The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1441, 99-1654 & 99-1720
United States of America,
Plaintiff-Appellee,
v.
Eric L. Frazier, Jacoby Walker
and Michael Mason,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:97-CR-88--James T. Moody, Judge.
Argued January 13, 2000--Decided May 23, 2000
Before Posner, Chief Judge, and Bauer and Rovner,
Circuit Judges.
Bauer, Circuit Judge. This is a consolidated
direct appeal by three defendants convicted of
various offenses stemming from a crack cocaine
conspiracy. The defendants raise numerous issues
on appeal. For the reasons stated below, we
affirm in part and reverse in part.
I. Background.
From approximately 1983 to 1997, Michael Mason
led a conspiracy to distribute powder cocaine and
crack cocaine in the Gary, Indiana area. On July
17, 1997, a federal grand jury returned an eight-
count indictment for conspiracy to possess with
intent to distribute cocaine and cocaine base and
related offenses against Mason, Jacoby Walker,
and Eric Frazier./1 They all pled not guilty. On
November 20, 1997, a third superseding indictment
was returned charging Mason with ten counts,
Walker with seven counts and Frazier with six
counts./2
After the superseding indictment, Frazier
tendered his plea of guilty on January 6, 1998.
The plea agreement provided that in return for
his cooperation, the government would file a
5K1.1 departure motion for substantial
assistance, a 15 year cap on his sentence and the
dismissal of the other charges. On January 27,
1998, Frazier testified for the government
against Mason and Walker. On April 17, 1998, the
government filed a notice of its intention not to
file the 5K1.1 motion and instead requested an
enhancement for perjury and that Frazier not be
granted acceptance of responsibility. Frazier
objected and filed a motion to compel the
government to file the 5K1.1 motion and an
alternate motion to withdraw his guilty plea.
Proceedings were held and the district court
denied both motions. The court relieved the
government from its duty to file the 5K1.1 motion
and sentenced Frazier to life imprisonment. The
court enhanced Frazier’s sentence for obstruction
of justice, pursuant to the Sentencing Guidelines
section 3C1.1 and found that he had not accepted
responsibility for the crime.
Mason and Walker went to trial./3 On January
30, 1998, after a five day jury trial, both Mason
and Walker were found guilty on all counts. On
March 12, 1999, the district court dismissed one
of the firearms counts against both Mason and
Walker and entered judgment on the verdicts.
Walker was sentenced to life imprisonment under
21 U.S.C. sec.sec. 841(a)(1) (distribution of
crack cocaine), 846 (conspiracy to possess with
intent to distribute crack cocaine) and 861(a)(1)
(use of a minor to distribute crack cocaine).
This sentence was to run concurrently with a ten-
year sentence under 26 U.S.C. sec. 5861(d) for
possessing an unregistered firearm. Additionally,
the court imposed a thirty-year sentence to run
consecutively for carrying a silencer-equipped
gun "during and in relation to" the charged drug
conspiracy under 18 U.S.C. sec. 941(c)(1).
The court arrived at that sentence after
imposing a two-level enhancement for obstruction
of justice under U.S.S.G. sec. 2D1.1 and a three-
level enhancement for an aggravating role as a
manager or supervisor of criminal activity under
U.S.S.G. sec. 3B1.1(b). This raised Walker’s base
offense level from thirty-eight to an adjusted
offense level of forty-three, which combined with
a criminal history category of III, required a
life sentence under the Guidelines.
Mason’s base offense level was thirty-eight,
reflecting the total quantity of drugs involved
in the conspiracy. The court then added a two-
level enhancement for obstruction of justice
under U.S.S.G. sec. 3C1.1 and an additional four-
level enhancement for his role as an organizer or
leader of the conspiracy. A total offense level
of forty-six, combined with a criminal history
category of I, called for a life sentence plus
the thirty years to run consecutively for
carrying a silencer-equipped gun "during and in
relation to" the charged drug conspiracy under 18
U.S.C. sec. 941(c)(1).
Mason and Walker raise several arguments on
appeal. First, they argue that their convictions
were based on improperly admitted hearsay
testimony and evidence regarding the activities
of John Allen and his organization. The
government presented evidence that established
that since 1996, John Allen supplied cocaine to
Mason. Allen, who owned Elite Electronics/4
which supplied and serviced pagers, also provided
Mason’s organization with pagers. The pagers
allowed callers to leave messages that would be
sent by a computer at Elite Electronics to the
customer’s pager. Mason’s girlfriend, Monica
Linear, worked at Elite for several months
transmitting messages to the pagers. Runners for
Allen, Samuel Johnson and Anthony Franklin,
delivered cocaine to Mason at either the Stony
Island car lot operated by Mason or his house.
Occasionally, Allen gave cocaine to Mason on
credit.
Second, Mason and Walker argue insufficiency of
the evidence with regard to the carrying of a
pistol with a silencer during the commission of
a drug transaction. Several witnesses testified
to the use of guns in collection of drug debts
including Frazier’s testimony of hitting Little
Vic with a gun and pulling a gun on Courtney
Johnson. Ronald Radford, a former employee of the
car lot and security guard, testified to
purchasing guns for Mason and his organization.
After Mason’s arrest Joe Torrence, a seventeen
year old, hid the silencer in his dryer in the
basement of his home at 26th and Tyler. Frazier
then brought him an ounce of cocaine, which he
put in the dryer and removed the silencer to his
room where it remained until the Gary Police
confiscated it a month later. The .22 caliber
Colt semi-automatic was sent to the ATF
laboratory. The silencer was found to be
effective as a silencer as defined by federal
statute. It was not registered.
Finally, Mason and Walker raise several
arguments on the calculation of their sentences.
Specifically that the court improperly enhanced
their sentences for obstruction of justice.
Walker also argues that the court incorrectly
enhanced his sentence for finding that he was a
manager/supervisor in the organization and that
the court miscalculated his criminal history
category.
Frazier appeals the district court’s denial of
his motion to compel the government to file a
5K1.1 departure motion for substantial assistance
per his plea agreement. Frazier’s plea agreement
provided that, in exchange for his cooperation,
the government would file a sec. 5K1.1 departure
motion and that the parties would agree to a
sentencing cap of fifteen years. The plea
agreement further provided:
ii. I further understand that this sentencing
agreement is based on my continuing cooperation
with the United States and my agreement to always
provide truthful and complete information and
testimony; I also understand that if I fail to
provide complete, truthful and candid information
and testimony as required by this plea agreement,
the government will not be obligated to file the
departure motion and I will not be allowed to
withdraw my guilty plea; I further understand
that the Court can then sentence me to any term
of imprisonment with the applicable guideline
range.
At the plea hearing the court discussed the
agreement with Frazier, at which time the court
inquired into his knowledge and understanding of
the agreement. Including the following question
and answer:
The Court: Has anybody, including your lawyer,
any lawyer for the government, any government
agent or anybody else made any other or different
promise or assurance to you of any kind in an
effort to cause you to plead guilty to this crime
of drug conspiracy that you’re about to plead
guilty to?
A: No, sir.
On January 27, 1998, Frazier then testified as
a government witness. On April 17, 1998, the
government filed a notice to disavow its
obligation to file the 5K1.1 motion, requesting
an enhancement for perjury and denial of
acceptance of responsibility. Frazier objected
and urged the government to file a sentencing
memorandum noting the alleged perjury, which the
government did on November 10, 1999. Frazier
moved to strike the memorandum due to tardiness
or in the alternative for a continuance. On
November 12, 1999 the court granted the motion to
strike but allowed the government to refile which
it did the next day. The memorandum alleged
perjury, specifically regarding Frazier’s
statement that he could get probation or immunity
through his cooperation. Frazier then filed a
motion to compel the government to file a sec.
5K1.1 motion and an alternate motion to withdraw
his guilty plea. On January 6, 1999, a sentencing
hearing was held.
During the hearing, the government introduced a
document attached to Mason’s motion for new trial
("Mason Document"), which was signed by Frazier.
It was not signed under oath. In the document
Frazier recanted his trial testimony, claiming he
lied about the defendants because of the
government’s promise of leniency. At the
sentencing hearing, Frazier claimed those
statements were false. The judge made Frazier go
through it paragraph by paragraph stating whether
or not they were true or false.
The district court then denied Frazier’s motion
stating:
There is no doubt in this court’s mind that
this defendant did not live up to his end of the
bargain that he made with the government. The
testimony at trial that he has made promises
other than what he told me the promises were when
I took his plea, that in itself is sufficient to
allow the government not to file it.
Therefore, the court will not compel the
government to file the 5K1.1 motion.
The document that was submitted by Defendant
Michael Mason, which is signed by the defendant,
it may not be under oath, but it certainly is
false representations to this court that
certainly are material to the sentencing of
Michael Mason, and certain portions of it he’s
admitted are false.
That in itself coupled with the other instance
of what this court determines to be perjury in
his testimony when he said that--at trial when he
said that there were other promises made by the
government, that coupled with this false
representation amounts to obstruction of justice.
The alternative request to withdraw his plea was
also denied and Frazier was sentenced to life
imprisonment.
II. Analysis
A. Evidentiary Issues
Mason and Walker contend that the district
court made repeated and prejudicial evidentiary
rulings denying them a fair trial. Both argue
that the court improperly admitted the hearsay
testimony of Frazier pertaining to the operation
of a crack house by Walker. Further, they contend
that the court improperly admitted evidence
concerning the activities of John Allen, which
they claim was a separate conspiracy.
Decisions to admit evidence are reviewed for
abuse of discretion. United States v. Dominguez,
992 F.2d 678, 680-681.
The district court did not abuse its
discretion, despite Mason and Walker’s attempt to
separate the Mason and Allen organizations, when
it admitted the statements of members of the
Allen organization. Because there were two
different organizations, Mason and Walker argue
there were two different conspiracies involved.
The evidence regarding the Allen conspiracy,
according to them, should not have been presented
to the jury. The government, on the other hand,
submits that Allen and Mason’s organizations were
part of the same conspiracy. The evidence
presented at trial clearly linked these two
organizations in a single conspiracy.
"Evidence of frequent and repeated transactions,
especially when credit arrangements are made, can
support a conspiracy conviction." United States
v. Plescia, 48 F.3d 1452, 1460 (7th Cir. 1995).
We have held that an ongoing relationship
involving numerous purchases and the fronting of
drugs indicates the existence of a conspiracy.
United States v. Ferguson, 35 F.3d 327, 331 (7th
Cir. 1994); United States v. Lechuga, 994 F.2d
346, 350 (7th Cir. 1993).
The government presented sufficient evidence to
establish that Allen and Mason’s organizations
were linked and part of a single conspiracy.
Beginning in 1996 until Mason’s arrest in March
1997, Allen was Mason’s source for drugs. Allen
and his runners made frequent deliveries of large
quantities of cocaine, usually two to six
kilograms, to Mason. Occasionally, Allen would
front the drugs to Mason. Allen’s business, Elite
Electronics, also supplied and serviced pagers
for Mason’s organization. And for a period of
time, Elite employed Mason’s girlfriend to
transmit messages to the pagers. On March 14 DEA
agents raided Greg Jones’ condominium, who stored
cocaine for Allen. The agents confiscated 31
kilograms of cocaine but let Jones leave. After
the raid, Allen and Mason met on more than one
occasion to determine how to handle Jones,
concerned that he would cooperate with the
authorities.
Because the statements by members of the Allen
organization were made during and in furtherance
of the conspiracy they were properly admitted
pursuant to FRE 801(d)(2)(E). Coconspirators do
not have to have contact with, or even know, all
of the other conspirators. United States v.
Goines, 988 F.2d 750, 759 (7th Cir. 1993)
(quoting United States v. Marshall, 985 F.2d 901,
905 (7th Cir. 1993) (citation omitted)).
Therefore, the fact that Allen’s runners and
Mason’s employees did not know each other does
not negate a single conspiracy.
Mason and Walker next argue that the court
should have barred Frazier’s hearsay testimony
regarding his knowledge of the crack houses. The
government concedes that the statements were
erroneously admitted, but argues that any error
was harmless because the evidence against Walker
was so overwhelming. The evidence included tape
recordings and surveillance of Walker selling
crack to the informant on two different
occasions. Marlon Phillips testified that for one
of those sales he provided the crack for Walker.
Further, several other coconspirators identified
Walker as their source for crack. Before Shannon
Hemphill was allowed to sell drugs alone, Walker
had to accompany him. Hemphill often delivered
four and one half ounces of crack from Mason or
Walker to others. Frazier’s other testimony also
implicated Walker’s involvement in the
conspiracy.
The evidence presented showed that members of
Allen’s organization delivered large quantities
of cocaine to Mason. Testimony from several of
Mason’s people, including Frazier, Hemphill, and
Marlon Phillips stated they received and sold
cocaine for him. Further, the hearsay statements
did not directly implicate Mason.
Beyond the hearsay, there was more than ample
evidence in the record to support the convictions
of Mason and Walker, and thus its admission was
harmless. The limited prejudicial effect of the
admission of the hearsay was outweighed by the
cumulative effect of the other evidence already
presented. United States v. Johnson, 127 F.3d
625, 631 (7th Cir. 1997); see United States v.
Brown, 31 F.3d 484, 491 (7th Cir. 1994); United
States v. Carter, 720 F.2d 941, 948 (7th Cir.
1983). Mason and Walker were not prejudiced by
the court’s error.
B. Sufficiency of Evidence
Mason and Walker contend that the evidence was
insufficient to support their convictions under
18 U.S.C. sec. 924(c) with respect to carrying a
.22 caliber pistol with a silencer during a drug
trafficking crime, specifically, the use of the
pistol by Joseph Torrence when he received a
quantity of crack from Frazier. The charge was
based on coconspirator liability under the
Pinkerton Doctrine.
Under Pinkerton, a coconspirator may be held
criminally liable for the foreseeable overt acts
of others in furtherance of a conspiracy.
Pinkerton v. United States, 328 U.S. 640, 66
S.Ct. 1180, 90 L.Ed. 1489 (1946); United States
v. Pazos, 993 F.2d 136, 141 (7th Cir. 1993).
Sufficiency of the evidence challenges face
nearly insurmountable hurdles, and in making this
argument, Mason and Walker bear a heavy burden.
United States v. Runnels, 93 F.3d 390, 394 (7th
Cir. 1996); See United States v. Hickok, 77 F.3d
(7th Cir. 1996). We consider the evidence in the
light most favorable to the government, drawing
all reasonable inferences in its favor. Id.;
United States v. Strang, 80 F.3d 1214, 1219 (7th
Cir. 1996).
The evidence at trial sufficiently established
that a firearm was carried in furtherance of the
drug conspiracy and in fact was an integral part
of the conspiracy. Mason bragged to Hemphill
about having the .22 caliber pistol with
silencer. He offered it to John Allen’s brother
on the condition that it be returned. The pistol
was passed among members of the organizations and
used in retaliation against a person who had
attacked one of the coconspirators. Frazier hit
Little Vic with a firearm because of a drug debt.
Moreover, the specific charge was directly
related to the conspiracy and possession with
intent to distribute cocaine. The evidence
presented showed that Torrence, at the direction
of the other coconspirators, held the firearm and
a quantity of cocaine together. For these
reasons, the district court properly found that
sufficient evidence existed to support Mason and
Walker’s convictions for carrying a weapon during
the commission of a crime.
C. Sentencing
1. Mason and Walker contend that the district
court erred in enhancing their sentence under
sec. 3C1.1 for obstruction of justice. The
sentencing court’s determination that the
defendant obstructed justice is a finding of fact
and is reviewed under the clearly erroneous
standard on appeal. United States v. Brown, 900
F.2d 1098, 1101 (7th Cir. 1990). Where there are
two permissible views of the evidence, the fact
finder’s choice between them cannot be clearly
erroneous. Id. Section 3C1.1 of the Sentencing
Guidelines provides in pertinent part:
If (A) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the
administration of justice during the course of
the investigation, prosecution, or sentencing of
the instant offense of conviction, . . . increase
the offense level by 2 levels.
And the application notes further explain that:
4. The following is a non-exhaustive list of
examples of the types of conduct to which this
adjustment applies:
(b) committing, suborning, or attempting to
suborn perjury;
6. "Material" evidence, fact, statement, or
information, as used in this section, means
evidence, fact, statement, or information that,
if believed, would tend to influence or affect
the issue under determination.
USSG sec. 3C1.1.
The Supreme Court in United States v. Dunnigan,
507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445
(1993), addressed the constitutionality of
obstruction of justice enhancements and held that
the district court must make independent findings
of fact that the defendant lied. We have upheld
an obstruction of justice enhancement where the
district judge evaluated the testimony of the
defendant against the testimony of others and
determined that the defendant’s testimony lacked
credibility. United States v. Pedigo, 12 F.3d
618, 629 (7th Cir. 1993).
At the suppression hearing both Mason and
Walker testified that they invoked their right to
counsel and asked for an attorney. The
interviewing agents, however, testified that each
defendant signed written waivers of their right
to remain silent after being fully advised of
their rights. After listening to the testimony,
the district court found that Mason and Walker
lied under oath. Therefore, the obstruction of
justice enhancement was not clearly erroneous.
The district court believed the agents and
determined that both Mason and Walker had lied
under oath and therefore an obstruction of
justice enhancement was properly made.
2. Walker argues that the district court erred
in finding that he was a manager/supervisor under
sec. 3B1.1(a), which resulted in a three-level
increase to his base offense level. "A sentencing
court’s determination concerning a defendant’s
role in the offense is a finding of fact, subject
to a clearly erroneous standard of review on
appeal." United States v. Brown, 900 F.2d 1098,
1101 (7th Cir. 1990). A finding of fact will only
be found erroneous if after reviewing all the
evidence, the court is left "with a definite and
firm conviction that a mistake has been
committed." United States v. Herrera, 878 F.2d
997, 1000 (7th Cir. 1989). The district court
must find that the evidence established the
defendant’s role by a preponderance of the
evidence. United States v. Spillman, 924 F.2d
721, 723 (7th Cir. 1991).
Section 3B1.1(b) of the sentencing guidelines
provides that "if the defendant was a manager or
supervisor (but not an organizer or leader) and
the criminal activity involved five or more
participants or was otherwise extensive, increase
by 3 levels." U.S.S.G. sec. 3B1.1. In making its
sentencing determination, "[t]he district court
must draw inferences from a variety of data,
including the defendant’s demeanor and
information in the [presentence report], in order
to reach [its] conclusion." United States v.
Brown, 944 F.2d 1377, 1379 (7th Cir. 1991)
(citation omitted). "The central purpose of sec.
3B1.1 is to punish a defendant for his relative
responsibility within a criminal organization."
United States v. Fones, 51 F.3d 663, 665 (7th
Cir. 1995).
The evidence clearly supports the district
court’s finding that Walker had a high enough
level of responsibility in the organization to
justify the enhancement. Shannon Hemphill’s
testimony established that when he first began
working for Mason he was accompanied by either
Walker or Frazier on all runs. Marlon Phillips
testified that Mason was the leader of the
organization but that he only dealt with Walker
or Frazier. Torrence stated that when he was
arrested he had a .40 caliber semi-automatic
handgun and 56 packets of crack cocaine which
Walker had given him. Frazier testified that, at
the time of his arrest, Torrence was working for
Walker but that he also worked for others.
Frazier further testified that Walker gave him
the .22 semi-automatic pistol with silencer at
the Stony Island car lot. Finally, Linear’s
testimony established that Walker operated a
crack house which she learned about from Mason
after the police raid. Because Mason was the
leader of the organization and a coconspirator of
Walker, she was in the position to obtain
reliable information about the conspiracy. The
district court, after listening to all of this
testimony, did not err in finding Walker was a
manager.
3. Walker’s final argument is that the
district court’s calculation of his criminal
history category was flawed. Walker argues that
his 1992 prison sentence was not a "prior
sentence" but part of the instant offense.
Because Walker raises this issue for the first
time on appeal, we will review it for plain
error. United States v. Goudy, 78 F.3d 309, 315
(7th Cir. 1996). Walker must show that the error
affects substantial rights. In other words, the
error must have been prejudicial. United States
v. Remsza, 77 F.3d 1039, 1044 (7th Cir. 1996).
Put another way, the error "must have affected
the outcome of the district court proceedings."
United States v. Olano, 507 U.S. 725, 736-37
(1993).
In United States v. Dillon, 905 F.2d 1034 (7th
Cir. 1990), we decided that where two Guidelines
ranges overlap and the sentence imposed would
have been the same regardless of which range was
applied, the technical dispute over which range
to apply may be left unresolved. Id. at 1037. As
long as it is reasonable to conclude that the
same sentence would have been imposed regardless
of the outcome of the dispute over which range to
apply, we need not resolve the dispute. Id. at
1038.
The miscalculation of Walker’s criminal history
category does not survive the plain error test.
While the government admits that the court
miscalculated Walker’s criminal history category,
the sentence does not change. Because Walker’s
base offense level was forty-three, which carries
a life sentence, the criminal history category is
irrelevant. Therefore, the district court did not
err in sentencing Walker.
D. Government did not Violate the Anti-Bribery
Statute
Mason argues that his conviction should be
overturned because the government violated the
anti-bribery statute when it offered leniency to
a number of government witnesses. Because Mason
failed to object during trial, we review for
plain error. United States v. Hardamon, 188 F.3d
843, 848 (7th Cir. 1999).
Section 201(c)(2) of Title 18. United States
Code, provides in pertinent part:
whoever directly or indirectly, gives, offers or
promises anything of value to any person, for or
because of the testimony under oath or
affirmation given or to be given by such person
as a witness upon a trial, hearing, or other
proceeding, before any court . . . . shall be
fined under this title or imprisoned for not more
than two years, or both.
Mason relies unsuccessfully on the tenth circuit
case United States v. Singleton, 144 F.3d 1343
(10th Cir. 1998). In Singleton, the court found
that immunity or a lower sentence given in
exchange for testimony to be a "thing of value,"
and thus a violation of the statute. This circuit
has rejected the decision in Singleton, finding
that the government does not violate the statute
in exchanging truthful testimony for a reduction
in sentence. Hardamon, 188 F.3d 843, 848 (7th
Cir. 1999); United States v. Condon, 170 F.3d
687, 689 (7th Cir. 1999); United States v.
Barrett, 505 F.2d 1091, 1100-03 (7th Cir. 1974).
Mason’s reliance on Singleton is further
misplaced since the Tenth Circuit sitting en banc
has reconsidered its position and has vacated
that opinion. United States v. Singleton, 165
F.3d 1297, 1298 (10th Cir. 1998). Mason has not
provided us with any reason to reconsider and
therefore there is no violation of the statute.
E. Jury Instruction
Mason’s final argument is that the court failed
to advise the jury of the necessary elements of
an offense under 21 U.S.C. sec. 861(a)(1) of
employing a minor for the purpose of distributing
cocaine. Mason contends that the jury should have
been instructed that he had to know Torrence was
a juvenile in order to be convicted. Again this
issue is being raised for the first time on
appeal, so we review it for plain error. Goudy,
78 F.3d 309, 315 (7th Cir. 1996).
Section 861 (a) for Title 21, United States
Code, provides in pertinent part:
It shall be unlawful for any person at least
eighteen years of age to knowingly and
intentionally--
(1) employ, hire, use, persuade, induce, entice,
or coerce, a person under eighteen years of age
to violate any provision of this subchapter or
subchapter II of this chapter;
Count 13 of the third superseding indictment
charged Mason with violating sec. 861(a) in
employing Torrence in the conspiracy. The
evidence revealed that Torrence worked in Mason’s
crack houses before he reached the age of
eighteen.
Other circuits have found that to require
knowledge would undercut the legislative purpose.
United States v. Cook, 76 F.3d 596, 601 (4th Cir.
1996). Further, requiring knowledge merely
encourages leaders of organizations, like Mason,
to blind themselves to the ages of the youths
with whom they deal. Id. See, e.g., United States
v. Chin, 981 F.2d 1275, 1280 (D.C. Cir. 1992);
United States v. Williams, 922 F.2d 737, 738-39
(11th Cir. 1991); United States v. Valencia-
Roldan, 893 F.2d 1080 (9th Cir. 1990); United
States v. Carter, 854 F.2d 1102, 1108-09 (8th
Cir. 1988). Williams explained that the
government need only prove that the defendant
knowingly employed a person in the commission of
a drug offense and that the person employed was
under eighteen when employed. Williams, at 739.
The court in Chin found it impossible that
Congress would place the burden, beyond a
reasonable doubt, on the government to prove that
the drug dealer had known the youth he enticed
was under eighteen. Chin, at 1280. The intent of
Congress in sec. 861(a) was to protect juveniles
indicating an intent to place the burden on the
drug dealer to know who is working for him. Id.
We join the other circuits in finding that
knowledge is not an element of sec. 861(a) and
therefore Mason’s argument fails.
F. Frazier’s Plea
Frazier argues that the court improperly denied
his motion to compel the government to file a
sec. 5K1.1 departure motion for substantial
assistance or in the alternative to withdraw his
plea. The government refused to file the sec.
5K1.1 departure motion on the grounds that
Frazier lied on the stand regarding his deal with
the government during Mason and Walker’s trial.
The government argues that this lie constituted
a material breach of the plea agreement and
therefore it was relieved of any obligation to
file the motion. The district court found that
Frazier did not live up to his end of the bargain
and denied both of his motions.
Plea agreements are contracts and thus subject
to contract law. United States v. Lezine, 166
F.3d 895, 901 (7th Cir. 1999). The government
cannot unilaterally determine that the defendant
has breached the plea agreement and refuse to
uphold its end of the bargain. Id. An evidentiary
hearing is required for the court to determine if
a substantial breach of the plea agreement has
occurred. Id. Because plea agreements are
considered contracts, a breach must be proven by
a preponderance of the evidence. United States v.
Ataya, 864 F.2d 1324, 1337 (7th Cir. 1988);
United States v. Verrusio, 803 F.3d 885 (7th Cir.
1986).
In this case the district court provided
insufficient findings of fact to support its
determination that Frazier substantially breached
the plea agreement. The district court simply
stated that "there was no doubt in his mind that
Frazier did not live up to his end of the
bargain." The court did not elaborate or provide
sufficient findings for its reasoning, therefore
we remand for a more complete explanation of the
what facts the court found that led to his
conclusion that Frazier "did not live up to his
end of the bargain."
In all other respects, the decisions of the
district court are affirmed. The case is remanded
for the sole purpose of addressing the issues
relating to Frazier’s breach of the plea bargain.
Affirmed in part and reversed in part.
FOOTNOTES
/1 Shannon Hemphill and Marlon Phillips were also
charged in the indictment, both pled guilty and
testified for the government.
/2 Hemphill, Ramone Hemphill, and Mason’s
girlfriend, Monique Linear, were also charged in
this indictment.
/3 Monique Linear was also a defendant in this
trial.
/4 Elite was originally located in Hammond, Indiana
but the business relocated to Merrillville,
Indiana and became known as Elite Wireless.