U.S. v. Reed

• Decision Date: 10 March 1995
• Docket Number: No. 666,D,666
• Citation: 49 F.3d 895
• Parties: UNITED STATES of America, Appellee, v. Mark REED, Defendant-Appellant. ocket 94-1180.
• Court: U.S. Court of Appeals — Second Circuit

Page 895

49 F.3d 895

UNITED STATES of America, Appellee, v. Mark REED, Defendant-Appellant.

No. 666, Docket 94-1180.

United States Court of Appeals Second Circuit.

Argued Jan. 11, 1995.

Decided March 10, 1995.

Joshua W. Nesbitt, Asst. U.S. Atty., Albany, NY (Thomas J. Maroney, U.S. Atty. for the N.D.N.Y., Albany, NY, on the brief), for appellee.

Colleen P. Cassidy, New York City (The Legal Aid Society, Federal Defender Div., Appeals Bureau, New York City, on the brief), for defendant-appellant.

Before KEARSE, McLAUGHLIN, and PARKER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Mark Reed appeals from a judgment entered in the United States District Court for the Northern District of New York following his plea of guilty before Frederick J. Scullin, Jr., Judge, convicting him on one count of conspiracy to distribute and to possess with intent to distribute cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988), and one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. Sec. 371 (1988) and 18 U.S.C. Sec. 1341 (Supp. II 1990), and sentencing him principally to 144 months' imprisonment, to be followed by a four-year term of supervised release. On appeal, Reed challenges his sentence, contending principally that the court enhanced his offense level pursuant to Sec. 3C1.1 of the federal Sentencing Guidelines ("Guidelines") for obstruction of justice, without making the requisite finding that his obstructive conduct was willful. For the reasons that follow, we agree and therefore vacate and remand for resentencing.

I. BACKGROUND

In April 1993, pursuant to a plea bargain, Reed pleaded guilty to the above mail-fraud and narcotics-distribution conspiracy charges. He admitted to participating with the brothers Daniel and David Richburg in a scheme to have various recruited individuals cash fraudulent checks for them; the coconspirators compensated their recruits by supplying them with crack cocaine. The plea agreement noted that the narcotics count carried a 10-year minimum term of imprisonment and that the mail fraud count carried a 5-year maximum term. As part of the plea bargain, Reed agreed to cooperate by testifying against the Richburgs, and the government agreed to consider recommending a sentence reduction under Guidelines Sec. 5K1.1 and/or Fed.R.Crim.P. 35(b) if Reed provided substantial assistance in the investigation or prosecution of a person who had committed an offense. In order to facilitate Reed's continuing cooperation, the government agreed to support a motion for his release on bail.

The plea agreement also stated the parties' understanding as to the proper calculation of Reed's Guidelines offense level, including a statement that, assuming Reed continued to satisfy the requirements of Guidelines Sec. 3E1.1, his offense level would be reduced by three steps for acceptance of responsibility. Paragraph p 4(A)(1)(d) of the plea agreement stated the parties' understanding that Guidelines "Sec. 3C, concerning 'obstruction', is not applicable at this time." (Emphasis in original.)

Reed was ordered released on bail on April 29, 1993, subject to certain conditions of release. In addition, because at the time of his arrest on the present charges he was on supervised release from a prior unrelated conviction, he remained subject to the conditions of his original supervised release. Among the conditions to which Reed was subject were requirements that he (a) not commit any further crimes, (b) not associate with persons engaged in criminal behavior, (c) maintain his residence at 379 8th Street in Troy, New York (the "Troy residence"), (d) keep monthly contact with his probation officer, and (e) keep daily contact with an agent of the Federal Bureau of Investigation ("FBI") with whom he was to cooperate. The April 29, 1993 order for Reed's release ("bail order") further provided, in pertinent part, that

[t]he defendant shall appear at all proceedings as required and shall surrender for service of any sentence imposed as directed. The defendant shall next appear as so notified to appear.

(Bail order (emphasis added).) At the April 26 plea hearing, the court had scheduled sentencing for July 23, 1993. The April 29 bail order, however, did not specify a date for Reed's further court appearance; rather the emphasized language quoted above was typed in on the line normally used on the bail release form to give precise notice of such a date.

Reed's sentencing date was twice postponed, first to October 22 and then to November 19. In the meantime, the Probation Office completed a presentence report ("PSR") recommending, inter alia, a three-step reduction for acceptance of responsibility. Reed cooperated in the prosecution of the Richburgs, and as a consequence, in a letter dated November 18, 1993, the government moved for a downward departure under Guidelines Sec. 5K1.1. However, the government urged the court not to depart to any great extent, stating that Reed had returned to criminal behavior while on release and had not provided assistance in capturing other narcotics traffickers.

On November 19, Reed failed to appear for sentencing. The district court issued a bench warrant for his arrest. On December 15, 1993, Reed was arrested in Albany, New York, which is some eight miles from Troy, by local police and agents of the Drug Enforcement Administration ("DEA"). When the officers broke into the house in which Reed was located (the "Albany house"), Reed dove out of a window and ran for 1 1/2 blocks before he was captured.

As a result of Reed's failure to appear for sentencing on November 19, the Probation Office submitted an amended PSR stating that the court, in its discretion, might therefore adjust Reed's offense level upward for At the hearing, the government called various agents and officers to testify to Reed's failure to report as required during his period of release on bail. Probation officer Timothy Murphy testified that Reed was supposed to have reported to Murphy once a month following his April 29 release, and that Murphy had told Reed he could be flexible and coordinate his reporting with his visits to FBI agent Gregory Pack, with whom Reed was cooperating. Murphy stated that Reed had reported to him at least once a month through August 6, 1993. Thereafter, Reed did not report to Murphy, and Murphy kept only casual contact with Reed through Pack. In October, Murphy tried to contact Reed at the Troy residence and was informed by Reed's girlfriend that Reed had not been there for four months.

obstruction of justice and deny him credit for acceptance of responsibility. At Reed's eventual sentencing hearing, the government pressed for these results. Reed resisted, arguing, inter alia, that he had not been informed in advance of the November 19 sentencing date. He also stated that when the officers arrived to arrest him on December 15, he had believed they were criminals seeking to retaliate against him for cooperating with the authorities. An evidentiary hearing was held.

FBI agent Pack testified that although Reed was supposed to have maintained daily contact with the FBI he had not done so. Pack stated that he had spoken with Reed by telephone on several occasions and in person twice, and that Reed had ceased to maintain contact with Pack in July. Pack made several attempts to contact Reed through Reed's family and acquaintances but was unsuccessful.

DEA agent John Rice testified that he had had dealings with Reed following Reed's arrest in 1988 and that in June 1993, Reed contacted Rice and DEA agent Ulie Delgado to initiate cooperation with the DEA because of difficulties with the FBI. Reed offered to help in investigating and apprehending certain individuals whom the DEA suspected of involvement in narcotics trafficking. Rice and Delgado sought clearance from their supervisor to register Reed as an informant; the supervisor approved, apparently after obtaining an "okay" from "the Bureau." (Sentencing Transcript dated March 24, 1994 ("March 24 Tr."), at 32.) From June until August, Reed maintained contact with the DEA agents by calling their beeper numbers once or twice a week. In August regular contact ceased, but Reed helped to set up the arrest of a drug courier in early September. The DEA agents thereafter had only occasional conversations with Reed, the last in a telephone call initiated by Reed after his November 19 failure to appear for sentencing. Rice testified that in this final conversation, agent Delgado told Reed that Reed "was in somewhat of a tight spot and the best thing for him to do would be to turn himself in." (Id. at 46.)

Rice also described Reed's arrest in December. Rice had received a tip that Reed was at the Albany house. The agents' plan was for Rice to telephone the house, hoping to have Reed answer so that Rice could verify his presence. Rice testified that "[s]imultaneous [with Rice's call, a team of other law enforcement agents] went in through the front door and was standing in the hallway. As they were hearing the phone ring, they heard movement inside the house. Upon that, I observed Mr. Reed exit the front window of the house and basically do a nose dive on the pavement." (Id. at 35.) Reed "fled by foot, and then he rounded, then he headed north about a block and a half before he was apprehended." (Id.) On cross-examination, Rice testified that he believed that the agents had knocked at the door before entering. When asked whether the officers had identified themselves as law enforcement officers, Rice answered, "Yes. As Mr. Reed hit the sidewalk, we started yelling police." (Id. at 43.)

Reed testified on his own behalf. He stated that he had contacted the DEA because he was comfortable with Rice from past dealings but was uncomfortable with Pack. Reed stated his understanding that the DEA agents obtained approval from their superiors for Reed to work with them instead of the FBI; he testified that the DEA...