USA v. Frazier
| Decision Date | 23 May 2000 |
| Docket Number | Nos. 99-1441,99-1654,s. 99-1441 |
| Citation | 213 F.3d 409 |
| Parties | (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Eric L. Frazier, Jacoby Walker and Michael Mason, Defendants-Appellants. & 99-1720 |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. [Copyrighted Material Omitted] Before Posner, Chief Judge, and Bauer and Rovner, Circuit Judges.
This is a consolidated direct appeal by three defendants convicted of various offenses stemming from a crack cocaine conspiracy. The defendants raise numerous issues on appeal. For the reasons stated below, we affirm in part and reverse in part.
From approximately 1983 to 1997, Michael Mason led a conspiracy to distribute powder cocaine and crack cocaine in the Gary, Indiana area. On July 17, 1997, a federal grand jury returned an eight- count indictment for conspiracy to possess with intent to distribute cocaine and cocaine base and related offenses against Mason Jacoby Walker, and Eric Frazier.1 They all pled not guilty. On November 20, 1997, a third superseding indictment was returned charging Mason with ten counts, Walker with seven counts and Frazier with six counts.2
After the superseding indictment, Frazier tendered his plea of guilty on January 6, 1998. The plea agreement provided that in return for his cooperation, the government would file a 5K1.1 departure motion for substantial assistance, a 15 year cap on his sentence and the dismissal of the other charges. On January 27, 1998, Frazier testified for the government against Mason and Walker. On April 17, 1998, the government filed a notice of its intention not to file the 5K1.1 motion and instead requested an enhancement for perjury and that Frazier not be granted acceptance of responsibility. Frazier objected and filed a motion to compel the government to file the 5K1.1 motion and an alternate motion to withdraw his guilty plea. Proceedings were held and the district court denied both motions. The court relieved the government from its duty to file the 5K1.1 motion and sentenced Frazier to life imprisonment. The court enhanced Frazier's sentence for obstruction of justice, pursuant to the Sentencing Guidelines section 3C1.1 and found that he had not accepted responsibility for the crime.
Mason and Walker went to trial.3 On January 30, 1998, after a five day jury trial, both Mason and Walker were found guilty on all counts. On March 12, 1999, the district court dismissed one of the firearms counts against both Mason and Walker and entered judgment on the verdicts.
Walker was sentenced to life imprisonment under 21 U.S.C. sec.sec. 841(a)(1) (), 846 (conspiracy to possess with intent to distribute crack cocaine) and 861(a)(1) (). This sentence was to run concurrently with a ten- year sentence under 26 U.S.C. sec. 5861(d) for possessing an unregistered firearm. Additionally, the court imposed a thirty-year sentence to run consecutively for carrying a silencer-equipped gun "during and in relation to" the charged drug conspiracy under 18 U.S.C. sec. 941(c)(1).
The court arrived at that sentence after imposing a two-level enhancement for obstruction of justice under U.S.S.G. sec. 2D1.1 and a three- level enhancement for an aggravating role as a manager or supervisor of criminal activity under U.S.S.G. sec. 3B1.1(b). This raised Walker's base offense level from thirty-eight to an adjusted offense level of forty-three, which combined with a criminal history category of III, required a life sentence under the Guidelines.
Mason's base offense level was thirty-eight, reflecting the total quantity of drugs involved in the conspiracy. The court then added a two- level enhancement for obstruction of justice under U.S.S.G. sec. 3C1.1 and an additional four- level enhancement for his role as an organizer or leader of the conspiracy. A total offense level of forty-six, combined with a criminal history category of I, called for a life sentence plus the thirty years to run consecutively for carrying a silencer-equipped gun "during and in relation to" the charged drug conspiracy under 18 U.S.C. sec. 941(c)(1).
Mason and Walker raise several arguments on appeal. First, they argue that their convictions were based on improperly admitted hearsay testimony and evidence regarding the activities of John Allen and his organization. The government presented evidence that established that since 1996, John Allen supplied cocaine to Mason. Allen, who owned Elite Electronics4 which supplied and serviced pagers, also provided Mason's organization with pagers. The pagers allowed callers to leave messages that would be sent by a computer at Elite Electronics to the customer's pager. Mason's girlfriend, Monica Linear, worked at Elite for several months transmitting messages to the pagers. Runners for Allen, Samuel Johnson and Anthony Franklin, delivered cocaine to Mason at either the Stony Island car lot operated by Mason or his house. Occasionally, Allen gave cocaine to Mason on credit.
Second, Mason and Walker argue insufficiency of the evidence with regard to the carrying of a pistol with a silencer during the commission of a drug transaction. Several witnesses testified to the use of guns in collection of drug debts including Frazier's testimony of hitting Little Vic with a gun and pulling a gun on Courtney Johnson. Ronald Radford, a former employee of the car lot and security guard, testified to purchasing guns for Mason and his organization.
After Mason's arrest Joe Torrence, a seventeen year old, hid the silencer in his dryer in the basement of his home at 26th and Tyler. Frazier then brought him an ounce of cocaine, which he put in the dryer and removed the silencer to his room where it remained until the Gary Police confiscated it a month later. The .22 caliber Colt semi-automatic was sent to the ATF laboratory. The silencer was found to be effective as a silencer as defined by federal statute. It was not registered.
Finally, Mason and Walker raise several arguments on the calculation of their sentences. Specifically that the court improperly enhanced their sentences for obstruction of justice. Walker also argues that the court incorrectly enhanced his sentence for finding that he was a manager/supervisor in the organization and that the court miscalculated his criminal history category.
Frazier appeals the district court's denial of his motion to compel the government to file a 5K1.1 departure motion for substantial assistance per his plea agreement. Frazier's plea agreement provided that, in exchange for his cooperation, the government would file a sec. 5K1.1 departure motion and that the parties would agree to a sentencing cap of fifteen years. The plea agreement further provided:
ii. I further understand that this sentencing agreement is based on my continuing cooperation with the United States and my agreement to always provide truthful and complete information and testimony; I also understand that if I fail to provide complete, truthful and candid information and testimony as required by this plea agreement, the government will not be obligated to file the departure motion and I will not be allowed to withdraw my guilty plea; I further understand that the Court can then sentence me to any term of imprisonment with the applicable guideline range.
At the plea hearing the court discussed the agreement with Frazier, at which time the court inquired into his knowledge and understanding of the agreement. Including the following question and answer:
On January 27, 1998, Frazier then testified as a government witness. On April 17, 1998, the government filed a notice to disavow its obligation to file the 5K1.1 motion, requesting an enhancement for perjury and denial of acceptance of responsibility. Frazier objected and urged the government to file a sentencing memorandum noting the alleged perjury, which the government did on November 10, 1999. Frazier moved to strike the memorandum due to tardiness or in the alternative for a continuance. On November 12, 1999 the court granted the motion to strike but allowed the government to refile which it did the next day. The memorandum alleged perjury, specifically regarding Frazier's statement that he could get probation or immunity through his cooperation. Frazier then filed a motion to compel the government to file a sec. 5K1.1 motion and an alternate motion to withdraw his guilty plea. On January 6, 1999, a sentencing hearing was held.
During the hearing, the government introduced a document attached to Mason's motion for new trial ("Mason Document"), which was signed by Frazier. It was not signed under oath. In the document Frazier recanted his trial testimony, claiming he lied about the defendants because of the government's promise of leniency. At the sentencing hearing, Frazier claimed those statements were false. The judge made Frazier go through it paragraph by paragraph stating whether or not they were true or false.
The district court then denied Frazier's motion stating:
There is no doubt in this court's mind that this defendant did not live up to his end of the bargain that he made with the government. The testimony at trial that he has made promises other than what he told me the promises were when I took his plea, that in itself is sufficient to allow the government not to file it.
Therefore, the court will not compel the government to file the 5K1.1 motion.
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