ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Criminal No. 95-00153
Before: Becker, Nygaard and Roth, Circuit Judges
Argued September 17, 1996
Dean Arnold appeals his conviction for attempting to murder a witness, 18 U.S.C. Section(s) 1512(a)(1)(A), and raises various challenges to his sentence. We will reverse Arnold's attempted murder conviction because it was based solely upon evidence that the district court should have suppressed. Although, by implication, this error also calls into question Arnold's conviction for witness intimidation, 18 U.S.C. 1512(b)(3), we conclude that the error was harmless, and will affirm. We will also vacate Arnold's sentence and remand the matter to the district court for resentencing.
Arnold, while working as an armored car courier for Federal Armored Express, stole $65,000. He told his then fiancee, Jennifer Kloss, about the theft and showed her a lunch thermos in which he had stuffed the stolen money. Later, Arnold stole an additional $15,000 and again told Kloss what he had done. On another occasion, while working as an assistant vault person, Arnold stole $400,000 in cash directly from the main vault at Federal Armored Express, and again told Jennifer Kloss.
Fearing that Kloss would tell the FBI about his crimes, Arnold told a few individuals, including Edgardo Ramos and Alex Introcaso, that he would pay someone up to $20,000 to kill Kloss. Introcaso, a private investigator, suspected that Arnold had committed the Federal Armored Express thefts. Seeking a reward, Introcaso contacted the FBI to report his suspicions. He also called the FBI to report Arnold's offer to have Kloss killed.
The FBI, using Introcaso as part of a "sting" operation, recorded a meeting on March 27, 1995, between Introcaso and Arnold at Introcaso's office. At this meeting, Introcaso told Arnold that he had located a hit man willing to kill Kloss for $20,000. Arnold agreed to meet with the hit man the next day and reaffirmed that he had threatened to kill Kloss if she turned him in.
On March 28, 1995 the government obtained a sealed indictment against Arnold charging him with bank theft, money laundering and witness intimidation. The witness intimidation charge specifically alleged that Arnold had threatened to kill Kloss if she provided information to law enforcement officers about the thefts. That afternoon, Arnold met in Introcaso's wired office with undercover officer Louis Tallarico, who was posing as a professional hit man. At this meeting, Arnold reasserted that he was serious about having Kloss killed and showed Tallarico that he had the $20,000 necessary to pay for it. As Arnold left the meeting, the FBI arrested him and seized the $20,000.
The government next obtained a superseding indictment charging Arnold with the additional count of attempted murder of a witness. At trial, a tape recording made at the March 28 meeting with the undercover agent was played to the jury over Arnold's objection. The tape was the only evidence the government submitted with respect to the attempted murder charge.At the sentencing hearing, the district court separated the offenses into three groups: (1) the two bank larceny counts combined with the witness intimidation count; (2) the money laundering counts; and, (3) the attempted killing of a witness count. The base offense level for the attempted killing of a witness offense was 28. Because the offense involved the offer of money for the murder, the offense level was increased to 32. Based upon a finding that Arnold's testimony about his entrapment defense was "willfully false," the court increased Arnold's offense level two more levels to 34 pursuant to Section(s) 3C1.1 of the United States Sentencing Guidelines.
The court also granted the government's motion for an upward departure and increased the total offense level by one to 35. The court justified the upward departure on two separate grounds: (1) the grouping rules did not adequately punish the defendant in this case; and, (2) there was still an outstanding sum of money that had not been returned. With a total offense level of 35, the guideline range was 168-210 months imprisonment. The court imposed a 210 month sentence and ordered restitution in the amount of $223,569.
Arnold argues that the government violated his Sixth Amendment right to counsel by eliciting uncounselled statements from him after he had been indicted for threatening to kill Kloss. Arnold contends that because the sealed indictment had been returned against him, his right to counsel had attached for the witness intimidation charge, and the government was prohibited by the Sixth Amendment from deliberately eliciting uncounselled statements about the closely related attempted murder offense. The witness intimidation and attempted murder of a witness charges are so closely related, Arnold argues, that "the right to counsel for the pending offense [witness intimidation] cannot constitutionally be isolated from the uncharged ...