U.S. v. Crisp, 86-5539

• Decision Date: 06 May 1987
• Docket Number: No. 86-5539,86-5539
• Citation: 817 F.2d 256
• Parties: UNITED STATES of America, Appellee, v. Gardner L. CRISP, a/k/a "Crum", a/k/a "Mr. T", Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 256

817 F.2d 256

UNITED STATES of America, Appellee, v. Gardner L. CRISP, a/k/a "Crum", a/k/a "Mr. T", Appellant.

No. 86-5539.

United States Court of Appeals Fourth Circuit.

Argued Oct. 7, 1986.

Decided May 6, 1987.

John Flowers Mark (Michael S. Lieberman; John Kenneth Zwerling; Zwerling, Mark, Ginsberg & Lieberman, Alexandria, Va., on brief), for appellant.

Tommy E. Miller, Asst. U.S. Atty., Norfolk, Va., (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for appellee.

Before WIDENER and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

WIDENER, Circuit Judge:

Defendant Gardner Crisp appeals from his conviction on account of the district court's denial of his motion to strike portions of his presentence investigation report or, in the alternative, to allow him to withdraw his guilty plea. We affirm.

Crisp was indicted on an indictment filed November 20, 1985, along with nine other defendants, on one count of conspiracy to distribute cocaine, 21 U.S.C. Sec. 846; eight counts of distribution of cocaine, 21 U.S.C. Sec. 841(a)(1); and one count of income tax evasion, 26 U.S.C. Sec. 7201. On January 17, 1986, Crisp entered into a plea agreement with the government in which he agreed to plead guilty to the conspiracy and income tax counts, forfeit certain property and testify truthfully against the other co-conspirators. Crisp pleaded guilty and was found guilty on January 17th. In return, the government agreed to drop the remaining charges, and also agreed that statements made by Crisp in his debriefing would not be used against him, even if he were to breach the agreement. Crisp's sentencing hearing was held on February 24, 1986. At the hearing, Crisp objected to certain information contained in the presentence report, and filed a motion entitled "Motion to Strike Portions of the Government's Version of the Offense, or in the Alternative, to Withdraw Defendant's Guilty Plea." The basis for this motion was Crisp's assertion that the government violated the plea agreement by including in the presentence report information from Crisp's debriefing which derived from Crisp under a grant of immunity. Specifically, Crisp objected to a statement in the report that the conspiracy brought roughly one kilogram of cocaine per week into the Tidewater area. ¹ This figure was obtained from the debriefing of another conspirator, Charles Burnette, and was considered by the government to be the most accurate of the figures it possessed. Amounts stated by Crisp and a third defendant, F. Lee Wainwright, were substantially higher. ² The motion was denied by the district court on the ground that the grant of immunity in the plea agreement did not extend to use of Crisp's statements for sentencing in this case.

Although use of the lowest figure available would benefit Crisp, he maintains that use of Burnette's figure violated the plea agreement, which he reads as prohibiting any use of Crisp's statements against him. He argues that had he not agreed to cooperate Burnette would not have pleaded guilty ³ and the figures supplied by Burnette would not have been available to the government. Because we find that the grant of immunity did not reach the use of Crisp's statements for sentencing, we need not address the issue of whether use of Burnette's statements constitutes a derivative use of Crisp's testimony, which theory seems suspect in any event.

Crisp's immunity was granted in the plea agreement by the deletion of a paragraph usually included in such agreements. This paragraph reads as follows:

Furthermore, it is agreed that in the event it is determined that your client has violated any provision of this agreement, all statements made by your client to this office or other designated law enforcement agents to this office or any testimony given by your client before a grand jury or other tribunal, whether prior to or subsequent to this agreement, or any leads from such statement or testimony shall be admissible inevidence in any and all criminal proceedings hereafter brought against your client. Furthermore, your client shall assert no claim under the United States Constitution, any statute, Rule 11(e)(6) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence or any other federal rule that statements made by your client prior to or subsequent to this agreement, or any leads therefrom should be suppressed. It is theintent of this agreement to waive any and all rights in the foregoing respects.

The plea agreement includes the following paragraph, which may or may not have replaced the removed paragraph above referred to:

It is further understood that your client must at all times give complete, truthful and accurate information and testimony and must not commit any further crimes whatsoever. Should your client commit any further crimes or should it be determined that your client has deliberately given false, incomplete or misleading testimony or information, or otherwise violated any provision of this agreement, your client shall thereafter be subject to prosecution for any federal criminal violation of which this office has knowledge, including but not limited to perjury and obstruction of justice....