UNITED STATES of America, Plaintiff-Appellant, v. Clifford R. PIERSON, Defendant-Appellee.
No. 90-5399.
United States Court of Appeals, Fourth Circuit.
Decided Oct. 7, 1991.
As Amended Oct. 25, 1991.
946 F.2d 1044
ERVIN, Chief Judge
Argued April 12, 1991.
The trial judge had recently tried the Taylor case, which was the first trial resulting from “Operation Lost Trust,” and he had experienced the rеaction of the potential jurors to voir dire and their desire for confidentiality of their responses. The court also had the support of the defendants and their attorneys, who agreed that confidentiality was essential to selecting an impartial jury.
Closure of voir dire is an effective means by which to protect the defendants against the perceived threat to a fair trial in these cases. As we found in In re Greensboro News Co.:
Finally, there is no argument that the closure order will fail to protect against the perceived harms. The elimination of publicity concerning the individual voir dire will assure that potential jurors will be insulated from the questions and other jurors’ answers for as long as possible. Furthermore, the potential jurors will be more candid in their responses if they do not have to worry about what the public‘s opinion of those responses might be.
We agree with the district court that under the very unusual circumstances of these cases, no reasonable alternatives tо closure will adequately protect the fair trial rights of the accused.
We find that the petitioners are not entitled to a writ of mandamus. While the district court did not give the required notice to petitioners in the Blanding/Gordon case, this condition was met in Derrick, and the issuance of the writ for this oversight would at this date sеrve no useful purpose.
PETITION DENIED.
David Earl Godwin, Asst. U.S. Atty., Clarksburg, W.Va., argued (William A. Kolibash, U.S. Atty., on brief), for plaintiff-appellant.
Stephen Godfrey Jory, Busch, Jory, Smith & Talbott, Elkins, W.Va., argued, for defendant-appellee.
Before ERVIN, Chief Judge, and WIDENER, and HAMILTON, Circuit Judges.
OPINION
ERVIN, Chief Judge:
Clifford Pierson was charged in a three count indictment resulting from a bombing incident. These charges included two counts relating to the explosion and one count of making false dеclarations to the Grand Jury. After a jury trial, Pierson was acquitted of the explosives charges but
I
On Monday morning, November 14, 1988, a pipe bomb exploded in the Home National Bank in Sutton, West Virginia. The explosion seriously injured the bank‘s chief executive officer, Roy W. Cutlip. The bomb was inside a file box which had been placed on Cutlip‘s desk. It exploded when he opened the file box. The box was placed on Cutlip‘s desk sometime between 10:30 a.m. Sunday, November 13 and 7:00 a.m. Monday, November 14. Two witnesses testified that they saw Pierson, a bank officer for Home National, on or near the bank premises during the Sunday afternoon to Monday morning time period. Investigators obtained permission to search Pierson‘s home. There they found and seized a pipe wrench.
On January 11, 1989, Pierson appeared befоre the Federal Grand Jury. He was asked whether he was at the bank on Sunday afternoon or early Monday morning. He denied being present at the bank on either occasion.
In late August 1989, the Alcohol Tobacco and Firearms laboratory notified investigators that its toolmark expert was of the opinion thаt Pierson‘s pipe wrench was the tool which had made marks on the pipe fragments that were recovered from the scene of the bombing. When Pierson was informed of the pipe wrench evidence, he responded that someone else must have stolen the wrench and then returned it.
On September 20, 1989, thе Grand Jury in the Northern District of West Virginia handed down a three count indictment against Pierson. Count I charged Pierson
In the original presentence report, the probation officer calculated Pierson‘s offense level at 15. He used a base offense level of 12 as provided in
At the sentencing hearing, the district court agreed with the defendant‘s objection to the 3 level enhancement. The сourt disagreed with the government‘s assertion that
The government appealed Pierson‘s sentence on the ground that the court should have applied
II
This case involves the application of Section
(1) If the offense involved perjury or subornation of perjury in respect to a criminal offense, apply
§ 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.
United States Sentencing Commission, Guidelines Manual,
(a) Base Offense Level: 6 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than 30.
U.S.S.G.
In this case, it is clear that Pierson‘s perjury was “in respect to a criminal offense.” His perjury related to whether or not he was near the bank near the time of the bombing. Piеrson repeatedly testified that he was not, and the jury apparently believed that Pierson lied to the Grand Jury in those denials. Bombing is certainly a criminal offense. See
The probation officer addressed this position in the Second Addendum to the Presentence Report and found that he did not believe this should apply, because the defendant was acquitted of the underlying offense. And the underlying offense is described in 2X3.1, as an offense to which the defendant is convicted of being an accessory.
Joint Appendix at 50. We cannot agree with the rationale of the district court. The Guidelines do not require a conviction of the underlying offense unless the particular provision expressly rеquires conviction. See U.S.S.G.
A particular guideline (in the base offense level or in a specific offense characteristic) may expressly direct that a particular factor be applied only if the defendant was convicted of a particular statute.... Unless such an express direction is included, сonviction under the statute is not required.
Id. Section
Unfortunately, we have found no caselaw directly dealing with the interplay between
Guideline
The Commentary to the Perjury Section (
“The Commission believes that perjury should be treated similarly to obstruction of justice. Therefore, the same considerations for enhancing a sentence are applied in the specific offense characteristics, and an alternative reference to the guideline for accessory after the fact is made.”
U.S.S.G.
The specific offense characteristics reflect the more serious forms of obstruction. Because the conduct covered by this guideline is frequently part of an effort to assist anothеr person to escape punishment for a crime he has committed, an alternative reference to the guideline for accessory after the fact is made.
U.S.S.G.
In Huppert, the defendant was indicted on two counts for obstructing justice. He had encouraged two persons who had been subpoenaed to the grand jury to testify that his deceased associate was involved in certain money laundering activities which
The Eleventh Circuit reversed the trial court‘s sentencing. Id. at 511. The court began by noting that determining whether Huppert was an accessory after the fact was a legal conclusion subject to de novo review. Id. at 510. The court then found that the district court had erred in concluding that Huppert attempted to protect others and therefore was an accessory аfter the fact. Id. The court relied upon the above mentioned Background Commentary to
The guideline itself contemplates that one sentenced through the cross-reference as an accessory cannot be a principal.... [U]nder the guidelines, relevant conduct is incorporated intо the base offense level by a prescribed process. Section
2J1.2(c)(1) provides a specific method by which a court may consider conduct outside the offense of conviction. That method is consistent with our understanding of the law of principals and accessories. Because Huppert сannot be sentenced as an accessory after the fact, we conclude that the district court incorrectly applied§ 2J1.2(c)(1) to this case.
Id. at 511.
The Huppert reasoning is instructive. In the case at bar, Pierson was charged as a principal in the bombing at the bank. He was not charged as an accessory. When he denied being рresent at the bank near the time of the bombing, it seems more than likely that Pierson was trying to protect himself, rather than others.
The government argues that Huppert is factually distinguishable. The government points to the fact that Huppert was convicted of being a principal in the underlying offenses. In contrast, Pierson was acquitted of being a principal in the underlying offenses. As a result, the government contends that Pierson must have been trying to protect someone other than himself. However, it is just as likely, if not more likely, that Pierson was trying to protect himself. In fact, he may have successfully done just that given his acquittal in the underlying two counts. We do not believe that the government‘s assertion that Pierson must have been protecting others is supportable. The fact that the government charged him as principal in Counts I and II refutes that assertion.
Under the rationale of Huppert, Pierson is not an accessory after the fact. This view is further supported by the holding in United States v. Berkowitz, 712 F.Supp. 707 (N.D.Ill.1989), rev‘d on other grounds, 927 F.2d 1376 (7th Cir.1991).* There, Berkowitz was convicted of two counts of obstruction of justice and one count of stealing United States property. Id. at 708. The district court held that
The government also claims that the court should apply
§ 2X3.1 , which results in a higher offense level for Counts I and II. Section2X3.1 , however, is inapplicable. That section is entitled, “Accessory After the Fact.” Applying§ 2X3.1 in the instant case would result in treating Berkowitz as an accessory to his own alleged tаx fraud and mail fraud. The official comments to§ 2J1.2 indicate that such an application of§ 2X3.1 is not appropriate. Therein, the commission explains that§ 2X3.1 is applied in obstruction of justice cases “[b]ecause the conduct covered by the [obstruction of justice] guideline is frequently part of the effort to assist another person to escape punishment for a crime he committed.” (Emphasis added.) Since Ber-
rather than
kowitz did not commit оbstruction of justice to assist another person,
§ 2X3.1 is inapplicable.
Id. at 709.
We find that section
We note that when the government seeks to enhance a sentencing range, it bears the burden of proof. United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.1989). We find that Pierson‘s range should be enhanced under
AFFIRMED.
WIDENER, Circuit Judge, dissenting:
I respectfully dissent.
The majority devotes a substantial portion of its opinion to discussing whether the government has proven that the defendant was indeed an accessory аfter the fact. This discussion, I believe, is made necessary only by the majority‘s decision to read into the relevant guideline an additional condition neither contemplated nor required by its content.
As I read section
I would accordingly remand this case to the district court for resentencing.
UNITED STATES of America, Plaintiff-Appellee, v. Timothy Jay BLACKWELL, a/k/a Tiny; Lawrence Dean Lenihan, a/k/a Chitlin; Larry William White, Defendants-Appellants. (Two Cases)
Nos. 90-5841, 90-5863.
United States Court of Appeals, Fourth Circuit.
Decided Oct. 7, 1991.
Argued July 10, 1991.