
USCA1 Opinion

	




          September 7, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1110                                                UNITED STATES,                                      Appellee,                                          v.                                   JAMES E. FRAZER,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Robert P. Woodward on brief for appellant.               __________________               Peter  E.  Papps,  United  States  Attorney,  on  brief  for               ________________          appellee.                                  __________________                                  __________________                 Per Curiam.    Appellant, James Frazer, pled guilty to a                 __________            fourteen  count indictment charging  conspiracy to commit and            the commission of bank fraud in violation of 18 U.S.C.    371            & 1344.  He was sentenced to a term of imprisonment of thirty            months.  In imposing  this sentence, the court applied  a two            level upward adjustment for  obstruction of justice, pursuant            to  U.S.S.G.  3C1.1.  The  court also denied Frazer's request            for a two level downward adjustment in his sentence, pursuant            to U.S.S.G.  3B1.2(b), on the ground that he had been a minor            participant.   Frazer appeals both the  upward adjustment and            the denial of the downward adjustment in his sentence.                   The facts in this case are not in dispute.  According to            the Pre-Sentence Report, Frazer was a participant with ten to            fifteen  other individuals in a scheme to defraud banks.  The            scheme  involved the illegal  acquisition of  business checks            and check writing machines, the acquisition of information on            actual  account  holders,  and  the  manufacturing  of  false            identification.    A stolen  check  was made  payable  to the            actual account holder who  was identified on the check  as an            employee  of  the business  from  which  the check  had  been            obtained.  A conspirator then would  go to each branch of the            actual account holder's bank and, using false identification,            either  cash  the  check  or  split  deposit  it,  i.e.,  the            conspirator would deposit part and receive part in cash.  The                                         -2-            scheme  defrauded banks  throughout  New England  of tens  of            thousands of dollars.   Frazer  was one of  the "runners"  or            check cashers in this scheme.    From July to September 1991,            Frazer  cashed checks  which  defrauded banks  of over  eight            thousand  dollars.  He received  one third of  the total take            from his role in the scheme.                 After pleading  guilty, Frazer was released  on bail and            scheduled  to be  sentenced on  December 2,  1992.   This was            later  continued by the court until December 7, 1992.  Frazer            did not appear on December 7.  A bench warrant was issued and            Frazer was arrested on January 5, 1993.  On January 13, 1993,            he  appeared before the court and  was sentenced.  Due to his            previous failure  to appear  for sentencing, the  court found            Frazer willfully to have obstructed justice and increased his            sentence, pursuant to U.S.S.G.  3C1.1.1                 Frazer contends  that the court erred  when it increased            his  offense  level two  levels  for  obstructing justice  by            willfully  failing to  appear  at his  sentencing hearing  on            December 7, 1992.   Frazer argues first that the  court erred            when it allowed the government to recall a witness to correct            earlier  testimony as to the  date of his  failure to appear.            He  also contends  that  the government  failed  to meet  its                                            ____________________            1.    Subsequently, Frazer was indicted and  pled guilty to a            violation  of 18 U.S.C.  3146(a)(1) for his failure to appear            at sentencing.                                           -3-            burden of proving by a preponderance of the evidence that his            failure  to appear was "willful."   We find  merit in neither            argument.                 On the  afternoon of  the sentencing hearing  on January            13, 1993, the  court allowed the government  to recall Deputy            Marshall Shurtleff.  The government had previously rested its            case after the  morning recess.   Shurtleff had testified  on            that  morning that he had been in  court on December 2, 1992,            and that Frazer had  failed to appear for sentencing  on that            date.   When the court returned for its afternoon session, it            became  apparent that there  was confusion as  to whether the            sentencing hearing at which Frazer  had not appeared had been            on December 2 or on December 7.  Over Frazer's objection, the            court  allowed   the  government  to  recall   Shurtleff  who            testified that he had been mistaken in his  morning testimony            and that in fact the date of the hearing had been December 7.                 We  find  no  merit  in  appellant's  objection  to  the            admission of this evidence.  To be sure, the defendant enjoys            a due process right to be sentenced only upon information the            court  has  determined to  be  neither  false nor  materially            incorrect.  United  States v.  Curran, 926 F.2d  59, 63  (1st                        ______________     ______            Cir. 1991).   In this case,  however, there is no  claim that            the amended  testimony was inaccurate  nor that the  error in            the  morning  testimony  was   due  to  anything  other  than            confusion  caused by the change in sentencing dates.  We find                                         -4-            the sentencing court to have been  well within its discretion            in  allowing  the  government  to  recall  Shurtleff  and  in            permitting him to amend  his previous testimony.  See  Id. at                                                              ___  __            61 ("district  court has broad discretion  in the information            it  may  receive and  consider  regarding  defendant and  his            conduct").                        According to the commentary to Section 3C1.1 of the            Sentencing Guidelines,  a defendant's offense level  is to be            increased  two  levels  for  obstruction  of  justice  if  he            "willfully  fail[s] to  appear,  as ordered,  for a  judicial            proceeding."   U.S.S.G.  3C1.1,  comment. (n.3(e)).   As with            other upward adjustments, the  government bears the burden of            proving  the  requisite  facts  by  a  preponderance  of  the            evidence.  United  States v.  Aymelek, 926 F.2d  64, 67  (1st                       ______________     _______            Cir. 1991).  This  court reviews a finding of  obstruction of            justice only for clear error.  United States v. McCarthy, 961                                           _____________    ________            F.2d 972, 978 (1st Cir. 1992).                 In  this  case,  Frazer  stipulated  at  the  sentencing            hearing that he was  aware of the requirement that  he attend            his  sentencing hearing on December 7, 1992, and the evidence            that  he  did  not  attend is  undisputed.    Frazer  argues,            however, that  the government presented no  evidence that his            absence was  willful.   In particular,  he suggests  that his            absence  may have been due to  a "mind-altering state, caused            by cocaine" and that he thus did not possess the mens rea for                                                             ____ ___                                         -5-            obstruction of justice.   At the sentencing hearing, however,            Frazer's  attorney  only suggested  that  cocaine  use was  a            possible  "scenario" for  explaining  his client's  absence.2            No representation was  made that  this had in  fact been  the            reason for Frazer's absence on December 7.  Nor was there any            proffer of proof to this effect.                 Courts which have considered the mens rea requirement of                                                  ____ ___            U.S.S.G.   3C1.1  have  found  that  it  "requires  that  the            defendant consciously  act  with the  purpose of  obstructing            justice."  United  States v.  Thompson, 962  F.2d 1069,  1071                       ______________     ________            (D.C.Cir. 1992), cert. denied,  113 S.Ct. 1418 (1993) (citing                             ____  ______            United  States v.  Lofton, 905  F.2d 1315,  1317 (9th  Cir.),            ______________     ______            cert. denied, 498  U.S. 948  (1990)).    "[K]nowledge of  the            ____  ______            requirements placed upon  him by the court  and his conscious            decision to ignore its mandates" have been found central to a            finding of willfulness.   United States  v. Monroe, 990  F.2d                                      _____________     ______            1370, 1376 (D.C.Cir. 1993) (citing United States v. Teta, 918                                               _____________    ____            F.2d 1329, 1334 (7th  Cir. 1990) and United States  v. Perry,                                                 _____________     _____            908  F.2d  56, 59  (6th Cir.),  cert.  denied, 498  U.S. 1002                                            ____   ______            (1990));  see  also, McCarthy,  961  F.2d  at 980  (upholding                      ___  ____  ________            upward adjustment  under  3C1.1 where "[d]efendant  was fully            aware that he was delaying his sentence by fleeing").                                              ____________________            2.   Frazer's  attorney did  indicate that Frazer  had tested            positive for cocaine when he reported to the probation office            in November 1992.                                         -6-                 In   the  instant   case,   the   government   presented            uncontradicted evidence  that Frazer  was, as a  condition of            bail,  required  to  report  for the  sentencing  hearing  on            December 7, 1992 and that he did not appear.   Frazer himself            stipulated  to  having been  aware  of  the sentencing  date.            Moreover,  evidence was  presented  that he  made no  effort,            after  the hearing date, to  contact the court  or the United            States Marshals Office prior  to his arrest in January.3   On            this basis,  the sentencing court found that "the elements of            the offense  of willfully  failing to appear  have occurred."            The  evidence  supporting  the  finding  was  circumstantial.            However,  the  court  did  not commit  clear  error  when  it            inferred from  this evidence  that Frazer's absence  from the            sentencing hearing was willful.   See e.g. Teta, 918  F.2d at                                              ___ ___  ____            1332 (upholding finding of  "willful" failure to appear where            sentencing court found credible evidence that  defendant knew            he was to appear on date but did not).                 Frazer also  asserts that the sentencing  court erred in            refusing to  grant him  a two level  downward adjustment  for                                            ____________________            3.   Frazer  unavailingly seeks analogous  support in  United                                                                   ______            States  v. Stroud,  893  F.2d 504  (2d  Cir. 1990),  for  his            ______     ______            assertion  that mere  failure  to appear  is insufficient  to            establish willfulness.   Stroud found that mere flight in the                                     ______            immediate aftermath of a crime  is not obstruction of justice            because it is "instinctual"  and a "natural attempt  to avoid            apprehension."   Id.  at  508.   Frazer's  failure to  report                             __            either for sentencing on  December 7 or during the  next five            weeks is clearly more conscious behavior.                                         -7-            having  been a minor participant  in the bank  fraud scheme.             He contends that,  while the conspiracy to defraud  the banks            involved  a complex  scheme,  including stealing  checks from            businesses, the acquisition of information on account holders            and the production  of false identification, his  role in the            scheme  was limited  to  the cashing  of  checks.   Moreover,            Frazer  notes  that  he was  not  the  only  "runner" in  the            conspiracy.4   According  to  Frazer, he  was "less  culpable            than  most  other  participants"  in  the  scheme  and  hence            entitled to the two point downward  adjustment for having had            a  minor role.  U.S.S.G.   3B1.2, comment. (n.3).   We review            role  in the  offense  determinations only  for clear  error.            United  States v.  St. Cyr,  977 F.2d  698, 705-06  (1st Cir.            ______________     _______            1992); United States v. Gregorio, 956 F.2d 341, 344 (1st Cir.                   _____________    ________            1992).                  Frazer  bears   the   burden  of   establishing   by   a            preponderance  of  the  evidence  that he  is  entitled  to a            downward adjustment  for his  role in  the  offense.   United                                                                   ______            States  v.  Ocasio-Rivera, 991  F.2d  1, 3  (1st  Cir. 1993).            ______      _____________            Furthermore,  the mere  fact that  a  defendant is  the least            culpable  among those  charged  does not  entitle  him to  an            adjustment for  having had  a  minor role.  United States  v.                                                        _____________            Daniel,  962  F.2d 100,  103 (1st  Cir.  1992).   Rather, the            ______                                            ____________________            4.   Frazer  did, however,  cash more checks  than any  other            runner in the scheme.                                         -8-            defendant must show that  his conduct was "substantially less            culpable than  the  average participant."   U.S.S.G.   3B1.2,            comment. (backg'd); Gregorio, 956 F.2d at 344.                                ________                 In  this case, the court found that Frazer's role in the            offenses with which he was charged was "no less important and            significant to the successful  completion of this scheme than            the  other participants,  with perhaps  the exception  of the            organizers."  In  each instance  he  was  the individual  who            entered  the bank and  cashed the check.5   The fact that the            defendant may have  had a  lesser role in  a larger  criminal            activity with which he was not charged is not relevant to any            role  in the offense adjustment.  See  Id. (appellant's focus                                              ___  __            on wider fraud rather than the particular offense with  which            he was charged irrelevant to role in the offense adjustment);            United  States v.  Cepeda, 907  F.2d 11,  12 (1st  Cir. 1990)            ______________     ______            (even  if defendant  had a  lesser involvement  in  the large            conspiracy  he  is  not  entitled  to  role  in  the  offense            adjustment because  his role in the offense of conviction was            not  "minor").   The court  also found  that Frazer  may have            contributed to the conspiracy  through his involvement in the            illegal obtaining of  one of the check  writing machines used            by  the  conspirators.    Given  the  deference  owed  to the            sentencing court  in  factual determinations,  we cannot  say                                            ____________________            5.    Although  the  bank  fraud  conspiracy  included  other            runners, Frazer was charged only with those instances of bank            fraud in which he cashed the check.                                         -9-            that  the court  was  clearly erroneous  in determining  that            Frazer did  not have a minor role in the charged conspiracy.             See Gregorio,  956 F.2d  at 344  (criminal conduct  not minor            ___ ________            where it was "important" to the criminal enterprise charged);            United  States v. Ocasio, 914  F.2d 330, 333  (1st Cir. 1990)            ______________    ______            (same).                   The sentence imposed by the district court is affirmed.                                                               ________                                         -10-
