September 7, 1993 [NOT FOR PUBLICATION]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
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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.
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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
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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
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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.
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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.
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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.
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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.
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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.
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