her testimony in the [rape case]."

In his motion to dismiss his witness tampering indictment, Mr. Grap argued that the indictment violated his due process rights by violating the promise that induced his guilty plea, and he requested that the district court "specifically enforce his prior plea agreement and hold the government to its promises made therein." The district court refused to do so, concluding that the witness tampering prosecution did not violate the plea agreement because the agreement not to prosecute Mr. Grap further for certain conduct did not encompass the conduct that was the basis for the witness tampering charge. On appeal, he continues to argue that the witness tampering charge was barred by the plea agreement and thus violated his due process rights. He also contends, for the first time on this appeal, that the government's pre-indictment delay was unreasonable and violated his due process rights, and that the witness tampering prosecution was barred by the doctrine of judicial estoppel. Because he failed to raise these latter two arguments in the district court, we review them only for plain error. See United States v. Robinson, 110 F.3d 1320, 1324, cert. denied, 522 U.S. 975, 118 S.Ct. 432, 139 L.Ed.2d 331 (1997).

II.

The government contends that we should not consider the merits of Mr. Grap's arguments that it was prohibited from prosecuting him for witness tampering, because he waived those claims by pleading guilty to the witness tampering charge following the district court's denial of his motion to dismiss the indictment. Cf. Blackledge v. Perry, 417 U.S. 21, 29-31, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The matter of waiver is more complicated than it might initially appear, but we need not address it because we think that Mr. Grap's arguments are rather easily disposed of on the merits.

A.

The district court determined that the witness tampering charge was not within the scope of the government's agreement not to initiate any further prosecutions against Mr. Grap "based on the information and evidence now available to the United States regarding [his] involvement with regard to the two factual scenarios underlying the two counts of the indictment." We agree. Even assuming that the witness tampering charge was "based on the information and evidence ... available to the United States" on the effective date of the plea agreement, we conclude that the charge included facts sufficiently distinct from Mr. Grap's "involvement with regard to the two factual scenarios underlying" the two counts of sexual abuse to fall outside the purview of the agreement. The conduct that formed the basis for the witness tampering charge amounted to a third "factual scenario" occurring several months after the second incident of sexual abuse. It is true that this "scenario" would not have occurred but for the incidents of abuse, but it was conceptually and temporally distinct from the abuse itself. We thus reject Mr. Grap's argument that the government violated his due process rights by breaking the promise that it made in the plea agreement.

B.

Mr. Grap also contends that the government's delay in indicting him for witness tampering until after his sentencing in the sexual abuse case violated his fifth amendment due process rights. "[A]n unreasonable pre-accusation delay, coupled with prejudice to the defendant, may violate the Fifth Amendment." United States v. Jackson, 504 F.2d 337, 339 (8th Cir.1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975); see also United States v. Marion, 404 U.S. 307, 324-26, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). To prevail on his claim that pre-indictment delay warranted dismissal of his witness tampering indictment, Mr. Grap is required to show "both that the government deliberately delayed in order to gain a tactical advantage and that the delay prejudiced him in presenting his case." United States v. Carlson, 697 F.2d 231, 236 (8th Cir.1983). Alleged prejudice is insufficient to establish a due process violation if it is "insubstantial, speculative, or premature." United States v. Golden, 436 F.2d 941, 943 (8th Cir.1971), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971). Rather, Mr. Grap must show that he has been "actually and substantially prejudiced" by the delay. United States v. McDougal, 133 F.3d 1110, 1113 (8th Cir.1998).

We conclude that Mr. Grap's due process argument is without merit because he has failed to demonstrate that the delay actually and substantially prejudiced him. That is because it is quite clear that Mr. Grap's sentence was shorter...