Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-4-1997

United States v. Arnold
Precedential or Non-Precedential:

Docket 96-1174




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"United States v. Arnold" (1997). 1997 Decisions. Paper 29.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/29


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
       THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                  No. 96-1174
                   __________

           UNITED STATES OF AMERICA,

                                 Appellee

                       v.

              DEAN MARTIN ARNOLD,

                                 Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA
         (D.C. Criminal No. 95-00153)

                   __________

           Argued September 17, 1996

                   __________

Before: Becker, Nygaard and Roth, Circuit Judges
                   __________

                            Michael A. Schwartz (Argued)
                            Office of the U.S. Attorney
                            Suite 1250
                            615 Chestnut Street
                            Philadelphia, Pa. 19106

                            Counsel for the Appellee

                            Robert Epstein (Argued)
                            Defender Association of
                            Philadelphia, Federal Court
                            Division
                            437 Chestnut Street
                            Lafayette Building, Suite 800
                            Philadelphia, Pa. 19106

                            Edson A. Bostic
                            Defender Association of
                            Philadelphia
                            609 Hamilton Mall
                            Sovereign Building, Suite 301
                            Allentown, Pa. 18101



                       1
                                        Counsel for the Appellant

                          Filed February 4, 1997
                             __________

                      OPINION OF THE COURT
                           __________


NYGAARD, Circuit Judge:

     Dean Arnold appeals his conviction for attempting to murder

a witness, 18 U.S.C. § 1512(a)(1)(A), and raises various

challenges to his sentence.   We will reverse Arnold’s attempted

murder conviction because it was based solely upon evidence that

the district court should have suppressed.       Although, by

implication, this error also calls into question Arnold’s

conviction for witness intimidation, 18 U.S.C. § 1512(b)(3), we

conclude that the error was harmless, and will affirm.       We will

also vacate Arnold's sentence and remand the matter to the

district court for resentencing.

                                  I.

     Arnold, while working as an armored car courier for Federal

Armored Express, stole $65,000.       He told his then fiancee,

Jennifer Kloss, about the theft and showed her a lunch thermos in

which he had stuffed the stolen money.       Later, Arnold stole an

additional $15,000 and again told Kloss what he had done.         On

another occasion, while working as an assistant vault person,

Arnold stole $400,000 in cash directly from the main vault at

Federal Armored Express, and again told Jennifer Kloss.

     Fearing that Kloss would tell the FBI about his crimes,

Arnold told a few individuals, including Edgardo Ramos and Alex




                                  2
Introcaso, that he would pay someone up to $20,000 to kill Kloss.

 Introcaso, a private investigator, suspected that Arnold had

committed the Federal Armored Express thefts.   Seeking a reward,

Introcaso contacted the FBI to report his suspicions.      He also

called the FBI to report Arnold’s offer to have Kloss killed.

      The FBI, using Introcaso as part of a “sting” operation,

recorded a meeting on March 27, 1995, between Introcaso and

Arnold at Introcaso’s office.   At this meeting, Introcaso told

Arnold that he had located a hit man willing to kill Kloss for

$20,000.   Arnold agreed to meet with the hit man the next day and

reaffirmed that he had threatened to kill Kloss if she turned him

in.

      On March 28, 1995 the government obtained a sealed

indictment against Arnold charging him with bank theft, money

laundering and witness intimidation.   The witness intimidation

charge specifically alleged that Arnold had threatened to kill

Kloss if she provided information to law enforcement officers

about the thefts.   That afternoon, Arnold met in Introcaso's

wired office with undercover officer Louis Tallarico, who was

posing as a professional hit man.   At this meeting, Arnold

reasserted that he was serious about having Kloss killed and

showed Tallarico that he had the $20,000 necessary to pay for it.

 As Arnold left the meeting, the FBI arrested him and seized the

$20,000.

      The government next obtained a superseding indictment

charging Arnold with the additional count of attempted murder of

a witness.   At trial, a tape recording made at the March 28



                                3
meeting with the undercover agent was played to the jury over

Arnold’s objection.   The tape was the only evidence the

government submitted with respect to the attempted murder charge.

     At the sentencing hearing, the district court separated the

offenses into three groups: (1) the two bank larceny counts

combined with the witness intimidation count; (2) the money

laundering counts; and, (3) the attempted killing of a witness

count.   The base offense level for the attempted killing of a

witness offense was 28.   Because the offense involved the offer

of money for the murder, the offense level was increased to 32.

Based upon a finding that Arnold’s testimony about his entrapment

defense was “willfully false,” the court increased Arnold's

offense level two more levels to 34 pursuant to § 3C1.1 of the

United States Sentencing Guidelines.

     The court also granted the government’s motion for an upward

departure and increased the total offense level by one to 35.

The court justified the upward departure on two separate grounds:

(1) the grouping rules did not adequately punish the defendant in

this case; and, (2) there was still an outstanding sum of money

that had not been returned.   With a total offense level of 35,

the guideline range was 168-210 months imprisonment.   The court

imposed a 210 month sentence and ordered restitution in the

amount of $223,569.

                               II.

     Arnold argues that the government violated his Sixth

Amendment right to counsel by eliciting uncounselled statements

from him after he had been indicted for threatening to kill



                                4
Kloss.    Arnold contends that because the sealed indictment had

been returned against him, his right to counsel had attached for

the witness intimidation charge, and the government was

prohibited by the Sixth Amendment from deliberately eliciting

uncounselled statements about the closely related attempted

murder offense.    The witness intimidation and attempted murder of

a witness charges are so closely related, Arnold argues, that

“the right to counsel for the pending offense [witness

intimidation] cannot constitutionally be isolated from the

uncharged offense [attempted murder of a witness].”    Arnold

insists that the district court erred by denying his motion to

suppress the tape of his March 28th meeting with the undercover

agent.    We agree.

                                III.

     The Supreme Court has held that the Sixth Amendment right to

counsel attaches “at or after the initiation of adversary

judicial criminal proceedings -- whether by way of formal charge,

preliminary hearing, indictment, information, or arraignment.”

Kirby v. Illinois, 

, 688-89, 

, 1881-82

(1972).    Under the Sixth Amendment, the government is prohibited

from deliberately eliciting incriminating evidence from an

accused “after he ha[s] been indicted and in the absence of his

counsel.”   Massiah v. United States, 

, 206, 

, 1203 (1964).

     The Court has made clear, however, that the Sixth Amendment

right is “offense specific” and “cannot be invoked once for all

future prosecutions . . . .”    McNeil v. Wisconsin, 

,



                                 5
175, 

, 2207 (1991).   Hence, when investigating new

or ongoing criminal activity for which an accused has not been

indicted, the government does not violate the Sixth Amendment.

111 S.Ct. at 2207-08.   The government may

interrogate an accused about unrelated, uncharged offenses to

which the right of counsel has not yet attached.     Moran v.

Burbine, 

, 431, 

, 1146 (1986).

Moreover, “[i]ncriminating statements pertaining to other crimes,

as to which the Sixth Amendment right has not yet attached, are,

of course, admissible at trial of these offenses.”    Maine v.

Moulton, 

, 180 n.16, 

, 489 n.16 (1985);

accord Alston v. Redman, 

, 1252 n.16 (3d Cir. 1994),

cert. denied, 

(1995).

     Two Supreme Court cases establish a limited exception to the

“offense specific” rule.   In Brewer v. Williams, 

, 

(1977), the defendant was formally charged with the

abduction of a little girl.   After being charged with the

abduction, the police, using a “Christian burial speech” to gain

the trust of the defendant, elicited from him the location of the

girl’s body.   The defendant was subsequently charged with murder

and convicted.   The Supreme Court affirmed the reversal of the

murder conviction and in so doing held that the defendant’s

statements to the police about the location of the body were

inadmissible in his murder trial.

     Similarly, in 

, Moulton and a co-defendant

committed burglary but were originally only indicted for theft.

After the indictment was returned, the co-defendant agreed to



                                6
cooperate with the police and to attempt to elicit incriminating

statements from Moulton.    This effort was successful, and the

incriminating statements made by Moulton to the co-defendant were

used as the basis for filing burglary and other additional

charges against Moulton.    Moulton was convicted, but the Supreme

Court of Maine reversed, finding a violation of Moulton’s Sixth

Amendment right to counsel.    The United States Supreme Court

affirmed.    Significantly, in affirming the Court reversed both

the theft and burglary charges, notwithstanding the fact that

Moulton had not yet been charged with burglary when he made his

statements to the co-defendant.

     Relying on Brewer and Moulton, many courts have held that

once the right to counsel attaches with respect to a charged

offense, it carries over to “closely related” but uncharged

crimes.1    The reasoning underlying this exception is consistent

with the purposes and protections of the Sixth Amendment.    When

the pending charge is “so inextricably intertwined” with the

charge under investigation “the right to counsel for the pending

charge cannot constitutionally be isolated from the right to
     1
       See, e.g., United States v. Kidd, 

, 32 (4th Cir.
1993) (recognizing but not applying the exception), cert. denied,

(1994); Hendricks v. Vasquez, 

, 1104
(9th Cir. 1992) (same); United States v. Carpenter, 

,
740-41 (5th Cir.) (same), cert. denied, 

(1992);
United States v. Hines, 

, 257-58 (9th Cir. 1992)
(same); United States v. Cooper, 

, 743-44 (5th Cir.
1991) (same), cert. denied, 

(1992); United States v.
Michteltree, 

, 1342-43 (10th Cir. 1991) (applying
the exception); People v. Clankie, 

, 452 (Ill.
1988) (same); State v. Tucker, 

, 120-25 (N.J. 1994)
(recognizing but not applying the exception), cert. denied, 

(1995); In re Pack, 

, 1008-11 (Pa. 1992)
(applying the exception).




                                  7
counsel for the uncharged offense.”   

; see

also 

.    “[T]o hold otherwise[] would allow

the [government] to circumvent the Sixth Amendment right to

counsel merely by charging a defendant with additional related

crimes” after questioning him without counsel present.      In re

.

     In a scholarly opinion we find instructive, the Maryland

Court of Appeals extensively analyzed the “closely related”

exception to the offense-specific requirement of the Sixth

Amendment in Whittlesey v. State, 

(Md. 1995), cert.

denied, 

(1996).   Collecting cases, the Whittlesey

Court identified two lines of decisions that had emerged from

courts considering the exception.    In the first line of

decisions, courts invoke the exception where (1) the offenses are

“closely related,” construing that phrase relatively broadly, and

(2) there is evidence of deliberate police misconduct in the

process of eliciting the incriminating statements.   See, e.g.,

United States v. Martinez, 

(9th Cir. 1992)

(remanding to determine whether state prosecutors had

deliberately dropped charges against the defendant to facilitate

a federal investigation of the same conduct); 

(reversing witness tampering conviction where the

government exploited a contact between the defendant, who was

indicted for a drug offense, and a government witness, to acquire

evidence for both the drug prosecution and a tampering charge

related to the contact with the witness).

     In the second line of decisions examined by the Whittlesey



                                 8
court, the focus is entirely on whether the facts underlying the

charged and uncharged offenses are either “closely related” or

“inextricably intertwined”; two terms which we take to mean the

same thing.   In these opinions, the unifying theme is that the

right to counsel will carry over from the pending charge to the

new charge only where the new charge arises from the same acts

and factual predicates on which the pending charges were based.

(citations omitted).    In determining

whether the same acts and factual predicates underlie both the

pending and the new charges, courts have looked for similarities

of time, place, person and conduct.   See, e.g., 

; 

-58; 

;

.

     It is undisputed that before Arnold's arrest he retained an

attorney to represent him in connection with the government’s

ongoing investigation into the bank larcenies.     It is also

undisputed that Arnold’s attorney advised the government that he

was representing Arnold and that Arnold should not be questioned

in his absence.   Because Arnold’s right to counsel for the

larceny, laundering and witness intimidation charges attached on

the morning of March 28, 1995, when the sealed indictment on

these charges was returned, the issue is whether Arnold’s right

to counsel carried over to the March 28, 1995 “sting” operation

and the subsequent indictment for the attempted murder.     We have

not decided whether to recognize the “closely related” exception

to the offense specific requirement of the Sixth Amendment.     This

case requires that we now do so.



                                 9
     Arnold argues that both offenses involved the same witness

and arise out of precisely the same facts and circumstances --

namely, Arnold’s thefts and the threat that Kloss, as a potential

witness, posed to him.   Most importantly, from Arnold’s

perspective, is the idea that his attempt to hire a hit man

strongly indicates that he threatened Kloss earlier and that the

threats were made to silence a potential witness, thereby

establishing a common base of evidence from which the charges of

attempted murder and witness intimidation arose.   Finally, Arnold

correctly notes that the government’s failure to have sufficient

evidence to indict him on the attempted murder charge before the

March 28 “sting” cannot justify violating his Sixth Amendment

rights to gather the evidence necessary to support an indictment

for attempted murder.

     We adopt the "closely related" exception and hold that it

applies here.   Indeed, it is difficult to understand how the

witness intimidation and attempted murder of a witness offenses

could be any more closely related.   As the record shows, both

charges: (1) involve the same witness; (2) arise from the same

facts and circumstances; (3) are closely related in time; and,

(4) involve conduct related to Arnold’s attempt to prevent

Jennifer Kloss from cooperating with federal authorities

concerning his crimes.

     More specifically, the indictment for the witness

intimidation count explicitly charges that Arnold had threatened

to kill Jennifer Kloss if she told the authorities about his

crimes.   This charge involved precisely the same type of



                                10
underlying conduct as the attempted murder charge -- violent

action taken to impede a witness's participation in or

cooperation with a federal criminal investigation.    Given that

Arnold’s central purpose and the intended results of both

offenses were the same, we cannot but conclude that the two

offenses were sufficiently related for purposes of the Sixth

Amendment exception.    Moreover, the crimes Arnold sought to

conceal by the murder he attempted were the same crimes that

motivated his acts of intimidation.    Indeed, as the government

concedes, it was Arnold’s threats to kill Kloss if she disclosed

his crimes to the federal authorities that served as the impetus

for the March 28 “sting” operation.

     In sum, we are persuaded that Arnold’s witness intimidation

and attempted murder of a witness were closely related offenses

and arose from the same predicate facts, conduct, intent and

circumstances.    As a result, we hold that Arnold’s Sixth

Amendment right to counsel, which attached to the witness

intimidation charge on the morning of March 28 when he was

indicted, carried over to the attempted murder of a witness

charge.   Consequently, the incriminating statements elicited from

Arnold during the “sting” operation on the afternoon of March 28

were obtained in violation of Arnold’s Sixth Amendment right to

counsel, and the district court erred by failing to suppress the

tape recording.    Because the “sting” operation tape was the only

evidence against Arnold on the attempted murder charge, the

court’s error was not harmless.    Accordingly, we will vacate

Arnold’s conviction for attempted murder of a witness, and remand



                                  11
the matter to the district court either for retrial or for the

charge to be dismissed.2

                               IV.

     Arnold also asserts that the district court erred by

enhancing his base offense level two points for perjury under

U.S.S.G. § 3C1.1.   Section 3C1.1 of the U.S.S.G. provides that

“[i]f the defendant willfully obstructed or impeded, or attempted

to obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant offense,

increase the offense level by 2 levels.”   The Guidelines

expressly include perjury as conduct to which this enhancement

applies.   U.S.S.G. § 3C1.1, Application Note 3(b); United States

v. Dunnigan, 

, 92-93, 

, 1115-16 (1993).

     In applying this enhancement, Application Note 1 of U.S.S.G.

§ 3C1.1 states:
This provision is not intended to punish a defendant for the
     exercise of a constitutional right. A defendant’s denial of
     guilt (other than a denial of guilt under oath that
     constitutes perjury), refusal to admit guilt or provide
     information to a probation officer, or refusal to enter a
     plea of guilty is not a basis for application of this
     provision. In applying this provision in respect to alleged
     false testimony or statements by the defendant, such
     testimony or statements should be evaluated in a light most
     favorable to the defendant (emphasis added).



     2
       This decision calls Arnold's conviction for witness
intimidation into question. Both parties admit that a limiting
instruction for the use of the March 28 tape recording was
neither requested nor given. We conclude, nonetheless, that the
improper admission of the March 28 tape recording, even without a
limiting instruction, was harmless beyond a reasonable doubt.
The evidence against Arnold with respect to the intimidation
charge was overwhelming. Therefore, we will affirm Arnold's
witness intimidation conviction.




                                12
     The record shows that at Arnold’s post-trial motion for

acquittal, the district court independently reviewed the trial

testimony.   It did not believe Arnold’s claim that threatening

gestures were made toward him during the conversations recorded

on March 27 and 28, and therefore his request that Jennifer Kloss

be killed was made involuntarily.    To support its conclusion, the

court stated for the record that “[i]t was obvious from the voice

timbre and content of the tape recordings that this claim was not

only absurd, it was willfully false.”

     In addition, the court also reviewed the testimony of a

defense witness, Herbert Truhe, who testified that Introcaso was

responsible for Arnold’s plan to have Jennifer Kloss killed.    The

court concluded that “Herbert Truhe’s testimony was highly

improbable in view of the content of the tape recordings and the

jury resolved the conflicting testimony in favor of the

government.”   Finally, the court also noted that both Jennifer

Kloss and Edgardo Ramos testified about Arnold’s threats and

attempts to silence Jennifer Kloss.

     At Arnold’s sentencing hearing, the court reaffirmed its

decision to apply the obstruction of justice enhancement to

Arnold’s sentence by noting that it had already made a finding

that Arnold’s testimony had been “willfully false.”    Arnold

argues that the court erred because it viewed the evidence in the

light most favorable to the government during the post-trial

motion.   Arnold contends that under U.S.S.G. § 3C1.1, the court

was required to make an independent finding whether he had

committed perjury, and in doing so was required to view the



                                13
evidence in a light most favorable to him, and under a clear and

convincing standard.

     Courts of Appeals in other circuits have reached various

conclusions on this issue.   Three courts interpret Application

Note 1 to Section 3C1.1 to require a higher standard of proof

than mere preponderance of the evidence.   United States v.

Montague, 

, 1253-54 (D.C. Cir. 1994) (clear-and-

convincing); United States v. Onumonu, 

, 45 (2d Cir.

1993) (clear-and-convincing); United States v. Willis, 

, 1140 (8th Cir. 1991) ("[n]o enhancement should be imposed

based on the defendant's testimony if a reasonable trier of fact

could find the testimony true"), cert. denied, 

(1993).

     As the Court of Appeals explained in 

, "[W]e must assume that, in writing the Application Note to

section 3C1.1, the Sentencing Commission intended to create an

exception to the usual practice of employing the preponderance-

of-the-evidence standard in sentencing decisions."   In practice,

the application of a higher standard of proof in a § 3C1.1

perjury enhancement requires that “the fact finder give the

benefit of the doubt to the defendant . . . and find perjury only

on evidence with respect to which the judge is clearly

convinced.”   

     Other courts interpret this to require little more than

"simply instruct[ing] the sentencing judge to resolve in favor of

the defendant those conflicts about which the judge, after

weighing the evidence, has no firm conviction."   United States v.



                                14
Franco-Torres, 

, 801 (5th Cir. 1989); accord United

States v. Barbarosa, 

, 1370 (9th Cir.), cert.

denied, 

(1990).     Other courts have applied the

standard a bit differently.    United States v. Clark, 

,

510 (1st Cir.) (". . . [A]mbiguities that plausibly suggest that

the testimony or statements were innocent as opposed to

obstructive . . . may have to be resolved in favor of the

innocent reading."), cert. denied, 

; United States

v. Zajac, 

, 150-51 (6th Cir.) (“firm conviction”),

cert. denied, 

(1995).

     We have never directly decided the question, commenting only

generally on the issue in United States v. Colletti, 

, 1348 (3d Cir. 1992).    In Colletti, a pre-Dunnigan case

challenging section 3C1.1 as unconstitutional, we stated:
In our view, in order to warrant the two point enhancement for
     obstruction of justice, the perjury of the defendant must
     not only be clearly established, and supported by evidence
     other than the jury's having disbelieved him, but also must
     be sufficiently far-reaching as to impose some incremental
     burdens upon the government, either in investigation or
     proof, which would not have been necessary but for the
     perjury.


Colletti does not provide a clear indication of the specific

burden of proof to be applied.    Nonetheless, its “clearly

established” requirement counsels toward a standard of proof

higher than a mere preponderance.

     We are persuaded that the Application Note intends a higher

standard than a preponderance of evidence.    We hold that the

Application Note’s command to evaluate a defendant’s alleged

false testimony or statements “in a light most favorable to the




                                  15
defendant,” requires the sentencing court to refrain from

imposing a § 3C1.1 enhancement unless, in weighing the evidence,

it is clearly convinced that it is more likely than not that the

defendant has been untruthful.

     Here, it is unclear what standard of proof the district

court used when reaching its determination that Arnold had

committed perjury.   Moreover, because there is no indication in

the record that the district judge, when relying on his earlier

finding, placed the burden of proof upon the government and

viewed the evidence in the light most favorable to Arnold, we

conclude that the district judge’s decision that Arnold committed

perjury did not meet the requirements of § 3C1.1.     Accordingly,

we will vacate Arnold’s sentence and remand the matter to the

district court for resentencing.      On remand, the district court

must use the clear and convincing standard, place the burden of

proof upon the government, and support its decision with the

findings required by the Supreme Court’s decision in Dunnigan.3

                                 V.

     The defendant raises three other sentencing issues.     We can

     3
       Judge Roth does not believe that the "clear and
convincing" standard is applicable here. In her opinion, the
language of Application Note 1 of U.S.S.G. § 3C1.1 provides a
sufficiently stringent basis to determine whether the enhancement
is appropriate using a "preponderance of the evidence" standard.
 The adoption of a "clearly convincing" standard is not helpful
to district court judges who must keep in mind a growing list of
different standards of proof to apply in sentencing proceedings.
     Because the district judge did not, however, indicate that
his determination of "willfully false" was made in a light most
favorable to the defendant, Judge Roth agrees it is necessary to
remand on the issue of the enhancement for obstruction of
justice.




                                 16
dispose of them briefly.

     Arnold contends that the district court erred by its upward

departure because there was nothing “unusual or extraordinary”

about his crimes that would warrant a departure from the

Guidelines.   We need not decide the merits of Arnold’s contention

because the district court must now recalculate Arnold’s

sentence.   As such, the application of the grouping rules under §

3D1.4 of the Guidelines will change, rendering Arnold's upward

departure issue moot.

     Second, Arnold argues that the district court failed to make

the proper findings that he had the ability to pay restitution.

The government concedes error, and we agree.   See United States

v. Copple, 

, 482 (3d Cir. 1996).    Therefore, we will

vacate the restitution order and remand the matter for the

district court to find whether Arnold is able to pay restitution.

     Finally, Arnold contends that the district court erred by

delegating the timing and the amount of his restitution payments

to his probation officer.   The government again concedes error,

and again we agree.   See United States v. Graham, 

,

356 (3d Cir. 1995), cert. denied, 

(1996).   Hence,

on remand the district court itself must determine both the

timing and the amount of the restitution payments.

                               VI.

     In summary, we will reverse Arnold's conviction for

attempted murder, affirm his conviction for witness intimidation,

vacate his sentence, and remand the matter to the district court

for proceedings in accordance with this opinion.



                                17
18