U.S. v. Schroeder
| Decision Date | 25 April 1990 |
| Docket Number | No. 89-1209,89-1209 |
| Parties | UNITED STATES of America, Plaintiff/Appellee, v. Ronald SCHROEDER, Defendant/Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James K. Bredar, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, D. Colo., with him on the brief), Denver, Colo., for defendant-appellant.
Thomas M. O'Rourke, Asst. U.S. Atty. (Michael J. Norton, Acting U.S. Atty., with him on the brief), Denver, Colo., for plaintiff-appellee.
Before McKAY and EBEL, Circuit Judges, and WEST, * District Judge.
Defendant was convicted of one count interstate communication of a threat to injure the person of another in violation of 18 U.S.C. Sec. 875(c). Prior to the use of threatening language, the defendant sued the government in certain civil suits pro se for denial of employment preference under the Veterans Readjustment Act. Defendant had no success with these cases. At one point, defendant spoke to a William Pharo, Assistant United States Attorney, regarding his inability to obtain relief from the government. During the telephone conversation with Mr. Pharo, the defendant stated that it would be easy to get a gun and walk into a post office and start shooting. The defendant also stated that the government either gives the defendant money or people would get hurt. Finally, the defendant stated that the government will either pay in money or blood. Mr. Pharo related this information to the grand jury who indicted the defendant under Section 875(c). The defendant was adjudged guilty by a jury, and the court sentenced the defendant to eighteen months in custody and three years' supervised release. The court enhanced the defendant's sentence three levels pursuant to a finding that Mr. Pharo was an "official victim" under Sec. 3A1.2, Guidelines Manual, which allows enhancing the sentence for victims with certain governmental status, including Assistant United States Attorneys.
The defendant assigns the following three errors. First, the defendant asserts that the District Court erred in not granting a continuance based on Defendant's incompetency due to sleep deprivation. Second, the defendant states that the evidence at trial was insufficient to convict the defendant of the crime charged. Third, the defendant states that the District Court erred in computing the offense level under the sentencing guidelines by adding three offense levels upon a finding that Mr. Pharo was an official victim.
For the reasons stated below, this Court AFFIRMS the trial court's denial of continuance on the sleep deprivation issue, and further AFFIRMS on the sufficiency of evidence to convict the defendant. This Court REVERSES on the computation of offense level, reducing the offense level by three and reducing defendant's sentence to twelve months.
On the day of trial, defendant's attorney requested that the trial be continued on the basis that his client suffered from sleep deprivation. The court asked to hear an offer of proof, whereupon defendant's attorney stated that defendant Schroeder would testify that he was not thinking clearly and was not comfortable going to trial in a sleep-deprived state. The trial court explained that it had successive criminal cases each week of that month and that in order for the trial to be carried over defendant Schroeder would have to waive his right to a speedy trial. Defendant Schroeder advised his counsel that he would not waive his right to speedy trial. After further discussion, the court, assuming the offer of proof to be true, nevertheless denied the request for delay. At that point, defendant's counsel asked the defendant if he would waive his right to a speedy trial, which defendant again refused. The Court concluded other preliminary matters and asked: "Is there anything else you need to put on the record, Mr. Bredar?" [Attorney for defendant.] To which counsel for defendant responded: Tr. Vol. III, p. 32.
Defendant now claims that the trial court erred in denying a continuance because the trial court failed to place the defendant on the stand to determine his state of awareness. This Court disagrees. Defendant's counsel had an opportunity to...
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