United States v. Michael Wint, United States of America v. Charlie Murdock, United States of America v. Stanley Arthur Bryan

Cir.1992), 782, Brown, was well within its discre-

the district court America, Appellee, UNITED STATES government to use this allowing tion v. 404(b) prove these ele- proper evidence to ments of its case. WINT, Appellant. Michael Moreover, agree we with America, Appellee, UNITED STATES of that, if Nash had government’s contention in stipulated requisite motive and v. tent, participation in the the evidence of his MURDOCK, Appellant. Charlie conspiracy in the substantive acts so over charged in the indictment was America, Appellee, UNITED STATES of whelming that the district court’s admis would have sion of this acts evidence v. been harmless error. See United States BRYAN, Stanley Appellant. Arthur 660, (8th Cir.), Nichols, F.2d 663-64 1976, denied, 481 U.S. 107 S.Ct. cert. 91-3831, Nos. 91-3832 and 91-3855. (1987). 95 L.Ed.2d 816 Appeals, United States Court of Issue. F. A Amendment Fifth Eighth Circuit. Hampton argue prose that the Miller and right their Fifth Amendment cutor violated Submitted June 1992. at the end testify not to when he remarked Aug. Decided 1992. closing argument, “We can’t of his rebuttal people to take the stand. We force these unconstitution

can’t torture them. That’s preserved this issue

al.” No defendant

making contemporaneous objection dur closing argument. The trial court had

ing the re opportunity

no to consider whether so, and, improper whether the

mark was cautionary in cured

error could be Therefore, only will review

struction. we plain error stan contention under the

this Elem,

dard. See United States (8th Cir.1988).

Although think the remark we advised, that the dis ill we conclude plain not commit error

trict court did a mistrial.

failing sponte to declare sua Supreme Court commented Don

As 637, 647, DeChristoforo, 416 U.S.

nelly v. (1974), 1868, 1873, 40 L.Ed.2d 431 lightly infer that a

“a court should ambiguous an remark to

prosecutor intends damaging meaning or that

have its most exhortation, through lengthy

jury, sitting meaning plethora from the draw that

will damaging interpretations.” less is judgment of the district

affirmed. Ojala, Minneapolis, Minn., M.

Linda ar- gued appellant Charlie Murdock. Paul, Majewski, Minn., Michael J. St. appellant Stanley Bryan. Arthur Needles, Minn., Minneapolis, Carol A. ar- (Thomas gued Heffelfinger, B. Carol A. Radcliff, brief), Needles and Nathan for appellee. WOLLMAN,

Before Judge, Circuit ROSS, Judges. BRIGHT and Senior Circuit WOLLMAN, Judge. Circuit ap- Charlie Murdock and Michael Wint peal their from convictions and sentences1 cocaine, conspiracy distribute 841(a)(1), 846, aiding U.S.C. and abet- §§ ting cocaine, the distribution of 21 U.S.C. 841(a)(1), threatening 18 U.S.C. and § § a witness with intent to influence his 2,1512(b)(1). testimony, 18 Stan- U.S.C. §§ ley Bryan appeals from his convictions for conspiracy aiding abetting. We affirm.

I. Murdock, The convictions Bryan drug centered around a transaction Minneapolis-St. that occurred at a Paul Bryan, testifying area hotel. government any promises grant without or preced- immunity, described the events ing Chicago that transaction. While nightclub, Bryan related to a woman how acquaintances had of his the Twin Cities they him where could obtain cocaine. asked Bryan in turn told about vari- woman posses,” ous the “businesses” “Jamaican in, Bryan they could were involved how money” “make some he was interested. posses reputa- Bryan knew that the had violence, drug-dealing and and he tion for that he was not interested. told woman there- four different occasions soon On men, Bryan approached by some after armed, to convince him of them who tried posses. Bryan stated join one of the wife, Minn., him and his Pihlaja, Minneapolis, ar- that the men threatened Steven A. him, they watching and on appellant Michael told him gued for Wint. Rosenbaum, 1. The James M. Minnesota. Honorable Judge for the District of States District displayed picture Bryan go of Mm and meet Bill and that if one occasion refused to through “X” marked on his wife’s with the deal “all it his wife with an would take ... phone Chicago, image. and Wint were each was a call could encounters, [Bryan’s] kill present of these but wife.” United at one Stanley Bryan, that either one made Arthur Charlie did not state Wint, 4-91-71, the first two occasions Michael No. Trial Tran- such threats. On & (D.Minn. 27, 1991) script Aug. on the third he join, but refused (“Trans.”). posse representatives that he told the would think it. about Bryan and Wint entered the hotel at 25, 1991, April encounter visited about 5:00 a.m. on and re-

After this third police quested Bryan but was told that the two rooms. filled out the a local station rooms, nothing registration without some cor- cards for police could do both one card other, story. in Bryan’s per Neither his own name and the Wint’s roboration instructions, any repercus- in the Bryan nor his wife suffered name of “Johnnie John- police. Bryan to the Both son.” showed Wint the filled sions after visit card work without inci- out in the name of travelled to and from Johnson. Murdock later dent; rooms, posse signing did not escort them. checked out of the members two name “Johnnie Johnson” to both check-out time, Upon being contacted a fourth sheets. posse, Bryan agreed for the where- to work him upon posse kept instructed to con- Wint the cocaine with him in the members Johnson, acquaintances registered in Bryan tact one of his the Twin room to while Bryan cooperated stayed in ar- in the other Cities. thereafter room with Murdock.2 morning, Bill, ranging delivering Bryan cocaine to the ac- Later that called who “Robin,” informant, quaintances, arrange “Bill” and four was a confidential separate the first of these the cocaine transaction. Bill occasions. On arrived and Bryan accompanied by Bryan a told that he occasions would return later that man, woman, morning partic- and on the on the second with friend who would Bryan ipate waiting, no evidence in Bryan third Murdock. saw the deal. While weapons during trips nearby the four to sell went alone to a Fina service station drugs. get cigarettes. The fourth transaction is the one Wint, Bryan for which Murdock were Bryan When returned he met Murdock arrested. outside the hotel. Murdock informed Murdock, Bryan Bryan person drove from that Wint and contact for the Chicago lobby. cocaine transaction in the to conduct the deal—Bill—was Murdock van, they proceeded carrying in arrived toward the the Twin Cities. When Johnson,” later, Bryan called who di- briefcase. Still at about the time of “Johnnie transaction, Airport police rected them to the Sheraton Hotel. another officer con- parking ducting in Johnson met them the hotel lot surveillance observed Wint walk- provided ing parking the cocaine. hotel in them with Wint about the lot a “nondi- put Bryan’s “looking and rect” the cocaine into briefcase or “circular” manner and just quite retained control of it until to the around a bit.”3 drug transaction. Bill, Bryan pair found and the went “friend,” (Bryan)

Bryan told that he want- meet Bill’s who was fact an Johnson they police ed Johnson and Bill to meet so that undercover officer. Per instructions Wint, Bryan gave drug could conclude their transaction with- from Murdock and sample he Bryan’s having out to be further involved. undercover officer a cocaine he did not want to had received from Wint. The undercover replied Johnson that, special agent government explained with the Minnesota Bureau of 2. A witness when 3. A transaction, drug conducting walking Apprehension sellers often ob- Criminal testified that drugs kept in one tain two rooms. The are way in this was consistent with counter- about place serves as a to meet the while the other purchaser. activity. surveillance story. Bryan’s He stated that sample, and roborated approved officer Murdock and Wint threaten- of the hotel overheard drive to the back told him to ing Bryan’s danger the cocaine. life would be Bryan retrieved and wait while rap for some- unless he took “the whole van, ob- Bill returned to the Bryan and done, thing all three of ’em.” Murdock, walked drugs from tained the Trans, at 256. car and undercover officer’s to the back superseding charged A indictment Mur- grams of cocaine. sold him 718.9 transaction. on three counts and shortly after the dock and Wint arrested charged counts. All three were on two in the van. Offi- was arrested cocaine, conspiracy to distribute Count with an Illinois driv- possession in his cers found I, abetting in aiding the distribu- in the name of Charlie er’s license cocaine, tion of Count II. Murdock and in the name City” rental card and a “Video threatening charged also with arrested Wint was of “Kadane Curtis.” Bryan, kill Count III. offi- possession hotel. In his outside the hotel receipts for the two cers found prosecution At the trial the introduced rooms. to that evidence addition described government Specifically, the intro- above. Bryan immedi- questioned Police officers had arrest- duced evidence Wint been arrest, and he confessed ately after his possession ed in New York in 1986while in Wint, Murdock, he were all and them that The fifty-four vials of crack cocaine. at the transaction in the cocaine involved apprehended in officer who had Wint New appear- At his first court Hotel. Sheraton that, experi- on his Mur- York testified based ance, however, testified that Bryan ence, Bryan of crack is an amount guilty. fifty-four also vials and Wint were not dock note, attorney, distribution, per- to his prepared a addressed commensurate with that, plead he to in Bryan he stated that wished also testified in which sonal use. name, indictment and count of the he knew Murdock guilty to one addition to his real idea that Bigga. Wint had no by that Murdock and names Kadane Curtis and trip to the Twin Cities purpose manager for the Social Finally, a district trial, Bryan At ex- drugs. sell was to testified that the Security Administration story. why changed his plained security on Murdock’s driv- social number George assigned to arrested er’s license had been time after we been The first Williams, plead[ not Murdock. pressuring me Cole been ] charge, the fall for guilty accept together defendants were tried The three pressuring me into charges, and all the guilty all jury returned verdicts they threatened to pleading guilty. And charges. The court sentenced if I So my family didn’t. kill me and imprisonment, an to 144 months’ and Wint judge that me I tell the they told should seventy-eight from the upward departure it, nothing to do with they didn’t have range by month called ninety-seven him, they said I should I told granted guidelines. my attorney. [tell] him to departure and sentenced downward appeal All three defendants

thirty months. my addition, I didn’t want Mur- just I did it ... because In their convictions. from guys. I harmed these family to be sentences. appeal dock and Wint from their li[fe], I my wife’s because scared for II. help her custody, I wasn’t there way whatsoever. argue both Murdock and Wint Trans, refusing erred that the district court stated that also at 189-90. have Bryan’s. We their trials from sever kill threatened to Murdock and Wint both ever, it be “[rjarely, will stated wife, family his and “all Bryan, his Trans, to co-conspirators to be tried improper for close to people that [him].” [were] Drew, 894 F.2d gether.” facility at the where 193. An inmate denied, (8th Cir.), 494 U.S. 965, cert. 968 Murdock, held cor- Wint

966 1089, 1830, 110 108 L.Ed.2d 959 such a Payne, S.Ct. case. United States v. 923 (1990). 595, (8th Cir.), grant denied, The decision whether to sev- F.2d 597 cert. U.S. -, 2830, erance is committed to the discretion of the 111 S.Ct. 115 L.Ed.2d 1000 court, Adkins, (1991). right district 842 Wint’s to a fair trial was not 210, (8th Cir.1988), prejudiced 212 the admission of evidence regarding against Bryan threats after the its we will not reverse decision absent a because, defendants were arrested had showing prejudice clear which indi- separately, Wint been tried these threats cates an abuse of discretion. To show against would have been admissible Wint prejudice, a defendant such must estab- as evidence of intent. See United States v. something lish more than the mere fact Carmichael, 903, Cir. acquittal that his chances for would have (evidence 1982) attempts to conceal sub separately. had he tried been better been stantive offenses would be admissible to affirmatively He must demonstrate that intent), denied, criminal show cert. joint prejudiced right trial to a 1187, U.S. 75 L.Ed.2d 434 fair trial. (1983). Moreover, Bryan testify did not O’Connell, United States that either Wint personally or Murdock (8th Cir.1988)(citations omitted), cert. (Bryan) prior threatened him to their ar denied, 488 U.S. S.Ct. posse rest. Other members were identified (1989). L.Ed.2d 790 as the source of the threats. argues pre Wint usual We also conclude that Murdock’s and sumption, co-conspirators should be Bryan’s defenses were not irreconcilable. together, apply tried should not because logically accept Bryan’s One could duress superseding indictment added Count ground defense on the posse that other III, This, threatening a witness. accepting members threatened him while maintains, transformed from a co- nothing Murdock’s defense that he knew of conspirator opponent. Moreover, into an drug See, e.g., transaction. United argues, trying Bryan preju him with Wint 1324, Villegas, (2d v. States 899 F.2d 1346 right diced his to a fair trial because Cir.) (upholding jury refusal to sever where Bryan’s attacking defense consisted of could believe both defendant’s coercion de addition, and Murdock. In Wint Wint con defense), fense and co-defendant’s cert. de tends, Bryan’s duress defense was irrele —nied, -, 535, U.S. 111 112 S.Ct. charges against to the vant Wint and (1990); L.Ed.2d 545 v. States Swin would have been excluded had Wint been 477, gler, (10th Cir.1985) 758 F.2d 494-96 separately. tried Murdock adds that denial (same). prejudiced right of his severance to a fair Bryan’s trial and because his defenses III. defense, Bryan’s were irreconcilable. Mur challenges Wint the admission of evi- insists, required dock that he show that previously dence that he had been arrested deal, drug Murdock in the was involved offense; for a drug challenges required whereas Murdock’s defense the admission of evidence that he used knowledge any he he show that had no security other names a false and social drug transaction. See United States v. number. Jones, 55, (8th Cir.1989) (de 880 F.2d 63 if they fenses irreconcilable so conflict 404(b) Rule Federal of Evidence jury, “that the in order to believe the core permits the admission of evidence of other defense, necessarily of one must disbelieve prove, among crimes or acts to other bad other”) (citation omitted). the core of the intent, motive, things, knowledge. or Crook, 1012, v. 936 F.2d United States The district court did not abuse its discre- Cir.1991), (8th denied, 1015 cert. U.S. refusing tion in to sever the trials. Re- -, 974, (1992). 117 L.Ed.2d 138 III, gardless of the addition of Count all charged [Ejvidence as three defendants were co-con- of other crimes or acts is ad- spirators. generally proper 1) in Joint trial is missible the evidence is relevant to a

967 drug timony prior transactions is issue; 2) prior acts are admis- bad material reasonably prove close in that a defendant acted know- sible to in kind and similar 3) there charged; ingly intentionally.” is v. crime United States time to the finding support Maichle, (8th Cir.1988). 180 evidence sufficient defendant jury that the committed Galyen, v. See also United States 4) acts; potential preju- Cir.1986) (“evidence (8th 333 ... does not the evidence substantial- drugs dice of prior offers to sell is relevant outweigh probative its value. ly distribute”). intent to Burk, 228 F.2d United States Murdock, hand, on the other chal omitted). Cir.1990) (citations We will (8th lenges the of evidence that he admission of dis- court’s exercise district reverse the used other and a false social securi names “only if admitting in such evidence cretion is ty number. He asserts that the evidence clearly proof shows that the defendant issue, thus not relevant to material bearing any relevant issue.” no ha[d] test, part of the fails the first because Crook, F.2d at 1015. that he used other there was no evidence of his contends that evidence or false number connection names drug York on a offense New arrest charged with offenses. it have been admitted because should not disagree. There was We evidence parts the second and fourth does not meet name, a false signed Johnnie He test set out above. contends Johnson, checking the hotel. out of when part satisfy arrest does not the New York fact, Murdock’s This in combination with years prior to five it occurred two because him identifying rental card possession of a offense, amount cocaine the instant “Kadane and a driver’s license as Curtis” smaller, charged and was not was much number, sup- bearing security a false social accomplice. having an with Murdock wished to ports the inference in time proximity We note identity. His desire conceal his true only factors “are similarity of conduct turn, indicates that identity, conceal possibility that the tending negate the cocaine transaction in the his involvement improperly introduced.” evidence intentional. See United knowing Drew, “The ultimate F.2d at 970. Kloock, the evi always remains whether question 1981) false identi- (possession A of Unit Cir. prove any relevant is admissible dence drugs sup- possession fication while character of the defen than the issue other drug possession was that ports inference ac toward criminal propensity or his dant Thus, rele- intentional). the evidence was omitted). (citation In tivity.” Id. issue. vant to material event, an offense evidence of committed that the evi- Finally, contends reasonably years is previous five within the the be- part of test fails fourth dence the v. Burk in time. See United States close purpose other than it served no cause Cir.1987) ett, 1309-10 821 F.2d “suspi- jury to appear to the be make him offenses). In addi (seven years between As discussed immediate- character.” cious are tion, instant prior and offenses the however, above, proba- had the evidence ly distrib kind in that both involved similar judgment, proba- In our tive value. of cocaine. utable amounts substantially out- not tive value was probative that the val- asserts Wint also prejudice. potential for weighed by the substantially out- evidence was ue of the concerning testimony We note prejudice. We weighed by potential its prior acts did not and Murdock’s instant Wint’s defense to the note Wint’s addition, In in detail. acts describe those essentially that did charges he was cautionary jury gave the district trip to the Twin purpose of the know the instructions, the time the evidence both prior arrest of Wint’s Evidence Cities. at the conclusion of admitted and of distribution amounts possession while for purpose trial, regarding the limited “tes- this claim because rebutted of cocaine register, which it could consider the evidence of hotel and he police insisted to the prior that he nothing drugs. Wint’s acts.4 These instructions knew guarded against potential prejudice further recounting Without the evidence in proba- and confirm our conclusion that the detail, following significant we note the tive value of the evidence was not substan- evidence. testified that all three tially outweighed by potential preju- for Chicago defendants drove from to the Twin Burk, (brief dice. 912 F.2d at 229 See purpose: Cities for one to sell cocaine. depiction prior limiting bad act and in- Johnson, supplied Wint took the cocaine by safeguarded against prej- structions unfair placed briefcase, it in Bryan’s and main udice). tained just control of the briefcase until (and apparently the sale. He saw of) approved registration the hotel cards IV. filled out in the name of “John Bryan challenge Wint the suf Finally, nie Johnson.” Wint’s behavior in ficiency of the support evidence to their parking supports lot the inference that convictions. he watching police for officers. We that, evidence, conclude on the reviewing basis of this sufficiency, When we ex- a rational fact-finder need not entertain a light amine the evidence in the most fa- concerning reasonable doubt whether Wint government, giving vorable to the it the agreement entered an to distribute coc benefit of all reasonable inferences. We aine.5 only reverse if we conclude that a rea- sonable fact-finder must have enter- Bryan asserts that the evidence was not

tained a reasonable doubt about support sufficient his convictions be- government’s proof of one of the of- prosecution cause the prove did not that he fense’s essential elements. voluntarily agreement entered an or other- Instead, cooperated. maintains, wise he he Ivey, posse’s was coerced threats. See (8th Cir.1990) (citations omitted). v. May, We consider first Wint’s chal (8th Cir.1984) (setting forth elements of lenge to conspiracy his conviction for defense). Moreover, argues, coercion he distribute cocaine. attempt did selling drugs to avoid inas- prevail charge To on a conspiracy, posse’s much as he resisted the initial over- government prove must that the defen- tures and on one occasion contacted the agreed dants illegal to commit an act. police. agreement formal; need not be accept purposes We of this understanding tacit will suffice. More- opinion against Bryan the threats over, government may prove the were of immediate harm and that agreement wholly by circumstantial evi- well-grounded apprehension had “a dence or inference from the actions of bodily injury” death or serious if he re parties. the drugs. fused to sell May, 727 F.2d at 765. Sparks, United States v. reasonable, If Bryan legal had a alternative (8th Cir.1991)(citations 1027 omitted), cert. committing crime, however, to the one denied, U.S. -, 118 which would have avoided the threatened (1992). L.Ed.2d argues 584 Wint harm, that no his coercion defense cannot absolve rational fact-finder could have found that culpability. Id.; him of agreement an Uthe, existed because Wint (8th Cir.1982). was 637 possession never observed in of either Bryan the did have such an alternative. Just money drugs, or the sign hotel, he did not the to drugs the sale of the at the apparently requested 4. Murdock no such limit- are satisfied that a rational fact-finder need not ing instruction. have had reasonable doubt that the evidence described above also satisfied the elements of challenges aiding 5. Wint also his conviction for that offense. abetting the distribution of cocaine. We pursuant “departures recognized that have nearby sta- service to a alone Bryan went 3553(b) by the were intended section his to have called could time he At that tion. only in rare to be allowed Chicago, Commission authorities wife, her the sent to Johnson, v. cases.” United States to the authorities local the alerted then (8th Cir.1990). the cocaine. Wint, of presence previ- that addition, testified In court described its ba The district never been he had drugs sell trips to ous as follows. The court departure for sis person and more than one accompanied examples that the of obstruc recognized Thus, ap- also it weapons. saw never United States Sentenc under tive conduct to able may have been pears Manual, , Guidelines ing Commission during one of action course the same follow 1991), producing a (Nov. vary from 3C1.1 § this alternative trips. That previous his a co-defen threatening to false document fact by the supported is reasonable Murdock, No. 4- v. dant. harmed his wife were he nor neither Transcript at 91-71, Sentencing police the talked with allegedly after however, Here, 27, 1991). (D.Minn. Nov. Moreover, Bryan testified Chicago. threatened only Murdock and Wint his wife escort did not members posse against threats death Bryan, levelled Thus, is reasonable it from work. ongoing and threats were family. “The safe have reached she could conclude to be taken and meant both sincere had a Since incident. without haven Wint, 4- No. seriously.” United States committing reasonable, legal alternative to Transcript 91-71, Sentencing the have avoided would crime that the 27, 1991) Sent. (D.Minn. (“Wint Nov. harm, that the evi- conclude we threatened U.S.S.G. Trans.”). noted court his convic- support sufficient dence eight-level 2J1.2(b)(1) provide for an does § tions. in conduct the obstructive where increase injury. physical cause threats volved however, increase, no effect has y. an Such here, level for the where, the offense as challenge adjusted the exceeds underlying conduct up depart decision to district court’s the offense. the obstruction offense level for 8553(b) sen when 18 U.S.C. under § ward stated, the court As a three adopted We have tencing them. provi- grouping application the departures. reviewing procedure step obstruction to subsume the sions serve[s] reviewing court step, a the first Under underlying offense the into offense level law, whether considers, question of as a Here, for the offense level level.. re- the district the circumstances greater than is underlying offense sufficiently un- departure are on for lied offense, obstruction offense level depar- degree to warrant in kind or usual enhancement 8-level [un- even with the considers, as a Second, the court ture. such, 2J1.2(b)(1) As der U.S.S.G. ]. § clearly errone- under question of fact available enhancement only further review, the cir- whether standard ous nature the serious to reflect this Court actually departure justifying cumstances en- threats, generic 2-level is passes if the sentence Finally, exist. 3C1.1. under hancement (cid:127)§ tests, the court determines two first Wint, 4-91-71(3), Sen- No. making United States In is reasonable. sentence and Statement tencing Memorandum determination, reviewing court this (“Mem- 2, 1991) (D.Minn. Dec. 7at court’s Reasons to the district regard gives due orandum”). does the case” for “superior ‘feel’ court’s the district lightly disturb not Murdock consequence, As a depar- degree of depart or the obstruc- decision same two-level receive the would ture. whether regardless tion enhancement “asked or threats 1337, they [their] made death Crumb, 902 States United be- and lie to come on omitted). [their] We Cir.1990) (citation mothers[s] (8th 1339 970 Trans, at An gating any punishment Sent. 19. en- for

half.” Wint Count III. See magnitude, this Cox, 772, the court hancement United States v. 921 F.2d 774 concluded, serious, (8th Cir.1990). did not reflect the con- tinuous nature threats nor the fact Nonetheless, the district court remained they family that involved innocent mem- depart free to The court concluded that the bers. Com- though departure even the reason for is adequately mission had not considered guidelines taken into consideration in the unique configuration,” “this and therefore (e.g., specific as a offense characteristic departed guideline range the upward from adjustment), or other if the court deter- ninety-seven seventy-eight months to that, light mines of unusual circum- months, equivalent the of a four level stances, guideline the level attached to increase. Memorandum at 7-8. inadequate. that factor is argues Sentencing Murdock (p.s.). 5K2.0 U.S.S.G. See also U.S.S.G. § adequately did consider the Commission 1, A(4)(b),p.s. (in case, atypical Ch. Pt. “an Application present circumstances here. particular guideline linguis one to which a “threatening, note three to 3C1.1 lists § tically applies signifi but where conduct intimidating, unlawfully influ- or otherwise cantly norm,” differs from may court encing a as an co-defendant witness” [or] departure); consider Williams v. United example of the sort of conduct to which a States, U.S. -, -, 1112, This, applies. two level enhancement Mur- (1992)(circumstances 117 L.Ed.2d 341 contends, precisely dock is what he did may depart); under which court Moreover, Bryan. when he threatened Kim, (2d States v. Cir. argues application note six Murdock 1990)(if aggravating adequate factors not directly addresses the same section ly Commission, by may considered situation where the offense level for the depart beyond guideline range specified un underlying adjusted exceeds the offense analysis der multi-count of U.S.S.G. offense level for an obstruction offense. It 3D1.1-.5). Here, application note 6 to §§ that, provides a defendant is convict- where required 3C1.1 that the offense level for § offense ed of both an obstruction covered equal Murdock and Wint the offense level offense, underlying 2J1.2 and of an § underlying for plus offense a two level “the will offense level ... be offense justice. enhancement obstruction underlying level for the offense increased held, however, The district court that a two adjustment specified by this 2-level inadequate level enhancement was because section, or the offense level for the obstruc- of the unusual nature of the obstructive offense, greater.” tion whichever is comment, conduct. 3C1.1, (n. 6). Thus, U.S.S.G. § contends, guidelines mandate Wint and Murdock were convicted under that no more than a two-level enhancement threatening Bryan. Count III for Section witness, apply threatening even against lists 3C1.1 threats a witness as a where the offense level for an obstruction type of obstruction to which a two level effectively offense subsumed is within apply. provision enhancement should That underlying offense level for an offense. not, however, does adequately account for guidelines address the Since the instant the nature of Wint’s Murdock’s con- concludes, circumstances, Here, death, duct. the threats were of sufficiently are not unusual warrant de- simply physical injury. The threats were parture. ongoing apparently sincere. See Unit- Baez, (2d ed application agree

We note 6 to Cir.1991) Thus, (approving departure beyond does address this situation. two 3C1.1 § level obstruction depart the district court was not free to enhancement where de- ground grouping the offenses re- fendant abducted and threatened to kill informant); Wade, greater sulted offense level of subsuming Cir.) (same, I II Counts. the offense F.2d where III, thereby effectively level among things of Count ne- other defendant obstructed upward power depart co-con the or downward occasions and on numerous justice sentence, guideline prescribed defen from the person at after spirator fired shots him), affirm, appeals court should as we have co-conspirator to threaten asked dant U.S. -, in denied, done this ease. cert. (1991); Drew, 116 L.Ed.2d A check of some our cases indicates a (asking party to kill witness third frequently up- affirmed that we have an departure sufficiently unusual to warrant See, departure. e.g., v. ward United States enhancement). tar The beyond level two Estrada, (8th Cir.1992); 965 F.2d 651 Unit- only Bryan, included not gets of the threats Davila, (8th 964 F.2d 778 ed States v. wife, parties third also innocent but —his Cir.1992); Lloyd, 958 F.2d to him. anyone who was close family and (8th Cir.1992). But, seemingly in a threats occurred while Finally, the fashion, we have often refused inconsistent incarcerated, protect unable give permission the district court similar According himself. family even to flee or depart guidelines. downward from the circumstances here ly, that the we conclude See, Desormeaux, v. e.g., United States depar sufficiently unusual to warrant (8th Cir.1991); F.2d 182 United States prescribed guideline level ture because (8th Cir.1990); Shortt, 919 F.2d 1325 v. con and Murdock’s obstructive for Wint’s Neil, 903 F.2d 564 United States for the serious inadequately accounted duct Cir.1990). principles under- Yet the same nature of that conduct. gird departure in either direction. step of not address the second We need analysis of the case under considera- On factual analysis, the court’s whether tion, warranting depar- circumstances clearly errone- departure basis for difference of the only upon ture rest ous, and Wint do because conduct between ex- degree of obstructive Fi- findings. factual challenge the court’s sentencing commission amples given by the of the de- to the reasonableness nally, as the defendants in the actual conduct of district court agree with the parture, we sentencing It seems to me this case. adjust- level light in of the offense similarly a lesser de- may courts address en- other offenses that ments available for by the gree than that described of conduct life, adjustment four level danger human making a down- sentencing commission in threats was rea- and Murdock’s for Wint’s sentencing. departure in On ward (two See, 2A2.2 e.g., U.S.S.G. sonable. § case, that sort of reduced precedent of this bodily injury aggra- in increase for six level logically should be affirmed. sentence (two assault); 2A4.1(b)(2) to four vated § kidnap- in bodily injury level increase for (two in- 2B3.1(b)(3) to six level

ping); § injury robbery); bodily

crease for (five threat 2P1.1(b)(1) increase for level § America, Appellant, prison escape). of force STATES UNITED are af- and sentences The convictions

firmed. LATTIMORE, Appellee. Robert Norman No. 91-3454. BRIGHT, Judge, Circuit Senior Appeals, Court United States concurring. Eighth Circuit. to em- separately concurrence I write possess judges May still 1992. district phasize Submitted sentencing. guideline under some discretion Sept. 1992. Decided good exam- represents present case 19, 1992. Rehearing Denied Oct. guideline commentaries ple of where fully an of- adequately or describe fail to background. In those or

fender’s conduct possesses

situations, sentencing

Case Details

Case Name: United States v. Michael Wint, United States of America v. Charlie Murdock, United States of America v. Stanley Arthur Bryan

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 28, 1992

Citation: 974 F.2d 961

Docket Number: 91-3831, 91-3832 and 91-3855

Court Abbreviation: 8th Cir.