United States v. Friend , 100 F. App'x 181 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4195
CORNELL D. FRIEND, a/k/a Dave,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-02-36)
Argued: February 27, 2004
Decided: June 9, 2004
Before LUTTIG and MICHAEL, Circuit Judges, and
William D. QUARLES, Jr., United States District Judge
for the District of Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Christopher Brian Denson, STEPTOE & JOHNSON,
Clarksburg, West Virginia, for Appellant. Zelda Elizabeth Wesley,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellee. ON BRIEF: Thomas E. Johnston, United States Attorney,
Clarksburg, West Virginia, for Appellee.
2 UNITED STATES v. FRIEND
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant, Cornell Friend, appeals from the 97-month prison sen-
tence imposed upon him by the district court in connection with vari-
ous drug distribution convictions. Appellant contends that the district
court’s imposition of a two-level enhancement for obstruction of jus-
tice and its denial of reduction for acceptance of responsibility were
in error. For the reasons that follow, we affirm.
I.
After reaching a plea agreement with the government, appellant
pled guilty to aiding and abetting the distribution of approximately
3.48 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C) and 18 U.S.C. § 2. J.A. 119-25. The district court
accepted Friend’s guilty plea, but deferred acceptance of the proposed
plea agreement, stipulations, and non-binding recommendations until
it had received and reviewed the presentence report. Id. Appellant was
thereafter released on bond pending sentencing. J.A. 6, 129.
On November 25, 2002, the government moved the district court
to revoke Friend’s release pending sentencing for failure to comply
with the conditions of his release. Specifically, the government
alleged that in late November Friend had sent a threatening AOL
instant message to co-defendant Andrew Hartnett, who had been
charged with aiding and abetting Friend’s distribution of narcotics, in
violation of the condition of his release that he refrain from contacting
other witnesses and co-defendants in the case and from threatening,
harassing, or intimidating potential witnesses.
The instant message, sent between juggernaut4000 (Friend’s admit-
ted internet pseudonym) and Andfoo (Hartnett’s admitted internet
pseudonym) read as follows:
UNITED STATES v. FRIEND 3
juggernaut4000: i [g]uess ratting out friends comes natu-
rally, huh?
Andfoo: this is andy’s mom . . . he is not here now
juggernaut4000: paybacks a bitch, i don’t forget
Andfoo: who is this . . .
Andfoo: this is andy’s mom . . . who are you
J.A. at 130.
The juggernaut4000 message was received by Hartnett’s mother,
Mary, on the personal computer that she and her son share. Mrs. Hart-
nett printed out the exchange and showed it to Andrew a few hours
later.
In response to the government’s release revocation motion, a hear-
ing was held on December 9, 2002, before a magistrate judge, at the
onset of which the government described as follows its agreement
with Friend, reached prior to the hearing:
Basically, Mr. Friend has agreed to admit the allegation in
the Government’s petition [i.e., the instant message
exchange]; the Government, in turn, has agreed, at sentenc-
ing, to not pursue an acceptance of responsibility issue, an
obstruction of justice enhancement, and not to pursue any
new charges stemming from this incident.
J.A. 127 (emphasis added).
During the release revocation hearing, Friend admitted to sending
the instant message to Andrew Hartnett, but denied that he intended
the message as a threat. J.A. 126-42. The magistrate judge denied the
government’s motion to revoke release. Friend was thereafter released
pending sentencing but ordered to surrender his computer and to have
no further contact, direct or indirect, with Andrew Hartnett. J.A. 139-
40.
4 UNITED STATES v. FRIEND
Subsequent to the revocation hearing, the probation officer filed an
amended presentence report with respect to Friend, recommending a
two-level increase for obstruction of justice and eliminating any
reduction for acceptance of responsibility, based on the content of the
instant message. J.A. 272. Friend timely objected to the probation
officer’s recommendations. J.A. 226.
Argument and testimony on Friend’s objections were heard during
a sentencing hearing held on February 11, 2003. At the onset of the
hearing, the government informed the court of its agreement with
Friend. The government also informed the court that it had subpoe-
naed Mary and Andrew Hartnett, the recipients of Friend’s instant
message, to appear as witnesses in the event that the court wished to
hear their testimony. J.A. 168.
Ultimately, the court did decide to hear testimony from Mary and
Andrew Hartnett, and the government directed that testimony, intro-
ducing into evidence the printout of Friend’s instant message made by
Mary Hartnett. J.A. 174. No reference to the government’s agreement
with Friend was made during Mary Hartnett’s testimony. However,
at one point during Andrew Hartnett’s testimony, the prosecutor
stopped her questioning of Hartnett and said to the court that "I kind
of feel that under my agreement, that asking Mr. Hartnett any more
questions would be in breach of that agreement." J.A. 177. At this, the
court agreed to the government’s cessation of questioning and posed
questions to the witness directly.
Eventually, the district court found as follows with respect to the
instant message sent by Friend:
The Court finds by a preponderance of the evidence that the
defendant did, in fact, threaten his co-defendant. The defen-
dant’s choice of pithy language and the first person clearly
indicates that he, and not karmic forces [as Friend claimed
he meant], is planning on getting even with Andrew Hartnett
no matter how long it takes. The language is threatening on
its face and incapable of an innocent construction.
J.A. 229 (emphasis added), 187. The court also concluded that this
threat, made after Friend entered into his plea agreement, warranted
UNITED STATES v. FRIEND 5
a two-level enhancement for obstruction of justice, and that this
enhancement in turn foreclosed any acceptance of responsibility
reduction for Friend. The district court sentenced Friend to 97 months
in prison.
II.
On appeal, Friend claims first, that his sentence should be vacated
because the government breached its agreement not to pursue obstruc-
tion of justice and acceptance of responsibility issues, and, second,
that the district court erred in finding that a preponderance of the evi-
dence established that Friend threatened a co-defendant. Therefore,
Friend argues, the court incorrectly applied an enhancement for
obstruction of justice under U.S.S.G. § 3C1.1 and incorrectly denied
him a downward adjustment for acceptance of responsibility under
U.S.S.G. § 3E1.1. We address each argument below.
III.
We turn first to the question of whether the government breached
its agreement not to pursue obstruction of justice and acceptance of
responsibility issues, as Friend alleges. Friend claims that, when mak-
ing representations at the outset of the revocation hearing, the govern-
ment agreed not to "pursue" obstruction of justice and acceptance of
responsibility issues at Friend’s sentencing hearing. This agreement,
Friend claims, overrides the provision in the plea agreement itself that
allowed the government to present relevant evidence to the district
court at sentencing. See J.A. 55 ¶ 10. Friend argues that he was preju-
diced by the government’s actions because, absent the breach,
Andrew Hartnett and his mother would not have testified, and the dis-
trict court would not have found the instant message to be a threat,
in light of his uncontroverted testimony that he did not intend to
threaten Andrew Hartnett.
We review a claim that the government breached an agreement
with the defendant "under a bifurcated standard, reviewing the district
court’s factual findings for clear error, while reviewing the district
court’s application of principles of contract interpretation de novo."
United States v. Bowe, 257 F.3d 336, 342 (4th Cir. 2001).
6 UNITED STATES v. FRIEND
In this case, however, Friend failed to raise his argument of breach
before the district court, despite multiple opportunities during the pro-
ceedings to do so. During the sentencing hearing, neither after the
government’s mention that the Hartnetts were in the hallway pursuant
to the government’s subpoena, nor during or after the government’s
questioning of each of the Hartnetts, did Friend object that the gov-
ernment was in breach of its agreement. Friend was equally silent
about the agreement after each of the government’s several reminders
to the court that the government was unable to request an obstruction
of justice enhancement per its agreement with Friend, including the
government’s reminder when it ceased its questioning of Andrew
Hartnett that "[it felt] that asking Mr. Hartnett any more questions
would be in breach of [its] agreement."
Absent objection to the alleged breach, we review Friend’s claim
only for plain error. United States v. Brown, 202 F.3d 691, 698 n.13
(4th Cir. 2000); see also Fed. R. Crim. P. 52(b). As recognized by the
Supreme Court in United States v. Olano, 507 U.S. 725 (1993), in
order for there to be plain error, there must be "error" that is "plain,"
and that error must affect the defendant’s "substantial rights." Id. at
732-36. Even if these conditions are met, we have authority to correct
the error, but are not required to do so. Id. at 736-37.
We turn first to the question of whether the district court erred in
failing to find that the government breached its agreement with Friend
not to "pursue" obstruction of justice and acceptance of responsibility
issues at Friend’s sentencing hearing. The government maintains that
its statement that it would not "pursue" obstruction of justice and
acceptance of responsibility issues meant that it was limited only in
its ability to "recommend a specific position" with regard to obstruc-
tion of justice and acceptance of responsibility issues. It contends that
it "retained the right to provide information to the district court to
enable it to exercise its sentencing discretion," as spelled out in the
plea agreement between the government and Friend. J.A. 52.
At first blush, the government’s argument that it did not pursue
either the obstruction of justice or acceptance of responsibility issues,
but, rather, only provided information to the district court to enable
the court to reach a sentencing decision, has some appeal. And cer-
tainly it might appear that the district court did not plainly err in not
UNITED STATES v. FRIEND 7
finding otherwise. To be sure, the government did not breach the
agreement by introducing evidence of Friend’s threat at the revoca-
tion hearing, since there was a colorable claim that Friend had
breached a condition of release apart from any obstruction of justice.
And despite the government’s participation in the sentencing hearing
itself, the district court found that "[t]he United States really is not
taking a position on [the obstruction of justice enhancement]" before
finding that the enhancement was justified and that, "as a conse-
quence," a reduction for acceptance of responsibility was not. J.A.
187-88.
However, if "pursue" is construed to mean "to proceed along, fol-
low, or continue with (a specified course, action, plan, etc.)," as
defined in Webster’s New World Dictionary, it is a fair question
whether the government’s actions at sentencing did in fact cross the
line into "pursuit" of the obstruction of justice enhancement and
acceptance of responsibility issues. Under this dictionary definition of
"pursue," we believe it might well be reasonable to characterize the
government’s actions as "pursuit" of the obstruction of justice
enhancement. The government did not merely subpoena Mary and
Andrew Hartnett as witnesses and bring them to court, which might
be justified, as the government asserts, as nothing more than "the
practice in [the] district." Rather, the government went beyond the
mere subpoenaing of witnesses. It introduced the printout of the
instant message into evidence during Mary Hartnett’s testimony. It
questioned both Mary Hartnett and Andrew Hartnett on the instant
message sent by Friend; indeed, the government elicited (intentionally
or not) the statement from Mary Hartnett that she had seen a "threat"
on the screen from Friend’s computer, J.A. 173, and the government
ceased its questioning of Andrew Hartnett only at the point where it
admittedly felt that it was in danger of breaching its agreement. Id.
at 177. And, in an apparent attempt to establish that Friend did intend
to threaten Andrew Hartnett, the government even went so far as to
question Friend as to his state of mind at the time that he sent the
instant message, asking Friend "why he was mad" at Andrew Hart-
nett. Id. at 184.
The introduction of the instant message into evidence and the
development of these particular lines of questioning during the hear-
ing raise doubts as to whether the government actually did stop short
8 UNITED STATES v. FRIEND
of "pursuing" the issues of obstruction and acceptance of responsibil-
ity.
It is not necessary for us to decide whether the government in fact
breached its agreement with Friend, however, and we refrain from
doing so. For, even assuming both that the government breached the
agreement and that this breach should have been obvious to the dis-
trict court, we are satisfied that Friend has not shown that any error
affected his substantial rights; any error committed by the district
court did not, in other words, affect the outcome of the district court
proceedings. See Olano, 507 U.S. at 734; Bank of Nova Scotia v.
United States, 487 U.S. 250, 255-57 (1988).
Friend claims that absent the Hartnetts’ testimony, "[t]he language
of the instant message by itself clearly would not have been enough
to support a finding by a preponderance of the evidence that Cornell
Friend threatened a co-defendant." Appellant’s Br. at 27. We find this
argument unpersuasive, given that the district court stated its belief,
in findings, that "the language on its face in this instant message is
threatening" and that "it [is] self-evident that when you talk about rat-
ting out friends and talking about paybacks and I don’t forget that the
language alone is enough for [it] to find that this defendant threat-
ened his co-defendant." J.A. at 187 (emphases added).
In addition, although Mary Hartnett produced a printout of the
instant message during her testimony before the court which was
introduced into evidence by the government, it is clear that the text
of the message was already part of the court record and therefore was
available to the court even had Mrs. Hartnett not been subpoenaed by
the government. The transcript of the revocation hearing before the
magistrate judge includes the text of the message in full. Conse-
quently, given that the presentence report was subsequently amended
to recommend an enhancement in light of the evidence of the threat
that was adduced at that hearing, the district court would have been
fully aware of the content of the message even absent the appearance
of Mrs. Hartnett as a witness. And the fact that the district court heard
from the Hartnetts at all is not, by itself, prejudicial, since the district
court could properly hear evidence relating to Friend’s challenge to
the presentence report’s recommendation of an obstruction of justice
enhancement.
UNITED STATES v. FRIEND 9
Appellant argues that "the Court’s findings were clearly based on
the Hartnett’s testimony" and that the court was "persuaded by the
testimony of Andrew and Mary Hartnett." Reply Br. at 8-9. Our
impression is otherwise. From the record, it is evident that factors
beyond the witnesses’ testimony played a significant role in the
court’s decision. In particular, the court relied on statements by the
magistrate judge and the probation officer’s presentence report to sup-
port its sentencing decision. Moreover, from the district court’s own
statements, it is apparent that the court believed that the content of the
instant message itself was more than sufficient to support the finding
that the message constituted a threat to Hartnett.
Accordingly, we conclude that Friend was not prejudiced, within
the meaning of Olano, when the government made the Hartnetts
available for questioning and then questioned them during the sen-
tencing proceeding.
IV.
We now turn to the question whether the district court clearly erred
in finding that a preponderance of the evidence at sentencing estab-
lished that Friend threatened a co-defendant and therefore incorrectly
applied an enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1 and denied Friend a downward adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1. On this question, we conclude
that the district court’s finding in this regard, and its subsequent appli-
cation of sentencing adjustments, was not error at all, much less clear
error.
As discussed above, the district court was unequivocal in its find-
ing that "the language on its face in this instant message is threaten-
ing." In further confirmation of the threatening nature of the message,
the magistrate judge asked Friend’s counsel at the revocation hearing,
"[w]hat are you going to tell me, then, that ‘paybacks a bitch, i don’t
forget’ means [if it was not a threat]?" and "[l]et me tell you, I’ve
been around the block a few times, was born and raised in Baltimore.
In my day, ‘paybacks a bitch, i don’t forget,’ that simply means to
me, ‘I’m going to get even and I’m not going to forget.’" J.A. 132-33.
Counsel had no response to this line of questioning, and Friend him-
self interjected with "I’m sorry" several times. As well, the probation
10 UNITED STATES v. FRIEND
officer’s amendment of the presentence report to recommend
enhancement for obstruction of justice and denial of acceptance of
responsibility based on the content of the instant message was also
confirmatory of its clearly threatening character.
In view of the record of the revocation hearing as a whole, the rec-
ommendation of the presentence report, and the evidence adduced at
the sentencing hearing, all recognizing the threatening nature of the
language of the instant message on its face, we conclude that there
was ample evidence, and certainly a preponderance of evidence, that
appellant threatened his co-defendant. The court’s application of an
enhancement for obstruction of justice and denial of a reduction for
acceptance of responsibility were therefore correct.
The judgment of the district court is affirmed.
AFFIRMED