U.S. v. McDowell, Nos. 89-3265

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore SLOVITER, GREENBERG, and ROSENN; ROSENN; Roth's
Citation888 F.2d 285
PartiesUNITED STATES of America v. John W. McDOWELL, Jr., Appellant. . Submitted Under Third Circuit Rule 12(6)
Docket NumberNos. 89-3265,89-3266
Decision Date03 October 1989

Page 285

888 F.2d 285
UNITED STATES of America
v.
John W. McDOWELL, Jr., Appellant.
Nos. 89-3265, 89-3266.
United States Court of Appeals,
Third Circuit.
Submitted Under Third Circuit Rule 12(6)
October 3, 1989.
Decided Oct. 25, 1989.

Page 286

E. Thomas Maxwell, Jr., Baltimore, Md., for appellant.

Page 287

William C. Carpenter, Jr., U.S. Atty., Richard G. Andrews, First Asst. U.S. Atty., Wilmington, Del., for appellee.

Before SLOVITER, GREENBERG, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal of the sentence meted out to the appellant, John W. McDowell, Jr., presents a question of first impression for this court. We must initially determine the burden of proof with respect to facts relevant in the calculation of a sentence under the new Sentencing Guidelines. Then we must determine this court's scope of review with regard to those determinations of fact.

McDowell pled guilty to a count of knowingly making a false statement material to the lawfulness of the sale of a firearm in violation of 18 U.S.C. Sec. 922(a)(6), a count of knowingly possessing a firearm in and affecting commerce in violation of 18 U.S.C. Sec. 922(g)(1), and a count of operating an illegal gambling operation in violation of 18 U.S.C. Sec. 1955. The district court adjusted his offense level upwards for having obstructed justice by suborning the testimony of his son, and declined to adjust the offense level downwards for acceptance of responsibility for the commission of the offenses. As a result of these calculations, the court sentenced the appellant to a twenty-four month term of imprisonment.

On appeal, McDowell challenges this sentence on three grounds. He first claims that the court abused its discretion in allowing the disclosure of his son's grand jury testimony which it is alleged that he suborned. Next, he challenges the court's determination that he suborned his son's testimony. Finally, he contends that he should have been granted the reduction for acceptance of responsibility on all but one of the counts. We affirm the sentence imposed.

I.

A. Imposition of the Sentence

The Government charged John W. McDowell, Jr., in two separate indictments: Criminal Action No. 88-26 charged him with three counts of weapons violations under 18 U.S.C. Sec. 922(a)(6) and two counts under 18 U.S.C. Sec. 922(g)(1), and Criminal Action No. 88-28 charged him and others with one count of maintaining a gambling business in violation of 18 U.S.C. Sec. 1955 and one count of conspiracy to conduct an illegal gambling business in violation of 18 U.S.C. Sec. 371. In a pretrial conference pursuant to the first indictment, as part of a plea bargain agreement, McDowell changed his not guilty plea on two of the weapons violations counts to guilty. The court accepted the plea agreement and scheduled a sentencing hearing. Prior to this hearing, the Government filed a motion to disclose grand jury information with respect to the grand jury testimony of McDowell's son, John W. McDowell, III. The court granted this motion.

Before his sentencing, McDowell withdrew his guilty plea and a trial was scheduled. On the day of trial, McDowell again requested, and was granted, permission to change his plea on two counts of the first indictment and one count of the second indictment to guilty. The court again scheduled a sentencing hearing.

Prior to the sentencing hearing, Senior U.S. Probation Officer Eugene Mayhew compiled a presentence investigation report. Mayhew's report concluded that based upon

the apparent contradiction between the statement of Mr. McDowell's son to the investigating agents and his testimony before the grand jury, as well as the statement of the owner of Steele's Gun Shop ... Mr. McDowell's offense level should be increased two levels. More specifically, he appears to have suborned untruthful testimony by his son before the grand jury.

Mayhew also asserted that McDowell's offense level should not be adjusted downward for acceptance of responsibility because he had suborned testimony. See Sentencing Guidelines Sec. 3E1.1(c) application note 4. McDowell objected to this

Page 288

report and requested and was granted an evidentiary hearing. At the hearing the court found that McDowell had suborned his son's testimony.

At the sentencing hearing Judge Roth determined the base offense level for the weapons charges to be nine for each offense. See Sentencing Guidelines Sec. 2K2.1. She then upwardly adjusted the level for the count of knowingly possessing a firearm in and affecting commerce by two, to eleven, for McDowell's having suborned testimony. See Sentencing Guidelines Sec. 3C1.1 application note 1(c). She determined the base level offense for the gambling violation to be twelve and made no adjustments. See Sentencing Guidelines Sec. 2E3.1. The offenses were then combined, pursuant to Guidelines Sec. 3D1.4, to arrive at an offense level of fifteen. The judge then declined to adjust this to reflect any acceptance of responsibility. Based upon this offense level, the judge sentenced McDowell to a twenty-four month prison term.

B. Young McDowell's Testimony

On April 26, 1988, the appellant's son, John McDowell, III, testified before the Grand Jury in the District of Delaware. He testified that he owned and purchased the AR-15 firearm which the Delaware State Police seized in the December 20, 1987, search of his father's home. He explained that he had brought the gun to Delaware on December 19, 1987, from Florida, where he was a student. If this testimony were accurate, it would have completely exculpated his father for the charges relating to the AR-15.

The grand jury testimony directly conflicted with answers the younger McDowell had given to Treasury Department agents just four days prior. On April 22, 1988, McDowell was questioned at his mother's home and in his mother's presence by Bureau of Alcohol, Tobacco, and Firearms Special Agent Swartswelder and Internal Revenue Commission Special Agent Amato. He told the special agents that he had never owned nor had ever purchased a firearm. He also told them that he had only been in Delaware once in 1987, at Eastertime, and that he had not seen his father since either 1984 or 1985. The interview ended when Swartswelder showed McDowell a copy of a firearm transaction dated April 23, 1987, for an AK-47 rifle which bore the signature of John W. McDowell, III. McDowell responded, "This is pretty good," and refused to answer any more questions. Special Agent Amato then served him with a grand jury subpoena.

The accuracy of the version of the facts which the younger McDowell reported to the special agents is independently supported by the testimony of Charles Steele, owner of Steele's Gun Shop. Steele positively identified the AR-15 rifle seized as the gun which McDowell had brought to him for repairs in October 1987. Assuming this to be true, then McDowell had the gun prior to December 19, 1987, when his son claims first to have brought the gun from Florida.

The appellant, although admitting that his son's grand jury testimony was perjured, vehemently denies that he did anything to induce the perjury. He did, however, make three phone calls to his son during the time that the special agents were interviewing him. The senior McDowell alleges that he first called to welcome his son home. He next called to pass on advice from counsel that his son should not speak with the special agents unless subpoenaed to do so. The final call, he claims, he made not to his son at all, but to agent Amato to tell him to leave his son alone. Furthermore, appellant accompanied his son, along with McDowell III's mother (the appellant's ex-wife) and attorney, to the Grand Jury.

II.

Appellant's first assertion is that his son's grand jury testimony never should have been admitted into evidence, because to do so unjustifiably breached the secrecy of the grand jury proceedings. Necessarily, excluding the grand jury testimony would result in a recalculation of McDowell's sentence because without the grand

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jury testimony it would be impossible to prove the perjury in his son's testimony.

As a matter of public policy, grand jury proceedings generally must remain secret except where there is a compelling necessity. United States v. Proctor & Gamble, 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1957). As Federal Rule of Criminal Procedure 6(e) notes:

A grand juror, an interpreter, a stenographer of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any person to whom disclosure is made ... shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules.

Although government attorneys are entitled to disclosure of grand jury proceedings, except for deliberation and the votes of the jurors, because of their presence in the grand jury room during the presentation of evidence, Fed.R.Crim.P. 6(e) advisory committee's note, more extensive disclosure is also permitted "when so directed by a court preliminary to or in connection with a judicial proceeding." Fed.R.Crim.P. 6(e)(3)(C)(i).

To support a motion for a judicially ordered disclosure of grand jury testimony, a party must show a particularized need for that information which outweighs the public interest in secrecy. United States v. Proctor & Gamble Co., supra at 683, 78 S.Ct. at 986. Once such a need is shown, the district court "must weigh the competing interests and order so much disclosure as needed for the ends of justice." In re Grand Jury Matter (Catania), 682 F.2d 61, 62 (3d Cir.1982). In balancing the competing interests, the district court "necessarily is infused with substantial discretion." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979). This court must analyze a district court's decision to disclose grand jury information only to determine if there...

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193 practice notes
  • U.S. v. Sanchez, Nos. 89-1600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...are proven by a preponderance of the evidence. See United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989); United States v. McDowell, 888 F.2d 285, 291 (3rd Cir.1989); United States v. Urrego-Linares, 879 F.2d 1234, 1238 (4th Cir.1989); Wilson, 900 F.2d at 8 See, e.g., United States v. Vi......
  • Doe v. U.S., No. Civ.A. 99-912.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 23, 2000
    ...conduct based upon a preponderance of the evidence. See United States v. Paulino, 996 F.2d 1541 (3d Cir.1993); United States v. McDowell, 888 F.2d 285 (3d Cir.1989). According to petitioner, this practice cannot be reconciled with the Apprendi In Apprendi, the Supreme Court overturned a sen......
  • U.S. v. Atlantic States Cast Iron Pipe Co., Criminal No. 03-852(MLC).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 23, 2009
    ...the CVRA. A defendant has a due process right not to be sentenced based upon materially false information. See United States v. McDowell, 888 F.2d 285, 290 (3d Cir.1989) (citing Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) and United States v. Cifuentes, 863 F.2......
  • U.S. v. Williams, No. 02-2928.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 18, 2003
    ...of the situation in determining whether the defendant accepted responsibility.'" Id. at 806 (quoting United States v. McDowell, 888 F.2d 285, 293 n. 2 (3d Cir.1989)). There, we determined that the District Court in assessing the totality of the situation erred in granting an acceptance......
  • Request a trial to view additional results
194 cases
  • Doe v. U.S., No. Civ.A. 99-912.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 23, 2000
    ...conduct based upon a preponderance of the evidence. See United States v. Paulino, 996 F.2d 1541 (3d Cir.1993); United States v. McDowell, 888 F.2d 285 (3d Cir.1989). According to petitioner, this practice cannot be reconciled with the Apprendi In Apprendi, the Supreme Court overturned a sen......
  • U.S. v. Atlantic States Cast Iron Pipe Co., Criminal No. 03-852(MLC).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 23, 2009
    ...the CVRA. A defendant has a due process right not to be sentenced based upon materially false information. See United States v. McDowell, 888 F.2d 285, 290 (3d Cir.1989) (citing Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) and United States v. Cifuentes, 863 F.2......
  • U.S. v. Williams, No. 02-2928.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 18, 2003
    ...totality of the situation in determining whether the defendant accepted responsibility.'" Id. at 806 (quoting United States v. McDowell, 888 F.2d 285, 293 n. 2 (3d Cir.1989)). There, we determined that the District Court in assessing the totality of the situation erred in granting an accept......
  • US v. Patriarca, Cr. No. 89-289-WF.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • August 19, 1992
    ...at 1100; the fact that the sentencing decision is rarely ever as crucial as the decision regarding guilt, see United States v. McDowell, 888 F.2d 285, 290 (3rd Cir. 1989); and the fact that overburdened trial courts cannot conduct time-consuming hearings, see Lee, 818 F.2d at However, as Ju......
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