United States v. James Grap

Citation: Not availableDocket: 03-3047

Court: Court of Appeals for the Eighth Circuit; May 7, 2004; Federal Appellate Court

Original Court Document: View Document

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James Grap was convicted under 18 U.S.C. § 1512(b)(1) for tampering with a witness while facing charges for aggravated sexual abuse. Prior to pleading guilty to the witness tampering charge, he filed a motion to dismiss the indictment, arguing that the prosecution violated a plea agreement from an earlier case. The district court denied this motion, accepted his guilty plea, and sentenced him to 42 months in prison, to be served consecutively to the sentence for the sexual offense.

In the plea agreement for the sexual offense, the government committed to dismiss a second count and refrain from further prosecution based on current evidence regarding Grap's involvement in the underlying incidents. The agreement also included a provision for a potential sentence reduction if Grap demonstrated personal responsibility for his actions.

One day before signing the plea agreement, Grap instructed a friend, Johnny Alvarez, to persuade the victim to recant her allegations against him, using threats and promises of friendship. Although Alvarez conveyed part of Grap's message to the victim's sister, he omitted the threatening statements. Following this, the victim's family reported the incident to law enforcement, which led to an investigation on March 25, just before Grap signed the plea agreement.

The government acknowledged that it completed its investigation into a witness tampering incident before Mr. Grap's sentencing for a sex offense and intentionally withheld this information from the district court and Mr. Grap's attorney during sentencing. Despite being aware of the witness tampering, the government maintained its recommendation for a sentence reduction for Mr. Grap based on his acceptance of responsibility. Approximately six months post-sentencing, the government indicted Mr. Grap for attempting to coerce the victim into providing false testimony regarding the sexual abuse. This indictment contradicted the earlier position that Mr. Grap merited a sentence reduction and that there was no obstructive conduct justifying a sentence enhancement. In his motion to dismiss the indictment, Mr. Grap claimed it violated his due process rights by breaching the plea agreement that had induced his guilty plea, requesting enforcement of that agreement. The district court denied this request, determining that the plea agreement did not cover the conduct leading to the witness tampering charge. On appeal, Mr. Grap maintained that the charge was barred by the plea agreement and violated his due process rights. He also raised new arguments regarding pre-indictment delay and judicial estoppel, which he had not presented in the district court and would be reviewed for plain error. The government contended that Mr. Grap waived his claims by pleading guilty to witness tampering following the district court's denial of his motion to dismiss, but the court found that the witness tampering charge fell outside the scope of the plea agreement, as it constituted a separate factual scenario from the prior offenses.

Mr. Grap's argument that the government violated his due process rights by breaching the plea agreement is rejected, as the scenario in question is distinct from the abuse incidents. He further claims that the delay in indicting him for witness tampering until after his sentencing for sexual abuse violated his Fifth Amendment rights. For a pre-indictment delay to constitute a due process violation, he must demonstrate that the government intentionally delayed to gain a tactical advantage and that the delay caused him actual and substantial prejudice. Allegations of prejudice that are insubstantial or speculative do not meet this threshold.

The court concludes that Mr. Grap's due process claim lacks merit, as he failed to show substantial prejudice. His sentence for sexual abuse, which was 121 months, was shorter than it would have been had his witness tampering been considered, likely resulting in a two-level enhancement under U.S.S.G. 3C1.1 for obstruction of justice. Additionally, he would not have received a three-level reduction for acceptance of responsibility, as his actions contradicted this claim. Consequently, his offense level would have been higher, leading to a recommended sentence range of 168 to 210 months, exceeding the 163 months he ultimately received. Even if the government's withholding of information was improper, it did not violate his due process rights, as it did not result in prejudice.

The government's withholding of tampering information during Mr. Grap's sexual abuse sentencing ultimately benefited him by resulting in a shorter sentence. Consequently, the delay in disclosure does not constitute a tactical advantage, which Mr. Grap needed to demonstrate for a due process claim. Although Mr. Grap asserts he was prejudiced due to having two felony convictions instead of one—leading to a higher security classification and potential for harsher future penalties—this form of prejudice does not align with typical claims of unavailability of evidence or impaired defense. Even if his claims of prejudice were valid, they do not outweigh the substantial benefit of a significantly reduced sentence he received. Thus, the district court did not err in not dismissing the witness tampering indictment due to pre-indictment delay.

Mr. Grap also argues that judicial estoppel should prevent the government from prosecuting him for witness tampering based on its inconsistent positions in prior proceedings. However, he has not cited any precedent where estoppel was enforced against the government, and established case law indicates that the government generally cannot be estopped in criminal matters. Judicial estoppel is an equitable doctrine applied at the court's discretion, considering whether asserting an inconsistent position would unfairly advantage one party or disadvantage another.

The traditional reluctance to permit criminal defendants to estop the government, combined with the finding that Mr. Grap did not suffer "unfair detriment," led to the conclusion that the government's alleged inconsistencies had already reduced his sentence by several months. The district court's decision not to exercise discretion in favor of Mr. Grap was deemed free of plain error. Mr. Grap contested an eight-level enhancement to his offense level under U.S.S.G. 2J1.2(b)(1), which applies when a defendant threatens physical injury to obstruct justice. He claimed the enhancement should not apply because his threats were not communicated to the victim. The review of the district court's application of the sentencing guideline was conducted de novo. 

The court noted that Mr. Grap had made threatening statements to Mr. Alvarez regarding the victim, indicating potential harm if she did not alter her testimony. Although Mr. Grap did not dispute these statements, he argued they fell outside the guideline's scope since they were not conveyed to the victim. This issue was identified as one of first impression. However, the Eleventh Circuit's precedent, which allowed for enhancement based on threats not directly communicated but intended to reach the victim, was cited as a relevant authority. The court concluded that Mr. Grap's statements to Mr. Alvarez demonstrated an intent to threaten the victim, justifying the enhancement under 2J1.2(b)(1), despite the lack of direct communication to her. The court affirmed the district court's denial of Mr. Grap's motion to dismiss the witness tampering indictment and upheld the application of the sentencing guidelines.