United States of America v. Lawrence Lyons

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1634
____________________________________
UNITED STATES OF AMERICA
v.
LAWRENCE LYONS, Appellant
_______________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. No. 01-cr-00694)
District Judge: Honorable Faith S. Hochberg
Argued: December 9, 2002
Before: BECKER, Chief Judge, Roth and Smith
Circuit Judges.
(Filed: December 23, 2002)
LORRAINE S. GAULI-RUFO (Argued)
LISA M. MACK
Federal Public Defender
972 Broad Street
Newark, New Jersey 07102
Counsel for Appellant
CHRISTOPHER J. CHRISTIE
United States Attorney
GEORGE S. LEONE

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Chief, Appeals Division
NORMAN GROSS (Argued)
Assistant U.S. Attorney
Camden Federal Building and United States Courthouse
401 Market Street, Fourth Floor
Camden, New Jersey, 08101-2098
Counsel for Appellee
__________________________
OPINION OF THE COURT
___________________________
BECKER, Chief Judge.
I.
This is an appeal by defendant Lawrence Lyons from the judgment of the District
Court in a criminal case. Lyons pled guilty to attempting to defraud a federally-insured
bank through the theft of another person’s identity. In March 2001, an unknown individual,
claiming to be “J.W.R.”, called the Summit Bank and applied for a loan. The caller used
J.W.R.’s date of birth and social security number and the loan was approved. It was Lyons’
role in the criminal scheme to go to the bank and collect the loan check. He made two
appointments to do so, but failed to show up for either, raising the bank personnel’s
suspicions. Lyons made a third appointment to pick up the check, which he kept. While
helping Lyons open a checking account in the name of J.W.R., the bank teller became
increasingly suspicious that Lyons was not who he claimed to be. The police were called
and they arrested Lyons at the bank. Lyons admitted that he had knowingly used the name,
date of birth, and social security number of J.W.R. to obtain the loan. In addition, he stated

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that an unidentified co-conspirator had supplied a counterfeit driver’s license, social
security card, Internal Revenue Service W-2 forms, and other materials.
The Government filed an information charging Lyons with bank fraud in violation of
18 U.S.C. §1344. Pursuant to a plea agreement, Lyons entered a plea of guilty. His total
offense level was an 8 and his criminal history category was “III,” resulting in a sentencing
guidelines range of 6-12 months. In a letter brief Lyons requested that the District Court
impose the minimum six-month sentence and allow him to serve it at a half-way house.
Lyons is a misfit with an extensive history of substance abuse (mostly alcohol) and a
criminal record of considerable vintage, but with no recent entries. The Government
responded with a request that the Court give Lyons the maximum 12-month sentence.
In support of this request, the Government relied on: (1) Lyons’ “extensive”
criminal history, most of which was too dated to affect his criminal history category; (2)
the fact that Lyons’ one-time drug addiction was of no moment here because he had been
drug-free for four years before committing this crime; and (3) the fact that Lyons had
refused to “provide any assistance to law enforcement [officials] in [their] investigation of
what is believed to be a wide-spread bank fraud scheme engaged in by the defendant and
others.” Supplemental App. at 13. The Government contrasted Lyons’ situation with that of
another member of the suspected scheme, Terry Brown, who had cooperated and who had
received a sentence at the bottom of the applicable guidelines range. While the
Government acknowledged Lyons’ “right to remain silent and not provide any information
to law enforcement authorities”, it argued that Lyons should not receive the same benefit as

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Brown at sentencing. Supp. App. at 14. The District Court ultimately sentenced Lyons to
twelve months in jail.
Lyons’ appeal presents three questions: (1) did the District Court violate Lyons’
Fifth Amendment right against self-incrimination when it asked Lyons to identify his co-
conspirator at his sentencing hearing and/or by imposing a harsher sentence because he
failed to cooperate with the Government?; (2) did the District Court violate Lyons’ due
process right not to be sentenced on the basis of unreliable and unreasonable inferences by
allegedly considering his failure to cooperate when determining, for purposes of fashioning
a sentence, whether he was rehabilitating himself?; and (3) did the District Court err in
exceeding its sentencing discretion by considering a factor outside the scope of sentencing
when it allegedly concluded, on the basis of Lyons’ lack of cooperation, that Lyons did not
intend to rehabilitate himself?
We dispose of Lyons’ second and third arguments summarily. With respect to the
second, Lyons cannot show the necessary prejudice, nor does he show that considering a
defendant’s lack of cooperation in determining whether that defendant is rehabilitating
himself is an unreasonable inference. With respect to the third argument, Lyons does not
demonstrate that in allegedly considering his failure to cooperate, the District Court went
beyond the scope of the Sentencing Guidelines.
The major issue on appeal is the first point, to which we now turn. We have
jurisdiction under 28 U.S.C. § 1291 and U.S.C. § 3742(a).
II.

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The background for our determination lies in the colloquy of the sentencing hearing,
which we rescribe at some length.
The Court:
I too have a question Miss Gauli-Rufo for your client. I would like to know who
provided him with the fake New Jersey driver’s license, Social Security card, W-2
Forms, pay stubs, business cards. . . . Because it seems to me that that is something
we should know and should get to the bottom of.
Ms. Gauli-Rufo:
Your honor, I have to object to that for a number of reasons, and I’ll explain my
position here. And this also relates to Mr. Kwon’s [the prosecutor] memorandum,
which basically tries to use my client’s constitutional rights basically to – to up his
sentence, shall we say. I think it’s totally inappropriate.
The Court:
No, he’s not – I understand your objection, but I had that question when I read the
PSR. It wasn’t Mr. Kwon’s letter. . . . That, it seems to me that this is something that
- - since he’s already pled guilty and his sentence can’t be increased, that I would
deem relevant to know if he’s really turning his life around or not. We see a lot of
years of a lot of crimes, some significant, some relatively minor, but if he knows
who it is, so that no one else faces the prospect of being victimized, I would feel
better about people in the State of New Jersey not having this happen to them. . . .
Ms. Gauli-Rufo:
Your Honor, I would have to again object to him disclosing that, for whatever reason
he did have for not disclosing. There could be many many reasons for not disclosing
who provided him, or who was an accomplice, or who was an accessory, or who it
was involved in this crime with him. For the purposes of his sentencing today, for
the purposes of pleading guilty, he has acknowledged that he committed this crime,
he has acknowledged his involvement in the crime.
. . .
The Court:

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. . . I guess what I’m musing about is how, he can only not answer that question if
he’s telling me that it will incriminate him. But given that he has already pled, and
there is, you know, his guideline range is what it is, and it’s a very narrow guideline
range, I don’t see a self-incrimination, I can’t theorize that there could be any self-
incrimination basis for not answering the question, so that others in the state will
have a better shot of not being a victim of identity fraud.
Ms. Gauli-Rufo
. . . I don’t know right now that my client would not answer that if I posed that to
him, but I would just like to stress for the record that if he chose to cooperate, as
Mr. Kwon has said, early on, or if he chose to give that information, or if he didn’t . .
. choose to give it, it could be that it could incriminate him, it could be other reasons
as well, Your Honor. . . .
The Court:
It could, although he could certainly very easily, I suppose he can’t be immunized
and be asked the question. I don’t see it as likely a self-incrimination issue.
App. 11-14. At this point Gauli-Rufo conferred with Lyons about whether he was
willing to name his co-conspirator. Lyons told his lawyer his co-conspirator’s first name,
which she relayed to the Court, but said he knew neither his surname nor his address. The
District Court then moved the hearing along.
The Government asked the Court to sentence Lyons to the maximum 12 months.
Lyons, naturally, requested the bottom of the range, 6 months. At the conclusion of the
hearing, the Court sentenced Lyons to nine months in a federal correctional institution,
followed by three months in a community corrections center, and five years supervised
release.
Because the question whether the District Court considered Lyons’ lack of

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cooperation in fashioning his sentence is at the heart of Lyons’ claim, it is useful to
rescribe some of what the Judge said upon handing down the sentence.
You’ve been standing before courts as far back as when I was in high school. And
I’m sure you’ve often said you want to turn your life around . . . How is it possible
that in all those times you’ve never actually turned your life around and what’s
different now to lead me to think you’re really going to turn your life around?”
. . .
I would like to believe that you’re turning your life around, but there’s a big part of
my brain that’s got some doubts about that because of your past record; and because
you stand here and say you’re a victim. . . . I wasn’t born yesterday. Okay? And I am
going to be watching your case. And I am going to be keeping you on a leash, which
you will see when I deliver the sentence to you. And so you, whether you want to or
not, will have no choice but to turn your life around. . . . Because I only know there
were countless other judges just like me where you stood there and said in a sincere
voice, as you’re mustering here today, that you’re turning your life around, and in
fact you hoodwinked those judges because you didn’t. So that’s over, . . .
App. at 25, 28-29, 31-32.
III.
The Government contends that Lyons did not attempt to invoke his Fifth Amendment
privilege during the sentencing hearing and that, consequently, he waived any appellate
argument he might have had based on the privilege. Lyons answers that “[a]lthough defense
counsel never uttered the precise words ‘Fifth Amendment,’ it was clear to all involved that
the Fifth Amendment was the thrust of her argument.” Lyons’ Br. at 19 note 4.

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In response to the Judge’s request that Lyons tell the Court who his co-conspirator
was, Lyons’ attorney said “[]I have to object to that for a number of reasons, and I’ll explain
my position here. And this also relates to Mr. Kwon’s [the prosecutor] memorandum,
which basically tries to use my client’s constitutional rights basically to -- to up his
sentence, shall we say. I think it’s totally inappropriate.” App. at 11-12. The Judge’s
response to this objection does suggest that everyone understood that they were discussing
Lyons’ Fifth Amendment privilege: “[]this is something that -- since he’s already pled guilty
and his sentence can’t be increased, that I would deem relevant to know if he’s really
turning his life around or not.” App. at 12. The Judge also mused “[]how, he can only not
answer that question if he’s telling me that it will incriminate him. But given that he has
already pled, and there is, you know, his guideline range is what it is, and it’s a very narrow
guideline range, and it’s a very low guideline range, I don’t see a self-incrimination, I can’t
theorize that there could be any self-incrimination basis for not answering the question . . .
.” App. at 13.
Indeed, the prosecutor himself suggested that the Fifth Amendment privilege was at
issue here when he stated
[h]e has already pled, it is what somewhat akin to acceptance of responsibility, which
when they come to the probation officer they tell the probation officer about their
conduct, their roles and the roles of others, and that goes to acceptance of
responsibility.
Now, taking Miss Gauli-Rufo’s argument to its logical conclusion, they
would apparently have a Fifth Amendment right in that context, which clearly is not
correct. And that is essentially the Government’s point here, he does not have a

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Fifth Amendment right.
App. at 14.
What is most notable about the foregoing discussion, however, is that the one
person who never mentioned the Fifth Amendment was defense counsel. It would have
been in order for her to have clearly invoked the privilege for her client, but she failed to do
so. This failure deprived the court of the opportunity to inquire precisely how the privilege
was implicated. Rather than specifically asserting the privilege, defense counsel told the
court that “[t]here could be many reasons for not disclosing . . . who was an accomplice . .
.,” and that if Lyons did not choose to cooperate “it could be that it could incriminate him,
it could be other reasons as well.” App. at 12,13-14. Because the jurisprudence in this area
is more demanding than the defendant acknowledges, defense counsel’s vague objections
were not sufficient to invoke the privilege. As the Supreme Court has made clear, “[t]he
Fifth Amendment privilege against compelled self-incrimination is not self-executing.”
United States v. Roberts, 445 U.S. 552, 559 (1980); See also United States v. Frierson,
945 F. 2d 650, 660 (3d Cir. 1991). Therefore, we will affirm the judgment imposed by the
District Court.
We do, however, take this opportunity to point out troubling aspects of the District
Court’s sentencing colloquy. Lyons contends that the District Court coerced his statement
naming his co-conspirator by urging that he disclose it and by advising him that it would
consider his cooperation “relevant to know if he’s really turning his life around or not,” a

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factor the court would then take into account in fashioning Lyons’ sentence. App. at 12.
Because Lyons waived his Fifth Amendment privilege, the Court’s actions did not amount
to a violation of that privilege. Nonetheless, we are concerned about the prosecutorial tone
of this sentencing colloquy and trust that the District Court will avoid it in future.
The judgment of the District Court will be affirmed.

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TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/ Edward R. Becker
Chief Judge

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