U.S. v. Frazier

• Decision Date: 12 June 1992
• Docket Number: No. 91-5865,91-5865
• Citation: 971 F.2d 1076
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Malcolm FRAZIER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1076

971 F.2d 1076

61 USLW 2063

UNITED STATES of America, Plaintiff-Appellee, v. Malcolm FRAZIER, Defendant-Appellant.

No. 91-5865.

United States Court of Appeals Fourth Circuit.

Argued April 10, 1992.

Decided June 12, 1992.

Leonard A. Kaplan, Asst. Federal Public Defender, Charleston, W.Va., for defendant-appellant.

Phillip Blair Scott, Asst. U.S. Atty. (Michael W. Carey, U.S. Atty., on the brief), Charleston, W.Va., for plaintiff-appellee.

Before WILKINSON and LUTTIG, Circuit Judges, and KIDD, Senior United States District Judge for the Northern District of West Virginia, sitting by designation.

OPINION

LUTTIG, Circuit Judge:

Malcolm Frazier appeals a sentencing decision by the United States District Court for the Southern District of West Virginia denying him an acceptance of responsibility reduction pursuant to U.S.S.G. § 3E1.1. He challenges the district court's denial of the reduction as improper under the guideline itself and unconstitutional under the Fifth Amendment. We conclude that the district court fully complied with the requirements of U.S.S.G. § 3E1.1 in denying appellant an acceptance of responsibility reduction and that appellant was not denied his rights under the Fifth Amendment. We therefore affirm.

I.

Sometime after May 18, 1990, appellant stole a shipment of 200 American Express Money Orders, each payable up to $300, that was en route to Boca Raton, Florida. J.A. at 3. At some point after July 25, 1990, he also stole 1,000 Great Western Money Orders, each payable up to $5,000, that were en route to Deerfield Beach, Florida. Id. Appellant thus stole money orders with a total potential face value of $5,060,000. All of the stolen money orders were issued by the American Express Travel Related Service Company. Id. at 56.

Appellant and his accomplices thereafter used a check-writing machine and typewriter to forge these money orders and then, using false identification, cashed the money orders throughout the eastern United States, Puerto Rico, and Canada. Id. at 77-78. By the early fall of that year, over $159,000 of the money orders had been cashed. Id. at 16.

Eduardo Rivero was one of appellant's accomplices in this scheme. In August, 1990, appellant and Rivero traveled to Vermont and Montreal, Canada, and successfully cashed $54,000 in money orders. Id. at 5, 80-82. In September, the two men traveled to Charleston, West Virginia, where appellant intended to establish his base of operations. Id. at 5. Rivero was arrested on September 27, 1990, after having attempted to cash three of the money orders in the Charleston area: one at the First Empire Federal Savings and Loan branch in Dunbar, one at the One Valley Bank branch in South Charleston, and one at the American Automobile Association office in Charleston. Id. at 4, 37-39.

Pursuant to a plea agreement, see id. at 40-42, appellant conditionally pled guilty on March 22, 1991, to three counts of aiding and abetting the utterance of forged securities in violation of 18 U.S.C. §§ 2, 513(a), relating to the three money orders cashed in the Charleston area, and to one count of conspiracy to make, utter, and possess forged securities in violation of 18 U.S.C. §§ 371, 513(a). ¹ J.A. at 3539, 59-60. He also stipulated to the uttering of ten forged money orders to the Vermont National Bank so that they would comprise part of the relevant conduct for purposes of sentencing. Id. at 58. In return, the United States Attorney for the District of Vermont agreed not to prosecute him for any violations of federal law arising from his negotiation of those specific money orders. Id. at 41. At his Rule 11 hearing, appellant admitted that he stole the 1,200 money orders. Id. at 77-78.

The presentence report filed with the district court did not recommend that appellant receive the acceptance of responsibility reduction available under U.S.S.G. § 3E1.1. ² At that time, 56 of the $300 money orders and 605 of the $5,000 money orders were still unaccounted for, representing an outstanding potential loss of $3,041,800. Id. at 28. Noting that appellant "has knowledge of, and in all likelihood control over, negotiable instruments that may result in significant losses yet he refuses to convey that knowledge deferring [sic] instead to acknowledge conduct of which the government is already aware," the report concluded that he had failed to show an affirmative acceptance of responsibility. Id. at 8; see also id. at 7.

As detailed in a Supplemental Addendum to the Presentence Report, Frazier subsequently returned an additional 469 of the $5,000 money orders, leaving money orders worth potentially $698,800 in circulation. Id. at 28, 104-05. However, because the probation officer believed that "Frazier [was] using the instruments as a negotiation tool," he continued to recommend against the acceptance of responsibility reduction. Id. at 28.

The district court conducted a sentencing hearing on July 26, 1991, at which the acceptance of responsibility reduction was the only contested issue. Id. at 91. Appellant argued at this hearing that he had done everything he could to return or account for all of the remaining money orders, even though 136 of the $5,000 money orders and 56 of the $300 money orders remained outstanding. Id. at 104-05. Believing that the recovery of the missing money orders was "an important aspect of the adjustment for acceptance of responsibility," the court continued the hearing, stating:

It seems to me some analysis needs to be made of what took place, and then the court informed of what efforts have been made to recover them. I want to see all 192 of those money orders, or in the event that some remain missing, I want to know the rationale that covers the stated loss.

Id. at 109.

Per the court's instructions, appellant prepared a detailed account of what had happened to the missing money orders. Id. at 143-59. Insofar as is relevant here, appellant stated that he had given the twenty $300 money orders numbered between 75200 and 75219 "to another individual from Tampa, Florida." Id. at 143. At an August 23, 1991, sentencing hearing, the court asked appellant to reveal the identity of that individual. Id. at 116. Appellant refused to answer on the grounds that identification of the individual might expose appellant to further prosecution because the plea agreement did not include an immunity agreement as to any of the substantive uttering offenses other than those arising out of the ten money orders cashed in Vermont. Id. at 117. Appellant also refused the court's request to name his accomplices in this scheme. Id. at 117-18.

The Government argued with respect to the acceptance of responsibility reduction that appellant admitted stealing all of the money orders; that while the indictment did not charge specific substantive crimes with relation to each of the 1,200 money orders, "the conspiracy count subsumes the possession of [all of them]," id. at 125-26; and that appellant is therefore responsible for procuring the return of the money orders. Appellant contended that although all of the money orders should be considered in computing the relevant conduct for sentencing, they were not part of the conspiracy alleged in count one, which included only the distributions in Vermont and Charleston. Id. at 126. Thus, "as to this conspiracy as alleged, the money orders are accounted for." Id. at 127.

For the reasons discussed below, the district court denied appellant the acceptance of responsibility reduction. Id. at 129-31. Appellant challenges that denial on appeal, first, on the grounds that in contravention of U.S.S.G. § 3E1.1, the court adopted a per se rule requiring total cooperation with the Government in order to receive the reduction. Second, appellant argues that the court applied section 3E1.1 so as to unconstitutionally penalize him for exercising his Fifth Amendment right against self-incrimination.

II.

Appellant first contends that the district court "set up and applied a per se rule--no complete assistance, no acceptance--without regard to whether Frazier had indicated his acceptance in other ways and without addressing why only incomplete assistance was rendered." Appellant's Br. at 7. According to appellant, the district court is required to "consider all factors that are relevant to acceptance of responsibility, e.g., Frazier's guilty plea, his remorse and contrition, all of the information and assistance that he did provide, his refusal to identify the person to whom he gave the 15 money orders, and his reasons for refusing." Id. ³

A district court is not required to appraise ritualistically each and every factor in application note 1. Note 1 provides that the enumerated factors are merely "appropriate considerations" for the court in deciding whether to grant a sentence reduction. The district court in this case based its decision denying appellant a reduction in sentence on a number of factors--some of which would have supported a sentence reduction and others that counseled against a reduction.

As factors weighing against reduction, the court noted that appellant has not "voluntarily made payment of restitution in any amount to this point"; that he has "failed in very significant part" to "fully assist the authorities in the recovery of the fruits of the offense," declining "to reveal to whom those money orders have been turned over"; and that he "has simply turned over to the authorities what it appears that the defendant wished to do in the hope that he might do just enough to gain acceptance of responsibility." J.A. at 129-31. In favor of a reduction, the court considered both that appellant "ha[d] come in and pled guilty to the charges in this case" and that he "ha[d] recovered and turned over some of the money orders." Id. at 129-30.

It is clear from the record, therefore, contrary to appellant's suggestion, that the district court did not base its sentence reduction decision on the fact alone...