2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-1-2002

USA v. Garcia

Precedential or Non-Precedential:

Docket 1-1930

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Recommended Citation

"USA v. Garcia" (2002). 2002 Decisions. Paper 87.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/87
 NOT PRECEDENTIAL 

 

 IN THE UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ____________ 

 

 No. 01-1930 

 ____________ 

 

 UNITED STATES OF AMERICA

 

 v. 

 

 JOSE J. GARCIA, 

 

Appellant 

 ____________ 

 

 Appeal from the United States District Court 

 For the Eastern District of Pennsylvania 

 D.C. No.: 00-cr-00306 

 District Judge: Honorable Stewart Dalzell 

 ____________ 

 

 Submitted Under Third Circuit LAR 34.1(a) January 18, 2002 

Before: SCIRICA and ROSENN, Circuit Judges, and KANE*, District Judge. 

 (Filed February 1, 2002 ) 

Richard J. Zack 

Suite 1250 

Office of United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

 Counsel for Appellee 

David L. McColgin 

*Honorable Yvette Kane, United States District Judge for the Middle 

District of 

 Pennsylvania, sitting by designation. 

Defender Association of Philadelphia 

Federal Court Division 

Curtis Center, Independence Square West 

Suite 540 West 

Philadelphia, PA 19106 

 Counsel for Appellant 

 

 ____________ 

 

 MEMORANDUM OPINION 
 ____________ 

 

ROSENN, Circuit Judge. 

 A federal grand jury sitting in the United States District Court for 

the Eastern 

District of Pennsylvania indicted Jose J. Garcia on one count. The 

indictment charged 

him with maliciously destroying or attempting to destroy a building by 

fire or destructive 

device, in violation of 18 U.S. C.  844(i). On November 13, 2000, Garcia 

pled guilty 

pursuant to a plea agreement. 

 The Pre-Sentence Report (PSR) recommended a two-point enhancement to 

Garcia's base offense level pursuant to United States Sentencing 

Guidelines  3C1.1 

because he obstructed justice. Garcia objected to the enhancement at 

sentencing. The 

District Court, however, overruled his objection and sentenced Garcia to 

30 months 

imprisonment, three years supervised release, a $1500 fine, and a $50 

special assessment. 

Garcia timely appealed. We affirm. 

 Rifat Ismail was co-owner of the Roslyn Food Market in Roslyn, 

Pennsylvania. 

Beset by severe financial difficulties, Ismail decided to burn down his 

store to collect the 

insurance proceeds. Ismail hired Garcia to do the torching and paid him 

$2000. Garcia 

hired three people from his neighborhood to help him, splitting the $2000 

between them. 

On October 31, 1994, these three threw Molotov cocktails through the 

windows of the 

market. The attempt to burn down the market, however, was highly 

unsuccessful. The 

Molotov cocktails only started small fires, and the fire department 

arrived and quickly put 

them out. The market suffered very little damage and the owners filed no 

insurance 

claims. 

 The local police and agents with the Bureau of Alcohol, Tobacco and 

Firearms 

interviewed Ismail. He admitted he had arranged for the arson and 

identified Garcia as 

the person he hired to set the fire. At the behest of the agents, Ismail 

met with Garcia on 

November 1, 1995, wearing a hidden microphone. The agents recorded the 

conversation 

between the two. 

 During the conversation, Ismail informed Garcia that he had received 

a grand jury 

subpoena and asked Garcia several times what he should do. Garcia made 

comments that 

the District Court construed as exhortations to Ismail to lie to the grand 

jury about his 
knowledge of the arson. On the basis of these exhortations, the District 

Court adopted the 

recommendation contained in the PSR and enhanced Garcia's base offense 

level two 

levels pursuant to the Sentencing Guidelines. 

 On appeal, Garcia contends that the District Court committed 

clear error when it 

increased the offense level by two, predicated on the defendant's alleged 

attempt to 

suborn perjury by urging co-conspirator Ismail falsely to inform the grand 

jury that Ismail 

knew nothing about the arson fire that the two of them had conspired to 

set. 

 The factual dispute pertinent to the enhancement of Garcia's sentence 

is 

extremely narrow but critical. Because the District Court's decision to 

enhance is 

essentially factual, this Court's standard of review is for clear error. 

United States. v. 

Maurello, 76 F.3d 1304, 1308 (3d Cir. 1996). 

 Garcia contends that his sentence should not have been enhanced for 

obstruction 

of justice because, "when all of his statements are read in context, it is 

clear that he was 

simply urging Ismail not to say anything to the grand jury." Garcia 

admits that at one 

time in his recorded conversation with Ismail, he told Ismail to say that 

he did not "know 

what they [are] talking about." However, he argues that this statement 

should be 

considered in the context of Garcia's advice, repeated eight times, that 

Ismail assert his 

Fifth Amendment right to remain silent and "say nothing." The District 

Court rejected 

this interpretation of the conversation. 

 We have reviewed the transcript of the recorded conversation and a 

fair reading of 

the transcript supports the District Court's interpretation and the PSR 

recommendation. 

Although Garcia does suggest several times to Ismail not to say anything, 

there are other 

points in the conversation where Garcia appears to be telling Ismail to 

lie to the grand 

jury. At one point, Garcia tells Ismail that all he has to say is "you 

don't know what they 

talking about." Later in the conversational exchange, Garcia urges Ismail 

to say "what 

are you talking about?" These statements give credence to the District 

Court's 

interpretation of the conversation. Moreover, as the United States 

Supreme Court 

observed in Anderson v. City of Bessemer City, "[w]here there are two 

permissible views 
of the evidence, the fact finder's choice between them cannot be clearly 

erroneous." 470 

U.S. 564, 574 (1985). 

 A District Court's finding of fact is "clearly erroneous" only when 

an appellate 

court considering the matter firmly convinced that a mistake had been 

committed. United 

States v. Bogusz, 43 F.3d 82, 85 (3d Cir. 1994). We are convinced that 

the District Court 

made no mistake and that its factual findings are not clearly erroneous. 

 The judgment and sentence of the District Court is affirmed. 

 
 

TO THE CLERK: 

Please file the foregoing opinion. 

 /s/ Max Rosenn 

 Circuit Judge