United States v. Charles Barefoot, Jr. , 754 F.3d 226 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4108
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLES ROBERT BAREFOOT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-cr-00166-BO-1)
Argued: March 20, 2014 Decided: June 9, 2014
Before WILKINSON, KING, and FLOYD, Circuit Judges.
Affirmed in part, reversed in part, and remanded with
instructions by published opinion. Judge King wrote the
opinion, in which Judge Wilkinson and Judge Floyd joined.
ARGUED: Joseph Edward Zeszotarski, Jr., GAMMON, HOWARD,
ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant. Seth
Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Kristine L. Fritz, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
KING, Circuit Judge:
Charles Robert Barefoot, Jr., appeals the February 6, 2013
judgment of conviction entered against him by the district
court, in conformance with the jury’s verdict, on all six counts
of a 2006 Superseding Indictment stemming from several instances
of criminal conduct that Barefoot was accused of undertaking
between October 2001 and June 2002. Barefoot also appeals the
180-month sentence of imprisonment imposed by the court on his
various convictions. As described in particular below, we
affirm Barefoot’s convictions on Counts One through Four of the
Superseding Indictment, but we reverse his convictions on Counts
Five and Six. Nevertheless, because the latter two convictions
did not materially affect his sentence — which was otherwise
properly calculated — we do not remand for Barefoot to be
resentenced.
I.
A.
Acting on information supplied by a confidential informant
to the Bureau of Alcohol, Tobacco and Firearms (the “ATF”), a
deputy of the Johnston County, North Carolina Sheriff’s
Department stopped Barefoot’s van in traffic during the morning
of July 19, 2002. The deputy searched the van with Barefoot’s
2
consent, finding two loaded semiautomatic handguns beneath the
driver’s seat.
Not quite two hours later, the ATF executed a search
warrant at Barefoot’s residence, where they discovered component
materials for explosives, Ku Klux Klan clothing and propaganda,
and twenty-five firearms (predominantly shotguns and rifles) in
proximity to more than four thousand rounds of ammunition. A
concurrent search of the house where Barefoot’s son, Daniel,
lived with several others, turned up two Kinestik binary
explosive cartridges wrapped in newspaper and stored in a
freezer. Daniel, eighteen years old and a Klansman in his
father’s group, told federal agents that Barefoot had given him
the explosives, which other residents referred to as “liquid
dynamite.”
On August 20, 2002, Barefoot was indicted in the Eastern
District of North Carolina on a single count of possessing a
firearm while subject to a domestic violence restraining order,
in violation of 18 U.S.C. § 922(g)(8). The predicate order was
entered in state court in Johnston County after the presiding
judge found that Barefoot, on March 15, 2002, had held a 9mm
pistol to the head of his wife, Sharon, and threatened to kill
her. Barefoot pleaded guilty to the federal indictment pursuant
to an agreement with the government by and through the United
States Attorney for the Eastern District of North Carolina
3
(referred to in the agreement as the “USA-EDNC”). Paragraph 4
thereof provided, in pertinent part:
The Government agrees:
* * * *
c. That the USA-EDNC will not further prosecute the
Defendant for conduct constituting the basis for the
Indictment; [and]
* * * *
f. That the USA-EDNC agrees not to use any
information provided by the Defendant pursuant to this
agreement to prosecute him for additional crimes,
except for crimes of violence[.]
Memorandum of Plea Agreement, United States v. Barefoot, No.
5:02-cr-00219-01 (E.D.N.C. Jan. 21, 2003), ECF No. 39 (the “Plea
Agreement” or the “Agreement”). 1
The “information provided by the Defendant” specified in
Paragraph 4.f referred to Barefoot’s obligation to “disclose
fully and truthfully in interviews with Government agents,
information concerning all conduct related to the Indictment and
any other crimes of which the Defendant has knowledge.” Plea
Agreement ¶ 2.h. As the result of their inquiry into Barefoot’s
activities, the ATF and FBI had come to suspect him of a number
of crimes. Eyewitnesses had reported Barefoot in possession of
1
The Plea Agreement is found at J.A. 57-64. (Citations
herein to “J.A. ___” refer to the contents of the Joint Appendix
filed by the parties to this appeal.)
4
a thirty-pound homemade bomb, and the agents were informed that
local authorities had investigated Barefoot for alleged threats
against the Sheriff’s Department and other law enforcement
agencies.
The district court accepted Barefoot’s guilty plea at a
hearing on January 21, 2003, after which the debriefing mandated
by the Plea Agreement took place. There, Barefoot admitted
having obtained the Kinestik cartridges in exchange for a
hunting dog. Barefoot also recounted a meeting with Glen
Gautier, Michael Brewer, and Mark Denning. The men had convened
at Barefoot’s home one evening during the late summer of 2001 to
discuss a “problem” with Lawrence Petit, a fellow Klansman in
coastal Carteret County, North Carolina, whom Brewer had branded
an informant. J.A. 70.
After considerable deliberation, the group resolved to have
Petit moved inland to Robeson County, or, failing that, to “get
rid of him.” J.A. 71. Barefoot permitted the others to use his
van, and he lent Gautier two firearms. The trio returned a few
hours later to inform Barefoot that Denning had shot and killed
Petit, with the corpse having been buried in a hayfield
belonging to Gautier’s brother. Gautier handed Petit’s wallet
to Barefoot as proof of death; Barefoot destroyed it with a
blowtorch. At the time of Barefoot’s interview, Gautier and
5
Denning had been arrested and charged with the murder, and
Brewer was about to be.
Barefoot unequivocally denied having made any bombs, and he
omitted all mention of a series of incidents in October 2001,
which began when Daniel and two Klan associates — Jonathan Avery
and Jonathan Maynard — stole more than thirty firearms from an
outbuilding. The three thieves took their haul to Barefoot’s
residence, where Barefoot, Sharon, and Gautier assisted in
wiping down the weapons to remove any fingerprints. The next
day, Barefoot and Gautier transported some of the firearms to an
area barn for safekeeping, and about ten or fifteen ultimately
made their way to Brewer for sale on consignment.
On June 18, 2003, the district court sentenced Barefoot to
27 months in prison for his § 922(g)(8) conviction, granting him
credit for time served since his July 2002 arrest. Upon his
release from federal imprisonment on October 18, 2004, Barefoot
was charged and detained by state authorities in connection with
the Petit murder.
B.
While in state custody, Barefoot was again indicted by the
grand jury in the Eastern District of North Carolina. The
operative Superseding Indictment, filed August 2, 2006, charged
Barefoot in Count One with conspiracy to receive, possess,
conceal, store, barter, sell, and dispose of stolen firearms,
6
see 18 U.S.C. §§ 371, 922(j); in Count Two with the substantive
§ 922(j) offense; in Count Three with solicitation of another to
assist in damaging and destroying by explosive the Johnston
County Courthouse and Sheriff’s Office, part of which was leased
to the United States Department of Veterans Affairs, see id.
§§ 373(a), 844(f)(1), 844(i); in Count Four with receiving an
explosive (the Kinestik cartridges) with the intent that it be
used to kill, injure, or intimidate other persons and to damage
and destroy buildings, see id. § 844(d); in Count Five with a
misdemeanor charge of improperly storing explosive materials,
see id. §§ 842(j), 844(b); and in Count Six with distributing
explosive materials to an individual (Daniel) under twenty-one
years of age, see id. § 842(d)(1).
At the outset of a motions hearing on February 14, 2007,
defense counsel apprised the district court that the judge in
the state murder proceedings had expressed concern over
Barefoot’s mental condition. Counsel had thus elected to retain
the services of a psychiatrist, who, after evaluating Barefoot,
opined that he was not competent to stand trial. Based on the
representations before it and on its own observations of
Barefoot’s demeanor, the court directed that he be delivered to
the custody of the Attorney General for examination. See 18
U.S.C. § 4241(b).
7
During a hearing on November 14, 2007, the district court
reviewed the report of the government’s mental health
professionals, who diagnosed Barefoot as suffering from
delusional disorder, mixed type (persecutory and grandiose
delusions), and from personality disorder, NOS (antisocial
traits). In accordance with the recommendation set forth in the
report, the court found Barefoot incompetent, and it recommitted
him to the Attorney General to determine his prospects for
improvement. See 18 U.S.C. § 4241(d). As a collateral
consequence of the court’s finding, the state court murder
charge was dismissed on December 6, 2007, subject to
reinstatement.
On November 26, 2008, the district court convened another
hearing to decide whether Barefoot should be involuntarily
medicated in an attempt to restore his competency. Barefoot
appealed from the court’s ruling in the affirmative, and, on
February 9, 2010, we vacated that ruling and remanded for
further consideration in light of our decision in United States
v. Bush, 585 F.3d 806 (4th Cir. 2009). Before the medication
question could be resolved on remand, however, Barefoot’s
condition was determined to have spontaneously partially
remitted. On March 15, 2011, without objection, the court found
that Barefoot had regained his competency to stand trial and
ruled that the case could proceed.
8
Prior to Barefoot’s competency having come into question,
he had moved the district court to dismiss the indictment as
violative of the Plea Agreement, and to suppress the statements
he made during his January 21, 2003 debriefing. The court
conducted a hearing on those motions on May 18, 2011, and, by
its order filed August 22, 2011, denied them. Barefoot’s
counsel moved for reconsideration on February 21, 2012, and
then, on March 8, 2012, Barefoot filed a pro se motion to
represent himself at trial. See Faretta v. California, 422 U.S.
806, 832 (1975) (recognizing criminal defendant’s Sixth
Amendment right to self-representation). The parties appeared
on March 29, 2012, to be heard on the latter motion, which the
court denied by its memorandum order of April 3, 2012. See
United States v. Barefoot, No. 5:05-cr-00166 (E.D.N.C. Apr. 3,
2012), ECF No. 257 (the “Faretta Order”). 2 By separate order
entered that same day, the reconsidered motion to suppress was
denied as moot after the government agreed not to use the
debriefing statements at trial.
On September 18, 2012, within a week of trial, Barefoot
moved the district court in limine to exclude any evidence
concerning his involvement in the Petit murder (the “Petit
evidence”). The government had previously given notice,
2
The Faretta Order is found at J.A. 468-72.
9
pursuant to Federal Rule of Evidence 404(b), of its intent to
introduce the Petit evidence, as well as evidence of Barefoot’s
bomb-making, of his threats against the Johnston County Sheriff
and others, and of his Klan activities. Trial commenced on
September 24, 2012, with the jury being empaneled and then
excused. The parties remained in the courtroom for a hearing on
the motion in limine, which the court denied. The trial resumed
and concluded the following day, with the jury finding Barefoot
guilty of all six counts.
The district court, on February 6, 2013, entered judgment
on the jury’s verdict, sentencing Barefoot to 60 months in
prison on Count One; to a consecutive term of 120 months on
Counts Two, Three, Four, and Six, running concurrently with each
other; and to 12 months on Count Five, to be served at the same
time as the cumulative 180-month term. By timely notice filed
February 11, 2013, Barefoot appeals.
II.
Barefoot maintains that his trial and sentencing was
riddled with legal infirmities. He assigns specific error to
the district court’s rulings: (1) denying his motion to
represent himself; (2) denying his motion in limine to exclude
the Petit evidence; (3) declaring the government’s evidence
sufficient to sustain his convictions on Counts Three and Four,
10
thus leading to the denial of his motions for judgments of
acquittal on those charges; (4) denying his motion to dismiss
Counts Four through Six as having been brought in violation of
the Plea Agreement; and (5) overruling his objections to the
manner in which his sentence was calculated pursuant to the
Sentencing Guidelines. 3
In order to accurately determine whether the accused may
competently exercise his constitutional right to defend himself,
“realistic account of the particular defendant’s mental
capacities” must be taken. Indiana v. Edwards, 554 U.S. 164,
177 (2008). As a practical matter, “the trial judge . . . will
often prove best able to make more fine-tuned mental capacity
decisions, tailored to the individualized circumstances of a
particular defendant.” Id. We therefore will not disturb,
absent a palpable abuse, the district court’s exercise of
discretion in that regard. 4 The same abuse-of-discretion
3
Though represented by counsel, Barefoot himself has
submitted for our review a pair of supplemental briefs appended
with various exhibits. On February 7, 2014, we entered an order
accepting the supplemental briefs for filing, and, in resolving
this appeal, we have fully considered them and the exhibits
attached thereto.
4
Once trial has begun under the stewardship of counsel, the
necessity that it proceed efficiently, without inconvenience,
delay, or confusion of the jury, affords the district court in
the exercise of its supervisory role an alternative source of
discretion to refuse a request from a defendant — even an
indisputably competent one — to proceed pro se. See United
(Continued)
11
standard governs our review of the court’s decision to admit
evidence of crimes and other “bad acts” pursuant to Federal Rule
of Evidence 404(b). See United States v. Day, 700 F.3d 713, 728
(4th Cir. 2012).
By way of contrast, we conduct a de novo review of the
district court’s evaluation of the sufficiency of the evidence
supporting Barefoot’s convictions. See United States v.
Abdulwahab, 715 F.3d 521, 528 (4th Cir. 2013). Though we
examine the trial record unencumbered by the ruling below, we
must nonetheless “view the evidence in the light most favorable
to the government and sustain the jury’s verdict if any rational
trier of fact could have found the essential elements of the
crime charged beyond a reasonable doubt.” Id. at 528-29(internal quotation marks omitted).
We also review de novo the district court’s application of
the Plea Agreement and the Guidelines, at least insofar as
questions of law predominate. See United States v. West, 2 F.3d
66, 69 (4th Cir. 1993) (specifying de novo review insofar as
enforcement of plea agreement “turns on contract principles
concerning the interpretation of unambiguous [provisions] or
States v. Singleton, 107 F.3d 1091, 1096-97 (4th Cir. 1997)
(citing, inter alia, Bassette v. Thompson, 915 F.2d 932, 941
(4th Cir. 1990)).
12
other matters of law”); United States v. Manigan, 592 F.3d 621,
626 (4th Cir. 2010) (instructing that court’s legal conclusions
attendant to imposition of Guidelines sentence are reviewed de
novo). To the extent, however, that the court’s rulings
depended on its resolution of one or more facts in dispute, our
review is for clear error. See West, 2 F.3d at 69; Manigan, 592
F.3d at 626.
III.
A.
The Supreme Court has disavowed “the use of a single mental
competency standard for deciding both (1) whether a defendant
who is represented by counsel can proceed to trial and (2)
whether a defendant who goes to trial must be permitted to
represent himself.” Indiana v. Edwards, 554 U.S. 164, 175
(2008). The Edwards Court observed, “In certain instances an
individual may well be able to . . . work with counsel at trial,
yet at the same time he may unable to carry out the basic tasks
needed to present his own defense.” Id. Barefoot, according to
the district court, fell within that category of defendants
contemplated by Edwards. The question before us is whether the
court’s determination was sufficiently supported and reasoned to
qualify as an appropriate exercise of its discretion.
13
The district court had ample opportunity at the hearing on
Barefoot’s motion to converse with him and to perceive his
capabilities and comportment. See United States v. Bernard, 708
F.3d 583, 591 (4th Cir. 2013) (explaining that “the district
court was in the best position to observe [the defendant’s]
demeanor and make judgments about his mental abilities”). The
court based its decision in substantial part on its “impressions
of and discussions” with Barefoot during the hearing. Faretta
Order 5. These colloquies were generally marked by Barefoot’s
insistence that he could cross-examine the government’s
witnesses far more ably than his appointed counsel. The court
strove to impress upon Barefoot that effective cross-examination
is merely an isolated aspect of a thorough, competent defense,
but it came to regard that message as neither received nor
comprehended. At hearing’s end, the court remained
“unconvinced” that Barefoot could “understand[] fully his role
and duties at trial were he to represent himself.” Id. at 4. 5
5
The district court doubtlessly was also aware that
Barefoot, upon being adjudicated competent to stand trial,
proceeded to file with the clerk about a dozen pro se motions,
letters, memoranda, and the like during the months leading up
to the hearing. Barefoot relentlessly papered the record
notwithstanding that he was represented by counsel, and despite
the court’s standing order that his pro se submissions would be
terminated as a matter of course with no response required from
the government. Barefoot’s conduct could hardly have afforded
the court much confidence that he would heed its instructions
and otherwise comply with the normal strictures of trial.
14
Moreover, the district court expressed concern that
Barefoot’s delusional disorder had only partially remitted, and
that he was not taking medication to ameliorate any lingering
impairment. The court adverted to the forensic evaluation
prepared by Ralph Newman, a staff psychiatrist at the Federal
Medical Center in Butner, North Carolina, where Barefoot had
been housed since January 2008. Dr. Newman’s evaluation was
prepared on March 9, 2011, then submitted to the court to
support the proposition that Barefoot had regained sufficient
competency to be tried. Dr. Newman concluded that “Barefoot is
able to understand the nature and consequences of the
proceedings against him and to assist properly in his defense.
We view him as competent to stand trial with representation by
his attorney.” J.A. 905 (emphasis added).
Barefoot maintains that the district court, in determining
whether he was able to adequately represent himself in April
2012, could not have reasonably relied on Dr. Newman’s opinion
given more than a year previously. But Barefoot offered no
evidence of his own in counterpoint. Further, Barefoot’s mental
health had been at issue before the court, at the time of its
ruling, for more than five years. Viewed in the context of the
process at large — deliberate as it was — the court correctly
declined to disregard Dr. Newman’s evaluation as stale per se.
15
Rather, the district court was bound to consider all of the
evidence together with any circumstances enhancing or detracting
from its probative value, including its vintage, and to accord
that evidence its commensurate weight. Dr. Newman’s 2011
evaluation, standing in isolation, might have been regarded as
inconclusive with respect to Barefoot’s competency to conduct
his own defense in 2012. Taken in conjunction with the court’s
opportunity to personally observe Barefoot, however, and
juxtaposed with the affirmative evidence of Barefoot’s
competency (of which there was little), Dr. Newman’s opinion
could rationally carry the day. It was therefore not an abuse
of the court’s discretion to rule, in accordance with Edwards,
that Barefoot was not sufficiently competent to represent
himself at trial.
B.
The government offered the Petit evidence in connection
with its presentation on Count Three, which charged Barefoot
with solicitation to commit a crime of violence, that is, to
damage or destroy by explosives the Johnston County Courthouse
and Sheriff’s Office. Gautier, who had participated in Petit’s
murder, recounted at trial that Barefoot harbored a grudge
against Sheriff Bizzell. Barefoot blamed Bizzell for the
failure of the Barefoots’ fledgling drinking establishment, The
Enchanted Barn, which one witness described as “a backwoods
16
bootleg bar or something.” J.A. 663. Gautier explained that
Barefoot “was trying to get a liquor license and Bizzell held
him off on it, stalled it . . . . Then when he did get . . . his
license, Bizzell raided the place and pretty much put a damper
on all of it.” Id. at 600. Subsequently, Bizzell denied
Barefoot’s Klan group a permit to march in a local parade, which
served to fuel Barefoot’s hatred. See id. at 661.
According to Gautier, Barefoot spoke “several times” of
“getting back” at Sheriff Bizzell by “blowing the courthouse
up.” J.A. 599-600. Gautier elaborated on one specific
conversation along those lines that took place during the autumn
of 2001:
Q. Did Mr. Barefoot approach you at some point with
an idea about blowing up the courthouse?
A. That was before [Barefoot’s acquisition of the
liquid dynamite]. He mentioned something about
what he planned on doing at the courthouse. He
mentioned floating down the river at night in a
light canoe or a one man boat or whatever and one
man could . . . get out, plant the stuff,
somebody could drop him off upriver, he could
float down, do what he had to do at the
courthouse, said he would drop off explosives.
And then somebody could pick him up south — the
river ran right [past] the courthouse is what I
understand.
Q. Now, was he asking you to do anything like this?
A. I think that was in his mind, but he didn’t come
out and just ask me to do it. He said that’s
what he had in mind and wanted to find somebody
to do it.
* * * *
17
Q. Did Mr. Barefoot, in fact, have any kind of raft
or —
A. He had a one-man boat.
Q. He did have a one-man boat. In your mind did you
understand him to be serious when he was talking
about this?
A. Yes. I’m pretty sure he was serious.
Id. at 601-02.
To be sure, “[e]vidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance
with the character.” Fed. R. Evid. 404(b)(1). Evidence of
crimes, wrongs, or bad acts, however, “may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. 404(b)(2). We have observed generally
that “Rule 404(b) is a rule of inclusion, admitting all evidence
of other crimes or acts except that which tends to prove only
criminal disposition.” See, e.g., United States v. Moore, 709
F.3d 287, 295 (4th Cir. 2013) (internal quotation marks
omitted).
In particular, there are four prerequisites to fulfill
before Rule 404(b) evidence can be admitted in a criminal
proceeding. The evidence must be: (1) relevant to an issue
other than the defendant’s general character; (2) probative
18
enough of an essential claim or element of the offense as to
prove necessary to the government’s case; (3) reliable; and (4)
not so provocative “that it tends to subordinate reason to
emotion in the factfinding process.” See United States v.
Williams, 740 F.3d 308, 314 (4th Cir. 2014) (incorporating with
respect to fourth factor Rule 403 requirement that probative
value of evidence not be substantially outweighed by prospect of
confusing factfinder or unfairly prejudicing defendant).
At closing argument, defense counsel sought to downplay his
client’s approach of Gautier as insubstantial and fanciful talk,
reminding the jury that witnesses had described Barefoot as “a
nut” and “a braggart.” J.A. 794. On appeal, Barefoot maintains
that “copious evidence” indicated he “talked about many things
that never occurred.” Br. of Appellant 30. Barefoot’s efforts
to portray his words as little more than idle musings illustrate
why the Petit evidence was admissible. The discussion among
Barefoot, Gautier, and the other Klansmen that directly led to
Petit’s murder demonstrated to the jury that these were not
merely men who talk, but men who act — however despicable those
acts may be.
The Petit evidence was thus relevant to show that Barefoot
was devising a serious scheme to blow up the courthouse, thereby
demonstrating his culpable intent in soliciting Gautier’s
assistance. Cf. United States v. Cvijanovich, 556 F.3d 857,
19
864 (8th Cir. 2009) (concluding, in prosecution for threatening
President, that evidence of prior similar conduct was relevant
to illustrate defendant’s “intent and the seriousness of the
threats”). Beyond mere relevance, however, the evidence was
necessary to the government’s case inasmuch as the sincerity of
Barefoot’s overture to Gautier was an essential element of the
solicitation offense. See infra Part III.C.1.a.
The jury, of course, was entitled to credit Gautier’s
testimony at face value and to regard his impressions as
credible insofar as the details of the proposal dovetailed with
Barefoot’s access to a boat and eventual procurement of
explosives. Nonetheless, the additional evidence of the duo’s
earlier involvement in plotting Petit’s violent demise — such
plot being successfully executed — powerfully corroborated
Gautier’s reckoning that he had accurately perceived Barefoot’s
meaning during their subsequent discussion concerning the
Johnston County Courthouse.
It is difficult to imagine evidence more inimical to the
jury’s perception of a defendant than that of participation in a
murder. See United States v. Lighty, 616 F.3d 321, 357 (4th
Cir. 2010) (acknowledging that “admission of evidence of an
uncharged murder is extremely prejudicial”). Rule 403, however,
does not require the exclusion of Rule 404(b) murder evidence in
all circumstances. See, e.g., United States v. Myers, 280 F.3d
20407, 413-14 (4th Cir. 2002) (ruling that evidence of defendant
drug dealer’s fatal shooting of customer was substantially
probative of firearm charges, and, although “damaging,” was not
unfairly prejudicial); United States v. Melton, 970 F.2d 1328,
1336 (4th Cir. 1992) (reasoning that trial court did not err by
striking Rule 403 balance in favor of admitting evidence of
defendant’s uncharged murder of informant in furtherance of
charged drug conspiracy). We have recognized, moreover, that
instructions to the jury limiting its consideration of Rule
404(b) evidence serve to blunt its prejudicial effect. See
United States v. Wilson, 624 F.3d 640, 655 (4th Cir. 2010).
When the subject of the murder investigation was initially
broached with the government’s first witness — an ATF agent —
the district court immediately interrupted the questioning to
inform the jury that the Petit evidence was “not offered to
prove that [Barefoot] is a bad person or that he’s a person of
bad character,” pointedly instructing the jurors that they were
“not to allow it to prejudice you about the crimes that are on
trial in this case.” J.A. 549. Later on, when Brewer began to
offer his eyewitness account of the murder, the court reiterated
its warnings. See id. at 685-86.
We can only conclude that the district court exercised the
utmost care to attenuate the harm to Barefoot in the jury’s eyes
that may have resulted when witnesses implicated him in Lawrence
21
Petit’s murder. We likewise consider that the Petit evidence
was crucial to the government’s proof of Count Three, insofar as
it established the dynamic between Barefoot and Gautier in an
analogous situation and thereby lent credence to the latter’s
testimony. Under those circumstances, we cannot say that the
district court abused its discretion in admitting the Petit
evidence after determining that its probative value was not
substantially outweighed by the risk of unfair prejudice.
C.
1.
The foregoing discussion of the Rule 404(b) evidence
portends, perhaps, our disposition of Barefoot’s challenge to
the sufficiency of the evidence on which the jury convicted him
of Count Three. The offense charged therein prescribes fines
and imprisonment for anyone who “solicits, commands, induces, or
otherwise endeavors to persuade” someone else, intending that
the other “engage in conduct constituting a felony that has as
an element the use, attempted use, or threatened use of physical
force against property or against the person of another in
violation of the laws of the United States and under
circumstances strongly corroborative of that intent.” 18 U.S.C.
§ 373(a).
From the statutory language, we derive the essential
elements of § 373(a) as: (1) a solicitation, command, or
22
similar entreaty; (2) to commit a federal felony; (3) involving
the actual or inchoate use of force against person or property;
(4) made under such conditions or within such context that the
overture may reasonably be regarded as sincere. With respect to
the sincerity element, the court of appeals in United States v.
Buckalew explained that § 373(a) “‘is designed to cover any
situation where a person seriously seeks to persuade another
person to engage in criminal conduct.’” 859 F.2d 1052, 1054
(1st Cir. 1988) (quoting S. Rep. No. 97-307, 97th Cong., 1st
Sess. 183-84 (1982)).
Count Three of the indictment alleged two federal felonies
as the subjects of the solicitation, each set forth in § 844 of
the criminal code. The first prohibits the malicious damage or
destruction by fire or explosive of, inter alia, “any building,
vehicle, or other personal or real property in whole or in part
owned or possessed by, or leased to, the United States.” 18
U.S.C. § 844(f)(1). The second proscribes the same conduct
directed at any property “used in interstate or foreign commerce
or in any activity affecting interstate or foreign commerce.”
Id. § 844(i). Both offenses unquestionably involve the use of
force against property. Likewise, there is no dispute that the
government leased and possessed a portion of the Johnston County
Courthouse, and that at least part of the premises were used in
some activity affecting commerce.
23
a.
Barefoot confronts head-on the government’s proof of the
threshold solicitation requirement. Reprising the trial account
of the plan for blowing up the courthouse, Barefoot emphasizes
Gautier’s acknowledgment that he [Barefoot] “didn’t come out and
just ask [Gautier] to do it.” J.A. 601. We are unable to agree
that § 373(a) should be construed so narrowly as to exclude from
its coverage all but the most overt solicitations. Moreover,
Barefoot’s distillation of Gautier’s testimony to a single
excerpt disserves the broader meaning attributable to its
entirety.
Certainly, a straightforward request or directive fulfills
the first element of § 373(a) by constituting an unambiguous
solicitation or a command. The element is also satisfied,
however, by inducement and — least stringently — by an
“endeavor to persuade.” In everyday contexts, an endeavor to
persuade may entail all sorts of communication strategies,
verbal and non-verbal. Without question, we humans develop an
impressive array of techniques for influencing others. We may
favor a friend with a wink and a nod, discreetly thrust a
banknote into the willing palm of a maître d’hôtel, or even say
nothing where something is expected in the hope that our silence
will foment distress and, ultimately, acquiescence.
24
Hence, Barefoot’s apparent reluctance to “come out and just
ask” Gautier to help him blow up the courthouse is not
dispositive of the issue. Gautier testified additionally that
he was “pretty sure” that the plan was serious, J.A. 602, and
that Barefoot desired “somebody” to assist him with it, id. at
601. Although Gautier could hardly convey Barefoot’s
inflections, intonations, and nonverbal cues, there is a
compelling inference to be taken even from the stark transcript
that Barefoot would not have described his plan in such
gratuitous detail had he not hoped that Gautier might be that
“somebody.” Giving the government the benefit of this inference
and of Gautier’s overall impression of the conversation, there
was sufficient evidence for the jury to find that Barefoot
endeavored to persuade Gautier to help him blow up the Johnston
County Courthouse.
b.
Barefoot’s attack on the sufficiency of the evidence in
support of the federal felony element is considerably more
subtle. Barefoot maintains that he should not have been
convicted of violating § 373(a) because the government’s
evidence, even if fully credited, revealed that he solicited
Gautier’s felonious involvement not for the use of force against
the courthouse, but merely to provide transportation before and
after Barefoot himself had used such force.
25
Barefoot’s deconstruction of the courthouse scheme into its
component parts are unavailing, inasmuch as his efforts in that
regard misconstrue the law and inadequately account for our
precedent. Had Barefoot’s plan come to fruition as designed,
Gautier would have aided and abetted the damage or destruction
by explosive of the Johnston County Courthouse. Aiding and
abetting is not itself a federal offense, but merely “describes
the way in which a defendant’s conduct resulted in the violation
of a particular law.” United States v. Ashley, 606 F.3d 135,
143 (4th Cir. 2010); see 18 U.S.C. § 2(a) (providing that
“[w]hoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission,
is punishable as a principal”). Thus, although Gautier may
have been invited to conduct himself solely in the supporting
role of driver, the particular laws he would have violated as an
aider and abettor — namely, the offenses for which he was
solicited — were necessarily the charged explosives offenses,
and both of those include the requisite element of force.
Barefoot’s guilt of the solicitation offense underlying Count
Three was therefore sufficiently established as to each
essential element. 6
6
Barefoot does not challenge the government’s evidence as
to the sincerity element, except insofar as its sufficiency may
be tied to the admission of the Petit evidence pursuant to Rule
(Continued)
26
2.
Barefoot also contests the sufficiency of the evidence
supporting the jury’s verdict on Count Four, finding him guilty
of receiving an explosive that he intended to use for prohibited
purposes. The statute of conviction provides, in pertinent
part, that “[w]hoever transports or receives . . . in interstate
or foreign commerce any explosive with the knowledge or intent
that it will be used to kill, injure, or intimidate any
individual or unlawfully to damage or destroy any building,
vehicle, or other real or personal property” is to be fined and
imprisoned. 18 U.S.C. § 844(d). Barefoot correctly asserts
that no witness at trial testified as to what he intended to do
with the Kinestik cartridges he obtained in trade and then
stored at his son’s residence, where they were seized before
being put to use. 7
404(b). It suffices to say that we would have deemed the
evidentiary issue moot had the proof of Barefoot’s guilt on
Count Three been insufficient notwithstanding the jury being
allowed to consider his prior bad acts.
7
The record lacks perfect clarity, making it a chore to
discern a precise timeline of the case. During his debriefing,
Barefoot described the events surrounding the Petit murder as
having occurred in August 2001. See J.A. 70. At trial, the
participants confirmed that the murder, prefaced by the meeting
at Barefoot’s residence, actually took place in early September
2001. See id. at 581, 685. Gautier, who was working for
Barefoot’s siding business and eventually came to live on his
property for about a year, witnessed the trade for the Kinestik
(Continued)
27
The government, of course, was not required to prove its
case with direct accounts of Barefoot’s state of mind. Indeed,
as we have indicated a number of times, “a conviction may rely
entirely on circumstantial evidence.” See, e.g., United States
v. Hassan, 742 F.3d 104, 139 (4th Cir. 2014) (internal quotation
marks omitted). Here, Barefoot’s acquisition of the cartridges
only a short time after he solicited Gautier to bomb the
courthouse permitted the inference that the explosives were
intended to carry out that plan.
Moreover, the trial transcript discloses that Barefoot had
assembled bombs, detonated them, and had often threatened to
kill Sheriff Bizzell. See J.A. 629-30 (Maynard’s testimony that
he had seen Barefoot make pipe bombs); id. at 597, 630(Gautier’s and Maynard’s accounts of Barefoot detonating small
bombs in his backyard); id. at 599-600, 664 (Gautier’s and
Avery’s confirmation that Barefoot had expressed on many
occasions his desire to murder Bizzell by blowing up the
courthouse). Giving the government the benefit of all
reasonable inferences gleaned from the circumstantial evidence,
cartridges no later than Christmas Day 2001, when he was forced
to move out. See id. at 580-81, 600-01. Barefoot procured the
cartridges, however, only after soliciting Gautier to help him
bomb the courthouse, see id. at 601, which, according to the
government’s unchallenged representations, happened in or about
November 2001, see id. at 34, 508-09.
28
we are assured that a rational trier of fact could have found
Barefoot possessed the requisite culpable intent to sustain his
conviction of Count Four.
D.
We now address the effect on this appeal of the Plea
Agreement entered in the prior proceeding. In construing the
meaning of the Agreement, we are guided by standard principles
of contract law “to ensure that each party receives the benefit
of the bargain.” United States v. Jordan, 509 F.3d 191, 195
(4th Cir. 2007). Our aim is to enforce the Agreement’s “plain
language in its ordinary sense.” Id. (internal quotation marks
omitted).
1.
There is no dispute that, in exchange for Barefoot’s
statements at debriefing, the government honored its pledge to
“not further prosecute [him] for conduct constituting the basis
for the [2002] Indictment.” Plea Agreement ¶ 4.c. Barefoot
pleaded guilty to the single firearms offense charged, and he
has not been federally prosecuted for any additional criminal
conduct in connection with the firearms and ammunition seized
during his traffic stop or by warrant thereafter.
The government’s forbearance reflects the Agreement’s grant
of immunity to Barefoot for his unlawful acts intrinsic to the
firearms indictment. Though the grant is unconditional, its
29
scope is confined to the underlying transaction. See Kastigar
v. United States, 406 U.S. 441, 453 (1972) (explaining that
transactional immunity “accords full immunity from prosecution,”
but only “for the offense” to which the defendant’s statements
relate). In illustration of that principle, we described
transactional immunity as “protect[ing] an individual against
prosecution for anything concerning the substance of compelled
testimony.” United States v. Harris, 973 F.2d 333, 336 (4th
Cir. 1992) (emphasis added). The comprehensive bar from
prosecution thereby afforded renders transactional immunity, in
that respect, a “broader concept” than that of “[u]se immunity,”
which “protects against the government’s use of compulsory
testimony as a source of evidence, leaving the government free
to use any other evidence to prosecute.” Id.When, as in Harris, the government is precluded from using
the extracted statements not merely as trial ammunition but also
as a source to develop additional evidence in aid of its
investigation or prosecution of the defendant for any criminal
activity, the resultant “immunity from use and derivative use”
provides protection “coextensive with the scope of the privilege
against self-incrimination, and therefore is sufficient to
compel testimony over a claim of the privilege.” Kastigar, 406
U.S. at 453. In Kastigar, the Supreme Court rebuffed a
30
challenge to the constitutionality of the General Immunity Act
of 1970, 18 U.S.C. §§ 6001-6005 (the “Act”).
The Kastigar Court addressed a particular aspect of the Act
specifying that when a witness in a federal proceeding has been
ordered to testify in derogation of the Fifth Amendment
privilege against self-incrimination, “no testimony or other
information compelled under the order (or any information
directly or indirectly derived from such testimony or other
information) may be used against the witness in any criminal
case.” 18 U.S.C. § 6002. By so providing, the statute “leaves
the witness and the prosecutorial authorities in substantially
the same position as if the witness had claimed the Fifth
Amendment privilege.” Kastigar, 406 U.S. at 462; see In re
Kilgo, 484 F.2d 1215, 1220 (4th Cir. 1973).
Although the statute controls only those proceedings in
which a witness is formally compelled to speak by the presiding
officer on the application of the government, federal
prosecutors possess broad discretion to informally confer the
same or similar protections to procure helpful testimony or
information. See United States v. Richardson, 195 F.3d 192, 196
(4th Cir. 1999) (recounting the “long-standing and consistent
policy of authorizing and encouraging grants of leniency and
immunity . . . in exchange for truthful testimony”). The
flexibility that inheres in this much more common method of
31
securing cooperation, in which the witness is offered “vest
pocket” or “hip pocket” immunity (as it is sometimes known), is
perhaps more accurately portrayed as “really [a] discretionary
agreement[]” on the part of the government, United States v.
Quatermain, Drax, 613 F.2d 38, 45 (3d Cir. 1980) (Aldisert, J.,
dissenting). These sort of informal agreements with federal
prosecutors occasionally lead, as here, to disputes concerning
the precise contours of the aegis so conferred.
2.
a.
Though the Plea Agreement indisputably granted Barefoot
transactional immunity for the balance of his conduct intrinsic
to the prior indictment and prosecution, the parties disagree on
the protection afforded him regarding any unrelated, extrinsic
offenses of which the government was alerted at the 2003
debriefing. Paragraph 4.f of the Agreement discloses that the
government covenanted “not to use any information provided” by
Barefoot “to prosecute him for additional crimes, except for
crimes of violence.” According to the government, the quoted
language conferred upon Barefoot a species of limited immunity
prohibiting only direct evidentiary use of his debriefing
statements in prosecution of his nonviolent extrinsic offenses,
and no immunity at all for any violent ones.
32
The government thus posits that its prosecution of Barefoot
on the explosives charges constituting Counts Four through Six
of the Superseding Indictment was not barred under the Plea
Agreement, maintaining that the only statements it used against
Barefoot at trial were those wherein he acknowledged his
involvement in arranging the Petit murder. The Petit evidence,
as discussed above, was admitted pursuant to Federal Rule of
Evidence 404(b) exclusively in connection with the solicitation
charge in Count Three. 8
Barefoot chafes at the government’s insistence on adhering
to the letter of the Plea Agreement, contending that, near the
outset of negotiations on December 2, 2002, the lead prosecutor
represented that Barefoot would “get a walk” for any criminal
activity he admitted during the debriefing. J.A. 93. During a
subsequent phone conversation between counsel on December 17,
2002, Barefoot’s lawyer was told that his client would get a
“free pass this time on anything he talks about — one
opportunity to tell all; will not prosecute him on what he talks
about.” Id. Finally, at the debriefing on January 21, 2003,
8
Barefoot’s motion to dismiss below, based on the
government’s asserted violation of the Plea Agreement and denied
by the district court’s August 22, 2011 order, targeted the
entire Superseding Indictment. On appeal, Barefoot assigns
error to the court’s ruling only as it pertains to Counts Four
through Six. See Br. of Appellant 41 n.7.
33
the interviewing agents urged Barefoot “to tell them everything
he knew” about any explosives or bombs, because, in light of the
Plea Agreement, “telling them where the bomb is cannot hurt him
anymore.” Id. at 94.
Another aspect of the written Agreement, however, appears
to foreclose Barefoot’s broad characterization of the immunity
conferred thereunder. Immediately following the recitals, the
Plea Agreement’s initial numbered paragraph sets forth what is
commonly referred to as a merger or integration clause. See
Restatement (Second) of Contracts § 209 (1981) (hereinafter
“Restatement”) (defining an “integrated agreement” as “a writing
or writings constituting a final expression of one or more terms
of an agreement”). Just as we would honor an integration clause
to a contract, we honor one in a plea agreement. See, e.g.,
United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986)
(“[A] fully integrated [plea] agreement . . . may not be
supplemented with unmentioned terms.”); see also United States
v. Hunt, 205 F.3d 931, 935 (6th Cir. 2000) (“An integration
clause normally prevents a criminal defendant, who has entered
into a plea agreement, from asserting that the government made
oral promises to him not contained in the plea agreement
itself.”). The integration clause in this instance specifies
that “[t]his Memorandum constitutes the full and complete record
of the Plea Agreement. There are no other agreements between
34
the parties in addition to or different from the terms herein.”
Plea Agreement ¶ 1. Insofar as we are bound to give it force
and effect, the clause precludes an interpretation of the
Agreement that takes into account any preliminary oral
representations inconsistent with its written form, because
“[a]n integrated agreement supersedes contrary prior
statements.” Restatement § 209 cmt. a. 9
Barefoot nonetheless reminds us that, although we apply
standard precepts of construction to disputed plea agreements,
those rules “may require . . . tempering in particular cases” to
accommodate the reality that “the defendant’s underlying
‘contract’ right is constitutionally based and therefore
reflects concerns that differ fundamentally from and run wider
than those of commercial contract law.” United States v.
Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (citing Mabry v.
Johnson, 467 U.S. 504, 509 (1984)). 10 In Harvey, the eponymous
9
Although the exhortation by the agents at the debriefing
that Barefoot “tell them everything he knew” might have
reflected their understanding of the immunity arrangement, that
conversation took place only after Barefoot had entered into the
Plea Agreement and could not have influenced the decision he had
already made. The agents’ entreaties are therefore immaterial
to this appeal.
10
We elaborated in Harvey that “with respect to federal
prosecutions, the courts’ concerns run even wider than
protection of the defendant’s individual constitutional rights —
to concerns for the ‘honor of the government, public confidence
in the fair administration of justice, and the effective
(Continued)
35
defendant pleaded guilty to one of nine indicted counts stemming
from a hashish conspiracy. As consideration for his guilty
plea, Harvey was promised that “the Government will move to
dismiss the remaining counts,” and “[t]he Eastern District of
Virginia further agrees not to prosecute . . . HARVEY for any
other possible violations . . . arising from the offenses set
out in the indictment or the investigation giving rise to those
charges.” Id. at 296 n.1. An integration clause provided that
the agreement was “the full and complete understanding of the
parties.” Id.A few days after being released from imprisonment on his
conviction, Harvey was arrested and indicted in the District of
South Carolina on charges apparently related to the original
investigation. The district court declined to enjoin those
proceedings, ruling that the plea agreement immunized the
defendant from prosecution only in the Eastern District of
Virginia. Harvey was ultimately convicted on two counts of the
second indictment.
We vacated the convictions, explaining that “both
constitutional and supervisory concerns require holding the
administration of justice in a federal scheme of government.’”
791 F.2d at 300 (quoting United States v. Carter, 454 F.2d 426,
428 (4th Cir. 1972)).
36
Government to a greater degree of responsibility than the
defendant . . . for imprecisions or ambiguities in plea
agreements.” Harvey, 791 F.2d at 300. The agreement at issue
in Harvey was ambiguous, we determined, because it
interchangeably referred to the “Government” and the “Eastern
District of Virginia” as the party with whom the defendant
contracted. Applying the foregoing principles, we construed the
ambiguity in favor of Harvey, concluding that the government as
a whole (and not just the government’s agents in the Eastern
District of Virginia) was bound by the agreement’s grant of
transactional immunity. See id. at 303; see also Restatement
§ 206 (“In choosing among the reasonable meanings of a promise
or agreement or term thereof, that meaning is generally
preferred which operates against the party who supplies the
words or from whom a writing otherwise proceeds.”).
Harvey, unlike Barefoot here, did not seek to test the
enforceability of a valid integration clause by attempting to
introduce parol statements as bearing on the proper
interpretation of a plea agreement. Our decision in that case
is therefore largely unhelpful in analyzing the case at bar. In
Harvey, the outcome instead turned on our more focused
determination that the written terms of the integrated agreement
were ambiguous. By contrast, the Plea Agreement now before us,
notwithstanding its latent ambiguity regarding the latitude
37
retained by the government to use Barefoot’s statements, see
infra Part III.D.2.b.i, unambiguously excludes a broad grant of
transactional immunity. Indeed, the plain language of the
Agreement specifically contemplates the possibility of
additional criminal proceedings against Barefoot — for crimes of
violence — in which the government could use his debriefing
statements against him.
Our decision in United States v. Garcia, 956 F.2d 41 (4th
Cir. 1992), is closer to the point. The defendant in that case
was offered a ten-year sentence to plead guilty to a cocaine
conspiracy and testify against his compatriots. Although the
defendant turned down that offer, he eventually bargained with
the government to serve fifteen years and stand silent. The
written plea agreement neglected to mention that no obligation
had been imposed on the defendant to assist with additional
prosecutions, but an accompanying cover letter to defense
counsel confirmed that “the government will . . . not require as
part of the plea agreement that the defendant cooperate with law
enforcement.” 956 F.2d at 42. A few months later, the
defendant was subpoenaed to testify before the grand jury. He
refused and was found in contempt, for which he served eighteen
months in prison with no credit against his prior fifteen-year
term.
38
The defendant filed a motion pursuant to 28 U.S.C. § 2255to vacate or correct his underlying sentence, alleging that the
plea agreement had been breached. The district court, confining
its analysis to the four corners of the agreement, denied the
motion. We granted relief, however, directing that the
defendant be resentenced and credited with an additional
eighteen months of time served, thereby nullifying the effect of
the contempt citation. In so deciding, we declined to strictly
enforce the parol evidence rule, perceiving “no avenue to
relieve the government of a material promise contained in the
cover letter.” Garcia, 956 F.2d at 44. Instead, we determined
that equitable considerations justified a less rigid approach
than might otherwise be demanded, explaining that “[t]he
government does not dispute that it made the promise — it just
wants to take advantage of a rule of contract law to profit from
an omission in a contract it prepared. We cannot countenance
such unfair dealing.” Id.Our opinion in Garcia does not disclose whether the plea
agreement there contained an integration clause, but we shall
assume that it did. The key fact in Garcia is not the presence
or absence of an integration clause in the plea agreement, but
the rather unusual happenstance that the government’s intent
with respect to the disputed provision could be irrefutably
derived from the surrounding circumstances. The government was
39
compelled to acquiesce in the defendant’s account of the
parties’ accord inasmuch as it could hardly argue that it had
somehow rejected or reconsidered the promise proven to have been
made contemporaneously with the plea agreement.
The facts before us, by contrast, illustrate the more
common situation that integration clauses are specifically
designed to avoid. The most that can be gleaned from the record
in the matter at bar is that the government twice expressed a
certain amenability to granting Barefoot transactional immunity
in exchange for complete and truthful revelations, but on
occasions a full seven and five weeks, respectively, before the
Plea Agreement was signed. There is simply no evidence of the
government’s position on immunity at any time proximate to the
execution of the Plea Agreement except, of course, the written
terms of the integrated Agreement itself. Harvey counsels that
“[p]rivate law interpretive principles may be wholly dispositive
in an appropriate case,” 791 F.2d at 300, and, lacking
sufficient analogy to the facts of Garcia, the dispute
underlying the Plea Agreement is appropriately resolved without
resort to equity.
b.
i.
Though not afforded an expansive transactional immunity,
Barefoot was yet entitled under the Plea Agreement to have the
40
government forbear from using his debriefing statements with
respect to some or all of the explosives offenses charged in
Counts Four through Six. The government does not dispute that
general proposition, but urges that we construe the Plea
Agreement to have conferred nothing more than narrow “direct
use” immunity, maintaining that it was barred only from
introducing Barefoot’s specific statements as substantive
evidence of his guilt. During his debriefing, Barefoot related
that “he received the liquid dynamite that was found at
[Daniel’s residence] from a friend of Nicholas Barefoot.” J.A.
66. Barefoot volunteered in addition that he had bartered one
of his hunting dogs for the explosives. See id. Neither of
those statements were introduced for attribution at trial.
Barefoot nonetheless insists that he received a broad grant
of use immunity under the Plea Agreement, in connection with
which the government ceded all prerogative to make derivative or
“indirect” use of his statements. Barefoot’s understanding of
the Agreement is that it is consistent with the interpretation
of 18 U.S.C. § 6002 in Kastigar, in which the Supreme Court
explained that “use and derivative use” immunity forecloses not
only the government’s direct evidentiary use of the immunized
statements, but also its use of any “evidence derived
therefrom.” 406 U.S. at 443. Scarcely a year later, we
confirmed through Judge Butzner, writing on behalf of a
41
unanimous panel, that “[u]se immunity prohibits the witness’s
compelled testimony and its fruits from being used in any manner
in connection with criminal prosecution of the witness.” In re
Kilgo, 484 F.2d 1215, 1220 (4th Cir. 1973) (emphasis added)
(citing Murphy v. Waterfront Comm’n of New York, 378 U.S. 52, 79
(1964)). Needless to say, the government’s position on the
proper interpretation of “use,” as set forth in the Plea
Agreement, is vastly different from the word’s accepted meaning
in the use immunity context, as explained by the Court in
Kastigar and by Judge Butzner in Kilgo.
If Barefoot’s more prevalent understanding is indeed the
correct one, then the government would have been precluded from
using — directly or indirectly — the statements or information
derived therefrom to develop additional criminal charges against
him, precisely the same as if it had proceeded formally under
the immunity statute. See Harris, 973 F.2d at 336 (recognizing
that use immunity conferred by agreement bound government in
same manner as immunity statute, in that it could not “use the
immunized testimony or any evidence derived from it either
directly or indirectly”). Insofar as the derivative use bar
applies here, it calls into question Gautier’s and Maynard’s
testimony regarding the trade and Barefoot’s storage of the
explosives in his freezer. In addition, Daniel testified that
Barefoot had later removed the explosives from the freezer and
42
given them to him for safekeeping. The government referred at
length to the trade and the handoff to Daniel during its opening
statement, see J.A. 521-23, candidly acknowledging to the jury
that the entire “investigation initially focused on this liquid
explosive,” id. at 524. There is scant reason to believe that
Barefoot would have been prosecuted on Counts Four through Six
had he not mentioned the liquid explosives during his
debriefing.
Not long ago, we had occasion to explain that, when the
defendant is not under judicial compulsion to provide
information but does so in accordance with a voluntary agreement
entered into with the United States Attorney, the scope of any
immunity thereby afforded “is a matter of contract
interpretation that depends on the language in the agreement
itself.” See United States v. Smith, 452 F.3d 323, 337 (4th
Cir. 2006). We determined that the plea agreement in Smith
“unambiguously conferred use immunity only” because it
stipulated that the government “will not use against
[Defendant], in any criminal proceeding, any of the information
or materials . . . provided.” Id.Although the government does not rely on Smith as affecting
this case, the pertinent language in the Plea Agreement begins
in somewhat the same fashion. To reiterate, the Agreement
attests that the government would not “use any information
43
provided by [Barefoot] . . . to prosecute him for additional
crimes,” a straightforward prohibition that it then qualifies
with the words “except for crimes of violence.” Plea Agreement
¶ 4.f. Notably, the term “crimes of violence” is nowhere
defined in the Plea Agreement.
A fundamental canon of contract construction is that “[a]
writing is interpreted as a whole.” Restatement § 202. Most
commonly, the rule expressed in section 202 serves to harmonize
potentially conflicting provisions that may appear in divergent,
seemingly unrelated parts of the contract — the “writing” — to
ensure that that each term is given proper meaning and
significance. Just as importantly, however, the canon counsels
against parsing lesser contract components, which may also
constitute “writings.” The commentary to section 202 instructs
that “[a] word changes meaning when it becomes part of a
sentence, the sentence when it becomes part of a paragraph. A
longer writing similarly affects the paragraph, other related
writings affect the particular writing, and the circumstances
affect the whole.” Id. § 202 cmt. d. Thus, the ambiguity
attendant to the undefined term “crimes of violence” renders
uncertain the scope of the immunity conferred by Paragraph 4.f
of the Plea Agreement, such that we cannot be assured that the
provision was intended to convey the same meaning as its
unambiguous counterpart in Smith.
44
We again keep in mind that all ambiguities in the Plea
Agreement are to be construed against the government as its
drafter. That being the case, we are content to adopt the
controlling rule in other circuits, expressed as follows: “The
common understanding . . . in the criminal justice world” of use
immunity (which the government acknowledges Barefoot to
possess), is that such immunity means the same in a plea
agreement as it does in 18 U.S.C. § 6002, which is to say “that
it encompasses derivative use immunity.” United States v.
Plummer, 941 F.2d 799, 804 (9th Cir. 1991); see United States v.
Harper, 643 F.3d 135, 140 n.1 (5th Cir. 2011) (observing that
“[t]his Court has tended to interpret ‘use immunity’ as a term
of art that covers both direct and derivative use of immunized
statements”); United States v. Kilroy, 27 F.3d 679, 685 (D.C.
Cir. 1994) (expressing agreement with Plummer that “nothing else
appearing, an informal use immunity afforded by agreement, e.g.,
a plea bargain, includes derivative use immunity equivalent to
that afforded by [18 U.S.C. § 6002]”). 11
11
The unanimity of authority establishes that the terms
“use immunity” (as it is often called in writings) and its
“pocket” cousins (the more colorful, typically oral shorthand)
have acquired a meaning conterminous with § 6002, one readily
recognized among prosecutors, the criminal defense bar, and the
federal judiciary. See Harris, 973 F.2d at 336 (identifying the
source of use immunity in that case as “[t]he agreement between
Harris and the government . . . [that] operated as use and
derivative use immunity for compelled testimony”). It is
(Continued)
45
Moreover, the parties’ inclusion of the crimes-of-violence
exception within the immunity provision persuasively indicates
that they did not intend that the government forbear from solely
direct use. A promise to merely refrain from introducing the
defendant’s statements at trial is scarcely more than a crumb of
the challah that the government may seek to bestow. Presenting
nowhere near the impediment to its interests as the more
constrictive immunity from derivative use, the government’s
portrayal of what use immunity should mean in Barefoot’s case
hardly seems a burden worth taking the trouble to alleviate
through negotiations. Rather than expose its trial tactics to
potential constitutional challenge, see Harris, 973 F.2d at 336(detailing government’s appeal of indictment’s partial dismissal
on ground that it violated provisions of use immunity agreement,
infringing on defendant’s Fifth Amendment privilege against
therefore imperative that, if these terms are intended in a
particular instance to convey something other than § 6002 use
immunity, the government bear the burden of making that
different meaning explicit to the defendant. Were we to accept
as accurate the government’s characterization of the ambiguous
immunity provisions of the Plea Agreement, we would risk
radically altering the settled legal landscape that has
demonstrably been in place for more than thirty years, and
likely even longer. See United States v. Barber, 668 F.2d 778,
781-82 (4th Cir. 1982) (construing government’s implicit oral
representations as grant of “use immunity,” which supported
district court’s finding that defendant was assured that his
responses to interview questions “would not be used against him
directly or through leads gained therefrom”).
46
self-incrimination), it is far more likely that the government
would strenuously bargain to maintain the option to prosecute in
the event that the debriefing session led it to discover
theretofore unknown violent misconduct on the part of the
defendant. We therefore conclude that Barefoot, pursuant to his
Agreement with the United States Attorney, was entitled to use
immunity as it is commonly understood, that is, immunity from
either direct or indirect (derivative) use, except to the extent
that his criminal acts constituted crimes of violence.
ii.
To decide whether any or all of Counts Four through Six
encompassed crimes of violence, we start with the proposition
that “where language has a generally prevailing meaning, it is
interpreted in accordance with that meaning.” Restatement
§ 202(3)(a). Further, “technical terms and words of art are
given their technical meaning when used in a transaction within
their technical field.” Id. § 202(b)(b).
When the Plea Agreement was executed in January 2003,
federal criminal litigants would have been most readily familiar
with the legal term “crime of violence” as set forth in the
November 2002 edition of the Sentencing Guidelines. As defined
therein and pertinent here, a crime of violence is “any offense
. . . punishable by imprisonment for a term exceeding one year,”
having “as an element the use, attempted use, or threatened use
47
of physical force against the person of another, or . . . [that]
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” USSG § 4B1.2(a).
Barefoot’s conviction in Count Four of receiving an
explosive with the intent that it be used to kill, injure, or
intimidate, or to damage or destroy buildings, manifestly would
have been a crime of violence according to the parties’ mutual
understanding. Hence, the government was unquestionably
entitled to the benefit of its bargain and in no way precluded
from using the information it procured from Barefoot during his
debriefing to investigate, charge, and convict him of that
offense.
Our conclusion is different with respect to Barefoot’s
Count Five conviction of improperly storing explosive materials,
and also his conviction under Count Six of distributing
explosive materials to a person not yet twenty-one. The storage
offense charged in Count Five, being a misdemeanor, could not
have qualified as a crime of violence. Count Six presents a
closer question. Though the conduct therein charged is a
felony, it is by no means certain that the routine distribution
of explosive materials, typically unaccompanied by physical
force, nevertheless entails their “use” such as to bring the
offense within the Guidelines definition. We are also unwilling
48
to assume that every such distribution carries with it a serious
potential risk of injury to the recipient. For example, the
Kinestik cartridges at issue here, being a binary explosive,
were relatively harmless until mixed.
We do not need to attempt any definitive resolution of the
question of whether the offense charged in Count 6 is or is not
a crime of violence. It suffices to note that the issue is on
the edge. The lack of clarity on the point inures to Barefoot’s
benefit, and we are constrained to determine that the government
violated the Plea Agreement when it prosecuted him on Count Five
and on Count Six. Barefoot seeks reversal of those convictions
as his preferred remedy for the government’s broken promise, see
Br. of Appellant at 50, and we perceive no reason to withhold
the requested relief. We therefore move on to ascertain the
effect on Barefoot’s sentence, if any, prompted by our erasure
of the two improper convictions. To best accomplish that, we
first analyze whether the sentence was correctly imposed with
those convictions included.
E.
1.
Barefoot challenges in two respects the district court’s
calculation of his advisory range of imprisonment under the
Guidelines. At the outset, Barefoot contends that the court
erred in discerning any connection, for grouping purposes,
49
between his convictions of the firearms offenses in Counts One
and Two and his convictions involving explosives in Counts Three
through Six. The perceived association between the stolen
firearms and the bombs that Barefoot made — or was preparing to
make — also served to increase the base offense level applied by
the court, which is likewise assigned as error.
At the sentencing hearing, the district court adopted the
calculations set forth in the Presentence Investigation Report
(the “PSR”), using the 2002 edition of the Guidelines. The
purpose of grouping is to “determin[e] a single offense level
that encompasses all the counts of which the defendant is
convicted.” USSG Ch. 3, Pt. D, intro. comment. (2002). To
accomplish this task, the PSR initially combined four of
Barefoot’s six offenses of conviction into two groups: the two
firearms offenses charged in Counts One and Two (the “firearms
group”) and the explosives receiving and distributing offenses
charged in Counts Four and Six (the “explosives group”). See
USSG § 3D1.2(d), comment. (n.6) (providing that “most property
crimes . . . , firearms offenses, and other crimes where the
guidelines are based primarily on quantity or contemplate
continuing behavior are to be grouped together”).
The PSR then grouped the Count Three conviction with both
the firearms group and the explosives group on the ground that
the solicitation offense therein “embodie[d] conduct that is
50
treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to another of the
counts.” USSG § 3D1.2(c). 12 The firearms offenses are governed
by Guidelines section 2K2.1, which provides for a base offense
level of 18 if “the offense involved a firearm described in 26
U.S.C. § 5845(a).” Id. § 2K2.1(a)(5). The referenced statute
defines certain extravagant weaponry such as sawed-off shotguns,
machine guns, silencers, and — as relevant here — “destructive
device(s).” 28 U.S.C. § 5845(a)(8). Many types of weapons may
constitute a destructive device, including “any explosive [or]
incendiary . . . bomb,” id. § 5845(f), and the pipe bombs that
Barefoot manufactured and detonated (as well as whatever
mechanism he contemplated would house the liquid dynamite)
certainly qualify.
The PSR increased Barefoot’s base offense level by six for
the number of firearms involved, see USSG § 2K2.1(b)(1)(C), by
two because of the involvement of a destructive device, see id.
§ 2K2.1(b)(3), and by two because one or more of the firearms
had been stolen, see id. § 2K2.1(b)(4). Barefoot also received
an upward adjustment of four levels for his role as an organizer
or leader, see id. § 3B1.1(a), and an additional two levels for
12
The PSR, without objection, grouped the Count Five
storage misdemeanor with the related offenses in the firearms
group.
51
using a minor to assist him in avoiding detection, see id.
§ 3B1.4. The resultant adjusted offense level of 34, cross-
referenced with Barefoot’s criminal history category of II,
produced an advisory Guidelines range of 168 to 210 months of
imprisonment. Because none of the offenses of conviction
entailed a maximum term of longer than 120 months, the district
court comported with the advisory range by first sentencing
Barefoot to the 60-month maximum on Count One. The court then
directed that Barefoot serve a consecutive term of 120 months on
Counts Two through Four and Count Six, to run concurrently with
each other. The court last addressed the Count Five
misdemeanor, on which it imposed a 12-month term concurrent with
the aggregate 180-month sentence.
Barefoot protests that his conduct giving rise to the
firearms offenses was wholly discrete from his possession and
use of destructive devices, and thus the district court was
incorrect to connect the two. A compartmentalized approach,
according to Barefoot, would have resulted in a firearms base
offense level of 12 instead of 18, increased by 14 levels and
not 16, for an adjusted offense level of 26. Under the grouping
rules, the separately considered solicitation conviction in
Count Three, being predominant among the explosives offenses at
base offense level 24, would have added two levels. See USSG
§ 3D1.4(a). Using this method of calculation, Barefoot’s final
52
offense level of 28 would have resulted in an advisory
Guidelines range of 87 to 108 months.
The district court properly evaluated the charged criminal
conduct as a unitary whole. To calculate the base offense level
for the firearms offenses, the court was bound to consider
together the entirety of Barefoot’s relevant conduct, including
“all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or responsibility
for that offense.” USSG § 1B1.3(a)(1). In so doing, the
court’s analysis need not have been strictly confined to the
conduct underlying the convictions; it was permitted to examine
as relevant “the conduct of other offenses insofar as they were
part of the same course of conduct.” United States v. McVey,
No. 13-4285, 2014 WL 1613908, at *3 (4th Cir. Apr. 23, 2014)
(internal quotation marks omitted).
To begin with, Barefoot’s conduct with respect to the
explosives took place during the same time as the ongoing
firearms conspiracy. See McVey, 2014 WL 1613908, at *3
(instructing that time interval is one factor “appropriate to
the determination of whether offenses are sufficiently connected
or related to each other to be considered as part of the same
53
course of conduct”). Daniel, having been involved not only in
the theft and concealment of the firearms, but also in helping
his father conceal the liquid dynamite, provides a more direct
link unifying Barefoot’s activities; indeed, one of the stolen
firearms was recovered from Daniel’s residence along with the
Kinestik explosives. At a more general (but yet relevant)
level, Barefoot’s illegal possession of firearms and explosives
can together be seen as facilitating his Klan activities.
Viewed in the proper context, it is evident that the
district court did not clearly err in ascertaining a connection
between the firearms offenses and the explosives offenses. That
connection permitted the court to apply the higher base offense
level to the firearms offenses, and it also supported the
court’s grouping of the various offenses for sentencing purposes
into what was, more or less, a unified whole.
2.
It is apparent from our detailed recitation of the district
court’s sentencing calculus that Barefoot’s convictions of Count
Five and Count Six had no material effect on his sentence. The
term of imprisonment associated with Count Six was ordered to
run concurrently with the same terms imposed on Counts Two
through Four. Among those convictions, Count Two determined the
advisory Guidelines range, and the grouping therewith of Count
Four would have achieved the same result with or without the
54
addition of Count Six. Compared to his serious felony offenses,
Barefoot’s misdemeanor conviction of Count Five and the twelve-
month concurrent sentence imposed thereon was virtually an
afterthought.
Consequently, as then-Judge Sotomayor observed in a similar
instance on behalf of the court of appeals in Burrell v. United
States, Barefoot’s circumstances present “one of the rare cases
. . . where our reversal of a conviction [does] not affect the
knot of calculations under the Guidelines,” obviating any need
to remand for resentencing. 467 F.3d 160, 166 (2d Cir. 2006)
(internal quotation marks omitted). As the Fifth Circuit
explained in United States v. Thomas, “[w]here it is clear that
a conviction that is being reversed did not cause a district
court to impose a harsher sentence on a conviction that is being
affirmed, remand for re-sentencing is not necessary.” 690 F.3d
358, 372 (5th Cir. 2012); see United States v. Lopez, 42 F.3d
463, 469 (8th Cir. 1994) (acknowledging that defendant need not
be resentenced if conviction vacated on appeal “had no effect on
the determination of . . . Guidelines ranges” (internal
quotation marks omitted)); accord United States v. Introcaso,
506 F.3d 260, 272 (3d Cir. 2007); United States v. Fontana, 948
F.2d 796, 798 (1st Cir. 1991).
The court in Burrell had previously reversed the
defendant’s conviction for conspiracy to distribute crack
55
cocaine on the ground that it was a lesser-included offense of
his other conviction for being an organizer of a continuing
criminal enterprise. Because the latter conviction carried a
mandatory life sentence, the Second Circuit remanded to the
district court for it to perform a strictly “ministerial
correction” to enter “an amended judgment reflecting the
dismissal.” Id.We do the same here. On remand, the district court is
simply to amend the judgment against Barefoot to dismiss Counts
Five and Six, nullifying the convictions and sentences relating
thereto. In so doing, the court shall reduce Barefoot’s special
assessment from $525 to $400, in that the $25 assessed on the
Count Five misdemeanor conviction, see 18 U.S.C.
§ 3013(a)(1)(A)(iii), and the $100 assessed on the Count Six
felony conviction, see id. § 3013(a)(2)(A), are no longer valid
and enforceable components of the judgment. See Thomas, 690
F.3d at 372; Introcaso, 506 F.3d at 273.
IV.
Pursuant to the foregoing, we affirm Barefoot’s convictions
on Counts One through Four, but we reverse his convictions on
Counts Five and Six. We remand this matter to the district
court with instructions to enter an amended judgment in
56
conformance with this opinion.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
57