033047P.pdf   05/07/2004  United States  v.  James Grap
   U.S. Court of Appeals Case No:  03-3047
   District of South Dakota   
   Criminal case - criminal law. Witness tampering prosecution did not 
   violate the plea agreement defendant and the government entered into in 
   the underlying sexual abuse case; the agreement not to prosecute 
   defendant further for certain conduct did not include the conduct which 
   was the basis for the witness tampering charge; government's delay in 
   indicting defendant for the witness tampering until after his sentencing in 
   the sexual abuse case did not violate defendant's Fifth Amendment due 
   process rights, as defendant could not show that the delay actually and 
   substantially prejudiced him, especially since the disclosure of the 
   information prior to sentencing would undoubtedly have resulted in a 
   longer sentence than he received; doctrine of judicial estoppel did not 
   preclude the second prosecution; no error in imposing an eight-level 
   enhancement for threatening to cause physical injury to the witness even 
   though the threat of physical injury was not communicated to the witness; 
   defendant made the threatening statements to the person he asked to 
   intimidate the witness, and the fact that he made them is sufficient to 
   invoke the guideline even if the intimidator chose not to communicate 
   them to the victim. [PUBLISHED] [M. Arnold, Author]