§462 Cases Rejecting Obstruction of Justice Adjustment
6th Circuit reverses obstruction enhancement where defendant merely denied guilt. (462) Defendant was convicted of drug trafficking. At sentencing, the district court added two levels under § 3C1.1 for obstruction of justice, relying on a letter defendant sent to the district court after his trial, denying that he had purchased drugs from anyone. The Sixth Circuit found that the letter was a “perfunctory denial of guilt” and merely asked the district court to consider defendant’s innocence at sentencing. The court reversed the enhancement. U.S. v. Mosley, __ F.4th __ (6th Cir. Nov. 18, 2022) No. 21-1136.
6th Circuit reverses obstruction increase for inadequate findings. (462) At his trial for conspiracy to steal government property and fraud, defendant denied that he knowingly trafficked in stolen goods. After the jury convicted him, the district court applied the obstruction-of-justice enhancement in § 3C1.1. The court found that defendant testified falsely, but failed to identify exactly what testimony obstructed justice. On appeal, the Sixth Circuit reversed, holding that the district court must identify how defendant’s testimony constitutes obstruction in order to apply the enhancement. U.S. v. Roberts, __ F.3d __ (6th Cir. Mar. 28, 2019) No. 17-6512.
8th Circuit reverses for lack of findings supporting obstruction enhancement. (462) At defendant’s trial for producing child pornography, he testified inconsistently with the victim’s statements to law enforcement. Without specifically addressing whether defendant had obstructed justice in violation of § 3C1.1, the district court adopted the presentence report and applied the enhancement. On appeal, the Eighth Circuit reversed for lack of any findings supporting the enhancement. The panel noted that it had occasionally affirmed conclusory findings of perjury but the district court had made no findings here. U.S. v. Gomez-Dias, __ F.3d __ (8th Cir. Dec. 28, 2018) No. 18-1001.
8th Circuit reverses finding that passenger created substantial risk of injury or death. (462) Defendant pleaded guilty to Hobbs Act robbery and a firearms offense based on a robbery of a convenience store. After the robbery, police officers located the robbery participants’ car. With defendant as a passenger, the driver of the car led the police on a high-speed chase that ended when the robbers’ car hit another car. Based on this incident, the district court found that defendant “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer” and enhanced defendant’s offense level under § 3C1.2. The Eighth Circuit reversed this enhancement, finding that there was no evidence that defendant created or aided and abetted the risk. U.S. v. Reggs, __ F.3d __ (8th Cir. Nov. 27, 2018) No. 17-2133.
11th Circuit reverses for failure to explain how defendant obstructed justice. (462) Defendant caused a car dealership to submit false reports to the U.S. Treasury Department concerning his identity as the purchaser of three cars with cash payments of over $10,000. The Eleventh Circuit reversed a § 3C1.1 obstruction of justice increase, finding the court failed to explain how defendant obstructed or impeded the investigation or prosecution. The court “made nothing more than vague, equivocal statements regarding [defendant’s] tax returns, use of a straw buyer to commit the crime with which he was charged, and initial misstatements to agents during the interview outside of his home.” The court’s decision seemed to hinge on defendant’s handling of his tax returns, many of which were filed several years before the offense conduct took place. U.S. v. Guevara, __ F.3d __ (11th Cir. July 11, 2018) No. 15-14146.
3rd Circuit reverses obstruction increase even though defendant moved porn files to computer’s recycling bin after learning police were on the way. (462) Defendant was convicted of child pornography charges. The district court applied a § 3C1.1 obstruction of justice enhancement because defendant moved porn files into his laptop’s recycling bin in a “panic” after receiving a call from his aunt that the police were on their way to his house. The Third Circuit reversed, finding defendant’s acts did not satisfy Application Note 4(D). Under Note 4(C), if the destroying or concealing of evidence (1) “occurred contemporaneously with arrest,” but (2) did not “result[ ] in a material hindrance to the official investigation or prosecution” of the case, then § 3C1.1 does not apply. The panel ruled defendant acted “contemporaneously with arrest,” but his conduct did not result in a “material hindrance” to the investigation or prosecution. None of the files in the recycling bin were lost, and could easily be restored by clicking the mouse. U.S. v. Welshans, __ F.3d __ (3d Cir. June 14, 2018) No. 16-4106.
7th Circuit rejects obstruction increase based on defendant’s testimony in another proceeding. (462) Defendant pled guilty to conspiracy to distribute drugs. The sentencing judge imposed a §3C1.1 obstruction of justice enhancement based on defendant’s testimony in a suppression hearing in another defendant’s case before another judge. The other defendant ultimately pled guilty and withdrew his motion to suppress, so the other judge never made findings about the honesty of defendant’s testimony. The Seventh Circuit vacated defendant’s sentence, ruling that the defendant’s testimony in the other case was not sufficient to support the obstruction enhancement. U.S. v. Brown, 843 F.3d 738 (7th Cir. 2016).
9th Circuit reverses obstruction of justice enhancement. (462) Defendant was found with methamphetamine on a bus north of the Mexican border. He testified at his trial for possession of methamphetamine with intent to distribute it that he did not know anything about the bag in which the methamphetamine was found. The jury rejected defendant’s testimony and convicted him. At sentencing, the district court found that defendant’s trial testimony constituted perjury and applied an obstruction of justice enhancement under §3C1.1. Nonetheless, it imposed a sentence below the advisory guidelines range. Reviewing for plain error, the Ninth Circuit reversed and remanded. It found that the district court failed to make the required express findings that defendant gave false testimony on a material matter with willful intent. U.S. v. Herrera-Rivera, __ F.3d __ (9th Cir. Aug. 12, 2016) No. 15-50141.
2nd Circuit reverses for failure to find specific intent to obstruct justice. (462) Defendant pled guilty to conspiracy to engage in the business of dealing firearms without a license, and related charges. The district court applied a §3C1.1 obstruction of justice enhancement, finding that defendant made two materially false statements to the probation officer: that he did not know he was selling guns to drug dealers, and that he did not traffic in guns before meeting Davis. The government specifically asked the court to enter a finding that in making those false statements, defendant “had the intent to obstruct justice.” The judge replied that there was no need to “articulate” defendant’s motivation in speaking falsely, that it only needed to find that the statements “were materially false.” The Second Circuit remanded, since it is “essential” for the court to make “a finding that the defendant had the specific intent to obstruct justice.” Although this finding is not necessary when a defendant has clearly lied in a statement made under oath, the false statements the court identified here were not made under oath, but during an interview with a probation officer. U.S. v. Young, __ F.3d __ (2d Cir. Jan. 29, 2016) No. 14-2383-CR.
2nd Circuit rejects PSR’s conclusory statement that defendant committed perjury. (462) Defendant unsuccessfully moved to suppress two digital scales and cash found by DEA agents in his apartment, arguing that his consent for the search was coerced because the officers threatened to arrest his sister and girlfriend unless he consented. The district court rejected the motion, stating that it found the testimony of two officers to be credible, and found defendant’s testimony to not be credible. The PSR recommended a two-level obstruction of justice increase based on defendant’s perjury at the suppression hearing. The district court applied the obstruction increase, merely stating that the PSR accurately calculated the guideline range. The Second Circuit reversed, holding that the district court made insufficient findings. A court cannot satisfy Dunnigan simply by adopting a PSR’s “conclusory statements” that the defendant committed perjury. The PSR merely pointed to the district court’s suppression ruling and the district court’s conclusion that defendant’s “conflicting testimony on [the] central issue could not be credited.” U.S. v. Thompson, __ F.3d __ (2d Cir. Dec. 9, 2015) No. 14-2267-cr(L).
10th Circuit reverses obstruction increase for failing to disclose unreported income during investigation. (462) Defendant and her husband jointly filed federal income taxes for 2004-2006, but failed to report over $790,000 in gross income. The district court applied a § 3C1.1 obstruction of justice increase based on defendant’s failure to speak up and disclose the unreported income when authorities investigated. Defendant challenged the enhancement on appeal, and the government conceded error. The Tenth Circuit agreed with the parties that the court erred in applying the obstruction enhancement. Previous cases have held that § 3C1.1 does not apply when defendants simply tell investigators that they did not commit a crime. Defendant did even less than that because her sin was one of omission rather than commission. Her failure to speak up could not serve as the basis for an enhancement under § 3C1.1. U.S. v. Kupfer, __ F.3d __ (10th Cir. July 7, 2015) No. 13-2138. XE “U.S. v. Kupfer, __ F.3d __ (10th Cir. July 7, 2015) No. 13-2138.”
7th Circuit rejects perjury increase where court found that defendant was lying to herself rather than “deliberately” lying. (462) Defendant was convicted of charges arising out of a scheme to defraud mortgage lenders. The PSR recommended an obstruction of justice enhancement based on defendant’s perjury at trial. The district court found, contrary to the PSR, that defendant had not “deliberately or knowingly lied” while testifying, stating that it was “possible” that defendant had lied to herself and “perhaps [came] to believe [her] lies.” Nonetheless, the court still applied an obstruction of justice enhancement, stating “I do not think lying to yourself excuses obstruction of justice.” The government conceded on appeal that the district court erred in applying the enhancement. The Seventh Circuit agreed, since the district court’s finding that defendant did not knowingly and deliberately lie during her testimony directly refuted one of the key elements required for perjury, namely, willful intent. U.S. v. Jackson, __ F.3d __ (7th Cir. June 3, 2015) No. 13-2649.
8th Circuit says uninvited entry into private home supported increase for reckless endangerment during flight. (462) Defendant fled from police in a vehicle going at a high rate of speed. He eventually pulled into a driveway, abandoned his car, and fled on foot. He entered a private home. Nobody was home when defendant entered, but the homeowner later told police that he did not know defendant and did not give him permission to enter the home. The Eighth Circuit upheld a two-level increase under §3C1.2 for reckless endangerment during fight based on defendant’s uninvited entry into a private home. Defendant’s entry created a substantial risk of serious bodily injury to another person that was sufficient to justify the §3C1.2 increase. Although the homeowner was not present when defendant entered the residence, the presence of an uninvited stranger in a home creates a substantial risk of violent confrontation leading to serious injury when the resident returns home or another party enters to investigate. U.S. v. McMahon, __ F.3d __ (8th Cir. Apr. 10, 2015) No. 14-1237.
1st Circuit upholds court’s refusal to consider obstruction enhancement on grounds of unfair surprise. (462) Defendant testified at sentencing that he did not accept any money from his friend Arsenault, and that any money he returned to his victim was his own. The government then produced Arsenault as a witness, and Arsenault rebutted the testimony. Arsenault had made a prior statement to defendant’s counsel that supported defendant’s testimony. The government knew that Arsenault had given a different version of the facts to defense counsel, but did not alert defense counsel to Arsenault’s change in position. The district court refused to decide the perjury question or reach the question of an obstruction of justice enhancement because the government had failed to give notice to defendant of Arsenault’s rebuttal testimony. The First Circuit held that the district court did not abuse its discretion in refusing to consider the obstruction of justice issue on the grounds of unfair surprise. Although as a general matter the government is not required to disclose the names of witnesses who will testify unfavorably to the defendant, nor disclose the contents of their testimony, under these particular circumstances, the panel refused to reverse the trial court’s determination that the government should have given defendant notice of the rebuttal testimony. U.S. v. Walker, 234 F.3d 780 (1st Cir. 2000).
1st Circuit rules defendant did not commit perjury at trial. (462) Defendant was convicted of bankruptcy fraud for failing to disclose in his bankruptcy petition his ownership interest in a house. The district court applied an obstruction enhancement on the grounds that he had perjured himself at trial by denying ownership of the property. The First Circuit reversed, since defendant actually admitted at trial that he was an owner of record and that he failed to disclose his interest to the bankruptcy court. Contrary to what the trial court opined, defendant never lied about these aspects of his conduct. Instead, he tried to justify what he did by claiming that he felt the mortgages and attachments had rendered the property worthless and because, in any event, he verbally had agreed to give his share of any sale proceeds to his ex-wife. The import of this testimony was that he did not think he was legally obligated to list a worthless asset in his bankruptcy filing. Although the jury was entitled to disbelieve defendant’s claim, the mere fact that he tried to explain himself at trial could not alone support an obstruction of justice enhancement. U.S. v. Rowe, 202 F.3d 37 (1st Cir. 2000).
1st Circuit reverses where obstruction did not occur during investigation of instant offense. (462) At his arrest, defendant gave police a false name and social security number. He was originally charged with using a false social security number but the charges were dropped. He was then charged with the unauthorized use of a credit card. The 1st Circuit reversed an enhancement for obstruction of justice based on defendant’s use of a false name at arrest, since at the time he gave the false name, authorities were not investigating the instant offense. Although defendant’s false representations to the arresting officers may have actually and significantly hindered the investigation of the charge involving the false social security number, that charge was dropped. It was only later that the instant offense involving the unauthorized use of the credit cards was investigated and charged. All evidence indicated that the false name did not actually hinder the investigation of the credit card offense. U.S. v. Yates, 973 F.2d 1 (1st Cir. 1992).
1st Circuit reverses obstruction enhancement based upon giving false name to police. (462) Defendant received an enhancement for obstruction of justice because he gave a false name to police officers upon his arrest. The 1st Circuit reversed, since defendant’s conduct did not, as required by application note 4 to guideline section 3C1.1, result in a “significant hindrance” to the investigation. Prior to arresting defendant, authorities were aware that defendant was using a false name, and had probable cause to believe that he was using false social security numbers. One day after his arrest, authorities searched defendant’s apartment and found several documents under defendant’s real name. At this point, they did a criminal records search which revealed defendant’s outstanding bench warrants and his fingerprints. Thus, by the time of his detention hearing five days after his arrest, police were reasonably certain of defendant’s true identity. Moreover, even if defendant had given his true name, under the circumstances police would still have to proceed in a similar manner to confirm his true identity. U.S. v. Manning, 955 F.2d 170 (1st Cir. 1992).
1st Circuit rejects obstruction enhancement because defendant’s statement did not impede investigation. (462) Defendant’s full name was “Jairo Andres Valejo Gonzales,” although all participants in the drug transaction knew defendant simply as “Andres Gonzales.” Although there was some evidence that others knew him as “Jairo Gonzales,” there was no evidence that defendant used this name during the offense or that authorities were misled. He did, however, refuse to acknowledge that he also went by the name of “Jairo Valejo.” He contended that an enhancement for obstruction of justice was improper since he consistently used and answered to the name “Andres Gonzales.” The 1st Circuit found it unnecessary to decide this issue, since the enhancement was improper on other grounds. Application Note 4(b) to section 3C1.1, effective November 1, 1990, makes clear that the obstruction enhancement does not apply to a false statement, not under oath, to law enforcement officers, unless a significant obstruction or impediment of the investigation or prosecution occurs. Here, the investigation or prosecution was not obstructed or impeded. U.S. v. Moreno, 947 F.2d 7 (1st Cir. 1991).
1st Circuit reverses obstruction enhancement based on use of alias to obtain post office box and possession of loaded weapon at time of arrest. (462) Defendant pled guilty for failing to appear for trial on firearms charges. He received an enhancement for obstruction of justice because (a) when he was apprehended, he did not immediately comply with police orders to “get down” and was in possession of a loaded handgun and ammunition, and (b) he had rented a post office box under an alias. The 1st Circuit reversed. Obtaining the post office box to make it more difficult for authorities to locate him was not obstruction because application note 4(d) to the November 1990 version of guideline section 3C1.1 prohibits an adjustment for fleeing from arrest. In addition, possession of a firearm and momentary hesitation in submitting to arrest did not create a risk of death or serious bodily injury as described in section 3C1.2. Although defendant’s conduct came close to the line, something more, such as reaching for the gun, was required. U.S. v. Bell, 953 F.2d 6 (1st Cir. 1992).
1st Circuit reverses obstruction enhancement based on false social security number. (462) Defendant received a two-level enhancement for obstruction of justice because he provided the probation officer with a false social security number. The 1st Circuit reversed, finding that since defendant had been using the false number for some time, it was not material to the investigation. The false number was the same number that defendant used on his tax returns. The number was likely to have helped, rather than impeded, the investigators as they looked for defendant’s prior work history and assets. U.S. v. Tabares, 951 F.2d 405 (1st Cir. 1991).
2nd Circuit reverses court’s finding of willfully false statements in request for attorney. (462) Defendant moved to suppress pellets of cocaine he had ingested that were discovered after an x-ray. His written declaration stated, in part, that prior to giving consent for the x-ray, he requested a lawyer at least seven times. At the suppression hearing, there was conflicting testimony as to whether defendant had requested an attorney, and if he did, how many times he requested an attorney. The district court denied the suppression motion, finding defendant had only requested an attorney once. At sentencing, the judge applied a § 3C1.1 obstruction of justice enhancement. The Second Circuit ruled that the judge committed clear error in finding that defendant willfully made false statements regarding his request for an attorney. There were insufficient details in the statement to support an inference that defendant either must be telling the truth or must be committing perjury. Multiple requests could have been made to different persons. Without details, there was nothing that could be categorically contradicted by the police. Indeed, two of the officers at the suppression hearing were never asked or did not recall how many times defendant requested an attorney, and a third officer’s testimony was contradicted by the other two. U.S. v. Pena, __ F.3d __ (2nd Cir. May 7, 2014) No. 13-1787.
2nd Circuit says defendant could have interpreted officer’s statement to be threat of physical force. (462) Defendant moved to suppress pellets of cocaine he had ingested that were discovered after an x-ray. His written declaration stated, in part, that the officers extracted his consent to the x-ray by threatening physical force. At the suppression hearing, one officer admitted that that at least one other officer told defendant that if he did not sign the consent form they had “other ways” to “make this happen.” The Second Circuit held that it was clear error for the sentencing court to find defendant committed perjury by stating in the written declaration that he had been threatened with physical force. Defendant, who was isolated, surrounded by customs officer, and without counsel, could reasonably put a sinister and threatening cast on the officer’s statement that there were “other ways” to “make this happen.” U.S. v. Pena, __ F.3d __ (2nd Cir. May 7, 2014) No. 13-1787.
2nd Circuit reverses obstruction increase that was based on defendant’s claim of improper questioning. (462) Defendant moved to suppress pellets of cocaine he had ingested that were discovered after an x-ray. His written declaration stated, in part, that several hours prior to a Mirandized interrogation with a DEA agent, he was subjected to off-and-on questioning by customs officers. At the suppression hearing, the customs officers all denied asking him any questions regarding the drugs. The district court found that “at most the defendant may have made the statement to medical clinic personnel that he had swallowed 57 pellets.” The Second Circuit held that defendant’s statement did not warrant an obstruction of justice enhancement because it did not support a finding of willful intent to mislead. Defendant may have reasonably believed that his statement was true. He was handcuffed to the medical center’s bed, and the customs officers frequently came in and out of the room. It may well be, as the district court found, that defendant was responding to questions put by the medical personnel; at the same time, however, defendant had sufficient reason to believe they were connected in some capacity to the customs officers who were also present. U.S. v. Pena, __ F.3d __ (2nd Cir. May 7, 2014) No. 13-1787.
2nd Circuit rejects obstruction increase for texted insult to cooperating witness. (462) After defendant’s arrest, he called Singh repeatedly, and Singh did not answer. Later, Defendant texted Singh, saying “If ur a government witness signal me by not responding to this message. But if ur a friend call me.” Ten days later, defendant texted Singh again, “Pussy.” Singh was, apparently, very threatened by these messages. The Second Circuit rejected an obstruction of justice enhancement, finding the district court’s conclusion that defendant’s texts were threats to be clearly erroneous. With no explicit threat of violence and no history between the two men to suggest that the insult was code for a threat, the statement was not a threat, but merely an expression of a feeling of betrayal. U.S. v. Archer, 671 F.3d 149 (2d Cir. 2011).
2nd Circuit rejects obstruction increase for flight from jurisdiction, use of alias, and change of appearance. (462) After defendant learned that police had executed a search warrant at his residence, he fled across the country and lived there for over a year. He found a job in California using his true name, under which he filed W-2 tax forms, although he later told his employer he wanted to be paid under a different name. At the time of his arrest, he appeared to have gain weight and had grown facial hair. The Second Circuit rejected an obstruction of justice enhancement. Mere disappearance to avoid arrest is insufficient to warrant the obstruction increase – a defendant must engage in additional obstructive conduct. Defendant’s use of a false name while in California was insufficient. The government made no showing that defendant’s use of an alias actually resulted in a significance hindrance to the investigation or prosecution of the instant offense. Law enforcement’s failure to capture defendant for over a year could not, in this case, be attributed to defendant’s cunning. The length of a fugitive’s absence is not prima facie evidence that he obstructed justice. The bulk of the government’s resources was spent pursuing false leads provided by “America’s Most Wanted” viewers, not following defendant on a wild goose chase of his own making. Although defendant’s appearance had changed between the time of his crimes and the time of his apprehension, such changes in weight and facial hair were not necessarily abnormal for defendant. U.S. v. Bliss, 430 F.3d 640 (2d Cir. 2005).
2nd Circuit upholds court’s refusal to apply obstruction increase. (462) The district court refused to apply a § 3C1.1 obstruction of justice increase based on defendant’s trial perjury, stating that the enhancement required it to “find that the defendant not only perjured himself, but [that] he did so with the specific intent to obstruct justice.” The government challenged this, noting that obstructive intent is already an element of perjury. The Second Circuit found no error in the court’s decision not to apply the obstruction increase. The district court did not misunderstand the elements of perjury. The § 3C1.1 enhancement based on perjury requires a court to find that the defendant (1) willfully (2) and materially (3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material matter. The district court’s conclusion that the requisite obstructive intent was not established by a preponderance of the evidence was finding of fact accorded considerable deference. While the government pointed to certain statements by defendant that were not easily attributed to confusion or mistake, the record as a whole did not leave the court with “the definite and firm conviction” that the trial court erred in failing to find obstructive intent established by a preponderance of the evidence. U.S. v. Canova, 412 F.3d 331 (2d Cir. 2005).
2nd Circuit finds insufficient evidence linking defendant to removal of evidence from his office. (462) Defendant was arrested in an office while working on a laptop computer, with numerous documents in the office. The morning after his arrest, agents returned to the office and noticed that many of the documents were missing. The agents later observed defendant’s cousin arrive at the office. He told the agents that “Mohammed” had sent him to clean out the office so that it could be rented. The cousin gave conflicting answers about whether he had been at the office the previous evening and whether he had removed anything from the office. The district court applied an obstruction of justice increase on the theory that defendant was responsible for the office being cleaned out by his cousin. “It is highly improbable that the cousin would have entered what he knew was the defendant’s office and removed the computer he had lent to the defendant, used the defendant’s own personal car, which had in it the defendant’s passport and a large sum of money, at the direction of Mohammed if this cousin were not confident that any direction from Mohammed was made at the defendant’s request.” The Second Circuit reversed, finding insufficient evidence linking defendant to the removal of evidence from his office. First, the fact that defendant’s cousin was driving defendant’s car with his passport and money in it was not as significant in light of defendant’s wife’s uncontested testimony that she had given the cousin her purse containing the bail money and defendant’s passport after she went to see defendant’s lawyer. There also was any number of plausible explanations for why the cousin removed the laptop from defendant’s office. U.S. v. Khedr, 343 F.3d 96 (2d Cir. 2003).
2nd Circuit rejects obstruction increase where court did not resolve dispute or make findings about defendant’s mental state. (462) After being arrested on drug charges, defendant was released on bond in anticipation of his cooperation with the DEA. He maintained regular contact with the DEA for about 2 months, at which point he disappeared. Defendant left the jurisdiction for a short period of time, allegedly to visit his mother. Defendant objected to the PSR’s recommendation that he receive an obstruction of justice increase, explaining that he ceased cooperating with the DEA after he felt he was being put in danger. In response, the government maintained that the agent never placed defendant in harm’s way, and that it was defendant who put himself in danger. The district court did not take any testimony on this matter. It refused to grant the acceptance reduction and instead imposed an obstruction of justice increase. The Second Circuit remanded because the district court did not resolve the dispute or make the necessary finding concerning defendant’s mental state. The only conduct the court identified as obstructive was defendant’s failure to maintain regular contact with the DEA agents and his leaving the jurisdiction. The court could not rely on defendant’s failure to cooperate in another case in which he was not a defendant and the case was not “otherwise closely related.” U.S. v. Brown, 321 F.3d 347 (2d Cir. 2003).
2nd Circuit reverses obstruction enhancement under Dunnigan. (462) Under U.S. v. Dunnigan, 507 U.S. 87 (1993), if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful obstruction of justice. The district court here made no finding on the record as to the factual basis for the obstruction enhancement. The court recited that it was “adopt[ing] the factual statements contained in the presentence report and den[ying] the objections made by [defendant]”. Although the Second Circuit has not yet ruled on whether a district court’s adoption of the findings of a PSR is sufficient to satisfy Dunnigan, it did not resolve this issue here since the findings in defendant’s PSR were “wholly insufficient” under Dunnigan to support the obstruction enhancement. In one place, the PSR said: “The probation officer has no information that the defendant impeded or obstructed justice.” Then, in another place, without acknowledging the contradiction, the PSR recommended the obstruction increase, stating that defendant committed perjury by denying his guilt under oath at trial. Thus, the PSR treated defendant’s denial of guilt under oath as tantamount to obstruction of justice, which is just what Dunnigan findings are intended to avoid. U.S. v. Ben-Shimon, 249 F.3d 98 (2d Cir. 2001).
2nd Circuit says defendant did not commit perjury by stating that he entered plea under coercion. (462) Defendant moved to withdraw his guilty plea and proffered an affidavit stating that his former attorney had coerced him into pleading guilty. The affidavit then recounted the events that in his view amounted to the attorney’s coercion, including being ill-prepared for trial, repeatedly predicting that a jury would convict him, and advising defendant that he would receive more jail time if he went to trial rather than agree to a plea. The attorney’s version of events was, except with regard to the adequacy of his trial preparation, not greatly different. The district court found that defendant committed perjury when he stated that he pled guilty “under coercion” and applied an obstruction of justice enhancement. The Second Circuit reversed. Although defendant was not “coerced” to plead guilty in a legal sense, it was clear from reading the affidavit as a whole that he was using the word “coerced” in a layman’s sense, and was simply but truthfully describing the reasons for his agreeing to the plea. U.S. v. Juncal, 245 F.3d 166 (2d Cir. 2001).
2nd Circuit holds that willfulness findings were insufficient for obstruction increase. (462) After being released pending sentencing, defendant left the jurisdiction in violation of his terms of release, was arrested and jailed in another state for drunk driving, and as a result was not available for any court date that may have been scheduled. The PSR recommended an obstruction of justice increase because defendant “jumped bail as he failed to appear in Court.” After initially expressing doubt as to whether defendant’s conduct could be characterized as “willful,” the district court applied a § 3C1.1 obstruction of justice increase. The Second Circuit reversed, because the record did not contain a clear and specific finding that defendant intended to obstruct justice. The court’s finding that defendant “knowingly and willfully” violated the terms of his release by leaving the jurisdiction was not a finding of specific intent to obstruct justice. There was no specific finding that defendant left the jurisdiction with the intent to miss a court appearance or to otherwise obstruction the administration of justice. Moreover, although the PSR said that defendant “jumped bail,” this was incorrect. Defendant never failed to appear in court, and thus did not commit the offense known as “bail jumping.” U.S. v. Woodard, 239 F.3d 159 (2d Cir. 2001).
2nd Circuit reverses for failing to find perjury by clear and convincing evidence. (462) At sentencing, the district court applied a § 3C1.1 enhancement for committing perjury at trial. The Second Circuit reversed since the court did not determine whether defendant committed perjury by clear and convincing evidence. The court stated that it would not have concluded beyond a reasonable doubt that defendant committed perjury, but that on a preponderance standard, it would. However, trial perjury must be found by clear and convincing evidence to justify the obstruction of justice enhancement. [Ed. Note: Application Note 1 to § 3C1.1 was amended on November 1, 1997, so that it no longer suggests the use of a heightened standard of proof. Instead, it clarifies that the court should be mindful that not all inaccurate testimony or statements reflect a willful attempt to obstruct justice.] U.S. v. Gabriel, 125 F.3d 89 (2d Cir. 1997), overruling on other grounds recognized by U.S. v. Quattrone, 441 F.3d 153 (2d Cir. 2006).
2nd Circuit remands to decide whether perjury in related civil matter was material to criminal prosecution. (462) Defendant was convicted of RICO charges, wire fraud and money laundering in connection with illegal dumping at a landfill. The district court imposed an obstruction of justice enhancement based on defendant’s perjury in a civil enforcement action brought by the Pennsylvania Department of Environmental Resources. The Second Circuit agreed that perjury in the related civil action could constitute obstruction of justice in the instant federal offense. The district court’s finding that defendant committed perjury and was motivated by the existence of the federal investigation satisfied the willfulness requirement of a § 3C1.1 enhancement for perjury. However, the court failed to address the materiality prong. The district court must find the perjured testimony was material to the instant federal offense before applying a § 3C1.1 enhancement. U.S. v. Zagari, 111 F.3d 307 (2d Cir. 1997).
2nd Circuit upholds refusal to apply obstruction of justice enhancement. (462) The district judge originally found that the predicates for perjury existed and indicated his intent to apply an obstruction of justice enhancement. At sentencing, however, the judge expressed concern over the certainty of his finding that defendant participated in additional offenses. Noting that a higher standard than a preponderance of the evidence applies to perjury findings, the judge found he did not have the “firmness of conviction” necessary to find the factual predicates of perjury. The Second Circuit upheld the judge’s refusal to apply the obstruction of justice enhancement. A district court may make findings as to relevant conduct by a preponderance of the evidence yet properly refuse to find that the defendant, in testifying to the contrary, committed perjury if the government’s proof did not sufficiently exceed the preponderance standard. The judge here properly construed the evidence in defendant’s favor and declined to impose the enhancement. U.S. v. Ruggiero, 100 F.3d 284 (2d Cir. 1996).
2nd Circuit finds insufficient evidence that defendant sought to intimidate witness. (462) The district court applied an obstruction of justice enhancement, finding defendant had attempted to intimidate witnesses. The Second Circuit reversed, finding the evidence insufficient. The fact that defendant called one witness “the devil” and said she would “stare” the witness “down” at trial did not amount to a threat. Defendant’s attempt to communicate with the witness at the first trial was insufficient without some showing of evil intent. Although another witness recanted his testimony at trial after speaking with defendant’s uncle, there was no evidence about what was said, and nothing linked defendant personally to this incident. Defendant’s “screaming and hollering” at another witness when she learned he had testified against her showed no more than fury. The threats made by a male caller on one witness’s answering machine after defendant was convicted showed an attempt to obstruct justice, but no evidence linked defendant to the call. Defendant’s post‑trial statement to one witness of “die, die, die” may not have been stated with an intent to obstruct justice. Defendant may have simply wished the witness dead. U.S. v. Hernandez, 83 F.3d 582 (2d Cir. 1996).
2nd Circuit reverses for failure to find that defendant knowingly made false statement under oath. (462) Defendant was arrested after meeting a drug courier at the airport. Upon his arrest, he told police that the courier looked “hot” and he was just trying to pick up a fare. At trial, he admitted this was a lie, but testified that he went to the airport to meet the courier in hopes of a sexual encounter. He denied knowing she had imported cocaine into the country. The district court imposed an obstruction of justice enhancement. The Second Circuit reversed because the court did not find that defendant knowingly made a false statement under oath. The court could not rely on defendant’s statement to the arresting officer. A materially false statement to police is obstruction only when it significantly impedes the investigation. Defendant’s denials to the officer did not do this. U.S. v. Williams, 79 F.3d 334 (2d Cir. 1996).
2nd Circuit holds that fact-finding did not support obstruction enhancement. (462) Defendant was convicted of drug charges. At trial, he testified that he did not know of the conspiracy or of the presence of drugs in the car in which he was a passenger. The district court imposed a § 3C1.1 enhancement, finding defendant’s testimony was a “material falsehood.” The Second Circuit found that the court’s findings did not support the obstruction enhancement. Separate findings of fact regarding the alleged perjury are encouraged but not required as long as the general finding of obstruction tracks those factual predicates necessary to support a finding of perjury. Here, the district court did not include specific factual findings or language indicating that the factual predicates were established. Moreover, this was not a case where the testimony was so “inherently unbelievable” that the factual predicates were obvious. U.S. v. Catano-Alzate, 62 F.3d 41 (2d Cir. 1995).
2nd Circuit remands because court did not find that obstructive conduct was willful. (462) At sentencing, the government requested an obstruction of justice enhancement based on (a) defendant’s failure to appear for sentencing, (b) his attempt to escape when officers attempted to arrest him one month later, (c) his leaving his residence and failing to report to authorities, and (d) his failure to turn himself in after learning that his sentencing date had passed. The district court imposed the enhancement even though defendant denied he had the requisite intent with respect to any of these grounds, and gave explicit explanations for most of them. The Second Circuit remanded because the district court did not reveal on which conduct the enhancement was based and made no findings that the conduct it believed was obstructive was willful. U.S. v. Reed, 49 F.3d 895 (2d Cir. 1995).
2nd Circuit rejects obstruction enhancement where convictions other than witness tampering were reversed. (462) Defendant was convicted of mail fraud, witness tampering, and related counts. Defendant challenged his convictions, and the government cross-appealed the court’s failure to impose an obstruction of justice enhancement. On appeal, his mail fraud convictions were reversed. The Second Circuit noted that with the elimination of the mail fraud convictions, the obstruction of justice enhancement could now apply only to the witness tampering count. This enhancement is prohibited by note 6 to § 3C1.1. U.S. v. Altman, 48 F.3d 96 (2d Cir. 1995).
2nd Circuit remands for independent findings of perjury to support obstruction enhancement. (462) The district court enhanced defendant’s sentence for obstruction of justice, noting that the jury made a finding of perjury in its verdict “because [defendant] claimed he was a totally innocent man, and the jury decided otherwise.” The judge also assured the parties that any enhancement would be “based on the evidence that was at the trial.” The Second Circuit remanded for independent findings on the elements of the perjury violation, as required by U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). U.S. v. Scotti, 47 F.3d 1237 (2d Cir. 1995).
2nd Circuit remands for factual findings to support obstruction enhancement. (462) The district court enhanced defendant’s sentence under § 3C1.1 for an “attempt to influence the outcome of the trial.” Because the court’s finding did not explain the basis of the enhancement, defendant and the government agreed that the case should be remanded for factual findings. Since the case was being remanded on other grounds, the Second Circuit merely noted that if the adjustment was based on defendant’s attempt to have a conspirator lie to the FBI, the court must find that defendant “consciously acted with the purpose of obstructing justice.” The court also called to the district court’s attention Note 1 to § 3C1.1 and the heightened standard of proof on this issue. U.S. v. Amato, 46 F.3d 1255 (2d Cir. 1995).
2nd Circuit rejects obstruction enhancement based on false denials of guilt. (462) Defendant made four false statements or omissions to his probation officer. He answered “no” to a general question regarding his involvement in other drug transactions, he did not mention his involvement with a particular drug supplier, he denied purchasing cocaine from a second supplier, and he denied purchasing cocaine from a third supplier. The 2nd Circuit held that all of these statements or omissions were denials of guilt, and thus not grounds for an obstruction enhancement under note 1 to § 3C1.1. The first statement was a pure denial of guilt. Defendant’s silence fell within note 1 as a “refusal to admit guilt or provide information to a probation officer.” The last two statements were also denials of guilt. Although all of defendant’s statements could be viewed as an attempt to obstruct justice, they could also be an attempt to avoid implicating himself in uncharged crimes. Judge Altimari dissented. U.S. v. Johns, 27 F.3d 31 (2nd Cir. 1994).
2nd Circuit says no findings are required to reject obstruction enhancement. (462) The government argued that because defendant’s testimony was rejected by the jury’s guilty verdict, the district court was obligated to find whether defendant committed perjury, and if so, to enhance his sentence. The 2nd Circuit held that a district court is not required to make findings justifying its decision not to impose the obstruction enhancement. The Supreme Court in U.S. v. Dunnigan, 113 S.Ct. 1111 (1993) did not say that every time a defendant is found guilty despite his exculpatory testimony, the court must hold a hearing to determine whether or not the defendant committed perjury. U.S. v. Vegas, 27 F.3d 773 (2nd Cir. 1994).
2nd Circuit reverses obstruction because court did not construe statement in defendant’s favor. (462) Defendant received an obstruction of justice enhancement based on his statement to a co-conspirator that he believed the government had entrapped them, that they should not speak with the government, and that they should cooperate. The 2nd Circuit reversed, ruling that the district court did not construe this ambiguous statement in the light most favorable to defendant, as required by application note 1 to section 3C1.1. Before such a statement is used to justify an enhancement, a sentencing judge should be satisfied that the statement is really misconduct deserving of punishment. Defendant’s statement was highly ambiguous. Although the government construed it as an invitation to cooperate in presenting a bogus defense, it could also be interpreted as a suggestion that the co-conspirator should say nothing to authorities until they had the opportunity to discuss their common predicament. U.S. v. Lew, 980 F.2d 855 (2nd Cir. 1992).
2nd Circuit holds that obstruction of justice has stricter standard than preponderance. (462) The district court imposed an enhancement for obstruction of justice based on its earlier finding that defendant had testified untruthfully at a suppression hearing. The 2nd Circuit remanded for resentencing, ruling that a district court cannot automatically impose an obstruction enhancement whenever a defendant’s testimony has been rejected by a judge or jury. Application note 1 to section 3C1.1 has been interpreted as instructing the sentencing judge to resolve in favor of the defendant those conflicts about which the judge has no firm conviction. This standard is more favorable to the defendant than the preponderance of the evidence standard. If the district court must apply a more rigorous standard in evaluating a defendant’s testimony for sentencing purposes, then the court may not automatically impose an obstruction enhancement whenever a defendant’s testimony has been rejected by a judge or jury. The district court must make an independent finding, applying the standard prescribed by section 3C1.1. U.S. v. Cunavelis, 969 F.2d 1419 (2nd Cir. 1992).
2nd Circuit reverses increase in perjury offense level, finding no interference with the administration of justice. (462) Defendant was convicted of lying to a grand jury and obstruction of justice. The district court increased her base offense level three levels pursuant to U.S.S.G. 2J1.3(b)(2), on the ground that she had substantially interfered with the administration of justice by causing the unnecessary expenditure of substantial government and court resources. The 2nd Circuit reversed. The district court made no specific findings that defendant’s perjury had resulted in a substantial expenditure of government resources. Moreover, defendant provided substantial evidence that the government already had the information defendant had concealed. Finally, defendant’s perjury, standing alone, did not constitute the type of egregious conduct envisioned by the guidelines as substantial interference with the administration of justice. U.S. v. Jones, 900 F.2d 512 (2nd Cir. 1990).
2nd Circuit holds that immediate flight from arrest is not “obstruction of justice.” (462) Defendant was arrested after a long foot chase. At sentencing, the district court enhanced the base offense level by two levels for obstruction of justice pursuant to guideline § 3C1.1. The 2nd Circuit reversed, holding that “mere flight from arrest, by itself, does not constitute obstruction” within the guideline § 3C1.1. The flight of a defendant to avoid arrest is a “national attempt to avoid apprehension, not a willful attempt to impede or obstruct justice as contemplated by guideline § 3C1.1.” Defendants who flee arrest are not equivalent to defendants who voluntarily surrender because a judge can impose a maximum sentence in a guideline range on one who flees while sentencing those who surrender voluntarily to the minimum. U.S. v. Stroud, 893 F.2d 504 (2nd Cir. 1990).
3rd Circuit says reckless endangerment requires “some form of direct or active participation.” (462) Defendant pled guilty to armed robbery. Rather than submit to an attempted traffic stop, the driver of the getaway car engaged police in a high-speed chase through residential neighborhoods. Eventually, defendant and an accomplice got out and fled on foot, after which the driver continued his reckless driving. Based on the high-speed chase, the district court applied a § 3C1.2 enhancement for recklessly endangering others while fleeing from law enforcement officers. The Third Circuit reversed. Note 5 to § 3C1.2 states that defendant is accountable for his own conduct and for conduct that he “aided and abetted, counseled, commanded, induced, procured, or willfully procured.” Thus, Note 5 makes clear that “some form of direct or active participation” is necessary for the § 3C1.2 increase to apply. The court here enhanced defendant’s sentence based upon the mere foreseeability of the driver’s reckless driving. This was insufficient as a matter of law. U.S. v. Cespedes, 663 F.3d 685 (3d Cir. 2011).
3rd Circuit reverses district court’s finding that defendant committed perjury. (462) Defendant was convicted of possessing child pornography. At trial, defendant was asked whether he had any sadomasochistic pictures. Defendant responded: “Not that I’m aware of, no.” At sentencing, the district court found that five pictures introduced by the government “could fairly be described as sadomasochistic pornography,” and defendant’s testimony that he was not aware of having any sadomasochistic images constituted perjury. The Third Circuit reversed. The government’s question lacked adequate precision to support the perjury finding. The government sought to elicit testimony concerning five specific files, depicting adults that were found on a zip disk containing 1200-1400 image files. The government did not provide defendant with notice that it was these five images to which it was referring, and made no effort to refresh his recollection by showing him copies of the images. Moreover, even if defendant had been aware that he possessed the five images to which the government was alluding, the term “sadomasochistic” is both contested and context-dependent. The panel also ruled that the testimony did not concern a “material matter,” holding that a defendant’s taste for an unusual genre of adult pornography was not material to his interest in child pornography. U.S. v. Miller, 527 F.3d 54 (3d Cir. 2008).
3rd Circuit rejects § 3C1.1 increase because production of false birth certificate was part of charged offense. (462) While in federal prison, defendant informed the INS on several occasions that he was a citizen of the Virgin Islands and thus a U.S. citizen. Several months later, he gave a Bureau of Prisons official a forged birth certificate from the Virgin Islands. The document was forwarded to the INS, who found that it was a forgery. Defendant pled guilty to falsely representing himself to be a citizen of the U.S., in violation of 18 U.S.C. § 911. The district court applied an obstruction of justice increase under Note 4(c) to § 3C1.1 because defendant attempted to hinder the INS investigation by producing a counterfeit birth certificate. The Third Circuit reversed, ruling that defendant’s production of the false birth certificate was part of his underlying charged offense. The court agreed with the Eighth Circuit’s view that § 3C1.1 does not apply to conduct that is part of the crime itself.” U.S. v. Lloyd, 947 F.3d 339 (8th Cir. 1991). The production of the counterfeit birth certificate to federal authorities occurred within the period cited in the indictment and constituted a false representation that violated § 911. Because it was coterminous with the offense to which defendant pled guilty, it could not be the basis of an obstruction increase. U.S. v. Clark, 316 F.3d 210 (3d Cir. 2003).
3rd Circuit says obstruction guidelines does not require defendant be aware of investigation at time of obstruction. (462) On three separate occasions, November 6, 1996, March 19, 1997, and March 4, 1999, defendant failed to appear in state court on firearms charges. On March 3, 1999, a federal prosecutor began preparing a federal complaint against him. The district court imposed an obstruction of justice increase based on defendant’s failure to appear in state court. Defendant argued that he was incapable of “willfully” obstructing justice because he was unaware of the federal investigation on March 4. The Third Circuit held that the obstruction guideline does not require a defendant be aware of the federal investigation at the time of the obstructive conduct. The ordinary meaning of “willfully” is “deliberately or intentionally”; in other words, “not negligently, inadvertently, or accidentally.” Defendant’s failure to appear in state court was an intentional action, taken with full awareness of the proceedings. Nonetheless, the enhancement was improper here, since there was no evidence that the federal proceedings were obstructed or impeded in any way by defendant’s conduct. Defendant’s failure to appear in state court before his federal indictment had no effect whatsoever on the later federal proceedings. Without some nexus between the obstruction and the federal offense, § 3C1.1 is inapplicable. U.S. v. Jenkins, 275 F.3d 283 (3d Cir. 2001).
3rd Circuit rejects obstruction enhancement or departure even though defendant misled investigators about another offense. (462) Defendant was convicted of two armored truck robberies. The district court enhanced his sentence for obstruction of justice because he had given the government misleading information to avoid implicating his friends in a third armored truck robbery. The 3rd Circuit reversed, since the obstruction enhancement applies only when the defendant has obstructed or tried to obstruct the investigation, prosecution or sentencing of the offense of conviction. Moreover, defendant’s obstruction of justice was not a proper ground for an upward departure. Notes 3(g) and 4(b) demonstrate that the Sentencing Commission considered false statements like those involved here, and elected not to punish them as part of the conviction for the instant offense. U.S. v. Woods, 24 F.3d 514 (3rd Cir. 1994).
3rd Circuit reverses obstruction enhancement where defendant transferred his interest in house subject to forfeiture. (462) The district court imposed an enhancement for obstruction of justice based in part upon defendant’s quit-claim of his interest in a residence to his wife, knowing that the house was subject to forfeiture. The 3rd Circuit reversed, ruling that the government failed to prove by a preponderance of the evidence that defendant “willfully” attempted to obstruct justice. The only references in the record as to why defendant quit-claimed his interest was his counsel’s statement that it was done in an effort to resolve defendant’s ongoing marital problems concerning a separation agreement with his estranged wife. There was no finding by the district court that defendant acted willfully. Moreover, the government conceded that the quit-claim deed would have no real effect on the government’s ability to gain the property through forfeiture. U.S. v. Belletiere, 971 F.2d 961 (3rd Cir. 1992).
3rd Circuit rejects adjustment for misrepresentation to probation about drug use. (462) The district court imposed an enhancement for obstruction of justice based in part upon defendant’s misrepresentation to his probation officer that he never personally used drugs. Defendant subsequently tested positive for cocaine use during a random drug test while he was free on bail. The 3rd Circuit rejected this as a proper ground for an obstruction enhancement. The commentary to section 3C1.1 makes it clear that the section’s focus is on willful acts or statements intended to obstruct or impede the government’s investigation of the offense at issue. Defendant’s misstatement had nothing to do with the offenses for which he was convicted, and was not material to the probation officer’s investigation of this particular case. Judge Alito dissented from this portion of the opinion. U.S. v. Belletiere, 971 F.2d 961 (3rd Cir. 1992).
4th Circuit reverses obstruction increase because court did not find necessary factual predicates. (462) The district court applied an obstruction enhancement based on defendant’s perjurious testimony at trial. The court noted that the jury “disbelieved” defendant’s testimony, and thus “determined that he did not testify truthfully at trial.” The Fourth Circuit reversed and remanded for resentencing, ruling that the court did not find the necessary factual predicates to impose the obstruction of justice enhancement. To impose the obstruction increase based on perjurious testimony, the court must find that the defendant (1) gave false testimony; (2) concerning a material matter; (3) with willful intent to deceive. Although the court found that defendant’s testimony was false, there was no indication that the false testimony concerned a material matter or that it was willfully given. U.S. v. Perez, 661 F.3d 189 (4th Cir. 2011).
4th Circuit holds that sentence five months in excess of that authorized by jury verdict constituted plain error. (462) Defendant argued for the first time on appeal that the district court erroneously enhanced his sentence under § 3C1.1 for subornation of his wife’s perjured trial testimony. The Fourth Circuit found that the enhancement met plain error standards, and remanded for resentencing. The enhancement was error – it resulted in a sentence exceeding the maximum authorized by the jury verdict pursuant to the then-mandatory guidelines. The error was plain, since it was plain at the time of appellate consideration. The error was prejudicial, since defendant’s sentence was greater than the maximum authorized by the facts found by the jury alone. Finally, the panel chose to exercise its discretion to notice the error because it “seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceedings.” The constitutional error committed by the district court, sentencing defendant based on facts not found by the jury, added at least five months to defendant’s sentence. There was no way of knowing how the district court would have sentenced defendant had it been operating under the advisory guidelines as established by Booker. U.S. v. Washington, 398 F.3d 306 (4th Cir. 2005).
4th Circuit rules that erroneous obstruction enhancement was harmless error. (462) The district court enhanced defendant’s sentence for obstruction of justice after finding he had testified falsely at trial. Defendant argued that the district court failed to make the factual findings required by U.S. v. Dunnigan, 506 U.S. 87 (1993). The Fourth Circuit agreed that the court’s findings were inadequate, but found the error harmless. Even without the adjustment, defendant’s guideline range would exceed the statutory maximum sentence of 60 months, the sentence imposed by the district court. U.S. v. Stotts, 113 F.3d 493 (4th Cir. 1997).
4th Circuit remands because court failed to make specific perjury findings. (462) Defendant objected to the government’s request for a § 3C1.1 enhancement based on his perjury. After listening to the government’s arguments, the district court simply stated that it would deny defendant’s objection. The Fourth Circuit remanded because the district court failed to make the specific factual findings of perjury required by U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). The court did not specifically find each of the three elements of perjury, as the Supreme Court deemed preferable and as other courts have done in Dunnigan’s wake. U.S. v. Smith, 62 F.3d 641 (4th Cir. 1995).
4th Circuit rejects obstruction enhancement for threat against witness made to a third party. (462) Defendant received an enhancement for obstruction of justice based upon a deputy marshal’s testimony that he overheard defendant make a threat to a third party against a witness. There was no suggestion in the record that the witness either heard or was ever informed of this threat. The 4th Circuit reversed the enhancement, since section 3C1.1 requires that the defendant either threaten the witness his presence or issue the threat in circumstances in which there is some likelihood that the witness or juror will learn of the threat. Here, there was no evidence in the record that the witness ever learned of this threat. On remand, the district court was free to consider whether an enhancement was proper based upon the presentence report’s description of an incident in which defendant directly threatened the witness. U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992).
5th Circuit finds omission of financial information material but remands for willfulness finding. (462) During the presentence investigation, defendant failed to disclose that she had previously filed for bankruptcy, and that during 2005 and 2006, she had earned between $4500-5500 as a hairstylist. Based on these omissions, the district court applied a two-level obstruction of justice increase under § 3C1.1. The Fifth Circuit agreed that the omission was material for purposes of the obstruction enhancement, but remanded for the court to determine whether the omission was willful. Material information is that which “if believed, would tend to influence or affect the issue under determination.” Note 6 to § 3C1.1 Although the omitted financial data may not have had any actual effect on defendant’s fine or restitution amounts, it was the kind of information which would “tend to influence” those determinations. However, the court’s factual findings did not appear to include the factual predicates of a willful false statement. Further, the court made an affirmative finding of “some confusion” on defendant’s part. U.S. v. Miller, 607 F.3d 144 (5th Cir. 2010).
5th Circuit finds insufficient evidence of reckless endangerment based on flight on foot. (462) Defendant was present in a house when police and a SWAT unit executed a search warrant for drugs. Defendant ran through the back door and fled on foot. An officer outside the home saw defendant running, pointed his weapon at defendant and yelled for defendant to stop. Defendant ran past the officer. Others on the team joined the chase and soon captured defendant. The Fifth Circuit held that there was insufficient evidence to support a § 3C1.2 increase for reckless endangerment during flight. The record was unclear on how far defendant ran, although the government stipulated that it was a “short” chase. There also was no description of the area where the case occurred, although the area was described as a grassy field. The panel rejected the argument that fleeing despite the fact that armed officers were instructing him to stop justified an inference that defendant was acting recklessly. There was no evidence defendant heard the officers order him to stop or that he reacted in a threatening way or made any threatening actions towards the officers. The record was too sparse to determine whether defendant was reckless. U.S. v. Gould, 529 F.3d 274 (5th Cir. 2008).
5th Circuit finds insufficient nexus between robbery and police chase to support reckless endangerment increase. (462) Section 3C1.2 provides for a two-level increase if the defendant “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” Defendant argued that a nexus is required between the conduct triggering § 3C1.2’s application and the underlying offense of conviction. The Fifth Circuit agreed that a nexus was required, in light of § 1B1.3’s express requirement that Chapter Three adjustments be based upon acts or omissions occurring during the offense of conviction, the preparation for the offense of conviction, or the course of attempting to avoid detection or responsibility for the offense of conviction. Here, defendant’s reckless endangerment conduct was insufficiently connected to his bank robbery offense. Defendant committed the bank robbery a full two months before his flight from police. At the time of his flight, defendant and his passenger drove a stolen rental car. The passenger possessed controlled substances, heroin and cocaine. This was compelling evidence that defendant evaded officers in order to avoid detection and responsibility for the offense of either car theft or drug possession. Neither of these ongoing offenses were related in any way to the bank robbery. The temporal connection was too attenuated to support the application of § 3C1.2 in light of the evidence indicating that defendant was fleeing to avoid apprehension for two unrelated contemporaneous offenses. U.S. v. Southerland, 405 F.3d 263 (5th Cir. 2005).
5th Circuit remands where court did not make finding that defendant procured sister’s false testimony. (462) Defendant was indicted for being a felon in possession of a firearm after police found a firearm between the mattress and box spring of a bed at her house. During trial, defendant’s twin sister testified that she had placed the gun in a gun case between the mattress and the box spring. A rebuttal witness testified that defendant’s sister told her that she was going to take the blame for defendant’s gun charge. The district court applied an obstruction of justice increase, indicating that it believed that the sister perjured herself and that defendant knew her sister lied. The Fifth Circuit remanded because the district court’s findings were inadequate to encompass the factual predicates for suborning perjury. The court found only that the sister lied and defendant knew the sister lied. The judge did not identify the false testimony, identify a material issue, find that the sister testified with willful intent, or find that defendant procured her sister’s false testimony. U.S. v. Johnson, 352 F.3d 146 (5th Cir. 2003).
5th Circuit rules that failure to challenge obstruction enhancement on appeal was ineffective assistance. (462) Defendant alleged in a § 2255 petition that his trial counsel was ineffective in failing to challenge an obstruction of justice enhancement on appeal. The Fifth Circuit agreed. The enhancement was based on false statements defendant made to arresting officers. In general, “making false statements, not under oath, to law enforcement officers” is not obstructive. See Note 4(b) to § 3C1.1. While “providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense” justifies the increase, see Note 3(g), defendant’s statements did not significantly obstruct the investigation. His claim that he had poor memory and his denial of ownership of his car did not relate to the drug investigation at all. Those that did relate—defendant’s claim not to know who owned the drugs or the station wagon he was driving and his refusal to clarify his relationship with his common-law wife—were mere denials of guilt. Thus, a challenge to the enhancement would have been meritorious and appellate counsel was deficient for not raising it on appeal. Defendant was prejudiced by counsel’s error. The enhancement increased defendant’s offense level from 32 to 34, placing him in a sentencing range of 151-188 months. Had the enhancement not applied, his range would have been 121-151 months. U.S. v. Phillips, 210 F.3d 345 (5th Cir. 2000).
5th Circuit rejects obstruction enhancement for pre-investigation conduct. (462) Defendant, a former deputy sheriff, violated an arrested woman’s civil rights by kicking her in the head. At the scene of the arrest, defendant warned several officers to keep silent about what they saw. Fifth Circuit precedent limits the application of § 3C1.1 to conduct occurring “during the investigation of the instant offense.” A 1990 amendment to the § 3C1.1 commentary states that the enhancement applies to conduct that violates the federal obstruction of justice statute. The government argued that this amendment showed that the Sentencing Commission did not intend to bar consideration of obstructive conduct that occurred before the beginning of an investigation. The Fifth Circuit held that the plain language of § 3C1.1 limits the enhancement to conduct occurring during the investigation of the offense. To the extent note 3(i) conflicts with the plain language of § 3C1.1, the guideline must be followed. However, the commentary can be interpreted so as not to conflict with the guideline. Note 3(i) merely describes a type of conduct that is subject to the guideline. Thus, conduct that violates the federal obstruction statute only warrants application of § 3C1.1 when such conduct occurs “during an investigation of the defendant’s instant offense.” U.S. v. Clayton, 172 F.3d 347 (5th Cir. 1999).
5th Circuit holds “willful” failure to appear must be conscious and deliberate. (462) Defendant failed to appear in El Paso for trial at 9 am. At that time, defense counsel informed the court that he had received a call from defendant indicating that he would be late arriving to court. Defendant was arrested later that morning as he arrived at the El Paso airport. He contended that he arrived from Houston, where he lived, to attend court. Note 3 to § 3C1.1 provides that willfully failing to appear as ordered for a judicial proceedings constitutes obstruction of justice. The Fifth Circuit held that the term “willful” requires that the defendant consciously and deliberately fail to appear for trial. The § 3C1.1 enhancement for obstruction of justice would be appropriate for defendant’s tardiness only if defendant voluntarily and intentionally failed to appear for trial. The court did not find that defendant’s tardiness was willful. U.S. v. O’Callaghan, 106 F.3d 1221 (5th Cir. 1997).
5th Circuit rejects obstruction enhancement for accessory after the fact. (462) Defendant was convicted of being an accessory after the fact to a bank robbery that culminated in the murder of a woman who happened to be at the robbers’ rendezvous point. The PSR, which was adopted by the district court, recommended an obstruction of justice enhancement because defendant burned evidence, hid money, and told a girlfriend of one of the conspirators that if she cooperated with the FBI it would “be her butt.” The Fifth Circuit remanded because neither the PSR nor the court determined whether such actions constituted a significant further obstruction over and above the accessory offense itself. Note 6 to § 3C1.1 states that where the defendant is convicted for an offense covered by the accessory after the fact guideline, the obstruction enhancement is not applicable except where a “significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself.” None of the conduct cited in the PSR appeared distinguishable from the conduct upon which the accessory after the fact charge was based. U.S. v. Harris, 104 F.3d 1465 (5th Cir. 1997).
5th Circuit holds that adoption of PSR did not satisfy Dunnigan where report inaccurately characterized trial judge’s findings. (462) The district court enhanced defendants’ sentence for trial perjury, adopting the PSR’s finding that one defendant falsely stated that his confession was obtained by coercive tactics, and both defendants lied about being beaten by Border Patrol agents and about the details of the offense. The 5th Circuit remanded for further findings required by U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). The testimony about being beaten by Border Patrol agents was not material, since it had no bearing on defendants’ guilt or innocence. The lie about the coerced confession was material, and the court made adequate findings to support the enhancement for this defendant. However, the court did not make sufficient findings to support its conclusion that the other defendant lied about the details of the offense. The presentence report, adopted by the sentencing court, purported to characterize the findings of the trial judge. However, the trial judge made no finding that defendants lied about the offense. He only found that defendants’ accusation of impropriety against the agents were patently false. U.S. v. Cabral-Castillo, 35 F.3d 182 (5th Cir. 1994).
5th Circuit vacates enhancement that may have been based on evidence from cooperation. (462) Defendant argued that in imposing an obstruction of justice enhancement, the district court unlawfully relied on evidence obtained pursuant to his cooperation agreement with the government. The enhancement was based on the court’s finding that defendant removed a loan file from a lender he defrauded to hinder the government’s investigation. The 5th Circuit vacated the enhancement because the government could not show that it received the loan file from a co-conspirator, as it contended, rather than from defendant, as he contended. The government also failed to demonstrate that it knew, prior to executing the plea agreement, that defendant had removed the loan file. U.S. v. Wilder, 15 F.3d 1292 (5th Cir. 1994).
5th Circuit rejects obstruction enhancement for denial of involvement in escape attempt. (462) Defendant and two other inmates made an aborted effort to escape from prison. When prison officials questioned defendant about the damaged window near his bunk, defendant stated that he had nothing to do with the escape attempt. However, he admitted his guilt after blisters and cuts were found on his hands and other inmates told jail officials that they had witnessed defendant’s attempts to remove the window. The 5th Circuit reversed an enhancement for obstruction of justice based on defendant’s initial statement to officials that he had nothing to do with the escape attempt. Defendant’s statement was fairly described as a mere “denial of guilt” within the meaning of section 3C1.1. Moreover, a false statement made by a defendant to law enforcement officers cannot constitute obstruction of justice unless the statement obstructs or impedes the investigation significantly. U.S. v. Surasky, 974 F.2d 19 (5th Cir. 1992).
5th Circuit finds that concealment of gun before investigation was not obstruction. (462) Defendant committed an assault with a gun and concealed the gun before the crime was reported and before the investigation began. The 5th Circuit held that such concealment was not obstruction of justice since no investigation had begun when defendant concealed the gun. Defendant’s intent was not to impede the investigation or prosecution of his offense, but rather to conceal his crime. U.S. v. Luna, 909 F.2d 119 (5th Cir. 1990).
5th Circuit holds that using an alias during crime did not constitute obstruction of justice. (462) Using an alias, defendant gave a package containing firearms to a federal express agent for delivery. He did not tell the agent that the package contained firearms. After arrest, he pled guilty to using a common carrier for the interstate transportation of firearms. The district court enhanced his offense level under § 3C1.1 finding that his use of an alias willfully impeded or obstructed justice. The 5th Circuit reversed, finding that there was no evidence to support a finding of obstruction of justice. Defendant did not misrepresent his identity to law enforcement officers; rather he misrepresented it to federal express. His lack of knowledge that any investigation was taking place made it clear that his intent was not to impede an investigation or prosecution. Rather, his intent was to disguise himself, which was a routine precaution any law violator might take. The court found that to countenance such an adjustment would demand its allowance in any case where defendant “wore a mask, disguised his voice, left town, used gloves, and so forth.” This was not the type of conduct § 3C1.1 was meant to cover. U.S. v. Wilson, 904 F.2d 234 (5th Cir. 1990).
5th Circuit holds use of alias does not constitute obstruction of justice. (462) In a brief per curiam opinion, the 5th Circuit held that the district court erred in concluding that a gun runner’s use of an alias constituted obstruction of justice under § 3C1.1. The court stated that a full opinion would issue later, but because the defendant’s sentence was due to expire in a few months, an immediate vacation and remand was required. U.S. v. Wilson, 887 F.2d 576 (5th Cir. 1989).
6th Circuit reverses obstruction increase for failure to make necessary factual findings. (462) Defendant was convicted of conspiracy to make and distribute methylenedioxymethamphetamine (MDMA), or “ecstasy.” The district court applied an obstruction of justice increase, based on its finding that defendant committed perjury in testifying that he had “no idea” how to manufacture MDMA. However the court failed to make factual findings concerning the materiality of the matter or defendant’s intent. The Sixth Circuit reversed the enhancement, ruling that the district court failed to make the necessary factual findings to support the obstruction enhancement. The panel said it was “not well-placed to make factual findings of perjury in the first instance, even if we believe there is evidence in the record that supports such findings.” U.S. v. Kamper, 748 F.3d 728 (6th Cir. 2014).
6th Circuit holds that use of an alias was not material to magistrate’s determinations. (462) Because he was in the country illegally, defendant used several aliases, including the name Arnold Fordham. The DEA began investigating “Arnold Fordham” for distributing drugs, and identified Fordham as the suspect in a warrant to search defendant’s home. The DEA found large amounts of oxycodone pills at defendant’s house, and he was arrested. In an appearance before the magistrate judge, defendant continued to represent himself as Arnold Fordham. The district court found that defendant provided materially false information to the magistrate, and applied an obstruction of justice enhancement. The Sixth Circuit reversed, holding that defendant’s use an alias was not material to the two issues decided by the magistrate. First, the magistrate had to decide whether to appoint counsel for defendant based on his financial affidavit. None of defendant’s financial information in the affidavit was false. Second, the magistrate determined that the DEA agents had probable cause to arrest defendant for possessing oxycodone. The magistrate relied on the agents’ testimony that they found oxycodone pills in defendant’s possession and that defendant admitted that he was selling the pills. Defendant’s identification as Fordham did not affect this determination. U.S. v. Williams, 709 F.3d 1183 (6th Cir. 2013).
6th Circuit reverses for failure to properly identify portions of defendant’s testimony that were perjurious. (462) Defendant was convicted of drug-trafficking and received a § 3C1.1 obstruction of justice increase based on his perjury at trial. The court found that defendant presented the jury with “an obvious lie, a big lie … one that’s completely unbelievable.” The Sixth Circuit remanded, holding that the district court did not sufficiently identity those portions of defendant’s testimony that it found to be perjurious. Although courts may rely upon lists of a defendant’s perjurious statements provided by the government, a court must make clear that it has independently adopted the prosecution’s recital. The court’s reliance on the government’s off-the-cuff summary of defendant’s testimony did not support the enhancement, particularly because the court did not indicate that it was relying on this summary. U.S. v. Macias-Farias, 706 F.3d 775 (6th Cir. 2013).
6th Circuit remands where only evidence of obstruction was unsworn letter to internal affairs alleging wrongdoing by FDA. (462) Defendant and others were convicted of introducing into interstate commerce unapproved new drugs, misbranded drugs, and related counts. At the sentencing hearing, the district court found that defendant had perjured himself at trial. However, the subsequently issued sentencing memo did not reflect the perjury finding, and so the district court did not rely upon that finding in applying an obstruction of justice enhancement. In the sentencing memo, the district court concluded that defendant “attempted to impede the FDA’s investigation” by sending a letter to the FDA’s Internal Affairs making a number of false claims about the FDA’s conduct and participating in petitions to various officials and politicians complaining of the FDA’s poor treatment of the defendants. The Sixth Circuit reversed. There was no support in the record for the court’s finding that defendant participated in any petitions to the government entities listed in the memos. The only evidence properly considered by the district court was defendant’s letter to the FDA. Although § 3C1.1 authorizes the enhancement for attempts to obstruct justice as well as the obstruction itself, the Application Notes indicate that an attempt that takes the form of a false but unsworn statement to a law-enforcement officer does not suffice to trigger the increase unless it significantly obstructs or impedes the investigation or prosecution of the offense. U.S. v. Jarman, 144 F.3d 912 (6th Cir. 1998). The court made no finding on this issue, imposing the enhancement on the basis of defendant’s “willful attempt to impede the FDA’s investigation.” On remand, the court may consider all relevant record evidence to determine whether the § 3C1.1 increase is warranted. U.S. v. Kaminski, 501 F.3d 655 (6th Cir. 2007).
6th Circuit rejects obstruction increase for threat to kill victim if she reported defendant. (462) While beating up his wife, defendant told her that if she “ever tried to get him for domestic violence or assault that he would kill [her] and he would kill [her] baby, too.” The Sixth Circuit held that this threat was not made “during the course of the investigation, prosecution, or sentencing of the instant offense of conviction,” and therefore, it did not warrant a § 3C1.1 obstruction of justice increase. The court reached this conclusion reluctantly, since defendant clearly acted to prevent the actual investigation and prosecution of the offense. However, the record supported the obstruction increase based on letters defendant sent to his wife while he was incarcerated. These letters, which contained numerous references to his wife’s daughter, the same child he threatened to kill if his wife went to authorities, were attempts to discourage his wife from appearing in court. These letters, which followed upon the original threat to kill his wife if she went to the police, represented a continuum of conduct designed to obstruct justice. U.S. v. Baggett, 342 F.3d 536 (6th Cir. 2003).
6th Circuit holds that denials to FBI did not significantly impede investigation. (462) Defendant pled guilty to harboring aliens, four Pakistani nationals who jumped ship from a vessel docked in an American port. On two occasions when FBI agents questioned defendant about the missing sailors, defendant denied any knowledge of them. After these attempted interviews, the FBI found the sailors at a nearby hotel owned by a friend or relative of defendant. The district court applied an obstruction of justice increase based on defendant’s statements to the FBI that he did not know the sailors. Defendant alleged that the two statements did not significantly impede the investigation because the FBI caught the sailors only a few hours later, and that the FBI had already left the hotel at the time of the second interview. The Sixth Circuit agreed, and held that the obstruction increase was improper. Under Notes 5(g) and Note 4(g), the § 3C1.1 increase does not apply to “making false statements, not under oath, to law enforcement officers,” unless the statement is material and “significantly impedes the investigation.” Although defendant’s statements were material, they did not significantly impede the investigation. Defendant’s statements did not cause the FBI agents to go on a “wild goose chase,” or mislead the agents in the sort of manner that is traditionally the basis for enhancement. Defendant’s lies caused the FBI to go forward with their investigation as they normally would, i.e. continue searching for and tracking down possible leads as to the sailors’ whereabouts. U.S. v. Ahmed, 324 F.3d 368 (5th Cir. 2003).
6th Circuit holds that perjury findings were insufficient to support obstruction increase. (462) In order for a court to apply an obstruction of justice increase based on a defendant’s perjury, the 6th Circuit requires a court to (1) identify those particular portions of defendant’s testimony it considers to be perjurious; and (2) either make a specific finding for each element of perjury, or at least make a finding that encompasses all of the factual predicates for a finding of perjury. U.S. v. Mise, 240 F.3d 527 (6th Cir. 2001). Here the court overruled defendant’s objection to the enhancement and replied, generally, that it did not believe his testimony at trial, nor did the jury. The court stated: “In regard to obstruction of justice, I heard your testimony, and there was very little that I believed. I don’t think there was very much the jury believed, taking their verdict in the case.” The Sixth Circuit held that the court’s findings were insufficient to support the § 3C1.1 enhancement. This is the same type of review of testimony that the district court conducted in U.S. v. Sassanelli, 118 F.3d 495 (6th Cir. 1997). The court made no indication which portions of defendant’s testimony was perjurious nor did the court apply any of the elements of perjury to the testimony. U.S. v. Lawrence, 308 F.3d 623 (6th Cir. 2002).
6th Circuit says court must make independent findings supporting obstruction increase. (462) Defendant appealed his receipt of an obstruction of justice enhancement. The Sixth Circuit found it unnecessary to address whether defendant’s actions merited the increase, because the district court made no factual findings in support of its conclusion that the enhancement was appropriate. “When applying an obstruction-of-justice enhancement, the district court must review the evidence and set forth findings independent of those contained in the presentence investigative report. Where a district court fails to provide an on-the-record, independent evaluation of the evidence, the reviewing court must vacate the sentence and remand the case for resentencing.” U.S. v. Middleton, 246 F.3d 825 (6th Cir. 2001).
6th Circuit holds that obstructive conduct not sufficiently related to offense of conviction. (462) Defendant pled guilty to interstate transportation of stolen property. The court applied a § 3C1.1 enhancement because defendant failed to appear for additional judicial proceedings following two arrests for conduct relevant to the count of conviction. In addition, defendant willfully avoided or fled from arrest using information provided by family and friends. Defendant objected he did not fail to appear for any proceedings related to the current federal offense. The Sixth Circuit vacated the enhancement, ruling that the obstructive conduct was not sufficiently related to the offense of conviction. The obstruction must occur solely with respect to the offense of conviction. In addition, note 4 of § 3C1.1, which applies to conduct such as avoiding or fleeing from arrest, only provides for the obstruction enhancement if that conduct resulted in a conviction under a separate count. U.S. v. Koeberlein 161 F.3d 946 (6th Cir. 1998).
6th Circuit holds that false testimony was not material. (462) Defendant was convicted of drug and firearms charges. At sentencing, defendant testified regarding his claim of selective prosecution, stating that the police who arrested him were wearing t-shirts that contained a racial slur. After hearing from all involved parties, the court determined that no slurs appeared on the shirts. The Sixth Circuit reversed an obstruction of justice enhancement since the false testimony on which it was based was not material. Even if defendant testified falsely about the racial slurs, the false testimony was not relevant to sentencing. The court had already ruled on defendant’s claim of selective prosecution, and it was not an issue at sentencing. The court was simply giving defendant the opportunity to speak fully and freely before sentencing. U.S. v. Jones, 159 F.3d 969 (6th Cir. 1998).
6th Circuit reverses for inadequate record to support perjury finding. (462) Defendant was convicted of drug and firearms charges. The PSR recommended an obstruction of justice enhancement for perjury at trial. The district court applied the obstruction enhancement over defense counsel’s objection. The Sixth Circuit ruled that the record was inadequate to support the obstruction of justice enhancement. The district court failed to specify the areas of conflicting testimony and found neither the elements nor the factual predicates necessary for a perjury finding. The court also did not explain why the perjury was material. Although the government argued that the enhancement should be based on defendant’s testimony concerning the firearm, the district court simply overruled defendant’s objection. The enhancement may not be affirmed on an inference that the ruling was based on the government’s arguments. U.S. v. McRae, 156 F.3d 708 (6th Cir. 1998).
6th Circuit says findings were inadequate to support obstruction enhancement. (462) Defendant, an accountant, transferred clients’ money into his personal and business accounts without their knowledge. He then failed to report the money as income on his tax returns. The district court applied an obstruction of justice enhancement because defendant submitted to an IRS agent certain “deposit analysis summaries” that contained false entries. The Sixth Circuit held that the district court erred by failing to make independent factual findings sufficient to support the obstruction enhancement, as required by Rule 32(c)(1). Defendant contended in his objections to the PSR that he submitted the documents in an effort to cooperate, not to impede the investigation. The judge did not make a specific finding that defendant submitted the false documents for the purpose of interfering with the investigations, apparently because he erroneously felt that no finding of intent was necessary. However, under the plain language of the guideline, the government must prove to the court that the defendant willfully obstructed or attempted to obstruct justice. Judge Wallace dissented. U.S. v. Parrott, 148 F.3d 629 (6th Cir. 1998).
6th Circuit finds increase for reckless endangerment and official victim was improper double counting. (462) When police attempted to arrest defendant in his car, he “punched” the accelerator and aimed the car directly at a DEA agent. Defendant’s car struck the agent’s car door, and the door struck the agent on the shoulder and leg as he jumped into his car. Defendant continued to drive ahead, crashing head-on into an unmarked police car parked two or three car lengths in front. Defendant was arrested, and police found a 5 or 6-year old boy lying on the floor of his car bleeding. The court imposed a § 3C1.2 enhancement for recklessly creating a substantial risk of death or serious bodily injury to the child while fleeing police, and a § 3A1.2(b) enhancement for assaulting a police officer. The Sixth Circuit held that the § 3C1.2 enhancement was double counting in light of the § 3A1.2(b) official victim enhancement. There was no sensible way to distinguish the conduct that formed the basis for the two enhancements. Defendant single, uninterrupted act resulted in injury to a law enforcement officer and put a young child in danger. Although defendant’s conduct risked harm to two different people, the underlying conduct was the same. U.S. v. Hayes, 135 F.3d 435 (6th Cir. 1998).
6th Circuit remands for court to identify perjurious statements. (462) In applying an obstruction of justice enhancement, the district court stated that it considered “almost everything” that defendant said at trial to be perjurious. The Sixth Circuit remanded for more specific perjury findings. Under circuit rule, in addition to making a specific finding that the defendant committed perjury, the district court should identify particular examples of the defendant’s untruthful testimony upon which it bases the § 3C1.1 enhancement. Rigid adherence to this rule is not required so long as the record below in sufficiently clear to indicate those statements that the district court considered to be perjurious. Here, the PSR did not identify particular statements as perjurious, stating only that defendant apparently testified untruthfully at trial. At sentencing, the government did not attempt to clarify this cryptic statement, arguing only that the enhancement should come from defendant’s false trial testimony. U.S. v. Sassanelli, 118 F.3d 495 (6th Cir. 1997).
6th Circuit says bodily injury enhancement only applies where risk resulted from fraud itself rather than flight. (462) Defendant and her husband committed bank fraud in several states. When defendant was discovered by a bank employee, she returned to her hotel, and left in a van driven by her husband. They led police on a lengthy high-speed chase that ended in a crash. She pled guilty to bank fraud. The Sixth Circuit reversed a § 2F1.1(b)(4) bodily injury enhancement, since it only applies where the risk of bodily injury results from the fraud itself and not from events that happen while fleeing from the crime. A different provision, § 3C1.2, penalizes reckless endangerment during flight. However, this enhancement might be inappropriate here. Defendant was not driving the car, and there was substantial evidence that defendant was acting under the control and coercion of her husband. U.S. v. Hall, 71 F.3d 569 (6th Cir. 1995).
6th Circuit reverses enhancement because obstructive conduct was unrelated to offense of conviction. (462) Defendant was convicted of wire fraud. The district court enhanced her sentence for obstruction of justice based on defendant’s trial testimony that she used a false name when writing to her husband in prison, in order to assist him in avoiding detection from law enforcement officials. As a result, defendant’s husband was able to become a federal fugitive. The Sixth Circuit reversed, since defendant’s obstructive conduct was unrelated to her mail fraud conviction. There was no evidence that defendant’s husband was involved in her fraud. Only obstructive conduct that occurs with respect to the offense of conviction warrants the § 3C1.1 enhancement. U.S. v. Horry, 49 F.3d 1178 (6th Cir. 1995).
6th Circuit vacates obstruction increase; requires judge to identify perjury and address materiality. (462) The sentencing judge imposed an obstruction of justice enhancement after reviewing defendant’s trial testimony and stating that he believed that defendant lied. The Sixth Circuit remanded for the court to identify with specificity the portions of defendant’s testimony that he found to be intentional lies, and to address their materiality. This analysis is required by U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). U.S. v. Spears, 49 F.3d 1136 (6th Cir. 1995), abrogated on other grounds by U.S. v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997).
6th Circuit holds 3C1.2 enhancement inapplicable if defendant did not know he was fleeing from police. (462) An undercover agent made a controlled delivery of a package containing cocaine. After the agent left, a car driven by defendant pulled up to the residence, picked up the package, and left. An unmarked police van attempted to block the car’s exit. Defendant swerved around the van, striking the leg of a detective who had jumped out of the van. The district court applied a § 3C1.2 reckless endangerment enhancement. The Sixth Circuit held that a § 3C1.2 enhancement is inapplicable if the defendant did not know that he was fleeing from a law enforcement officer. Since the district court made no findings regarding defendant’s knowledge, the case was remanded. U.S. v. Hayes, 49 F.3d 178 (6th Cir. 1995).
6th Circuit reverses obstruction enhancement where defendant was sentenced for contempt. (462) Defendant grew a beard before his robbery trial in an attempt to avoid being identified at trial. He was sentenced to six months for contempt after he disobeyed an order to shave before trial. The court also enhanced his robbery sentence for obstruction of justice. The 6th Circuit reversed the enhancement, holding that defendant’s conduct could not serve as the basis for both the obstruction enhancement and the contempt sentence. The district court failed to follow note 6 to § 3C1.1, which instructs the court to group the underlying and obstruction offenses, and then enhance the adjusted offense level for obstruction of justice. Having already sentenced defendant for contempt, it was not appropriate to enhance the robbery sentence for the same conduct in the contempt. Judge Batchelder dissented, believing that growing the beard and refusing to shave it were two distinct acts. U.S. v. Perry, 30 F.3d 708 (6th Cir. 1994).
6th Circuit remands where perjury findings were inadequate. (462) The district court imposed an obstruction of justice enhancement based on defendant’s perjury. The 6th Circuit remanded because the court’s findings were inadequate. The district court made an independent finding of perjury, but did not identify the perjurious testimony. It stated that it was unable to identify which statements were perjury and which ones were not. A court must identify the testimony it finds perjurious, either explicitly or by reference to its context. U.S. v. Ledezma, 26 F.3d 636 (6th Cir. 1994).
6th Circuit says defendant did not commit perjury at suppression hearing. (462) The district court imposed an enhancement for obstruction of justice, finding that defendant had perjured himself at a suppression hearing by denying that he spoke any English. The 6th Circuit reversed, ruling that the court’s factual finding that defendant committed perjury at the suppression hearing was clearly erroneous. At the hearing, defendant testified that he could understand certain things in English, that he was taking some courses given in English and did not need an interpreter for those classes, and that he had answered the police officers’ questions in English whenever he could. Thus, the court erred in finding that defendant had stated that he could understand no English at all. U.S. v. Bueno, 21 F.3d 120 (6th Cir. 1994).
6th Circuit rejects judge’s statement that he would “abide by the jury’s verdict” as not an independent finding of perjury. (462) In imposing an enhancement for obstruction of justice based on defendant’s perjury, the district judge stated that he would “abide by the jury’s verdict” in determining whether he had testified truthfully or not. The 6th Circuit reversed the enhancement, finding the court failed to make an independent finding of defendant’s perjury as required by Dunnigan v. U.S., 507 U.S. 87 (1993). Mathews v. U.S., 11 F.3d 583 (6th Cir. 1993).
6th Circuit remands where judge relied on jury verdict to impose obstruction enhancement. (462) The district court imposed an obstruction of justice enhancement based on defendant’s false testimony at trial. The 6th Circuit affirmed that this was a proper basis for the enhancement, but remanded because the judge improperly deferred to the jury’s verdict in determining that defendant testified falsely. The judge stated that based on the jury verdict, defendant testified falsely. “I can’t say that the jury was wrong and substitute my judgment for theirs, that’s not my role.” Such deference to the jury’s fact-finding role is inappropriate for sentencing purposes because the district court itself must make a finding that defendant obstructed justice. U.S. v. Medina, 992 F.2d 573 (6th Cir. 1993).
6th Circuit remands to clarify reasons for obstruction enhancement. (462) After receiving three separate reports from U.S. marshals regarding disruptive behavior by defendants, the district court imposed an enhancement for obstruction of justice. On appeal, the 6th Circuit remanded, finding the record “too cryptic.” First, both defendants received enhancements even though only one was reprimanded a third time. The trial judge’s remark, that “three times the marshals came to me and made complaints in connection with [defendants’] conduct, left open the possibility that one defendant was penalized for the behavior of his co-defendant. Second, the report that defendants were “looking threateningly” at witnesses, without more, was insufficient to support the enhancement. The trial court’s comment that it had received a report that defendants were “mouthing off” after being admonished not to “look threateningly at witnesses,” did not provide the detail necessary to an independent review on appeal. U.S. v. Range, 982 F.2d 196 (6th Cir. 1992).
6th Circuit reverses obstruction enhancement for failure to find defendant’s testimony untruthful. (462) Defendant’s testimony at trial contradicted prosecution witnesses, and defendant received an enhancement for obstruction of justice. The 6th Circuit held that the district court erred in enhancing the sentence without expressly finding that defendant testified untruthfully. A defendant may not be found to have obstructed justice merely because he or she testifies at trial and the jury returns a guilty verdict. However, appellate courts have upheld obstruction enhancements where the district court makes a specific finding that a defendant lied. This specific finding need not be as detailed as “reasoned statements” justifying departures from the guidelines. But it must be a clear finding that a defendant has lied with respect to testimony given under oath. U.S. v. Burnette, 981 F.2d 874 (6th Cir. 1992).
6th Circuit remands for court to explain reasons for five level increase for obstruction of justice. (462) The presentence report recommended a base offense level of 12 plus two points for obstruction of justice, i.e., level 14. The government, however, sought an increase to level 17 based on three separate acts of obstruction. The district court, without stating its reasons, set the offense level at 17. The 6th Circuit remanded with directions for the court to clarify its rationale. In addition, it asked the district court to reconsider whether it should impose more than two obstruction of justice points in any one case. The court noted that it had been unable to find any authority to support the aggregation of points simply because the defendant committed more than one act of obstruction in a single case. Fields v. U.S., 963 F.2d 105 (6th Cir. 1992).
6th Circuit reverses obstruction enhancement because misrepresentations did not impede investigation. (462) The 6th Circuit reversed an enhancement for obstruction of justice under guideline section 3C1.1 based on the lies defendant told FBI agents during their investigation. Application note 4 specifically permits lies to investigating agents provided they do not significantly impede the investigation. Defendant’s lies did not significantly impede the investigation, because the agents already knew the facts as corroborated by the agents’ surveillance and tape recordings. Although defendant’s failure to confess and cooperate when first approached by the government required the government to continue an investigation that might otherwise have been shortened, this is not grounds for an obstruction enhancement. U.S. v. Williams, 952 F.2d 1504 (6th Cir. 1991).
6th Circuit reverses obstruction of justice enhancement based upon defendant’s abandonment of residence. (462) The district court found that defendants had obstructed justice by attempting to avoid apprehension by police. Upon the arrest of their co-conspirator, both defendants had abandoned the apartment they had previously occupied. The 6th Circuit reversed the obstruction enhancement. Defendants had no obligation to continue to reside at their known residence after the arrest of their co-conspirator. Although this did make their apprehension more difficult, it did not warrant the obstruction of justice enhancement. Guideline § 3C1.1 was recently amended to specifically exclude from enhancement avoiding or fleeing from arrest. Although this amended guideline did not apply to defendant, “proper application of the Guidelines on a consistent basis warrants a remand for resentencing.” U.S. v. Sanchez, 928 F.2d 450 (6th Cir. 1991).
7th Circuit reverses obstruction increase for insufficient findings. (462) Defendant, a part-time bank teller, stole eight temporary checks drawn on the account of four customers. At trial, she denied having any involvement in the check-cashing scheme, specifically denying that she took any of the eight checks, so the district court applied an enhancement for obstruction of justice. The Seventh Circuit reversed, ruling that the court’s findings were insufficient to justify the § 3C1.1 enhancement. The judge did not clearly find that defendant’s testimony was willfully false. In fact, the judge commented that defendant “may even believe herself that she didn’t negotiate these checks.” This comment seemed to suggest an absence of willfulness. The panel rejected the government’s argument that any failure by the court to make perjury findings was harmless because the record contained ample evidence that defendant perjured herself at trial. The court’s comments made it unclear whether the court found defendant’s denial of involvement in the scheme was willful. U.S. v. Parker, 716 F.3d 999 (7th Cir. 2013).
7th Circuit reverses for lack of sufficient findings to support obstruction increase. (462) During a traffic stop, defendant admitted to officers that he had a gun in his pocket, and the officers then found a gun in his front pants pocket and arrested him. He was convicted of being a felon in possession of a firearm. At trial, he denied having a gun, or even seeing a gun, on the day of his arrest, and stated that the first time he had seen the gun was at trial. The Seventh Circuit held that the district court failed to make sufficient findings to support a § 3C1.1 obstruction of justice enhancement. The court did not articulate clear and separate findings as to the falsity, materiality, and intent of any statement made by defendant. Although the judge noted that the jury did not believe defendant’s testimony, he did not clearly state his belief that defendant made a false statement. The judge further obscured the basis for his determination that defendant committed perjury by transitioning directly into a discussion about defendant’s prior felonies. U.S. v. Johnson, 612 F.3d 889 (7th Cir. 2010).
7th Circuit rejects multiple obstruction enhancements for two incidents of perjury. (462) Defendant was convicted of stealing and conspiring to steal a foreign freight shipment. The district court imposed two obstruction of justice enhancements for two separate incidents of perjury that defendant committed during a pretrial suppression hearing and during the trial itself. The court thought that it would be a “bad message to send” if a single two-level increase applied for two distinct acts of perjury. The Seventh Circuit reversed, holding that the district court erred in applying multiple obstruction enhancements. The commentary in §§ 3B1.4 and § 3C1.2 make it clear that a sentencing court should not apply the obstruction of justice increase more than once for multiple acts of obstruction. No other provision in chapter three calls for the use of multiple adjustments for multiple acts. Of course, the district court had substantial discretion in choosing a reasonable sentence; a discretion that includes consideration of multiple acts of obstruction. However, before this discretion kicks in, the district court must first properly calculate the advisory Guideline range. U.S. v. Willis, 523 F.3d 762 (7th Cir. 2008).
7th Circuit holds that act of burying body of kidnap victim did not support obstruction of justice enhancement. (462) Defendants were convicted of kidnapping and conspiracy to commit kidnapping. One of the kidnapping victims died, and defendants buried him in a deep grave. The Seventh Circuit reversed a § 3C1.1 enhancement, ruling that the act of burying the body of the kidnap victim did not support an obstruction of justice increase. The act of burying the body could easily have been seen as part of the ongoing conspiracy, rather than as an attempt to impede the investigation. When another kidnap victim escaped, the conspirators determined that they had to bury the dead victim’s body. When defendant learned the police were looking for him, he surrendered, confessed his participation in the crime, and showed the police where the body was buried. Under these circumstances, burying the body was a part of the conspiracy, rather than an attempt to obstruct justice. U.S. v. Singh, 483 F.3d 489 (7th Cir. 2007).
7th Circuit reverses obstruction increase for giving false name to police. (462) Defendant failed to report to prison, and was arrested 15 years later by the FBI, where he was living under the name of David Cohn. When agents came to arrest him, he claimed to be Cohn, denied knowing any Alfred Elliot (his real name), and denied recognizing his own photo. The agents were not fooled by that ploy, or his claim that he was on his way to an urgent medical appointment for a life-threatening condition (it was a routine check-up). He was convicted of failure to appear to begin a sentence, and received a two-level obstruction increase based on his effort to persuade the FBI either that he was “Cohn” or that he must be allowed to visit his doctor (and thus have another chance to flee). The Seventh Circuit reversed. Note 7 to § 3C1.1 says that using an alias does not justify an obstruction increase for failure to appear unless “significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself.” This was not the case. Defendant’s “feeble” efforts were not significant. He simply stuck with the alias he had been using for more than a decade. The 21-month sentence imposed was not unreasonably high, and in fact seemed unreasonably low. Guideline § 2J1.6 does not take into account the duration of the flight from justice. U.S. v. Elliott, 467 F.3d 688 (7th Cir. 2006).
7th Circuit says violation of release terms did not constitute obstruction of justice. (462) Pending resolution of the criminal charges against him, defendant (after a failed suicide attempt) was ordered to reside in a community confinement facility. He repeatedly abused the terms of his leave privilege by falsely claiming that he had an appointment with a psychiatrist, instead using his “medical” leaves to visit his girlfriend and for other purely personal reasons. He also bribed two of the facility’s employees to allow him to protect his leaves. Based on this conduct, the district court denied him both an acceptance of responsibility reduction and imposed an obstruction of justice increase. The Seventh Circuit reversed the obstruction increase. Defendant’s pretrial antics did not complicate the prosecution of his fraud charges. The court flouted the court’s authority by violating the conditions under which he was being detained. But he did not make it more costly or otherwise more difficult for the government to prosecute its case against him successfully. U.S. v. Scott, 405 F.3d 615 (7th Cir. 2005).
7th Circuit says overestimation of legitimate assets did not merit obstruction increase. (462) During a series of proffer sessions, defendant conceded forfeiture liability of $2.5 million, although he contested the forfeiture of six brokerage accounts named in the indictment. Defendant later explained to the probation officer preparing the PSR that his wife’s premarital assets totaled $28,000 and that his legitimate savings, aggregated with his wife’s assets, amounted to as much as $100,000, which he felt the government should exempt from forfeiture. The district court found that these statements merited an obstruction of justice increase. The Seventh Circuit reversed, since all of defendant’s property was subject for forfeiture regardless of its source. Assuming that defendant’s misstatements to the district court and the investigating probation officer were knowingly inaccurate, they did not amount to material falsehoods within the meaning of § 3C1.1, because they had no impact on his forfeiture liability. By pleading guilty to a $2.5 million forfeiture allegation where the U.S. had seized only $1.7 million in assets, it was of zero consequence whether the seized assets were legitimately or illicitly derived. The provision in 21 U.S.C. § 853 provides for the forfeiture of substitute assets in satisfaction of a forfeiture judgment. U.S. v. Carroll, 346 F.3d 744 (7th Cir. 2003).
7th Circuit holds that lie to police did not justify obstruction increase but perjury did. (462) Defendant, the passenger of a car, fled after an armed standoff with police. When defendant was arrested, he denied that he was the passenger in the vehicle (who had possessed a gun), instead corroborating the driver’s claim that a man named “Jaybo” was the passenger. Defendant was nonetheless indicted on charges of being a felon in possession of a firearm. At trial, defendant presented an elaborate mistaken-identify and alibi defense supported by his own testimony and that of five other witnesses, including the driver. Gone was the claim that Jaybo was the gun-bearing passenger. Now defendant and the driver testified that the passenger was an unknown minor known as “Boo.” The Seventh Circuit agreed with defendant that the Jaybo story did not warrant a § 3C1.1 obstruction of justice enhancement. Making material false statements, not under oath, to law enforcement officers will only serve as a basis for an obstruction increase when those statements “significantly obstruct[] or impede[] the official investigation or prosecution.” Note 4 to U.S.S.G. § 3C1.1. There was no evidence that the Jaybo statement impeded the official investigation in any manner. However, this was an “empty victory” for defendant, because the district court made an independent finding that defendant had lied on the stand. The court’s perjury findings were sufficient to support the obstruction increase. U.S. v. Griffin, 310 F.3d 1017 (7th Cir. 2002).
7th Circuit rejects § 3C1.1 increase where contempt defendant’s conduct obstructed civil proceedings. (462) In response to a civil fraud suit filed by the FTC against defendant and others, the district court entered a temporary restraining order that enjoined the defendants’ unlawful practices, froze their assets, and appointed a temporary receiver. Additionally, a preliminary injunction prohibited defendant from disposing of or transferring any of his assets. In violation of the injunction, defendant sold his yacht, and attempted to transfer and conceal the proceeds of the sale. He pled guilty to two counts of contempt of court based on these actions. The district court applied a § 3C1.1 obstruction of justice increase because it found that defendant continued to violate the injunction by concealing assets in storage units and failing to provide certain information to the receiver. However, § 3C1.1 does not apply “unless the defendant obstructed the investigation or trial of the obstruction count.” See Note 2 to § 2J1.2. The conduct upon which the court enhanced defendant’s sentence did not obstruct the investigation or prosecution of the instant offense, but rather the FTC civil proceedings. Therefore, the Seventh Circuit ruled that the basis for the obstruction increase was erroneous, and vacated for the district court to determine whether proper grounds existed for the increase. U.S. v. Tankersley, 296 F.3d 620 (7th Cir. 2002).
7th Circuit reverses obstruction increase for lack of evidence that defendant provided materially false information. (462) The district court found that defendant provided materially false information to his probation officer. However, the probation officer was unable to attend the sentencing hearing and a supervisor testified that the probation officer “probably did not ask” defendant any questions that would have elicited the false information because it was only later that the probation officer learned the information that would have led her to ask about that information. Because there was no evidence to support the district court’s ruling, the Seventh Circuit vacated the obstruction of justice enhancement and remanded to the district court “to ascertain the precise nature of [the probation officer’s] interview with [defendant].” U.S. v. Kosmel, 272 F.3d 501 (7th Cir. 2001).
7th Circuit holds that perjury findings were insufficient to support obstruction increase. (462) At defendant’s first hearing, the district court stated that defendant’s trial testimony was “incredible” and “obviously peppered with untruths,” but ultimately the court decided to give defendant the benefit of the doubt and not impose an obstruction increase. The judge thought it possible that defendant “thought he was telling the truth,” and that his testimony was “simply contrary to the Government’s testimony.” The court then continued the hearing until a later date so that defendant could filed a document explaining his version of the evidence. Defendant’s statement vehemently reiterated his position that he and the deceased fraud victim were business partners, that everything he did was pursuant to the deceased’s wishes, and that none of the documents he presented was forged. At the second hearing, the court found that defendant had lied at the first hearing, and the fact that defendant continued to insist on his version of the story “solidified” the court’s belief that defendant was being untruthful. Accordingly, the court imposed an obstruction of justice increase. The Seventh Circuit held that the bare finding that defendant was “being untruthful” was insufficient to satisfy the requirements of U.S. v. Dunnigan, 507 U.S. 87 (1993). Even if the court’s findings could be construed to include a finding of willfulness, there clearly was no finding that the court considered defendant’s false testimony material. U.S. v. Seward, 272 F.3d 831 (7th Cir. 2001).
7th Circuit holds that court’s obstruction findings did not satisfy Dunnigan. (462) Defendant and others formed a white supremacist group that intended to raise money by robbing banks and armored cars. The district court applied an obstruction of justice increase stating, without further explanation, “I thought your testimony was riddled with inaccuracies and lies.” The Seventh Circuit held that these findings were insufficient to support the obstruction increase. Under Dunnigan v. U.S., 507 U.S. 87 (1993), a court must make specific findings to support a perjury increase. Among the findings required are that the defendant’s misrepresentations were willful, material to the investigation or prosecution of the instant offense, and made with the specific intent to obstruct justice rather than as a result of confusion, mistake or faulty memory. Here, the district court never identified which of defendant’s statements it considered to be lies and why. The record also did not show the court’s reasoning on the critical issues of materiality or specific intent to obstruct justice. U.S. v. McGiffen, 267 F.3d 581 (7th Cir. 2001).
7th Circuit holds that false testimony at co-conspirator’s trial was not material. (462) The judge found that defendant’s testimony at a co-conspirator’s trial was not truthful, believing that defendant had minimized the scope of the conspiracy in order to blame the co-conspirator and protect others. The district court applied a § 3C1.1 obstruction of justice increase based on defendant’s false testimony. The Seventh Circuit reversed, ruling that defendant’s false testimony at his co-conspirator’s trial was not material. False testimony is material if it is “designed to substantially affect the outcome of the case.” Thus, the inquiry was whether defendant’s false testimony could tend to influence the issue under determination — namely, was the co-conspirator guilty or innocent of drug conspiracy charges? Defendant’s false testimony about the size of the conspiracy was immaterial to this issue and did not affect the outcome of the case. The district court believed that defendant minimized the scope of the conspiracy in order to avoid implicating other drug traffickers not on trial. This was not material to the co-conspirator’s guilt or innocence of the drug conspiracy charges. The government was satisfied with the scope of defendant’s testimony, and did not indicate that its investigation was impeded because defendant limited his testimony to only certain conspirators. U.S. v. Arambula, 238 F.3d 865 (7th Cir. 2001) No. 99-4302.
7th Circuit finds insufficient evidence that anhydrous ammonia endangered pursuing officers. (462) While being pursued by police officers, defendants dumped a thermos of anhydrous ammonia out the window of their car. The ammonia instantly vaporized, creating a cloud through which the officers then drove through in the course of the pursuit. The officer closed the vents and windows of their car, and were not actually injured by the ammonia dumpage. The district court applied a § 3C1.2 enhancement for recklessly creating a substantial risk of death or serious bodily injury in the course of fleeing from police. The Seventh Circuit reversed, finding insufficient evidence that defendants created a substantial risk of death or serious bodily injury in the quantity and concentration of anhydrous ammonia they released during flight. The record contained substantial evidence that anhydrous ammonia is a dangerous substance, and that under certain conditions it can cause death or serious bodily injury. However, there was no evidence of the amount defendants dumped, what concentration of vapors the officers were exposed to, and for what length of time the exposure lasted. The court rejected the government’s assertion that any dangerous act will meet the standards of § 3C1.2; rather, the act must create a substantial risk of death or serious bodily harm. U.S. v. Smith, 210 F.3d 760 (7th Cir. 2000).
7th Circuit says obstruction enhancement can be based on perjury about state of memory. (462) While high on drugs, defendant used a written note to rob a bank. He later admitted to the robbery, testifying that the note simply said “put the money in the bag.” The government presented evidence that the note also included the words “I have a gun.” The district court imposed an obstruction of justice enhancement, finding that the note did say “I have a gun.” However, it did not think that defendant had intentionally lied about the note. Instead, the court found that defendant had lied about remembering what the note said, and that due to his impaired state, defendant could not remember what the note actually said. The Seventh Circuit remanded. The district court found that defendant’s false testimony regarding the note’s content resulted from faulty memory; therefore this testimony was beyond the reach of § 3C1.1 This finding was not clearly erroneous given defendant’s impaired state, and his admitted inability to remember other details of the robbery. However, a defendant can perjure himself about the state or accuracy of his memory, and this perjury can be the basis for a § 3C1.1 enhancement. Nonetheless, in order to impose the obstruction enhancement, the district court must make explicit and independent findings that defendant lied with the specific intent to obstruct justice. The court did not make such findings here. U.S. v. Gage, 183 F.3d 711 (7th Cir. 1999).
7th Circuit rules increase cannot be based on lies unrelated to offense of conviction. (462) After defendant’s arrest on drug charges, he sent a letter to a friend directing him to remove money hidden in a house in Pennsylvania so that it could not be seized by the government. During his interviews, defendant denied having any assets from drug trafficking, and claimed he was broke. He claimed that a safe deposit box for which he had the key belonged to a recently-deceased friend. However, at the Pennsylvania house, the government found $202,000, a Rolls Royce, and a false identification bearing defendant’s picture in the name of the safe deposit holder. Agents also seized $48,000 in cash from the safe deposit box. The district court increased the sentence for obstruction of justice under § 3C1.1 based on: (1) the letter to the friend about concealing the drug proceeds; (2) defendant’s lies about the contents of the safe deposit box; and (3) defendant’s attempt to deceive the Probation Office regarding his assets. The Seventh Circuit held that the court clearly erred in relying on the first two grounds because the present charges involved a single smuggling trip and the drug proceeds were not related to that trip. However, reversal was unnecessary because the third ground adequately supported the enhancement. Defendant’s lies about his assets affected the probation department’s finding of defendant’s ability to pay a fine or make restitution. U.S. v. Ramunno, 133 F.3d 476 (7th Cir. 1998).
7th Circuit says conflict in testimony did not require obstruction increase. (462) Defendant, the toll road manager for the Indiana Department of Transportation, was convicted of corruptly giving a $4,000 payment to a subordinate in violation of 18 U.S.C. § 666(a)(2). Although defendant did not testify at trial, portions of his grand jury testimony were read into the record. Statements in his grand jury testimony were contradicted by other witnesses and circumstantial evidence, but the district court refused to increase the sentence for perjury under § 3C1.1, finding no proof of “willfulness.” The Seventh Circuit refused to overturn the district court’s finding of no perjury. The mere fact that defendant’s testimony before the grand jury conflicted with the testimony of other witnesses at trial did not require a finding of obstruction of justice. The obstruction enhancement requires a finding of willfulness. Not all inaccurate testimony reflects a willful attempt to obstruct justice. The district judge has the best perspective to decide issues of credibility. U.S. v. Agostino, 132 F.3d 1183 (7th Cir. 1997).
7th Circuit reverses obstruction increase where defendant’s lies were not material. (462) Defendant was involved in telemarketing and drug smuggling scheme. He lied to the grand jury about the drug smuggling, but admitted agreeing to accept marijuana as payment for his earnings in the telemarketing scheme. Nevertheless, he claimed he had a co-conspirator remove the marijuana from the trunk of his car. This was directly contradicted by the co-conspirator, who testified that he did not remove the marijuana. The jury found defendant guilty of conspiracy to distribute marijuana. Based on the conflict in the testimony, the district court enhanced defendant’s sentence for obstruction of justice. The Seventh Circuit reversed, ruling that defendant’s lies were not material because he admitted that he agreed to accept marijuana. Therefore the question of whether he returned the marijuana or kept it was irrelevant to the charge of conspiracy. Even if defendant had never received the marijuana, a jury still could have found him guilty of conspiracy to distribute. U.S. v. Senn, 129 F.3d 886 (7th Cir. 1997).
7th Circuit rules court failed adequately clarify the basis for obstruction enhancement. (462) Defendant, an attorney, helped a bankruptcy client fraudulently conceal assets from the bankruptcy trustee. The district court applied an obstruction of justice enhancement based on two false statements. The Seventh Circuit ruled that the court failed to state with adequate clarity the factual basis for its conclusion that defendant obstructed justice. The court’s finding that defendant testified falsely both before the bankruptcy and the district court lacked the sort of specificity required under U.S. v. Dunnigan, 507 U.S. 87 (1993). The court’s reference to the overwhelming evidence that had been summarized earlier in the sentencing proceeding, when the court denied the defendant’s motion for acquittal, was not sufficient. The court should address each element of the alleged perjury in a separate and clear finding or make a finding of an obstruction of justice that encompasses all of the factual predicates for a finding of perjury. U.S. v. Webster, 125 F.3d 1024 (7th Cir. 1997).
7th Circuit rules court failed to make sufficient findings under Dunnigan. (462) Defendant argued that an obstruction of justice enhancement must be vacated because the district court failed to make an explicit finding that he committed perjury. The Seventh Circuit agreed that the court’s findings did not satisfy United States v. Dunnigan, 507 U.S. 87 (1993). Dunnigan requires a court to make a finding on an obstruction of justice that encompasses all of the factual predicates of perjury. An obstruction of justice enhancement cannot be upheld merely on the presumption that the jury disbelieved the defendant’s testimony. U.S. v. Buchannan, 115 F.3d 445 (7th Cir. 1997).
7th Circuit rejects obstruction increase for fleeing after being placed in police car. (462) Postal Inspection Service officers came to defendant’s home to arrest him and his girlfriend. The officers found defendant first, informed him of the charges against him, handcuffed him, and placed him in the back seat of their car. Both officers left defendant to execute the girlfriend’s warrant. Defendant then fled on foot. He was apprehended three houses away from the scene of the arrest. The Seventh Circuit upheld the district court’s refusal to apply a § 3C1.1 enhancement for defendant’s flight. Note 4 states that avoiding or fleeing from arrest does not warrant the enhancement. The district court found that defendant fled while his arrest was still in progress. His conduct was not the type of willful escaping or attempting to escape from custody sufficient for an enhancement. The enhancement applies to calculated evasion as opposed to panicked instinctive flight. Defendant was panicked by the arrival of the officers, and when the opportunity arose during the arrest, spontaneously and without deliberation fled the car on foot. U.S. v. Draves, 103 F.3d 1328 (7th Cir. 1997).
7th Circuit rejects obstruction enhancement for perjury at trial of co‑defendant. (462) Defendant argued that he accepted responsibility by pleading guilty and testifying at his son’s trial. The district court imposed an obstruction of justice enhancement based on defendant’s perjurious testimony at the son’s trial. The Seventh Circuit held that the obstruction enhancement could not be applied to defendant because his perjury occurred at the trial of a co‑defendant. The obstruction must occur during the instant offense, which means the offense of which the defendant was convicted. However, the district court properly denied defendant the § 3E1.1 reduction. Acceptance of responsibility at a minimum requires avoiding falsehoods. U.S. v. Strang, 80 F.3d 1214 (7th Cir. 1996).
7th Circuit holds that flight from state court did not obstruct later federal proceedings. (462) In 1994, defendant pled guilty to a conspiracy to distribute cocaine. The district court enhanced his sentence for obstruction of justice because defendant had fled the country in 1992 while Wisconsin state drug charges were pending against him. The state prosecution occurred before any federal investigation. The district court found the enhancement proper because the state offense was an overt act of the federal conspiracy charge. The Seventh Circuit reversed, holding that there must be an actual obstructive effect on the “instant offense” to trigger a § 3C1.1 enhancement. Although the state offense was part of the federal offense, the obstructive conduct only affected defendant’s state prosecution and had no effect on the investigation, prosecution, or sentencing of defendant’s federal offense. U.S. v. Perez, 50 F.3d 396 (7th Cir. 1995).
7th Circuit rejects obstruction enhancement for refusing to testify at co-conspirator’s trial. (462) The district court imposed an obstruction of justice enhancement under § 3C1.1 based on defendant’s refusal to testify under a grant of immunity at a co-conspirator’s trial. The 7th Circuit held that a defendant cannot receive an enhancement for obstruction of justice for refusing to testify at a co-conspirator’s trial. The obstructive conduct must relate to the “instant offense,” which is narrowly defined in the 7th Circuit to mean the offense of conviction. Offense of conviction does not refer to a separate crime by someone else. Because the obstruction enhancement was improper, defendant could not be denied a reduction for acceptance of responsibility based on the enhancement. However, on remand, the court could consider whether violating a court order to testify under a grant of immunity supported denial of the acceptance of responsibility reduction. U.S. v. Partee, 31 F.3d 529 (7th Cir. 1994).
7th Circuit rejects obstruction enhancement where false testimony was not material. (462) Defendant, an Indiana state trooper, helped plan four armed robberies. The district court enhanced his sentence for obstruction of justice because he lied at his plea hearing about the amount of money he received from the first robbery. The 7th Circuit reversed, concluding that defendant did not commit perjury because his false testimony was not material. Perjury requires proof that the witness’s false testimony concerned a material matter designed to substantially affect the outcome of a case. Because defendant admitted his involvement in the robberies, his understatement of his share of the proceeds could not have affected the outcome of his guilty plea. U.S. v. Parker, 25 F.3d 442 (7th Cir. 1994).
7th Circuit reverses obstruction enhancement for threats against prosecutor and attempt to suborn witness. (462) The 7th Circuit reversed an enhancement for obstruction of justice based on a threat to the prosecutor in the hallway during defendant’s trial and an attempt to suborn perjury from defendant’s girlfriend during the trial. It was unclear whether defendant actually was threatening the prosecutor. However, even if there was such a threat, it was obvious that it was not made “in the course of attempting to avoid responsibility for the offense of conviction,” as required by section 1B1.3(a)(1). With respect to the subornation charge, neither the court’s factual findings nor the actual record supported an obstruction enhancement. U.S. v. Haddad, 10 F.3d 1252 (7th Cir. 1993).
7th Circuit rejects obstruction enhancement for joining conspiracy by concealing cocaine. (462) Defendant went to jail to visit a friend arrested on drug charges. Pursuant to the friend’s instruction’s, he retrieved some cocaine hidden at the friend’s apartment. Defendant sold some of the cocaine, used some of it personally and destroyed the rest. The 7th Circuit reversed an obstruction enhancement based on the concealment of the cocaine. The fact that the obstruction occurred before the police or prosecutors began investigating the defendant did not itself preclude an enhancement. But defendant’s decision to take possession of the cocaine and sell it was nothing more than a decision to join the conspiracy. Participation is distinguishable from obstruction. Concealment of contraband, by itself, by someone who joins a conspiracy during its investigation, prosecution, or sentencing is insufficient to merit an obstruction enhancement. U.S. v. Polland, 994 F.2d 1262 (7th Cir. 1993).
7th Circuit remands obstruction enhancement for failure to find that defendant committed perjury. (462) The district court imposed a two-level enhancement for obstruction of justice, but made no independent finding that defendant committed perjury. The 7th Circuit remanded for reconsideration. A district judge need not make an explicit finding of perjury if the jury verdict necessarily establishes the falsity of the defendant’s perjury. But here, defendant’s testimony was not necessarily found false by the jury verdict. Although defendant attempted to create the impression by his testimony that he was not involved in drug trafficking, he never broadly denied his involvement. Instead, he denied involvement only in the specific activities about which he was questioned. His repudiation of certain drug activities did not amount to a blanket denial of the charges contained in his indictment, which is the type of denial necessarily rendered false by the jury verdict. U.S. v. Jackson, 983 F.2d 757 (7th Cir. 1993).
7th Circuit upholds obstruction enhancement based upon defendant’s lies which misled government in prosecution of his supplier. (462) The 7th Circuit affirmed an enhancement for obstruction based upon defendant’s lies to the government about his involvement and activities in the conspiracy. These lies misled the government in its attempt to prosecute his supplier. U.S. v. Banks, 964 F.2d 687 (7th Cir. 1992).
7th Circuit rules misrepresentation of employment status did not justify obstruction enhancement. (462) Defendant told his probation officer and the court that he was employed at a particular brokerage firm as a broker-trainee for various times ranging from a few days to a few months prior to his arrest. In fact, defendant was never employed there. He had begun a training program at the firm which, if completed successfully, could lead to his employment as a sales representative on a commission basis. The 7th Circuit rejected defendant’s misrepresentation as a ground for an obstruction of justice enhancement because the misrepresentations were not material. However, the false information did support the district court’s decision to deny defendant a reduction for acceptance of responsibility. U.S. v. De Felippis, 950 F.2d 444 (7th Cir. 1991).
7th Circuit reverses obstruction enhancement despite defendant’s denial of drug use while on bail. (462) Based on defendant’s denial of his drug use while he was out on bail, the district court enhanced defendant’s sentence for obstruction of justice. The 7th Circuit reversed, finding that the 1990 amendments to the guidelines clarify that the enhancement is not intended to apply to those who exercise their constitutional right to refrain from incriminating themselves to authorities by denying wrongdoing. Under the revised section 3C1.1, a defendant’s refusal to admit guilt or provide information to a probation officer is not a basis for the enhancement. The court found no basis for distinguishing between statements made to a probation officer and those made to pretrial services officers. U.S. v. Thompson, 944 F.2d 1331 (7th Cir. 1991).
7th Circuit rejects denial of guilt to investigators as ground for obstruction enhancement but affirms on other grounds. (462) When initially confronted by postal inspectors concerning a fraudulent investment scheme, defendant claimed that she had properly invested the funds entrusted to her. When confronted with contrary information during the interview, defendant admitted that she lied, and signed a written confession. Before trial, she moved to suppress the confession, and testified falsely at the suppression hearing. The district court imposed a two-point enhancement for obstruction of justice based on defendant’s lies. The 7th Circuit held that defendant’s initial statement to investigators was no more than a denial of guilt, and thus was not a ground for enhancement under application note 3 to § 3C1.1. However, it was proper to enhance the sentence based on defendant’s lies at the suppression hearing. The court refused to adopt the 2nd Circuit’s requirement that the trial judge find that a defendant had a conscious purpose of obstructing justice. Nonetheless, in the future, district judges should use the specific language of § 3C1.1 to avoid recurrence of this issue. U.S. v. Barnett, 939 F.2d 405 (7th Cir. 1991).
7th Circuit reverses obstruction enhancement based upon defendant’s “misstatements” to investigators. (462) During a meeting with investigators, defendant described his activities at a crack house, identifying the supervisor of the crack house, and the leader of the conspiracy. The district court enhanced defendant’s sentence for obstruction of justice after finding that defendant gave a false statement to investigators concerning the activities of the leader. The 7th Circuit reversed, noting that defendant had provided a great deal of truthful information and that the government did not identify a single false statement. The defendant’s failure to provide more information was due as much to the government’s questions as to a failure to divulge information. It is natural for a cooperating witness not to reveal all he knows, for reasons ranging from retribution to a desire to keep the government interested in helping him. Moreover, even if defendant did willfully underplay the leader’s involvement, it was doubtful that the government could establish that defendant’s failure to disclose information “significantly” obstructed or impeded efforts to bring the drug conspiracy to an end. U.S. v. Jackson, 935 F.2d 832 (7th Cir. 1991).
7th Circuit rules district court may not rely solely upon guilty verdict to determine that defendant testified falsely. (462) Defendant testified at his trial that he had never handed drugs to a co-conspirator for delivery to an undercover government agent. The jury found defendant guilty of several drug-related counts. The district court enhanced defendant’s sentence for obstruction of justice, based entirely upon the jury’s verdict. Reviewing the matter de novo, the 7th Circuit found that a district judge may not rely entirely upon a jury’s guilty verdict to determine that a defendant obstructed justice by testifying falsely. The district court, “based upon its own observations of [defendant’s] testimony and other evidence, must independently determine whether the defendant lied on the witness stand. Imposing the penalty automatically from a jury verdict that concededly does not establish the defendant lied in his testimony impinges upon the right to testify in one’s behalf.” U.S. v. Lozoya-Morales, 931 F.2d 1216 (7th Cir. 1991), abrogation on other grounds recognized by U.S. v. Buchannan, 115 F.3d 445 (7th Cir. 1997).
7th Circuit reverses obstruction enhancement which was based upon defendant’s exculpatory statement. (462) During a traffic stop, defendant told a trooper that there was nothing illegal in the car. A subsequent search of the car uncovered marijuana and two handguns. The 7th Circuit reversed an enhancement for obstruction of justice based upon defendant’s exculpatory statement to the trooper. Although application note 3 of guideline § 3C1.1 excludes denials of guilt as grounds for an enhancement, the government contended that defendant’s statement was not a denial of guilt because defendant was not accused of any crime. The 7th Circuit rejected this reasoning, finding no basis for distinguishing between those denials of guilt uttered before the initiation of legal proceeding and those spoken after such proceedings have begun. U.S. v. Fiala, 929 F.2d 285 (7th Cir. 1991).
7th Circuit finds that defendant’s flight from arresting officers did not constitute obstruction of justice. (462) Police officers drove up to a farmhouse to speak to the residents about the marijuana growing in the field. Defendant and others fled through a back door and ran toward a cornfield. After a short chase, defendant was caught by the officer pursuing him. No one was hurt, although the officers fired several warning shots during the chase. Defendant was unarmed. The 7th Circuit found that these circumstances did not justify a sentence enhancement for obstruction of justice. In all other cases in which a defendant’s flight constituted obstruction, the flight was combined with other circumstances. Here, no such circumstances existed. The officers lives were never in danger, even though they did not know the defendant was unarmed they chased him. Defendant’s flight was merely the “instinctive flight of a criminal about to be caught by the law.” U.S. v. Hagan, 913 F.2d 1278 (7th Cir. 1990).
8th Circuit rejects obstruction increase where no evidence that defendant ordered assault on inmate. (462) The district court applied a two-level obstruction of justice increase to defendant for directing the assault of a federal inmate. However, the only reference in the record about this matter was contained in a bench conference that occurred at trial between the district judge and the attorneys. The government’s attorney stated that an inmate had been assaulted by an associate of defendant, and the judge stated that he was aware that an assault had been threatened but was unsure of whether the assault had occurred. Defendant objected to the PSR’s inclusion of an enhancement based on the assault. No evidence was admitted at the hearing or at trial indicating whether an assault even occurred or whether it was ordered by defendant. The Eighth Circuit held that the obstruction enhancement was improper. The PSR was not evidence. The government submitted no evidence to support the court’s finding that defendant ordered an assault. U.S. v. Mann, 701 F.3d 274 (8th Cir. 2012).
8th Circuit reverses obstruction increase where plot to kill informant after guilty plea did not affect “instant offense.” (462) Defendant pled guilty to drug and firearms charges. At sentencing, the district court applied a two-level increase for obstruction of justice based on its finding that after pleading guilty, defendant conspired to murder Lopez, a confidential informant in the case. The district court found that defendant’s motive was to retaliate against Lopez for his cooperation with the government. The Eighth Circuit reversed the obstruction enhancement because, after pleading guilty, defendant could not have intended to obstruct justice “with respect to the instant offense” unless he thought that Lopez was going to testify against him at sentencing. However, defendant had no reason to think that Lopez would be a witness at sentencing. Defendant could be prosecuted for plotting to kill Lopez, but the sentencing enhancement did not apply because there was no showing that the plot was intended to obstruct justice for the current offense. U.S. v. Galaviz, 687 F.3d 1042 (8th Cir. 2012).
8th Circuit reverses obstruction increase where court did not make independent finding of perjury. (462) Defendant was convicted of being a felon in possession of a firearm. In imposing an obstruction increase based on defendant’s perjury at trial, the court noted that defendant denied knowledge of the firearm being in the house, that there was circumstantial evidence of defendant having the only access to the area where the gun was found, that another individual testified that he had sold the gun to defendant, that the jury had found him guilty of the offense, and that in order to find him guilty, the jury must have necessarily found that his testimony was false. The Eighth Circuit found that the statement fell short of what was required to impose an obstruction increase. A court is required to make an independent determination that the defendant perjured himself. The court here observed only that the jury must have found defendant’s testimony to be false and then concluded that this finding was sufficient to impose the enhancement. U.S. v. Abdul-Aziz, 486 F.3d 471 (8th Cir. 2007).
8th Circuit holds that failure to appear at revocation hearing did not support obstruction increase. (462) The Eighth Circuit held that defendant’s failure to appear at a revocation hearing did not warrant a two-level obstruction of justice increase. First, the magistrate judge continued the revocation hearing that defendant failed to attend. The hearing initially scheduled for 3:30 pm on October 14 was continued to 9 am on October 16. Before the magistrate granted the continuance, defendant contacted her attorney, informed him of her need to return to her home town, received assurance from him that he would seek a continuance, and told him that she would be available the following day – October 15 – or any day later in the week. On October 16, defendant voluntarily attended the rescheduled hearing. In addition, the district court found that the initial hearing was scheduled on short notice and perhaps would not have gone forward because counsel had asked for a continuance in order to prepare. Given the unusual circumstances of the case, the district court erred in finding that defendant’s failure to appear for the October 14 revocation hearing constituted an obstruction of justice under § 3C1.1. The additional acts of obstruction cited by the district court (failure to provide two urine specimens and failure to appear for investigative interview) were not sufficiently egregious to constitute obstruction of justice. U.S. v. Peters, 394 F.3d 1103 (8th Cir. 2005).
8th Circuit remands for factual determination as to whether defendant committed perjury. (462) The government moved for an obstruction of justice increase, alleging that defendant committed perjury when he testified at trial. In considering the enhancement, the district court said “I don’t really have to find that he lied. I can simply find that the jury thought he lied.” The prosecutor explained that the court itself had to make this determination. However, the court later stated, in applying the enhancement, that to convict defendant, the jury had to find that they did not believe his testimony, and “I know of no reason why I should disagree with the jury’s finding in this case.” The Eighth Circuit held that the district court failed to make independent judicial findings, and remanded for resentencing. U.S. v. Flores, 362 F.3d 1030 (8th Cir. 2004).
8th Circuit says it is plain error to apply obstruction increase to career offender offense level. (462) When a defendant is sentenced under the career offender guideline, the only adjustment from Chapter Three of the guidelines that may apply is the adjustment for acceptance of responsibility under § 3E1.1. None of the other Chapter Three adjustments, whether upward or downward, apply to such a defendant. Accordingly, the Eighth Circuit ruled that the district court plainly erred in imposing a two-level obstruction of justice increase in addition to the offense level set by § 4B1.1. The panel rejected the government’s claim that the adjustment was favorable to defendant, because it caused the court to simultaneously grant him a three-level acceptance of responsibility reduction. Although the court did not make the required finding of an “extraordinary” case before applying § 3E1.1, the court’s comments did not indicate that it would have refused to grant the reduction if the obstruction increase had no applied. U.S. v. Warren, 361 F.3d 1055 (8th Cir. 2004).
8th Circuit rejects increase where obstructive conduct occurred before official investigation began. (462) Defendant was an investment advisor who embezzled his clients’ funds. After a suspicious investor demanded certain documentation or she would complain to authorities, defendant instructed his officer manager to delete various files from his computer system. The deleted files were later retrieved from the computer and provided to the FBI. The Eighth Circuit reversed a § 3C1.1 obstruction of justice increase because no official investigation relating to defendant’s offense was underway when he directed his manager to delete the computer files. Note 1 to § 3C1.1, which was added in 1998, states that the obstruction increase applies if “the defendant’s obstructive conduct … occurred during the course of the investigation, prosecution, or sentencing of the defendant’s instant offense of conviction.” The enhancement is inapplicable to obstructive conduct that occurs at any other time. The example in the application notes of a person shredding a document upon learning that an official investigation was about to commence would warrant application of the guideline only when a person did not commit the obstructive conduct until after the investigation had actually commenced. Although other courts have disagreed with this conclusion, this panel rejected those cases. U.S. v. Stolba, 357 F.3d 850 (8th Cir. 2004).
8th Circuit holds that court’s rejection of defendant’s version of events did not require obstruction increase. (462) At a suppression hearing, the magistrate judge rejected defendant’s testimony that he did not consent to the search of his residence. Instead, the court chose to credit law enforcement’s version. However, the district court refused to apply an obstruction of justice increase because it was not convinced that the suppression testimony rose to the level of obstruction. The court was unwilling to rule that defendant’s testimony “was the type of willful testimony taken on the record under oath that would warrant an obstruction enhancement.” Because the court did not make a finding of perjury, the Eighth Circuit ruled that the obstruction of justice enhancement was not required. U.S. v. Sanders, 341 F.3d 809 (8th Cir. 2003).
8th Circuit upholds refusal to apply obstruction increase despite defendant’s denials of guilt at trial. (462) At trial, defendant denied that he participated in any conspiracy to distribute methamphetamine and denied several other material matters. The district court refused to make a finding that defendant willfully gave false testimony concerning a material matter in the case, which finding would have mandated an obstruction of justice increase. The court noted, among other things, several contradictions in various witnesses’ testimony, a probable lie by one of the prosecution’s witnesses, the fact that the jury deliberated for a day and a half, the fact that defendant did not look evasive, and the fact that he merely made unembellished denials. The government, however, contended that the enhancement was warranted because the denials were material, and they were contrary to the jury verdict and thus, necessarily false. The Eighth Circuit found no clear error in the court’s determination not to enhance defendant’s sentence for obstruction of justice. The district court was of the view that defendant’s “no’s” were not perjurious, not that a simple denial of guilt, without more, was not perjurious as matter of law. The court simply found that the government did not prove by a preponderance of the evidence that defendant was lying. U.S. v. Aguilar-Portillo, 334 F.3d 744 (8th Cir. 2003).
8th Circuit reverses obstruction increase where government did not introduce direct evidence of perjury. (462) Defendant was convicted of being a felon in possession of a firearm. The district court applied an obstruction of justice enhancement because defendant testified that he was not in possession of the firearm. In finding that defendant’s testimony was untrue, the court noted that both a gun cleaning kit and a gun were found in defendant’s car, and it was “extremely unlikely that someone would have disposed of a gun cleaning kit along with a gun on that evening.” The government failed to introduce into evidence the gun, the gun cleaning kit, the holster, the recovered ammunition, or the ammunition clip. The government did introduce an inventory report, but not the actual evidence. The Eighth Circuit reversed the obstruction enhancement because the government did not introduce any direct evidence that defendant perjured himself. The court was “concerned the district judge relied upon evidence that was only introduced through a police inventory report,” and was “uncomfortable” with the enhancement based on “such scant evidence.” Judge Wollman dissented. U.S. v. Farmer, 312 F.3d 933 (8th Cir. 2002).
8th Circuit rejects obstruction increase for providing false name during traffic stop. (462) After selling crack twice to a cooperating witness, defendant was stopped for a traffic violation, and during that stop he incorrectly identified himself to the officer as Antoine Shepard. Nine months later, the government filed a three-count indictment against defendant and Mr. Shepard. When the government learned that the suspect in the second delivery was actually defendant, the counts against Shepard were dismissed, and a superceding indictment was filed against defendant charging him with both the first and second deliveries. Note 5(a) to USSG § 3C1.1 states that “providing a false name or identification document at arrest” is not grounds for an enhancement, “except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.” The Eighth Circuit reversed an § 3C1.1 increase, ruling that defendant did not significantly hinder the investigation or prosecution of what became the second charge against him. The government did not produce any evidence of the extent defendant’s dishonesty hindered its effort. Although an indictment had to be dismissed and another one filed, such a limited hindrance was not significant as a matter of law. U.S. v. Williams, 288 F.3d 1079 (8th Cir. 2002).
8th Circuit reverses obstruction increase for “accidental inconsistency” in defendant’s statements. (462) The district court found that defendant committed obstruction of justice by making inconsistent statements at his plea hearing and at sentencing. The Eighth Circuit reversed, finding defendant’s statements “amount[ed] to no more than an accidental inconsistency that [did] not rise to the level of obstruction of justice, as defined by the guidelines.” U.S. v. Thurmon, 278 F.3d 790 (8th Cir. 2002).
8th Circuit holds that defendant’s failure of polygraph test did not warrant obstruction increase. (462) At sentencing, the court stated that it was considering defendant’s request for a role in the offense reduction, but stated it would not take her word and suggested she should take a polygraph exam. Defendant then took a polygraph exam conducted by an examiner of her choice, and failed on the issue of her knowledge of drugs in the car. The district court applied an obstruction of justice increase, reasoning that defendant indirectly had attempted to give false testimony at sentencing in hopes of a lighter sentence. The Eighth Circuit held that defendant’s failure to pass the polygraph test did not warrant the obstruction increase. The government presented no evidence that defendant had lied in hopes of receiving a reduction in her role in the offense. The government failed to offer the examiner’s report, nor did the examiner testify as to his qualifications or the questions asked. In fact, although the court ordered the polygraph so that defendant could convince it that a role reduction was warranted, her alleged “failure” went to the issue of her knowledge of the drugs, which related to her guilt, not her role in the offense. In fact, the district court granted the role reduction based on its finding that the trial evidence showed she was a minor participant. “[T]here is simply no consensus that polygraph evidence is reliable.” Indeed, because of reliability concerns, the government initially opposed the court’s consideration of the polygraph evidence. Ortega v. U.S., 270 F.3d 540 (8th Cir. 2001).
8th Circuit holds that threatening letter was continuation of criminal conduct, not attempt to obstruct. (462) While serving time in state prison on assault and burglary convictions, defendant wrote the victim of those crimes, threatening her with bodily harm and threatening her minor daughter with sexual assault. He later wrote to another woman, threatening her and various female family members. Based on these two letters, defendant pled guilty to two counts of mailing threatening communications. The district court applied an obstruction of justice enhancement, finding defendant indirectly attempted to influence the recipient of the first letter not to testify at his sentencing hearing by sending her a threatening post-plea letter. The Eighth Circuit reversed this finding as clearly erroneous. It was far more likely that the letters were actually a continuation of the illegal conduct for which defendant was convicted. The letter did not refer, directly or indirectly, to testimony or even to any court proceeding. Moreover, there was nothing in the record to indicate that defendant believed that the victim might testify at his sentencing hearing. U.S. v. Amsden, 213 F.3d 1014 (8th Cir. 2000).
8th Circuit finds no evidence to support obstruction enhancement. (462) The probation officer recommended an obstruction of justice enhancement based on defendant’s alleged attempt to suborn perjury of a government witness. Defendant objected to the enhancement and the government apparently withdrew this claim for enhancement. Notwithstanding this withdrawal, the district court imposed the enhancement. The court held no hearing regarding the alleged obstruction and made no findings relating to the prosecuting attorney’s assertion. The Eighth Circuit remanded because there no evidence to support the enhancement. The district court assumed at sentencing that the obstruction enhancement applied, remarking that the government had met its burden of proving obstruction of justice by a preponderance of the evidence in the alleged subornation episode. This statement was error, in light of the government’s concession that it was not “hanging its hat” on the subornation claim. U.S. v. McKnight, 186 F.3d 867 (8th Cir. 1999).
8th Circuit says government did not prove perjury. (462) To conceal his income and assets from the IRS, defendant placed the warranty deed of his property in the name of a trust, and established a bank account in the name of a second trust to pay expenses. At trial, defendant testified vaguely about the terms of the trusts, referring the government to the trustee for more detailed information. The Eighth Circuit reversed an obstruction of justice enhancement, since the government did not prove that defendant perjured himself in regard to the existence of the trusts. Defendant alluded in his testimony to specific terms of the trusts not evident in the one-page document he produced at trial. The government’s investigation failed to uncover further trust documents. However, defendant testified that he paid a trust company in Arizona to form and record the trust documents. The government did not subpoena the trustee to testify at sentencing. At most, the record suggested that either these trust documents did not exist and defendant credulously accepted the trustee’s word as to their existence, or that the documents did exist and the government failed to unearth them. Either way, defendant did not perjure himself. U.S. v. Brooks, 174 F.3d 950 (8th Cir. 1999).
8th Circuit upholds refusal to apply obstruction enhancement for leaving the country. (462) In 1989, defendant was the target of a controlled buy of “crack” cocaine. He signed a plea agreement with federal prosecutors and agreed to cooperate. Defendant then provided information to federal authorities about certain drug trafficking. However, while scheduled to stand trial on state drug charges, defendant left the U.S., moved to Saudi Arabia, and remained abroad for five years. He was arrested after reentering the country, and was indicted on the current federal drug charges. The Eighth Circuit, without an extended discussion, upheld the district court’s refusal to apply an obstruction of justice enhancement based on defendant’s departure from the country. U.S. v. Sykes, 144 F.3d 564 (8th Cir. 1998).
8th Circuit finds no error in refusal to apply obstruction enhancement for misleading testimony. (462) Defendant was convicted of insider trading. The government claimed that he gave false and misleading testimony to the SEC during its investigation of defendant’s trading. The Eighth Circuit held that the district court did not abuse its discretion in finding that any false or misleading testimony by defendant did not rise to the level required by obstruction of justice. U.S. v. O’Hagan, 139 F.3d 641 (8th Cir. 1998).
8th Circuit does not require increase where defendant’s testimony was believable. (462) Defendant, a fee collection officer for a national park, stole money she had collected. She claimed the money was taken by a robber. The government appealed the district court’s refusal to apply an obstruction of justice enhancement based on defendant’s perjury at trial. The government claimed the enhancement was required because both the judge and the jury rejected her testimony. The Eighth Circuit disagreed, holding that the enhancement was not required because the court found that a reasonable trier of fact could have believed defendant’s testimony. No enhancement should be imposed based on a defendant’s testimony if a reasonable trier of fact could find the testimony true. Furthermore, the enhancement is proper only where the district court has made a separate and clear finding as to each element of perjury. The court did not make such findings and therefore no enhancement was required. U.S. v. Iversen, 90 F.3d 1340 (8th Cir. 1996).
8th Circuit reverses obstruction enhancement where defendant retracted false statements next day. (462) During an interview with a pretrial services officer, defendant lied about the length of time he had been in the U.S., his residence, education and parents. The following day, in an interview with an INS agent, defendant admitted the truth. The Eighth Circuit reversed an obstruction of justice enhancement, finding the false statements were not material under U.S. v. Yell, 18 F.3d 581 (8th Cir. 1994) since defendant had recanted them. The PSR contained the correct information. The district court even stated that the false statement did not hinder the prosecution of the offense, and the government admitted that they did not impede the investigation. U.S. v. Cardona-Rivera, 64 F.3d 361 (8th Cir. 1995).
8th Circuit says minimizing drug quantity was not material given other truthful disclosures. (462) The district court assessed a two point enhancement for obstruction of justice because, in meeting with the probation officer, defendant minimized the quantity of drugs he distributed. In his later motion to withdraw his guilty plea, defendant admitted that he minimized the quantity he sold, and corrected his statement. The 8th Circuit reversed the obstruction of justice enhancement. Although defendant minimized the drug quantity to his probation officer, he truthfully informed the court of the correct quantity on several occasions before sentencing. Thus, defendant’s single comment to the probation officer was not materially false, in light of his prior truthful disclosures to the court, as well as his subsequent effort to correct the inconsistency in his statements prior to sentencing. Judge Arnold dissented. U.S. v. Yell, 18 F.3d 581 (8th Cir. 1994) No. 93-1363.
8th Circuit refuses obstruction enhancement for advising witness to “stay strong” and “be quiet.” (462) The 8th Circuit upheld the district court’s refusal to impose an enhancement for obstruction of justice. Defendant’s admonition to a witness to “stay strong” and “be quiet” were not so plainly obstructive as to warrant the increase. U.S. v. Emmert, 9 F.3d 699 (8th Cir. 1993).
8th Circuit remands for hearing on whether counsel was ineffective in failing to appeal obstruction enhancement. (462) The district court summarily denied defendant’s motion to vacate his sentence under 28 U.S.C. §2255. The 8th Circuit remanded for an evidentiary hearing to consider defendant’s claim that counsel was ineffective in failing to appeal an enhancement for obstruction of justice. The record appeared on its face insufficient to support the enhancement: the enhancement was based on providing “material falsehoods” to the probation officer, yet it was not apparent how defendant’s interview answers impeded the investigation, and the district court simply accepted the probation officer’s unsupported assertion of materiality. There was no explanation of why counsel, having properly raised this issue at sentencing, failed to raise it on appeal. In these circumstances, the claim of ineffective assistance required an evidentiary hearing. Neary v. U.S., 998 F.2d 563 (8th Cir. 1993).
8th Circuit rejects obstruction adjustment for defendant who did not know he was under investigation. (462) While under investigation for drug crimes, defendant told a major customer that he would kill the customer if the customer ever “narked” on him. Because defendant did not know that he was under investigation at the time he made the threat, the district court did not impose an upward adjustment for obstruction of justice. Citing the rule of lenity, the 8th Circuit agreed that the defendant had not “willfully” obstructed justice as required by the guideline. Given defendant’s lack of knowledge of the investigation, it would be anomalous for defendant to receive the adjustment but not to be eligible for it if he had not been under investigation. U.S. v. Oppedahl, 998 F.2d 584 (8th Cir. 1993).
8th Circuit remands because government never proved specific instances of defendant’s perjury. (462) The district court imposed an enhancement for obstruction of justice based on defendant’s alleged perjury before the grand jury. However, the court failed to identify any specific instances of perjury and acknowledged that it was unfamiliar with the transcript of the grand jury hearing. The government never identified the instances of perjury either. The court’s willingness to assume the government could prove its allegations of perjury did not relieve the government of its burden to prove specific instances of the defendant’s perjury. U.S. v. Ransom, 990 F.2d 1011 (8th Cir. 1993).
8th Circuit rejects obstruction enhancement despite false statements to tribal investigator, probation officer and at trial. (462) Defendant was convicted of raping a 15-year old girl. The 8th Circuit upheld the district court’s refusal to enhance defendant’s sentence for obstruction of justice based upon his initial denial to the tribal investigator that he had sexual intercourse with the victim, his alleged perjurious statements under oath, and his repeating of these statements to the probation officer. Defendant’s statement to the tribal investigator was a general denial of guilt that was not made under oath. The general denial made by defendant to the probation officer was also not a proper basis for an obstruction enhancement. The district court specifically found that defendant’s testimony was not perjury and that an obstruction adjustment was not warranted. U.S. v. Yankton, 986 F.2d 1225 (8th Cir. 1993).
8th Circuit rejects obstruction enhancement despite discrepancies between grand jury testimony and debriefing statements. (462) The district court imposed an obstruction of justice enhancement based on the substantial discrepancies between defendant’s grand jury testimony and his debriefing statements. The government relied solely on the fact that defendant had given the grand jury less information than he had previously given the investigating officers. The materiality of such information was not evident. The alleged discrepancies had no impact on the government’s prosecution of defendant, and the government made no showing of how defendant impeded its investigation into drug trafficking by others. The enhancement could not be based upon perjury, since the district court did not find that defendant perjured himself. U.S. v. Cox, 985 F.2d 427 (8th Cir. 1993).
8th Circuit reverses obstruction based on concealment of counterfeit currency as double counting. (462) Defendant’s brother was arrested after attempting to pass a counterfeit bill. At the brother’s instruction, defendant removed additional counterfeit bills from the brother’s apartment and stored them in his girlfriend’s attic. He was convicted of possessing or concealing counterfeit currency. The 8th Circuit reversed an enhancement for obstruction of justice based upon his concealment of the currency as improper double counting. The offense to which defendant pled guilty included the elements of possession and concealment of the currency in question. The sentencing commission did not intend the obstruction enhancement to apply cumulatively to the same conduct. U.S. v. Lamere, 980 F.2d 506 (8th Cir. 1992).
8th Circuit reverses obstruction enhancement for failure to resolve disputed facts. (462) The sentence was enhanced for obstruction of justice based on the presentence report’s recommendations. The 8th Circuit reversed. Defendant specifically objected to the allegations in the presentence report. The district court — without requiring the government to produce evidence, without conducting an evidentiary hearing, and without making a specific finding — simply adopted the presentence report. The presentence report was not evidence. If the district court relied upon threats allegedly made to government witnesses, the court should have required the government to produce evidence of those threats. If the enhancement was based on the belief that defendant committed perjury, the district court should have made a more specific finding to that effect. U.S. v. Holt, 969 F.2d 685 (8th Cir. 1992).
8th Circuit remands because district court failed to make independent finding of defendant’s perjury at trial. (462) The 8th Circuit remanded for resentencing because the court imposed an enhancement for obstruction of justice based upon defendant’s perjury but did not make an independent finding that defendant committed perjury. While an enhancement may not be based solely upon a defendant’s failure to convince the jury of his innocence, it may be based on the trial judge’s express finding that defendant lied to the jury. The judge must make an independent evaluation and determination that defendant’s testimony was false. Here, the court merely noted defendant testified that his kidnapping victim went with him willingly, but that the jury’s verdict resolved this matter, and thus an obstruction enhancement was proper. This was an insufficient finding. U.S. v. Benson, 961 F.2d 707 (8th Cir. 1992).
8th Circuit affirms district court’s refusal to apply obstruction enhancement. (462) The 8th Circuit found no error in the district court’s refusal to apply an enhancement for obstruction of justice based on defendant’s testimony at trial. The district court determined that although defendant’s testimony at trial differed from his statement to the police that consensual sexual contact did occur, the “general tenor” was similar. The defendant’s mere denial of guilt is not a basis for the enhancement. U.S. v. Amos, 952 F.2d 992 (8th Cir. 1991), abrogated on other grounds by U.S. v. Allery, 175 F.3d 610 (8th Cir. 1999).
8th Circuit reverses obstruction enhancement where conduct was part of offense. (462) Defendant was convicted of bankruptcy fraud. The district court imposed a two level increase for obstruction of justice based upon defendant’s conduct in concealing assets from bankruptcy court officers and committing perjury during the bankruptcy proceedings. The 8th Circuit reversed, since this conduct was the basis for the criminal charges against him. An enhancement under guideline section 3C1.1 is limited to obstructive conduct that occurs during the investigation, prosecution, or sentencing of the charged offense. It does not apply to conduct that is part of the crime itself. U.S. v. Lloyd, 947 F.2d 339 (8th Cir. 1991).
8th Circuit reverses obstruction adjustment because defendant’s use of alias did not impede investigation. (462) The district court adjusted defendant’s offense level upward for obstruction of justice because he used an alias during his detention hearing and pre-bail interview. The 8th Circuit reversed, holding that the records showed that the officers knew that the defendant had used several aliases and they knew each name the defendant had used. Thus the defendant’s use of an alias did not impede the investigation, but actually confirmed the police suspicions. The court held that a sentencing judge must make a factual determination that the use of the alias was a material falsehood before it can be used to increase the defendant’s sentence. U.S. v. Blackman, 897 F.2d 309 (8th Cir. 1990), vacated and new opinion filed affirming sentence, 904 F.2d 1250 (8th Cir. 1990).
8th Circuit reverses “obstruction” adjustment for bank embezzler as “double counting.” (462) When the auditors arrived, defendant asked co-workers to help conceal his embezzlement. As a result, the district court enhanced his sentence for obstruction of justice under U.S.S.G. § 3C1.1. The 8th Circuit reversed, holding that although § 3C1.1 may sometimes reach conduct that is part of the crime itself, it may not be applied where that conduct is already accounted for under the guidelines for the offense. Here the offense of bank embezzlement “encompasses elements of fraud, deceit and concealment.” The court found it “difficult to imagine an embezzler who does not take some affirmative steps to conceal his wrongdoing.” The court reversed the adjustment for obstruction, stating that the Commission “did not intend for multiple guidelines sections to be construed so as to impose cumulative punishment for the same conduct. U.S. v. Werlinger, 894 F.2d 1015 (8th Cir. 1990).
9th Circuit finds false statements did not obstruct justice with regard to later extortion. (462) Defendant was convicted of sending extortionate letters to victims of a financial fraud demanding money in return for information about the fraud. Before sending those letters, defendant used a pipe bomb to destroy his own mailbox in an effort to show the investors that others were trying to prevent him from sharing the information. Defendant lied to Postal Service officers investigating the pipe bombing. At sentencing on his conviction for sending extortionate letters in violation of 18 U.S.C. § 875(b), the district court found that his lies to the Postal inspectors constituted obstruction of justice and increased his sentence under § 3C1.1. The Ninth Circuit held that the pipe bombing was not relevant conduct to the extortionate letters and that the district court erred in finding that defendant’s lies about the pipe bombing constituted obstruction of justice on the violation of § 875(b). U.S. v. Williams, 693 F.3d 1067 (9th Cir. 2012).
9th Circuit overturns obstruction enhancement based on attorney’s use of false declaration. (462) In seeking a severance from a codefendant, defendant filed a false sworn declaration executed by the codefendant. The district court granted the severance. Later, the district court learned that the declaration was false. In sentencing defendant, the district court held that the submission of the false declaration constituted obstruction of justice and enhanced defendant’s sentence under § 3C1.1, holding that defendant acted willfully in allowing her attorney to submit the false declaration. The Ninth Circuit held that the district court erred because the evidence did not show that defendant caused or helped bring about the submission of the false declaration. U.S. v. Reyes, 577 F.3d 1069 (9th Cir. 2009).
9th Circuit rejects contention that defendant believed false testimony. (462) At defendant’s trial for assaulting two military police officers, defendant testified that he had not assaulted the officers and instead that they had harassed and assaulted him. The jury rejected defendant’s version and credited the testimony of the police officers. At sentencing, the district court enhanced defendant’s sentence under § 3C1.1 because he lied during his testimony. On appeal, defendant argued that he honestly believed his version of events and therefore did not give false testimony. The Ninth Circuit found that the district court had not clearly erred in finding that defendant lied. U.S. v. Harrison, 585 F.3d 1155 (9th Cir. 2009) No. 08-10391.
9th Circuit says actions taken before investigation begins cannot support obstruction enhancement. (462) After murdering two women, defendant tried to burn his bloody clothing. On the night of the murder, defendant also told his brother, who had been present when the murders occurred, not to tell his girlfriend what had happened, and defendant threatened his brother with a knife when the brother said he would not keep quiet. At sentencing on defendant’s conviction for second-degree murder, in violation of 18 U.S.C. § 1153(a), the district court enhanced defendant’s sentence under § 3C1.1 for obstruction of justice. The Ninth Circuit held that defendant’s actions could not support an obstruction enhancement because they occurred before the police had begun an investigation. The court said that Application Note 4 to § 3C1.1, which allows imposition of the enhancement for actions taken by a defendant when he learns that an investigation is about to commence, is inconsistent with the language of the 2003 version of § 3C1.1. U.S. v. Rising Sun, 522 F.3d 989 (9th Cir. 2008).
9th Circuit finds obstruction enhancement improper for perjury in civil case prior to criminal investigation. (462) The commentary to the obstruction of justice guideline, § 3C1.1, note 8, states that when a defendant is convicted of an “obstruction offense” and the underlying offense to which the obstructive conduct occurred, the two offenses should be grouped under § 3D1.2 and the offense level for the group should be the offense level of the underlying offense increased by the two-point adjustment authorized in § 3C1.1. Defendant was convicted of mail fraud in connection with an insurance fraud scheme and of perjury in connection with a civil case arising out of the insurance fraud. At sentencing, the district court held that the perjury was an “obstruction offense” and applied the commentary to group defendant’s offense. The Ninth Circuit disagreed, holding that because the perjury occurred in a civil case prior to the underlying criminal investigation that led to defendant’s indictment, it was not an “obstruction offense” and should not have been grouped with the fraud counts. The court therefore reversed the obstruction enhancement. U.S. v. DeGeorge, 380 F.3d 1203 (9th Cir. 2004).
9th Circuit finds that district court did not implicitly find that defendant committed perjury. (462) Defendant rented a car that was used to transport drugs. He testified at his drug trafficking trial that he did not know that the drugs were in the car. The jury rejected this testimony and convicted him. At sentencing, the district court found that defendant’s claim that he was present during the drug deal by happenstance was not borne out by the testimony and that defendant was ineligible for a safety valve reduction, which requires a defendant to truthfully admit his role in the offense. The court refused, however, to enhance defendant’s sentence for obstruction of justice under § 3C1.1. On the government’s appeal, the Ninth Circuit held that the district court had not implicitly found that defendant committed perjury at trial and therefore was not required to impose an obstruction enhancement. U.S. v. Alvarado-Guizar, 361 F.3d 597 (9th Cir. 2004).
9th Circuit denies increase for obstruction of justice despite defendant’s testimony. (462) Viewing defendant’s testimony in the light most favorable to her, as required by Application Note 1 to § 3C1.1, the Ninth Circuit found no abuse of discretion in the district court’s decision not to increase defendant’s sentence for obstruction of justice in this arson case. Her in-court statements and her statement to the authorities that she suspected Anheuser-Busch to be the arsonist, “do not constitute a significant obstruction of or impediment to the investigation within the contemplation of the sentencing guidelines.” U.S. v. Beardslee, 197 F.3d 378 (9th Cir. 1999).
9th Circuit reverses obstruction increase for failure to make required perjury findings. (462) At sentencing, the district court increased defendant’s offense level by two levels for obstruction of justice under § 3C1.1 but failed to make an independent finding that defendant had committed perjury, as required by U.S. v. Dunnigan, 507 U.S. 87, 94 (1993). Instead, the district court relied solely on the inconsistency between the verdict and defendant’s testimony. The panel said that the presentence report’s conclusion that defendant testified falsely “may ultimately prove justified by the record,” but Dunnigan does not permit the judge to delegate to the presentence report writer the judicial fact finding function.” The sentence was reversed. U.S. v. Monzon-Valenzuela, 186 F.3d 1181 (9th Cir. 1999).
9th Circuit reverses increase for perjury, where findings did not support the court’s conclusion. (462) Defendant testified that “a portion” of the $43,070 in the storage locker was kept there for relatives. The district court concluded that this testimony must have been false “since over $4,000 was traced to funds the police gave [defendant’s] co-defendant to purchase methamphetamine.” The Ninth Circuit noted that the fact that 10% of the money in the storage locker was drug money did not mean that another “portion” of the money was not in fact being held by defendant for his relatives. There was no other evidence to support the obstruction of justice enhancement. Accordingly, the Ninth Circuit held the district court abused its discretion in increasing defendant’s sentence by two levels under § 3C1.1 for obstruction of justice. U.S. v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1998).
9th Circuit says giving false name at time of arrest was not obstruction. (462) Defendant presented false identification at the time of his arrest, and continued to deny his true identity for many hours until a fingerprint check revealed his true identity. The district court applied a two level upward adjustment for obstruction of justice under § 3C1.1, but on appeal, the Ninth Circuit reversed. Application Note 4(a) says the enhancement is not warranted for “providing a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the investigation or prosecution.” This application note governs lack of candor toward law enforcement officers, while application note 3(c) governs lack of candor toward the court. Defendant’s conduct also fell within the scope of application note 3(g), which provides that the obstruction of justice enhancement is warranted for “providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense.” Here, there was no evidence that the investigation was hindered by defendant’s false statements. The two level enhancement was reversed. U.S. v. Solano-Godines, 120 F.3d957 (9th Cir. 1997).
9th Circuit reverses where defendant did not encourage driver’s high speed chase. (462) Defendant was in the passenger seat after the robbery, as the driver recklessly tried to avoid capture by the police in a high speed chase. In a declaration at sentencing, defendant said that as soon as he saw the police, he told the driver to pull over. In a statement to the FBI at the time of arrest, defendant said he sat motionless while a passenger in the back seat constantly yelled for the drier to stop. The Ninth Circuit found that, even if defendant remained silent, that “does not appear to demonstrate his consent” to the driver’s actions, since he was the only one in the car who did not possess a gun. The enhancement for reckless endangerment under 3C1.2 appeared to be based solely on the fact that defendant entered the getaway car. This required reversal. U.S. v. Lipsey, 62 F.3d 1134 (9th Cir. 1995).
9th Circuit says becoming a fugitive, by itself, is not obstruction of justice. (462) Defendant’s sentence was increased by two levels for obstruction of justice, based on his flight from the jurisdiction, his determination to remain away until the trial of his co-defendants was over, and this use of aliases while hiding. The Ninth Circuit reversed the enhancement, ruling that “flight by itself is not an obstruction of justice.” The defendant’s purpose in remaining away “did not aggravate his flight and his aliases did not prevent his apprehension.” “To disappear from the jurisdiction and not disclose one’s whereabouts to the government does not warrant enhanced punishment.” U.S. v. Stites, 56 F.3d 1020 (9th Cir. 1995).
9th Circuit says refusal to cooperate with probation officer is not obstruction. (462) On appeal, the government argued that defendant obstructed justice by, on the advice of his attorney, not providing his current financial data to the probation officer. The Ninth Circuit found no merit in the argument, ruling that “cooperation with the probation officer is not required of a defendant at peril of increased imprisonment.” U.S. v. Stites, 56 F.3d 1020 (9th Cir. 1995).
9th Circuit finds obstruction and no acceptance of responsibility for lying to probation office. (462) Defendant lied to the probation office and conveniently omitted a conviction on his record which occurred during one of his periods “on the lam.” The Ninth Circuit concluded that this was at least an attempted obstruction of justice during sentencing, and accordingly affirmed the district court’s enhancement under § 3C1.1. Having found obstruction, it was also proper for the court to deny credit for acceptance of responsibility under § 3E1.1. U.S. v. Merino, 44 F.3d 749 (9th Cir. 1994).
9th Circuit reverses departure for high speed chase in alien smuggling case. (462) Defendant was transporting a load of illegal aliens. He led border patrol agents on a five-mile high speed chase on freeways near the border. The district court imposed an upward adjustment of two levels for “reckless endangerment during flight” under § 3C1.2. In addition, the court departed upward six levels for using the vehicle as a “dangerous instrumentality” under § 5K2.6, and because defendant abandoned the moving car and ran across the freeway. The 9th Circuit reversed, holding that defendant’s conduct in this case came within the “heartland” of dangerous flight from authorities that is covered by § 3C1.2. The high speed chase was relatively short, the aliens were not injured, and defendant’s flight after the automobile chase ended did not threaten the aliens. Moreover “a car is not a dangerous instrumentality under section 5K2.6 unless it is used with the intent to cause harm.” U.S. v. Torres-Lopez, 13 F.3d 1308 (9th Cir. 1994).
9th Circuit reverses obstruction enhancement that was based on defense lawyer’s objection to PSR. (462) Defense counsel filed an objection to the criminal history calculation in the presentence report stating in part that, “it is believed that all of these crimes were committed by someone else using [the defendant’s] identity card.” After the probation officer found that defendant was correctly identified in three of the four challenged cases, she concluded that defendant purposely attempted to mislead the court and recommended an adjustment for obstruction. The district court agreed and found the defendant willfully induced his lawyer to file the objection. The Ninth Circuit reversed, finding that it was sheer conjecture, unsupported by any facts, that the lawyer was directed by the client to mislead the court. The court concluded that the Sentencing Commission could not have meant to punish defendants for things they say to their lawyers when discussing legal strategy and that to hold otherwise could infringe on the Sixth Amendment right to effective legal assistance. U.S. v. Eirven, 987 F.2d 634 (9th Cir. 1993).
9th Circuit says that 25-mile high-speed chase was not obstruction of justice. (462) Defendant led the agents on a chase at speeds of over 100 miles per hour through villages and around various road blocks. He was finally stopped by an embankment, twenty-five miles later. Relying on U.S. v. Garcia, 909 F.2d 389, 392 (9th Cir. 1990), the 9th Circuit held that “fleeing from arrest” is not obstruction of justice and therefore it was error for the district court to enhance the defendant’s sentence. “Moreover, whether a defendant recklessly endangered others while fleeing bears no logical relation to whether that defendant was obstructing the law enforcement officers who were attempting to apprehend him.” The court noted that the guidelines were amended effective November 1, 1990 to provide an enhancement of two levels for recklessly endangering others during flight. See section 3C1.2. But that amendment took effect after defendant was sentenced. The court expressed no opinion on whether the facts of the case might justify an upward departure. U.S. v. Christoffel, 952 F.2d 1086 (9th Cir. 1991).
9th Circuit reverses obstruction of justice adjustment even though defendant was a fugitive for nine months. (462) After arresting the codefendants in a hand-to-hand sale, the agents attempted to locate and arrest defendant but could not find him. That evening they searched his residence pursuant to a search warrant and found indications that he had fled in a hurry. During the next nine months, they spent 200 hours searching for him before he was arrested. The district court enhanced his sentence for obstruction of justice under section 3C1.1. On appeal, Judges Pregerson, Goodwin and Alarcon reversed. The court noted that the plain language of Application Note 4(d) provides that the enhancement does not apply to defendant’s conduct in “avoiding or fleeing arrest.” The Note does not restrict its application to flights of short duration. Moreover, “a defendant’s failure to surrender to authorities is already considered under the guidelines in the acceptance of responsibility adjustment.” U.S. v. Madera-Gallegos, 945 F.2d 264 (9th Cir. 1991).
9th Circuit holds that “instinctive flight of a suspect” is not willful obstruction under 3C1.1. (462) When a customs inspector found marijuana in defendant’s car at the border, defendant fled back into Mexico. He was later arrested at his home in the United States. Relying on its earlier opinion in U.S. v. Garcia, 909 F.2d 389, 392 (9th Cir. 1990), the 9th Circuit reiterated that the “instinctive flight of a suspect who suddenly finds himself in the power of the police” is not willful obstruction of justice under guideline § 3C1.1. Nevertheless, since the district court had also found that defendant had lied to the probation officer about his criminal history, the court upheld the obstruction enhancement on that independent basis. U.S. v. Hernandez-Valenzuela, 932 F.2d 803 (9th Cir. 1991).
9th Circuit rejects obstruction adjustment based on mere flight. (462) After being stopped by police officers, defendant attempted to escape, but he was caught a short time later. The sentencing judge adjusted defendant’s offense level upward for obstruction of justice based on defendant’s flight. The 9th Circuit rejected the adjustment. Following the Second Circuit, the court held that “[m]ere flight in the immediate aftermath of a crime” does not establish obstruction of justice under the guidelines. The court noted that the guidelines which will become effective in November 1990 explicitly exclude flight from the obstruction-of-justice adjustment. U.S. v. Garcia, 909 F.2d 389 (9th Cir. 1990).
10th Circuit says court could not satisfy obligations to resolve disputed matters simply by adopting PSR. (462) The district court found that defendant obstructed justice by threatening a government informant. Defendant argued that the increase was erroneous because the court relied solely on hearsay statements and representations described second-hand in the PSR. It was undisputed that the government did not present any live witness or documentary evidence regarding the alleged intimidation incident at the sentencing hearing. At the conclusion of the hearing, the court stated that it was going to adopt the probation officer’s report in the PSR. Guideline § 6A1.3(b) requires a court to resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(c)(1). A district court may not satisfy its obligation under Rule 32(c)(1) by simply adopting the PSR as its finding. The Tenth Circuit held that the imposition of the obstruction increase was erroneous, because the court did not properly resolve disputed matters as to the increase. U.S. v. Guzman, 318 F.3d 1191 (10th Cir. 2003).
10th Circuit remands because court failed to make findings of materiality and willfulness. (462) A finding of perjury in support of an obstruction of justice enhancement must contain two components. First, the finding must encompass all of the factual predicates of perjury. Second, the finding must specifically identify the perjured testimony. The elements of perjury are that a witness: (1) gives false testimony; (2) concerning a material matter; and (3) with willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory. The district court’s findings addressed the first element, but failed to address the necessary findings of materiality and willfulness. Because the court failed to make any findings as to the materiality and willfulness, the Tenth Circuit remanded to give the district court the opportunity to make the necessary findings. U.S. v. Quarrell, 310 F.3d 664 (10th Cir. 2002).
10th Circuit rejects increase where obstructive conduct occurred contemporaneously with arrest. (462) While high on methamphetamine, defendant ran a stop sign and struck a pick-up truck. Witnesses observed defendant get out of his car, drop something in the dirt, and then kick the dirt, apparently attempting to bury the item. Defendant then put something in his car’s trunk. Police also saw defendant kicking the dirt. They found weapons in the trunk of his car, methamphetamine on his person, and a partially buried box containing a scale and methamphetamine. Defendant was convicted of drug and firearms charges. The district court found that defendant’s attempt to conceal drugs and guns at the accident scene constituted obstruction of justice under § 3C1.1, but the Tenth Circuit reversed. Application Note 3(d) provides that concealing or destroying evidence does not warrant an obstruction enhancement if it occurs contemporaneously with arrest. Here, defendant’s attempt to conceal the methamphetamine involved a “reflexive response occurring at the point arrest becomes imminent.” Thus, it fell within the exception for conduct occurring contemporaneously with arrest. U.S. v. Norman, 129 F.3d 1393 (10th Cir. 1997).
10th Circuit directs court to explain obstruction of justice enhancement. (462) The district court enhanced defendant’s sentence for obstruction of justice, noting that it concurred in the government’s position that the adjustment was justified because defendant committed perjury. The Tenth Circuit remanded for more specific findings to support the § 3C1.1 enhancement. Even if the court incorporated the arguments in the government’s sentencing memo, this cannot satisfy Dunnigan’s requirement that the court make independent findings necessary to establish a willful impediment to, or obstruction of, justice. Judge Anderson dissented. U.S. v. Copus, 110 F.3d 1529 (10th Cir. 1997).
10th Circuit reverses where perjury finding did not cover all requisite factual predicates. (462) The Tenth Circuit reversed an obstruction of justice enhancement where the district court’s finding of perjury did not encompass all of the requisite factual predicates. The court’s findings adequately identified defendant’s perjurious testimony. However, the court did not find, even generally, that defendant was untruthful about a material matter or that he willfully intended to provide false testimony. Nonetheless, the error was harmless because the district court made it clear at sentencing that defendant’s sentence would be the same regardless of the enhancement for obstruction of justice. U.S. v. Medina‑Estrada, 81 F.3d 981 (10th Cir. 1996).
10th Circuit holds perjury finding inadequate. (462) Defendant was observed by police getting off a bus from Los Angeles carrying a small plastic cooler and getting into a car monitored by police. Police chased the car and apprehended defendant and the driver. The third man in the car escaped. They found cocaine hidden in the cooler’s liner. Defendant testified at trial that another occupant put the cocaine in the cooler after he had gotten into the car. The testimony was not contradicted by any other witnesses—the driver died in an unrelated incident before trial. The district court found defendant’s testimony was “false” and imposed a § 3C1.1 enhancement. The Tenth Circuit reversed, holding the court’s perjury findings were inadequate. The court did not find that defendant was untruthful about a material matter or that he willfully intended to provide false testimony. The court also failed to identify the perjured statement. U.S. v. Smith, 73 F.3d 1414 (6th Cir. 1996).
10th Circuit directs court to identify perjurious statements. (462) The district court imposed an obstruction of justice enhancement based on defendant’s trial perjury, stating that defendant “denied his participation [in the drug conspiracy], denied several facts.” The Tenth Circuit remanded for further findings to support the enhancement. A finding that a defendant falsely denied involvement in the charged offense will not support the enhancement, since it may be nothing more than a general denial of guilt. The finding that defendant lied about “several facts” was patently inadequate because it did not convey any information about which facts the district court believed he misstated. U.S. v. Owens, 70 F.3d 1118 (10th Cir. 1995).
10th Circuit reverses obstruction enhancement for mere denial of guilt. (462) During an interview with a Customs Agent, defendant denied ever selling drugs at any time. During a detention hearing defendant requested pretrial release because he had never sold or delivered any drugs at any time. These statements were false. The Tenth Circuit reversed an obstruction enhancement, ruling that these statements were no more than denials of guilt or refusals to provide information. Denials of guilt or refusals to talk cannot serve as the basis for an obstruction of justice enhancement. U.S. v. Pelliere, 57 F.3d 936 (10th Cir. 1995).
10th Circuit rejects increase for obstruction that occurred before investigation of instant offense. (462) Defendant’s boyfriend was arrested for firing shots outside his apartment. After he was taken into custody, defendant gathered up explosive materials in the boyfriend’s apartment and hid them in the basement. At the time, defendant was unaware of any investigation in connection with the manufacture of explosives. Later that day police returned to the apartment and found the explosives. Defendant was convicted of conspiring to manufacture explosive materials. The Tenth Circuit reversed an obstruction of justice enhancement based on defendant’s concealment of the explosives, holding that the obstructive conduct must be undertaken during the investigation, prosecution or sentencing of the instant offense. The court disagreed with U.S. v. Dortch, 923 F.2d 629 (8th Cir. 1991), which applied the enhancement to a defendant who obstructed justice with knowledge of an investigation unrelated to the offense of conviction. U.S. v. Gacnik, 50 F.3d 848 (10th Cir. 1995).
10th Circuit remands for findings on elements of perjury and identification of perjurious statements. (462) The district court found that defendant committed perjury and enhanced her sentence for obstruction of justice. The Tenth Circuit remanded because the court failed to make even generalized findings as to each of the elements of perjury, and failed to identify the statement that it concluded was perjurious. Without such identification, an appellate court cannot review the record to determine whether it supports the findings of falsity, materiality, and willful intent. U.S. v. Massey, 48 F.3d 1560 (10th Cir. 1995).
10th Circuit vacates obstruction enhancement based solely on jury’s verdict. (462) The district judge found, based solely on the jury’s guilty verdict, that defendant perjured himself at trial and thus deserved an obstruction of justice enhancement. The 10th Circuit vacated the enhancement because the judge failed to make independent findings necessary to establish that defendant’s trial testimony constituted perjury. On remand, if the court determines that a § 3C1.1 enhancement is appropriate, it must state what specific testimony it finds to be untrue and how that testimony concerned a material matter designed to substantially affect the outcome of the case. U.S. v. Arias-Santos, 39 F.3d 1070 (10th Cir. 1994).
10th Circuit reverses district court’s perjury findings. (462) Defendant, the president of a bank holding company, was charged with defrauding the company by selling leasehold improvements, attempting to buy them back, and when the buyer refused, booking them as if they were retained. The district court found that defendant committed perjury four times in the sale/leaseback transaction. On appeal, the 10th Circuit reversed, holding that some of the allegedly perjurious statements were not contradicted, and others were not material. U.S. v. Hilliard, 31 F.3d 1509 (10th Cir. 1994).
10th Circuit remands for perjury findings required by Dunnigan. (462) The district court imposed enhancements for obstruction of justice on two defendants, finding they did not testify truthfully, and that the testimony was an attempt to obstruct justice. The government conceded that these findings were insufficient under U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). The 10th Circuit agreed and remanded for resentencing. U.S. v. Yost, 24 F.3d 99 (10th Cir. 1994).
10th Circuit rejects obstruction enhancement for failure to make independent finding of perjury. (462) The 10th Circuit rejected an enhancement for obstruction of justice based on defendant’s perjury where the district court failed to make an independent finding that defendant committed perjury. Instead the district court apparently concluded that defendant had committed perjury because she testified to her innocence and the jury subsequently found her guilty. This was not a sufficient basis for the 3C1.1 enhancement. U.S. v. Markum, 4 F.3d 891 (10th Cir. 1993).
10th Circuit vacates obstruction adjustment for conduct unrelated to counts of conviction. (462) Defendant pleaded guilty to two counts of a six-count indictment. The district court enhanced defendant’s offense level for obstruction of justice, but the 10th Circuit reversed. An obstruction enhancement must be related to the counts of conviction. The acts relied on by the district court were unrelated to the counts of conviction; it was not apparent how they could have impeded investigation of the counts to which defendant pleaded guilty. The 10th Circuit refused to affirm the adjustment based on the government’s claim that defendant had testified untruthfully at the sentencing hearing, noting that this ground was not relied on by the district court. U.S. v. Levy, 992 F.2d 1081 (10th Cir. 1993).
10th Circuit addresses waived argument that obstruction adjustment improper. (462) Stating that “the imposition of an illegal sentence constitutes plain error,” the 10th Circuit permitted defendant to argue on appeal that his obstruction adjustment was improper because it was based on conduct unrelated to the crimes of conviction. Additionally, the court noted that although defendant had not raised this precise argument below, he had objected to the factual allegations supporting the adjustment and had stated that the allegations “were incorporated into a count that the government had agreed to dismiss.” The government had summarized defendant’s objection, in an amendment to the presentence report, as an “argument that the alleged conduct is not included in the count of conviction.” U.S. v. Levy, 992 F.2d 1081 (10th Cir. 1993).
10th Circuit remands to clarify whether obstruction enhancement was correctly applied. (462) Defendants each received an enhancement for obstruction of justice for providing a false name, date of birth and place of birth. The 10th Circuit remanded for reconsideration, because it was unclear whether defendants’ conduct was an “actual, significant hindrance” to the investigation, as required by U.S. v. Urbanek, 930 F.2d 1512 (10th Cir. 1991). Here, although all defendants used their aliases throughout trial, their true names were known by that time and were used by various witnesses. Although fingerprinting, checking and cross-referencing may have been required, the investigation was not significantly hindered. The case was remanded to determine whether the enhancement was appropriate under the principles of Urbanek. U.S. v. Robinson, 978 F.2d 1554 (10th Cir. 1992).
10th Circuit affirms refusal to apply obstruction enhancement even though judge and jury did not believe defendant’s testimony. (462) At defendant’s trial for selling drugs to a government informant, defendant raised an entrapment defense, testifying that he had never sold drugs before this sale. Defendant was nonetheless convicted. The 10th Circuit affirmed the district judge’s refusal to apply an enhancement for obstruction of justice, since the jury’s conviction did not amount of a finding of perjury. The jury’s rejection of the entrapment claim may have been based upon a finding that defendant was predisposed to commit the crime, rather than a disbelief of his testimony. Although the district court also found that (a) neither it nor the jury believed defendant’s testimony, and (b) defendant was not truthful and had not accepted responsibility, these statements did not constitute a finding of perjury. An appellate court will not reverse a district court’s finding that an obstruction of justice enhancement is not appropriate unless the record clearly indicates that the defendant committed or suborned perjury. U.S. v. Hansen, 964 F.2d 1017 (10th Cir. 1992).
10th Circuit reverses obstruction enhancement for defendant who lied to IRS about income and bank accounts. (462) Defendant told IRS investigators that he had not worked and had no income or bank account during the years in which he did not file a tax return. He denied receiving income under a business name or alias, and contended that his failure to file tax returns was due to an alcohol abuse problem. These statements were all lies, and when confronted with evidence to the contrary, he immediately retracted his statements. Since none of these statements impeded the IRS investigation, the 10th Circuit reversed the enhancement for obstruction. The application notes to the November 1990 guidelines clarify that the obstruction guideline does not apply to making false statements, not under oath, to law enforcement officials, unless the statements significantly impede the investigation. U.S. v. Urbanek, 930 F.2d 1512 (10th Cir. 1991).
11th Circuit reverses reckless endangerment increase for lack of specific findings. (462) Defendant was a passenger in a getaway car whose driver led a dangerous police chase from a robbery. Defendant challenged a § 3C1.2 enhancement for recklessly creating a substantial risk of death or serious bodily injury during flight. The Eleventh Circuit reversed, ruling that two of the facts relied on by the government were insufficient to prove that defendant actively encouraged the driver’s dangerous conduct, and the court did not make the requisite finding on a third fact. First, the extent of premeditation behind the robbery did not prove that defendant must have been involved in planning how they would escape if the police arrived during the robbery. Planning a crime does not “relate at all” to a defendant’s responsibility for the driver’s recklessness during a getaway. Second, the fact that defendant fled on foot after the driver crashed the getaway car did not show that defendant played any active supporting role in the recklessness of the car-flight. Finally, the district court did not make a finding on whether defendant was aware that police were on the scene when he decided to get in the getaway car. U.S. v. Johnson, 694 F.3d 1192 (11th Cir. 2012).
11th Circuit rejects increase for reckless endangerment where defendant did not know officers were in pursuit. (462) During a supervised visit, defendant absconded with his four-year old son and drove to St. Petersburg, Florida, where they boarded defendant’s sail–boat and sailed into the Gulf of Mexico. The Coast Guard later located the sailboat in international waters heading to Mexico. The Coast Guard monitored the sailboat from a distance of eight nautical miles, and the following morning, boarded the boat. Defendant fully cooperated and the child was returned to his mother that evening. The Eleventh Circuit rejected a § 3C1.2 enhancement for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. Defendant conceded that he recklessly created a substantial risk of death or serious bodily injury to his son by taking him aboard the sailboat. However, enhancement is applicable only where the defendant knows he is fleeing from a law enforcement officer who is in pursuit of the defendant. Defendant was not fleeing any particular law enforcement officer and was unaware of the pursuit by the Coast Guard until the pursuit was over. U.S. v. Martikainen, 640 F.3d 1191 (11th Cir. 2011).
11th Circuit holds that defendant’s flight did not recklessly endanger others. (462) Defendant attempted to escape from law enforcement officers at the door of his apartment by lowering himself from his third floor apartment using bed sheets that had been tied together. After the sheets separated, defendant fell two stories, stumbling into a fence. In the course of attempting to subdue defendant, one of the agents tackled defendant and prevented his escape. As a result of the tackle, the officer sprained his left index finger. The Eleventh Circuit reversed a § 3C1.2 reckless endangerment enhancement. Flight alone is insufficient to warrant the enhancement. Although the agent injured his finger by tackling defendant, this kind of injury may occur anytime a defendant flees. It is defendant’s conduct, not that of pursuing officers, that much recklessly create the substantial risk of injury to others. U.S. v. Wilson, 392 F.3d 1243 (11th Cir. 2004).
11th Circuit says release under false identity did not support obstruction increase without finding of significant hindrance to investigation. (462) At the time of his arrest on fraud charges, defendant identified himself to authorities as “James Wyckoff III,” and provided a state identification card with the same name. Later that day, he was released on a $5,000 bond under the name James Wyckoff III. Several months later, a bondsman informed the Secret Service that James Wyckoff was in fact defendant, and that he had been arrested in another state for identity theft and credit card fraud. The district court applied an obstruction of justice increase because defendant “bonded out under a false name and investigating agents would have lost him had it not been for a bondsman contacting them after the defendant incurred new charges….” Because the application notes following § 3C1.1 permit the enhancement only if the false name “actually resulted in a significant hindrance to the investigation or prosecution of the instant offense,” the Eleventh Circuit vacated defendant’s sentence and remanded for resentencing. The district court did not make any findings on this issue, and the appellate court could not review the sentence until after findings were made by the sentencing court in the language of § 3C1.1. U.S. v. Banks, 347 F.3d 1266 (11th Cir. 2003).
11th Circuit defers to district court’s finding of no perjury at trial. (462) The government challenged the court’s refusal to apply a § 3C1.1 obstruction of justice enhancement, arguing that it identified three instances of defendant’s perjury at trial that were material. However, the Eleventh Circuit found no clear error. “With only a cold, paper record before it, an appellate court is severely hindered in evaluating whether a defendant perjured himself at trial. The district court is uniquely suited to make such a determination because it heard all of the evidence and was able to observe a particular witness’ demeanor and behavior on the witness stand.” U.S. v. McDonald, 935 F.2d 1212, 1219 (11th Cir. 1991). U.S. v. Hasner, 340 F.3d 1261 (11th Cir. 2003).
11th Circuit rejects foreseeability standard for reckless endangerment. (462) When police began following their get-away vehicle, defendants jumped out of the car and were apprehended. Irvan, as sole occupant of the car, then led police on a high speed chase. The district court enhanced defendants’ sentence under § 3C1.2 for reckless endangerment during flight, finding the chase was a reasonably foreseeable consequence of their bank robbery. See § 1B1.3(a)(1)(B). However, note 5 to § 3C1.2 says that a defendant “is accountable for his own conduct and for conduct that he aided and abetted, counseled, commanded, induced, procured, or willfully caused.” The Eleventh Circuit ruled that note 5’s standard was controlling rather than the reasonable foreseeability standard in § 1B1.3. Chapter Three adjustments are to be applied consistent with § 1B1.3(a)(1)(B) “[u]nless otherwise specified.” Note 5 is an instance “otherwise specified.” Under note 5, to impose reckless endangerment enhancement on someone other than the person who directly engaged in the reckless activity, the defendant must have engaged in some form of active participation within the meaning of note 5. The fact that the conduct was reasonably foreseeable is not sufficient. U.S. v. Cook, 181 F.3d 1232 (11th Cir. 1999).
11th Circuit suggests departure for firing gun while fleeing from non-officer citizens. (462) After robbing a bank, defendant fled on foot, chased by several customers. He turned, fired his gun at them, and missed. The district court imposed a § 3C1.2 enhancement for “recklessly creat[ing] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” On defendant’s first appeal, U.S. v. Sawyer, 115 F.3d 857 (11th Cir. 1997), an Eleventh Circuit panel reversed, finding that § 3C1.2 did not apply unless the defendant was actually fleeing from a law enforcement officer. At resentencing, the district court reimposed the same enhancement. The Eleventh Circuit again reversed, for the same reasons. The court noted, however, that firing the gun while fleeing from non-officer citizens appeared to be an aggravating circumstance that the Sentencing Commission did “not adequately take into consideration … in formulating” the Guidelines.” 18 U.S.C. § 3553(b). Thus, on remand the district court may consider an upward departure on this basis. U.S. v. Sawyer, 180 F.3d 1319 (11th Cir. 1999).
11th Circuit says computer printout showing arraignment and sentence did not prove arrest. (462) The district court applied a § 3C1.1 obstruction of justice enhancement because when asked about his arrest history, defendant failed to acknowledge a 1983 “arrest” in Massachusetts for assault and battery. Defendant admitted that he did not mention this offense, but claimed that he was not arrested on the 1983 charge. The Eleventh Circuit reversed the § 3C1.1 enhancement because the government failed to prove that defendant was arrested on the 1983 charge. At sentencing, the government presented a computer printout from the Massachusetts court reflecting, at most, an arraignment date, a conviction and probation for the 1983 charge. The district court reasoned that because defendant was sentenced, he must have been previously arrested. Although this inference was reasonable, courts “must not speculate concerning the existence of a fact which would permit a more severe sentence under the guidelines.” The printout, by itself, was not “reliable and specific” proof that defendant was arrested on the 1983 charge, in the face of defendant’s assertion that the charge involved a notice to appear. The printout was inconclusive on whether defendant was arrested. U.S. v. Cataldo, 171 F.3d 1316 (11th Cir. 1999).
11th Circuit says flight from citizen’s arrest does not qualify for § 3C1.2 increase. (462) Defendant robbed a bank. Several bank customers pursued him as he fled the scene. While fleeing, he turned back and shot at the crowd of customers but did not hit anyone. The district court applied a § 3C1.2 enhancement for creating a risk of death or serious bodily injury when fleeing from a law enforcement officer. Although no police officer was in sight when defendant fired his gun, the district court found that the enhancement applied because the individuals following defendant were authorized to make a citizen’s arrest. The Eleventh Circuit held that § 3C1.2 does not apply unless the defendant is actually fleeing from a law enforcement officer. An individual’s ability to make a citizen’s arrest does not render that person a “law enforcement officer.” U.S. v. Sawyer, 115 F.3d 857 (11th Cir. 1997).
11th Circuit holds that conduct must obstruct investigation of offense of conviction. (462) Defendant acted as a confidential informant in connection with some individuals who were growing marijuana in a local national forest. At some point after becoming an informant, defendant began harvesting marijuana from the forest and selling it without the knowledge or approval of police. The 11th Circuit reversed an obstruction of justice enhancement based on defendant’s removal of the marijuana. To justify a § 3C1.1 enhancement, a defendant must obstruct the investigation of the offense of conviction. Although defendant’s conduct may have obstructed the investigation of the marijuana growing conspiracy, it did not obstruct the investigation of defendant’s possession with intent to distribute offense. U.S. v. Bagwell, 30 F.3d 1454 (11th Cir. 1994).
11th Circuit, en banc, holds that moving to avoid arrest is not obstruction of justice. (462) After defendants had engaged in plea discussions with the U.S. Attorney in Atlanta, they moved to California without leaving a forwarding address. Later, they were indicted. The 11th Circuit, en banc, held that an obstruction enhancement does not apply to persons who disappear when they learn of a pre-indictment investigation into their criminal activity. Defendants’ sentences should not have been enhanced for moving to avoid arrest. However, defendants may have engaged in additional conduct while avoiding arrest that would warrant the enhancement. The court’s findings were insufficient to support the adjustment. Clear factual findings were necessary to assess whether one or both defendants did more than simply move to avoid arrest. U.S. v. Alpert, 28 F.3d 1104 (11th Cir. 1994) (en banc), superseding 989 F.2d 454 (11th Cir. 1993).
11th Circuit holds that investigation by bank auditor is not an official investigation under section 3C1.1. (462) Defendant, a bank lending officer, made unauthorized advances from a customer’s credit line. When confronted by bank auditors, he contended the advances were authorized. He then coerced the customer to verify that the advances were authorized. The customer later recanted this statement. The district court imposed an enhancement for obstruction of justice based on his coercion of the customer. The 11th Circuit reversed, ruling that the auditors’ investigation was not “an official investigation” as contemplated by section 3C1.1. Because no official investigation connected to law enforcement or any other governmental entitled had been initiated, defendant’s acts merely furthered a scheme of conduct constituting the crime of embezzlement by a bank officer. U.S. v. Kirkland, 985 F.2d 535 (11th Cir. 1993).
11th Circuit vacates obstruction enhancement because judge failed to independently find perjury. (462) Defendant received an enhancement for obstruction of justice based upon his perjury at trial. The 11th Circuit remanded for resentencing, because the sentencing judge failed to make a finding, independent of the jury’s verdict, that defendant willfully lied at trial. A jury’s verdict is not conclusive on this issue. A sentencing court must make its own decision, informed but not dictated by the jury’s verdict. U.S. v. Lawrence, 972 F.2d 1580 (11th Cir. 1992).
11th Circuit vacates obstruction enhancement where no evidence that false statement to IRS agent impeded the investigation. (462) Defendant filed an altered federal tax lien in an effort to avoid the lien. Defendant told an IRS investigator that he had never seen the “voided” lien and did not know who had filed it. The 11th Circuit reversed an enhancement for obstruction of justice based upon defendant’s false statement to the IRS investigator. Application note 4 to section 3C1.1 states that making false statements, not under oath, to law enforcement officers does not warrant an obstruction enhancement. There was no evidence in the record that defendant’s false statement “significantly obstructed or impeded the official investigation. The government failed to refute defendant’s claim that the IRS agent was never deceived by defendant’s statement. The government had the burden of proving the applicability of the enhancement, and failed to meet its burden. U.S. v. Shriver, 967 F.2d 572 (11th Cir. 1992).
11th Circuit reverses obstruction enhancement for use of false name upon arrest. (462) The 11th Circuit reversed an enhancement for obstruction of justice based on defendant’s use of a false name when he was first arrested. A clarifying amendment (which became effective after defendant was sentenced) to section 3C1.1 now states that providing a false name at arrest does not warrant an obstruction enhancement except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense. Here, there was no such evidence. Shortly after he was arrested, and prior to booking, defendant gave police his real name. U.S. v. Shores, 966 F.2d 1383 (11th Cir. 1992).
11th Circuit rejects obstruction enhancement for defendant who hid Coast Guard boarding slip in his shoe. (462) Defendant was arrested after Customs agents in Naples Florida discovered marijuana on a sailboat in which defendant was a passenger. When the agents boarded the vessel, defendant and the other passengers misrepresented that the boat had come from Key West, Florida, instead of Jamaica. In fact, several days prior to arriving in Naples, the boat was stopped and boarded by the Coast Guard. Customs agents were aware of this fact at the time they boarded the vessel. The district court imposed an obstruction of justice enhancement because defendant had hidden the Coast Guard boarding slip in his vessel. The 11th Circuit reversed, since defendant’s conduct did not materially hinder the government’s investigation or prosecution of the crimes. At the time of defendant’s arrest, the Customs agents already possessed all of the information contained on the boarding slip. U.S. v. Savard, 964 F.2d 1075 (11th Cir. 1992).
11th Circuit rules false assertions to probation officer were not material because they conflicted with jury’s verdict. (462) Defendant was convicted of drug charges based upon evidence that he was traveling with a companion who had a claim check for a suitcase containing cocaine. The 11th Circuit reversed an enhancement for obstruction of justice based upon defendant’s assertions to his probation officer that he knew nothing about cocaine found in the suitcase and that he was with his companion only because the companion offered to buy him a plane ticket if he would drive a car back to Miami. After defendant was sentenced, application note 4 to section 3C1.1 was amended to provide that an obstruction enhancement is not warranted for providing misleading information, not amounting to a material falsehood, in respect to a presentence report. The court held that this amendment to the commentary was merely a clarification of section 3C1.1, and thus could be considered on appeal. Defendant’s assertions did not as a matter of law justify the enhancement because a pre-sentence assertion cannot be material to sentencing if the assertion’s truth requires the jury’s verdict to be erroneous. The probation officer would have to disregard the jury’s determination in order to believe defendant’s assertions. U.S. v. Gardiner, 955 F.2d 1492 (11th Cir. 1992).
11th Circuit refuses to require obstruction enhancement despite contradictions in defendant’s testimony. (462) The government appealed the district court’s refusal to impose a two-level enhancement for obstruction of justice based on defendant’s perjury at trial. The 11th Circuit refused to require the enhancement, noting that although there were “apparent contradictions” in defendant’s trial testimony, it was not clear that the examples justified reversal. U.S. v. Stubbs, 944 F.2d 828 (11th Cir. 1991).
11th Circuit defers to district court decision not to enhance sentence for obstruction of justice. (462) The government argued that the district court should have made a two-level upward adjustment for obstruction of justice under guideline § 3C1.1 on the ground that defendant perjured himself in making out his entrapment defense. The 11th Circuit deferred to the district court’s judgment, and affirmed. “The district court is uniquely suited to make such a determination because it heard all the evidence and was able to observe a particular witness’ demeanor and behavior on the witness stand. Although the district court found that portions of [defendant’s] testimony was severely compromised by the testimony of more credible witnesses, it found that these inconsistencies did not rise to such a level as to require an upward adjustment in the sentence.” U.S. v. McDonald, 935 F.2d 1212 (11th Cir. 1991).
11th Circuit reverses obstruction enhancement because misrepresentation to probation officer was not material. (462) The district court increased defendant’s offense level for obstruction of justice because it found that defendant failed to reveal the extent of his prior drug transactions with a co-defendant to the probation office during the presentence interview. The 11th Circuit reversed the enhancement because it found that the misrepresentation was not material. It stated that a court should consider clarifying amendments when interpreting the guidelines, even when sentencing defendants convicted before the effective date of the amendments. Under the commentary to the guidelines that became effective November 1, 1990, a two level enhancement is not warranted where the defendant provides incomplete or misleading information not amounting to a material falsehood in a presentence interview. Defendant had informed DEA agents shortly after his arrest that he had made several trips in the past to deliver cocaine to his co-defendant. Therefore, his failure to repeat this information to the probation officer was not a material falsehood. U.S. v. Howard, 923 F.2d 1500 (11th Cir. 1991).
11th Circuit reverses obstruction of justice enhancement where defendant was already sentenced for contempt of court. (462) Defendant refused to testify at a co-conspirator’s trial after being granted immunity, and was found guilty of criminal contempt. Later, when defendant was sentenced for related cocaine convictions, the district court enhanced defendant’s sentence for obstruction of justice based upon defendant’s refusal to testify. The 11th Circuit reversed, finding that the sentencing guidelines prohibit this result. Guideline § 3C1.1 provides that where a defendant is convicted of contempt, the obstruction of justice enhancement is not to be applied “except where a significant further obstruction occurred. . . .” U.S. v. Williams, 922 F.2d 737 (11th Cir. 1991).
D.C. Circuit directs court to clarify basis for obstruction increase based on harassing phone calls. (462) Defendant made harassing phone calls to the daughters of a special agent investiating defendant for Medicaid fraud. Defendant identified himself as a Justice Departent agent and claimed to be investigating the special agent for “abusing his power.” Defendant was convicted of submitting a false Medicaid claim, and received a two-level enhancement based on the phone calls. Defendant argued that his conduct did not constitute obstruction of justice because he attempted to disguise his identity and avoided linking the calls to the ongoing investigation. He contended that he only intended to harass and not intimidate the investigator. The D.C. Circuit remanded for the court to clarify the factual basis for the obstruction increase. Where conduct is inherently obstructive, the court may infer an intent to obstruct justice. But where the conduct is not inherently obstructive and the defendant did not have the required intent, the enhancement is not warranted. Defendant’s conduct was not inherently obstructive. It is possible for harass an investigator or witness without obstructing the investigation. U.S. v. Henry, 557 F.3d 642 (D.C. Cir. 2009).
D.C. Circuit requires clear and convincing evidence of perjury for obstruction enhancement. (462) The district court based an obstruction enhancement on its finding, by a preponderance of the evidence, that defendant had testified falsely at trial. The D.C. Circuit reversed, holding that the clear and convincing evidence standard must be used to evaluate a defendant’s testimony for perjury under § 3C1.1. The admonition in note 1 to evaluate a defendant’s testimony “in a light most favorable to the defendant” raises the standard of proof above the preponderance of the evidence standard that applies to most other sentencing determinations. The clear and convincing evidence standard most closely resembles the standard to be applied. The court recognized that other circuits have interpreted the note differently, and suggested that the Sentencing Commission “rewrite its application notes to § 3C1.1 so that they are intelligible to all circuits.” U.S. v. Montague, 40 F.3d 1251 (D.C. Cir. 1994).
D.C. Circuit forgives defendant’s failure to turn herself in after missing arraignment. (462) Defendant missed her arraignment, leading the sentencing court to impose an adjustment for obstruction of justice. The D.C. Circuit found the evidence insufficient to conclude that defendant had willfully failed to appear. Her notice to appear arrived after the hearing date. Defendant phoned the pretrial services office to determine what to do, but never received definitive advice. Accordingly, the adjustment was improper. U.S. v. Monroe, 990 F.2d 1370 (D.C. Cir. 1993).
D.C. Circuit remands to determine whether defendant attempted to mislead authorities about offense of conviction. (462) Defendant, the mayor of the District of Columbia, was convicted of one count of possession of cocaine on November 10, 1989. The district court enhanced his offense level by two under guideline § 3C1.1 for obstruction of justice based upon his false grand jury testimony in January 1989. The D.C. Circuit remanded for resentencing, finding it unclear from the record whether the district court thought defendant’s perjury was an attempt to obstruct justice with respect to the offense of conviction or whether the district court erroneously thought guideline § 3C1.1 does not require such a finding. Agreeing with the 2nd, 5th and 8th Circuits, the court held that the term “instant offense” as used in § 3C1.1 refers solely to the offense of conviction. However, the court rejected defendant’s contention that his perjury could not, as a matter of law, support the § 3C1.1 enhancement. The court could conceive of a situation where a defendant’s lies, although not specifically concerning the offense of conviction, were a willful attempt to mislead authorities about the offense of conviction. U.S. v. Barry, 938 F.2d 1327 (D.C. Cir. 1991).
Indiana District Court finds no obstruction despite defendant’s alleged involvement in having five witnesses testify falsely. (462) The government argued that the defendant obstructed justice by presenting the false trial testimony of five witnesses and continuing to deny his guilt in the presentence report. The government conceded that it had no direct evidence that the defendant had asked the witnesses to lie, but it argued that he knew that the witnesses’ testimony was false and that the surrounding circumstances supported the conclusion that he influenced those witnesses. The Northern District Court of Indiana rejected the arguments, ruling that the government had not proven by a preponderance of the evidence that the defendant “willfully attempted to impede or obstruct justice” by presenting the testimony. Nor did the defendant obstruct justice by denying his guilt to the probation officer. U.S. v. Sergio, 734 F.Supp. 842 (N.D. Indiana 1990).