U.S. v. Brady, 98-1561

• Decision Date: 07 January 1999
• Docket Number: No. 98-1561,98-1561
• Citation: 168 F.3d 574
• Parties: UNITED STATES of America, Appellee, v. Robert Hugh BRADY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 574

168 F.3d 574

UNITED STATES of America, Appellee, v. Robert Hugh BRADY, Defendant, Appellant.

No. 98-1561.

United States Court of Appeals, First Circuit.

Heard Jan. 7, 1999.

Decided Feb. 26, 1999.

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.

Before BOUDIN, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

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 far too 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, 101 S.Ct. 3112, 69 L.Ed.2d 974 (1981). However, neither obstruction nor an endeavor to obstruct normally violates the statute unless there is a "corrupt" purpose, ¹ 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...