§461 Cases Finding Obstruction of Justice
(U.S.S.G. §3C)
8th Circuit upholds obstruction enhancement where defendant threatened witness. (461) Defendant was convicted of drug offenses. At sentencing, the district court added two levels for obstruction of justice under § 3C1.1 because defendant had written a letter while in jail threatening a witness. The Eighth Circuit upheld this enhancement, finding that no clear error. U.S. v. Griggs, __ F.4th __ (8th Cir. Nov. 21, 2022) No. 21-3816.
5th Circuit upholds obstruction increase for attempt to interfere with forfeiture by changing titles. (461) At defendant’s sentencing for fraud, the district court added two levels for obstruction of justice under § 3C1.1 because defendant changed the title to his house and car after they had been seized. The Fifth Circuit upheld the enhancement, ruling that the district court could properly infer that the changes were intended to interfere with the forfeiture of defendant’s assets. U.S. v. Davis, __ F.4th __ (5th Cir. Nov. 15, 2022) No. 21-10996.
8th Circuit upholds obstruction finding and denial of acceptance credit. (461)(492) Defendant pleaded guilty to a firearms charge. The firearm was apparently used in a domestic assault against defendant’s girlfriend. Before he pleaded guilty, defendant was subject to a no-contact order from state court. Defendant nevertheless told his girlfriend that her statements to the authorities “need to go away.” At sentencing, the district court added two levels under § 3C1.1 for obstruction of justice and denied a reduction under § 3E1.1 for acceptance of responsibility. The Eighth Circuit upheld both determinations, concluding that defendant did not present a rare case where an obstruction enhancement could be given with an acceptance reduction. U.S. v. Sanders, __ F.3d __ (8th Cir. July 16, 2021) No. 19-1497.
8th Circuit says urging friend to plead the Fifth constitutes obstruction. (461) Defendant was convicted at trial of Hobbs Act robbery. At sentencing, the district court added two levels under § 3C1.1 for obstruction of justice because, before trial, defendant had urged a friend who knew about the crime to do some legal research about pleading the Fifth. The Eighth Circuit affirmed, agreeing that urging a witness to invoke her Fifth Amendment rights can constitute obstruction of justice. There was sufficient evidence that defendant’s purpose was to urge his friend not to talk to law enforcement. U.S. v. Spencer, __ F.3d __ (8th Cir. May 25, 2021) No. 20-1142.
1st Circuit upholds obstruction enhancement for perjury at perjury trial. (461) Defendant was convicted of perjury, in violation of 18 U.S.C. § 1621. At sentencing, the district court added two levels under § 3C1.1 because defendant testified falsely at his trial. Defendant argued that this was improper because the perjury charge consisted of false statements and he simply repeated those falsehoods in his testimony at trial. The First Circuit found that lying under oath to protect oneself from the consequences of lying under oath justifies the enhancement. U.S. v. Teganya, __ F.3d __ (1st Cir. May 17, 2021) No. 19-1689.
1st Circuit affirms finding of perjury where record was sufficient to identify false statements. (461) Defendant was convicted of perjury. At sentencing, the district court added two levels under § 3C1.1 for obstruction of justice based on defendant’s false testimony at his trial. On appeal, the First Circuit rejected defendant’s argument that the district court failed to identify the false statements that defendant made, finding that the record and the government’s argument were sufficient to identify the false statements. U.S. v. Teganya, __ F.3d __ (1st Cir. May 17, 2021) No. 19-1689.
9th Circuit finds obstruction based on threats to agent. (461) At defendant’s firearms sentencing, the district court added two levels under § 3C1.1 for obstruction of justice based on defendant’s threats to kill the case agent. Defendant argued that the threats were intended only as retaliation, not to prevent the agent’s testimony. The Ninth Circuit held that if carried out, the threats to the case agent would have prevented his testimony at trial and, therefore, even under defendant’s theory, they constituted obstruction. U.S. v. Door, __ F.3d __ (9th Cir. Apr. 28, 2021) No. 19-30213.
10th Circuit rules defendant’s refusal to return from Morocco after indictment was obstruction. (461) Defendant, a Catholic priest, was convicted of aggravated sexual abuse. At sentencing, the district court added two levels under § 3C1.1 for obstruction of justice because he left the U.S. for Morocco prior to indictment. On appeal, the Tenth Circuit found this was plain error because there was no evidence that the government was investigating defendant prior to his flight. Nevertheless, the court upheld the enhancement on a different ground, that he resisted his expulsion from Morocco, forcing the FBI to retrieve him after he knew of the investigation against him. U.S. v. Perrault, __ F.3d __ (10th Cir. Apr. 21, 2021) No. 19-2184.
6th Circuit says Facebook posts before sentencing constituted obstruction. (461) Defendant was convicted at trial of carjacking. Before sentencing, he posted on Facebook a description of a witness against him as a “rat” and as “snitching for time cuts.” At sentencing, the government declined to call any witnesses, but the district court enhanced defendant’s offense level by two under § 3C1.1 for obstruction of justice. The Sixth Circuit affirmed, finding that the Facebook post threatened anyone who cooperated with the government. U.S. v. French, __ F.3d __ (6th Cir. Sept. 30, 2020) No. 20-5104.
11th Circuit upholds obstruction enhancement based on alteration of files. (461) After defendant’s medical clinic was searched, but before a federal subpoena for the remainder of defendant’s medical records, defendant “updated” patient record forms to justify his prescriptions for controlled substances. At defendant’s sentencing for distributing controlled substances, the district court added two levels under § 3C1.1 for obstruction of justice. The Eleventh Circuit affirmed, finding that defendant’s conduct justified the obstruction enhancement. U.S. v. Gayden, __ F.3d __ (11th Cir. Oct. 9, 2020) No. 18-14182.
8th Circuit finds record showed planned escape from jail and upholds enhancement. (461) Defendant was arrested for drug trafficking. While in pretrial detention, defendant tried to escape by smuggling a saw blade into his cell and asked to be moved to the first floor of the jail to facilitate an escape. Defendant also asked an associate to place money in another prisoner’s account so that the prisoner could plan the escape. When defendant was convicted of drug trafficking, the district court raised his offense level under § 3C1.1 for obstruction of justice. The Eighth Circuit found ample evidence that defendant tried to escape from jail and therefore the enhancement was proper. U.S. v. Outlaw, __ F.3d __ (8th Cir. Jan. 8, 2020) No. 18-2958.
4th Circuit finds false affidavit in earlier state proceeding obstructed justice. (461) Defendant was convicted of kidnapping for taking a person from one state to another for purposes of prostitution. Previously, defendant had been charged with state kidnapping but that charge had been dismissed when the alleged victim submitted a false affidavit stating that she had not been kidnapped. At sentencing on the federal kidnapping charge, the district court enhanced defendant’s offense level by two under § 3C1.1 for obstructing justice in the state kidnapping proceeding. Defendant argued that his obstruction did not affect the federal offense. Nevertheless, the Fourth Circuit upheld the enhancement, finding that obstructive conduct triggering § 3C1.1 can occur before the instant offense as long as it thwarts the investigation of that offense. U.S. v. Muslim, __ F.3d __ (4th Cir. Nov. 25, 2019) No. 16-4304.
3d Circuit upholds obstruction enhancement for false testimony at trial. (461) At defendant’s trial for possessing a firearm by a felon, defendant testified that he never possessed a firearm that he had thrown away. The jury convicted defendant, and at sentencing, the district court enhanced his sentence by two under § 3C1.1 for obstruction of justice based on his perjury at trial. The Third Circuit held that the district court found the elements of perjury and that defendant was not discouraged from testifying by the enhancement. U.S. v. Gray, __ F.3d __ (3d Cir. Nov. 8, 2019) No. 18-3663.
5th Circuit finds obstruction began even before “official investigation” started. (461) Defendant was convicted of fraud. During an audit that preceded the federal investigation, defendant produced false documents to an auditor and withheld other documents. At sentencing, the district court relied on this conduct to enhance defendant’s offense level under § 3C1.1 for obstruction of justice. Defendant argued that the audit was not an “official investigation” so the enhancement was improper. The Fifth Circuit upheld the enhancement, finding that as long as defendant believed there would be an official investigation, the enhancement was proper. U.S. v. Stubblefield, __ F.3d __ (5th Cir. Nov. 7, 2019) No. 18-20169.
5th Circuit says falsely requesting new counsel was obstruction of justice. (461) Defendant was convicted of drug trafficking. At sentencing, the court increased defendant’s offense level for obstruction of justice under § 3C1.1 because defendant manufactured a “a false, contrived” conflict with his counsel and had taken “extraordinary” steps to disrupt the proceedings. The Fifth Circuit upheld the enhancement, stating that although a defendant may request new counsel, he cannot use this right to obstruct the proceedings against him. U.S. v. Gentry, __ F.3d __ (5th Cir. Oct. 28, 2019) No. 17-10165.
9th Circuit affirms obstruction enhancement though person obstructed did not testify. (461) During the investigation of defendant’s Medicare fraud, defendant told witnesses to lie to investigators. One of defendant’s conversations was caught on tape; during that conversation, defendant told a person to make up a story because defendant had “always” done that and had never been to court. After defendant’s conviction, the district court rejected defendant’s argument that his statements were simply a denial of guilt, not obstruction, and enhanced his offense level by two under § 3C1.1 for obstruction of justice. The Ninth Circuit affirmed the enhancement, even though the person influenced was not a witness at defendant’s trial. U.S. v. Hong, __ F.3d __ (9th Cir. Sept. 12, 2019) No. 17-50011.
1st Circuit affirms obstruction increase for feigned incompetency. (461) Defendant was charged with multiple counts of fraud. He filed a motion for a competency hearing, even though the government’s expert tests showed that he was malingering. The district court ordered additional competency tests at a government facility. Based on the results of these tests, defendant sought to withdraw the motion. At sentencing, the district court enhanced defendant’s offense level under § 3C1.1 for obstruction of justice based on defendant’s efforts “to manipulate consciously and deliberately the psychological evaluations in order to skew the justice system in his favor.” The First Circuit held that feigning incompetence justified the increase. U.S. v. Nygren, __ F.3d __ (1st Cir. Aug. 6, 2019) No. 18-1548.
5th Circuit says attempting to erase computer constituted obstruction. (461) When agents searched defendant’s house for child pornography, he attempted to erase a computer containing the child pornography by searching for a program that would erase the computer. At sentencing for possession of child pornography, the district court enhanced his offense level under § 3C1.1 for obstruction of justice. The Fifth Circuit held that attempting to destroy evidence of defendant’s offense is the type of conduct to which § 3C1.1 applies. U.S. v. Pawlak, __ F.3d __ (5th Cir. Aug. 15, 2019) No. 17-11339.
5th Circuit says installing software to erase computer can be obstruction. (461) At defendant’s sentencing for possession of child pornography, the district court enhanced his offense level under § 3C1.1 because he had “anti-forensic” software on the computer where child pornography was found, that had been programmed to delete files containing child pornography. The Fifth Circuit found that defendant’s failure to deploy the software did not preclude an enhancement under § 3C1.1 because that section can apply to conduct occurring before defendant’s arrest. U.S. v. Waguespack, __ F.3d __ (5th Cir. Aug. 15, 2019) No. 18-30813.
6th Circuit says lying at presentence interview constituted obstruction. (461) Defendant pleaded guilty to fraud. At his presentence interview with Probation, defendant lied about the extent of, and his involvement in, the fraud. The district court enhanced his offense level under § 3C1.1 for obstruction of justice. On appeal, the Sixth Circuit rejected defendant’s argument that his lies did not change the guidelines range, finding that the lies could have influenced the district court’s decision about where to sentence defendant within the guidelines range or whether to vary from the guidelines range. U.S. v. Thomas, __ F.3d __ (6th Cir. Aug. 6. 2019) No. 18-1592.
8th Circuit affirms obstruction increase for false testimony at trial. (461) Defendant testified at his trial for trafficking in methamphetamine that he never delivered or sold any methamphetamine. The jury convicted him of conspiracy but acquitted him of distribution. At sentencing, the district court found that defendant’s trial testimony constituted obstruction of justice, and increased his offense level by two under § 3C1.1. On appeal, the Eighth Circuit rejected defendant’s argument that the district court did not find that his testimony was false, willful, and concerned a material matter, finding the trial record sufficient to support the enhancement. U.S. v. Ruelas-Carbajal, __ F.3d __ (8th Cir. Aug. 9, 2019) No. 18-2454.
8th Circuit applies increase for reckless endangerment during foot chase. (461) When police officers tried to arrest defendant, he fled from the officers, threw a handgun away, and jumped a six-foot fence. The officers caught defendant in a yard, where he fought with the officers before submitting. At defendant’s sentencing for possession of a firearm by a felon, the district court enhanced his sentence under § 3C1.2 for recklessly creating a substantial risk of bodily injury in the course of fleeing from a law enforcement officer. On appeal, defendant argued that § 3C1.2 applies to car chases and not to foot chases and that his flight did not create the requisite risk to others. The Eighth Circuit found that the district court could find that defendant was aware of the risks of his conduct and that he grossly deviated from the standards a reasonable person would exercise in that situation. U.S. v. Davidson, __ F.3d __ (8th Cir. Aug. 9, 2019) No. 18-2525.
8th Circuit agrees that defendant’s false testimony was willful. (461) Defendant testified at his trial for drug trafficking. After the jury convicted him, the district court found that defendant had testified falsely at his trial about three material matters, and added two levels under § 3C1.1 for obstruction of justice. On appeal, the Eighth Circuit rejected defendant’s argument that the district court failed to find that he testified willfully, ruling that defendant could not have testified through confusion, mistake, or faulty memory. U.S. v. Felicianosoto, __ F.3d __ (8th Cir. Aug. 15, 2019) No. 18-2493.
10th Circuit says findings were adequate to support obstruction enhancement. (461) Defendant stole about $700 worth of property from a store on a military base. At her trial for theft of government property, defendant testified that she intended to pay for the stolen merchandise outside the store. The jury convicted her, and at sentencing, the magistrate judge enhanced her offense level under § 3C1.1 by two for obstruction of justice based on her perjury. The Tenth Circuit affirmed the enhancement, finding that although the magistrate judge may not have made sufficient findings, a remand would not change the magistrate judge’s mind that defendant testified perjuriously. U.S. v. Paup, __ F.3d __ (10th Cir. Aug. 9, 2019) No. 18-1114.
8th Circuit finds enhancement that did not increase maximum offense level was harmless. (461)(850) Defendant was convicted of conspiracy to distribute PCP. He threatened cooperating witnesses, and the district court enhanced his offense level by two under § 3C1.1 for obstruction of justice, and sentenced him to life in prison. The Eighth Circuit held that any error in applying the obstruction enhancement was harmless error because it increased defendant’s offense level from 44 to 46, and 43 is the maximum offense level under the guidelines. U.S. v. Hamilton, __ F.3d __ (8th Cir. July 9, 2019) No. 17-3794.
4th Circuit finds fleeing from police with loaded firearm supports enhancement. (461) Defendant tried to rob a man with a firearm. During the attempted robbery, defendant discharged his firearm. The robbery was interrupted, and a police officer pursued defendant. During the chase, defendant ignored repeated commands to stop. After defendant’s arrest, he was convicted of possession of a firearm by a felon. At sentencing, the district court enhanced defendant’s offense level by two under § 3C1.2 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.” The Fourth Circuit held that fleeing from a law enforcement officer with a loaded firearm is sufficient to trigger the § 3C1.2 enhancement. U.S. v. Dennings, __ F.3d __ (4th Cir. Apr. 25, 2019) No. 18-2461.
8th Circuit finds that failing to provide passcode to cell phone was obstruction. (461) Defendant was charged with receiving child pornography. Before being charged, defendant declined to comply with a state warrant requiring him to provide passcodes to an iPhone. After being charged, defendant possessed another iPhone, in violation of his conditions of release. Defendant lied to his probation officer about that iPhone. Based on these two incidents, the district court found that defendant had obstructed justice and enhanced his offense level by two under § 3C1.1. The Eighth Circuit found that defendant’s failure to provide passcodes for the iPhone impeded the investigation into his possession of child pornography and the circumstances surrounding the second iPhone could have been properly used at sentencing. On this basis, the court upheld the district court’s obstruction finding. U.S. v. Beattie, __ F.3d __ (8th Cir. Apr. 1, 2019) No. 18-2197.
8th Circuit affirms obstruction increase based on recorded comment to coconspirator. (461) During the investigation into defendant’s fraud, a coconspirator recorded a conversation in which defendant said that when he got out of prison, he was going “knock on the door” of those who gave information against him and that “doom, doom, doom, doom” would follow. At sentencing, the district court enhanced defendant’s offense level for obstruction of justice under § 3C1.1 for this comment. The Eighth Circuit found that defendant’s comment was sufficient for the district court to infer that defendant intended to threaten or intimidate other conspirators. U.S. v. Waits, __ F.3d __ (8th Cir. Mar. 29, 2019) No. 17-3399.
8th Circuit upholds obstruction increase for failing to disclose money in safe to pretrial services. (461) The district court applied a § 3C1.1 obstruction of justice enhancement, finding that defendant had lied to pretrial services when he failed to disclose money located in a safe. During the forfeiture portion of the trial, defendant admitted he failed to report all assets to his pretrial services officer in an attempt to keep the assets from being taken. Application note 4(H) to § 3C1.1 says the enhancement applies to conduct that involves “providing materially false information to a probation officer in respect to a presentence or other investigation for the court.” Based on defendant’s own admission, the Eighth Circuit held that the district court did not clearly error in applying a two-level increase for obstruction of justice. U.S. v. Peithman, __ F.3d __ (8th Cir. Feb. 27, 2019) No. 17-2768.
7th Circuit finds evidence supported obstruction enhancement. (461) Defendant was a Chicago police officer who tipped acquaintances off to a pending search warrant. Based on that conduct, he was charged with obstruction of justice, in violation of 18 U.S.C. §1512(c). At trial, he testified about a call he had received from an associate of the targets of the search warrant. He claimed the call was about a picnic. The jury rejected this testimony and convicted him. At sentencing, the district court enhanced defendant’s offense level under § 3C1.1 for obstruction of justice based on his trial testimony. The Seventh Circuit upheld this enhancement, finding that defendant’s testimony about the call was inconsistent with the trial evidence. U.S. v. Coleman, __ F.3d __ (7th Cir. Jan. 23, 2019) No. 17-3636.
4th Circuit affirms finding that defendant attempted to obstruct justice through unsworn statements. (461) Defendant was a police officer convicted of depriving another of his civil rights by shooting another man in the back five times. During an unsworn interview with law enforcement after the shooting, defendant first asked whether there was a video of the incident. After being told (inaccurately) that no video existed, defendant gave a false statement to the officers about the shooting. At sentencing, the district court enhanced defendant’s sentence under § 3C1.1 for attempting to obstruct justice. Reviewing for plain error, the Fourth Circuit held that defendant had not shown that the district court plainly erred in finding that defendant attempted to obstruct an investigation through unsworn statements. U.S. v. Slager, __ F.3d __ (4th Cir. Jan. 8, 2019) No. 18-4036.
1st Circuit finds false testimony at trial supported obstruction enhancement. (461) Defendant was charged with knowingly failing to update his sex offender registration, in violation of 18 U.S.C. § 2250(a). At trial, defendant testified that his probation officer had told him that “everything was taken care of.” The government called defendant’s probation officer in rebuttal, and she directly contradicted defendant’s testimony. Defendant also testified in contradiction to police department records that he had provided correct information when updating his sex offender registration. The jury convicted defendant. At sentencing, the district court enhanced defendant’s offense level under § 3C1.1 for obstruction of justice because defendant had committed perjury at trial. The First Circuit found that defendant’s testimony was not ambiguous, that the district court was under no obligation to apply the rule of lenity, and that the district court had properly found that defendant’s testimony was willfully false and material. U.S. v. Nagell, __ F.3d __ (1st Cir. Dec. 19, 2018) No. 17-1058.
6th Circuit finds international flight sufficient to show obstruction. (461) To avoid arrest on fraud charges, defendant fled to North Carolina, then Germany, and finally Spain. He was extradited from Spain to face fraud charges. After leaving the country, defendant cut off all contact with his immediate family, did not obtain employment, did not use a credit card, did not register housing, and cancelled a planned flight back to the U.S. The Sixth Circuit held that avoidance of or flight from arrest constitutes obstruction of justice only when there is additional obstructive conduct. In this case, the court found that the defendant did engage in additional obstructive conduct because his conduct was calculated to avoid arrest and prosecution. U.S. v. Donadeo, __ F.3d __ (6th Cir. Dec. 18, 2018) No 17-4295.
8th Circuit finds that keeping devices from police is obstruction. (461) During the investigation of defendant’s sexual abuse of his stepdaughter, defendant falsely denied that he had electronic devices other than his cell phone. Subsequent investigation turned up three other electronic devices. At defendant’s sentencing for sexually abusing a child, the district court enhanced defendant’s offense level for obstruction of justice under § 3C1.1. The Eighth Circuit rejected defendant’s argument that hiding his electronic devices did not “significantly” obstruct the government’s investigation. The court held that a defendant “significantly” obstructs a government investigation – and therefore qualifies for an enhancement under § 3C1.1 – if the defendant’s actions prevent the investigation from reasonably proceeding quickly. U.S. v. Davenport, __ F.3d __ (8th Cir. Dec. 14, 2018) No. 17-3496.
8th Circuit says trial outburst supports obstruction enhancement. (461) At defendant’s trial for bank robbery and carjacking, he engaged in multiple outbursts. During the district court’s final instructions to the jury, defendant leapt on the defense table, waived his arms above his head, and characterized the proceedings in an obscene manner. The district court denied a motion for a mistrial based on this behavior. After defendant was convicted, the district court assessed a two-level enhancement under § 3C1.1 for obstruction of justice because defendant intentionally sought a mistrial due to his misbehavior. The Eighth Circuit upheld the increase, finding that the district court did not err in finding that defendant sought a mistrial and that his misconduct supported the obstruction enhancement. U.S. v. Evans, __ F.3d __ (8th Cir. Nov. 6, 2018) No. 17-2216.
8th Circuit finds no ineffective assistance in failing to tell defendant not to commit perjury. (461)(880) Defendant was convicted of fraud. At sentencing, the district court added two levels under § 3C1.1 based on defendant’s perjury at a bail revocation hearing. After his conviction became final, defendant filed a motion under 28 U.S.C. § 2255 arguing that his counsel was ineffective in not telling him to testify truthfully at the revocation hearing. The Eighth Circuit held that defendant’s oath to testify truthfully was sufficient to inform him that he had a duty to testify truthfully. Adejumo v. U.S., __ F.3d __ (8th Cir. Nov. 7, 2018) No. 16-3050.
5th Circuit finds obstruction in conduct involving closely related offense. (461) The mother of a 12-year old girl found nude pictures of her daughter on defendant’s phone. Defendant pled guilty to transportation of child pornography. In the PSR, the probation officer noted that the mother of a 16-year old girl found evidence that defendant had been texting with the girl. A monitored jail call revealed defendant asking a friend to intervene with the mother of the 16-year-old, asking his friend to inform the mother that he had photographs of “her” in her underwear with “very compromising” things on the table, and to discover why law enforcement officers were in contact with the mother. Defendant also told his friend to contact defendant’s parents for money to give to “the women” to “keep her [sic] mouth shut.” Based on this information, the district court increased defendant’s sentence for obstruction of justice under § 3C1.1, and the Fifth Circuit affirmed. The § 3C1.1 enhancement can apply when the obstructive conduct relates to “a closely related offense.” Defendant’s phone call and attempt to threaten this girl’s mother from jail involved a closely related offense to his offense of conviction, and he made the phone call during the investigation. U.S. v. Richard, __ F.3d __ (5th Cir. Aug. 23, 2018) No. 17-30654.
8th Circuit upholds obstruction increase for discouraging witness to testify. (461) Defendant was convicted of charges based on a scheme to defraud financial institutions by cashing counterfeit checks drawn on accounts of businesses and individuals. The district court found that defendant had attempted to discourage a witness, Jeffrey Gbor, from testifying at his trial. The court cited a series of text messages that defendant exchanged with Gbor’s girlfriend, Kiana Harris, and other communications between Harris, Gbor, Gbor’s friend, and Gbor’s brother. Defendant contended that his messages to Harris did not constitute obstruction because they did not suggest that he sought to intimidate Gbor to recant his cooperation. The Eighth Circuit upheld the enhancement, noting that the guidelines do not require a finding of intimidation. The district court found that defendant attempted to “discourage a witness from testifying.” The evidence supported a finding that defendant did so with consciousness of wrongdoing. U.S. v. Gaye, __ F.3d __ (8th Cir. Aug. 29, 2018) No. 17-1327.
9th Circuit says trying to kick out patrol car window can be “reckless endangerment.” (461) Guideline § 3C1.2, provides a two-level enhancement if defendant engaged in “reckless endangerment during flight.” During defendant’s transport to jail after his arrest, defendant tried to kick out the windows in the rear compartment of the patrol car in which he was being transported. He failed to heed commands and was pepper sprayed, but continued to try to kick the windows. Fearing that defendant would try to escape, the officer transporting him drove across multiple lanes of traffic to re-apply defendant’s restraints. The Ninth Circuit held that the district court properly applied the reckless-endangerment-during-flight enhancement. U.S. v. Peterson, __ F.3d __ (9th Cir. Sept. 4. 2018) No. 17-30084.
1st Circuit upholds obstruction increase for using false identity during criminal proceedings. (461) While preparing defendant’s PSR, the government learned that defendant had been using a false identity throughout his criminal proceedings. The First Circuit upheld an obstruction of justice enhancement based on defendant’s use of the false identity. The record supported for the district court’s finding that defendant acted with “conscious motivation to fabricate” his identity. He not only repeatedly lied about his name and citizenship status, but also concealed the fact that he had family members in Rhode Island whom he regularly visited, and provided the name of a fictitious doctor, who he alleged had treated him for various claimed medical ailments. Defendant’s defense, that he unwittingly maintained a false identity due to “memory problems related to a brain injury and lifelong substance abuse,” was highly implausible. Defendant’s statements were material, and the court expressly found that they impacted its decision, making it difficult for probation to prepare an accurate life history, and leading the court “down the wrong path.” U.S. v. Pérez-Crisostomo, __ F.3d __ (1st Cir. Aug. 10, 2018) No. 17-1914.
2nd Circuit finds obstruction for advising drug dealer about imminent risk of arrest. (461) Defendant, a New York City police officer, served as an armed driver for his childhood friend, Reyes, who sold marijuana, cocaine, and MDMA. Defendant was convicted of drug charges. The Second Circuit upheld a § 3C1.1 obstruction of justice enhancement based on recorded phone calls in which defendant instructed Vargas, Reyes’s supplier, not to talk on the phone because he was under investigation, and to avoid a certain area because defendant was going there to make an arrest. The district court found it “beyond dispute” that defendant had obstructed justice. Advising a drug dealer about the imminent risk of arrest, thus permitting him to evade capture, constituted obstruction. U.S. v. Alston, __ F.3d __ (2d Cir. Aug. 9, 2018) No. 17-2405-cr.
11th Circuit upholds obstruction enhancement for covering up distinctive tattoos. (461) Security footage and eyewitness accounts of a bank robbery revealed that the robber had a tattoo on his neck with the letter “U” visible and another tattoo on his forehead between his eyes in the shape of a small cross. After media reports came out the day after the robbery, defendant texted his friends, trying to find someone who could alter tattoos. At trial, a tattoo artist testified that he covered up defendant’s neck tattoo with an image of doves and a cloud, and modified the cross on defendant’s forehead to be a Japanese symbol. The Eleventh Circuit upheld a § 3C1.1 obstruction of justice increase for covering up the tattoos. The identity of the robber was the primary issue in the investigation, and his distinctive tattoos were material evidence. By permanently altering his identifying marks, he destroyed material evidence. U.S. v. Watts, __ F.3d __ (11th Cir. July 24, 2018) No. 17-12066.
10th Circuit finds reckless endangerment during flight based on threats and standoff with police. (461) Defendant was convicted of being a felon in possession of a firearm. The district court applied a § 3C1.2 increase for recklessly endangering others while fleeing from a law-enforcement officer. The Tenth Circuit held that defendant’s conduct justified the enhancement. Defendant fled from the police. During the flight, he threatened to shoot if the police took action. The police then used “spike strips” to bring defendant’s vehicle to an eventual stop. Defendant refused to surrender, engaging in an armed standoff on the side of the highway. The court found that defendant’s verbal threats constituted reckless endangerment. The threat created a dangerous situation for the officers as they pursued defendant. When defendant ran over the spike strips, losing tire pressure and coming to an eventual halt, the police had reason to fear grave harm. U.S. v. Young, 893 F.3d 777 (10th Cir. 2018).
8th Circuit approves obstruction increase for threats to witnesses. (461) Defendant was convicted of firearms charges. Several witnesses testified that defendant communicated with them after his arrest by phone and jail-approved text messages. The district court applied an obstruction of justice increase based on evidence that defendant had told one of the witnesses to testify that she did not see anything illegal on several dates, and additional evidence of obstruction in text messages sent from jail. The Eighth Circuit upheld the obstruction increase. The district court reviewed the text messages sent by defendant while in custody and reasonably concluded that defendant communicated with the recipients to threaten, intimidate, or otherwise influence them. U.S. v. Hemsher, __ F.3d __ (8th Cir. June 25, 2018) No. 17-50392.
5th Circuit upholds obstruction increase based on perjury at trial. (461) Defendant was convicted of various health care fraud counts arising out of the operation of a medical clinic. During sentencing, the government argued that defendant’s testimony was laden with falsehoods designed to mislead the jury including: defendant’s claim that he trusted Shakbazyan, a co-conspirator, so thoroughly that he signed forms in blank on the day he met Shakbazyan and failed to ask for information about the Medicare application; defendant opened a bank account to receive reimbursements from Medicare, but did not know where the statements were being sent; and defendant failed to ask co-conspirator Juarez for his credentials or register the supervision of him with the Texas Medical Board. The district court who heard defendant’s testimony, agreed and applied an obstruction of justice enhancement. The Fifth Circuit held that the district court did not abuse its discretion in finding that defendant’s testimony lacked credibility and that he was untruthful in his testimony. U.S. v. Barson, __ F.3d __ (5th Cir. Dec. 28, 2016) No. 15-20416.
1st Circuit upholds warning defendant, before reopening record, of dangers of testifying falsely. (135) (461) In support of its request for an obstruction increase, the government presented evidence that defendant had assaulted another inmate to intimidate him from testifying. When the court announced its intent to apply the obstruction increase, defense counsel said that defendant wished to “reopen the evidence” on the assault and give his own testimony. Before ruling on the motion, the court warned defendant that if the court and found that defendant was not telling the truth, he “[would] receive a harsher sentence.” The court added that the evidence was so strong that it would have made the same finding “beyond a reasonable doubt.” Defendant then declined to testify. The First Circuit held that the district court did plainly err by “threatening” defendant with a harsher sentence if he testified untruthfully. Defendant had earlier declined to present evidence at the hearing without any form of dissuasion. The court’s admonition simply warned him about the risks of his gambit, and was not a threat designed to scare him into not testifying. U.S. v. Stile, 845 F.3d 425 (1st Cir. 2017).
8th Circuit upholds obstruction increase for providing false name and identification to police. (461) Defendant was part of a group who obtained gift cards and credit cards embossed with the names of three group members and encoded with stolen information. He pled guilty to possession of counterfeit access devices and related charges. The district court applied an obstruction of justice enhancement because when police officers confronted defendant in February 2015 in Minnesota, he provided them with both a false name and fake identification. Since defendant had escaped from federal prison in 2009, he could have assumed that officers would have discovered an arrest warrant if he provided them with his real name. Defendant’s false name and identification allowed him to evade arrest for three days, during which time the group traveled from Minnesota to Iowa, used or attempted to use four fraudulent credit cards, and received a package containing 50 fraudulent cards. If defendant had produced his correct identification in Minnesota, “the investigation and prosecution reasonably would have proceeded more quickly and required less effort.” U.S. v. Thomas, 841 F.3d 760 (8th Cir. 2016).
1st Circuit upholds adopting PSR to support obstruction increase based on perjury at trial. (461)(765) Defendant challenged for the first time on appeal an increase for obstruction of justice based on the district court’s finding that he perjured himself during trial. The court adopted the PSR’s account as to defendant’s perjury. The PSR noted that defendant testified that he never received drugs from Magee, but the evidence showed that Magee did supply drugs to defendant. Defendant argued that the district court erred by not making independent findings. The First Circuit found no error. The district court was free to accept the undisputed portions of the PSR as findings of fact. See Fed.R.Crim.P. 32(i)(3). The court found that defendant provided “materially false” testimony when “he asserted that he never received drugs from Richard Magee.” The nature of the material falsehood here was not one in which the willfulness of the falsehood could reasonably be questioned. U.S. v. Mercer, 834 F.3d 39 (1st Cir. 2016).
7th Circuit approves obstruction increase based on defendant’s letters from jail. (461) Defendant, a convicted felon, was caught driving with a loaded gun in the car, while wearing body armor. He was convicted of being a violent felon in possession of body armor. While in pre-trial custody, defendant wrote several letters to his cousin asking her to swear that the gun was hers and that she put it in his car without his knowledge. He also told her she could ignore the subpoena she had received to testify before the grand jury. His cousin skipped the grand jury proceedings and signed an affidavit saying she had put the gun in defendant’s car without his knowledge. She later retracted this claim. The district court applied an obstruction of justice enhancement, which defendant challenged, stressing that he was not able to cross-examine his cousin when she testified at her contempt hearing. The Seventh Circuit upheld the obstruction enhancement because the defendant’s ability to cross-examine his cousin was irrelevant. The enhancement was based on defendant’s own statements in his multiple letters from jail. In particular, urging his cousin to ignore the subpoena was an attempt to obstruct justice. U.S. v. McPhaul, 835 F.3d 687 (7th Cir. 2016).
8th Circuit upholds obstruction increase in child porn case for coaching daughter. (461) Defendant was charged with multiple counts of production and possession of child pornography, and pled guilty to one count of receiving child pornography. The district court applied a two-level obstruction of justice enhancement because defendant told her daughter, who was molested by her father in defendant’s presence, not to talk about defendant’s involvement in the offense. The Eighth Circuit upheld the obstruction increase. Defendant argued that any tampering with her daughter’s interview was irrelevant to the offense of receiving child pornography. However, §3C1.1(2)(B) says the increase applies if defendant’s obstructive conduct related to “a closely related offense.” Officers conducted the interview with the daughter in the course of investigating both defendant and her husband regarding multiple charges related to child pornography. Defendant’s tampering obstructed the closely related child pornography charges. U.S. v. Jensen, 834 F.3d 895 (8th Cir. 2016).
7th Circuit approves obstruction increase for suborning perjury of co-conspirator. (461) Defendant served as security for a drug-trafficking ring run by Blount. At trial, defendant (who represented himself) called Blount as a witness in his defense, and Blount denied defendant’s involvement in the conspiracy. The jury convicted defendant on all counts, and the court increased defendant’s sentence by two levels for obstruction of justice under §3C1.1 for suborning Blount’s perjured testimony. The Seventh Circuit affirmed. Trial testimony and intercepted telephone calls established that defendant was at the drug deals, so the district court did not clearly err in finding that Blount gave false testimony by testifying that defendant never went to the house where the deals took place, nor provided security. Moreover, the court did not clearly err in finding that defendant “suborned” Blount’s perjured testimony. The court arranged for Blount to be housed near defendant in custody so they could prepare for trial. Defendant acknowledged that he was able to speak with Blount, who testified he had known defendant for 30 years. In addition, defendant knew that Blount had refused to implicate him in the conspiracy during his plea hearing. U.S. v. Thomas, __ F.3d __ (7th Cir. Aug. 15, 2016) No. 15-1142.
8th Circuit affirms obstruction increase and denial of acceptance credit for absconding to Mexico. (461)(484) In 2004, defendant was caught selling methamphetamine in Minnesota. He was charged and released on bond, after which he left for Mexico. He returned to the U.S., where he lived and worked in California and paid taxes and child support under his real name. In 2013, he was detained in California and transferred to Minnesota, where he stood trial and was convicted of meth charges. Although defendant argued that his conduct was not willful, because he left the U.S. to be with his sick mother, the Eighth Circuit upheld a §3C1.1 obstruction of justice enhancement. A defendant acts willfully when his “’misconduct occurs with knowledge of an investigation, or at least with a correct belief that an investigation is probably underway.” Here, after being arrested, consenting to searches of his trailer home and car, providing a detailed account of his activities to a police investigator, and being charged by complaint, defendant unquestionably knew the authorities were building a case against him. Whatever his reasons for initially going to Mexico, they did not explain staying away for years afterward. Defendant also was not entitled to a reduction for acceptance of responsibility. His cooperation with the police both times he was caught did not outweigh the years of obstruction he caused in between. U.S. v. Chavez, __ F.3d __ (8th Cir. Aug. 15, 2016) No. 15-2007.
6th Circuit affirms obstruction increase for offering to pay victim’s hospital bills in return for not testifying. (461) Defendant was convicted of racketeering and drug distribution charges. The district court increased the sentence for obstruction of justice because defendant offered to pay for Leal’s medical expenses in return for Leal’s refusing to testify in state court about defendant’s attack on Leal. Defendant argued that because he was acquitted of assaulting Leal with intent to murder, Leal’s testimony was rejected by the jury and therefore the court was required to make a specific finding about Leal’s credibility to support the enhancement. The Sixth Circuit found no clear error in relying on Leal’s testimony that he was severely beaten by defendant and other gang members in 2010, and that he was contacted after the attack, first by co-conspirator Herrera who offered Leal money not to go to the authorities, and then by defendant, who asked “if I needed anything, some money or whatever, he’d give me some money” and offered about $10,000. The finding was also supported in part by Herrera’s testimony at trial that defendant planned to “let [Leal] know to pay the hospital bills, help him out, would be fine” in order to get Leal not to testify. U.S. v. Rios, __ F.3d __ (6th Cir. July 21, 2016) No. 14-2495.
8th Circuit upholds obstruction increase based on trial perjury. (461) Based on weapons found at his girlfriend’s residence, defendant was convicted of being a felon in possession of a firearm. At trial, defendant denied living with his girlfriend, and claimed that he “had nothing to do” with the firearms in the house. Defendant challenged an obstruction of justice enhancement on appeal, contending that the court did not make proper findings and simply relied on the jury’s verdict. The court stated: “I do find by a preponderance of the evidence that this enhancement is supportable based on the evidence and on the ultimate decision by the jury to convict.” And: “I think there’s definitely a basis by a preponderance of the evidence that … this enhancement is appropriate.” The court referred to the trial transcript, the government’s sentencing memorandum, and the parties’ arguments at sentencing in support of its conclusion. The Eighth Circuit concluded the court independently found that defendant had perjured himself. U.S. v. Reid, __ F.3d __ (8th Cir. July 5, 2016) No. 15-1676.
7th Circuit affirms obstruction of justice enhancement for trial perjury. (461) Defendant was convicted of charges based on his involvement in a mortgage fraud scheme. At trial, he testified and admitted his conduct and the existence of a scheme, but claimed that he lacked a guilty state of mind. He said that he was duped into helping out his co-defendants, who were the only true fraudsters. The district court increased his sentence for obstruction of justice, finding that he lied under oath about material facts. The Seventh Circuit upheld the enhancement, noting that the judge explicitly found that defendant lied and gave a specific example: defendant wrote “administrative duties” on the memo line of corporate checks used to pay himself and his co-defendants. He testified that he did so to reflect his own “administrative” task of writing the check, as opposed to stating why the recipient is being paid. The judge found that story to be willfully false, calling it “nonsense.” U.S. v. Mbaye, __ F.3d __ (7th Cir. June 28, 2016) No. 14-3348.
8th Circuit approves obstruction increase based on trial perjury. (461) Defendant was convicted of being a felon in possession of a firearm. The district court imposed an obstruction of justice enhancement, finding that defendant had perjured himself when he testified that he never saw or handled the firearms presented at trial, and that he was “set up” by Shivers, a confidential informant. The Eighth Circuit upheld the obstruction increase. The district court noted that defendant’s testimony must have necessarily been rejected, at least in part, by the jury in order to convict him of being a felon in possession of firearms. The court also made a perjury finding independent of the jury’s verdict. Although the district court did not expressly state that defendant’s false testimony was willful, defendant’s denial that he possessed firearms was not the product of confusion, mistake or faulty memory. Finally, although the district court did not expressly find that the false testimony was material, it relied on defendant’s denial that he possessed the firearms despite overwhelming evidence to the contrary. U.S. v. McDonald, __ F.3d __ (D.C. Cir. June 24, 2016) No. 10-3083.
10th Circuit approves reckless endangerment increase for flight after killing pedestrian. (461) Defendant pled guilty to involuntary manslaughter after he struck and killed a pedestrian crossing the street. The court applied a two-level enhancement under §3C1.2 for recklessly creating a substantial risk of death or serious bodily injury while fleeing from police. The Tenth Circuit upheld the §3C1.2 increase. The offense level of 22 was based on reckless operation of a vehicle to commit involuntary manslaughter. The enhancement was based on the actions defendant took while fleeing from the scene, which created a risk of serious bodily injury or death to others. He “had every opportunity to stop for the police” following the accident but refused to do so, and instead fled for “approximately 20 minutes,” during which “[h]e traveled upwards of 80 miles per hour” and “endangered lives of innocent passersby and motorists.” U.S. v. Singer, __ F.3d __ (10th Cir. June 13, 2016) No. 15-2169.
8th Circuit agrees that defendant’s conversation with cooperating witness was bribery attempt. (461) Defendant, a potato farmer, was convicted of fraud charges after intentionally damaging his potato crop and then collecting indemnity and disaster relief from the government. The district court applied an obstruction of justice enhancement based on two conversations between defendant and Borgen, an employee who acted as a government informant. The court found that defendant had attempted to induce Borgen to testify favorably during a phone call in which defendant said he planned to sue the federal government for $30 million, and would “remember [his] friends” during that lawsuit. The Eighth Circuit upheld the obstruction increase, finding that the district court did not clearly err in interpreting these statements as an attempted bribe, particularly since defendant knew Borgen had been cooperating with the government and could have expected him to testify at trial. U.S. v. Johnson, __ F.3d __ (8th Cir. May 4, 2016) No. 15-1650.
8th Circuit holds that court made adequate findings for obstruction enhancement. (461) Defendant was convicted of charges based on his involvement in a real estate investment fraud scheme. The district court applied a §3C1.1 obstruction of justice enhancement, finding that he committed perjury at trial. The Eighth Circuit held that the district court made adequate findings to support the obstruction increase. The judge stated that defendant “knew what he was doing” in the real estate transactions, and that “these representations that he denied he made … I think amount to obstruction or impeding the administration of justice in that he testified untruthfully.” This finding was adequate to show that the district court made a finding independent of the jury’s verdict. The court did not state expressly that defendant’s false testimony was willful, but the record was clear that the court recognized its obligation to consider whether inaccurate testimony resulted from confusion, mistake or faulty memory. There was ample reason for the court to find that defendant willfully provided false testimony. The court did not discuss whether the false testimony was material, but an appeals court can affirm independent findings of obstruction of justice, even without explicit mention of each factual predicate, where the finding was strongly supported by the record. U.S. v. Nshanian, __ F.3d __ (8th Cir. May 4, 2016) No. 14-2715.
8th Circuit upholds attempt to obstruct justice, without showing of prejudice to government. (461) Defendant was indicted for being a felon in possession of a firearm. The district court applied an obstruction of justice enhancement based on letters defendant sent to his brother, asking him to provide an alibi and a story as to how defendant’s blood ended up on the gun. The brother refused to provide the alibi. Defendant argued that a mere attempt to obstruct justice, without a showing of prejudice to the government, was insufficient to support the §3C1.1 enhancement. The Eighth Circuit disagreed, finding that the language of §3C1.1 showed that an attempt was sufficient, without a showing of prejudice. Defendant was correct that example (G) in Note 4, which lists as a qualifying action “providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the investigation or prosecution of the instant offense,” required prejudice. However, the examples of conduct listed in note 4 are meant to be considered separately. U.S. v. Edwards, __ F.3d __ (8th Cir. Apr. 14, 2016) No. 15-1790.
6th Circuit upholds obstruction increase for menacing gestures to government employees. (461) Defendant was convicted of charges based on his family’s attempt to secure his wife’s reelection as mayor of a Kentucky town by coercing and bribing voters to vote for her. The district court applied the §3C1.1 enhancement after finding that defendant made menacing gestures and sounds toward three government employees who were actively investigating perjury in his trial. The Sixth Circuit upheld the obstruction enhancement, ruling the court did not clearly err in finding that defendant menacingly confronted the government employees outside the courthouse by making a noise to get their attention, then staring at them and puffing out his chest. The court’s factual findings about defendant’s behavior were supported by video footage of the incident and testimony given by two of the three employees involved in the confrontation. The court’s conclusion that defendant’s behavior amounted to an intentional attempt at intimidation supported the obstruction enhancement. U.S. v. Robinson, __ F.3d __ (6th Cir. Feb. 8, 2016) No. 14-6164.
8th Circuit says any error was harmless because it did not impact mandatory minimum. (245)(461) Defendant was convicted of drug charges. Her guideline range was 151-188 months, but the court varied downward and sentenced her to the mandatory minimum sentence of 120 months. She argued on appeal that the district court improperly imposed a two-level obstruction of justice enhancement under §3C1.1. The Eighth Circuit found that because the application of the enhancement did not impact the mandatory minimum, and defendant did not qualify for safety valve relief, any error was harmless. U.S. v. Morales, __ F.3d __ (8th Cir. Feb. 10, 2016) No. 15-1630.
9th Circuit finds obstruction where perjury at trial differed from grand jury perjury. (461) Defendant was convicted of committing perjury to a grand jury, in violation of 18 U.S.C. §1623, based on his lying to the grand jury about providing information to a motorcycle club. At sentencing, the government sought an increase under §3C1.1 for obstruction based on defendant’s trial testimony. Application Note 7 to §3C1.1 precludes enhancing an obstruction offense (such as perjury) unless “a significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself.” The Ninth Circuit held that there were sufficient inconsistencies between the grand jury testimony that formed the basis for his conviction and defendant’s trial testimony to warrant imposing the enhancement. In particular, defendant told the grand jury that he warned the motorcycle club as a joke, but at trial, he testified that he sought additional business from the club. U.S. v, Johnson, __ F.3d __ (9th Cir. Feb. 5, 2016) No. 14-10113.
9th Circuit finds no double counting in obstruction increase for perjury. (125)(461) Defendant was charged with perjury before a grand jury, in violation of 18 U.S.C. §1623. At trial, he gave testimony that was partially inconsistent with his grand jury testimony. The Ninth Circuit held that applying the obstruction enhancement under §3C1.1 would not result in double counting because defendant testified falsely before two different tribunals, the grand jury and the petit jury. U.S. v. Johnson, __ F.3d __ (9th Cir. Feb. 5, 2016) No. 14-10113.
4th Circuit upholds obstruction increase based on defendant’s perjury at trial. (461) Defendant was convicted of charges based on a series of threatening emails he sent to his ex-wife. At trial he testified that he did not send the threatening emails, and suggested that they were sent by his acquaintance Gnos, with whom he had fled to Mexico. The Fourth Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial, ruling that the district court provided a sufficient basis for the enhancement. The court’s observation that the jury rejected defendant’s testimony, and the court’s comment that it could “not imagine” that defendant was unaware of sending the e-mails when he testified, established falsity and willfulness. The issue of who authored the e-mails, which defendant attempted to muddy by falsely implicating Gnos, was plainly material. U.S. v. White, __ F.3d __ (4th Cir. Jan. 7, 2016) No. 14-4375.
8th Circuit finds obstruction for encouraging employee to lie to government investigators. (461)(770) Defendant was convicted of employing undocumented immigrants. The district court applied an obstruction of justice enhancement based on defendant’s claims to a government investigator that one of defendant’s crew chiefs, Perez, was a subcontractor not an employee, and that Perez was responsible for hiring his own workers. The court found that defendant lied to the agent and encouraged Perez to corroborate this lie. The Eighth Circuit upheld the obstruction increase, finding no clear error in the district court’s reliance on a recorded phone call between defendant and Perez. Defendant began the call by stating that he was worried about being investigated for hiring illegal immigrants, and he spent the rest of the brief conversation reiterating that he had told the agent that Perez was a subcontractor responsible for hiring his own workers. Each time defendant recited the story he had told the agent, Perez assured him that his story would be consistent with defendant’s. When viewed in their entirety, defendant’s statements to Perez, and his reactions to Perez agreeing to corroborate his story, demonstrated that defendant encouraged Perez to lie. U.S. v. Manzano-Huerta, __ F.3d __ (8th Cir. Jan. 4, 2016) No. 15-1416.
10th Circuit says guilty plea did not purge defendant of previous attempted obstruction. (461) Defendant pled guilty to charges stemming from his involvement in a drug conspiracy. He challenged a § 3C1.1 obstruction of justice enhancement. Although he conceded that (1) the district court ordered him to provide a voice exemplar, (2) he refused to do so, and (3) the district court held him in contempt for that refusal, he argued that his plea of guilty eliminated any obstruction of justice his refusal to provide the voice exemplars may have created. The Tenth Circuit held that defendant’s guilty plea did not purge him of the previous obstruction. The enhancement applies to attempts to obstruct justice, whether or not the attempt was successful. Defendant attempted to obstruct justice when he refused to give his voice exemplar. U.S. v. Craig, __ F.3d __ (10th Cir. Dec. 22, 2015) No. 14-3185.
1st Circuit upholds obstruction increase based on false affidavit at bail hearing. (461) Defendant served as the getaway driver for a bank robbery committed by Rheau. At defendant’s bail hearing, defendant presented an unsworn affidavit from Rheau stating that defendant was unaware of the plan to rob the bank. Two weeks later, Rheau pled guilty, stipulating that he and defendant had conspired to rob the bank. Although Rheau did not explicitly disavow the affidavit, his sworn statements were incompatible with the affidavit’s contents. At sentencing, the district court applied an obstruction of justice enhancement because defendant had used the affidavit in an attempt to influence the bail decision, and because the affidavit was “clearly false,” based on Rheau’s admissions and the jury’s finding that defendant participated in the conspiracy. The First Circuit upheld the obstruction increase. Although the district court did not explicitly recite the word “willful” in its rationale for the enhancement, it found that the assertions in the Rheau letter were “clearly false” and that defendant “attempted to use them to obstruct the judicial process” by “try[ing] to influence [the magistrate judge’s] bail decision.” This explanation made the judge’s willfulness finding abundantly clear. U.S. v. Lasseque, __ F.3d __ (1st Cir. Nov. 18, 2015) No. 14-2026.
4th Circuit finds obstruction where defendant testified that he believed cigarettes were counterfeit, not stolen. (461) Defendant was convicted of receiving cigarettes purportedly stolen in interstate commerce. The district court applied a two-level obstruction of justice increase under §3C1.1, based on its conclusion that defendant committed perjury when he testified at trial that he thought the cigarettes were counterfeit, rather than stolen. The Fourth Circuit upheld the obstruction increase, ruling that the district court’s findings encompassed all the factual predicates for perjury. First, the court found that defendant actually knew the cigarettes were stolen, despite testifying at trial that he thought they were counterfeit. The court further found that whether defendant thought he was handling stolen cigarettes or counterfeit cigarettes “was the central issue for the jurors,” thus establishing the materiality of the false testimony. Finally, the willfulness element of perjury was encompassed by the court’s findings that defendant had “categorically denied” knowing that the cigarettes were stolen and that this denial was the “core of his testimony.” U.S. v. Qazah, __ F.3d __ (4th Cir. Nov. 17, 2015) No. 14-4204.
1st Circuit upholds obstruction increase for attempting to swallow bag of heroin after arrest. (461) Defendant was a heroin dealer caught in possession of heroin and a gun. At sentencing, the district court found that he had tried to obstruct justice by trying to swallow a small bag of heroin. Defendant argued that because he was “seriously impaired” at the time, he could not have willfully obstructed justice, and that he did not materially hinder the investigation. The First Circuit found no clear error. Defendant concealed drugs for two hours at the hospital, and when the drugs fell onto the floor, he attempted to swallow them and became physically combative with the people trying to restrain him. His argument that he did not willfully obstruct justice failed. The district court noted that at 10 p.m., two hours prior to the time the heroin fell from defendant’s hospital bed, the nurse’s note described him as “calm and cooperative.” This was two hours after his arrest. “The defendant knew all along that he had drugs…. The defendant may have acted irrationally when the drugs fell on the floor, but he had plenty of time, namely, two hours, to consider what he was going to do with the drugs that were near his body.” Defendant’s attempt to swallow the heroin was not contemporaneous with his arrest, and thus it did not need to result in a material hindrance to the investigation. U.S. v. McDonald, 804 F.3d 497 (1st Cir. 2015).
4th Circuit finds obstruction where girlfriend and mother provided false alibi for defendant. (461) Defendant was convicted of charges related to his robbery of a Domino’s pizza restaurant. At trial, his girlfriend and her mother had testified that defendant was at their home on the night of the robbery. Defendant did not testify. The district court applied an obstruction of justice increase, finding that defendant’s knowledge of the false testimony and silence during trial amounted to obstruction of justice. The Fourth Circuit upheld the obstruction increase, even though the district court did not explicitly find that defendant procured the false testimony. Overwhelming evidence placed defendant at the scene of the robbery. Defendant was aware well in advance that his alibi witnesses planned to present false testimony. That testimony was repeatedly highlighted in the notice of alibi, in the trial brief, and in counsel’s opening statement. Defendant also filed a pro se motion accusing the prosecution of intimidating his witnesses, including one alibi witness. He presumably knew the substance of the testimony that his motion sought to protect. Finally, the alibi witnesses “testified one after the other.” In the unlikely event that the first alibi witness surprised defendant, the second certainly did not. U.S. v. Andrews, __ F.3d __ (4th Cir. Oct. 30, 2015) No. 14-4422.
5th Circuit approves obstruction enhancement based on perjury at trial. (461) Defendant, a former city alderman, was convicted of soliciting or accepting a bribe. The district found that he obstructed justice by falsely testifying that the money he received was a loan rather than a bribe. This testimony was contrary to taped conversations with defendant and testimony that he admitted the bribe to FBI agents. Defendant argued on appeal that the enhancement punished him for exercising his constitutional right to testify. He also objected to reliance on any admission he supposedly made to FBI agents, because he never approved or adopted any admission in writing. The Fifth Circuit found no error. Defendant’s testimony was “flatly contradicted by other witnesses,” tape-recorded conversations, and “the ultimate finding of the jury.” Thus, the finding that defendant perjured himself was plausible in light of the record as a whole. U.S. v. Smith, __ F.3d __ (5th Cir. Oct. 23, 2015) No. 14-60688.
1st Circuit says prison recordings showed defendant tried to get co-conspirators to commit perjury. (461) Defendant was convicted of drug and firearms charges. The district court found that defendant attempted to obstruct justice by trying to persuade co-conspirators Connally and Nguyen to testify falsely and accept responsibility for defendant’s criminal conduct. The court relied primarily on recordings of prison conversations between defendant and Connally. The First Circuit upheld the obstruction increase. Despite the sometimes cryptic nature of the conversations, the transcripts supported a reasonable inference that defendant attempted to get Connally to claim responsibility for at least some of the criminal conduct. In Nguyen’s case, the court found that defendant persuaded Nguyen to testify that he owned the apartment where the weapons were found, and that he had seen guns in the apartment prior to defendant’s staying there. During a second prison recording, defendant told Connally that he had a “plan B” if Connally could not help him. Given that defendant had a backup plan if Connally would not take the fall, and that Nguyen later showed up with a not credible attempt to take the fall for defendant, a reasonable inference could be made that Nguyen was “plan B,” even if a competing inference was possible. U.S. v. Monell, __ F.3d __ (1st Cir. Sept. 2, 2015) No. 14-1617.
11th Circuit upholds obstruction increase based on defendant’s attempt to influence his wife’s testimony. (461) Defendant was convicted of submitting false claims and attempted tax evasion. The district court imposed a §3C1.1 enhancement based on three perjurious statements by defendant, as well as defendant’s attempt to influence his wife’s testimony. The Eleventh Circuit held that the latter ground adequately supported the obstruction increase. His wife testified that about three weeks before trial, defendant asked her to “go over the story line” of her upcoming testimony with him. She told him she would not go over the testimony because she planned to tell only the truth at trial. She then reported that he said if she did not want to help “I’ll know whose head to chop off.” In addition, about a week and a half before trial, police removed defendant’s wife and her children from their home to a secure location. Defendant had confronted his wife about her giving documents to the government, after which she called her attorney and told him that defendant was intimidating her. Defendant also took the couple’s two eldest children into a bedroom and told them that their mother was betraying him by working with the government. His wife testified at trial that these events were attempts to intimidate her so that she would change her testimony. U.S. v. Hesser, __ F.3d __ (11th Cir. Sept. 8, 2015) No. 13-11712.
6th Circuit approves obstruction enhancement based on false testimony about purpose of trip. (461) Defendant was convicted of drug charges based on his involvement in a methamphetamine manufacturing and distribution conspiracy. The district court imposed a two-level increase for obstruction of justice under §3C1.1, finding that defendant provided false testimony under oath regarding the purpose of a trip he took to Seymour, Indiana. In particular, the district court found that defendant ‘s testimony that he “didn’t go to Indiana and bring any anhydrous ammonia back,” was “contrary to what the evidence ended up showing, which was that that trip was [for] the purpose of stealing and acquiring anhydrous ammonia.” The Sixth Circuit upheld the obstruction enhancement. Although the jury acquitted defendant of Possession of Stolen Anhydrous Ammonia Transported across State Lines, the acquittal did not establish that the district court was clearly erroneous in finding that a preponderance of the evidence supported its perjury finding. In particular, Mickey Brown testified that he and defendant went to Indiana “[t]o steal anhydrous ammonia” in order to “make methamphetamine.” U.S. v. Collins, __ F.3d __ (6th Cir. Aug. 24, 2015) No. 13-6617.
8th Circuit upholds finding that defendant committed perjury at trial. (461) Defendant embezzled money from his employer and lied on his taxes. The Eighth Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial. The overwhelming evidence at trial demonstrated that defendant invented a modified-employment-agreement explanation as a way to cover up his fraud. It was not simply the result of “confusion, mistake, or faulty memory.” The district court did not clearly err by finding defendant committed perjury. U.S. v. Waters, __ F.3d __ (8th Cir. Aug. 21, 2015) No. 14-3045.
9th Circuit says asking friend to delete Facebook page was obstruction of justice. (461) At defendant’s trial for importing marijuana, the prosecution introduced evidence that defendant directed another person to delete from defendant’s Facebook page messages that tended to implicate her in the smuggling. At sentencing, the district court enhanced defendant’s sentence under §3C1.1 for obstruction of justice for telling another to delete the content. The Ninth Circuit held that by finding the evidence admissible at trial, the district court had found the evidence material to obstruction of justice. The court of appeals also held that the district court properly imposed the enhancement because defendant admitted at sentencing that she had asked another to delete Facebook postings because she did not want prosecutors to assume that she had knowledge of marijuana. U.S. v. Flores, __ F.3d __ (9th Cir. Sept. 23, 2015) No. 14-50027.
10th Circuit agrees that defendant committed perjury about timing of illegal salting. (461) Defendant ran a guide service that took clients on elk and deer hunts. To attract the elk and deer, defendant spread salt around the base of his tree stands, in violation of Colorado law. Selling wildlife taken in violation of state law violates the Lacey Act. The Tenth Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial. Defendant testified that he baited in the spring, and sometimes as late as the first week of July. However, store receipts demonstrated that defendant purchased large amounts of salt as late as July 10. Defendant’s lie was material because he offered it to “support his defense that baiting with salt is legal as long as the salt is gone by the time the hunters arrive.” The lie was “not the result of confusion, mistake or faulty memory. [Defendant] was very clear and adamant in his claim….” U.S. v. Rodebaugh, __ F.3d __ (10th Cir. Aug. 25, 2015) No. 13-1081.
1st Circuit upholds obstruction increase for threatening witness. (461) Defendant was convicted of murder in the course of a robbery, and sentenced to life in prison. The First Circuit upheld an obstruction of justice increase. Defendant threatened a witness to whom he had confessed the crime, and told her that he would kill her if she told anyone. U.S. v. Thomas, __ F.3d __ (7th Cir. July 20, 2015) No. 13-2814.
5th Circuit upholds perjury enhancement where defendant denied he lied and provided no rebuttal evidence. (461) Defendant worked for an investment company operated by Stanford, who used the company to run a multi-billion dollar Ponzi scheme. The district court applied a two-level enhancement for obstruction of justice for perjury under §3C1.1. It explicitly adopted the PSR, which identified several specific incidents of perjury, including defendant’s statements that he sent particular spreadsheets via FedEx and that he never reviewed the fraudulent reports detailing the bank’s investments that were sent to a government regulatory commission. Defendant provided no rebuttal evidence on these points, merely asserting that he testified truthfully. The Fifth Circuit held that the district court did not err in applying the obstruction enhancement. Moreover, even if the district court erred, the error was harmless, since removing the perjury enhancement would only reduce defendant’s offense level from 51 to 49, and his sentence would not change. U.S. v. Kuhrt, __ F.3d __ (5th Cir. June 5, 2015) No. 13-20115.
7th Circuit approves obstruction increase for defendant who “shaded the truth.” (461) Defendant was convicted of charges arising out of a scheme to defraud mortgage lenders. At sentencing, the court applied an obstruction of justice enhancement, finding that defendant had lied when testifying that she did not knowingly provide false information to lenders. Although the court recognized that her testimony was “not a brilliant” or “particularly effective obstruction of justice,” the court nonetheless determined that “she had, at the very minimum, shaded the truth” and “knew she was doing it.” The Seventh Circuit upheld the obstruction increase. The district court did not, as defendant contended, find that defendant did not deliberately or knowingly lie at trial. It found the exact opposite: that defendant had “shaded the truth” and “knew she was doing it.” U.S. v. Jackson, __ F.3d __ (7th Cir. June 3, 2015) No. 13-2649.
11th Circuit upholds obstruction enhancement for defendant who acted “crazy” to obstruct proceedings. (461) Defendant refused to attend his trial or sentencing, and was recorded telling his mother that he planned to act crazy to obstruct the trial proceedings. The Eleventh Circuit upheld a two-level enhancement for obstruction of justice under §3C1.1. Defendant’s actions throughout the district court proceedings fell within the scope of §3C1.1. Defendant willfully set out to clog the gears of the judicial process. He willfully failed to appear for his trial despite the district judge’s repeated efforts to persuade him to attend. Although he did not manufacture evidence, threaten witnesses, or give false testimony, defendant ignored court procedures by filing multiple pro se motions while he had counsel, and he delayed and disrupted court proceedings, even to the point of threatening violence. There was no doubt that defendant engaged in this conduct in an attempt to obstruct or impede the proceedings in this case. U.S. v. Perkins, __ F.3d __ (11th Cir. June 1, 2015) No. 13-13444.
3rd Circuit upholds obstruction increase based on meeting with government witness prior to testimony. (461) Defendant was convicted of Medicare fraud. The district court applied an obstruction of justice enhancement based on the testimony of Drobot, a government witness who had contracted with defendant’s company. Drobot testified that defendant came to his office shortly before Drobot was scheduled to testify. During a 15-minute meeting over coffee, the only thing they discussed was Drobot’s upcoming testimony. Defendant mentioned that Drobot would probably be called as a witness the following week, and defendant said, “don’t bury me.” Drobot responded that he would not perjure himself but would “tell the truth and be done with this.” Drobot acknowledged on cross-examination that defendant did not threaten him or ask him to lie or to change his testimony. The Third Circuit upheld the obstruction of justice enhancement. Defendant was simply rearguing the weight of the evidence, without pointing to anything that showed the district court clearly erred in finding he had attempted to obstruct justice. U.S. v. Kolodesh, __ F.3d __ (3d Cir. May 28, 2015) No. 14-2904.
9th Circuit finds no double counting even though same phone call resulted in obstruction and false statement conviction. (125)(461) During the investigation of defendant’s offense, he made a phone call to the FBI in which he pretended to be another person and sought to blame the crime on the other person’s cousin. This call formed the basis of a charge that defendant made a false statement to a federal officer, in violation of 18 U.S.C. §1001. After defendant’s conviction on the §1001 charge, the district court enhanced defendant’s sentence under §3C1.1 for obstruction of justice based on the same call. The Ninth Circuit held that imposing the enhancement under § 3C1.1 did not constitute impermissible double counting, even though the call formed the basis for defendant’s conviction. U.S. v. Fries, __ F.3d __ (9th Cir. Mar. 30, 2015) No. 13-10116.
11th Circuit upholds obstruction increase based on trial perjury. (461) Defendant, who worked for a health care center, participated in a complex Medicare fraud scheme. He challenged an obstruction of justice increase, arguing that the record did not support a finding that he intentionally lied on the stand or otherwise made inaccurate statements. The Eleventh Circuit disagreed. The district court noted it had heard the testimony in the case and found that defendant had lied on the stand. This finding was entitled to deference and was supported by the record. For instance, defendant testified he had no knowledge that Haitian patients were attending the health care center only for immigration purposes. Two employees testified, however, that they had informed defendant of problems with Haitian patients attending the center for immigration purposes. Although the district court did not address each instance of defendant’s alleged perjury individually, the district court made a sufficient general finding of obstruction of justice. U.S. v. Moran, __ F.3d __ (11th Cir. Feb. 17, 2015) No. 12-16056.
11th Circuit finds obstruction based on trial perjury. (461) Defendant, who worked as the director of Telecom, participated in two scheme in which international companies gave him bribes in exchange for favors from the company. At trial, he testified that one company paid him over $400,000 as a token of their appreciation for how well he administered their contracts. Defendant’s testimony contradicted other evidence. Because the district court found that defendant perjured himself, the Eleventh Circuit held that it did not err when it applied a two-level obstruction of justice enhancement under §3C1.1. Defendant’s statements directly contradicted other evidence about the payments. One witness testified that the payments were a bribe for special treatment, and defendant told an IRS agent that the payments were an incentive to extend certain contracts. The court found that defendant’s testimony was “ludicrous,” and “perjurious.” Although the court did not use the term “willful,” the record made clear that it found that defendant willfully perjured himself. U.S. v. Duperval, __ F.3d __ (11th Cir. Feb. 9, 2015) No. 12-13009.
7th Circuit upholds obstruction increase for exaggerating mental deficits at competency hearing. (461) From the time of his arrest, defendant acted as if he were in a catatonic state, so his lawyer asked the magistrate judge to determine whether he was competent. Defendant was then sent to a medical center, where he told the psychologist that he could not read, didn’t know what a bank was, what a year was, when his birthday was, or the name or address of any member of his family. The psychologist concluded that defendant was exaggerating his mental deficits, and was competent to stand trial. The judge determined that the defendant had, by exaggerating his mental deficits, delayed the criminal proceeding and thus had obstructed justice. The Seventh Circuit affirmed. Although defendant’s attorney requested the competence hearing, if defendant not lied to the psychologist, then she could have determined within minutes that he was competent to stand trial. This holding would not make defendants and their lawyers reluctant to request a competence hearing even if they had solid grounds for the request. When in doubt about a defendant’s behavior at a competency exam, the judge should not find obstruction of justice. Here, defendant clearly was exaggerating his symptoms and by doing so disrupting or delaying the criminal proceeding. U.S. v. Wilbourn, __ F.3d __ (7th Cir. Feb. 13, 2015) No. 13-3610.
2nd Circuit affirms finding of perjury despite court’s reliance on defendant’s testimony for increases. (218) (461) Defendant contended that the district court erred in on his testimony at trial to increase his sentence for his role in the conspiracy, the number of victims, and the amount of loss, while also finding that he committed perjury at trial and obstructed justice. The Second Circuit found that defendant’s contention meritless. The district court found that defendant’s testimony was “a mixed bag,” containing “some perjurous testimony and … some truthful testimony.” The court then described aspects of defendant’s trial testimony that the court found were false and were intended to persuade the jury to acquit him. The court stated that it “credited [defendant’s] testimony to the extent that it was corroborated by other evidence.” The sentencing court was entitled to credit some parts and to disbelieve other parts of defendant’s sworn testimony and to sentence him accordingly. U.S. v. Norman, __ F.3d __ (2d Cir. Jan. 9, 2015) No. 13-2840.
2nd Circuit approves obstruction increase based on defendant’s trial perjury. (461) Defendant was convicted in connection with a fraudulent investment scheme. The district court applied an obstruction of justice increase, finding that numerous aspects of defendant’s trial testimony were untruthful. Most prominent was defendant’s insistence that he was soliciting investments in order to free up moneys that he and his foundation held in accounts in European branches of the World Bank and the IMF and that he repeatedly received emails from those offices warning that additional fees were required in order to preserve and unlock those accounts. Officials of the IMF and the World Bank testified that their respective institutions had no accounts in the names of defendant or his foundation; that the World Bank does not maintain any accounts for private individuals or nonprofit foundations; and that the World Bank had no record of employing the individual with whom defendant claimed to have dealt. The district court credited the testimony of the World Bank and IMF witnesses and made explicit findings that defendant’s testimony on these matters was intentionally false. The Second Circuit found no basis for overturning the court’s findings that defendant willfully perjured himself at trial for the purpose of obstructing justice. U.S. v. Norman, __ F.3d __ (2d Cir. Jan. 9, 2015) No. 13-2840.
6th Circuit approves obstruction increase for perjury at trial. (461) Defendant participated in the attempted sale of methamphetamine to an undercover officer that had been coordinated in part by an informant. Defendant coordinated the delivery of the meth to his co-conspirators, and personally traveled from Kansas City to Michigan to ensure the transaction would go forward. At trial, he claimed that he traveled to Michigan in order to retrieve a deposit he had paid to the informant on a purchase for a horse that had fallen through. The Sixth Circuit upheld an obstruction of justice enhancement because it punished defendant for testifying falsely, not for exercising his right to testify on his own behalf. The district court focused on the varying reasons defendant offered for travelling to Michigan, and convincingly explained why it found these incredible. The most reason-able interpretation was that defendant knowingly lied about his reason for travelling to Michigan. The court’s finding of obstruction was supported by a preponderance of evidence. U.S. v. Sierra-Villegas, __ F.3d __ (6th Cir. Dec. 23, 2014) No. 13-2513.
1st Circuit upholds obstruction enhancement based on threatening letter sent to third party. (461) The district court found that defendant had obstructed justice by writing a letter to co-conspirator Holmes, who had testified against defendant. The letter stated that defen¬dant knew that Lewis was the prosecutor’s informant, and that when defendant was released, defendant would “take care” of Lewis. Defendant argued that the letter did not constitute an obstruction of justice because it was written after Lewis had already testified at trial. He also contended that the letter was not an attempt to influence Lewis because it was not directed at Lewis, and defen¬dant had no reason to believe that Holmes would relay the threat to Lewis. The First Circuit upheld the obstruc¬tion increase. It was irrelevant that, at the time defendant made the threat, the trial had already concluded, because sentencing was still pending. Lewis was a crucial witness regarding drug quantity and was a potential government witness at sentencing. The fact that defendant did not send the threat directly to Lewis did not matter. Indirect threats made to third parties may constitute obstruction under §3C1.1. Even though defendant did not direct his threat to Lewis, there was a reasonable possibility that Holmes would communicate it to him. Holmes was a government witness who might well have been motivated to share the threat with her fellow witness. U.S. v. Trinidad-Acosta, __ F.3d __ (1st Cir. Dec. 5, 2014) No. 13-1830.
1st Circuit upholds obstruction increase based on perjury at suppression hearing. (461) After defendant was arrested, he made incriminating statements to police officers about marijuana quantities he had sold. He later unsuccessfully moved to suppress the statements. At the suppression hearing, defendant testified that he had twice requested an attorney during the stop, only to be ignored. He further testified that he had cooperated in part because an officer had threatened to arrest everyone he knew if he did not. Four law enforcement officers testified to the contrary. The magistrate judge recommended against suppression, and the judge accepted the magistrate’s recommendation. The First Circuit upheld an obstruction of justice enhancement based on defendant’s testimony at the suppression hearing. The district court carefully considered defendant’s “tale of ominous threats and ignored entreaties for counsel,” and “rejected this tale as apocryphal.” In doing so, the court remarked the contradictory and implausible nature of the appellant’s testimony and found that he had deliberately perjured himself. U.S. v. Maguire, 752 F.3d 1 (1st Cir. 2014).
1st Circuit upholds obstruction increase based on instructions to wife to throw away evidence. (461) The district court applied an obstruction of justice enhancement based on its interpretation of phone calls defendant made to his wife from jail, in which he told her “all my shit needs to be thrown away.” The First Circuit found the district court reasonably interpreted this statement as an instruction to dispose of evidence. The panel reviewed the transcript of the calls, and found the district court’s understanding of defendant’s statement was more plausible than the interpretation defendant offered on appeal – that he was referring to a suitcase full of clothes that he brought with him on vacation. U.S. v. Almeida, 710 F.3d 437 (1st Cir. 2014).
1st Circuit approves obstruction increase for attempt to get minor victim to lie to authorities. (461) Defendant, a 29-year old doctor, was convicted of multiple charges related to his pursuit of a sexual relationship with a 15-year old girl. The First Circuit held that an obstruction of justice enhancement was supported by evidence that defendant advised the minor to lie if there was an inquiry from law enforcement as to whether the two of them had had sexual relations. The record amply supported a finding that defendant sought to obstruct justice by getting the minor to lie for him. U.S. v. Batchu, 724 F.3d 1 (1st Cir. 2013).
1st Circuit approves obstruction increase for failing to disclose assets to pretrial services officer. (461) The district court increased defendant’s sentence for obstruction of justice based on defendant’s statements to a pretrial services officer shortly after her arrest. First, defendant denied that there were any weapons or cash in her apartment, when in fact there was a good deal of both. Second, defendant claimed she had no assets, when in fact she had a six-figure bank account and owned a home worth $300,000. A few weeks later, defendant gave her sister a durable power of attorney and the following December, the sister withdrew the entire balance of $134,545.49. At sentencing, defendant claimed to have believed that, given the passage of time and her inactivity, the bank account and house were somehow gone. The First Circuit upheld the obstruction of justice increase. The sentencing judge properly found that the statements to pretrial services were intentionally false. U.S. v. Greig, 717 F.3d 212 (1st Cir. 2013).
1st Circuit upholds obstruction increase for lies told to investigators to protect girlfriend. (461) Federal agents searched a residence shared by defendant and his girlfriend, and found 4.9 kilograms of marijuana, drug paraphernalia, and four firearms. Defendant pled guilty to marijuana charges, and being a felon in possession of a firearm. During serial interviews with police and investigators, and during the plea colloquy, he stated that he had inherited three of the guns from his father. In fact, two of the guns were obtained by his girlfriend as collateral for a loan to a third party. The district court found that the defendant had obstructed justice by lying to federal agents in order to protect his girlfriend. The First Circuit upheld the obstruction increase, finding that the false statements to investigators were material. These guns were the centerpiece to the felon in possession charges, and thus were material. The timing of the defendant’s receipt of the guns was material as to whether he possessed the firearms while serving a term of probation, a determination that affected his criminal history category. Also, the defendant’s veracity about when and how he acquired the firearms was material with respect to acceptance of responsibility. U.S. v. Quirion, 714 F.3d 77 (1st Cir. 2013).
1st Circuit approves obstruction increase for trial perjury. (461) During an altercation with a group of teenagers near his mother’s home, defendant retrieved a pistol from the house and fired it. He was convicted of being a felon in possession of a firearm. The district court found that defendant perjured himself at trial, and applied a § 3C1.1 obstruction of justice increase. The court cited the defendant’s incredible statements that he did not shoot at the teenagers and that he had done no more than defend himself. The First Circuit held that these findings were not clearly erroneous, and were sufficient to support the obstruction of justice enhancement. U.S. v. Leahy, 668 F.3d 18 (1st Cir. 2012).
1st Circuit upholds obstruction increase based on trial perjury. (461) Defendant and several others were convicted of drug conspiracy charges as a result of their participation in a drug point that operated within a public housing project. The district court applied an obstruction of justice enhancement, finding that defendant intentionally fabricated his testimony in an attempt to convince the jury that he had been “a student, living off little amounts, just making ends meet,” who knew none of the cooperating witnesses and only traveled to the housing project to see his mother. Defendant had “lied through his teeth,” the court found, by portraying “a world different from [the housing project], the world in which he participated, and the world … he was supplying narcotics to.” The First Circuit affirmed. Although the court did not delineate every specific instance in which defendant lied, this is not necessary where the court finds the defendant has “fabricated his entire testimony.” U.S. v. Diaz, 670 F.3d 332 (1st Cir. 2012).
1st Circuit upholds reckless endangerment increase for 45-mph chase through residential neighborhood. (461) In order to evade capture by police, defendant accelerated his vehicle, traveling 40-45 miles per hour on small back roads in the early evening, in a residential neighborhood. Defendant did not stop or slow at intersections, eventually hitting a dead end and fleeing on foot. He was eventually arrested two months later. The First Circuit upheld a § 3C1.2 enhancement for recklessly creating a substantial risk of death or serious bodily injury while fleeing from police. Although § 3C1.2 cases often involve more egregious conduct, other courts have concluded that less egregious, though still reckless, conduct can qualify for the enhancement. Although the chase was brief and not conducted at stupendously high speeds, it occurred in a heavily populated area. The streets were lined with houses, and defendant took several turns at a high rate of speed. The pursuing officers testified that they had to “basically stop” at those corners to make sure that they did not cause injury, and that continuing the chase at the speed defendant was going would have been “irresponsible.” U.S. v. Carrero-Hernandez, 643 F.3d 344 (1st Cir. 2011).
1st Circuit upholds finding of perjury during suppression hearing. (461) Police officers made a controlled delivery of a package containing drugs to an apartment. Defendant arrived at the apartment while an undercover officer was knocking on the apartment door. The officer later testified that defendant said that the package was for his cousin and that defendant offered to sign for the package. At a later suppression hearing, defendant testified that he was not expecting a package and that he told the officer that he did not know the person to whom the package was addressed. Defendant also testified, contrary to the officer’s testimony, that after his arrest he never received his Miranda warnings. At defendant’s sentencing on drug-trafficking offenses, the district court found that defendant committed perjury in his suppression hearing testimony and enhanced his sentence for obstruction of justice under § 3C1.1. The First Circuit upheld the enhancement, finding that defendant intentionally committed perjury at the suppression hearing. U.S. v. Gonzalez, 609 F.3d 13 (1st Cir. 2010).
1st Circuit approves obstruction increase based on perjury. (461) Defendant, a physician, was convicted of using another doctor’s name (Keefe) and DEA registration number. The district court applied an obstruction of justice increase finding that defendant committed perjury at trial. In particular, the court found irreconcilable differences between defendant’s testimony and Keefe’s testimony as to whether Keefe had authorized defendant to use his name and DEA number. This was not a minor conflict about a peripheral matter, but “a head-on clash about a central issue in the case.” The First Circuit affirmed the obstruction enhancement. Since the sentencing judge presided over the trial, the appellate court must allow him “reasonable latitude for credibility assessments.” U.S. v. Shinderman, 515 F.3d 5 (1st Cir. 2008).
1st Circuit says defendant’s actions showed specific intent to obstruct justice. (461) Defendant violated multiple bail conditions in an attempt to flee and obstruct justice. Specifically, he (1) left his sister’s home with all of his personal belongings without permission of the Probation Office; (2) cut off his electronic monitoring bracelet; (3) attempted to dye his hair to change his appearance, and was caught and arrested by law enforcement while driving a vehicle packed with his personal belongings. The First Circuit ruled that this evidence supported the court’s finding that defendant intended to obstruct justice. Thus, it was unnecessary to decide whether there must be a specific finding that defendant had a specific intent to obstruct justice. U.S. v. Fournier, 361 F.3d 42 (1st Cir. 2004).
1st Circuit rejects claim that false testimony was result of poor memory or confusion. (461) Defendant challenged an obstruction of justice increase, arguing that the government failed to establish that he perjured himself in testifying at a suppression hearing that he did not receive Miranda warnings and that he had intended to use 110 grams of cocaine for his own use, rather than distribution. He contended that his testimony could have resulted simply from poor memory or the shock and confusion incident to his arrest. The First Circuit rejected defendant’s claim of confusion or poor memory. Miranda warnings were read to defendant on two separate occasions following his arrest, both in English and in Spanish. Similarly, at best the contention that defendant intended the 110 grams of cocaine exclusively for personal use was implausible, directly contradicted by a DEA agent, and inconsistent with defendant’s pretrial statement that he had never used cocaine. Moreover, the district court is the primary arbiter of witness credibility. U.S. v. Reynoso, 336 F.3d 46 (1st Cir. 2003).
1st Circuit holds that court was not required to hold evidentiary hearing to consider letter written by fellow inmate. (461) While awaiting sentencing, defendant presented a letter from a fellow inmate, which stated that two witnesses against defendant were lying about his involvement in drugs. The inmate later admitted to a government agent that defendant had sought him out several times and pressured him to write a false account that would put defendant in a favorable light. The inmate refused to be interviewed by defendant’s attorney. Defendant argued that the sentencing court should have granted his motion for an evidentiary hearing before finding that the letter was false. Although the issue was close, the First Circuit found no abuse of discretion in the court’s refusal to hold an evidentiary hearing. The court examined the letter with care, noting that the letter was conclusory in nature, and determined that it lacked probative value. This finding was buttressed by other aspects of the record, since the essence of the letter was contradicted by defendant’s own statements to the probation officer. Although the letter intimated that witnesses had fabricated a tale about defendant, it gave no plausible reason for them to have done so. The district court properly relied on the letter to support an obstruction of justice increase. There was no principled way to disturb the district court’s finding that defendant obstructed justice by inducing the inmate to write and sign a letter that defendant knew was false. U.S. v. Rodriguez, 336 F.3d 67 (1st Cir. 2003).
1st Circuit affirms increase where obstructive conduct occurred during audit that preceded criminal investigation. (461) Defendant, the owner and operator of an ambulance company, pled guilty to Medicare and Medicaid fraud. He received an obstruction of justice increase arising out of his earlier submission of false information to federal auditors before that audit led to the criminal investigation and prosecution. Defendant challenged the increase, arguing that the attempted obstruction did not occur “during the course of the investigation … of the instant offense of conviction.” The First Circuit affirmed the increase, ruling that the Medicare and Medicaid audits had an adequate link to the ensuring criminal proceedings and so were during the course of the investigation or the offense of conviction. The findings of the administrative audits led to the initiation of a federal criminal investigation. The guideline itself contains no requirement of an “official” investigation. The fact that there was no pending federal criminal investigation at the time of the obstruction did not disqualify defendant from the enhancement because there was a “close connection between the obstructive conduct and the offense of conviction.” U.S. v. McGovern, 329 F.3d 247 (1st Cir. 2003).
1st Circuit upholds obstruction increase where defendant’s testimony was contrary to jury verdict. (461) At trial, defendant acknowledged numerous telephone conversations with co-defendants about providing drugs, but he claimed that he never agreed to provide or intended to provide them with any type of drug. Instead, defendant said that he spoke with the co-defendants only because he was owed money and feared for his life. If that testimony had been believed, the jury would have concluded that he did not intend to distribute drugs, making him guiltless of any drug conspiracy charges. In reaching the opposite conclusion, the jury must have found that defendant’s testimony was false – not the product of mistake, confusion or faulty memory, but rather stemming from defendant’s desire to convince the jury of a fabricated theory to excuse himself from liability. In turn, the judge could not have been clearly erroneous in deciding that defendant had provided materially false information. Thus, the First Circuit affirmed the two-level obstruction of justice increase. U.S. v. Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003).
1st Circuit holds that evidence supported finding of attempted escape. (461) The day before defendant pled guilty to bank robbery, a prison guard saw defendant sweeping up Sheetrock dust from the floor of his cell. The next day, another officer found a hole in the ceiling of defendant’s cell. Defendant’s cellmate, Spillane, said he had “nothing to do” with the hole. Two officers searched the cell and found a pry bar, a bag filled with Sheetrock, and a small grate that had been in the ceiling, as well as a hole in the wall. The next day, an officer saw defendant assault Spillane, telling him “nobody likes a rat.” The First Circuit affirmed an obstruction of justice enhancement based on defendant’s attempted escape. The evidence supported a finding by the preponderance of the evidence that defendant was responsible for the holes in the ceiling and wall of the cell. U.S. v. Cash, 266 F.3d 42 (1st Cir. 2001).
1st Circuit applies obstruction enhancement for perjury. (461) Defendant was mayor of a municipality that qualified for federal disaster assistance through FEMA after being struck by Hurricane Georges. He and a friend were convicted of corruptly soliciting a $2.5 million bribe from a private company as the cost of the company’s obtaining the debris cleanup contract for the area. The judge identified three examples of the commission of perjury: (1) the denial of solicitation attempts; (2) the denial that anything of value was requested; and (3) defendant’s explanation for the presence of $12,000 (the downpayment of the bribe) in his desk drawer. The First Circuit affirmed an obstruction of justice enhancement, ruling that the judge could clearly find that defendants lied in their testimony. U.S. v. Orlando-Figueroa, 229 F.3d 33 (1st Cir. 2000).
1st Circuit says persons endangered during flight need not be law enforcement officers. (461) Defendant’s attempted flight from arresting officers led to a high-speed chase through town during which defendant rammed several police vehicles, drove up onto the sidewalk and eventually crashed his own vehicle. Defendant stipulated that he was subject to a § 3C1.2 increase for recklessly endangering another person while fleeing from a law enforcement officer. Nonetheless, defendant challenged the increase on appeal on the grounds that the persons he hit or nearly hit were not police officers. The First Circuit found no error, let alone plain error. It did not matter whether the persons defendant endangered were law enforcement officers; it was enough that he created a substantial risk of injury to another person while fleeing from law enforcement. See Note 4 to USSG § 3C1.2. U.S. v. Cruz, 213 F.3d 1 (1st Cir. 2000).
1st Circuit applies obstruction enhancement for outburst in open court. (461) During a co-conspirator’s cross-examination, defendant blurted out in open court: “I want to fire [my] lawyer because I believe she’s working with the prosecution.” Thereafter, in several colloquies with the court, defendant requested a severance, claiming that he had told his attorney earlier in the day that he intended to fire her, and maintained that he had been forced to blurt out the above information in open court once he realized she did not intend to convey his wishes to the court. The First Circuit affirmed a § 3C1.1 obstruction of justice enhancement, finding ample support that defendant uttered his statement with intent to obstruct the trial and gain an advantageous severance. His counsel told the court that defendant had not requested that she inform the court that he wanted to fire her, but only that he was unhappy with the cross-examination and was considering whether or not to dismiss her. Given the equivocal account that defendant gave of their conversation, the district court was entitled to credit counsel’s version. U.S. v. Balsam, 203 F.3d 72 (1st Cir. 2000).
1st Circuit upholds obstruction enhancement for scheme to provide false evidence. (461) After watching defendant conduct an apparent drug transaction from his car, police searched the car, finding two bags of cocaine in the ashtray, a handgun in the glove compartment and more drugs hidden in a cooler in the back of the car. In his opening statement at defendant’s trial, defense counsel claimed that the drugs in the ashtray were for defendant’s personal use, and that the drugs in the back had been placed there by Jones, the boyfriend of defendant’s sister. Two days later, the prosecutor informed the defense that Jones was an informant and had denied owning the drugs in the back of the car. Instead, Jones claimed to have agreed with defendant to testify falsely that the drug belonged to Jones. The First Circuit affirmed an obstruction of justice enhancement, finding the evidence ample to show defendant’s participation in a scheme with Jones to provide false evidence as to ownership of the drugs in the back of the car. U.S. v. Aker, 181 F.3d 167 (1st Cir. 1999).
1st Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant was the captain of a boat stopped by the Coast Guard in waters outside Puerto Rico. The Coast Guard recovered bales of marijuana in the water near defendant’s boat. Physical evidence linked the bales to defendant’s boat. Defendant testified at trial that he had been hired from Colombia to search for a lost boat in the area. The district court applied an obstruction of justice enhancement, finding unbelievable defendant’s story that he had been hired to travel such a great distance to conduct a less-than-two-hour search for an allegedly missing boat, and that the missing boat happened to get lost in an area conducive to drug trafficking. The First Circuit held that the district court did not err in enhancing defendant’s sentence for obstruction of justice. The court specifically stated it was not enhancing defendant’s sentence merely for being convicted after testifying, and engaged in a detailed discussion of the perjurious nature of defendant’s testimony. U.S. v. Cardales, 168 F.3d 548 (1st Cir. 1999).
1st Circuit finds obstruction where defendant’s son gave witness bus ticket and money to retract accusations. (461) Defendant and his partner operated a prostitution business that involved both juvenile and adult women. He was convicted of transporting minors across state lines for prostitution purposes. The First Circuit applied an obstruction of justice enhancement based on a juvenile’s testimony that defendant’s son, a school friend, gave her $3,500 to sign an affidavit retracting her accusations, and a bus ticket to prevent her from testifying. The district court found this testimony credible and further found that defendant instructed his son to tamper with the witness. U.S. v. Anderson, 139 F.3d 291 (1st Cir. 1998).
1st Circuit approves obstruction increase for giving false identity at trial and sentencing. (461) Defendant claimed that the false statements he made about his identity did not justify a § 3C1.1 enhancement for obstruction of justice. The First Circuit disagreed. For information to be material it need only have a potential effect. By giving a false name, date of birth and personal history throughout trial and during sentencing, defendant hid a prior conviction, his age, his residence, and the fact that he was seeking to defraud immigration officials by participating in a sham marriage to obtain citizenship. These misrepresentations were material because of their potential to affect sentencing determinations. A second defendant also properly received a § 3C1.1 enhancement for presenting a false name throughout trial and claiming he was a citizen of Puerto Rico. This defendant concealed the fact that he had previously been arrested by the INS and had fled after posting bail. Bail and other issues could be affected by defendant’s false identity and pretending to be a citizen of this country, as well as his concealment of facts that made him a known flight risk. U.S. v. Berrios, 132 F.3d 834 (1st Cir. 1998).
1st Circuit says evaluating defendant’s testimony in a “favorable light” does not require accepting it. (461) Defendant exported computer equipment from the U.S. to Libya in violation of a U.S. trading embargo. The First Circuit affirmed an obstruction of justice enhancement under § 3C1.1 based on the court’s finding that defendant committed perjury when he testified that he did not know his actions violated U.S. law. Although the guidelines in effect at the time required district court to evaluate the defendant’s testimony in a light most favorable to defendant, this did not require court to resolve all evidentiary conflicts to the defendant’s benefit. Statements need only be construed favorably to a defendant if they are genuinely ambiguous or the record plausibly supports an innocent interpretation. Here, numerous witnesses testified to incriminating statements and conduct that occurred before defendant claimed he became aware of possible legal problems. U.S. v. McKeeve, 131 F.3d 1 (1st Cir. 1997).
1st Circuit affirms obstruction enhancement for perjury. (461) Defendant fraudulently obtained a two loans. In addition to inflating the purchase price of the property he was purchasing, he submitted to his lenders false financial information and forged documents purportedly signed by the property’s tenants and guarantors of defendant’s loan. The First Circuit affirmed an obstruction of justice enhancement based on the district court’s finding that defendant committed perjury at trial on four separate occasions. The false testimony was material because it concerned defendant’s specific intent to commit fraud. Defendant testified on direct examination that he had permission to sign a tenant or guarantor’s signature, only to be caught in his lie on cross-examination. The district court could have easily found that defendant’s testimony was not the result of confusion, mistake, or faulty memory. U.S. v. D’Andrea, 107 F.3d 949 (1st Cir. 1997).
1st Circuit finds obstruction for false affidavit, witness intimidation, and false objections to PSR. (461) Defendants argued that the district court should not have enhanced their sentences under § 3C1.1 for obstruction of justice. The First Circuit affirmed, because the record contained evidence of several independent acts by defendants supporting the enhancements, including submitting a false affidavit, witness intimidation, and false objections to the PSR. U.S. v. Fraza, 106 F.3d 1050 (1st Cir. 1997).
1st Circuit upholds obstruction for threatening letters sent to witness who never testified. (461) The district court imposed a § 3C1.1 enhancement based on threatening letters defendant sent to a prospective government witness. Defendant argued that the recipient was not connected with the investigation, prosecution or sentencing of the “instant” offense since he neither testified, nor were the threatening letters admitted, at defendant’s trial. The recipient testified at an earlier trial on drug charges that were severed from the instant stolen property charges. The First Circuit affirmed the enhancement because, at the time defendant mailed the threatening letters, the recipient remained a prospective government witness in relation to the instant offense. It was not clear until immediately before trial that he would not testify. U.S. v. McMinn, 103 F.3d 216 (1st Cir. 1997).
1st Circuit upholds obstruction for telling co-conspirator not to speak to investigators. (461) Defendant was convicted of insurance fraud. An unindicted co‑conspirator testified that when she was first contacted by a Postal Inspector, defendant advised her not to speak to him. She also testified that defendant advised her not to answer the door when investigators were trying to serve a subpoena, told her not to speak to anyone, and attempted to persuade her to leave the jurisdiction to avoid the investigation. The First Circuit affirmed an obstruction of justice enhancement based on defendant’s attempt to get the co‑conspirator not to speak to investigators. Section 3C1.1 does not require threats. Defendant was not simply advising the co‑conspirator of her 5th Amendment right against self‑incrimination, but was attempting to obstruct justice. U.S. v. Voccola, 99 F.3d 37 (1st Cir. 1996).
1st Circuit affirms obstruction increase for striking witness in retaliation for cooperation. (461) Police overheard defendant and a co‑defendant discuss their belief that two individuals were the “rats” in their organization whose cooperation had led to their arrest. Several months later, after defendant had pled guilty but before his sentencing, defendant approached one of the supposed “rats” and punched him. The victim testified that defendant told him that this was “for being a rat. You better . . . stop talking.” The First Circuit affirmed a § 3C1.1 enhancement based on the assault on the witness. The district court found that defendant knew of the witness’s cooperation and assaulted him to prevent further conduct. Although defendant had pled guilty, he struck the witness before his sentencing. The enhancement was also proper even if the assault was only intended to retaliate for past cooperation. U.S. v. Lagasse, 87 F.3d 18 (1st Cir. 1996).
1st Circuit finds obstruction in misstating name and age in effort to be charged as juvenile. (461) The prosecution was halted as a result of defendant’s misstatements to arresting officers about his name and age. The prosecution did not begin again until after his true identity and age were discovered. He challenged a § 3C1.1 obstruction enhancement, arguing that his intent in lying about his name and age was to avoid being placed in an adult prison, not to avoid federal prosecution. The First Circuit held that the enhancement was proper even if defendant’s intent in lying was to be placed in an juvenile rather than an adult facility. If a defendant’s use of a false identity in the hopes of being released on bail is obstruction of justice, so is this. Even under defendant’s version of the facts he had the requisite specific intent to obstruct the administration of justice. U.S. v. Thomas, 86 F.3d 263 (1st Cir. 1996).
1st Circuit affirms obstruction enhancement based on tapes made to create a false record. (461) Defendant ran a private social club that had been ordered closed by the city for violation of city codes. Defendant hired a man who had been working on repairs at the club to set fire to the building. Both before and after the fire, defendant tape‑recorded a series of telephone conversation he had with other people without their knowledge or consent. He introduced excerpted portions of these tapes at trial. The district court applied an obstruction of justice enhancement, finding the tapes were an attempt to cover up the conspiracy and create a false record. The First Circuit affirmed, finding the fact that the investigation was not impacted was irrelevant, since defendant used them at trial and thus attempted to obstruct the prosecution of the offense. Defendant’s use of the tapes was not passive, as he claimed. He used portions to demonstrate his state of mind and to cross-examine a witness. Moreover, defendant did not challenge the court’s finding that the tapes were made in an attempt to create a false record. U.S. v. Mitchell, 85 F.3d 800 (1st Cir. 1996).
1st Circuit upholds obstruction enhancement for suborning perjury. (461) Defendant and others kidnapped a young woman at knife point. He attempted to persuade his co‑conspirators to tell the court that the victim herself had been involved in the scheme to kidnap and hold her for ransom. The First Circuit approved an obstruction of justice enhancement based on defendant’s attempt to suborn perjury. Defendant claimed that if he been convicted of suborning perjury, he would have received a lesser sentence than he received as a result of the obstruction enhancement, and therefore due process required the government to prove the obstructive conduct beyond a reasonable doubt. However, defendant made no effort to prove his premise. Moreover, precedent clearly provides that a preponderance of the evidence standard governs at sentencing. The requirement that the court evaluate defendant’s testimony in a light most favorable to the defendant does not require the court to resolve all disputes in favor of the defendant, or to accept defendant’s self‑serving denials. U.S. v. Clark, 84 F.3d 506 (1st Cir. 1996).
1st Circuit holds that letters of apology burned by defendant were material. (461) Defendant stole money from the trust account and from the checking account of an elderly couple for whom he worked as a personal aide. The government claimed that after learning of the FBI’s investigation, defendant burned bank statements and checks belonging to the victims. Defendant admitted that he destroyed documents, but claimed he only burned drafts of a will and letters of apology written but not mailed to the victims. The First Circuit upheld an obstruction of justice enhancement under either version of the facts. The bank statements and checks were obviously material. However, letters of apology, which are tantamount to a confession of guilt, also would have been material because they would have had the potential to influence the investigation of the fraud. Defendant did not have a Fifth Amendment right to destroy his personal papers. Once an individual chooses voluntarily to prepare a written account, the act of preparation serves as an effective waiver the Fifth Amendment’s protection. U.S. v. Feldman, 83 F.3d 9 (1st Cir. 1996).
1st Circuit finds defendant attempted to “script” co‑conspirator’s testimony. (461) The presentence report reported that defendant and his girlfriend contacted a co‑conspirator several times in an effort to induce the co‑conspirator to testify that defendant had a subordinate role in their drug conspiracy. Defendant did not deny that he and his girlfriend contacted the co‑conspirator, but contended that they merely urged him to tell the truth. The First Circuit approved an obstruction of justice enhancement, since the trial court had extensive opportunity to observe both defendant and the co‑conspirator and was in the best position to make a credibility determination. U.S. v. Martinez, 83 F.3d 488 (1st Cir. 1996).
1st Circuit affirms enhancement where district court filed later order identifying perjury. (461) Defendant ran a scheme to defraud investors by obtaining their funds through false representations. The district court enhanced his sentence for obstruction of justice based on defendant’s perjury during trial. Defendant argued that the judge’s bare statement at sentencing—that an obstruction of justice had occurred—did not show that the judge had found each of the elements of perjury: falsity, willfulness and materiality. The First Circuit retained jurisdiction and, by order, asked the district court to identify the obstructive conduct and the basis for its findings. By a supplemental order, the district court found that the perjury lay in defendant’s testimony that he was unaware of the misrepresentations made by his broker to investors. The court’s order found this testimony to be false, willful and material. The First Circuit affirmed the § 3C1.1 enhancement. U.S. v. Camuti, 78 F.3d 738 (1st Cir. 1996).
1st Circuit finds evidence supporting conviction sufficient to support perjury finding. (461) Defendant was convicted of conspiracy to steal and sell goods in interstate commerce. The district court enhanced his sentence under § 3C1.1, finding defendant had lied at trial when he denied knowing that the merchandise in his barn was stolen and knowing anything about stolen furniture stored at his farm. He disputed the finding that his testimony constituted perjury. The First Circuit found that since the evidence was sufficient to convict him of these thefts, it was more than ample for a sentencing determination under the preponderance of the evidence standard. U.S. v. Black, 78 F.3d 1 (1st Cir. 1996).
1st Circuit finds obstruction for providing false statement to probation officer. (461) Defendant made fraudulent statements in order to obtain a SBA loan to refinance his commercial lobster boat. The district court applied an obstruction of justice enhancement for two false statements defendant filed with his probation officer. The First Circuit affirmed, agreeing that the passages were materially false. Defendant’s statement that he had nothing to do with the theft of electronic equipment from his boat was discredited by the testimony of his son. Defendant’s claim that the loan funds he fraudulently obtained were dedicated to boat expenses was contradicted by bank records and canceled checks indicating that $15,600 was used for mortgage payments, parochial school tuition, and miscellaneous household expenses. The false statements were similar enough to the underlying charged conduct to establish a close nexus. Both statements, if believed, could have affected the court’s decision on more than minimal planning and defendant’s role. U.S. v. Kelley, 76 F.3d 436 (1st Cir. 1996).
1st Circuit upholds obstruction enhancement for defendant who testified that he produced P2P by accident. (461) Defendant was convicted of six counts related to the manufacture and distribution of P2P. Seven of the 14 mixtures defendant delivered to an undercover agent did not contain a detectable amount of P2P. At trial he testified that his true intent had been to deceive his purchasers into believing they were receiving P2P and that the P2P in the mixtures he delivered had been produced by accident. The First Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial. It was incredible that defendant intended to deceive individuals that he believed were New York drug traffickers when he had no means of protecting himself when they discovered his swindle. Also, he would not have told his co-conspirator that the substances delivered were 85% P2P if he believed they contained no P2P. Finally, the complexity and sophistication of the lab showed that defendant intended to produce P2P. The false testimony was material since it was relevant to the required mental state for the crime and to the severity of the sentence. U.S. v. Campbell, 61 F.3d 976 (1st Cir. 1995).
1st Circuit approves obstruction enhancement for falsely testifying of innocence at plea withdrawal hearing. (461) The district court enhanced defendant’s sentence for obstruction of justice, finding that defendant had testified falsely at his plea withdrawal hearing when he claimed he was “absolutely” innocent of bank fraud charges, and had been duped by a co-conspirator to negotiate forged checks. The First Circuit affirmed. Four months later after the hearing, defendant admitted his knowing participation in the scheme, although not to the full extent for which the district court held him responsible. Thus, defendant’s protestations of absolute innocence at the withdrawal hearing amounted to perjury. U.S. v. Webster, 54 F.3d 1 (1st Cir. 1995).
1st Circuit affirms obstruction enhancement for destroying documents. (461) Defendant conspired to fraudulently obtain millions of dollars in real estate loans from two credit unions. The Second Circuit affirmed an obstruction of justice enhancement based on defendant’s destruction of certain documents. He told one conspirator that he was going to burn his closing books in his fireplace. The government also recovered two pages from a document that defendant had thrown away, including the face page of a purchase and sale agreement on which the price had been changed with correction fluid. U.S. v. Smith, 46 F.3d 1223 (1st Cir. 1995).
1st Circuit affirms obstruction based on lies to probation officer and telling co-conspirator to lie. (461) The district court imposed an obstruction of justice enhancement based on a false statement defendant provided to his probation officer about his presence during a planning meeting for a drug conspiracy, and a letter defendant sent to a co-defendant instructing him to provide false information to the probation officer. The 1st Circuit affirmed, finding both lies material. The lie regarding defendant’s presence at the planning meeting could have influenced the determination of defendant’s role in the offense. The false information defendant attempted to have his co-defendant give also related to defendant’s role in the offense, and could have affected relevant conduct determinations. U.S. v. Ovalle-Marquez, 36 F.3d 212 (1st Cir. 1994).
1st Circuit says court need not explain analysis in finding perjury. (461) The district court imposed an obstruction of justice enhancement based on two lies defendant gave at trial. He testified that he only sold LSD to a cooperating witness because he was afraid of him. He also stated that he only left Maine to be with his pregnant girlfriend, and intended to return to Maine and stand trial after the child’s birth. He argued that the district court inadequately explained the basis for its “conclusory” findings that he committed perjury. The 1st Circuit held that the findings were adequate, and the court was not required to explain its reasoning process. On review, the appeals court must be able to ascertain the ultimate finding and there must be evidence that would permit a reasonable fact finder to make such a determination. An appellate court normally reviews the evidence and the result, but not the reasoning by which the result is reached by the district court. Although an ambiguous statement should be taken in the light most favorable to defendant, there was no ambiguity in the meaning of defendant’s statements. U.S. v. Tracy, 36 F.3d 199 (1st Cir. 1994).
1st Circuit applies obstruction enhancement for tossing drugs from window where drugs were never recovered. (461) While being pursued by police, defendant threw an undetermined amount of money and heroin out the window of his car. Police recovered $865 in cash but no drugs. The 1st Circuit upheld an obstruction of justice enhancement for throwing the drugs out the window. Note 3(d) to § 3C1.1 provides that the enhancement shall not be applied where the conduct occurred contemporaneously with arrest, unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender. The absence of the drugs hindered the prosecution’s ability to pursue a conviction on the drug count after its main witness refused to cooperate. U.S. v. Garcia, 34 F.3d 6 (1st Cir. 1994).
1st Circuit says failure to give acceptance credit was offset by failure to find obstruction. (461) Defendant was convicted of smuggling aliens into the United States. He was denied a reduction for acceptance of responsibility because he refused to admit that he had used a gun and had forced passengers from the boat, resulting in two deaths. The 1st Circuit found it unnecessary to decide whether under the old version of § 3E1.1 a reduction could be denied based on a refusal to admit relevant conduct. Even if the two point reduction should have been given, defendant’s false denial required a two point increase for obstruction of justice under § 3C1.1. The two errors offset each other. The fact that the government did not seek the 3C1.1 enhancement did not prevent the court from taking note of it in this context. U.S. v. Hernandez-Coplin, 24 F.3d 312 (1st Cir. 1994).
1st Circuit does not require express finding of perjury’s materiality for obstruction enhancement. (461) Defendant received an enhancement for obstruction of justice based on her perjury. The 1st Circuit rejected her claim that the district court failed to make specific findings necessary to establish perjury. The court’s findings encompassed all the elements of perjury — falsity, materiality, and willfulness. Although the court was not explicit about whether defendant’s testimony was material, a sentencing court is not required to address each element of perjury in a separate and clear finding. Moreover, defendant’s false testimony denying his knowledge and participation in the conspiracy was material. If believed, the jury would have acquitted her. U.S. v. Matiz, 14 F.3d 79 (1st Cir. 1994).
1st Circuit says “intentionally and knowingly” was equivalent of specific intent finding. (461) The district court imposed an enhancement for obstruction of justice based on evidence that defendant tried to convince an acquaintance to testify falsely about a material matter. The 1st Circuit affirmed, rejecting defendant’s claim that the court failed to make a finding of specific intent to obstruct justice. The judge found that defendant “intentionally and knowingly” attempted to persuade another individual to falsely testify that law enforcement agents used contraband substances during the course of a drug buy. The phrase “intentionally and knowingly” was the functional equivalent of an express finding of specific intent. U.S. v. Gonzales, 12 F.3d 298 (1st Cir. 1993).
1st Circuit holds that false information about citizenship obstructed justice. (461) The 1st Circuit upheld an enhancement for obstruction of justice based on defendant’s lies to a magistrate judge about his place of birth and U.S. citizenship. False information need not relate to the underlying charge to be material under section 3C1.1. A judge’s determination of materiality is reviewed only for clear error. There was no clear error in concluding that the false information concerning defendant’s citizenship was material under section 3C1.1. The judge explained that it was his practice, when sentencing an illegal alien, to suspend supervised release from the time the defendant is deported until, and if, he returns to the U.S. Thus the judge demonstrated a connection between citizenship and the discretionary sentencing decision to suspend supervised release. By definition, then, defendant’s falsehood involved information material to sentencing. U.S. v. Biyaga, 9 F.3d 204 (1st Cir. 1993).
1st Circuit permits obstruction adjustment for escape attempted before federal investigation. (461) Defendant was arrested by local officials for check-kiting. Before a federal investigation of the crime commenced, defendant attempted to escape from local detention. The 1st Circuit rejected defendant’s argument that he could not receive an obstruction enhancement because his escape attempt did not occur during a federal investigation. The court noted that defendant’s federal conviction was based on the same conduct for which he had been imprisoned, but it questioned authority suggesting that an obstruction adjustment might be permitted even where no investigation, federal or local, was pending. U.S. v. Emery, 991 F.2d 907 (1st Cir. 1993).
1st Circuit remands to determine whether defendant committed perjury. (461) The district court rejected the government’s request for an obstruction of justice enhancement based on defendant’s perjury. On appeal, The 1st Circuit remanded because it was unclear whether the district found that all of the elements of perjury were satisfied. The district court’s comments could be interpreted as finding perjury, but requiring something more than basic perjury to justify the enhancement. The district court was directed to make findings to support all the elements of a perjury violation, or to articulate clearly the elements it believed had not been satisfied. U.S. v. Tracy, 989 F.2d 1279 (1st Cir. 1993).
1st Circuit upholds obstruction enhancement based on false statements in letter to court. (461) Defendant pled guilty to one drug sale in return for the dismissal of two other drug counts. The 1st Circuit upheld an enhancement for obstruction of justice based on false statements defendant made in a letter he sent to the district court. The letter falsely portrayed defendant as “an unwitting dupe” in the first sale, and falsely stated that he had nothing to do with the other two sales. While the counts charging these later two sales were dismissed, defendant’s false assertions that he had not participated in them were material because, as relevant conduct, they affected the calculation of his base offense level. U.S. v. Olea, 987 F.2d 874 (1st Cir. 1993).
1st Circuit upholds obstruction enhancement based on failure to acknowledge prior arrest. (461) After conviction, when asked by the probation officer, defendant denied that he had ever been arrested in this or any other country. Later, a fingerprint match established that defendant had been arrested a few months earlier in New York on a firearms charge. The 1st Circuit affirmed an enhancement for obstruction of justice. Section 3C1.1 includes attempts to obstruct justice as well as actual obstruction. The probation officer was only successful in discovering the prior arrest because he chose to run a fingerprint check on the defendant. Defendant’s denial of his prior arrest was material under the guidelines. He was awaiting trial in New York at the time he committed the instant offense, and this could have been grounds for an upward departure under section 4A1.3(d). U.S. v. Pineda, 981 F.2d 569 (1st Cir. 1992).
1st Circuit upholds enhancement for misrepresenting criminal history to probation officer. (461) The 1st Circuit upheld an enhancement for obstruction of justice based upon defendant’s failure to disclose to his probation officer several previous convictions. Although the omissions were eventually rectified, they resulted in a substantial delay in completing the presentence report. The fact that the misrepresentations resulted in no actual prejudice was immaterial. A defendant’s concealment of important information about his criminal record is a material omission for purposes of section 3C1.1. The court affirmed the determination that the omissions were willful. The probation officer provided a markedly different account than defendant of their interview together and of defendant’s reaction to the officer’s independent discovery of the unmentioned convictions. U.S. v. St. Cyr, 977 F.2d 698 (1st Cir. 1992).
1st Circuit finds obstruction enhancement for perjury supported by the record. (461) The 1st Circuit upheld an enhancement for obstruction of justice based on defendant’s perjury at trial. The district court explicitly found several instances in which defendant perjured himself at trial. There was overwhelming evidence to support those findings. U.S. v. Brennan, 994 F.2d 918 (1st Cir. 1993).
1st Circuit upholds obstruction adjustment for lie related to sentencing for failure to appear. (461) The notes to the obstruction guideline, 3C1.1, provide that the adjustment is not to be applied to certain “obstruction” offenses, including failure to appear, except where a significant further obstruction occurred “during the investigation or prosecution of the obstruction offense itself.” The 1st Circuit held that this note’s failure to specify the sentencing stage did not preclude an adjustment based on defendant’s lie related to sentencing. The guideline itself speaks specifically to obstruction of sentencing, and the court concluded that the result would have been the same even under earlier versions of the guidelines that did not make that point explicit. U.S. v. Agoro, 996 F.2d 1288 (1st Cir. 1993).
1st Circuit affirms that flight prior to sentencing constituted obstruction of justice under 1989 guidelines. (461) The 1st Circuit held that flight after conviction but prior to sentencing constituted obstruction of justice under the 1989 version of the guidelines. There was no merit to defendant’s contention that he lacked notice that his flight would cause an adjustment under section 3C1.1. Failing to appear at a sentencing hearing and disappearing for six months clearly impedes the administration of justice. Defendant was fully aware that he was delaying his sentencing by fleeing. U.S. v. McCarthy, 961 F.2d 972 (1st Cir. 1992).
1st Circuit affirms obstruction enhancement based on concealment of rancid meat from USDA inspectors. (461) Defendant was convicted of eight counts of selling adulterated meat and poultry. The 1st Circuit rejected defendant’s argument that an enhancement for obstruction of justice was improper because his conduct obstructing justice did not occur during the investigation or prosecution of his offense. A former employee testified that defendant would instruct him to clean rodent droppings from the poultry case and put rancid chicken in the back of the freezer under other meat prior to USDA inspections. The employee also stated that defendant knew that if the USDA did not return to his market within a few hours from their first visit, they would not come back that day, and thus defendant would instruct his employees to put the rancid meat back in the display case. “Hiding rotten poultry and meat products in the freezer so that Agricultural Department inspectors would not find them and selling them after the danger of detection had passed is a flagrant example of concealing evidence material to an official investigation.” U.S. v. Pilgrim Market Corporation, 944 F.2d 14 (1st Cir. 1991).
1st Circuit upholds obstruction enhancement based upon perjury at trial. (461) The 1st Circuit affirmed an enhancement under section 3C1.1 based upon defendant’s perjury during the trial. Two drug enforcement agents and a tape recording indicated that defendant sold cocaine to a government agent for $3300. This evidence sufficiently supported the determination that defendant was lying when he said he did not know about the drug transaction, that he had no connection with the courier who brought the drugs to his shop, and that he did not hand the drugs to the government agent. Even construed in the light most favorable to him, defendant’s testimony was “elaborate, fanciful and false.” U.S. v. Torres, 960 F.2d 226 (1st Cir. 1992).
1st Circuit upholds obstruction enhancement based upon perjury at trial. (461) Defendant, a police detective, was found guilty of RICO offenses for accepting bribes from a bookmaker. He received an enhancement for obstruction of justice under section 3C1.1 based upon his testimony, contrary to the overwhelming evidence against him, that the money he received constituted loans and not bribes. The 1st Circuit upheld the enhancement, rejecting defendant’s claim that his testimony was a mere denial of guilt protected by paragraph 3 of the commentary to section 3C1.1. No criminal defendant enjoys a constitutional right to testify falsely. For sentencing purposes, due process is not violated where perjury is established by a preponderance of the evidence. U.S. v. McDonough, 959 F.2d 1137 (1st Cir. 1992).
1st Circuit upholds obstruction enhancement despite judge’s failure to identify defendant’s perjurious statements. (461) The 1st Circuit upheld an obstruction of justice enhancement based upon defendant’s perjury despite the district court’s failure to identify what portion of defendant’s testimony was perjurious. No specific finding was necessary because “the record [spoke] eloquently for itself.” Defendant not only contended that he was unaware that he was in Maine (contending that he thought he was Boston, Massachusetts), but he also contended that he spent the entire day of the arrest in a motel room watching television, when, in fact, he was spotted elsewhere. He also contended that he never knew the true nature of the journey and never questioned anything that occurred — even when he was instructed to retrieve a black bag from the trunk of a parked car with a key that he obtained from the car’s rear tire. U.S. v. Rojo-Alvarez, 944 F.2d 959 (1st Cir. 1991).
1st Circuit upholds obstruction enhancement where drugs were thrown from apartment windows during police raid. (461) Defendant and two co-defendants were arrested after police noticed a number of bricks of cocaine flying out of windows during the execution of a search warrant. Defendant contended that an enhancement for obstruction of justice was improper because one of the other defendants was seen throwing drugs from the window. The 1st Circuit affirmed the enhancement, noting that at the same time that the co-defendant was observed throwing the drugs, bricks of cocaine were also being thrown from two other sides of the apartment. The co-defendant could not have been in all three places at the same time. Since there were only three conspirators in the apartment at the time, and since defendant was a leader in the operation, it was permissible for the district court to conclude that defendant took an active part in destroying or concealing evidence. U.S. v. Font-Ramirez, 944 F.2d 42 (1st Cir. 1991).
1st Circuit affirms obstruction enhancement for defendant who presented contradictory stories as to source of money. (461) Defendant received an enhancement for obstruction of justice based upon (a) her conflicting testimony as to the source of the $2,705 found in her husband’s jacket, and the existence of a $33,000 “inheritance” that her husband received, and (b) her denial of the fact that at the time police entered her house, she and her husband were down in the basement near a table containing cocaine. The 1st Circuit upheld the enhancement. The district court was not required to view her testimony in a light most favorable to her as set forth in application note 1 to guideline section 3C1.1, since this only applies with respect to conflicts about which the judge has no firm conviction. Here, the trial judge had no doubts about veracity of defendant’s testimony. The court did not consider her claim that the enhancement violated her constitutional right to testify since defendant’s self-contradictory testimony concerning the source of her family’s money provided ample support for the obstruction enhancement. U.S. v. Brum, 948 F.2d 817 (1st Cir. 1991).
1st Circuit affirms obstruction enhancement based upon defendant’s threats to witnesses. (461) The 1st Circuit affirmed the district court’s determination that defendant attempted to obstruct justice based upon his threats to two witnesses prior to their testimony. In the first case, he told a witness, in response to her refusal to talk to him before trial, that she would “end up taking a one-way walk through the woods.” In the other case, defendant told a potential witness prior to his testimony before the grand jury that the witness would “get his.” The court rejected defendant’s contention that this was “suspect” testimony within the meaning of guideline § 3C1.1 which should be evaluated in the light most favorable to the defendant. This language most likely refers to testimony by a suspect, not “suspicious” testimony. U.S. v. Sabatino, 943 F.2d 94 (1st Cir. 1991).
1st Circuit refuses to adopt higher standard to determine whether defendant committed perjury at trial. (461) The 1st Circuit affirmed the district court’s decision to enhance defendant’s offense level for obstruction of justice based upon a finding that defendant had testified untruthfully at trial and suggested to potential witnesses that they change their stories and refuse to cooperate with law enforcement. The court rejected defendant’s argument the “beyond a reasonable doubt” standard of proof applicable to perjury cases should be employed by the sentencing court. Notwithstanding defendant’s acquittal on some charges, the trial court was not obligated to specify those portions of defendant’s testimony that it believed were falsified, since the finding of untruthfulness was supported by the record. Here, defendant repeatedly testified that he never “used,” “sold,” or “shared” cocaine and denied each of the events for which the jury found him guilty. The enhancement did not violate § 3C1.1’s prohibition against punishing a defendant for exercising a constitutional right. A defendant has no constitutional right to commit perjury. U.S. v. Rehal, 940 F.2d 1 (1st Cir. 1991).
1st Circuit affirms obstruction based on defendant’s false testimony that he only intended to purchase one pound of marijuana. (461) The district court found that defendant testified falsely that he only attempted to purchase one pound of marijuana and in providing the same false information in his written statement of acceptance of responsibility reproduced in the presentence report. The district court stated that it “defie[d] one’s imagination to expect people to believe that somebody is going to inspect .ÿ.ÿ. a 40-pound bale .ÿ.ÿ. for the purpose of buying one pound.” This was also grounds to deny defendant a reduction for acceptance of responsibility. U.S. v. Marino, 936 F.2d 23 (1st Cir. 1991).
1st Circuit affirms obstruction enhancement based upon perjury. (461) The 1st Circuit affirmed a two-point enhancement for obstruction of justice based on defendant’s false testimony at a presentence evidentiary hearing. The district court found that defendant testified falsely, first, in denying that he was involved in a transaction to purchase and distribute 4,000 pounds of marijuana, and second, in explaining his $60,000 debt to a co-defendant. Defendant denied his involvement with the marijuana, notwithstanding overwhelming evidence of his guilt. With respect to the $60,000 debt, defendant first conceded that he owed it. He then asserted his 5th Amendment privilege against self-incrimination. Later, he denied that he ever owed it. The debt was material to the purposes of the conspiracy, since another co-defendant testified that defendant was to receive a portion of the profits on all the marijuana which he sold in order to repay the $60,000. U.S. v. Marino, 936 F.2d 23 (1st Cir. 1991).
1st Circuit upholds obstruction enhancement based on defendant’s false testimony at trial. (461) Defendant testified that he came to the apartment only to borrow his cousin’s car, and that he had arrived only 45 minutes prior to the police. This testimony was rebutted by a police officer who had watched the apartment for over two hours before the arrests, and testified that defendant did not enter the apartment during that period. The 1st Circuit upheld an enhancement for obstruction of justice based on defendant’s untruthful testimony. Defendant was not punished for refusing to admit his guilt. No defendant has a constitutional right to testify falsely. The commentary which provides that a defendant’s testimony be evaluated in the light most favorable to him does not require the district court to resolve all factual disputes in favor of the defendant. U.S. v. Batista-Polanco, 927 F.2d 14 (1st Cir. 1991).
1st Circuit upholds obstruction enhancement for defendant who attempted to mislead the court. (461) Defendant’s offense level was increased by two points for obstruction of justice for misrepresenting that (a) he had been denied access to a law library while incarcerated, and (b) he had not been given an opportunity to review his presentence report. He argued that it was improper to rely on his detention officer’s affidavit because it was hearsay. The 1st Circuit found no impropriety, as defendant did not suggest that the officer lacked personal knowledge or had reason to lie. The commentary to guideline § 3C1.1, suggesting that testimony should be evaluated in a light most favorable to a defendant, does not require settlement of all evidentiary disputes favorably to the defendant. Finally, the court rejected defendant’s argument that the adjustment was a disguised punishment for defendant’s failure to accept responsibility. U.S. v. Aymelek, 926 F.2d 64 (1st Cir. 1991).
1st Circuit upholds obstruction of justice enhancement based on defendant’s perjury. (461) The district court increased defendant’s offense level for obstruction of justice based on the judge’s belief that the defendant perjured himself during trial by testifying in a self-serving “cock and bull story.” The 1st Circuit upheld the enhancement. However, an upward adjustment for obstruction of justice requires “more than a mere conflict in the trial testimony or a jury’s rejection of a defendant’s alibi or denial of guilt.” Because the determination is “fact-oriented,” an appellate court will review the district court’s findings under a clearly erroneous standard. Here the district court’s findings were not clearly erroneous. Defendant’s trial testimony where he disclaimed knowledge of the heroin and the marked money found in his apartment, and attempted to characterize his subordinate as the villain “could most charitably be described as fanciful.” U.S. v. Akitoye, 923 F.2d 221 (1st Cir. 1991).
1st Circuit affirms obstruction of justice enhancement for defendant who intimidated witness. (461) The district court determined that defendant obstructed justice by intimidating a witness. The witness provided the state police with information that led to the search of defendant’s home and his subsequent arrest. Soon after this, several men beat the witness badly. Subsequently, the witness received threats, usually just before he was scheduled to appear as a witness, and he was beaten on two other occasions just before he was supposed to testify. Although defendant claimed this evidence did not show he was behind the beatings, the 1st Circuit found that the “timing and pattern of the threats and the beatings” supported the district court’s conclusion that defendant was involved in the intimidation. U.S. v. Wheelwright, 918 F.2d 226 (1st Cir. 1990).
1st Circuit finds no acceptance of responsibility by defendant who misled authorities about his identity. (461) Defendant obtained false identification which he used to apply for a passport. When approached by government agents, defendant gave a false name. When placed under arrest, defendant continued to refuse to give his true identity. Even after his fingerprints revealed his true identity, defendant refused to truthfully identify himself. When defendant finally admitted his true identity to the district court, he made several false statements about his financial status. Defendant received a two point enhancement for obstruction of justice. Under these circumstances, defendant was not entitled to a reduction for acceptance of responsibility. U.S. v. Scott, 915 F.2d 774 (1st Cir. 1990).
1st Circuit rules obstruction of justice is grounds for upward adjustment of base offense level. (461) A drug defendant argued that the sentencing court impermissibly enhanced his base offense level by two points under § 3C1.1 after the court found he had lied about his name, birth date, and citizenship to both an immigration officer and a federal magistrate. The 1st Circuit affirmed the enhancement. Although it found that he had waived the point by conceding the issue at the sentencing hearing, it nevertheless found nothing improper. U.S. v. Mata-Grullon, 887 F.2d 23 (1st Cir. 1989).
2nd Circuit upholds obstruction increase despite defendant’s claim that she did not believe her actions violated law. (461) Defendant was a member of the legal team for Sheikh Rahman, who was convicted of a variety of terroristic crimes. She was convicted of smuggling messages to and from the incarcerated Rahman in violation of the “Special Administrative Measures,” or SAMs, to which she was subject as a member of Rahman’s legal team. The district court applied an obstruction of justice increase based on defendant’s perjurious statements, which fell into three general categories: 1) that defendant believed, despite the literal language of the SAMs, that she was allowed to take the actions that she did; 2) that she did not participate in a conspiracy with her co-defendants; and 3) that she did not know the identity of Rifa’i Taha Musa, a follower of Rahman, and an unindicted co-conspirator. The Second Circuit affirmed. Defendant’s actions belied her claim that she was allowed to take the actions she did. For example, she repeatedly made covering noises while messages were read, showing that she understood that her actions violated the law. U.S. v. Stewart, 686 F.3d 156 (2d Cir. 2012).
2nd Circuit upholds obstruction enhancement for deleting cell phone and e-mail records. (461) Defendant was a translator for the U.S. Army in Iraq. Federal agents found classified U.S. Army documents in defendant’s possession. Before and after officers interviewed him, defendant deleted records from his cell phone and deleted e-mails. Defendant pleaded guilty to retention of documents relating to the national defense, in violation of 18 U.S.C. § 793(e). Defendant falsely told the district court that he had obtained the documents by accident. At sentencing, the district court enhanced his offense level under § 3C1.1 for obstruction of justice. The Second Circuit found that the district court properly applied the obstruction-of-justice enhancement. U.S. v. Malki, 609 F.3d 503 (2d Cir. 2010).
2nd Circuit upholds obstruction increase for perjury at co-defendant’s trial. (461) Defendant pled guilty to attempted robbery and firearms charges. After pleading guilty, but before sentencing, he testified at this brother’s trial that a bookmaker named Joey, and not defendant’s brother, had aided defendant in the commission of the attempted robbery and shooting. At the time, the government was investigating a gambler named “Joe Lafaglia” who was found to have been in Las Vegas at the time of the attempted robbery. Defendant’s brother was convicted of all charges. The Second Circuit upheld an obstruction of justice increase based on defendant’s perjury at his brother’s trial. Under a 1998 amendment, Note 1 to § 3C1.1 clarifies that an obstruction of justice enhancement applies to conduct that occurred with respect to “an otherwise closely related case, such as that of a co-defendant.” It was undisputed that defendant and his brother were co-defendants who were indicted together. The cases were “closely related.” U.S. v. Savoca, 596 F.3d 154 (2d Cir. 2010).
2nd Circuit finds obstructive conduct related to both fraud and money laundering. (461) Defendant was charged with bank fraud based on his conduct in running a quarry. While released on bond, defendant borrowed money from one of the investors by falsely telling the investor that the borrowed funds were for legal expenses. Defendant asked the borrower to make the check payable to defendant’s uncle, and defendant then deposited the check in an account he had established in his uncle’s name. Later, defendant asked his uncle to testify falsely that the uncle was in charge of the checking account. Defendant also tried to convince the investor who had lent him money to lie to law enforcement about the loan. Defendant was charged with fraud and money laundering. At sentencing, the district court enhanced defendant’s sentence under § 3C1.1 because it found that defendant had obstructed justice by tampering with two witnesses. Defendant argued that the obstruction related only to the underlying fraud offenses, and not to the money laundering offenses. The Second Circuit held that the district court properly applied the enhancement even though defendant’s obstructive conduct occurred during the investigation of the money laundering offenses but obstructed the underlying offenses. U.S. v. Byors, 586 F.3d 222 (2d Cir. 2009).
2nd Circuit upholds obstruction increase for false statement of motives for attack. (461) While in federal prison awaiting trial on terrorism charges, defendant stabbed a corrections officer in the eye with a sharpened comb. The district court found that defendant’s plan was to attack his attorneys (who were waiting in another room) and thereby force his judge to grant his motion for substitution of counsel. The court found that defendant’s alternate explanation, that he only wanted to force the attorneys to resign, and was unconcerned with the judge’s actions, was “incredible,” since defendant did not believe his attorneys could unilaterally withdraw or resign from his case. The court applied a §3C1.1 obstruction of justice increase, finding that defendant willfully gave perjured testimony regarding his motive for the assault. The Second Circuit affirmed. Defendant’s motive for the attack was material in determining whether the terrorism enhancement applied. The record supported the court’s findings of falsity: defendant knew that his judge had the authority to change his lawyers, but had denied defendant’s most recent request. U.S. v. Salim, 549 F.3d 67 (2d Cir. 2008).
2nd Circuit upholds obstruction increase for perjury at sentencing. (461) Defendant was convicted of failing to make support payments for his twin daughters as required by a court order. At trial, the disputed issue was whether defendant’s failure to make the support payments was willful. The government presented evidence that defendant changed jobs and remained unemployed to avoid wage garnishments, and that his wife’s income provided defendant with a comfortable lifestyle. Defendant stated that he did not make the payments because he believed that he was in compliance with the support order, and that an injury prevented him from working. The Second Circuit upheld an obstruction of justice increase based on defendant’s perjury at sentencing. The district court found that defendant’s reasons for changing jobs, his injury claims, his testimony regarding an attorney’s legal advice, and claims that he arrived late at a support hearing were perjurious. The court based its findings on defendant’s attitude and demeanor, inconsistent explanations, failure to raise the defenses during the innocence proffer, and a lack of supporting evidence. There was no clear error. U.S. v. Kerley, 544 F.3d 172 (2d Cir. 2008).
2nd Circuit applies obstruction increase for conduct that occurred before federal investigation began. (461) In the presence of two friends, defendant shot and killed a boy. After one of the friends was questioned by the local police, defendant instructed the friend to get rid of the gun used to shoot the victim. Defendant was acquitted in state court of murder, and convicted of a reduced misdemeanor weapons charge. The federal government then charged him with being a felon in possession of a firearm. Defendant argued that because his obstructive conduct (ordering the friend to dispose of the gun) occurred prior to the start of the federal investigation into the weapons charge, the evidence, at the time it was destroyed, could not have been material to an official investigation within the meaning of § 3C1.1. The Second Circuit affirmed the increase, ruling that obstructive conduct that takes place prior to the start of a federal criminal investigation of the particular offense of conviction can warrant a § 3C1.1 increase. The state investigation into the murder plainly encompassed the conduct at issue in the federal crime of conviction. Defendant’s order to destroy the murder weapon occurred “during the course of the investigation” of the conduct at issue in the “instant offense of conviction.” U.S. v. Ayers, 416 F.3d 131 (2d Cir. 2005).
2nd Circuit agrees that four letters sent from jail to potential witnesses was attempt to obstruct justice. (461) The district court applied an obstruction of justice enhancement based on four letters defendant sent from jail to Peterson, one of his co-defendants. The judge did not analyze the letters separately and did not specifically state which letters provided justification for the enhancement. Instead, he concluded generally that the letters as a group were an attempt to obstruct justice by urging witnesses not to cooperate with the government, to maintain certain stories and positions, and to repeat certain versions of events that were not true. The Second Circuit affirmed the enhancement. The most plausible understanding of the first letter was that it intended to improperly influence the recipient’s testimony and “get witnesses to stick to the party line.” Where the inducer’s motive in advising a conspirator to remain silent is to impede the investigation against him, rather than to give purely altruistic advice, he is obstructing justice. U.S. v. Peterson, 385 F.3d 127 (2d Cir. 2004).
2nd Circuit applies obstruction increase for perjury during civil investigation. (461) During the SEC’s civil investigation into defendant’s stock manipulation scheme, he denied under oath knowledge of certain co-conspirators’ activities in the conspiracy. He later pled guilty to several counts of fraud and perjury. He challenged a § 3C1.1 obstruction enhancement, arguing his perjury in the civil investigation did not constitute an obstruction of the investigation into his fraud offense because it did not occur “during the course of the investigation, prosecution, or sentencing of the instant offense of conviction.” The Second Circuit disagreed. Defendant perjured himself in an SEC investigation involving the precise conduct for which he was criminally convicted. His false denials went to the heart of his role in the underlying fraud scheme. Where federal administrative and prosecutorial jurisdiction overlap, later criminal investigations “are often inseparable from prior civil investigations, and perjury in the prior proceeding necessarily obstructs – if successful by presenting – the subsequent investigations.” U.S. v. Fiore, 381 F.3d 89 (2d Cir. 2004).
2nd Circuit says obstruction increase not double counting where base offense level came from fraud, not perjury, conviction. (461) Defendant was convicted of several counts of fraud and perjury. The district court grouped defendant’s perjury with his underlying fraud offense, using the fraud as the base offense level, and then enhanced that by two levels for the perjury. The Second Circuit rejected defendant’s argument that the obstruction increase resulted in double counting for the perjury offense. Defendant’s sentence was calculated using the underlying fraud count as the base. Absent the two-level obstruction increase, the sentence would not have reflected defendant’s perjury. U.S. v. Fiore, 381 F.3d 89 (2d Cir. 2004).
2nd Circuit upholds obstruction increase for lies under oath. (461) The district court did not clearly err in finding that defendant lied under oath. Defendant’s testimony, that he did not purchase a “grinder” while accompanied by Ellison on September 19, 2000, or use that tool to remove serial numbers from guns, was inconsistent with Ellison’s testimony and with a receipt showing defendant’s purchase of the grinder on September 19, 2000. Furthermore, defendant’s misstatements were material to his role in the offense as a manager or supervisor or supervisor. His false testimony, if it had been credited, would clearly tend to influence the district court’s determination, even if, elsewhere he admitted facts from which the court could have concluded that he was a manager or a supervisor. In a pre-Blakely case, the Second Circuit affirmed the obstruction of justice increase. U.S. v. Stephens, 369 F.3d 25 (2d Cir. 2004).
2nd Circuit concludes defendant made statement about killing courier to intimidate others not to cooperate. (461) Gahr testified that defendant told her that he planned to kill a drug courier whose cooperation led to defendant’s arrest. The district court applied an obstruction of justice increase, concluding that defendant made this statement to intimidate Gahr, a potential witness, into not cooperating with authorities. The Second Circuit affirmed the § 3C1.1 increase. The court’s conclusion about defendant’s intimidating intent was supported by evidence of defendant’s past efforts to ensure Gahr’s silence with offers of financial assistance. Defendant had long recognized the risk presented by Gahr’s possible cooperation. With investigative pressure mounting in the aftermath of his arrest, defendant’s disclosure to Gahr of his plans to kill a cooperating courier necessarily communicated that the same fate would await her if she did not maintain her silence. The court properly applied a § 3C1.1 enhancement. U.S. v. Gaskin, 364 F.3d 438 (2d Cir. 2004).
2nd Circuit says perjury may be considered in rejecting aberrant behavior departure and applying obstruction increase. (461) Defendant argued that the district court’s consideration of her perjury at trial both to deny her an aberrant behavior departure under § 5K2.20 and to enhance her offense level for obstruction of justice under § 3C1.1 constituted improper double counting. The Second Circuit disagreed. A district court may base two aspects of a guideline calculation on a single act where they serve different purposes. Defendant’s perjury at trial justified the obstruction increase and also indicated that her offense was not “a marked deviation … from an otherwise law-abiding life,” as required under Note 1 for the § 5K2.20. U.S. v. Castellanos, 355 F.3d 56 (2d Cir. 2003).
2nd Circuit holds that use of second alias upon attempted reentry constituted obstruction. (461) Defendant attempted to illegally reenter the U.S. after deportation by handing immigration officials a passport under one alias. Upon questioning by immigration officials, defendant gave them another alias, submitting a sworn affidavit that the second alias was his real name, and that a friend had lent him the passport because he was awaiting his real passport’s arrival in the mail. The INS, after consulting with the FBI, learned defendant’s true identity, and he was convicted of illegal reentry after deportation. The district court applied an obstruction of justice increase based on defendant’s use of the second alias. Defendant argued that the court erroneously relied on conduct that was part of the actual offense because he presented both identities in an attempt to illegally reenter the country. The Second Circuit disagreed. The offense of illegal entry or illegal attempt is complete as soon as the entry or attempt is made. U.S. v. Rivera-Ventura, 72 F.3d 277 (2d Cir. 1995). The moment defendant handed INS officials the false passport in an attempt to enter the U.S. illegally, his crime was complete. Defendant’s later misrepresentation was made “to avoid detection” and supported the obstruction increase. U.S. v. Oladipupo, 346 F.3d 384 (2d Cir. 2003).
2nd Circuit says PSR was sufficient detailed so that adoption of PSR satisfied Dunnigan. (461) At trial, Chan testified to his drug dealings with defendant, including their prior drug transactions and the sale negotiations that DEA agents recorded. Defendant testified on his own behalf, claiming that he did not know Chan, had not driven the car where the transaction took place, and made no post-arrest statements. Defendant was found guilty, and the district court applied an obstruction of justice increase based on defendant’s perjury at trial. Defendant argued that the court’s notation in the judgment and commitment order to the effect that it adopted the findings of the PSR did not constitute findings necessary to establish obstruction of justice as required by U.S. v. Dunnigan, 507 U.S. 87 (1993). The Second Circuit disagreed. A court’s adoption of the PSR’s findings are insufficient where a defendant’s PSR provides mere conclusory assertions of obstruction of justice. Here, however, the PSR set forth reasonably detailed findings in support of its conclusions. It described defendant’s testimony at the suppression hearing and at trial, and noted the testimony of Chan and DEA agents contradicting the defendant’s account. It concluded that defendant provided false testimony on a material issue with the intent to obstruct justice. The findings of the PSR were sufficiently detailed and explicit that their adoption by the district court satisfied Dunnigan. U.S. v. Johns, 324 F.3d 94 (2d Cir. 2003).
2nd Circuit applies obstruction increase based on conduct that occurred prior to arrest. (461) An hour before defendant’s arrest, he contacted two friends and asked them to corroborate a false alibi by telling police, if necessary, that he had been with them out of state on the day he committed a robbery. After defendant’s arrest, his friends initially corroborated defendant’s false alibi, but at the end of their interviews, the witnesses recanted and told police that defendant had asked them to lie. Note 4(a) to § 3C1.1 says obstructive conduct includes “threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so.” Defendant argued that Note 4(a) only applies to conduct taken after commencement of “formal judicial or perhaps grand jury investigative” proceedings. The Second Circuit disagreed. First, § 3C1.1 applies to attempts to obstruct justice during the course of an investigation. Second, Note 4(a) does not indicate when conduct aimed at influencing such persons must take place. Thus, conduct aimed at influencing a potential “co-defendant, witness, or juror” is within the scope of Note 4(a). Finally, defendant’s suggestion was contrary to U.S. v. White, 240 F.3d 127 (2d Cir. 2001). U.S. v. Feliz, 286 F.3d 118 (2d Cir. 2002).
2nd Circuit affirms obstruction increase for conviction for making false statements to the FBI. (461) The Application Notes to guideline §3C1.1 state that a two-level increase for obstruction of justice applies to any conduct regarding the official investigation of the instant offense “where there is a separate count of conviction for such conduct.” See Application Notes 4, 5 and 8. In this case, defendant’s sentence for bank fraud was increased by two levels for obstruction based on the jury’s conviction on the false statements count. The Second Circuit affirmed, holding that the separate count of conviction for making false statements to the FBI agent investigating the bank fraud compelled the district court to apply § 3C1.1 U.S. v. Crisci, 273 F.3d 235 (2d Cir. 2001).
2nd Circuit says finding that defendant fled to avoid sentencing established “specific intent to obstruct justice.” (461) Defendant argued that the court erred by imposing an obstruction of justice increase without making the requisite finding that he had “the specific intent to obstruct justice.” The sentencing court found that defendant willfully fled to the Dominican Republic and remained there in order to avoid sentencing. “The conclusion is inevitable,” it stated, “that defendant fled, that is, he escaped or attempted to escape from custody before trial or sentencing. He willfully failed to appear.” The Second Circuit ruled that this statement was sufficient to satisfy the requirement that the court make a finding that the defendant had a “specific intent to obstruct justice.” Previous cases have held that a willful avoidance of a required judicial proceeding such as sentencing is inherently obstructive of justice. See, e.g. U.S. v. Reed, 88 F.3d 174 (2d Cir. 1996). The district court’s finding that defendant fled to the Dominican Republic in order to avoid sentencing was therefore equivalent to a finding that he acted with the specific intent to obstruct justice, whether or not the court used the precise words “intent to obstruct justice.” U.S. v. Carty, 264 F.3d 191 (2d Cir. 2001).
2nd Circuit applies obstruction increase for telling girlfriend to say drugs were hers. (461) At the time of his arrest, defendant instructed his girlfriend, in Spanish, to tell the police that the drugs were hers, unaware that a nearby police officer spoke Spanish and understood his instruction. Defendant argued that because he admitted shortly after this incident that the drugs were his, he did not willfully attempt to obstruct justice. The Second Circuit held that these facts constituted an attempted obstruction of justice under § 3C1.1. Note 4 states that the enhancement applies to an attempt to unlawfully influence a co-defendant, which is what appeared to have occurred in this case. U.S. v. White, 240 F.3d 127 (2d Cir. 2001).
2nd Circuit applies obstruction enhancement for disguising handwriting in exemplars. (461) Defendant, a paralegal in his late father’s law firm, sold hundreds of forged documents falsely attributed to President John F. Kennedy. The Second Circuit ruled that the record adequately supported a § 3C1.1 obstruction of justice enhancement based upon the district court’s finding that defendant intentionally disguised his handwriting in exemplars he provided to the government. U.S. v. Cusack, 229 F.3d 344 (2d Cir. 2000).
2nd Circuit holds that false statements in suppression hearing affidavit supported obstruction increase. (461) Prior to trial, defendant moved to suppress statements he made to Secret Service agents at the time of his arrest. In support of the motion, he submitted an affidavit stating that when arrested he had repeatedly asked to speak with an attorney and had been denied that right. His affidavit, sworn “under the penalties of perjury,” gave a detailed account of at least three such requests. On the strength of defendant’s affidavit, an evidentiary hearing was held. The Secret Service agents who had been present at the time referred to in defendant’ affidavit were brought from Texas to New York, and they all testified that at no time had defendant requested an attorney. Defendant then withdrew his motion. The Second Circuit affirmed an obstruction of justice enhancement based on the false statements in defendant’s affidavit. The representations were not too vague to be found intentionally false. Instead, they recounted a series of incidents in considerable detail. Defendant would not have been entitled to an evidentiary hearing without putting forward under oath an account of the facts which, if true, would demonstrate a violation of his constitutional rights. The false statements were material, since if credited by the court, they would have resulted in the granting of his motion to suppress. U.S. v. Lincecum, 220 F.3d 77 (2d Cir. 2000).
2nd Circuit applies obstruction enhancement based on false affidavit. (461) Defendant was convicted of possessing several illegal firearms that police found in a closet in his home. The district court applied an obstruction of justice enhancement because defendant submitted a perjurious affidavit in support of his motion to suppress evidence, stating that “I never received any guns or gun paraphernalia which I placed into a closet, nor did I keep any guns inside that same closet.” The Second Circuit affirmed the enhancement. The court found that the trial testimony and jury verdict established that defendant kept the guns inside the closet, contrary to his sworn statement. The false affidavit could have influenced the suppression motion and therefore was material. U.S. v. Ahmad, 202 F.3d 588 (2d Cir. 2000).
2nd Circuit upholds obstruction enhancement for perjury at trial. (461) Defendant gave detailed testimony at trial that was directly and irreconcilably contradicted by the testimony of at least 15 witnesses. The district judge found that “there was no basis in the record for me to find that defendant’s false testimony resulted from confusion, mistake, or faulty memory, even evaluating those statements in the light most favorable to him.” Accordingly, the Second Circuit held that the obstruction of justice enhancement for defendant’s perjury at trial was proper. U.S. v. Shareef, 190 F.3d 71 (2d Cir. 1999).
2nd Circuit applies obstruction enhancement for lies about role in relevant conduct. (461) Defendant pled guilty to laundering drug proceeds. During his presentence interview, defendant falsely claimed that he was a middle man in a drug ring run by others. The government later found that defendant was in fact the leader of the marijuana distribution ring. Defendant argued that an obstruction of justice enhancement was improper because his false statement did not concern the “instant offense,” i.e. the money laundering charge. The Second Circuit held that defendant’s lies to his probation officer about relevant conduct justified the obstruction enhancement because if believed, they would have affected his sentence. See U.S. v. Rodriguez, 943 F.2d 215 (2d Cir. 1991). The lies in the present case were clearly material to defendant’s sentence. Defendant claimed that his role in the organization was limited when in fact he ran it. Whether defendant was laundering drug money as a peripheral participant in a drug ring or as the leader of that ring was a relevant sentencing inquiry because it affected his eligibility for a § 3B1.2 minor role reduction. U.S. v. McKay, 183 F.3d 89 (2d Cir. 1999).
2nd Circuit applies obstruction enhancement and rejects acceptance reduction. (461) Defendant’s plea agreement provided that he would, before sentencing, pay to the IRS all taxes, penalties, and interest owed by him and the company he managed. Defendant submitted to the IRS a financial form that understated his actual cash holdings by about $1.1-1.2 million, held in six unmentioned CD accounts. The form also incorrectly stated that $306,061 was held in an escrow account to satisfy the company’s liability to independent contractors. Based on these facts, the Second Circuit upheld an obstruction of justice enhancement and denied an acceptance of responsibility reduction. The district court specifically found that defendant’s conduct was willful and not inadvertent, but designed to stave off the IRS’s attempts to collect on the tax debt. It was within the district court’s discretion not to believe defendant’s explanation that he was extremely “busy” during the Christmas period and was merely negligent in failing to provide his accountant with information about the six CDs. There was also nothing “extraordinary” about this case that would warrant an acceptance of responsibility reduction. U.S. v. Case, 180 F.3d 464 (2d Cir. 1999).
2nd Circuit affirms obstruction enhancement for perjury at trial. (461) For several years, defendant harassed and threatened former girlfriends, their family, and their employers. At trial, he denied making the threats. The Second Circuit affirmed an obstruction of justice enhancement based on defendant’s trial perjury. The judge noted numerous inconsistencies in the record and made her own assessment of defendant’s credibility by observing his testimony at trial. She cited more than adequate support for her finding that defendant deliberately lied about material issues in an attempt to affect the outcome of the trial. U.S. v. Morrison, 153 F.3d 34 (2d Cir. 1998).
2nd Circuit affirms obstruction enhancement based on affidavit denying knowledge of co-conspirator’s fraud. (461) Before sentencing, defendant submitted an affidavit in which he “emphatically denied” knowing of a co-conspirator’s tax evasion activities. The Second Circuit affirmed an § 3C1.1 obstruction of justice enhancement based on the affidavit. The district court was entitled to find that the claims in defendant’s affidavit were false. U.S. v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998).
2nd Circuit finds obstruction for notifying co-conspirator about investigation. (461) Defendant participated in a scheme to extort $20,000 from an oil company. The district court applied an obstruction of justice enhancement because, after FBI agents confronted defendant and sought her cooperation, she informed a target about the investigation. The Second Circuit affirmed the § 3C1.1 enhancement. The obstructive conduct related to the “instant offense” because it had the potential to impede the investigation of both the target and the defendant as well. When defendant notified the target, the government had not completed its investigation of defendant. The target had knowledge of defendant’s wire fraud and could have been a source of evidence against her. Although defendant claimed that the target had planned the fraud and told her what to say, the government was not required to accept her statements at face value. Moreover, defendant’s efforts to discuss with the target whether they would both lie to the government constituted an attempted obstruction. Defendant’s conduct was willful. She knew she was not supposed to alert the target of the investigation. U.S. v. Cassiliano, 137 F.3d 742 (2d Cir. 1998).
2nd Circuit upholds obstruction increase for scheme to bribe a judge to help co-conspirator. (461) Defendant and others participated in a scheme in which they bought stolen cars and trucks in New York and resold them, often to innocent third parties, through an auto dealer in New Jersey. He challenged an obstruction of justice enhancement, claiming the false statements on which they were based did not materially impact the government’s prosecution. The Second Circuit upheld the enhancement because it was not based on defendant’s false statements, but his attempt to obtain $10,000 from a co-conspirator to bribe a judge in the co-conspirator’s trial. A defendant who has pled guilty to conspiracy may properly receive a § 3C1.1 enhancement when he has obstructed or attempted to obstruct justice on behalf of a member of the conspiracy. Defendant and the co-conspirator were being prosecuted for their participation in the same stolen car scheme. Thus, the enhancement could properly be based on defendant’s scheme to bribe a judge to help his co-conspirator. U.S. v. Fernandez, 127 F.3d 277 (2d Cir. 1997).
2nd Circuit upholds obstruction increase for letters from jail offering cash if victim would drop charges. (461) Defendant was convicted of making threatening phone calls to his former girlfriend and her son. The district court imposed an obstruction of justice enhancement based on letters defendant sent to the victim from jail in which he offered to pay for her son’s schooling if she dropped the charges and reminded her of a $1000 “reward” for information leading to the charges being dropped. The Second Circuit affirmed the § 3C1.1 enhancement based on the threatening letters. Defendant’s letter were not pleas from a purportedly innocent man asking the victim to tell the truth. Rather, he offered her money and made threats to induce her to drop the charges without any pretense of innocence. U.S. v. Sovie, 122 F.3d 122 (2d Cir. 1997).
2nd Circuit okays warning defendant that he risked obstruction enhancement. (461) Defendant argued that the district court chilled his right to testify by warning him at a pre-sentencing hearing that he risked an obstruction of justice enhancement if he insisted on claiming he lacked the intent and capability to produce a negotiated quantity of cocaine. The Second Circuit found nothing improper about the warning. When defense counsel requested a hearing on the issue of capacity and intent, the trial court reminded him that his co-defendant had received a § 3C1.1 enhancement at a similar hearing. The judge expressly left open the possibility he might change his mind if defendant’s testimony was credible, but told defendant there would be “a downside” were he to be impeached. It is sensible for a sentencing court to offer a realistic assessment of the possible negative consequences of pursuing a hearing on a factual issue, provided there has been no predetermination that those consequences will result regardless of the outcome of the requested hearing. U.S. v. DeSimone, 119 F.3d 217 (2d Cir. 1997).
2nd Circuit rules court applied proper standard in finding defendant committed perjury. (461) The district court applied an obstruction of justice enhancement based on defendant’s perjury at trial. The Second Circuit held that the district court applied the correct standard of proof in finding that defendant had committed perjury at trial. The court outlined defendant’s testimony at trial and said the statements were false, were material, and were repeated frequently so they could not be the product of confusion or inadvertence. Thus, they were willful. A court is not required to recite any magic words to assure that it has applied the appropriate standard. Even though the judge did not explicitly identify the standard of proof by which he found defendant had committed perjury, there was no doubt that the judge’s finding passed the clear and convincing standard. U.S. v. Walsh, 119 F.3d 115 (2d Cir. 1997).
2nd Circuit upholds obstruction where defendant’s trial testimony was contradicted by witnesses. (461) Defendant argued that an obstruction of justice enhancement based on perjury was unsupported by the record. The Second Circuit affirmed since material elements of defendant’s trial testimony were directly contradicted by several witnesses. Also, defendant attempted to influence the testimony of two potential witnesses. U.S. v. O’Neil, 118 F.3d 65 (2d Cir. 1997).
2nd Circuit upholds obstruction enhancement for perjury at trial. (461) Defendants were convicted of various crimes in connection with their participation in a large drug organization. The Second Circuit affirmed obstruction of justice enhancements based on one defendant’s trial perjury and the other defendant’s suborning of perjury at trial. The first defendant testified at trial on behalf of the gang’s leader and denied all familiarity with the gang. The district court found the testimony was false, material, and intentionally perjurious. The second defendant called two alibi witnesses who falsely testified that defendant was absent from New York during a period for which a parole officer testified that defendant had regularly reported to the Queens parole office. U.S. v. Miller, 116 F.3d 641 (2d Cir. 1997).
2nd Circuit upholds obstruction increase even though § 1001 conviction was vacated. (461) Defendant was convicted of several Food, Drug and Cosmetic Act violations, and one count of making a false statement to the United States in violation of 18 U.S.C. § 1001. On appeal, the Second Circuit vacated the § 1001 conviction because the element of materiality was not submitted to the jury. The conduct underlying this conviction—a false statement to FDA investigators during the execution of a search warrant at defendant’s home—also resulted in an obstruction of justice enhancement. The Second Circuit upheld the obstruction of justice enhancement even though the § 1001 conviction was vacated. Although the definition of materiality was the same in both contexts, the question of whether a false statement is material for purposes of the § 3C1.1 enhancement is for the sentencing judge, rather than the jury. Therefore, although the failure to instruct the jury on materiality voided the § 1001 conviction, there was a sufficient basis to support the court’s finding of materiality and the obstruction enhancement. U.S. v. Ballistrea, 101 F.3d 827 (2d Cir. 1996).
2nd Circuit holds that drug use did not preclude finding that failure to appear was willful. (461) The district court found that defendant willfully obstructed justice by failing to appear for her preliminary examination. Defendant claimed that her failure to appear could not be considered willful because her absence was a result of drug use and was not a conscious attempt to obstruct justice. The Second Circuit upheld the § 3C1.1 enhancement, finding defendant’s drug use did not preclude a finding of willfulness. Certain conduct such as failing to appear at required judicial proceedings is no inherently obstructive that it is sufficient if the defendant willfully engaged in the underlying conduct, regardless of the specific purpose. Defendant acknowledged that she knew she had been ordered to appear for the preliminary exam. If a claim of drug use precluded a finding of willfulness, the function of § 3C1.1 would be greatly undermined. U.S. v. LaBella‑Szuba, 92 F.3d 136 (2d Cir. 1996).
2nd Circuit says obstruction was not sufficiently related to investor fraud. (461) When defendant’s real estate syndication firm went bankrupt, defendant concealed from investors material information about the firm’s failing finances, funneled money to out‑of‑state relatives to hide cash from creditors, and bribed a local mayor to facilitate the investment of a municipal pension fund. The district court enhanced defendant’s sentence for obstruction of justice based on a phone call he made to a firm salesman to discuss what the salesman should tell investigators concerning the payment of cash “finder’s fees” to persons who identified potential investors. The Second Circuit held that defendant’s conduct was not sufficiently related to the straw investor counts since the phone call concerned separate investments. Also, the government’s investigation of this conduct did not begin until after the conversation. However, the phone call did sufficiently relate to the fourth count of conviction, which involved defendant’s participation in a process whereby the IRS was impeded in the collection of tax revenues through the payment of cash finders’ fees. U.S. v. Sisti, 91 F.3d 305 (2d Cir. 1996).
2nd Circuit denies acceptance credit and imposes enhancement for perjury and bail jumping. (461) The district court refused to grant a §3E1.1 reduction and imposed a §3C1.1 enhancement because defendant perjured himself in an evidentiary hearing and jumped bail. The Second Circuit agreed that this was not an extraordinary situation in which a defendant who obstructed justice also deserved an acceptance of responsibility reduction. The fact that the perjury was in response to “aggressive questioning from the bench” and occurred long before his plea agreement was not relevant. The court properly considered the acceptance of responsibility issue only after the counts were appropriately grouped. Finally, defendant was not entitled to advance notice of the denial of the §3E1.1 reduction. A defendant’s acceptance of responsibility is always a factor which must be considered before sentencing. U.S. v. Giwah, 84 F.3d 109 (2d Cir. 1996), abrogation on other grounds recognized by U.S. v. Jaffe, 417 F.3d 259 (2d Cir. 2005).
2nd Circuit rules defendant knew he was trying to exculpate himself with false testimony. (461) Defendant drove a car delivering a drug supplier to a sale to an informant. Police found a loaded semi-automatic gun hidden below the change dish between the two front seats of the car. At trial, defendant testified that he borrowed the car from a man named “Carlos,” that he did not know Carlos’s last name, that he had met Carlos a couple of times in the street, but did not have Carlos’s phone number because his wife threw it away, and that Carlos had never inquired as to what happened to the car. The Second Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury. Although defendant might not have been as smart as some individuals, the district court found he had sufficient intelligence to understand that he was trying to exculpate himself by providing false information to the court on a material issue. These findings were sufficient and supported by the record. U.S. v. Giraldo, 80 F.3d 667 (2d Cir. 1996), abrogated on other grounds by Muscarello v. U.S., 524 U.S. 125, 118 S.Ct. 1911 (1998).
2nd Circuit bases denial of acceptance reduction and obstruction enhancement on same conduct. (461) Defendant argued that the district court impermissibly double counted by denying him credit for acceptance of responsibility and enhancing his sentence for obstruction of justice based on the same conduct. The Second Circuit held that the same conduct can be the basis for both actions. A court may consider a single act that is relevant to two dimensions of the guidelines. The disparity between defendant’s remarks at his plea allocution and at a co-defendant’s trial evidenced both a failure to accept responsibility and an attempt to obstruct justice. U.S. v. Then, 56 F.3d 464 (2d Cir. 1995).
2nd Circuit upholds obstruction enhancement for false claims in bail application. (461) In an affidavit filed in support of an application for release on bail, defendant falsely represented that he had suffered a heart attack and was near death. In fact, although defendant had suffered chest pains on one occasion, he had not suffered a heart attack and had engaged in ambulatory exercise after the incident. The Second Circuit affirmed an obstruction of justice enhancement based on the false affidavit. The statement that he was near death and that release was needed to save his life was false and was designed to influence the court to grant bail. U.S. v. Kirsh, 54 F.3d 1062 (2d Cir. 1995).
2nd Circuit denies reduction and imposes obstruction enhancement for fleeing jurisdiction. (461) The government stipulated in defendant’s plea agreement that if he pled guilty and demonstrated personal responsibility for his criminal conduct, he would receive an acceptance of responsibility reduction. However, defendant fled the jurisdiction under an assumed name, took up residence in Arizona, and fraudulently obtained public benefits from that state. He failed to appear for sentencing and was a fugitive for 39 days. The Second Circuit upheld the denial of an acceptance of responsibility reduction and the imposition of an obstruction of justice enhancement. By willfully failing to appear, defendant failed to accept responsibility for his offense, regardless of the plea agreement’s stipulation. Moreover, intentional flight from a judicial proceeding is grounds for both the obstruction enhancement and the denial of an acceptance of responsibility reduction. U.S. v. Loeb, 45 F.3d 719 (2d Cir. 1995).
2nd Circuit approves obstruction enhancement for false oral and written statements to court. (461) Defendant argued that his false oral and written statements to the district court were not an attempt to obstruct justice because they (1) were not made under oath, (2) were later retracted after the judge stated that he was considering a § 3C1.1 enhancement, and (3) were stating the facts through the “distorted prism of hindsight” by a person unable to distinguish between fact and fiction. The Second Circuit found defendant’s claims were without merit. Note 3(f) clearly states that providing materially false information to a judge justifies an obstruction of justice enhancement. U.S. v. Hendron, 43 F.3d 24 (2d Cir. 1994).
2nd Circuit finds obstruction for failing to report to pretrial services. (461) While on release awaiting sentencing, defendant tested positive for drugs. She also attempted to smuggle into the pretrial services offices an uncontaminated urine sample to substitute for her own. After this incident, defendant ceased reporting to pretrial services, moved from her listed address, and could not be found. She was arrested four months later. The 2nd Circuit upheld an obstruction of justice enhancement based on defendant’s four-month failure to report to pretrial services. Defendant testified that she stopped reporting because she was afraid that her release would be revoked. This explanation supported, rather than undermined, the conclusion that defendant willfully obstructed justice. The court’s decision to deny defendant an acceptance of responsibility reduction was supported by her “11th hour” decision to plead guilty, her failure to report for pretrial services, her continued drug use, and her attempt to pass off another person’s urine as her own. U.S. v. Defeo, 36 F.3d 272 (2nd Cir. 1994).
2nd Circuit approves obstruction enhancement even though jury verdict was not necessarily inconsistent with testimony. (461) Defendant conspired to bring 150 Chinese aliens into the United States. He challenged an obstruction enhancement based on his perjury, claiming that the jury could have believed his testimony that he planned to transport the aliens to Haiti. The 2nd Circuit held that even if the jury’s verdict was not inconsistent with his testimony, the enhancement was still proper. The district court specifically found defendant’s testimony unbelievable. Defendant understood the detailed paperwork necessary to enter a country legally, yet made no effort to apply for working papers for his passengers in Haiti. Defendant’s claim that he intended to employ the aliens in Haiti at $300 per month to produce goods to export to the U.S. was unbelievable, given the widespread unemployment in Haiti, the U.S. embargo against Haitian goods, and the average Haitian wage of $330 per year. U.S. v. Fan, 36 F.3d 240 (2nd Cir. 1994).
2nd Circuit relies on same statements to enhance for obstruction and deny acceptance of responsibility reduction. (461) Defendant fraudulently posed as a doctor. The district court enhanced defendant’s sentence for obstruction of justice and denied him a reduction for acceptance of responsibility, based on his insistence during his plea allocution that he was a doctor. The 2nd Circuit held this was proper, because double counting is legitimate where a single act is relevant to two dimensions of the guidelines analysis. The statements warranted an obstruction enhancement, even if the government and the court knew that defendant was not a physician. The untruthful statements also evidenced his failure to acknowledge the wrongfulness of his conduct. U.S. v. Echevarria, 33 F.3d 175 (2nd Cir. 1994), superseded on other grounds by guideline as stated in U.S. v. Hussey, 254 F.3d 428 (2d Cir. 2001).
2nd Circuit agrees that defendant intended to intimidate potential witness. (461) The district court enhanced defendant’s sentence for obstruction of justice based on a conversation between defendant and a former participant in his conspiracy who was cooperating with the government. Defendant told her that he knew people were talking and that he would deal with them. The 2nd Circuit agreed that defendant intended to intimidate his former associate. Although he was not aware that she was cooperating with the government he was aware that she was a potential witness. A threat to a potential witness warrants a § 3C1.1 enhancement for obstruction of justice. U.S. v. Sanchez, 35 F.3d 673 (2nd Cir. 1994).
2nd Circuit approves obstruction enhancement for defendant who failed to appear for jury verdict. (461) Defendant failed to appear for several days after his case went to the jury and a verdict was returned. Defendant challenged a § 3C1.1 enhancement on the ground that he did not “willfully” obstruct justice. The 2nd Circuit approved the enhancement in light of a November 1990 amendment to note 3(e) to § 3C1.1. The revised application note provides that the enhancement applies for willfully failing to appear, as ordered, for judicial proceedings. The district court found that defendant intentionally failed to appear for the return of the verdict. U.S. v. Aponte, 31 F.3d 86 (2nd Cir. 1994).
2nd Circuit upholds obstruction enhancement for failing to disclose legal name during probation interview. (461) The district court enhanced defendant’s sentence for obstruction of justice because he failed to disclose his legal name during his initial probation interview. He had been arrested on several occasions under his legal name, but he denied having a criminal record. After consulting with counsel, defendant admitted he lied about his name. He told the court that he had adopted the name “Mohammed” for religious reasons and that strong feelings made it difficult for him to reveal his legal name. The 2nd Circuit upheld the enhancement. Even if exceptionally compelling circumstances could excuse obstructive conduct, defendant did not show such compelling circumstances. Defendant’s mother refuted many of his contentions. The “fairly obvious inference” was that defendant attempted to conceal his arrest record. U.S. v. Mohammed, 27 F.3d 815 (2nd Cir. 1994).
2nd Circuit finds obstruction in giving false name to arresting officers and magistrate. (461) Defendant received an enhancement for obstruction of justice after he provided law enforcement agents with a false name and nationality, falsely denied having prior arrests, and entered into a plea agreement that incorrectly stated that he had no prior convictions. Defendant challenged the enhancement, claiming his lies did not significantly obstruct or impede the government’s investigation or prosecution of the offense. The 2nd Circuit upheld the enhancement. Defendant not only lied to arresting officers, he also lied to the magistrate judge by submitting a financial affidavit under a false identity. U.S. v. Mafanya, 24 F.3d 412 (2nd Cir. 1994).
2nd Circuit finds obstruction for disguising handwriting and perjury at trial of co-conspirator. (461) The 2nd Circuit upheld an enhancement for obstruction of justice based on defendant’s attempt to disguise his handwriting when giving an exemplar, and for committing perjury during the trial of a co-conspirator. Disguising his handwriting made it difficult to compare his writing with that in the drug notebook seized by the government, thus hindering the investigation. The fact that defendant’s perjury took place at an earlier trial, and not the one at which he was convicted, did not mean it did not relate to the instant offense. He committed perjury while an investigation was ongoing into the conspiracy, and he lied in order to cover up his and his co-conspirators’ role. U.S. v. Valdez, 16 F.3d 1324 (2nd Cir. 1994).
2nd Circuit says further attempt to obstruct justice need not succeed. (461) Defendants beat a witness. After their arrest, one defendant submitted an affidavit claiming the other defendant was not involved, and that the witness had provoked defendant. Defendant later admitted the affidavit was false, and pled guilty to retaliating against a witness. The district court found obstruction of justice based on the false affidavit. Application note 6 to section 3C1.1 says the enhancement does not apply to an obstruction-related offense unless a significant further obstruction occurred. The 2nd Circuit upheld the enhancement, holding that the “significant further obstruction” under note 6 need not be successful to warrant the enhancement. The purpose of the note is to avoid double counting when the base offense level is obstruction-related. U.S. v. Fredette, 15 F.3d 272 (2nd Cir. 1994).
2nd Circuit upholds obstruction enhancement for perjury despite acquittal on underlying charge. (461) Defendant was convicted of various bribery charges, but acquitted of failing to report certain taxable income. He received an enhancement for obstruction of justice for backdating a promissory note to make it appear that $30,000 was a loan rather than income. He argued that since he was acquitted of the tax evasion charge for not reporting the $30,000, the jury must have concluded the transaction was a loan and therefore he did not obstruct the IRS investigation. The 2nd Circuit found that the jury’s verdict did not bar the court finding that the backdating was an attempt to obstruct justice. The verdict indicated only that if found that the government did not prove beyond a reasonable doubt that the $30,000 was a gift. Also, the fact that defendant was acquitted of the tax charges did not mean defendant did not obstruct the investigation of the instant offense. So long as the investigation that is obstructed is related to the charges, an enhancement is proper. U.S. v. Coyne, 4 F.3d 100 (2nd Cir. 1993).
2nd Circuit upholds obstruction enhancement for directing victims not to talk to FBI. (461) Defendant engaged in sexual acts with high school boys. He advised one victim not to talk to the FBI about any sexual activity or drug use, and also told the victim to tell the other victims not to talk to the FBI. The 2nd Circuit affirmed that this was grounds for an obstruction of justice enhancement. U.S. v. Booth, 996 F.2d 1395 (2nd Cir. 1993)
2nd Circuit holds that court erred in refusing to apply obstruction enhancement to defendant who willfully lied. (461) Relying on the Supreme Court’s decision in U.S. v. Dunnigan, 507 U.S. 87 (1993), the 2nd Circuit held that the district judge erred in failing to impose an obstruction of justice enhancement under §2C1.1 after expressly finding that defendant willfully lied at trial about material matters. The judge’s specific finding satisfied the elements defining perjury because defendant’s false testimony (a) concerned material matters, and (b) was given with a willful intent to provide false testimony. The court was therefore required to enhance defendant’s sentence by two levels under §2C1.1. U.S. v. Shonubi, 998 F.2d 84 (2nd Cir. 1993).
2nd Circuit says attempted escape while cooperating in controlled delivery was obstruction. (461) Defendant was apprehended and agreed to cooperate in a controlled delivery of drugs to a buyer. When the buyer appeared, defendant yelled something, leapt over the hood of the car of the surveillance agents, and attempted to escape. When one of the agents caught defendant and pinned him to the ground, defendant grabbed the agent’s gun. The 2nd Circuit affirmed an enhancement for obstruction of justice. The finding that defendant grabbed the officer’s gun with the intent to obstruct justice was not clearly erroneous. U.S. v. Vargas, 986 F.2d 35 (2nd Cir. 1993).
2nd Circuit affirms perjury as grounds for obstruction enhancement. (461) The 2nd Circuit summarily rejected defendant’s contention that an upward adjustment for obstruction of justice for perjury at trial was unconstitutional. A defendant has no protected right to testify falsely. U.S. v. Stevens, 985 F.2d 1175 (2nd Cir. 1993).
2nd Circuit upholds obstruction enhancement for defendant who punched and threatened suspected informant. (461) Defendant received an enhancement for obstruction of justice based on evidence that after his arrest and release on bail, he punched a co-defendant who he suspected was an informant and advised the co-defendant not to “come around” because defendant was going to “kick [his] ass.” The 2nd Circuit upheld the enhancement. The evidence supported the determination that the co-defendant interpreted defendant’s actions as a threat, that defendant intended to intimidate the co-defendant, and that defendant had the requisite specific intent to obstruct justice. U.S. v. Rivera, 971 F.2d 876 (2nd Cir. 1992).
2nd Circuit affirms obstruction of justice enhancement for suborning perjurious testimony. (461) Defendant was given an obstruction of justice enhancement for suborning perjury from one of his witnesses. He argued that the enhancement was improper based on application note 1 to section 3C1.1, which “instructs the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction.” The 2nd Circuit affirmed the enhancement largely because the trial judge had firm reasons for giving the enhancement. He found that (a) the witness’s testimony was false, (b) the falseness was intended to help defendant, and (c) the falseness was suggested by defendant. The court rejected defendant’s argument that the enhancement may only be applied when there is “no explanation for the inconsistency between the verdict and the defendant’s testimony other than purposeful perjury.” U.S. v. Johnson, 968 F.2d 208 (2nd Cir. 1992).
2nd Circuit affirms obstruction adjustment for defendant who committed perjury at trial. (461) Defendant maintained that the enhancement for obstruction of justice constituted an unconstitutional penalty for exercising his constitutional right to testify. Relying on U.S. v. Dunnigan, 507 U.S. 87 (1993), the 2nd Circuit disagreed. Nor did the court find clear error in the district court’s determination that defendant had lied at trial. U.S. v. Johnson, 964 F.2d 124 (2nd Cir. 1992).
2nd Circuit rules that misrepresentation concerning criminal history justified obstruction enhancement. (461) Defendant received an enhancement for obstruction of justice because he made a false statement to his probation officer that he had no prior record, when in fact he had been arrested and convicted six previous times. The 2nd Circuit affirmed the obstruction enhancement, rejecting defendant’s contention that the misrepresentation was not material because no one would reasonably rely upon his statement. Reviewing the definition of the term “material” de novo, the court found that a material statement embraced all false statements that would tend to affect a defendant’s sentence, whether or not discovery of the falsity of the statement was inevitable. Thus, the question was not whether a defendant’s statement was believed, but whether, if believed, it would tend to affect the defendant’s sentence. Since the lack of a criminal record would affect defendant’s sentence, the misrepresentation was material and the enhancement proper. U.S. v. Rodriguez, 943 F.2d 215 (2nd Cir. 1991).
2nd Circuit affirms obstruction enhancement based upon defendant’s attempt to intimidate fraud victim. (461) Defendant fraudulently obtained a loan from a town by presenting false financial information. The district court enhanced defendant’s sentence for obstruction of justice after reviewing taped telephone conversations in which defendant attempted to intimidate the mayor of the town into signing a letter to be used at sentencing which would state that the town’s loan to defendant had been approved twice before the town requested any financial information from him. The 2nd Circuit affirmed, finding that the proposed statement violated common sense and was contrary to the district court’s finding that the town officers expected financial statements as a matter of course. U.S. v. Brach, 942 F.2d 141 (2nd Cir. 1991).
2nd Circuit affirms despite judge’s overstatement concerning risk of obstruction enhancement if defendant testified. (461) Defendant contended that his right to testify was impermissibly chilled by the district judge’s warning that if he testified and was convicted, he would receive a sentence enhancement for obstruction of justice. The 2nd Circuit found this to be an overbroad statement of the risks of testifying, since it suggested that the obstruction enhancement would be automatic if defendant testified and was convicted. Nonetheless, there were no grounds for relief. First, since defendant did not testify, it was unclear whether his complaint was cognizable on appeal. Second, defendant could not now complain of imprecision in the judge’s warning in the absence of any objection when the caution was given. Finally, since defendant would have inevitably been questioned about the essential elements of the offense, the risk was very real that the jury would convict, and that the judge would find defendant’s testimony false and enhance his sentence for obstruction. U.S. v. Padron, 938 F.2d 29 (2nd Cir. 1991).
2nd Circuit rules prior version of guidelines authorized obstruction enhancement for flight from judicial proceedings. (461) The 2nd Circuit held that the 1987 version of guideline § 3C1.1 authorized an enhancement for obstruction of justice when a defendant flees, or attempts to flee, a judicial proceeding. The district court’s determination that defendant attempted to flee prior to his trial was not clearly erroneous. Less than a month before his scheduled trial date, a moving van filled with defendant’s possessions was parked outside his home. In executing a search warrant at defendant’s home, the FBI found an Israeli visa application, an El Al timetable with notations regarding a flight leaving the next day, and a computer printout reserving seats for “Mr. and Mrs. Kats” on a flight the next day. Defendant’s false statements to the Probation Department concerning his attempted flight was an alternative basis for the enhancement. U.S. v. Keats, 937 F.2d 58 (2nd Cir. 1991).
2nd Circuit finds that defendant who instructed associate to remove material from his apartment obstructed justice. (461) Defendant was arrested in possession of numerous weapons and various dangerous chemicals. While in prison, defendant used a prison telephone to instruct an associate to remove various chemicals and electrical components from defendant’s apartment. The 2nd Circuit rejected defendant’s argument that he had not obstructed justice because there was no proof that the chemicals and electrical components were material to the government’s investigation. The district court properly concluded that defendant’s actions were intended to destroy or conceal material evidence and thus obstruct justice. U.S. v. Bakhtiari, 913 F.2d 1053 (2nd Cir. 1990).
2nd Circuit upholds obstruction adjustment for defendant who lied to agents and burned drug records. (461) When defendant was arrested in his home, he denied that he possessed any weapons. When government agents received permission to search his house, defendant then admitted that he possessed a gun. A search revealed a pile of ashes in the driveway. Underneath the ashes, in readable condition, were drug records that matched other records found in the house. Defendant told agents that he had burned those materials the night before when he was outside and wanted to keep warm. Defendant also lied to the agents about why he possessed the drug records. The 2nd Circuit found that this conduct justified an enhancement for obstruction of justice. Defendant’s overall conduct was calculated to mislead and deceive authorities. U.S. v. Charria, 919 F.2d 842 (2nd Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Castano, 999 F.2d 615 (2nd Cir. 1993).
2nd Circuit holds that intercepted note threatening violence was an attempted obstruction of justice. (461) Defendant was arrested with 3 others for selling drugs to an undercover agent. Jail authorities intercepted a note written by defendant to a co-defendant asking for the address of a third co-defendant. The note also appeared to threaten the third co-defendant with violence if he cooperated with authorities. The sentencing count concluded the note was an uncommunicated threat and increased defendant’s offense level by two for attempted obstruction of justice. The Second Circuit affirmed the increase, holding the sentencing court’s factual and legal findings were not clearly erroneous nor an abuse of discretion. The note, viewed in context, indicated defendant’s intention to use force to stop the cooperation with authorities. U.S. v. Shoulberg, 895 F.2d 882 (2nd Cir. 1990).
3rd Circuit applies cross-reference to accessory guideline where defendant was aware of murder investigation. (461) Six masked gunmen entered a hospital, located a patient, and shot him to death. The gunmen entered the hospital through an employee entrance with the benefit of an employee “swipe card,” proceeded directly to the patient’s room, committed the murder, and left in under three minutes. Defendant, a hospital employee, was convicted of perjury arising out of statements she made at a suppression hearing. Under § 2J1.3, where perjury is “in respect to a criminal offense,” the defendant should be sentenced pursuant to § 2X3.1 as if she were an accessory after the fact to that criminal offense. The Third Circuit upheld the application of the cross-reference to defendant, finding that defendant’s perjury was in respect to the murder of the hospital patient. Her perjury convictions were based on her testimony that she accessed the patient’s hospital records in order to provide his room number to friends and family of the patient, and that her boyfriend was a friend of the patient’s. She gave this testimony at a suppression hearing in criminal proceedings concerning charges that she had made false statements to federal agents specifically investigating the murder. U.S. v. Knight, 700 F.3d 59 (3d Cir. 2012).
3rd Circuit upholds obstruction enhancement for perjury. (461) The district court applied an obstruction of justice enhancement, finding that defendant had (1) lied about his reasons for wanting to change counsel and the nature of the dispute with his counsel; (2) lied under oath when he attempted to withdraw his plea and explain his reasons for pleading guilty; and (3) attempted to unlawfully influence the testimony of witnesses and then lied about the reasons behind his behavior. Defendant challenged the district court’s credibility determination, arguing that the court misinterpreted his testimony on all front, and that he did not believe he was violating the terms of his bail when he contacted witnesses. The Third Circuit affirmed the obstruction enhancement, refusing to disturb the sentencing court’s factual findings. U.S. v. Siddons, 660 F.3d 699 (3d Cir. 2011).
3rd Circuit upholds obstruction increase and denies acceptance reduction for attempt to feign mental illness. (461) The district court applied an obstruction of justice increase and refused to grant defendant an acceptance of responsibility reduction, finding that he had feigned mental illness to avoid trial, had admitted his plan to a confederate, and had chosen to not take his medication so as to increase his chances of being found incompetent. The Third Circuit affirmed. Allowing an obstruction enhancement based on feigned mental illness does not impinge on a defendant’s ability to not stand trial if he is mentally incompetent. While a defendant possesses a constitutional right to a competency hearing if a bona fide doubt exists as to his competency, he does not have the right to create a doubt as to his competency or to increase the chances that he will be found incompetent by feigning mental illness. Defendant’s initial attempt to accept responsibility by admitting his guilt and trying to cooperate with authorities was counteracted by his later attempt to prove that he was not responsible for his actions based on mental incompetence. U.S. v. Batista, 483 F.3d 193 (3d Cir. 2007).
3rd Circuit upholds obstruction increase despite improper statement of burden of proof. (461) Defendant was convicted of concealing from the bankruptcy court almost $4 million in bearer bonds that he gave to Bond, the CEO of a company that assisted individuals in hiding assets from potential creditors. Shortly before trial, defendant produced eight letters addressed from defendant to Bond, which purported to show that money Bond had wired on defendant’s behalf had come from other investors rather than defendant. At sentencing, the district court concluded that defendant had fabricated the letters, and applied an obstruction of justice increase. The court incorrectly stated on three separate occasions that defendant had the burden of proving by a preponderance of the evidence that the obstruction of justice increase was not applicable. Nonetheless, despite this error, the Third Circuit affirmed the obstruction increase. The court essentially corrected the earlier misstatements by declaring that the government “clearly and convincingly … establish[ed] what we have here is false statements.” Although the court’s statements about the burden of proof were wrong, the court ultimately placed the burden where it belonged. U.S. v. Brennan, 326 F.3d 176 (3d Cir. 2003).
3rd Circuit upholds obstruction increase where defendant’s testimony was irreconcilable with jury verdict. (461) Defendant testified that the coat he was wearing when he was arrested was not his, that he did not know the coat contained crack, that the drug-laden bag found at co-conspirator Sey’s residence was not his, and that he had never seen that bag before it was introduced into evidence. The district court found that by convicting defendant on all three counts, the jury necessarily rejected these portions of his testimony. It further found that defendant “was not truthful on material matters” and that he testified with “willful intent to not be forthcoming about the facts.” The court noted that Sey “testified directly contrary” to defendant and that the jury obviously believed her, not defendant. Therefore, the court concluded that defendant perjured himself at trial and imposed a § 3C1.1 obstruction of justice enhancement. The Third Circuit affirmed. Because several portions of defendant’s sworn testimony at trial were “irreconcilably inconsistent with the jury’s verdict,” the district court did not clearly in finding that a § 3C1.1 enhancement was required. U.S. v. Johnson, 302 F.3d 139 (3d Cir. 2002).
3rd Circuit affirms obstruction increase based on coercion of co-conspirator. (461) The district court applied an obstruction of justice increase based upon an exculpatory letter that defendant attempted to coerce co-conspirator Farris into signing. Defendant objected, claiming that Farris’s account of the circumstances surrounding the purported letter were not credible. However, the district court observed Farris’s testimony and concluded otherwise. Although defendant challenged defendant’s credibility by pointing to Farris’s cross-examination testimony about a car defendant purportedly owned, defendant’s ownership of the vehicle had “absolutely nothing to do with his conviction.” Accordingly, the Third Circuit affirmed the increase, granting deference to the court’s credibility finding. U.S. v. Boone, 279 F.3d 163 (3d Cir. 2002).
3rd Circuit upholds obstruction increase where findings of fact were implicit in the record. (461) Defendants claimed that they did nothing but testify in their own defense at trial and that this could not be the basis for an obstruction of justice enhancement. The Third Circuit noted that this argument was rejected in U.S. v. Dunnigan, 507 U.S. 87 (1993). Defendants further argued that the court erred by failing to make findings as to which of their statements were perjurious. The Third Circuit found that this failure was not fatal since the findings of fact were implicit in the record. See U.S. v. Boggi, 74 F.3d 470 (3d Cir. 1996). It was obvious that defendants, both of whom denied any participation in embezzling the money from the airport and underreporting their income, committed perjury. U.S. v. Gricco, 277 F.3d 339 (3d Cir. 2002).
3rd Circuit agrees that defendant attempted to influence testimony. (461) Defendant embezzled money from a profit sharing plan to pay the operating expenses of three failing companies he owned, and engaged two lawyers to create false documents indicating that the withdrawals had been part of a lawful employee stock ownership plan. The district court applied an obstruction of justice enhancement because defendant: (1) wrote a letter to his two attorneys threatening to file malpractice actions against them and file complaints with the bar association if they refused to stand behind the documents they created; and (2) pressured a member of the board of directors to say his signature on the board of directors’ consent was genuine. The Third Circuit ruled that the court’s finding that these acts were attempts to influence testimony was not clearly erroneous. U.S. v. Helbling, 209 F.3d 226 (3d Cir. 2000).
3rd Circuit applies obstruction enhancement for conduct obstructing state prosecution. (461) In 1991, defendant was arrested on state drug charges and released on bail. Federal authorities later obtained a warrant for defendant’s arrest based on the same conduct. They intended to arrest defendant when he appeared at a state hearing, but he did not appear. Defendant was arrested in 1995 under an alias. He argued that because he failed to appear before a state, rather than a federal, court, his failure to appear did not warrant a § 3C1.1 obstruction of justice enhancement. Note 4 says that “avoiding or fleeing from arrest” does not constitute obstruction of justice. The Third Circuit held that the § 3C1.1 enhancement applies to any conduct that obstructs an investigation, prosecution, or sentencing proceeding that is based on the criminal conduct underlying the specific statutory offense for which the defendant is being sentenced. Thus, the enhancement is proper where the defendant has obstructed the investigation or prosecution of the criminal conduct underlying the offense of conviction, even where the investigation or prosecution was being conducted by state authorities at the time. Thus, the enhancement was proper here. U.S. v. Imenec, 193 F.3d 206 (3d Cir. 1999).
3rd Circuit applies obstruction enhancement for cutting monitoring bracelet and going to airport. (461) Pending sentencing, defendant was released on bail to home confinement with an electronic monitor. Six days before sentencing, he cut the monitoring bracelet and went to the airport, where he was apprehended at a ticket counter with $10,800 in cash attempting to buy a ticket. Defendant claimed he was not “in custody” so that the example of flight from custody in note 3 to § 3C1.1 did not apply. Assuming without deciding that defendant was not in custody, the Third Circuit ruled that his bold breaking of the bracelet and brazen trip to the airport justified the § 3C1.1 obstruction of justice enhancement. The acts were calculated to prevent the culmination of his criminal trial. It was hard to imagine a more severe obstruction of justice. U.S. v. Abuhouran, 161 F.3d 206 (3d Cir. 1998).
3rd Circuit requires obstruction increase once court finds factual predicates. (461) The district court found that defendant had perjured himself at trial, and that this required it to apply an obstruction of justice enhancement. Defendant argued that the district court erroneously believed it was required to apply the enhancement once it found that defendant had committed perjury. The Third Circuit, following the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Circuits, held that the obstruction of justice enhancement is mandatory once the sentencing court has determined that the factual predicates for the enhancement have been met. U.S. v. Williamson, 154 F.3d 504 (3d Cir. 1998).
3rd Circuit affirms obstruction increase for perjury at co-conspirator’s trial. (461) Defendant and his brother were indicted on conspiracy and drug distribution charges. Defendant pled guilty and his brother was convicted by a jury. Defendant testified at his brother’s trial that his brother was not involved in the drug distribution conspiracy, despite extensive government evidence to the contrary. He challenged an obstruction of justice enhancement based on his perjury at his brother’s trial, contending that it was not perjury in “the instant offense.” The Third Circuit affirmed the enhancement because the perjury related to the same offense for which defendant was convicted. Defendant and his brother were indicted as co-conspirators for the same offenses. When defendant testified that his brother had not conspired with him to distribute cocaine, he was attempting to impede the prosecution of the same offenses for which he was convicted. U.S. v. Powell, 113 F.3d 464 (3d Cir. 1997).
3rd Circuit says obstruction enhancement necessarily included a finding as to elements of perjury. (461) Defendant was convicted of RICO charges despite his denial of the charges at trial. The Third Circuit upheld a § 3C1.1 enhancement, finding the enhancement necessarily included a finding as to the elements of perjury. The judge noted “I don’t see how, in view of his flat denials and the jury’s conviction, that you can find otherwise than that he testified falsely on the stand.” In convicting defendant, the jury necessarily rejected his testimony that he was innocent. In sentencing defendant, the judge properly considered this fact and reasoned that “a guilty verdict, not set aside, binds the sentencing court to accept the facts necessarily implicit in the verdict. Although it is preferable for the court to address each element of perjury, express separate findings are not required. The court’s characterization of defendant’s testimony as “flat denials” suggest that the court believed that defendant provided false testimony with willful intent. The court refused to remand “merely because the district court failed to engage in a ritualistic exercise and state the obvious for the record.” U.S. v. Boggi, 74 F.3d 470 (3d Cir. 1996).
3rd Circuit affirms obstruction enhancement for lying in attempt to suppress valid confession. (461) Defendant challenged a §3C1.1 enhancement, arguing that he did not “willfully” attempt to obstruct justice by offering perjured testimony. The Third Circuit held that offering perjured testimony is an attempt to obstruct justice. Defendant intentionally lied in an attempt to exclude a valid confession. This was an attempt to obstruct justice. U.S. v. Bethancourt, 65 F.3d 1074 (3d Cir. 1995).
3rd Circuit holds that defendant’s false cooperation related to offense of conviction. (461) Defendant was arrested carrying drugs on a train. He offered to cooperate with the DEA by delivering the drugs to the intended recipient at the train station. However, no one showed up to meet defendant, because defendant had informed his employer of his arrest and cooperation with the DEA. The 3rd Circuit approved an enhancement for obstruction of justice, rejecting defendant’s claim that his false cooperation did not relate to the offense of conviction. The government’s investigation of the other participants in the offense directly bore upon defendant’s knowledge and intent to distribute. The record supported the court’s finding that defendant misled the government investigation. He called his employer under the pretext of calling his wife to inquire about the birth of their child. He disclosed in the phone call that he was cooperating with the government, knowing that the information would be passed to the intended recipient of the drugs. U.S. v. Kim, 27 F.3d 947 (3rd Cir. 1994).
3rd Circuit affirms obstruction enhancement for high-speed chase. (461) Defendant received an enhancement under section 3C1.1 for recklessly creating a substantial risk of death or serious bodily injury to another in the course of fleeing law enforcement authorities. The 3rd Circuit affirmed the enhancement based upon evidence that when DEA agents attempted to arrest defendant, he led them on a high-speed chase, swerved around DEA cars which were attempting to block him, and struck one of the DEA cars while an agent was inside it. U.S. v. Frazier, 981 F.2d 92 (3rd Cir. 1992).
3rd Circuit upholds obstruction enhancement based on misrepresentation of financial circumstances. (461) Defendant told his probation officer that certain stock he owned was “essentially worthless,” when in fact he was negotiating to sell the stock for half a million dollars. The 3rd Circuit upheld an enhancement under guideline § 3C1.1 for obstruction of justice. The fact that he was negotiating for the sale of the stock, apart from the magnitude of the sale, was inconsistent with his statement that the stock was worthless. The misrepresentation was material, since the determination of one’s ability to pay is a necessary step in the imposition of a fine. U.S. v. Cusumano, 943 F.2d 305 (3rd Cir. 1991).
3rd Circuit holds subornation of perjury is grounds for obstruction of justice adjustment. (461) Defendant pled guilty to firearms offenses, and the district court upwardly adjusted his offense level 2 points under § 3C1.1 because it found he had suborned his son’s grand jury testimony. The 3rd Circuit affirmed, holding that because the government had shown a particularized need for disclosure of the grand jury testimony at the sentencing hearing, it was proper for the sentencing court to consider it. The adjustment was therefore proper. U.S. v. McDowell, 888 F.2d 285 (3rd Cir. 1989).
4th Circuit approves obstruction increase for attempts to escape custody. (461) Defendant was the mastermind of a multi-million scheme to defraud the Department of Defense by supplying defective and nonconforming spare parts for military aircraft, vehicles, and weapons systems. He was ultimately arrested in Mexico, and extradited to the U.S. The district court applied an obstruction of justice enhancement because defendant had attempted to bribe Mexican officials in an effort to escape from custody. He also physically tried to escape from Mexican authorities. Further, defendant had formulated a plan to enlist Mexican cartel members to conduct an attack on a prison van in which he would be transported in yet another attempted prison escape, this time in Virginia. The Fourth Circuit upheld the obstruction enhancement. Defendant did not show that any of these factual findings were clear error. U.S. v. Day, 700 F.3d 713 (4th Cir. 2012).
4th Circuit finds obstruction for producing fabricated documents during civil IRS investigation. (461) Defendant and others designed to tax fraud scheme to solicit others to invest in partnerships in order to benefit from tax deductions available to the partnership. The district court applied a § 3C1.1 obstruction of justice increase based on defendant’s production of fabricated or backdated documents to the grand jury. Defendant argued that he should not be punished for his production of these documents because the documents were already part of the offense of conviction and his production of them was required by the grand jury’s subpoena. The Fourth Circuit upheld the obstruction increase. Defendant did more than simply respond to a grand jury subpoena by producing previously falsified documents. Rather, during the civil IRS investigation of his offense, he created documents to thwart the investigation. He fabricated more documents and produced them to the grand jury. The IRS audit and grand jury investigation both constituted investigations of his offense. U.S. v. Thorson, 633 F.3d 312 (4th Cir. 2011).
4th Circuit finds no double counting in increases for obstruction and sophisticated concealment. (461) Defendant and others designed a tax fraud scheme. The district court applied a § 3C1.1 obstruction of justice increase based on defendant’s production of fabricated or backdated documents to the grand jury. The Fourth Circuit rejected defendant’s argument that this increase duplicated the § 2T1.4(b)(2) sophisticated concealment enhancement defendant also received. Although the two enhancements overlapped, each addressed different behavior and concerns. The sophisticated concealment increase is for efforts of a complex criminal enterprise to conceal its wrongdoing during the criminal activity. It punishes a defendant’s past efforts to avoid detection, whereas the obstruction increase punishes conduct intended to frustrate an investigation. U.S. v. Thorson, 633 F.3d 312 (4th Cir. 2011).
4th Circuit upholds reckless endangerment increase for fleeing defendant who entered residence of another without permission. (461) While fleeing from police on foot, defendant entered Hill’s apartment without permission, and put on one of Hill’s shirts, at which point Hill left the apartment. Hill flagged down police, who went to Hill’s apartment and arrested defendant without further incident. The Fourth Circuit upheld a § 3C1.2 increase 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. There is a “substantial risk that is inherent at any time anyone enters another’s home without permission.” If the resident is present at the time the stranger enters the residence without permission, the substantial risk of injury or death is obvious as many renters or homeowners would resort to violence and force to prevent such entry. If the resident is not home, the same risk is created, since a violent struggle could just as easily ensue upon the resident’s returning home and finding an unexpected stranger. U.S. v. Carter, 601 F.3d 252 (4th Cir. 2010).
4th Circuit holds that obstruction increase was not improper double counting. (461) Defendant was convicted of bankruptcy fraud and perjury. He argued that an obstruction of justice increase constituted improper double counting because his false statement before the bankruptcy court were part of his bankruptcy fraud offense. The Fourth Circuit disagreed. An obstruction enhancement constitutes impermissible double counting only when the conduct giving rise to the enhancement is identical to the conduct giving rise to the underlying conviction. Here, the conduct giving rise to defendant’s bankruptcy fraud convictions included making false statements on the bankruptcy schedules, concealing assets from the bankruptcy trustee, and transferring assets for sale by the auction houses without the trustee’s permission. In contrast, the conduct giving rise to the obstruction was defendant’s perjury before the bankruptcy court. U.S. v. Hughes, 401 F.3d 540 (4th Cir. 2005).
4th Circuit concludes that defendant lied to exonerate co-conspirator. (461) Defendant was the passenger of a car driven by Cetera that was stopped by police and found to contain large amounts of ecstasy pills and cash. Defendant signed a statement that did not include any reference to the role that Cetera played in the transportation of the pills. The district court applied an obstruction of justice increase, finding that defendant entered into an agreement to lie in an attempt to exonerate Cetera. The Fourth Circuit agreed, and affirmed a § 3C1.1 obstruction of justice increase. In a conversation recorded by the government, Cetera told a friend that he and defendant “agreed that [defendant] will say that [Cetera] had nothing to do with” the transportation of the pills and money. In response, the friend reassured Cetera that he had recently spoken with defendant about this agreement and that defendant intended to honor it. Moreover, in the interrogation that followed defendant’s arrest, defendant informed the deputy that Cetera had accompanied him to obtain the ecstasy and money, helped him to hide the ecstasy and money in the rental car, and he planned to reward Cetera for his help by splitting the payment for transporting the drugs. Only after defendant and Cetera spent time together in jail did defendant begin to claim that he alone traveled to obtain the ecstasy, and that, to his knowledge, Cetera did not know whether the pills and money were illegal. U.S. v. Kiulin, 360 F.3d 456 (4th Cir. 2004).
4th Circuit refuses to overturn determination that defendant, rather than arresting officers, lied. (461) The district court found that defendant obstructed justice when he testified during the suppression hearing that the officers did not seek permission to search his duffle bag and that he did not consent to the search. Defendant argued that the court should not have credited the officers’ testimony that the search was consensual over his contrary testimony. However, defendant failed to point out any error that would require the appellate court to overturn the factual findings of the district court. Credibility findings are for the trial court, who are “much better situated to evaluate these matters.” U.S. v. Jones, 356 F.3d 529 (4th Cir. 2004).
4th Circuit holds obstruction increase did not require perjury to relate to offense of conviction. (461) The district court imposed an obstruction of justice increase based on defendant’s perjury during a pretrial detention hearing. The perjury did not relate to defendant’s commission of the offense of conviction, but to whether he fired a gun while on pretrial release. Prior to 1998, perjurious statements did not need to be about the offense of conviction; it was enough if the perjurious statements were given “during the investigation, prosecution, or sentencing of the instant offense.” U.S. v. Romulus, 949 F.2d 713 (4th Cir. 1991). Clause (B), added in 1998, provides that the obstructive conduct must either “relate[] to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense.” Defendant argued that clause (B) requires that the perjury bear some relation to the offense of conviction. The Fourth Circuit held that clause (B) did not narrow the types of conduct that qualified for application of the obstruction increase. The stated purpose of the amendment was to resolve a circuit conflict on whether the adjustment applies to obstruction that occur in cases closely related to the defendant’s case or only those specifically related to the offense of conviction. The obstruction increase was proper here. When a defendant commits perjury “to gain an unwarranted release from custody,” the obstruction of justice enhancement is required. U.S. v. Jones, 308 F.3d 425 (4th Cir. 2002).
4th Circuit affirms obstruction increase based on trial perjury. (461) Defendant was convicted of conspiring to export defense articles on the U.S. Munitions List without a license. At trial, defendant testified that he believed a license was not required because the property being exported was merely military scrap. He further claimed that he relied on the advice of an attorney as well as an unidentified State Department official who purportedly told his daughter that an export license was not required for his shipments. Defendant also denied that the reason he had failed to list China in any of the End Use certificates he supplied to the government was because he knew that if he did so, his company would not have been permitted to purchase the property. The Fourth Circuit affirmed an obstruction of justice increase based on defendant’s perjury at trial. The testimony was clearly material because it concerned the heart of the case, i.e., whether defendant acted with the requisite criminal intent. The district judge was in the best position to determine whether defendant’s testimony was given with the willful intent to deceive. U.S. v. Sun, 278 F.3d 302 (4th Cir. 2002).
4th Circuit says obstruction increase is mandatory if defendant willfully failed to appear. (461) Guideline § 3C1.1 directs a sentencing court to increase a defendant’s sentence by two levels if he obstructed justice, and Application Note 4(e) says that “willfully failing to appear” is the type of conduct to which the enhancement applies. Here, defendant failed to appear at scheduled meetings in the pretrial services office and at sentencing and he actively eluded apprehension by the police for more than six months. When he was finally arrested, he was using an alias and had obtained several types of false identification. He said his intent was to remain at large until the police located him. Accordingly, the district court erred as a matter of law in refusing to increase his sentence for obstruction of justice. U.S. v. Hudson, 272 F.3d 260 (4th Cir. 2001).
4th Circuit rejects double counting challenge to enhancements based on separate conduct. (461) After defendant and his accomplices robbed a bank, they ran to two waiting vehicles. Four minor children were passengers in the cars. As the vehicles left the parking lot adjacent to the bank, one robber fired a gun at the pursing officers from the passenger side window. A high-speed chase followed, and both getaway cars crashed after fleeing for 10 or 12 miles. The district court applied an enhancement under § 3A1.2(b), finding one robber had created a risk of serious bodily injury by firing a gun at the police officers. The court also applied § 3C1.2, finding that the chase created a danger of serious bodily injury to the children in the getaway cars and to the public. The Fourth Circuit held that both enhancements were properly applied to defendant. Although defendant did not carry a gun during the robbery, he could reasonably foresee that one of his armed accomplices might fire a weapon so as to create a risk of serious bodily injury and that the high-speed flight following the robbery would endanger the children in the car and the public. The two enhancements were not improper double counting because each adjustment was based on separate conduct. U.S. v. Harrison, 272 F.3d 220 (4th Cir. 2001).
4th Circuit finds defendant obstructed justice during trial by attempting to intimidate jurors. (461) The district court found that the increase for obstruction of justice under § 3C1.1 was warranted because of defendant’s continuous misconduct throughout the trial, which indicated he was trying to intimidate the jurors. In particular, the district court pointed to an incident in which defendant made a gun-like gesture in the presence of the jurors and an incident in which he shouted, “Not guilty,” outside the jury room. The Fourth Circuit ruled the district court’s factual finding was not clearly erroneous. U.S. v. Stewart, 256 F.3d 231 (4th Cir. 2001).
4th Circuit says false implication of others was more than mere denial of guilt. (461) Defendant solicited customers for MDP, a “rapid refund” tax return preparation service. Defendant interviewed the customers, forwarded the information to MDP, and then received a commission for every client he brought in. He was convicted of various fraud counts for providing false information used in some of the returns. The district court applied an obstruction enhancement because during an interview with the probation officer, defendant denied knowingly giving false information, stating that he only recorded the information provided to him by the individual clients. Note 1 to § 3C1.1 says that the mere denial of guilt is not a basis for the obstruction enhancement. The Fourth Circuit upheld the enhancement since defendant went beyond merely denying his guilt, but also falsely implicated his taxpayer clients in the scheme to defraud the IRS. Moreover, although defendant contended that he made the statements during a very emotional time, in the hours after the jury returned its verdict, the record reflected that defendant made the statement almost one month after his conviction. U.S. v. Gormley, 201 F.3d 290 (4th Cir. 2000).
4th Circuit affirms obstruction enhancement for denying earlier confession to police. (461) After his arrest, defendant confessed his role in a credit card fraud scheme and gave a detailed statement to a police inspector. However, while testifying under oath during a pretrial hearing, defendant denied ever having given a statement to the police about the scheme. The inspector recounted in detail defendant’s account of the events. The district court applied a § 3C1.1 obstruction of justice enhancement, finding defendant lied when he stated that he did not make any of the statements attributed to him. Based on this record, the Fourth Circuit affirmed the obstruction enhancement. U.S. v. Akinkoye, 185 F.3d 192 (4th Cir. 1999).
4th Circuit upholds obstruction enhancement for perjury defendant where sentence was based on drug conviction. (461) Defendant was convicted of two perjury charges, conspiracy and money laundering. He challenged an obstruction of justice enhancement based on his perjury. Note 6 to § 3C1.1 forbids application of the obstruction of justice enhancement to the offense level for a perjury conviction, unless there is some further obstruction. The Fourth Circuit upheld the obstruction enhancement since defendant’s sentence was based on the offense level for his drug conviction, not the lesser offense level for his perjury conviction. U.S. v. France, 164 F.3d 203 (4th Cir. 1998).
4th Circuit applies obstruction increase for escape from back seat of police car. (461) Defendant was arrested, handcuffed, and escorted to a deputy’s car. The officers placed him in the back seat, which was separated from the front seat by a partition. Somehow, the defendant managed to escape. He was apprehended the following morning. Defendant challenged a § 3C1.2 obstruction of justice enhancement based on his escape, contending that he was not truly in custody within the intent of note 3(e) because his escape was essentially part of the arrest. The Fourth Circuit held that it was an escape “from custody” justifying an obstruction of justice enhancement. The court disagreed with Draves v. U.S., 103 F.3d 1328 (7th Cir. 1997) which refused to apply an enhancement in a similar situation. Note 4(d) provides that the enhancement does not apply to avoidance or flight “from arrest.” The two commentaries recognize a clear dichotomy between being arrested and being in custody. They do not permit, as the Draves court thought, a legal hybrid called “custody during an arrest episode.” The question is whether an arrest had been accomplished and legal custody had begun. U.S. v. Williams, 152 F.3d 294 (4th Cir. 1998).
4th Circuit increases for obstruction during state investigation of relevant conduct. (461) Defendant and an accomplice forced their way into the home of two elderly sisters, pistol-whipped them, and demanded money. After taking a small amount of money, the two men fled in their car. Within minutes, they were apprehended, and police recovered a 9mm gun from the car. Defendant pled guilty to being a felon in possession of a firearm. The district court applied a § 3C1.1 obstruction enhancement because, while in county jail, defendant solicited another inmate to murder the sisters. The Fourth Circuit rejected defendant’s argument that the solicitation did not occur “during” the investigation of the “instant offense.” It occurred during the investigation of the state robbery and assault, which was relevant conduct. It was irrelevant whether the federal investigation had begun before the obstructionist conduct. The question is whether the investigation was of “the instant offense.” As clarified in the November 1, 1997 amendment to § 1B1.1, the term “instant offense” means the offense of conviction and all relevant conduct. The solicitation occurred during the investigation of the instant offense because it took place during the investigation of the robbery and assault, which were relevant conduct to the firearm offense of conviction. U.S. v. Self, 132 F.3d 1039 (4th Cir. 1997).
4th Circuit rules court should have applied § 3C1.1 to defendant convicted of obstruction. (461) Defendant was convicted of “major fraud” against the U.S. and obstruction of justice. The district court refused to enhance defendant’s sentence for obstruction of justice based solely on its finding that defendant had not perjured himself at trial. The Fourth Circuit ruled that the district court should have applied the enhancement. Section 3C1.1 applies to a broader range of conduct than perjury. Note 3(i) specifically lists conduct that is prohibited by 18 U.S.C. §§ 1501-1516. The note also contains instructions for applying the enhancement and grouping the counts where the defendant is convicted both of the obstruction offense and the underlying offense. U.S. v. Brooks, 111 F.3d 365 (4th Cir. 1997).
4th Circuit affirms obstruction enhancement for threatening letter and phone call. (461) The district court imposed a § 3C1.1 enhancement based on a threatening letter and telephone conversation where defendant attempted to discourage witnesses from testifying. The Fourth Circuit affirmed. Although the letter was anonymous, the court could infer that defendant wrote it. The letter referred to a drug debt owed by the recipient, and the recipient testified that defendant was the only person to whom he had ever owed drug money. The witness who received the threatening telephone call recognized defendant’s voice. U.S. v. Hayden, 85 F.3d 153 (4th Cir. 1996).
4th Circuit holds perjury findings adequate. (461) On March 8th, defendant and an associate were arrested after selling crack to an undercover officer from their car. In his confession to police immediately after his arrest, defendant admitted that he knew that his associate carried a gun, that he knew the associate had pointed the gun at the agent during the drug transaction, and knew that the associate was a minor. At trial, however, defendant denied those statements, contending police had misinterpreted what he had told them. The Fourth Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial. The district court found that defendant had not testified truthfully with regard to these matters, and that the issues were material, and directly contradicted the statements in his confession. Under U.S. v. Dunnigan, 507 U.S. 87 (1993), these findings were adequate. U.S. v. Cook, 76 F.3d 596 (4th Cir. 1996).
4th Circuit holds that court’s perjury findings supported obstruction enhancement. (461) Defendant challenged an obstruction enhancement, arguing that the court failed to make a specific finding addressing each element of her alleged perjury. The Fourth Circuit held that the court’s perjury findings were adequate. A § 3C1.1 enhancement based on perjury is supported if the court’s findings of obstruction “encompasses all of the factual predicates for a finding of perjury.” Here, the district court properly found that defendant willfully gave false testimony concerning a material matter during her co-conspirator’s trial. She claimed not to remember making a statement to police about the co-conspirator’s involvement in the offense, and disavowed her signature on her written confession. The district court found that defendant lied when she denied signing the confession and did not believe her testimony that she did not remember confessing. U.S. v. Murray, 65 F.3d 1161 (4th Cir. 1995).
4th Circuit holds that perjury findings justified obstruction enhancement. (461) Defendant, a bank teller, gave security information to her former boyfriend to allow him to rob the bank. The district court enhanced defendant’s sentence for obstruction of justice, finding she had falsely told the grand jury that she had never discussed security matters with her boyfriend. Defendant argued that there was no clear finding in the record that she had lied to the grand jury, and that the false testimony was not material. The Fourth Circuit found that the court’s perjury findings were adequate and that defendant’s perjury was material. The court found that defendant falsely denied discussing bank security matters with her boyfriend, and that defendant intended to obstruct justice by providing known false information. The perjury was clearly material. It dealt with the critical issue of how the robbers gained the knowledge that they used to successfully rob the bank. It served to deflect attention from defendant’s role and minimize suspicions generated by her relationship with one of the suspected robbers. U.S. v. Gordon, 61 F.3d 263 (4th Cir. 1995).
4th Circuit upholds § 3C1.1 enhancement where court credited witness’s statement that defendant threatened her. (461) The district court found that defendant obstructed justice by threatening a grand jury witness. An FBI agent testified that during an interview the witness stated that defendant had told her on two occasions that she “would not live to tell about it” if she testified against defendant. Defendant denied threatening the witness. The Fourth Circuit upheld a § 3C1.1 enhancement, finding the court could properly credit the witness’s version of the facts over defendant’s version, even though the witness lied to the grand jury. The witness was probably motivated by fear, while defendant was motivated by a desire to absolve himself from the obstruction charge. U.S. v. Puckett, 61 F.3d 1092 (4th Cir. 1995).
4th Circuit holds that findings of perjury satisfied Dunnigan. (461) The district court imposed an obstruction of justice enhancement based on defendant’s perjury during trial. Defendant argued that the district court failed to make specific findings addressing each perjury element as required by U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). The Fourth Circuit held that the court’s perjury findings satisfied Dunnigan. Dunnigan does not require such specific findings, but states that it is “preferable” for the district court to address each element in a separate and clear finding. A finding that “encompasses all of the factual predicates for a finding of perjury” is sufficient. The district court’s findings supported the perjury determination. Several witnesses contradicted defendant’s version of facts on which he could not have been confused or mistaken. The district court found defendant’s testimony was blatantly false. U.S. v. Castner, 50 F.3d 1267 (4th Cir. 1995).
4th Circuit says court may make factual findings by adopting facts in PSR. (461) Defendant, who was HIV positive, bit two correctional officers during an altercation at a prison. He was convicted of assault with a dangerous weapon. The district court enhanced his sentence for obstruction of justice based on his trial testimony that he was unaware of his HIV positive status before the incident. The Fourth Circuit affirmed, finding that the district court’s adoption of the factual findings in the PSR satisfied its obligations to make independent findings of fact regarding defendant’s knowledge of his HIV status. U.S. v. Sturgis, 48 F.3d 784 (4th Cir. 1995).
4th Circuit agrees that defendant perjured himself about ownership of insured vehicle. (461) Defendant reported to his automobile insurance carrier that he had been injured by a pickup truck he had purchased from his father several days earlier. Although the truck was not on defendant’s policy, the policy covered newly purchased vehicles. In fact, defendant had not actually purchased the truck as he reported, and was also pursuing a claim with his father’s insurance carrier. The district court enhanced defendant’s sentence for obstruction of justice, finding defendant perjured himself at trial when he testified about the ownership of the truck. The Fourth Circuit found that the record supported the conclusion that defendant willfully gave false testimony concerning a material matter. U.S. v. Keith, 42 F.3d 234 (4th Cir. 1994).
4th Circuit says enhancements for assaulting officer while fleeing were not double counting. (461) Defendant claimed that his enhancement under § 3C1.2 for creating a risk of death or serious bodily injury while fleeing police was double counting, since he also received an enhancement under § 3A1.2(b) for assaulting a police officer. The 7th Circuit found no double counting because the enhancements were based on different conduct. Defendant received the § 3A1.2(b) enhancement because he shot three police officers. He received the § 3C1.2 enhancement for recklessly endangering motorists during the chase, and bystanders during the shootout in the parking lot. The comment in note 1 to § 3C1.2 bars the enhancement only where a defendant receives another Chapter 3 adjustment based on the same conduct. U.S. v. Swoape, 31 F.3d 482 (7th Cir. 1994).
4th Circuit says idle threats warrant enhancement if they obstruct justice. (461) Defendant burned down the mobile home of an interracial couple. While out on bond pending trial, he threatened to “burn those niggers out and maybe burn the judge out, too.” The 4th Circuit upheld an enhancement for obstruction of justice even though defendant contended that the threats were idle. The threats actually did obstruct justice by prompting the recusal of the district judge and the replacement of defendant’s counsel. As between the threatener and the threatened, the threatener should bear the risk of misunderstanding. U.S. v. Ramey, 24 F.3d 602 (4th Cir. 1994), abrogated on other grounds by Jones v. U.S., 529 U.S. 848, 120 S.Ct. 1904 (2000).
4th Circuit approves enhancement for destroying unopened letter from co-conspirator. (461) Defendant knew that he and his friend were under investigation for burning down the mobile home of an interracial couple. So when he received a letter from his friend he destroyed it without opening it, because he believed it was about the fire and the friend was trying to establish an alibi. The 4th Circuit approved an enhancement for obstruction of justice based on the destruction of this potentially material evidence. The actual contents of the letter was immaterial–defendant admitted that his conscious purpose was to destroy material evidence. Thus, even if he inadvertently destroyed an innocent card, defendant nevertheless attempted to obstruct justice, and the enhancement was proper. U.S. v. Ramey, 24 F.3d 602 (4th Cir. 1994), abrogated on other grounds by Jones v. U.S., 529 U.S. 848, 120 S.Ct. 1904 (2000).
4th Circuit amends opinion in light of Dunnigan reversal. (461) Relying on its decision in U.S. v. Dunnigan, 944 F.2d 178 (4th Cir. 1991), the 4th Circuit in 959 F.2d 503 (4th Cir. 1992) reversed an enhancement for obstruction of justice based on a defendant’s testimonial denial of guilt. U.S. v. Torcasio, 959 F.2d 503 (4th Cir. 1992). However, In view of the fact that the Supreme Court reversed the 4th Circuit in U.S. v. Dunnigan, 507 U.S. 87 (1993), the 4th Circuit amended its opinion in Torcasio to affirm the district court’s sentencing actions. U.S. v. Torcasio, 993 F.2d 368 (4th Cir. 1993).
4th Circuit affirms obstruction enhancement for attempting to influence witness while in jail. (461) The 4th Circuit affirmed an enhancement for obstruction of justice based on defendant’s attempt to influence a witness while both were in jail. The evidence showed that while defendant was in jail he showed an unindicted co-conspirator a copy of the conspirator’s grand jury testimony and told him “You had better get it right.” Taking this evidence together with evidence of other threats made by defendant and the violent nature of the conspiracy, the enhancement was proper. U.S. v. Riley, 991 F.2d 120 (4th Cir. 1993).
4th Circuit upholds obstruction enhancement based on falsification of voice exemplar. (461) The district court enhanced defendant’s offense level for obstruction of justice, finding that he committed perjury during his trial and that he intentionally disguised his voice when preparing a voice exemplar for examination by a defense witness. The 4th Circuit affirmed that the falsification of the voice exemplar justified the obstruction enhancement. Although the perjured testimony was an improper ground for an obstruction enhancement under U.S. v. Dunnigan, 944 F.2d 178 (4th Cir. 1991), the enhancement could nonetheless be affirmed. Even if one basis for an enhancement is erroneous, if the enhancement was applied properly on an alternative basis, the resulting adjusted offense level is correctly determined. U.S. v. Ashers, 968 F.2d 411 (4th Cir. 1992).
4th Circuit affirms obstruction enhancement for attempted escape. (461) Defendant attempted to escape from custody by kicking a deputy and running 20 yards down the hall before being apprehended. Defendant admitted the escape attempt, but claimed he was trying to seek help from a doctor for his untreated drug addiction. The 4th Circuit affirmed an enhancement for obstruction of justice under section 3C1.1 based on the attempted escape. Note 3(e) indicates that an attempted escape is grounds for the adjustment, and no exception is made for the reason underlying the attempt. U.S. v. Melton, 970 F.2d 1328 (4th Cir. 1992).
4th Circuit affirms high speed chase and disposal of cocaine as grounds for obstruction enhancement. (461) The district court imposed a two level obstruction of justice enhancement based in part on the fact that when confronted by police, defendant fled, resulting in a high speed chase during which defendant threw two kilograms of cocaine from his car. The 4th Circuit affirmed that both the high speed chase and the disposal of the cocaine were independent and adequate grounds for the enhancement. Defendant’s conduct was more than mere flight to evade arrest. He led police on a high speed chase through a rural area for three to four miles. Speeds reached up to 95 miles per hour. The lives of pursuing law enforcement officers were endangered, as were the lives of any unsuspecting motorists who may have been driving that evening. Defendant’s disposal of the cocaine while in flight also constituted obstruction of justice, even though defendant later aided police in the cocaine’s recovery. U.S. v. Hicks, 948 F.2d 877 (4th Cir. 1991).
4th Circuit upholds obstruction enhancement for misrepresenting attorneys’ fees to probation officer. (461) During his presentence interview, defendant told his probation officer that he had paid his attorney $6,000 in attorneys’ fees, when in fact he had paid him $60,000. The 4th Circuit affirmed this misrepresentation as a ground for an obstruction of justice enhancement. The false statement was material, because it affected the court’s ability to impose an appropriate fine. The court rejected defendant’s claim that the statement was obtained in violation of his 5th Amendment right against self-incrimination and his 6th Amendment right to counsel. A defendant who pleads guilty waives his right to remain silent. Miranda warnings are not required prior to routine presentence interviews. Moreover, there was no 6th Amendment right to counsel because the presentence interview is not a critical stage of the criminal proceedings. U.S. v. Hicks, 948 F.2d 877 (4th Cir. 1991).
4th Circuit upholds obstruction enhancement for defendant who lied about age and identity to obtain release. (461) After defendant’s arrest, defendant lied to the magistrate about his age and true identity in order to conceal the fact that he was a juvenile. He claimed he gave the false information because he knew that if authorities were aware he was a juvenile, he would be detained pending trial, but if he was considered an adult, he would likely be released on bond. Defendant contended that an enhancement for obstruction of justice under section 3C1.1 was improper because he did not act willfully. The 4th Circuit affirmed the enhancement, ruling that defendant’s admitted intent to prevent authorities from determining his true identity and age in order to gain an unwarranted release from custody constituted a willful obstruction of justice. U.S. v. Romulus, 949 F.2d 713 (4th Cir. 1991).
4th Circuit affirms obstruction enhancement in perjury case. (461) Defendant claimed that an enhancement for interference with the administration of justice is never appropriate when the underlying offense is perjury, since perjury is per se a “substantial interference with the administration of justice.” The 4th Circuit rejected this contention, holding that such an enhancement can be proper in a perjury case. The district court found that defendant’s perjury before a grand jury constituted a “substantial interference with the administration of justice” in that the perjurious statement resulted in the unnecessary expenditure of substantial governmental resources. U.S. v. Dudley, 941 F.2d 260 (4th Cir. 1991).
4th Circuit finds defendant who gave false name upon arrest obstructed justice. (461) Upon arrest, and at his interview with the pretrial services officer, defendant gave a false name. However, when arraigned before the magistrate later that day, defendant did give his actual name. The 4th Circuit upheld a finding that defendant had obstructed justice. The misrepresentation was material because it is important for the arresting officers and the pretrial services officer to know who they are dealing with in order to conduct their investigation and to adequately advise the court of matters in question at the time of defendant’s initial appearance. U.S. v. Saintil, 910 F.2d 1231 (4th Cir. 1990).
5th Circuit says obstructive conduct not “contemporaneous with arrest” need not materially affect investigation. (461) The government advocated for an obstruction of justice increase based on a letter defendant sent to the district court denying various facets of the government’s case against him. He later admitted that these statements were false. In addition, while defendant was detained, he phoned his sister, a co-defendant, and instructed her “not to [waver] from” a storyline he had concocted. Citing U.S. v. Morales-Sanchez, 609 F.3d 637 (5th Cir. 2010), defendant argued that the obstruction enhancement only applies when the conduct materially affected the investigation. The Fifth Circuit disagreed, because Morales-Sanchez applies, consistent with the commentary to § 3C1.1, only where the obstructive conduct occurred “contemporaneously with arrest.” Here, although defendant was in custody, he did not make his phone call to his sister “contemporaneously with [his] arrest.” Moreover, while the phone call standing alone likely supported the enhancement, certainly defendant’s letter to the district court also supported the enhancement, since it represented “providing materially false information to a judge.” Note 4(F) to § 3C1.1. U.S. v. Hinojosa, 749 F.3d 407 (5th Cir. 2014).
5th Circuit upholds obstruction increase where defendant feigned mental illness. (461) Defendant argued that the district court erred when it applied a § 3C1.1 obstruction of justice increase based on its finding that he feigned mental illness. The 5th Circuit upheld the enhancement. In U.S. v. Greer, 158 F.3d 228 (5th Cir. 1998), the court held that circumstantial evidence of a defendant’s specific intent to malinger is sufficient to support the obstruction adjustment. Although a defense expert offered testimony that contradicted the district court’s finding as to defendant’s malingering, the district court also reviewed a physician’s report concluding that “[b]ased on the available evidence, it appears likely that [defendant] is trying to exaggerate his difficulties so he can appear mentally ill.” The credibility determination of witnesses, including experts, is peculiarly within the province of the district court. U.S. v. Aldawsari, 740 F.3d 1015 (5th Cir. 2014).
5th Circuit approves obstruction increase based on perjury at trial. (461) Defendant participated in a wire and mail fraud conspiracy in the telecommunications industry. The district court applied a § 3C1.1 obstruction of justice enhancement based on its finding that he had committed perjury during the trial. The Fifth Circuit affirmed, ruling that defendant did not show clear error. Although defendant argued that much of the testimony cited by the court related to his motives, this was not true. The first instance of perjured testimony was defendant’s testimony that he did not associate with spammers, which was contradicted by evidence that defendant was associated with Faulkner and UDC, who defendant knew to facilitate spam. Further, several of the instances of testimony the court found to be perjury concerned specific actions that defendant had taken to hide his activity or his characterization of his relationship with Faulkner, a core conspirator. Moreover, the enhancement did not affect defendant’s guideline range. His offense level was 45, and any offense level higher than 43 is treated as an offense level of 43. U.S. v. Simpson, 741 F.3d 539 (5th Cir. 2014).
5th Circuit upholds obstruction increase for perjury at trial. (461) Defendant and Martinez were convicted of charges based on their sale of methamphetamine to an undercover agent. At trial, defendant testified that he never knew there was meth in the van he was driving. The district court applied an obstruction increase based on defendant’s trial testimony, finding that it amounted to more than a simple denial of the charges. The Fifth Circuit affirmed. The district court adopted the PSR, which contained findings that defendant advised an undercover agent that drugs were hidden in the back of the van, and that he removed a bundle of meth from a cooler in the van and gave it to the agent. These finding conflicted with defendant’s trial testimony. U.S. v. Perez-Solis, 709 F.3d 453 (5th Cir. 2013).
5th Circuit affirms obstruction increase based on defendant’s trial testimony. (461) Defendant, a former police officer, was convicted of drug and firearms charges. The Fifth Circuit upheld a § 3C1.1 obstruction of justice enhancement based on defendant’s testimony at trial that he believed he was participating in a legitimate undercover investigation. The district court stated that it did not believe this testimony, and noted that defendant attempted to minimize his training, which showed that he actually knew how undercover operations are normally planned and executed. The court found that defendant’s “testimony [was] replete with instances in which [defendant] demonstrated that he in fact knew that he was not doing this for a properly authorized police activity.” Although the court did not use the term “perjury,” the record clearly indicated that the district court at least implicitly found that defendant provided “false testimony concerning a material matter with the willful intent to provide false testimony.” U.S. v. Hale, 685 F.3d 522 (5th Cir. 2012).
5th Circuit approves obstruction increase for destroying documents and lying to investigators. (461) Defendants, former employees of a corporation that traded in natural gas, were convicted of fraud for falsely reporting natural gas trades in order to manipulate the market for natural gas futures. The Fifth Circuit upheld obstruction of justice increases for three defendants. Defendant Brooks destroyed or ordered another person to destroy material evidence when he ordered an employee to shred records related to reports to an industry newsletter. Such conduct occurred during the course of a state investigation into false reporting by the company. Defendants Phillips and Walton made false statements to the company’s legal counsel and to independent investigators arising from inquiries by federal agencies and the U.S. Attorney’s office. Although the statements were not made directly to government officials, the district court’s finding that they were made with intent to be communicated to government officials, and thus to impede the investigation into their wrong-doing, was not implausible. U.S. v. Brooks, 681 F.3d 678 (5th Cir. 2012).
5th Circuit says obstruction of justice is factual finding not subject to plain error review. (461) The district court applied an obstruction of justice increase, finding defendant attempted to escape from custody after being put in a police car. He argued for the first time on appeal that the PSR demonstrated that his co-defendant, but not defendant, attempted to escape. However, defendant failed to object to the obstruction of justice enhancement at the district court. The Fifth Circuit held that this failure to object foreclosed its review. A district court’s determination that a defendant has obstructed justice is a factual finding, and questions of fact capable of resolution by a court upon proper objection at sentencing can never constitute plain error. U.S. v. Claiborne, 676 F.3d 434 (5th Cir. 2012).
5th Circuit upholds obstruction of justice increase based on contact with a juror. (461) Defendant was convicted of health care fraud charges. The Fifth Circuit upheld an obstruction of justice increase based on defendant’s contact with a juror. Although defendant heard the court’s express and repeated warnings not to talk to the jurors at any time, she began talking to a juror anyway. She told the juror “we still have a check for you in the office,” referencing a tax refund check that her brother, an accountant, had for the juror. Delgado startled the juror by using a formal name the juror only used on official documents like tax returns. The district court found that defendant had been playing games with the jury and that defendant was communicating to this juror, a member of an anonymous jury, that she knew her identity. This evidence rendered the court’s credibility choice more than plausible. U.S. v. Delgado, 668 F.3d 219 (5th Cir. 2012).
5th Circuit approves obstruction increase for lying to agents even if it did not impede investigation. (461) Defendant challenged a § 3C1.1 enhancement for obstruction of justice for lying to investigators. She argued that there was no evidence she impeded the investigation because the agents investigating her had completed most of their investigation before they interviewed her. She contended that they came to their interview “armed with documentation to confront” her if she made statements contrary to what the agents believed happened. The Fifth Circuit affirmed defendant’s sentence. The section 3C1.1 enhancement also applies to attempted obstruction or impeding justice. There was no dispute that defendant made false statements, and that these statements at a minimum reflected her attempt to impede the investigation. U.S. v. Girod, 646 F.3d 304 (5th Cir. 2011).
5th Circuit approves obstruction increase for perjury at trial. (461) For several years defendant and an associate participated in a conspiracy to file fraudulent tax returns. The Fifth Circuit upheld an obstruction of justice increase based on defendant’s perjury at trial. Defendant testified he had no access, post-arrest, to documents at the tax service; however, other evidence showed his testimony was false because his wife had then retrieved those documents. Additionally, defendant testified that he believed one of his clients, Redden, had employed defendant’s brother to complete her return. Redden’s testimony, however, was that she did not know defendant’s brother, and had watched defendant complete her return. In addition, there were manifest inconsistencies in other portions of his testimony. U.S. v. Mudekunye, 646 F.3d 281 (5th Cir. 2011).
5th Circuit applies obstruction increase for post-conviction, pre-sentencing behavior. (461) Defendant was convicted of various crimes related to a drug enterprise. Prior to sentencing, but after the jury returned its verdict, defendant was found to have authorized “mulettas” or “hits” (calls for murder) from behind prison, against those who cooperated with the government. Defendant challenged an obstruction of justice increase, contending that it can be applied only for conduct affecting the investigation or prosecution of the current, and not subsequent or later offenses. The Fifth Circuit upheld the obstruction increase, since the obstructive conduct can occur at any time in the proceedings, including prior to sentencing. See § 3B1.1, note 4(j). Defendant’s argument that he waited to order harm on witnesses until after they cooperated, and that this delay somehow excused him from repercussions of his obstructive behavior “frankly [struck] the court as hollow.” U.S. v. Olguin, 643 F.3d 384 (5th Cir. 2011).
5th Circuit rejects obstruction increase where no showing of how defendant’s phone call from police car hindered investigation. (461) The district court applied an obstruction of justice increase after finding that defendant, while in a police car, made a phone call asking another individual to report as stolen the car in which police had just apprehended him. The district court construed the call as an attempt to distance his co-conspirators from his arrest. Defendant argued that, because his allegedly obstructive conduct occurred contemporaneously with his arrest, the Guidelines required that his conduct result in a “material hindrance to the official investigation or prosecution” of the offense. The Fifth Circuit agreed. The government did not demonstrate how defendant’s phone call hindered the law enforcement investigation in any way. Although someone did report the car as stolen, it did not appear that the phone call had any actual effect on the investigation. U.S. v. Morales-Sanchez, 609 F.3d 637 (5th Cir. 2010).
5th Circuit allows obstruction increase for conduct before federal authorities began their investigation. (461) Defendant was arrested after police found cocaine base in his car during a traffic stop. While in jail, defendant called his father and directed him to remove three guns from his bedroom and deliver at least one of them to Smith, a known drug dealer. Federal investigation resulted in an indictment several weeks later. The district court applied a two-level obstruction of justice increase based on the call defendant made to his father directing him to move the firearms. Defendant argued that the obstructive conduct did not relate to his crime of conviction, and that at the time he made the phone call he was not aware of the federal investigation. The Fifth Circuit held that the obstruction enhancement applies when the obstruction of a state investigation is based on the same facts as the eventual federal conviction, regardless of whether the federal investigation has commenced. Defendant’s direction to hide the firearms was sufficiently related to his drug offense, given that he asked his father to give at least one of the guns to a known drug dealer, and that defendant had previously been involved with Smith in a drug-related incident. U.S. v. Alexander, 602 F.3d 639 (5th Cir. 2010).
5th Circuit allows court to consider perjurious testimony even if government agency mislead defendant. (461) Defendant was convicted of securities fraud, insider trading, and related charges. The district court applied an obstruction of justice enhancement based on testimony defendant gave to the SEC in which he stated that he had sold stock on September 17, 2001, solely because of the terrorists attacks on September 11. The court found that this statement was perjury, because evidence showed that defendant had tried to sell the stock before the attacks. Defendant argued that the court could not use the testimony because the SEC and the Department of Justice were improperly collaborating, and when an agency deliberately misleads someone whom it is investigating, it taints any consent that the person under investigation provides, requiring suppression of the evidence. The Fifth Circuit found no error. Even if the SEC was deliberately misleading defendant as to the nature of the investigation, a court can consider illegally obtained evidence at sentencing even if that evidence is not admissible at trial. U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009), affirmed in part, vacated in part, Skilling v. U.S., 130 S.Ct. 2896 (2010).
5th Circuit applies obstruction increase for false assertion of need for translator. (461) At his first appearance, defendant said he could understand and speak English, but when asked if he would like an interpreter, defendant replied “If she’s here, yes.” Nevertheless, defendant participated in a later detention hearing without the assistance of an interpreter. When he later pleaded guilty, defendant did not seek assistance from the interpreter, and under oath, he acknowledged that he could “read, write, understand, and speak the English language proficiently.” He also actively engaged the district court using conversational English. At sentencing, defendant for the first time asked for an interpreter, claiming that he did not clearly understand everything that had happened during his guilty plea. Concerned about the validity of the guilty plea, the district court set it aside. Thereafter, the probation officer re-interviewed defendant in the presence of an attorney and an interpreter, but defendant communicated with the officer clearly in English. The Fifth Circuit affirmed an obstruction of justice increase based on the district court’s finding that defendant falsely claimed under oath that he needed an interpreter. This false claim was material because it forced the court to set aside the plea and start over. U.S. v. Juarez-Duarte, 513 F.3d 204 (5th Cir. 2008).
5th Circuit approves obstruction increase for telling probation officer that defendant was born in U.S. (461) Defendant was convicted of drug charges. He told the probation officer during a presentence interview that he was born in Fort Worth, Texas, when he was actually born in Mexico. He challenged an obstruction of justice increase based on this misstatement, claiming that he believed that he was born in Texas and the statement was not a material misstatement. Defendant’s stepfather testified at sentencing that he began raising defendant as his son in the United States when defendant was three, and that when defendant was five, he told defendant he was born in Mexico. However, after people were “psychologically damaging him and bothering him,” he told defendant to tell people he was from Fort Worth so they did not bother him anymore, and that they had never discussed the issue again and that defendant now actually believed he was born in Fort Worth. The district court rejected the stepfather’s conclusion that defendant came to believe he was born in Texas, and found that defendant intentionally made a false statement. The Fifth Circuit affirmed the obstruction of justice increase. The district court had the opportunity to judge the credibility of the witness, and its findings were not clearly erroneous. The statement was material, as defined in § 3C1.1, because if believed, it would have affected the terms of defendant’s supervised release regarding deportation. U.S. v. Trujillo, 502 F.3d 353 (5th Cir. 2007).
5th Circuit applies obstruction increase for untruthful statements during investigation and at trial. (461) Defendant, the former police commissioner of a small city in Texas, was convicted of extortion and wire fraud. In one scheme, the police department applied for and received funds from a federally-funded hiring program (COPS). The grant money could only be used for new officer positions, but the police department used it instead for existing officers, and misrepresented to COPS the date of their hire and their salary. Defendant received an obstruction of justice increase for various untruthful statements he made during the investigation and trial. For example, he testified at trial that he did not know that COPS grant money could not be used to increase the salary of officers already on the payroll. However, since there was evidence that defendant deliberately attempted to mislead the government into believing that he had in fact hired new officers with the money, the district court justifiably found this statement to be false and perjurious. The statement was material to the wire fraud charges because the fraud hinged on knowingly using the COPS grant for a forbidden purpose. U.S. v. Mann, 493 F.3d 484 (5th Cir. 2007).
5th Circuit says defendant who failed to provide sentencing transcript did not establish prejudice. (461) Defendant argued that a two-level obstruction of justice increase was error under Booker because the jury was never presented with the question of whether he obstructed justice. The Fifth Circuit agreed that imposing this enhancement under a mandatory guideline regime was error under the Sixth Amendment. To meet the plain error test, the defendant was required to show a reasonable probability that, but for the error, the result of the proceeding would have been different. Although defendant claimed the court made certain statements at sentencing supporting this claim, he failed to include in the record on appeal the transcript of that hearing. As a result, even if the alleged quoted statement constituted a sufficient basis for defendant to demonstrate prejudice, it was not in the record on appeal and thus could not form the basis for a finding of prejudice. Therefore, the Fifth Circuit ruled that defendant failed to carry his burden as to the plain error test. U.S. v. Holmes, 406 F.3d 337 (5th Cir. 2005).
5th Circuit affirms obstruction of justice based on failure to appear. (461) After conviction but before sentencing, the probation officer made a number of attempts to contact defendant in connection with preparing the PSR but was unable to find him. The court asked defense counsel whether defendant’s absence was involuntary. Defense counsel replied” “no, it was just a temporary thing. He was at the point he felt he shouldn’t have to do any time because he was not guilty so he kind of wishy washed around and then finally came in.” The Fifth Circuit upheld the district court’s finding that defendant’s failure to appear constituted obstruction of justice. U.S. v. Infante, 404 F.3d 376 (5th Cir. 2005).
5th Circuit holds that short high-speed chase through residential area involved reckless endangerment. (461) Defendant reacted to emergency lights on a police vehicle by engaging the officers in a high speed chase. After traveling at a high rate of speed for about 3/4 of a mile through both business and residential areas, defendant exited the vehicle and fled on foot. He was apprehended as he entered the backdoor of a nearby residence. He argued that a § 3C1.2 increase for reckless endangerment during flight was unwarranted when his conduct was compared to the extremely reckless conduct present in other cases that applied this guideline. The Fifth Circuit disagreed. Although the enhancement has been upheld in cases involving reckless conduct far more extreme than defendant’s, the enhancement is not limited to such situations. The language of the commentary simply requires that the defendant be aware that his conduct created a risk of such a nature and degree that to disregard that risk grossly deviates from the standard of care a reasonable person would exercise under similar circumstances. The recklessness evident in traveling at high speeds though a dense residential area at night, when a driver’s ability to see pedestrians is compromised, is not vitiated by the fact that traffic is lighter during this time of day, nor is it undercut by the mere fortuity that actual harm to persons or property did not result. U.S. v. Jimenez, 323 F.3d 320 (5th Cir. 2003).
5th Circuit applies obstruction increase for misidentifying accomplice. (461) Defendants Gilley and Phipps, with the assistance of an accomplice, kidnapped and raped a woman. Both defendants misidentified the accomplice during the FBI’s investigation. The investigating agent testified that these lies delayed her inquiry for several months. Because of the conflicting false statements and defendants’ untrustworthiness, the agent was forced to subpoena and search defendants’ telephone records for the unknown third defendant. She eventually interviewed the accomplice, who confessed his involvement. This discovery was critical to the investigation, because the accomplice provided the only evidence, other than the victim’s testimony, that defendants had used a firearm. Defendants argued that the district court erred in applying an obstruction of justice increase because the investigating agent did not fully believe their lies and would have subpoenaed their telephone records anyway. The Fifth Circuit affirmed the increase, finding defendants’ argument foreclosed by U.S. v. Smith, 203 F.3d 884 (5th Cir. 2000). The enhancement was proper because the affirmative misidentification sent investigators on the wrong trial, even though they admitted they would have found the co-defendants eventually in any event. U.S. v. Phipps, 319 F.3d 177 (5th Cir. 2003).
5th Circuit bases obstruction increase on threat not communicated to and never received by target. (461) While on pretrial release, defendant attempted to retaliate against an informant by asking a third party to “plant” about four ounces of crack in the informant’s residence. The plan fell apart when defendant was unable to secure the money to purchase the crack. Defendant challenged an obstruction of justice increase because he did not directly threaten the informant and because the informant was never aware of the threat to her. The Fifth Circuit affirmed the increase based on the plain language of § 3C1.1 and accompanying commentary, which specifically allows for application of the enhancement to attempts by defendants to directly or indirectly threaten or influence a potential government witness. This is consistent with cases in the Second, Eighth, Ninth and Eleventh Circuits. See U.S. v. Shouberg, 895 F.2d 882 (2d Cir. 1990); U.S. v. Capps, 952 F.3d 1026 (8th Cir. 1991); U.S. v. Jackson, 974 F.2d 104 (9th Cir. 1992); U.S. v. Bradford, 277 F.3d 1311 (11th Cir. 2002). The panel rejected the Fourth Circuit’s conclusion in U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992), which reached the opposite result. Defendant’s conduct was an indirect threat or attempt to influence a potential witness in an attempt to impede the judicial proceedings, warranting the obstruction enhancement. U.S. v. Searcy, 316 F.3d 550 (5th Cir. 2002).
5th Circuit applies obstruction increase for perjury during hearing to withdraw guilty plea. (461) During a hearing on defendant’s motion to withdraw his guilty plea, defendant testified that he had recently uncovered exculpatory information, and had lied during his plea hearing about his guilt because his counsel had pressured him to plead guilty. The court refused to permit defendant to withdraw his plea, finding that he had repeatedly lied under oath at his plea-withdrawal hearing. Moreover, based on the lies during the plea-withdrawal hearing, the judge imposed an obstruction of justice increase. The Fifth Circuit upheld the obstruction increase. The court did not find defendant had committed perjury based merely on his change of plea. Rather, it was defendant’s statements under oath regarding the circumstances surrounding his guilty plea, which the court found to be untruthful, that led the court to impose the obstruction of justice increase. The court’s factual finding of perjury was supported by the record as a whole. U.S. v. Adam, 296 F.3d 327 (5th Cir. 2002).
5th Circuit applies obstruction increase for false passport and transfer of business entities before arrest. (461) Several months before his arrest, defendant transferred assets to certain business entities to evade investigators, acquired a false passport in order to evade authorities, and failed to appear before a state justice of the peace on state charges arising from the same conduct which formed the basis of the federal offense. Defendant was a fugitive thereafter, and during this time his family filed a missing persons report for him. The Fifth Circuit found it unnecessary to decide whether defendant’s failure to appear on state charges could serve as grounds for an obstruction of justice enhancement, ruling that defendant’s transfer of assets and obtaining of a false passport supported the obstruction increase. Despite defendant’s contention to the contrary, the record clearly showed that the FBI investigation commenced at the end of 1996, well before defendant’s obstructive conduct. The factual summary attached to defendant’s plea agreement, which defendant initialed on every page and then signed, noted that the FBI investigation was initiated on December 16, 1996, the last day that defendant reported for work. U.S. v. Martinez, 263 F.3d 436 (5th Cir. 2001).
5th Circuit upholds obstruction increase where pretrial statements contradicted trial testimony. (461) Defendant was involved in a conspiracy to divert funds from a bank account to another bank account using an unauthorized electronic wire transfer. The district court applied an obstruction of justice increase based on defendant’s perjury at trial. He had testified that he was not aware of the conspiracy and believed that a co-conspirator had requested bank account information from him to procure a loan for legitimate business purposes. This contradicted pretrial statements defendant made. The Fifth Circuit found that this contradiction supported the obstruction increase. U.S. v. McCauley, 253 F.3d 815 (5th Cir. 2001).
5th Circuit applies obstruction increase to defendant who denied mens rea at trial. (461) The district court applied an obstruction of justice increase based on 14 separate instances of perjury by defendant at trial. Defendant argued that these statements merely denied his mens rea, and to penalize him for making those statements denied him the right to deny his guilt. The Fifth Circuit affirmed the obstruction increase. The right to testify does not include a right to lie. Although defendant argued that the trial court could not know his mental state, and therefore could not know he lied, the risk of “incorrect findings of perjury by district courts” is “inherent in a system which insists on the value of testimony under oath.” U.S. v. Odiodio, 244 F.3d 398 (5th Cir. 2001).
5th Circuit applies obstruction enhancement for bank teller’s false description of robbery suspects. (461) Defendant, a bank teller, provided detailed information to co-conspirators about her bank’s security measures so that they could rob the bank. The district court applied an obstruction of justice enhancement because defendant falsely told the FBI the robbers were black males when she knew the robbers were females. Defendant argued that her false statements were insignificant since investigators continued to focus on her as the prime suspect and little effort was expended looking for black male suspects. The Fifth Circuit affirmed the enhancement. The district court found that defendant’s false statement was significant since for three weeks FBI officials focused their attention on finding two male bank robbers who did not exist. Defendant’s statements went far beyond merely denying her own involvement or refusing to provide information. She sent FBI investigators on the trail of unknown suspects, whom she specifically described in order to obstruct the investigation of the crime. U.S. v. Smith, 203 F.3d 884 (5th Cir. 2000).
5th Circuit focuses on whether defendant was “in custody” at time of flight. (461) Police arrested defendant for an armed robbery, handcuffed him, and transported him to a nearby police storefront. As the officers were leading defendant into the storefront, defendant ran, but was apprehended. Defendant argued that his conduct was not obstruction of justice because it fell within the exception to § 3C1.1 in note 4(d) as conduct that was “brief, spontaneous, and contemporaneous with arrest.” The Sixth and Fourth Circuits focus on whether the defendant was in custody at the time of his flight, while the Seventh and Second Circuits focus on whether the defendant’s acts were calculated, as opposed to spontaneous and instinctive. The Fifth Circuit, agreeing with the Sixth and Fourth Circuit, found “a clear dichotomy between the state of being arrested and that of being in custody.” It further held that flight from law enforcement officers, who, pursuant to a lawful arrest, have exercised custody over the defendant, may constitute obstruction of justice, even if such flight closely follows the defendant’s arrest. Thus, the district court did not err in concluding that defendant’s escape constituted an obstruction of justice under § 3C1.1. U.S. v. Huerta, 182 F.3d 361 (5th Cir. 1999).
5th Circuit finds material defendant’s false claim that FDA never told him drug importation was illegal. (461) Defendant operated a mail-order pharmaceutical business that obtained drugs at low prices in Mexico, and then transported them into the U.S. without declaring the importation to any customs authorities. The district court found that defendant testified falsely that the FDA did not tell him that he could not legally import drugs from Mexico and falsely denied that his company was operating commercially when it brought drugs into the U.S. The Fifth Circuit affirmed an obstruction of justice enhancement, concluding that the district court made independent findings as to the willfulness and untruthfulness of defendant’s testimony. Although the district court made no explicit finding as to the materiality of the perjurious statements, defendant’s statements were, as a matter of law, material. Defendant denied having been told by FDA agents that could not legally continue his importation operation, and this assertion undoubtedly spoke to a material fact. U.S. v. Haas, 171 F.3d 259 (5th Cir. 1999).
5th Circuit applies obstruction enhancement for lying on the witness stand. (461) Defendant participated in a scheme to transport cocaine from Mexico to Houston. Defendant leased the warehouse in which the smuggled cocaine was stored. The Fifth Circuit held that the district court did not clearly err in ruling that defendant obstructed justice by lying on the stand. The district court concluded that defendant lied about his knowledge of the criminal activity. Specifically, contrary to his testimony, defendant knew about the cocaine, and knew when, where, and how the cocaine was being delivered. The court also concluded that defendant committed perjury when he testified that the warehouse had been leased for legitimate business purposes. U.S. v. Gourley, 168 F.3d 165 (5th Cir. 1999).
5th Circuit applies obstruction increase for feigning mental incompetence to avoid trial. (461) Defendant, a convicted felon with one previous determination of incompetence and numerous commitments to psychiatric facilities, was indicted on kidnapping and firearms charges. Because he exhibited bizarre behavior, he was committed for several months to a psychiatric hospital. A doctor who had evaluated defendant during his commitment testified that the staff was unable to find any active psychotic process or serious mental disease. The doctor testified that defendant was a malingerer. The district court found defendant was competent and was feigning mental illness. During trial, defendant continued to engage in bizarre behavior, leaping out of his chair and yelling at a witness, attempting to flush his clothes down the toilet and scratching his throat so he appeared to spit up blood. The district court applied an obstruction of justice enhancement for feigning mental illness and disrupting the trial. The Fifth Circuit affirmed, holding that (1) § 3C1.1 applies to feigning incompetence, even if the defendant has a history of psychological disorders, and (2) the court did not clearly err in finding that defendant willfully feigned mental illness. U.S. v. Greer, 158 F.3d 228 (5th Cir. 1998).
5th Circuit finds obstruction for presenting son’s perjured testimony at trial. (461) Defendant and his sons ran a marijuana distribution ring. Despite numerous witnesses to the contrary, one of defendant’s sons testified that his father had nothing to do with the brothers’ drug business. Defendant conceded there was no clear error in finding his son committed perjury and that defendant must have known of the perjury. He argued, whoever, that the court erred in concluding that defendant “procured” the false testimony because defendant’s attorney, not defendant himself, called the son to the stand. The Fifth Circuit found the enhancement proper even if defendant did no more than “counsel” or “induce” his lawyer to call the son as a witness. Given the government’s threat to seek a perjury enhancement for the son if he testified for his father, the district court reasonably inferred that defendant and his attorney discussed the son’s testimony before trial. It was likely that defendant’s attorney would have suggested to defendant that the government might seek a similar enhancement against anyone using the son’s testimony. U.S. v. Lowder, 148 F.3d 548 (5th Cir. 1998).
5th Circuit says inducing co-conspirator to sign false affidavit was obstruction. (461) Defendant pled guilty to drug charges. The district court applied an obstruction of justice enhancement because defendant induced a co-conspirator to sign a false affidavit exonerating him. Defendant claimed there was no evidence of willful obstruction of justice: he did not threaten the co-conspirator and the affidavit was never used. The Fifth Circuit affirmed the obstruction of justice enhancement. Defendant knew his attorney was asking his co-conspirators to sign a false affidavit. The fact that the affidavit was not used was disingenuous. If defendant’s case had gone to trial, the affidavit could have been used to impeach the co-conspirator, had he chosen to cooperate with the government against defendant. U.S. v. Milton, 147 F.3d 414 (5th Cir. 1998).
5th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant was convicted of assaulting a federal officer with a deadly weapon for swerving his car into the car of a federal agent who was pursuing him. Numerous witnesses testified that defendant deliberately rammed his vehicle into the agent’s vehicle. Nonetheless, defendant testified at trial that he did not deliberately swerve his vehicle. The Fifth Circuit affirmed an obstruction of justice enhancement based upon defendant’s trial perjury. U.S. v. Morris, 131 F.3d 1136 (5th Cir. 1997).
5th Circuit relies on facts in PSR for § 3C1.2 reckless endangerment enhancement. (461) The PSR said that defendant initiated a high speed chase for several miles and attempted to hit one of the patrol units as he was driving in the middle of the road, causing oncoming traffic to get off the roadway. At sentencing, defense counsel objected to the PSR’s § 3C1.2 enhancement for reckless endangerment during flight, and asked that the contrary facts set out in defendant’s written objection to the PSR be accepted as a proffer. The court accepted the proffer of facts as evidence, and defense counsel did not ask for an evidentiary hearing or the opportunity to put defendant on the stand. The court then denied defendant’s objection to the § 3C1.2 enhancement, and the Fifth Circuit affirmed. The district court properly found the facts in the PSR more reliable than those proffered by defendant. It is true that when a defendant objects to particular findings in the PSR, the court must resolve the disputed issues of fact if it intends to use those facts as a basis for its sentence. However the court did so here. U.S. v. Reyna, 130 F.3d 104 (5th Cir. 1997).
5th Circuit applies reckless endangerment increase to passenger in fleeing vehicle. (461) Defendant was the passenger in a car that led deputies on a high-speed chase that ended when the car flipped and landed on the hood of the deputies’ patrol car. During the chase, defendant threw plastic bags containing crack cocaine out the window. The Fifth Circuit affirmed a § 3C1.2 reckless endangerment increase, even though defendant was not the driver of the fleeing vehicle. The sheriff’s investigator’s notes revealed that defendant informed the driver that he had drugs on him, and that the driver needed to do something or they were going to jail. The court properly relied on the investigator’s notes. Defendant was aware of the probation office’s reliance on the notes, yet did not present any evidence that would cast doubt on the truthfulness or accuracy of his interview. U.S. v. Lugman, 130 F.3d 113 (5th Cir. 1997).
5th Circuit finds obstruction in false statements and attempts to influence witness testimony. (461) Defendant, the operator of a wholesale gasoline distributor, purchased gasoline at lower prices by misrepresenting that he was blending the gasoline with ethanol into gasohol. He was convicted of evading federal fuel excise taxes. The Fifth Circuit affirmed an obstruction of justice enhancement based upon the following actions by defendant: (1) making false statements to an IRS auditor, (2) submitting false documents during an IRS audit, (3) making false statements to an IRS agent investigating defendant’s blending operation, (4) attempting to conceal his scheme by falsely claiming he purchased ethanol from certain suppliers, and (5) attempting to suborn perjury by asking an associate to lie at defendant’s trial. U.S. v. Powell, 124 F.3d 655 (5th Cir. 1997).
5th Circuit applies § 3C1.1 enhancement for lying about whether attorney reviewed PSR with defendant. (461) The district court applied a § 3C1.1 enhancement, finding defendant lied at his sentencing hearing on whether his attorney had reviewed the PSR with him. Defendant argued that he had not lied, but was merely confused as a result of his limited English proficiency and illiteracy. The Fifth Circuit upheld the § 3C1.1 enhancement, even though defense counsel made a plausible argument that defendant was simply confused. From a cold record, the appellate court could not say the district court clearly erred when it concluded that defendant was lying. Defendant did not meet the burden of showing that the information relied on by the district court was materially untrue. U.S. v. Chavez, 119 F.3d 342 (5th Cir. 1997).
5th Circuit reverses refusal to consider evidence that defendant obstructed justice by hiding assets. (461) At defendant’s sentencing, the government sought to present evidence that defendant had concealed assets from the district court. The district court refused to consider the evidence for restitution purposes, stating that it would “unduly complicate and prolong the sentencing process.” The court further found that any misrepresentation of financial resources was immaterial for obstruction of justice purposes since she had already decided not to order full restitution. The Fifth Circuit held that the court’s refusal to consider enhancing defendant’s sentence for obstruction of justice directly conflicted with the guidelines. A statement to a probation officer concerning one’s financial resources will obviously affect the officer’s determination of ability to pay. To determine whether defendant obstructed justice, the court need not conduct a full-blown evidentiary hearing. Rather, it must simply ascertain whether defendant misrepresented the nature and extent of his financial resources to the probation officer. U.S. v. Dupre, 117 F.3d 810 (5th Cir. 1997).
5th Circuit applies obstruction increase for attempted escape. (461) Defendants’ PSR stated that while awaiting sentencing in the instant case, defendants had bribed a jail guard in an escape attempt. The district court adopted the PSR and applied a § 3C1.1 enhancement based on the attempted escape. The Fifth Circuit affirmed the § 3C1.1 enhancement. The district court was free to adopt the PSR in light of defendants’ failure to offer any rebuttal evidence. Defendants also objected to the courts’ failure to make a willful finding. However, because defendants voluntarily and intentionally attempted to escape, this satisfied the willfulness requirement under § 3C1.1. U.S. v. Cisneros, 112 F.3d 1272 (5th Cir. 1997).
5th Circuit directs court to reconsider obstruction of justice enhancement. (461) The district court rejected the government’s request for an obstruction of justice enhancement. The Fifth Circuit directed the court to reconsider this issue. There was testimony that after a search warrant was executed on the clinic defendants operated, one defendant and another man visited a storage facility that this defendant had rented under a false name and removed clinic records. According to the storage facility manager, some of those records were discarded in a dumpster. If the court credited this testimony, the enhancement should apply. U.S. v. Tencer, 107 F.3d 1120 (5th Cir. 1997).
5th Circuit upholds obstruction enhancement based on perjury at trial. (461) Defendant was involved in a scheme in which callers were promised loans once they paid an advance fee of $299. No loans were actually made. The PSR recommended an obstruction of justice enhancement based on defendant’s false testimony at trial concerning what she told a postal inspector investigating the scheme. The district court ultimately based the enhancement on defendant’s perjurious testimony at trial that she was unaware that the operation was fraudulent. The Fifth Circuit affirmed the obstruction enhancement based on defendant’s trial perjury. Defendant’s arguments concerning her statements to the postal inspector were irrelevant since the enhancement was based on other perjury. Defendant had proper notice that the court intended to apply the enhancement on an alternate ground. The PSR referred to defendant’s testimony about her knowledge of the scheme as “in direct contradiction to the evidence.” U.S. v. Gray, 105 F.3d 956 (5th Cir. 1997).
5th Circuit holds that court adequately identified perjury. (461) The Fifth Circuit found that the trial court sufficiently identified instances of defendant’s lying during his testimony. At sentencing the government related testimony by defendant that was “utterly inconsistent with the other evidence presented at trial.” The prosecutor listed contradictory evidence concerning defendant’s role in running the business. Defendant’s former partner and the bookkeeper testified about defendant’s knowledge of the advertisements and information submitted to Dun & Bradstreet. By contrast, defendant denied being involved in drafting or reviewing promotional materials and telemarketing scripts, and denied reporting information to Dun & Bradstreet. However, no one other than defendant could have been responsible for supplying that information. These inconsistencies were so glaring that mistake or confusion could not explain them, and the jury clearly chose to discredit defendant’s account. U.S. v. Wild, 92 F.3d 304 (5th Cir. 1996).
5th Circuit upholds obstruction increase based on information from plea negotiations. (461) The district court enhanced defendant’s sentence for obstruction of justice based on his failure to produce subpoenaed corporate records and his lies to the grand jury that he had produced all relevant records. Defendant argued that this violated § 1B1.8 and Fed. R. Crim. P. 11(e)(6)(D) because it was during plea negotiations that the government discovered he had not produced certain records and had lied to the grand jury. The Fifth Circuit affirmed the enhancement. Rule 11(e)(6)(D) does not prohibit statements made during plea negotiations from being used during sentencing. At sentencing, the district court may rely upon any evidence of defendant’s credibility that is sufficiently reliable. The district court correctly found defendant’s statements during plea negotiations were reliable. The false grand jury testimony was sufficiently related to the offense of conviction to apply the enhancement. Section 3C1.1 does not require the obstructive conduct to be directly related to the offense of conviction. U.S. v. Upton, 91 F.3d 677 (5th Cir. 1996).
5th Circuit increases for obstructing execution of Branch Davidian search warrant. (461) Defendant, a Branch Davidian, was convicted of aiding and abetting the voluntary manslaughter of federal agents in connection with the ATF’s raid on the Davidians’ compound. The raid was part of an attempt to execute a search and arrest warrant. It resulted in a gun battle between the Davidians and the ATF, and a 51‑day stand‑off between law enforcement and the Davidians. The Fifth Circuit affirmed a § 3C1.1 enhancement for obstructing the execution of the search warrant for 51 days. Defendant admitted participating in the initial gun battle and the ensuing armed stand‑off. In addition, other Davidians all confirmed defendant stood guard with a firearm during the stand‑off. U.S. v. Branch, 91 F.3d 699 (5th Cir. 1996).
5th Circuit finds obstruction for providing false identification at arrest. (461) When stopped by Texas police, defendant produced a Tennessee driver’s license bearing his cousin’s name. An indictment was filed charging his cousin with several drug counts and the cousin was arrested in Tennessee. The cousin was eventually released after explaining that he had given his social security card to defendant so that defendant could obtain a Tennessee driver’s license. The Fifth Circuit upheld an obstruction of justice enhancement based on the false identification defendant gave police. Note 4 to § 3C1.1 states that providing a false name or ID to police does not warrant the enhancement unless the conduct resulted in a significant hindrance to the investigation or prosecution. Although the court did not make a finding on this issue, its failure to do so was harmless error because it was clear that defendant significantly hindered the investigation. He caused the arrest of an innocent man and required the government to file a superseding indictment. U.S. v. Rickett, 89 F.3d 224 (5th Cir. 1996).
5th Circuit affirms obstruction increase and upward departure for hiding fugitive co-defendant. (461) The district court imposed a § 3C1.1 enhancement and departed under § 5K2.0 and § 5K2.2 because defendant and his wife hid his fugitive co‑defendant at his house during the trial. The wife testified that when defendant called her from jail, she told him that the co‑defendant was present at the house. Defendant told her to put the co‑defendant in a motel because he could be criminally charged for having the fugitive at his house. Defendant argued that this did not establish obstruction of justice, only that he knew that his co‑defendant was present at his home. The Fifth Circuit held that the § 3C1.1 enhancement and the upward departure were properly based on defendant’s knowledge that his co‑defendant, a fugitive, was present in his home during the trial. Hiding the co‑defendant allowed defendant to present a defense at trial that blamed the co‑defendant. U.S. v. Ismoila, 100 F.3d 380 (5th Cir. 1996).
5th Circuit says obstruction need not directly relate to actual crime charged. (461) Defendant pled guilty to possessing a machine-gun in January 1989. The district court imposed a § 3C1.1 enhancement because after a search warrant was executed, defendant contacted an associate who was present in February 1989 when defendant converted a semi-automatic gun to fully automatic. Defendant told the associate not to cooperate with authorities. Defendant argued that his attempted obstruction did not relate to the offense of conviction for § 3C1.1 purposes. The Fifth Circuit, disagreeing with the Second, Third and Eleventh Circuits, and agreeing with the Sixth Circuit, held that § 3C1.1 does not require the obstruction to be directly related to the offense of conviction. Otherwise, the enhancement would be dependent on which offense in a multi-count indictment that the parties chose to make the subject of a plea bargain. The enhancement is proper any time the defendant has concealed or attempted to conceal information material to the investigation, prosecution or sentencing of the instant offense. Here, the associate’s knowledge of the February 1989 events were material to the investigation and prosecution of the firearms offenses for which defendant was ultimately indicted. The instant offense was one of those offenses. U.S. v. Kirk, 70 F.3d 791 (5th Cir. 1995), rehearing en banc granted (5th Cir. March 5, 1996) No. 94‑50472.
5th Circuit says evidence supported finding that defendant intimidated witnesses. (461) The district court enhanced defendant’s sentence for obstruction of justice because defendant attempted to intimidate several witnesses and may have been involved in a murder. The Fifth Circuit found that there was sufficient evidence to support the § 3C1.1 enhancement, even without testimony that the district court stated that it would disregard. An IRS agent testified that at least three government witnesses made allegations that defendant had threatened or intimidated them regarding their testimony. Uncorroborated hearsay evidence may be considered at sentencing if sufficiently reliable. U.S. v. West, 58 F.3d 133 (5th Cir. 1995).
5th Circuit upholds obstruction enhancement despite no express finding of materiality. (461) Police stopped defendant’s car after he almost struck a police car. During an inventory search of defendant’s vehicle, they discovered guns and ammunition in the trunk. Defendant told the officer that he had been assisting the police in a homicide investigation and the guns were part of the investigation. Defendant was convicted of being a felon in possession of a firearm. At a hearing to suppress the guns, defendant denied committing any traffic violation and denied telling police that he was assisting a homicide investigation. The Fifth Circuit affirmed an obstruction of justice enhancement, agreeing that defendant’s perjury at the suppression hearing was material. Although the district court did not expressly find that defendant’s falsehoods were material, the court’s materiality finding could be inferred from the context of the exchange among the attorneys and the judge at the sentencing hearing. Both the government and defense counsel made arguments regarding the materiality of defendant’s testimony. U.S. v. Como, 53 F.3d 87 (5th Cir. 1995).
5th Circuit says even before arrest, warning buyer not to go to police was obstruction. (461) Defendant sold crack cocaine to a cooperating witness. While in the witness’s car, defendant said that if he got “busted” he would only have to make one phone call to have the witness “mess[ed] up.” Defendant argued that he did not willfully obstruct justice because he did not know he was under investigation by any authorities or that the buyer was a potential witness against him. The Fifth Circuit upheld an obstruction of justice enhancement, finding defendant made his threatening statements with a belief that an investigation was underway. A defendant’s awareness of the commencement of an investigation is relevant and necessary for the obstruction of justice enhancement. Defendant asked the witness to show identification, and said he believed she was a police officer. He then made his threatening statements. U.S. v. Lister, 53 F.3d 66 (5th Cir. 1995).
5th Circuit applies obstruction increase for submitting false documents to court. (461) Defendant was convicted of a fraudulent investment scheme. The district court enhanced his sentence for obstruction of justice because it found that defendant had created false documents in the form of receipts and a ledger that were submitted at trial. The government demonstrated that the entries were made in the ledger for payments received before checks from investors were even written. The government also introduced defendant’s bankruptcy documents in which defendant denied the existence of any business records covering the period named in the indictment. The Fifth Circuit affirmed the enhancement. U.S. v. Pepper, 51 F.3d 469 (5th Cir. 1995).
5th Circuit upholds obstruction enhancement for placing contract on life of informant. (461) The district court enhanced defendant’s sentence for obstruction of justice based on evidence at his detention hearing that he had placed a contract on the life of an informant. The 5th Circuit found that it could not review the matter, because defendant failed to order the part of the record that he contended contained error. However, the court did entertain defendant’s contention that the witness must be aware of the threat in order the justify the enhancement. This requirement was met, since both the government and the informant were made aware of the threat, and the government subsequently relocated the informant and her family. U.S. v. Narvaez, 38 F.3d 162 (5th Cir. 1994).
5th Circuit rules court made adequate perjury findings to justify obstruction enhancement. (461) Defendant argued that the guidelines require the district court to: (1) find that no reasonable trier of fact could have found the defendant’s testimony true; (2) find that the defendant’s guilt is supported by evidence other than the jury’s having disbelieved him; and (3) make specific findings regarding which portion of the defendant’s testimony was material. The 5th Circuit rejected these requirements. The district court’s finding that defendant’s committed perjury was sufficient. The court did more than simply adopt the PSR or rely solely on the jury’s verdict. The court found that defendant had committed perjury during his testimony at trial and in giving a false statement under oath in an affidavit. The court identified what portion of the testimony was perjurious. The perjury was material, since if believed, it would tend to influence or affect the jury’s verdict. U.S. v. Storm, 36 F.3d 1289 (5th Cir. 1994).
5th Circuit says perjury at suppression hearing was material. (461) At a suppression hearing, a police officer testified that defendant led police to his victim’s car. Defendant falsely denied doing so. He argued that his perjury was not material because the only issues at the hearing were the legality of the search of defendant’s car and home. The 5th Circuit held that the perjury was material, and thus justified an obstruction of justice enhancement. The perjury bore on the credibility of the witnesses, which was critical to determining whether the searches were voluntary, as the police claimed. U.S. v. Reed, 26 F.3d 523 (5th Cir. 1994).
5th Circuit holds that use of false name before magistrate was material. (461) Defendant applied for a passport under a false name. When arrested, he gave police still another false name, and continued to use this false name throughout two detention hearings. The 5th Circuit upheld an enhancement for obstruction of justice, agreeing that defendant gave materially false information to the magistrate under application note 3(f) to § 3C1.1. Defendant’s identity was material. The person whose name defendant gave did not commit the instant offense. Moreover, a defendant’s personal history is always pertinent to sentencing. Finally, defendant obstructed justice by giving a false name to law enforcement authorities, causing the expenditure of considerable time and resources in the determination of his true identity. U.S. v. Montano-Silva, 15 F.3d 52 (5th Cir. 1994).
5th Circuit approves presumption that assaults on police are foreseeable in every drug conspiracy. (461) When Border Patrol agents discovered a group of people unloading large bundles of marijuana, shots were fired at them. The group then scattered, and defendant was eventually captured. He did not possess a firearm. He challenged an enhancement under § 3A1.2(b) for assaulting a police officer, claiming it was based on the assumption that assaults on law enforcement officers are reasonably foreseeable in every drug conspiracy. The 5th Circuit disagreed with defendant’s claim that this assumption would unconstitutionally shift the burden of proof at sentencing from the state to the defendant. U.S. v. Ortiz-Granados, 12 F.3d 39 (5th Cir. 1994).
5th Circuit affirms obstruction enhancement for misrepresenting criminal history to probation officer. (461) The district court imposed an enhancement for obstruction of justice because, when his probation officer quizzed defendant about his criminal history, defendant failed to mention several prior convictions. The 5th Circuit affirmed the enhancement. Application note 3(h) explains that the enhancement applies when a defendant provides materially false information to a probation officer in respect to a presentence or other investigation for the court. U.S. v. Tello, 9 F.3d 1119 (5th Cir. 1993).
5th Circuit finds obstruction for throwing bullets into water and chewing list of phone numbers. (461) The district court imposed an enhancement for obstruction of justice based on testimony that, after defendant’s detention by customs officials, he pitched a sock full of bullets into the nearby bay and chewed to a pulp the list of phone numbers found among his possessions. The 5th Circuit affirmed. The district court was entitled to credit the testimony of the customs agents, and sufficient evidence existed in the record to buttress their version of events. U.S. v. Velgar-Vivero, 8 F.3d 236 (5th Cir. 1993)0.
5th Circuit upholds obstruction adjustment for defendant who attempted to influence testimony. (461) After defendant’s accountant testified before a grand jury, defendant asked an associate to relay the accountant’s testimony to the associate’s brother, so that the brother’s testimony would be consistent. The 5th Circuit affirmed an enhancement for obstruction of justice. First, the district court, could well have inferred that defendant was attempting to suborn perjury, rather than reminding the brother to be consistent with the accountant on truthful matters. Second, defendant’s conduct may have violated the witness tampering statute, which would in turn trigger the obstruction enhancement. Finally, the district court need not have believed that defendant committed perjury or witness tampering in order to make the adjustment. Although such conduct would be sufficient to trigger the enhancement, the district court could properly determine that other conduct also satisfied section 3C1.1. U.S. v. Graves, 5 F.3d 1546 (5th Cir. 1993).
5th Circuit rejects constitutional challenges to obstruction enhancement based on perjury. (461) Defendant argued that an obstruction of justice enhancement based on his perjury (a) punished him for testifying on his own behalf in violation of the 5th Amendment, (b) constituted double jeopardy by punishing him for both the crime and for his defense to the crime, in violation of the 6th Amendment, and (c) constituted cruel and unusual punishment, in violation of the 8th Amendment. The 5th Circuit rejected these claims. The 5th Amendment claim failed because he had no constitutional right to testify falsely. The 6th Amendment claim misperceived the distinction between a sentence and a sentence enhancement. The 8th Amendment claim that his sentence was upgraded simply for testifying was wrong; his sentence was adjusted because he perjured himself. U.S. v. Vaquero, 997 F.2d 78 (5th Cir. 1993).
5th Circuit upholds obstruction enhancement based on perjury during suppression hearing. (461) The 5th Circuit upheld an obstruction of justice enhancement because, during a suppression hearing, defendant falsely denied that he gave a police officer oral permission to search his car. Although there was conflicting testimony regarding whether he gave his consent, application note 2 to section 3C1.1 did not require the judge to believe defendant. Rather the note simply instructs the judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction. Although defendant has a constitutional right to testify on his own behalf, he does not have a protected right to commit perjury. U.S. v. Vaquero, 997 F.2d 78 (5th Cir. 1993).
5th Circuit affirms obstruction adjustment for defendant who fled jurisdiction and assumed new identity. (461) After defendant’s drug crimes, she moved to a new state and assumed a new identity. The 5th Circuit held these facts relevant in affirming the district court’s enhancement of defendant’s offense level for obstruction of justice. The court disagreed that defendant’s conduct was indistinguishable from providing a false name or false identification upon arrest, which justifies the adjustment only when it “seriously impedes the administration of justice.” Moreover, the appellate court approved the district court’s consideration of a letter from defendant to her husband in which she requested that he stop providing information to the authorities about her. U.S. v. Pofahl, 990 F.2d 1456 (5th Cir. 1993).
5th Circuit affirms that defendant committed perjury at trial. (461) The 5th Circuit upheld an enhancement for obstruction of justice based on defendant’s perjury, rejecting defendant’s claim that he merely declared his innocence. In addition to other less material inconsistencies in his testimony, defendant testified that his half-sister asked him to transport the garment bag containing drugs, and that he owned no clothing found in the bag. However, agents found a hospital admittance card bearing defendant’s name in a pocket of a pair of jeans recovered from the bag. U.S. v. Butler, 988 F.2d 537 (5th Cir. 1993).
5th Circuit upholds obstruction enhancement for perjury at original sentencing hearing. (461) Defendant was convicted of unlawful industrial waste discharge. He lied at his original sentencing hearing about the amount of waste involved and about his illegal waste disposal on other occasions. The 5th Circuit remanded for resentencing on unrelated grounds, and defendant argued that the vacating of his initial sentence precluded an obstruction enhancement based on the earlier perjury. The 5th Circuit disagreed, ruling that the vacating of the earlier sentence did not diminish the fact or impact of defendant’s perjury. The court also rejected defendant’s claim that the perjury was not sufficiently related to his offense of conviction to justify enhancement. Statements at sentencing about the severity of the offense of conviction and similar conduct on other occasions are patently relevant to sentencing. U.S. v. Goldfaden, 987 F.2d 225 (5th Cir. 1993).
5th Circuit affirms that defendant committed perjury by lying at trial about source of funds. (461) Defendant was convicted of armed bank robbery. The district court ruled that defendant obstructed justice when he (a) lied at trial as to the source of money he spent following the date of the robbery, and (b) lied to the probation officer about his criminal history. The 5th Circuit affirmed. In his post-arrest statement, defendant claimed he had obtained the money from two jobs, and that a girlfriend and her grandmother had given him some money. At trial, defendant stated for the first time that he had obtained most of the money by robbing a drug dealer. The record also supported the finding that defendant lied to the probation officer about his criminal record. When asked by the officer about a prior arrest and conviction in Houston, defendant denied any involvement, claiming that an uncle used defendant’s name when arrested. However, a photograph obtained by the probation officer clearly showed it was defendant who was arrested and convicted. U.S. v. Laury, 985 F.2d 1293 (5th Cir. 1993).
5th Circuit says findings were adequate to support obstruction enhancement. (461) The 5th Circuit held that the district court made adequate factual and legal findings supporting an enhancement for obstruction of justice. Defendant contended that he was not involved in a shooting incident against a witness, and also contended, in an unsworn assertion, that he never threatened another witness. After hearing counsel’s assertions regarding the shooting incident, the district court specifically found that a preponderance of the evidence showed that defendant was involved in the incident. The court also implicitly found that defendant threatened the second witness. Even if the court made no findings regarding the threats, defendant’s objection, based upon bare assertions that he did not threaten the witness, need not have been considered. U.S. v. Whitlow, 979 F.2d 1008 (5th Cir. 1992).
5th Circuit upholds obstruction enhancement for handing cocaine to co-defendant and urging another co-defendant to sign a false affidavit. (461) Defendant was involved in delivering cocaine to an undercover agent. When he realized he was about to be arrested, he ran from the officer, removed the drugs from his jacket and put the drugs in the hands of an accomplice. The district court also found that after his arrest, defendant contacted another co-defendant on at least five occasions attempting to persuade her to sign an affidavit swearing he was not involved in the offense. The 5th Circuit affirmed an enhancement for obstruction of justice, based on the combination of defendant’s placing the bag of cocaine into the hands of an accomplice and his attempts to get a co-defendant to sign a false affidavit. The court declined to determine whether defendant’s actions at his arrest, standing alone, were sufficient to constitute obstruction of justice. U.S. v. Bethley, 973 F.2d 396 (5th Cir. 1992).
5th Circuit affirms that obstruction enhancement may be based upon perjury at trial. (461) The 5th Circuit rejected defendant’s claim that an enhancement for obstruction of justice based on his perjury at trial placed an impermissible burden on his right to testify. The guideline section is tailored to protect a defendant’s right to testify, while still permitting sentencing courts to take into account the fact that the defendant perjured himself. There is no protected right to commit perjury. U.S. v. Collins, 972 F.2d 1385 (5th Cir. 1992).
5th Circuit says court could reject defendant’s testimony and impose obstruction enhancement. (461) Defendant received an enhancement for obstruction of justice based upon the presentence report’s statement that defendant made several threats against his accomplices to keep them from testifying against him. Defendant denied making such threats, stressing that under the application note to section 3C1.1, a defendant’s testimony should be evaluated in a light most favorable to him. The 5th Circuit affirmed that the district court’s reliance on the presentence report rather than defendant’s version of the facts was not clearly erroneous. Note 1 does not direct a court to accept the defendant’s account in instances of disagreement, but simply instructs the judge to resolve in favor of the defendant those conflicts about which the sentencing judge, after weighing the evidence, has no firm conviction. U.S. v. Singer, 970 F.2d 1414 (5th Cir. 1992).
5th Circuit affirms obstruction enhancement for interfering with state’s investigation of offense. (461) Defendant, the Commissioner of Insurance for the State of Louisiana, assisted an insurance company by failing to investigate consumer complaints against the company and interfering with an audit designed to remove the company from a watch list. He also misled the Insurance Commissioner of Alabama, at the time conducting its own investigation of the company, by indicating that the company was in good condition, despite knowledge of innumerable complaints against it. He also prevented Alabama from conducting an audit of a related insurance company. The 5th Circuit affirmed an enhancement for obstruction of justice based upon defendant’s interference with the Alabama investigation of these companies. The court rejected defendant’s claim that the enhancement was improper because the conduct alleged to have been the basis for the enhancement was part of the object offense. Defendant’s conduct was an obstruction of an investigation that would have led to his prosecution for mail fraud. U.S. v. Green, 964 F.2d 365 (5th Cir. 1992).
5th Circuit affirms obstruction enhancement for defendant who used alias at arrest and before magistrate. (461) Defendant concealed his true identity from law enforcement officials for over a month after his arrest in an effort to hide his criminal record. The 5th Circuit affirmed an enhancement for obstruction of justice because defendant gave the alias to a magistrate and filed a financial status affidavit with the magistrate under the false name. Application note 3(f) to guideline section 3C1.1 provides that the use of a false name before a judge or magistrate merits enhancement, even without a showing of significant hindrance. U.S. v. McDonald, 964 F.2d 390 (5th Cir. 1992).
5th Circuit rules perjury alone justified obstruction enhancement. (461) The district court based a two-level enhancement for obstruction of justice upon defendant’s concealment of records in relation to one of the counts of his indictment and his perjurious testimony. The 5th Circuit found that the perjury ruling was supported by the record, and that this alone supported the enhancement. Therefore, it declined to address whether the act of concealing records relating to one count could constitute obstruction of justice in the instant offense. U.S. v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992)1.
5th Circuit affirms obstruction enhancement where defendant gave court fraudulent birth certificate. (461) Upon arrest, defendant gave a false name. However, during his presentence interview, he “readily admitted” several prior convictions under different names. Nonetheless, through his sentencing hearing defendant continued to maintain that the alias he gave upon his arrest was his true name. He produced a fraudulent birth certificate in support of this claim. On appeal, he claimed that the enhancement for obstruction of justice was improper because his use of the alias was immaterial. The 5th Circuit rejected the argument, even though the November 1990 guideline amendments state that the obstruction enhancement is not intended to apply where the defendant provides a false name or identification document on arrest, unless the investigation or prosecution is significantly hindered. Here, the defendant provided the court with a fraudulent birth certificate. The amended commentary clearly states that the enhancement applies to providing a false or altered document during an official investigation or judicial proceeding. U.S. v. Rodriguez, 942 F.2d 899 (5th Cir. 1991).
5th Circuit upholds obstruction enhancement for defendant convicted of perjury and kidnapping. (461) Defendant was convicted of kidnapping and perjury. He contended that a two-level enhancement for obstruction of justice under section 3C1.1 was improper because his grouped base offense level of 30 already included his perjury offense. The 5th Circuit affirmed the enhancement, relying upon note 4 to section 3C1.1. It provides that where a defendant is convicted of both an obstruction offense and the underlying offense, the two counts are to be grouped under section 3D1.2(d). The offense level for that group is the offense level for the underlying offense increased by two for obstruction of justice, or the offense level of obstruction offense, whichever is greater. In this case, the offense level for the kidnapping was greater than the offense level for the perjury count, and therefore it was proper for the district court to add two points to the offense level for the kidnapping offense. U.S. v. Winn, 948 F.2d 145 (5th Cir. 1991).
5th Circuit upholds obstruction of justice enhancement for defendant who impeded perjury prosecution. (461) The 5th Circuit upheld a three-level adjustment for substantial interference with the administration of justice and a two-level adjustment for obstruction of justice based upon defendant’s efforts to impede the prosecution of his perjury. Defendant made further false statements to a grand jury, to an FBI investigator, and to his attorney after his trial. The court further agreed that defendant’s role as a member of the police jury, which regulated and controlled the operation of bingo within the local parish, and his appearance before the grand jury in that role, provided a sufficient basis to support a two-level adjustment for abuse of a position of trust. U.S. v. Pattan, 931 F.2d 1035 (5th Cir. 1991).
5th Circuit affirms obstruction enhancement based on defendant’s attempted escape from custody pending trial. (461) The 5th Circuit affirmed an obstruction of justice enhancement based upon defendant’s attempt to escape from custody while awaiting trial. The November 1, 1990 guidelines specify that an attempted escape before trial is an obstruction of justice. Prior to this date, the guidelines did not specifically list attempted escape, however, the listed conduct was not exclusive. Since the administration of justice includes the ability of the government to produce persons in custody for their scheduled court dates, the administration of justice is obstructed when such persons escape from custody. That the sentencing commission now explicitly lists attempted escape as justifying an obstruction enhancement supports this conclusion. U.S. v. Valdiosera-Godinez, 932 F.2d 1093 (5th Cir. 1991).
5th Circuit affirms obstruction enhancement for defendant who hid gun and drug money from arresting officers. (461) When agents attempted to arrest defendant after a drug transaction, she ran away but was captured several minutes later. When apprehended, defendant was no longer in possession of the gun she had been carrying or the money from the drug sale. These were found hidden nearby, under a car and in a spare tire. The 5th Circuit upheld an enhancement for obstruction of justice, rejecting defendant’s argument that the gun was irrelevant to her charge of conspiracy to distribute methamphetamine. The gun was relevant to defendant’s criminal conduct, as it could have been used to “back up” her drug deals. In addition, the drug money given to defendant by undercover agents in the drug deal was very material. Moreover, defendant was properly denied a reduction for acceptance of responsibility, since the guidelines in effect at the time defendant was sentenced precluded a defendant who had obstructed justice from receiving a reduction for acceptance of responsibility. U.S. v. Ainsworth, 932 F.2d 358 (5th Cir. 1991).
5th Circuit upholds obstruction of justice enhancement for defendant who impeded perjury prosecution. (461) The 5th Circuit upheld a three-level adjustment for substantial interference with the administration of justice and a two-level adjustment for obstruction of justice based upon defendant’s efforts to impede the prosecution of his perjury. Defendant made further false statements to a grand jury, to an FBI investigator, and to his attorney after his trial. The court further agreed that defendant’s role as a member of the police jury, which regulated and controlled the operation of bingo within the local parish, and his appearance before the grand jury in that role, provided a sufficient basis to support a two-level adjustment for abuse of a position of trust. U.S. v. Pattan, 931 F.2d 1035 (5th Cir. 1991).
5th Circuit upholds obstruction of justice enhancement for defendant who used an alias. (461) After being stopped by police, defendant gave an alias in order to prevent the police from learning of several outstanding warrants. Defendant was subsequently arrested after the police discovered a gun in the car defendant was driving, and eventually pled guilty to being a felon in possession of a firearm. Defendant’s sentence was enhanced for obstruction of justice based on his use of the alias. He argued that there was an insufficient nexus between the obstruction and the weapons offenses. The alias was used only to obstruct arrest on previous outstanding warrants; it was not used to obstruct his arrest for the weapons offenses. The 5th Circuit rejected defendant’s argument. Had defendant’s alias not been discovered, his status as a felon would not have been known, and defendant could have escaped conviction for his present offense. U.S. v. Rogers, 917 F.2d 165 (5th Cir. 1990), overruled on other grounds by U.S. v. Lambert, 984 F.2d 658 (5th Cir. 1993).
5th Circuit finds that defendant who deliberately refused to provide financial information to probation officer obstructed justice. (461) The district court found that defendant deliberately refused to supply information to the probation officer that was readily available to defendant and necessary for the probation office to determine defendant’s ability to pay a fine or restitution. The 5th Circuit upheld the district court’s conclusion that this warranted a two point enhancement for obstruction of justice. U.S. v. Beard, 913 F.2d 193 (5th Cir. 1990).
5th Circuit finds that defendant who failed to notify DEA of whereabouts of co-conspirator obstructed justice. (461) DEA agents found amphetamines in a car owned by defendant and her companion. No charges were brought against defendant, who agreed to cooperate in the investigation. Eleven months later, an arrest warrant issued against defendant’s companion. Defendant was instructed to contact the DEA if she had any contact with her companion. Defendant was found the next day in a bedroom with the companion. Defendant contended that it was improper to enhance her sentence for obstruction of justice because she intended to contact the DEA, but could not do so safely because she was in defendant’s presence most of the evening. The 5th Circuit found that the resolution of this issue was factual, and therefore there need only be sufficient evidence in the record to support the district court’s determination. The 5th Circuit also rejected defendant’s argument that the government’s dismissal of the charge of harboring a fugitive from justice precluded the court from considering her failure to contact the DEA in assessing her offense level under the guidelines. U.S. v. Edwards, 911 F.2d 1031 (5th Cir. 1990).
5th Circuit upholds finding that defendant who withheld information and gave inconsistent testimony obstructed justice. (461) The district court found that defendant had willfully failed to disclose material information concerning his prior criminal history. Moreover, the court concluded that defendant had given inconsistent and unbelievable testimony under oath concerning his involvement in an arson. Therefore, the 5th Circuit found that the district court’s enhancement of defendant’s sentence for obstruction of justice was not clearly erroneous. U.S. v. Paden, 908 F.2d 1229 (5th Cir. 1990).
5th Circuit affirms upward adjustment for obstruction of justice because defendant lied about prior arrest. (461) Defendant failed to tell the probation officer about a prior drug arrest. The district court increased defendant’s offense level by two for obstruction of justice based on a finding that the defendant had intentionally lied about the arrest. Based on that finding, the 5th Circuit upheld the adjustment. U.S. v. Garcia, 902 F.2d 324 (5th Cir. 1990).
5th Circuit holds that obstructive conduct before initiation of proceedings is basis for enhancement. (461) Defendant defrauded various banks of $18,000. Before making his escape he destroyed his bank records and false identification. Upon arrest he gave a false name to authorities and again used a false name when interviewed by a pretrial services officer. Based on these factors, the district court enhanced defendant’s offense level for obstruction of justice pursuant to guideline 3C1.1. Defendant argued on appeal that since the obstructive conduct occurred prior to initiation of judicial proceedings, the district court erred in increasing his offense level pursuant to 3C1.1. The 2nd Circuit disagreed, ruling that nothing in the plain language of the guideline indicated congressional intent to limit application to conduct occurring after initiation of proceedings. Noting that defendant’s attempts to obstruct were unsuccessful, the court held success or failure was irrelevant to applicability of the guidelines. U.S. v. Irabor, 894 F.2d 554 (2nd Cir. 1990).
5th Circuit approves enhancement for obstruction of justice for defendant guilty of bank fraud. (461) Defendant was convicted of bank fraud. He argued that he was punished twice when U.S.S.G. § 3C1.1 covering obstructive conduct was applied in conjunction with the fraud guideline U.S.S.G. § 2F1.1. The 5th Circuit disagreed, ruling that only when the offense is contempt, obstruction of justice, perjury or bribery can obstructive conduct not be used for sentence enhancement. Defendant’s destruction of evidence and giving a false name after arrest were actions not covered by 2F1.1, nor were they substantial elements of the crime of bank fraud to which defendant pled guilty. Thus, defendant was not punished twice for the same conduct. U.S. v. Irabor, 894 F.2d 554 (2nd Cir. 1990).
5th Circuit rules that flight from arrest and attempt to bribe witness constitute obstruction of justice. (461) The offense level of defendant was increased by two points for obstruction of justice. Defendant attempted to flee in a car at the time of arrest and later tried to influence the testimony of a witness through a bribe. Defendant argued that the witness did not know whether the bribe attempt was serious but the 5th Circuit held the evidence supported the conclusion that defendant attempted to influence a witness. The two level increase for obstruction of justice was not error since the presentence report relied on the attempted bribery to conclude that defendant obstructed justice. U.S. v. Pierce, 893 F.2d 669 (5th Cir. 1990).
5th Circuit holds that defendant’s refusal to implicate his associate constituted obstruction of justice. (461) Although a tape recording implicated defendant’s associate as a drug supplier, defendant insisted to the probation officer that his involvement with that individual was strictly legitimate. The district court concluded that he testified falsely and lied to the probation officer, and accordingly increased his offense level by two points for obstruction of justice. The 5th Circuit agreed, noting that although application note 2 to § 3C1.1 provides for evidence to be evaluated in a light “most favorable to the defendant,” the weight of the evidence of obstruction was “firm indeed.” U.S. v. Mayard, 891 F.2d 530 (5th Cir. 1989).
5th Circuit finds tossing bags of marijuana out window and fleeing from Border Patrol constituted obstruction of justice. (461) The Fifth Circuit upheld an enhancement of defendant’s sentence for obstruction of justice based on defendant’s attempt to conceal the marijuana by tossing the bags out the window of his vehicle, and fleeing from the Border Patrol agents. U.S. v. Galvan-Garcia, 872 F.2d 638 (5th Cir. 1989).
5th Circuit rules attempting flight and endangering lives of bystanders and officers constitutes obstruction of justice. (461) The 5th Circuit held that the district court properly enhanced the defendant’s offense level for obstruction of justice under § 3C1.1. When the facts showed that he attempted to flee when a customs officer found 97 pounds of marijuana in his truck at the border, the defendant broke away from the officer who tried to handcuff him, jumped into his truck and tried to speed off. Only the fact that the officer leaped onto his vehicle and caused it to crash into a guard rail, prevented his escape. These actions clearly constituted obstruction of justice. U.S. v. Tellez, 882 F.2d 141 (5th Cir. 1989).
5th Circuit rules hiding victim’s credit card in patrol car justified enhancement for obstruction of justice. (461) While seated in the patrol car after his arrest, defendant concealed the victim’s credit card in the back seat. Later, the police discovered the card and confronted him with it, and he confessed. Despite his confession, the district court enhanced his sentence under § 3C1.1 obstruction of justice. The Fifth Circuit affirmed, finding no error, and also noting that the obstruction precluded a downward adjustment for acceptance of responsibility. U.S. v. Roberson, 872 F.2d 597 (5th Cir. 1989).
5th Circuit holds lying to probation officer and court and threatening witnesses constituted obstruction of justice. (461) The trial court disbelieved the defendant’s statement that a woman named Estela had recruited the aliens and paid him to take them to the United States. The record also reflected that defendant threatened the alien witnesses. Accordingly, the Fifth Circuit upheld a two-level increase in offense level for obstruction of justice. U.S. v. Velasquez-Mercado, 872 F.2d 632 (5th Cir. 1989).
5th Circuit rules defendant obstructed justice by shooting at agent and then throwing the gun away. (461) A drug defendant received a two point increase in offense level under § 3C1.1 for obstruction of justice after the trial court found that he had fired at the Border Patrol agent and then thrown the gun away. The gun was never found. The 5th Circuit approved the increase and affirmed the sentences. Since the finding was based upon the trial court’s refusal to believe the defendant’s testimony, which was contrary to the agent’s, the appellate court was required to defer to that finding. U.S. v. Franco-Torres, 869 F.2d 797 (5th Cir. 1989).
5th Circuit upholds obstruction of justice enhancement for defendant who impeded perjury prosecution. (461) The 5th Circuit upheld a three-level adjustment for substantial interference with the administration of justice and a two-level adjustment for obstruction of justice based upon defendant’s efforts to impede the prosecution of his perjury. Defendant made further false statements to a grand jury, to an FBI investigator, and to his attorney after his trial. The court further agreed that defendant’s role as a member of the police jury, which regulated and controlled the operation of bingo within the local parish, and his appearance before the grand jury in that role, provided a sufficient basis to support a two-level adjustment for abuse of a position of trust. U.S. v. Pattan, 931 F.2d 1035 (5th Cir. 1991).
5th Circuit affirms obstruction enhancement based on defendant’s attempted escape from custody pending trial. (461) The 5th Circuit affirmed an obstruction of justice enhancement based upon defendant’s attempt to escape from custody while awaiting trial. The November 1, 1990 guidelines specify that an attempted escape before trial is an obstruction of justice. Prior to this date, the guidelines did not specifically list attempted escape, however, the listed conduct was not exclusive. Since the administration of justice includes the ability of the government to produce persons in custody for their scheduled court dates, the administration of justice is obstructed when such persons escape from custody. That the sentencing commission now explicitly lists attempted escape as justifying an obstruction enhancement supports this conclusion. U.S. v. Valdiosera-Godinez, 932 F.2d 1093 (5th Cir. 1991).
5th Circuit affirms obstruction enhancement for defendant who hid gun and drug money from arresting officers. (461) When agents attempted to arrest defendant after a drug transaction, she ran away but was captured several minutes later. When apprehended, defendant was no longer in possession of the gun she had been carrying or the money from the drug sale. These were found hidden nearby, under a car and in a spare tire. The 5th Circuit upheld an enhancement for obstruction of justice, rejecting defendant’s argument that the gun was irrelevant to her charge of conspiracy to distribute methamphetamine. The gun was relevant to defendant’s criminal conduct, as it could have been used to “back up” her drug deals. In addition, the drug money given to defendant by undercover agents in the drug deal was very material. Moreover, defendant was properly denied a reduction for acceptance of responsibility, since the guidelines in effect at the time defendant was sentenced precluded a defendant who had obstructed justice from receiving a reduction for acceptance of responsibility. U.S. v. Ainsworth, 932 F.2d 358 (5th Cir. 1991).
5th Circuit upholds obstruction of justice enhancement for defendant who impeded perjury prosecution. (461) The 5th Circuit upheld a three-level adjustment for substantial interference with the administration of justice and a two-level adjustment for obstruction of justice based upon defendant’s efforts to impede the prosecution of his perjury. Defendant made further false statements to a grand jury, to an FBI investigator, and to his attorney after his trial. The court further agreed that defendant’s role as a member of the police jury, which regulated and controlled the operation of bingo within the local parish, and his appearance before the grand jury in that role, provided a sufficient basis to support a two-level adjustment for abuse of a position of trust. U.S. v. Pattan, 931 F.2d 1035 (5th Cir. 1991).
5th Circuit upholds obstruction of justice enhancement for defendant who used an alias. (461) After being stopped by police, defendant gave an alias in order to prevent the police from learning of several outstanding warrants. Defendant was subsequently arrested after the police discovered a gun in the car defendant was driving, and eventually pled guilty to being a felon in possession of a firearm. Defendant’s sentence was enhanced for obstruction of justice based on his use of the alias. He argued that there was an insufficient nexus between the obstruction and the weapons offenses. The alias was used only to obstruct arrest on previous outstanding warrants; it was not used to obstruct his arrest for the weapons offenses. The 5th Circuit rejected defendant’s argument. Had defendant’s alias not been discovered, his status as a felon would not have been known, and defendant could have escaped conviction for his present offense. U.S. v. Rogers, 917 F.2d 165 (5th Cir. 1990), overruled on other grounds by U.S. v. Lambert, 984 F.2d 658 (5th Cir. 1993).
5th Circuit finds that defendant who deliberately refused to provide financial information to probation officer obstructed justice. (461) The district court found that defendant deliberately refused to supply information to the probation officer that was readily available to defendant and necessary for the probation office to determine defendant’s ability to pay a fine or restitution. The 5th Circuit upheld the district court’s conclusion that this warranted a two point enhancement for obstruction of justice. U.S. v. Beard, 913 F.2d 193 (5th Cir. 1990).
5th Circuit finds that defendant who failed to notify DEA of whereabouts of co-conspirator obstructed justice. (461) DEA agents found amphetamines in a car owned by defendant and her companion. No charges were brought against defendant, who agreed to cooperate in the investigation. Eleven months later, an arrest warrant issued against defendant’s companion. Defendant was instructed to contact the DEA if she had any contact with her companion. Defendant was found the next day in a bedroom with the companion. Defendant contended that it was improper to enhance her sentence for obstruction of justice because she intended to contact the DEA, but could not do so safely because she was in defendant’s presence most of the evening. The 5th Circuit found that the resolution of this issue was factual, and therefore there need only be sufficient evidence in the record to support the district court’s determination. The 5th Circuit also rejected defendant’s argument that the government’s dismissal of the charge of harboring a fugitive from justice precluded the court from considering her failure to contact the DEA in assessing her offense level under the guidelines. U.S. v. Edwards, 911 F.2d 1031 (5th Cir. 1990).
5th Circuit upholds finding that defendant who withheld information and gave inconsistent testimony obstructed justice. (461) The district court found that defendant had willfully failed to disclose material information concerning his prior criminal history. Moreover, the court concluded that defendant had given inconsistent and unbelievable testimony under oath concerning his involvement in an arson. Therefore, the 5th Circuit found that the district court’s enhancement of defendant’s sentence for obstruction of justice was not clearly erroneous. U.S. v. Paden, 908 F.2d 1229 (5th Cir. 1990).
5th Circuit affirms upward adjustment for obstruction of justice because defendant lied about prior arrest. (461) Defendant failed to tell the probation officer about a prior drug arrest. The district court increased defendant’s offense level by two for obstruction of justice based on a finding that the defendant had intentionally lied about the arrest. Based on that finding, the 5th Circuit upheld the adjustment. U.S. v. Garcia, 902 F.2d 324 (5th Cir. 1990).
5th Circuit holds that obstructive conduct before initiation of proceedings is basis for enhancement. (461) Defendant defrauded various banks of $18,000. Before making his escape he destroyed his bank records and false identification. Upon arrest he gave a false name to authorities and again used a false name when interviewed by a pretrial services officer. Based on these factors, the district court enhanced defendant’s offense level for obstruction of justice pursuant to guideline 3C1.1. Defendant argued on appeal that since the obstructive conduct occurred prior to initiation of judicial proceedings, the district court erred in increasing his offense level pursuant to 3C1.1. The 2nd Circuit disagreed, ruling that nothing in the plain language of the guideline indicated congressional intent to limit application to conduct occurring after initiation of proceedings. Noting that defendant’s attempts to obstruct were unsuccessful, the court held success or failure was irrelevant to applicability of the guidelines. U.S. v. Irabor, 894 F.2d 554 (2nd Cir. 1990).
5th Circuit approves enhancement for obstruction of justice for defendant guilty of bank fraud. (461) Defendant was convicted of bank fraud. He argued that he was punished twice when U.S.S.G. § 3C1.1 covering obstructive conduct was applied in conjunction with the fraud guideline U.S.S.G. § 2F1.1. The 5th Circuit disagreed, ruling that only when the offense is contempt, obstruction of justice, perjury or bribery can obstructive conduct not be used for sentence enhancement. Defendant’s destruction of evidence and giving a false name after arrest were actions not covered by 2F1.1, nor were they substantial elements of the crime of bank fraud to which defendant pled guilty. Thus, defendant was not punished twice for the same conduct. U.S. v. Irabor, 894 F.2d 554 (2nd Cir. 1990).
5th Circuit rules that flight from arrest and attempt to bribe witness constitute obstruction of justice. (461) The offense level of defendant was increased by two points for obstruction of justice. Defendant attempted to flee in a car at the time of arrest and later tried to influence the testimony of a witness through a bribe. Defendant argued that the witness did not know whether the bribe attempt was serious but the 5th Circuit held the evidence supported the conclusion that defendant attempted to influence a witness. The two level increase for obstruction of justice was not error since the presentence report relied on the attempted bribery to conclude that defendant obstructed justice. U.S. v. Pierce, 893 F.2d 669 (5th Cir. 1990).
5th Circuit holds that defendant’s refusal to implicate his associate constituted obstruction of justice. (461) Although a tape recording implicated defendant’s associate as a drug supplier, defendant insisted to the probation officer that his involvement with that individual was strictly legitimate. The district court concluded that he testified falsely and lied to the probation officer, and accordingly increased his offense level by two points for obstruction of justice. The 5th Circuit agreed, noting that although application note 2 to § 3C1.1 provides for evidence to be evaluated in a light “most favorable to the defendant,” the weight of the evidence of obstruction was “firm indeed.” U.S. v. Mayard, 891 F.2d 530 (5th Cir. 1989).
5th Circuit finds tossing bags of marijuana out window and fleeing from Border Patrol constituted obstruction of justice. (461) The Fifth Circuit upheld an enhancement of defendant’s sentence for obstruction of justice based on defendant’s attempt to conceal the marijuana by tossing the bags out the window of his vehicle, and fleeing from the Border Patrol agents. U.S. v. Galvan-Garcia, 872 F.2d 638 (5th Cir. 1989).
5th Circuit rules attempting flight and endangering lives of bystanders and officers constitutes obstruction of justice. (461) The 5th Circuit held that the district court properly enhanced the defendant’s offense level for obstruction of justice under § 3C1.1. When the facts showed that he attempted to flee when a customs officer found 97 pounds of marijuana in his truck at the border, the defendant broke away from the officer who tried to handcuff him, jumped into his truck and tried to speed off. Only the fact that the officer leaped onto his vehicle and caused it to crash into a guard rail, prevented his escape. These actions clearly constituted obstruction of justice. U.S. v. Tellez, 882 F.2d 141 (5th Cir. 1989).
5th Circuit rules hiding victim’s credit card in patrol car justified enhancement for obstruction of justice. (461) While seated in the patrol car after his arrest, defendant concealed the victim’s credit card in the back seat. Later, the police discovered the card and confronted him with it, and he confessed. Despite his confession, the district court enhanced his sentence under § 3C1.1 obstruction of justice. The Fifth Circuit affirmed, finding no error, and also noting that the obstruction precluded a downward adjustment for acceptance of responsibility. U.S. v. Roberson, 872 F.2d 597 (5th Cir. 1989).
5th Circuit holds lying to probation officer and court and threatening witnesses constituted obstruction of justice. (461) The trial court disbelieved the defendant’s statement that a woman named Estela had recruited the aliens and paid him to take them to the United States. The record also reflected that defendant threatened the alien witnesses. Accordingly, the Fifth Circuit upheld a two-level increase in offense level for obstruction of justice. U.S. v. Velasquez-Mercado, 872 F.2d 632 (5th Cir. 1989).
5th Circuit rules defendant obstructed justice by shooting at agent and then throwing the gun away. (461) A drug defendant received a two point increase in offense level under § 3C1.1 for obstruction of justice after the trial court found that he had fired at the Border Patrol agent and then thrown the gun away. The gun was never found. The 5th Circuit approved the increase and affirmed the sentences. Since the finding was based upon the trial court’s refusal to believe the defendant’s testimony, which was contrary to the agent’s, the appellate court was required to defer to that finding. U.S. v. Franco-Torres, 869 F.2d 797 (5th Cir. 1989).
6th Circuit upholds obstruction increase and denial of acceptance reduction for telling other inmates that co-conspirator was a “snitch.” (461) Defendant pled guilty to drug charges, and was incarcerated pending sentencing. By mistake, he was housed in the same jail pod as St. Onge, a cooperating conspirator. The district court applied an obstruction of justice enhancement, and denied an acceptance-of-responsibility reduction, based on defendant telling other inmates in his jail pod that St. Onge was a “rat” and a “snitch.” The Sixth Circuit affirmed. The district court properly rejected defendant’s assertion that he did not understand that other inmates might physically threaten St. Onge if they knew he was cooperating with the government. Defendant had enough general experience to know that snitches “are not well-received in jails and in prisons.” Moreover, defendant wrote a letter to another conspirator stating that he “made sure that everyone else” in the pod knew that defendant was “a rat and a snitch and now hardly anyone talks to him any more since no one likes a rat in jail.” Defendant’s decision to inform other inmates that St. Onge was cooperating with the government could be reasonably construed as an indirect threat. U.S. v. Kamper, 748 F.3d 728 (6th Cir. 2014).
6th Circuit applied obstruction increase for worksheet altered to conceal bribes. (461) Defendant, a project manager at a county-owned health care provider, facilitated a bribery scheme set up by his boss and an officer of a construction company. The district court found that defendant had obstructed the investigation of the bribery scheme in part by blotting out portions of a worksheet that listed the sums of money paid to defendant and his boss. Defendant contended that there was insufficient evidence that the alterations on the worksheet demonstrated an attempt to obstruct the investigation. The Sixth Circuit disagreed. The officer of the construction company testified that he created the worksheet in order to keep track of the amount he owed defendant and his boss. He also testified that when he handed the sheet over to the defendant, it was without the alterations that it contained when defendant surrendered it to the government later that year. The fact that the sheet came to be marked up while in defendant’s possession supported the district court’s conclusion that it was defendant who was responsible for the alterations. U.S. v. Greco, 734 F.3d 441 (6th Cir. 2013).
6th Circuit finds reckless risk of injury during flight for throwing loaded gun at building. (461) Defendant fired gunshots outside a nightclub, and then fled on foot from police. Section 3C1.2 applies 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.” The Sixth Circuit upheld the enhancement. While fleeing, defendant threw his loaded gun against a building, into an area in the rear of a restaurant, near where employees regularly took the restaurant’s trash. The pursuing police officer testified that other pedestrians were running through that alley shortly after the shooting. As a result, there was a significant possibility that a bystander could have come across the loaded weapon and been hurt, or used it to hurt someone else. U.S. v. Stafford, 721 F.3d 380 (6th Cir. 2013).
6th Circuit approves obstruction increase for testimony that contradicted statements to investigators. (461) Defendant participated in a scheme that solicited money to invest in fictitious real estate deals and in fictitious proceedings to obtain a large inheritance. She challenged an obstruction of justice increase, arguing that what she said at trial was exactly the same as what she said in her interview with the investigating agents. The Sixth Circuit disagreed and upheld the enhancement. Defendant testified that she believed that the real estate transactions she was offering were legitimate and that she did not suggest the land-investment scheme to a co-defendant. This testimony contradicted her statements to the investigating agents that “she came up with the idea of [a] land option because she did not think people would loan them [defendant and her co-defendant] money,” and that “she knew that she misled investors by telling them that they were investing in a land option.” Defendant’s false testimony was material because it went to the heart of her intent to defraud. Her testimony did not appear to be the result of confusion, mistake, or faulty memory. U.S. v. Kennedy, 714 F.3d 951 (6th Cir. 2013).
6th Circuit upholds obstruction increase for false testimony about carjacking. (461) Defendant was convicted of carjacking, and using and carrying a firearm during a crime of violence. The government had argued that the shooting occurred during the course of a robbery and carjacking, while defendant and his co-defendant described the incident as a drug deal gone bad. Defendant also denied having taken the vehicle, and claimed to have fled on foot. He challenged an obstruction of justice enhancement based on his false testimony during trial, contending that the evidence cast too much doubt on the government’s version of events. The Sixth Circuit upheld the enhancement, finding the court properly relied on the evidence available to it, and made the requisite findings of fact. The enhancement was not, as defendant argued, applied to his simple “refusal to admit guilt,” nor did it interfere with his constitutional right to testify. U.S. v. Washington, 702 F.3d 886 (6th Cir. 2012).
6th Circuit applies obstruction increase for perjury at trial. (461) Defendant, a supervisor of security-system contracts for a school district, corruptly solicited and obtained money from a contract of security cameras. The district court applied an obstruction of justice increase based on its finding that defendant committed perjury at trial by continuously referring to the money that he received from the security camera company as a “finder’s fee” for independent consulting work. The Sixth Circuit affirmed. It was not clearly erroneous for the district court to conclude that defendant’s testimony was willfully false rather than the result of confusion or mistake. U.S. v. Watkins, 691 F.3d 841 (6th Cir. 2012).
6th Circuit affirms reckless endangerment increase for passenger in high-speed chase. (461) Defendant was a passenger in a SUV that led police on a high-speed chase after a bank robbery. He challenged a § 3C1.2 reckless endangerment enhancement arguing that the district court failed to find that he—as a passenger—was responsible for the driver’s conduct. The Sixth Circuit rejected the argument, ruling that the district court could infer that the passenger encouraged the reckless driving “based on conduct occurring before, during, or after a high-speed chase.” Here, defendant planned and participated in a robbery that would entail employee witnesses with likely access to alarms. Leaving the bank quickly was therefore likely part of the plan. Defendant drove the first getaway car to the waiting SUV and willingly got in, continuing to participate in the escape. Once the car crashed, defendant continued to flee on foot. All of these facts showed defendant’s desire to evade capture, from which the court could infer that defendant encouraged or supported the reckless driving. There also was evidence that defendant had participated in reckless flights in the past. U.S. v. Byrd, 689 F.3d 636 (6th Cir. 2012).
6th Circuit applies obstruction increase for encouraging co-conspirators to stay quiet. (461) Defendant, the owner of a mortgage company, engaged in a fraud scheme with seven “straw buyers” to purchase homes based on loan applications that misrepresented their financial situation. The Sixth Circuit upheld an obstruction of justice increase because defendant asked the buyers to lie to investigations. One buyer testified that defendant told him “don’t talk to them and said the only thing they can get me on is tax evasion or money laundering or something like that.” Defendant told another straw buyer that if he faced questioning, “we can’t say anything, we have got to stick together.” Although defendant claimed he was only advising the buyers of their constitutional right to remain silent, the district court found that defendant was telling them to impede any ensuing investigation of the mortgages. That finding was not clearly erroneous. U.S. v. Stafford, 639 F.3d 270 (6th Cir. 2011).
6th Circuit upholds obstruction increase for lies at sentencing. (461) Defendant, a lead bank teller, embezzled money from other teller’s cash drawers. He told the probation officer and the FBI agent that he had obtained the vault codes during audits of the other teller’s cash drawers. During his plea hearing, he did not object to the government’s characterization of the fact that he obtained vault codes during teller audits. He also did not object to that description in the PSR. However, during sentencing, when the court was considering an abuse of trust increase, defendant testified that he obtained the vault codes by simply following other tellers when they entered the vault and watching them enter their codes. He denied obtaining any combinations while performing audits. The Sixth Circuit held that defendant’s inconsistent testimony warranted an obstruction of justice enhancement. U.S. v. Sweet, 630 F.3d 477 (6th Cir. 2011).
6th Circuit finds sufficient evidence to support finding that defendant knew officers were pursuing him. (461) Under § 3C1.2, a defendant is subject to a two-level enhancement if he recklessly creates a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. Police officers attempted to arrest defendant as he drove away from a methamphetamine lab. An officer in an unmarked vehicle following defendant’s truck activated a blue strobe light on his dashboard and a siren. Defendant slowed briefly but did not stop. Another officer in an unmarked car also activated a blue strobe light on his dashboard and pulled alongside defendant’s truck. Defendant’s truck veered into the second officer’s car. At defendant’s sentencing for drug-trafficking offenses, the district court enhanced defendant’s sentence under § 3C1.2. The Sixth Circuit affirmed, finding the evidence sufficient to show that defendant knew police officers were trying to stop him. U.S. v. Woods, 604 F.3d 286 (6th Cir. 2010).
6th Circuit upholds obstruction increase for perjury at trial. (461) Defendant was convicted of possessing child pornography. The district court found that defendant perjured himself giving his version of events, and applied an obstruction of justice enhancement. The Sixth Circuit affirmed the enhancement. Defendant’s claim that his testimony was truthful and the officers were lying was simply a reassertion of his insistence below that he testified truthfully despite the express holding that he did not. This assertion did not demonstrate clear error. U.S. v. Paull, 551 F.3d 516 (6th Cir. 2009).
6th Circuit upholds obstruction enhancement based on defendant’s perjury at trial. (461) Defendant was convicted of mail fraud, worker’s compensation fraud, and making false statements to federal agents. The district court applied an obstruction of justice enhancement because it found defendant committed perjury at trial. The Sixth Circuit affirmed. The court identified the testimony (testimony in which defendant claimed that his supervisor refused to offer him a limited-service job), and then made a finding, albeit brief, that encompassed the factual predicates for perjury. Defendant’s version of the conversation differed substantially from his supervisor’s version, and led to the inference his false testimony was willful. It was also clear that the subject matter was material. The jury had to credit the supervisor’s testimony and reject defendant’s in order to convict. U.S. v. Boring, 557 F.3d 707 (6th Cir. 2008).
6th Circuit upholds obstruction increase for encouraging others to provide false document to investigators. (461) Defendant, a jail administrator, was convicted of civil rights violations related to an assault against a jail prisoner. The district court found that he obstructed justice by encouraging two inmates involved in the assault to submit a false written statement about the assault. Defendant challenged a §3C1.1 obstruction of justice increase on the grounds that the evidence did not meet the heightened standard of willfulness required by U.S. v. Dunnigan, 507 U.S. 87 (1993). The Sixth Circuit held that Dunnigan does not apply to an enhancement based upon producing false documents during an investigation; moreover, there was ample evidence in the record to support the adjustment. Defendant procured the false statement from the inmates to hinder the FBI’s investigation of the victim’s beating. One inmate testified that defendant specifically asked him to write the statement, and told the inmate to falsely state that the victim provoked the beating. Defendant’s active encouragement of the false statement supported the obstruction increase. U.S. v. Gilpatrick, 548 F.3d 479 (6th Cir. 2008).
6th Circuit holds that defendant’s egregious conduct supported sentence even if obstruction increase was improper. (461) Defendant pled guilty to distributing heroin resulting in serious bodily harm or death. After the appellate court found the record insufficient to support an obstruction of justice increase, and remanded, the district court imposed the same sentence, again finding that defendant had obstructed justice. The judge also stated that he would have imposed the same 300-month sentence based on defendant’s egregious conduct, regardless of any accusation of obstruction. The Sixth Circuit affirmed, without addressing the merits of the obstruction issue. The alternate grounds cited by the district court, defendant’s egregious conduct on the night of his crime, supported the sentence. Defendant and an associate had sex with the victim while she was unconscious, and did not immediately call 911 or alert the victim’s stepfather even after observing the victim was not breathing. When defendant did seek medical attention for the victim, it was too late and she died. U.S. v. Obi, 542 F.3d 148 (6th Cir. 2008).
6th Circuit affirms increase for reckless endangerment during flight. (461) An agent with the Tennessee Bureau of Investigation positioned his unmarked vehicle on a rural dirt road leading to defendant’s house. When defendant saw the agent, he tried to go around the agent’s vehicle, but struck it as his car came down the embankment. When defendant’s car “grabbed” the agent’s car and began to slowly drag it, the agent jumped into his vehicle because he feared for his safety. The vehicles then disengaged, and defendant left the scene at a high rate of speed. The Sixth Circuit upheld a § 3C1.2 increase for reckless endangerment during flight, adopting the test in U.S. v. Southerland, 405 F.3d 263 (5th Cir. 2005). When applying § 3C1.2, that test requires the district court to find a “nexus” between the offense of conviction and the reckless endangerment during flight. Causation is not required—the underlying offense need not cause either the reckless endangerment or the flight itself. The Southerland test was satisfied here. Defendant created a substantial risk of death because his actions could have forced the agent’s car to hit the agent. He knew he was fleeing from a law enforcement officer because the officer was wearing a vest clearly marked “POLICE.” Finally, there was a geographic proximity between the location of the meth conspiracy and the location of the reckless flight. U.S. v. Dial, 524 F.3d 783 (6th Cir. 2008).
6th Circuit holds that obstruction enhancement was not double counting for defendant convicted of making false statements. (461) Defendant was convicted of health care fraud and making false statement regarding health care matters. She argued that a two-level obstruction of justice enhancement constituted double counting because she was already convicted of an offense relating to her obstructive conduct – lying to government agents. The Sixth Circuit found no double counting problem. The obstruction increase was applied to the three counts that related to defendant’s conviction for health care fraud. The misrepresentations made to officers with respect to the health care fraud investigation was behavior by defendant that subjected her to the obstruction increase, but that behavior was not duplicative of the factual allegations involved in the health care fraud. U.S. v. Moon, 513 F.3d 527 (6th Cir. 2008).
6th Circuit finds failure to respond to summons was obstruction of justice in tax case. (461) Defendant told IRS agents that he had not signed or filed his tax returns and did not know who had signed them. He then failed to appear on a summons to provide fingerprint and handwriting exemplars. The Sixth Circuit affirmed an obstruction of justice increase based on the combination of defendant’s false denials to investigators and his failure to appear pursuant to the summons. The panel rejected defendant’s argument that Notes 5(b) and 4(g) required his conduct to have “significantly obstructed or impeded” the government’s investigation. Notes 5(b) and 4(g) are relevant only where an obstruction increase is based on false statements made to investigators while not under oath. Here, the enhancement was also based on the fact that defendant failed to appear to provide handwriting exemplars and fingerprints pursuant to a summons. Because this did not fit within § 3C1.1’s application notes, the general provisions governed, and the district court properly enhanced defendant’s sentence for obstruction of justice. U.S. v. Carter, 510 F.3d 593 (6th Cir. 2007).
6th Circuit rules obstruction increase for escape did not violate extradition treaty. (461) Defendant was convicted of drug charges. Prior to sentencing, he escaped and fled to Brazil. He was apprehended in Brazil and extradited on the drug convictions. He argued that an obstruction of justice increase based on his escape violated the extradition treaty because it constituted “punishment” for the escape. The extradition treaty at issue contained a “Rule of Speciality” provision, which provided that defendant would not be punished for any offense upon which he was not extradited. The Sixth Circuit held that the obstruction enhancement was not “punishment” for the escape, and therefore did not violate the extradition treaty. U.S. v. Robinson, 503 F. 3d 522 (6th Cir. 2007).
6th Circuit applies obstruction increase where there was separate count of obstructive conduct. (461) Defendant was involved in a scheme to file fraudulent tax refunds. When later interviewed by IRS officials, he denied any involvement in the scheme. Defendant was convicted of filing false claims against the U.S., conspiracy to defraud the U.S., and false statements. The district court applied a two-level obstruction of justice increase under § 3C1.1 to the conspiracy and false claims convictions. The Sixth Circuit affirmed the increase. Note 4 to § 3C1.1 says that the enhancement applies “to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct.” Here, in addition to his underlying offenses of false claims and conspiracy to defraud, defendant pled guilty to exactly such obstructive conduct: namely, two counts of making false statements to a federal official. U.S. v. Davist, 481 F.3d 425 (6th Cir. 2007).
6th Circuit holds that high speed chase constituted “reckless endangerment during flight.” (461) Defendant received a two-point enhancement for “reckless endangerment during flight” under § 3C1.2 based on a high-speed chase after a bank robbery. The sentencing judge based his findings on a videotape of the police chasing defendant’s vehicle, noting that the officer said the speed was in excess of 90 miles per hour and that the judge observed that the road was wet, the car crossed the double yellow line on several occasions, and at least one car had to get out of defendant’s way as defendant abruptly turned right with his left blinker flashing. The Sixth Circuit ruled that these findings were sufficient to support a finding of reckless endangerment. U.S. v. Hazelwood, 398 F.3d 792 (6th Cir. 2005).
6th Circuit affirms obstruction increase for misrepresenting nationality to probation officer. (461) The district court applied an obstruction of justice increase based upon its finding that defendant misrepresented his citizenship to a probation officer during the presentence investigation. Defendant stated that he was a citizen of Bermuda until he became a naturalized U.S. citizen in 1991. He then recanted this claim when the probation officer confronted him with a 1993 documents in which he acknowledged that he was an alien who was being released from the custody of the INS until he could be deported. Upon being shown this document, defendant changed his story and claimed to be a citizen of Bermuda. However, defendant’s true citizenship remained a mystery. The Sixth Circuit found no error in the district court’s finding that defendant provided materially false information to the probation officer, thereby warranting the obstruction of justice increase. The fact that the statement was made and recanted within a single presentence investigation interview did not make the statement immaterial. U.S. v. Bruce, 396 F.3d 697 (6th Cir. 2005), vacated in part on rehearing on other grounds by U.S. v. Bruce, 405 F.3d 1034 (6th Cir. 2005).
6th Circuit says denial of acceptance reduction and imposition of obstruction increase not double counting. (461) Defendant argued that the district court engaged in impermissible “double counting” by citing his escape from jail as a basis both for (i) denying a two-level reduction for acceptance of responsibility under § 3E1.1, and (2) applying a two-level enhancement for obstruction of justice under § 3C1.1. However, the Sentencing Guidelines not only permit the “double counting” raised by defendant here, they dictate that this is the proper result in all but the most “extraordinary” cases. See Note 4(e) to § 3E1.1 (obstruction under § 3C1.1 ordinarily indicates that a defendant has not accepted responsibility for his criminal conduct; both adjustments apply only in “extraordinary” cases). While the Sixth Circuit found no legal problem in the enhancement under § 3C1.1 and the denial of a downward adjustment under § 3E1.1, the panel nonetheless found that the court did not make the requisite factual findings in support of its application of the guidelines, and remanded. The district court’s adoption of the PSR, without making findings on all controverted issues, violated Fed. R. Crim. P. 32(c)(1). U.S. v. Robinson, 390 F.3d 853 (6th Cir. 2004).
6th Circuit applies obstruction increase for threats to kill victim if she reported crime. (461) Defendant and an accomplice kidnapped a postal worker, held her captive for four hours, and took turns sexually assaulting her. Prior to the victim’s release, defendant found an insurance card in the glove box of her vehicle, and told her that he had her address and would “send someone to kill her” if she told anyone about the incident. He also repeatedly stated that he ought to kill her because she had seen his and his accomplice’s face. The Sixth Circuit affirmed an obstruction of justice increase, agreeing that these threats fell squarely into the examples given in Note 4(a) – specifically that defendant threatened the witness directly. The court did not err in finding that defendant’s threats were made in the hope that the victim would not report the crime to police, and thus constituted an obstruction of justice. Moreover, the threats were made at a time when defendant knew or should have known that an investigation had probably commenced. When the victim was abducted, she was the only employee at the post office. Moreover, the accomplice told a postal inspector that they learned from his sister before the victim’s release that the police were looking for them. U.S. v. Cole, 359 F.3d 420 (6th Cir. 2004).
6th Circuit finds extradition treaty was not violated by obstruction increase based on failure to appear. (461) Defendant was arraigned on drug charges after being extradited from the Dominican Republic. He argued that his receipt of an obstruction of justice increase under § 3C1.1 based on his failure to appear violated the extradition treat with the Dominican Republic – i.e. the government’s promise to prosecute defendant only for the drug offense entailed the implicit promise that it would also not punish him for the failure to appear offense. The Sixth Circuit held that the obstruction increase was not punishment for the failure to appear offense, so it did not violate any implicit promise against such punishment. See Witte v. U.S., 515 U.S. 389 (1995) (consideration of related criminal conduct to enhance a defendant’s sentence for a separate crime does not constitute punishment for that conduct). U.S. v. Garrido-Santana, 360 F.3d 565 (6th Cir. 2004).
6th Circuit applies obstruction increase for conduct connected to related offense. (461) Defendant and his family were involved in “flipping” the VIN plates of wrecked cars for those of stolen cars. While investigating this operation, officers discovered numerous firearms and ammunition in defendant’s house, and he was convicted of being a felon in possession of a firearm. The district court applied an obstruction of justice increase based on defendant telling a co-conspirator to move a car so that the police would not find evidence of VIN-flipping. Under the 1998 version of § 3C1.1, the obstruction must occur during the investigation, prosecution, or sentencing of the “instant offense.” In U.S. v. Nesbitt, 90 F.3d 164 (6th Cir. 1996), the Sixth Circuit held that the enhancement could be upheld if the evidence of obstruction was “sufficiently related” to the offense of conviction. The Sixth Circuit held that the district court properly relied on Nesbitt to apply the obstruction increase. Defendant’s action was intended to impede the same government investigation that eventually resulted in his plea bargain and conviction. It was clearly related to the VIN-flipping charge that the government dropped as part of the plea bargain. Although all proceedings resulting from the same investigation will not necessarily be related for purposes of applying the pre-amendment version of § 3C1.1, the weapons charge was sufficiently related to the VIN-flipping operation. U.S. v. Burke, 345 F.3d 416 (6th Cir. 2003).
6th Circuit rejects obstruction increase for threat to kill victim if she reported defendant. (461) 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 affirms obstruction increase for trial perjury. (461) Defendant assaulted a fellow prison inmate with a razor blade. Defendant and the victim both testified at trial as to their version of the events. The jury believed the victim, and defendant was convicted of assault resulting in serious bodily injury. The Sixth Circuit affirmed an obstruction of justice based on defendant’s perjury at trial. The district court took great pains at the sentencing hearing to lay out his reasons for believing that defendant had perjured himself as required by U.S. v. Dunnigan, 507 U.S. 87 (1993). U.S. v. Camejo, 333 F.3d 669 (6th Cir. 2003).
6th Circuit upholds obstruction increase despite defendant’s claim of diminished capacity. (461) Defendant received an obstruction of justice increase based on lies he told the district court about his employment status and child support history in order to persuade the court to continue his pretrial release. Defendant argued that the court erred in failing to consider the evidence of his diminished psychological capacity, and that he did not have the mental capacity to engage in such willful conduct. He presented a report by a doctor who opined that defendant’s capacity to appreciate what he was doing in a responsible manner was diminished. However, the district court witnessed defendant’s testimony firsthand, and was in the best position to determine the “willfulness” of defendant lies, despite his claim of diminished capacity. The Sixth Circuit affirmed the application of the obstruction increase. U.S. v. Turner, 324 F.3d 456 (6th Cir. 2003).
6th Circuit holds that obstruction increase was not double jeopardy despite contempt conviction. (461) Defendant argued that an obstruction of justice increase constituted double counting because he was also convicted of contempt for the same conduct. The Sixth Circuit disagreed, finding that the contempt charge and the sentencing enhancement were based on different conduct. The sentencing enhancement was justified at least on part on defendant’s lying to the district court at his bail hearings. On the other hand, the contempt charge was based on defendant’s disobeying the court’s orders by providing false information to the pretrial services officer and by violating various conditions of his bond. Defendant’s conduct that formed the basis for the contempt charge, therefore, had nothing to do with the conduct that led to his sentencing enhancement. U.S. v. Turner, 324 F.3d 456 (6th Cir. 2003).
6th Circuit holds that attempt to suborn witness perjury constituted “further obstruction.” (461) Prior to sentencing on robbery charges, defendant submitted several false letters of reference in order to influence the judge to grant him a downward departure. After Kulberg, the mother of defendant’s children, notified the court that a fraudulent letter had been submitted in her name, defendant was charged with obstruction of justice. After his arrest on obstruction charges, defendant approached Kulberg and requested that she advise the FBI that she had consented to permit defendant to write the letter he had forged. Based on his attempt to suborn perjury of a witness, he received an obstruction of justice increase. Where a defendant has been convicted of an obstruction offense, the courts may apply a § 3C1.1 increase only when “a significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself….” The Sixth Circuit affirmed the increase, agreeing that defendant’s efforts to convince Kulberg to foreswear her statements clearly qualified as a “further obstruction” under § 3C1.1. U.S. v. Roche, 321 F.3d 607 (6th Cir. 2003).
6th Circuit applies obstruction increase for deleting computer files to hide them from probation officer. (461) Defendant admitted that after his probation officer inquired about his use of the computer, he deleted 50 to 100 images of child pornography in order to avoid detection by his probation officer. Destruction of material evidence constitutes obstruction of justice under U.S.S.G. § 3C1.1. Defendant argued that because he deleted these files prior to the involvement of the Sheriff’s Department, his actions were beyond the reach of § 3C1.1. The Sixth Circuit upheld defendant’s receipt of an obstruction increase, holding that an investigation into an offense is within the scope of § 3C1.1 where it “involve[s] some type of law enforcement or other action by government employees acting within the course and in furtherance of their official duties.” U.S. v. Kirkland, 985 F.3d 535, 538 (11th Cir. 1993). The probation officer’s investigation into whether defendant was using his computer to receive or distribute child pornography was within the course and scope of his official duty as a state probation officer. Defendant’s admission that he deleted child pornography so that the probation officer would not find it was therefore sufficient to support the obstruction increase. U.S. v. Boyd, 312 F.3d 213 (6th Cir. 2002).
6th Circuit says obstruction increase would not have resulted in improper double counting. (461) Defendants were convicted of conspiracy to defraud the United States by obstructing the functions of the Internal Revenue Service, in violation of 18 U.S.C. § 371. The government argued that the defendants’ sentences should have been enhanced for false testimony they gave in grand jury proceedings. The district court refused to apply the enhancement, on the ground that it would be improper double counting, because the false statements to the grand jury were part of the conspiracy to defraud the government. The Sixth Circuit initially agreed, but on rehearing, the panel held that the obstruction increase would not have been improper double counting. The object of the conspiracy was to evade taxes, and the court saw “no reason to conclude that the guidelines take into consideration a defendant’s obstruction of the administration of justice in furtherance of the fraudulent scheme, such as giving false testimony before the grand jury or bribing a witness U.S. v. Sabino, 307 F.3d 446 (6th Cir. 2002).
6th Circuit holds that perjury findings were sufficient to support obstruction increase. (461) In finding that defendant committed perjury, the district court noted that defendant “took the stand and denied not just his guilt or innocence, but denied virtually every single fact that other witnesses testified to. He denied any relationship with Mr. Strollo. He denied every taking any money from Mr. Strollo or through Mr. Garono. He denied the activities of the sheriff’s office with respect to raiding or not raiding certain institutions in a way that would benefit Mr. Strollo….” The Sixth Circuit held that the district court’s perjury findings were sufficient under U.S. v. Dunnigan, 507 U.S. 87 (1993) to support an obstruction of justice increase. First, the court sufficiently identified the portion of defendant’s testimony it found were perjurious. The court found that defendant perjured himself with regard to: (1) denying having any relationship with Strollo; (2) taking money from Strollo and Garono; and (3) selectively enforcing the gambling laws in favor of Strollo. Furthermore, the testimony identified by the court was material, because without proof of a relationship between Strollo and defendant, there was no factual predicate for finding that defendant took bribes from Strollo. There was ample evidence that contradicted defendant’s testimony on these points, so the court could conclude that defendant’s testimony was false. U.S. v. Chance, 306 F.3d 356 (6th Cir. 2002).
6th Circuit holds that defendant’s failure to appear as required by subpoena showed willful obstruction. (461) Defendant was served with a federal grand jury subpoena ordering him to submit handwriting exemplars and to permit photographs to be taken of his tattoos, which investigators believed would help establish his affiliation with the Mexican Mafia. After consultation with his attorney, defendant never appeared before the grand jury. He then was charged with and pled guilty to drug and firearms charges. The district court applied an obstruction of justice increase as a result of defendant’s failure to appear before the grand jury. Defendant challenged the increase, arguing that the government did not establish that his failure to comply with the subpoena was willful. The Sixth Circuit held that when a defendant has provided no adequate justification as to why he was unable to comply with a grand jury subpoena, the defendant’s failure to appear is, by itself, sufficient to satisfy the government’s burden that defendant willfully obstructed or impeded the administration of justice. Defendant conceded that he was properly served with the subpoena and that he failed to appear. Therefore, the obstruction increase was proper. U.S. v. Dunham, 295 F.3d 605 (6th Cir. 2002).
6th Circuit affirms obstruction increase based on perjury during first trial. (461) Near the end of defendant’s first trial, the district court declared a mistrial based on ineffective assistance of counsel. Defendant was tried a second time on the same charges, and a jury found him guilty. The district court imposed an obstruction of justice increase based on defendant’s perjury at his first trial. Defendant argued that this perjury should not be considered because the first proceeding culminated in a mistrial declared on account of ineffective assistance of counsel. The Sixth Circuit affirmed the increase, since defendant’s culpability was not lessened by his counsel’s ineffective assistance. Defendant’s first and second trials were part of the same prosecution for purposes of § 3C1.1. See U.S. v. Stout, 936 F.2d 433 (9th Cir. 1991). U.S. v. Hover, 293 F.3d 930 (6th Cir. 2002).
6th Circuit affirms obstruction increase for quitclaims executed after defendant learned of investigation. (461) The government sought an obstruction of justice increase because defendant quitclaimed certain properties to herself and her husband as tenants by the entirely in order to thwart potential forfeiture of those properties to the government. Federal agents had executed 17 search warrants at defendant’s company on May 11, 1993, beginning an in-depth investigation into the company’s food program. In August 1993, an administrative law judge ordered the company be taken off the advanced pay program for violations of department regulations. In September 1993, the U.S. filed affidavits of interest on the company’s properties, which functioned as liens to protect a potential forfeiture claim by the government. Then, in November, defendant executed the quitclaim deeds, thus divesting her sole personal ownership in the properties and making forfeiture more difficult in the event of a conviction. These events, taken together with defendant’s knowledge as an attorney, suggested that defendant became aware of the investigation and took steps to obstruct the efforts of the government. The Sixth Circuit ruled that the district court did not commit clear error in finding obstruction of justice. The government’s theory, which the district court accepted, was that the execution of the search warrants put defendant on notice of her impending indictment, and the administrative ruling on the company’s participation in the advance pay program further alerted her to that possibility. U.S. v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002).
6th Circuit affirms obstruction increase for perjury. (461) The district court found that defendant lied under oath when he testified that: (1) he did not think the seedlings were marijuana; (2) he did not even know what marijuana looked like; (3) he was “throwing out” the pesticide when he sprinkled it on the marijuana plants; (4) specifically, he was not growing marijuana. The Sixth Circuit affirmed an obstruction of justice increase based on these findings. Given the evidence before the district court, these findings were not clear error. These findings necessarily led to the conclusion that defendant committed perjury. Gibson v. U.S., 271 F.3d 247 (6th Cir. 2001), overruled on other grounds by U.S. v. Leachman, 309 F.3d 377 (6th Cir. 2002).
6th Circuit finds error in filing memo and order after notice of appeal was harmless. (461) The district court imposed an obstruction of justice enhancement based on defendants’ false testimony at trial. They argued that the district court’s memorandum and order making the findings required by § 3C1.1 was without effect because it was issued after defendants’ filed a timely notice of appeal and was not timely served on defendants’ counsel. Even assuming this was correct, the Sixth Circuit found any error by the district court was harmless. The information upon which the court ultimately based its decision to apply the § 3C1.1 enhancement was clearly set forth in the PSRs. At sentencing, the district court adopted the factual findings as suggested by the probation office in the PSRs and thereby made defendants aware of the basis for its application of the two-level enhancement, overruling defendant’s objections on the record. Further, the record at the time of sentencing was replete with examples of the obstructive conduct, including a detailed explanation of the perjury and the transfer of assets outlined in the brief submitted by the government. This was not a situation in which the trial court altered the sentence or otherwise materially changed the record after the notice of appeal was filed. The memorandum and order merely supplemented the existing record with findings that were consistent with the judge’s previous rulings. U.S. v. Logan, 250 F.3d 350 (6th Cir. 2001).
6th Circuit upholds obstruction increase for escape from state before federal investigation had begun. (461) Defendant was arrested by state authorities for felony rape and kidnapping charges. Defendant escaped from state custody on May 16. On June 18, in connection with the same kidnappings, a federal grand jury indicted defendant on two counts of interstate kidnapping of juveniles for the purpose of engaging in sexually explicit conduct. Defendant was apprehended and pled guilty to the federal indictment. He challenged a § 3C1.1 obstruction of justice increase based on his escape from state custody, arguing that it did not occur “during the course of the investigation, prosecution, or sentencing of the instant offense of conviction.” The Sixth Circuit upheld the enhancement, holding that obstructive conduct occurring during the state investigation or prosecution, and preceding federal involvement, triggers the enhancement even if the federal charge is not identical to the state charge, so long as the underlying behavior is connected to both offenses. Here, both sets of charges against defendant were based on the same underlying activity—the kidnappings and rapes. Therefore, the obstructive conduct, the escape, was connected to the current federal offense, even though it preceded the federal indictment. U.S. v. Roberts, 243 F.3d 235 (6th Cir. 2001).
6th Circuit defers to district court’s credibility finding on perjury. (461) Defendant argued that the district court found that he committed perjury solely because he was found guilty of the charged offenses, and made no factual findings that his false testimony “created a willful impediment to justice.” The Sixth Circuit found that the record did not support this argument. The district court made specific findings for each element of perjury and met its burden under U.S. v. Dunnigan, 507 U.S. 87 (1993) and U.S. v. Sassanelli, 118 F.3d 495 (6th Cir. 1997). The record reflected the court’s reliance on the conflict between defendant’s tape-recorded comments where he admitted making the bomb and his trial testimony where he denied making the bomb. Although defendant attempted to explain away the conflicting statements at trial, the appellate court neither heard nor observed the witness at trial. For this reason, an appellate court will not typically review a credibility finding, as those seeing and hearing witnesses are in the best position to make that judgment. U.S. v. Mise, 240 F.3d 527 (6th Cir. 2001).
6th Circuit says correct belief that investigation is “probably underway” supports obstruction increase. (461) In 1997, authorities found defendant’s nickname, “wavejump,” in a list of users of a private Internet chat channel that traded in child pornography. In August 1998, authorities first identified defendant as “wavejump” and in September 1998 he was arrested. One of his victims told police that sometime during the summer of 1998, defendant had threatened to kill her if she told anyone what he had done to her. Defendant challenged a § 3C1.1 enhancement, arguing that his obstructive conduct did not occur during the course of the investigation of the instant offense. The Sixth Circuit rejected this, since agents were investigating “wavejump” as early as July 1998. However, the question remained as to whether he had sufficient knowledge of the investigation for his conduct to be “willful.” The panel held that the obstruction adjustment applies where a defendant engages in obstructive conduct with knowledge that he or she is the subject of an investigation or with the “correct belief” that an investigation is “probably underway.” Defendant’s chat room comment, after learning of the arrest of a cohort, “God, I hope he don’t have any of my privates on there,” made it clear that he knew in July 1998 that he probably was under investigation. U.S. v. Brown, 237 F.3d 625 (6th Cir. 2000).
6th Circuit affirms obstruction increase for assault on government witness. (461) The district court applied an obstruction of justice enhancement in part because it found that defendant assaulted co-defendant Quinones in an attempt to deter his cooperation with the government. Quinones testified that defendant had threatened him and physically assaulted him at a church service in jail for being a “snitch.” Quinones subsequently withdrew his agreement to cooperate with authorities. Defendant admitted having attacked Quinones at the jail church service. However, he disavowed any intent to deter Quinones from cooperating with the government. Quinones’s contrary impression of defendant’s motives presented a question of credibility for the sentencing court to resolve. The district court determined, after evaluating the testimony of both men, that defendant had used threats of violence and had physically assaulted Quinones to force him to withdraw from his agreement to cooperate with authorities. The Sixth Circuit affirmed the obstruction increase, ruling defendant failed to show that the court’s determination was clearly erroneous. U.S. v. Hurst, 228 F.3d 751 (6th Cir. 2000).
6th Circuit applies obstruction increase for attempt to persuade owner to report getaway car as stolen. (461) Across the street from where defendant was arrested on bank robbery charges, police recovered the getaway car. The car was registered to Simmons. Later that same day, defendant made a telephone call from jail to Simmons and asked Simmons to report that the car had been stolen. Simmons refused, and instead reported the phone call to the police. The Sixth Circuit applied an obstruction of justice enhancement based on defendant’s unsuccessful attempt to persuade Simmons to report the car as stolen. The fact that defendant was unsuccessful was irrelevant. Note 4(d) says that the enhancement is warranted for attempting to direct a person to destroy or conceal evidence. The attempt was not contemporaneous with arrest. See note 4(d) (certain conduct occurring contemporaneously with arrest does not warrant enhancement). Defendant made the call six hours after his arrest. U.S. v. Waldon, 206 F.3d 597 (6th Cir. 2000).
6th Circuit finds obstruction even though assumed name did not affect criminal history. (461) Defendant pled guilty before a magistrate judge to failing to report to prison. Several months later, the government learned that defendant had not been truthful with the probation office and the magistrate judge about his legal name and criminal history. Under his birth name, defendant had a lengthy criminal record dating back to 1959. Defendant argued that his use of an assumed name was not material because the felony convictions were too old to be counted in his criminal history. The Sixth Circuit nonetheless affirmed an obstruction of justice enhancement based on defendant’s use of the assumed name. Defendant’s deliberate nondisclosures misled both the probation office and the court. The fact that the offenses committed under his birth name were too old to qualify for his criminal history was not determinative, because the information could well have influenced or affected the district court’s determination of defendant’s sentence within the appropriate guideline range. U.S. v. Wilson, 197 F.3d 782 (6th Cir. 1999).
6th Circuit upholds reckless endangerment increase despite denial of reduction for same conduct. (461) The escape guideline, § 2P1.1(b)(3), mandates a four-level decrease in offense level if the defendant escaped from a halfway house. This reduction is not applicable if during the escape the defendant committed an offense punishable by one year or more of imprisonment. The district court did not apply the reduction, finding that defendant assaulted state and federal officers during his escape from a halfway house. The court also applied a § 3C1.2 increase 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.” Note 1 says this enhancement is not applicable where the court has already applied an equivalent or greater increase based on the same conduct. The Sixth Circuit held that the reckless endangerment increase was not improper even though the court had already refused to apply the four-level reduction based on the same conduct. Note 4 to § 1B1.1 says that “[a]bsent an instruction to the contrary, the adjustments from different guideline sections are applied cumulatively (added together).” Note 1 to § 3C1.2 does not instruct courts to the contrary. Although the district court did not apply the reduction for escape from a halfway house, the court did not increase defendant’s offense level above the base offense level. U.S. v. Durham, 178 F.3d 796 (6th Cir. 1999).
6th Circuit upholds obstruction enhancement where judge identified perjurious statements. (461) Defendant was convicted of willfully failing to file income tax returns for 1991 and 1992, and presenting false, fictitious, or fraudulent tax-refund claims for 1989-1991. Defendant claimed after attending various lectures and studying the tax laws that he had concluded in good faith that he was not within the jurisdiction of the federal government and that the income tax laws did not apply to him. He testified that because he was a citizen of the “Republic of Michigan,” but not a general citizen of the United States, he was properly classified as a nonresident alien. The Sixth Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury. The district court found the “entire thrust” of defendant’s testimony was false, and defendant could not have in “any sort of good faith” believed what he was telling the jury. The district court has the unique opportunity to witness the defendant’s testimony and evaluate his or her credibility. Because the judge specified which portion of defendant’s statements he believed were perjurious, and because there was supporting evidence introduced by the government, the enhancement was not erroneous. U.S. v. Nash, 175 F.3d 429 (6th Cir. 1999).
6th Circuit applies obstruction enhancement for perjury about drugs. (461) The district court imposed an obstruction of justice enhancement, finding that defendant perjured himself when he testified that he found the drugs involved in the offense of conviction. The Sixth Circuit affirmed the § 3C1.1 enhancement. The district court properly determined that this testimony was material, having been calculated to affect the court’s decision on what sentence to impose within the guideline range. U.S. v. Gilbert, 173 F.3d 974 (6th Cir. 1999).
6th Circuit holds that handcuffed defendant who fled from patrol car “escaped from custody.” (461) Police found defendant hiding near a pawn shop he had just burglarized. They read him his rights, handcuffed him, and placed him in a patrol car. While police continued to investigate, defendant escaped. Police found him about four hours later. The Sixth Circuit affirmed an obstruction of justice enhancement for willfully and deliberately escaping from “custody.” Once a person is handcuffed, read his Miranda rights, and placed in a patrol car, that person would have no reasonable basis to believe that he was free to leave the scene. This was not the instinctive flight from arresting authorities described in Note 4(d). The court disagreed with U.S. v. Draves, 103 F.3d 1328 (7th Cir. 1997), a case in which Seventh Circuit rejected a § 3C1.1 enhancement for a defendant who fled after being handcuffed and placed in a patrol car. If a reasonable person would no longer feel free to leave, and he then flees from the police, he has “escaped from custody.” Moreover, Draves was distinguishable. Unlike Draves, defendant was not only handcuffed and placed in the patrol car, but he was also advised of his rights. This made it even less reasonable for him to assume that he was free to leave the scene. U.S. v. McDonald, 165 F.3d 1032 (6th Cir. 1999), abrogated on other grounds, U.S. v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002).
6th Circuit applies obstruction enhancement for directing cousin to destroy evidence. (461) Defendant was arrested at his cousin’s residence. Later that day at the police station, defendant contacted his cousin by telephone and directed her to destroy incriminating evidence at the residence. The Sixth Circuit upheld an obstruction of justice enhancement based on defendant’s attempt to have his cousin destroy evidence at her house after he had been arrested. The enhancement was not based on defendant’s perjury at sentencing where he denied directing his cousin to destroy evidence. Thus, the court was not required to identify the specific portions of his testimony that were perjured. The court was presented with conflicting accounts of whether defendant did or did not attempt to obstruct justice, and determined that the cousin’s account was more credible. U.S. v. Shutters, 163 F.3d 331 (6th Cir. 1998).
6th Circuit says false testimony at plea hearing met perjury requirements. (461) Defendant and several associates burglarized a pawn shop, taking firearms and electronics. Defendant placed some of the stolen goods in his car and drove to another state. At his plea hearing, defendant told the court that he did not arrive at the scene until after the goods had been stolen from the pawn shop. The Sixth Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury at the plea proceeding. The district court found defendant’s testimony was not simply inaccurate or confusing, but intentionally and materially false as required by § 3C1.1. This was not a situation where a defendant merely provided incomplete information. U.S. v. Sanders, 162 F.3d 396 (6th Cir. 1998).
6th Circuit finds perjury defendant obstructed justice by additional perjury at trial. (461) Defendant was part of a group of officers of the Kentucky National Guard who held a party to solicit money from Guard officers for a gubernatorial campaign. Officers later complained that they were released from the Guard because they did not support the gubernatorial campaign. When investigators questioned defendant about this, he lied under oath, and was convicted of perjury. Note 6 to § 3C1.1 says that a perjury enhancement is not to be applied in perjury cases “except where a significant further obstruction occurred during the investigation, prosecution, or sentencing.” The district court applied an obstruction of justice enhancement based on four false statements defendant made at trial. Two statements misrepresented the nature of the meeting to plan the fundraising party. Another statement was an implausible explanation of his denial to the newspapers that he saw no fundraising at the party. Finally, he testified that that his statement to investigators was not false because he was led to think they were asking about a different party. The Sixth Circuit affirmed an obstruction of justice enhancement based on these statements. The statements were not, as defendant claimed, a mere reiteration of his testimony to the investigators since none of them were made to the investigators. The statements constituted “significant further obstruction.” U.S. v. DeZarn, 157 F.3d 1042 (6th Cir. 1998).
6th Circuit finds obstruction for perjury and giving false name to magistrate. (461) On November 22, 1995, defendant sold crack to a cooperating witness and an undercover agent. As the agent was leaving defendant’s house, he observed a customized blue Buick station wagon and a BMW parked in front of the house. The agent later traced the license plates and found the cars were registered to defendant. The witness had previously informed the agent that his supplier drove a customized blue Buick station wagon. The Sixth Circuit affirmed an obstruction of justice enhancement based on defendant’s denial of his participation in the November 22 drug transaction. Defendant submitted an affidavit stating that he did not participate in the November drug transaction and testified during a suppression hearing that he traveled to another state in his blue Buick on that date. However, in a sworn proffer given after his arrest, defendant had admitted that he participated in the November transaction. The court also credited the undercover agent’s recollection that he saw the station wagon parked outside the house during the transaction. The enhancement also was properly based on defendant’s use of a false name before the magistrate judge. Defendant gave a false name to conceal his criminal past and thereby secure pre-trial release. His use of a false name was not protected by the Fifth Amendment. U.S. v. Charles, 138 F.3d 257 (6th Cir. 1998).
6th Circuit finds reckless endangerment despite claim that defendant did not know pursuers were police. (461) After selling drugs to undercover agents, police closed in. Defendant and his two associates got in their car and fled. During the course of a 40-50 mile per hour chase, defendant drove through a resident’s yard. The suspects eventually exited the vehicle, which continued to roll until it smashed into a mailbox. Three vehicles were damaged during the chase. Defendant challenged a § 3C1.2 reckless endangerment enhancement, claiming he did not know that the vehicle in pursuit of him was occupied by police. He claimed he thought his pursuers were seeking to rob him of the proceeds of the drug transaction. The Sixth Circuit upheld the enhancement because the district court found defendant’s testimony lacking in credibility. U.S. v. Gibson, 135 F.3d 1124 (6th Cir. 1998).
6th Circuit upholds obstruction where government identified defendant’s perjurious statements. (461) Defendant was convicted of distributing cocaine base on three occasions. As part of an entrapment defense, he testified on direct examination that he had never before been involved in dealing drugs. On cross-examination, the government forced defendant to admit that in 1991 he was arrested, charged and convicted of possessing 33 bags of marijuana. The government also introduced extrinsic, substantive proof that directly contradicted defendant’s assertion that he had not sold drugs previously. The Sixth Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial, even though the district court did not identify the specific statements by defendant that were untruthful. The colloquy between court and counsel at sentencing revealed that the district court accepted the government’s argument, which specifically identified the perjurious statements. The government’s sentencing memorandum proffered that defendant had perjured himself when he swore that he had never sold drugs before he was pressured into doing so here. U.S. v. Roper, 135 F.3d 430 (6th Cir. 1998).
6th Circuit finds obstruction based on perjury at co-defendant’s trial. (461) Defendant and a friend were arrested at defendant’s apartment in possession of drugs and firearms. Defendant pled guilty, and the friend went to trial. At the friend’s trial, defendant denied that his friend had anything to do with drug activity, claiming that the friend was only at his apartment to watch a boxing match. The district court applied § 3C1.1 based on defendant’s perjurious testimony during his friend’s trial. Defendant argued because he had already pled guilty, his later perjury at his friend’s trial did not occur with respect to the “instant offense.” The Sixth Circuit held that the § 3C1.1 enhancement applies where a defendant attempts to obstruct justice in a case closely related to his own, such as that of a co-defendant. Previous cases have granted an obstruction enhancement based on a defendant’s perjured testimony in a separate but related proceeding. Although the perjury must relate to the instant offense, this circuit has given a broad reading to the “instant offense” language. Judge Ryan dissented. U.S. v. Walker, 119 F.3d 403 (6th Cir. 1997).
6th Circuit affirms obstruction increase for perjury and trying to stall investigation. (461) Defendant was convicted of willfully filing false personal income tax returns for the years 1986, 1987 and 1988, and a false corporate return for 1988. The Sixth Circuit affirmed an obstruction of justice enhancement based on his perjury and attempt to stall the government’s investigation of his offense. For example, he told an investigator that someone else was the president of the corporation and that all questions should be handled by her, but later claimed that he was the vice president of the corporation and its custodian of records. Given this obstructive conduct, the denial of an acceptance of responsibility reduction was also appropriate. Not only did defendant not admit responsibility, he perjured himself, may have suborned perjury, and obstructed the investigation. The mere fact that he filed an amended 1987 tax return, assisted in filing an amended 1988 corporate tax return, and paid some additional money to the IRS did not require a reduction for acceptance of responsibility. U.S. v. Tandon, 111 F.3d 482 (6th Cir. 1997).
6th Circuit permits court to identify perjurious testimony by reference to its context. (461) Defendant complained that the district court failed to make a specific finding of perjury to support an obstruction of justice enhancement. The Sixth Circuit held that the findings were sufficient even though the district court did not identify specific testimony as perjurious. Although the better practice is for the court to explicitly reference the defendant’s untruthful statements, a court may identify the perjurious testimony by reference to its context. Here, the colloquy between the court and the prosecution established a context from which the reviewing court could determine which statements the court found to be untruthful. U.S. v. Branham, 97 F.3d 835 (6th Cir. 1996).
6th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant, a postal employee, repeatedly stole articles from registered parcels. The stolen items included jewelry and five $5,000 bearer bonds. The Sixth Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial. The district court found that defendant lied when he testified that he bought the jewelry at a flea market and a retail store, and lied when he testified that he found the bonds at an Amoco station. U.S. v. Comer, 93 F.3d 1271 (6th Cir. 1996).
6th Circuit finds lying at deposition and telling witness to lie were related to offense of conviction. (461) Defendant laundered money by using illegal drug proceeds to purchase two cars. He registered one car in his girlfriend’s name and the other in his aunt’s name. He pled guilty to the count involving the car registered to his girlfriend. The district court imposed an obstruction of justice enhancement because defendant encouraged his aunt to file a claim for the car after civil forfeiture proceedings were instituted and he lied in a deposition taken in relation to this forfeiture. Also, the girlfriend claimed defendant told her not to cooperate in the criminal investigation. The Sixth Circuit held that defendant’s lying at the civil forfeiture deposition and telling his aunt to lie were sufficiently related to the offense of conviction to warrant a § 3C1.1 enhancement. Defendant’s conduct was intended to obstruct the same government investigation that led to defendant’s plea bargain and conviction. U.S. v. Nesbitt, 90 F.3d 164 (6th Cir. 1996).
6th Circuit upholds obstruction enhancement for attempt to suborn perjury. (461) Before and during trial, defendant wrote several letters to his girlfriend, a co‑defendant, attempting to influence her decision to enter a guilty plea. The letters told the girlfriend not to discuss how he fronted drugs, or that he worked with anyone, and that he had anyone working for him. The Sixth Circuit approved an obstruction of justice enhancement based on an attempt to suborn perjury. The issues about which defendant was instructing his girlfriend to testify falsely were critical to a finding that he was involved in a conspiracy. U.S. v. Bingham, 81 F.3d 617 (6th Cir. 1996).
6th Circuit affirms obstruction enhancement for missing court appearance and hiding from arresting officers. (461) The district court imposed an obstruction of justice enhancement because defendant missed a court appearance and, after the court issued a warrant, defendant tried to hide from arresting officers. The Sixth Circuit affirmed. Application Note 3(e) to § 3C1.1 states that willfully failing to appear for a judicial proceeding warrants the enhancement. The conduct also warranted the denial of an acceptance of responsibility reduction. U.S. v. Hill, 79 F.3d 1477 (6th Cir. 1996).
6th Circuit affirms enhancement where court cited two instances of false testimony. (461) Defendant challenged a § 3C1.1 enhancement, claiming she did not commit perjury. The Sixth Circuit affirmed the enhancement. Defendant did not prove any factual or legal basis for her claim. In contrast, the district court cited two discrete instances of false testimony and specifically found that defendant intended to deceive the jury. U.S. v. Brown, 66 F.3d 124 (6th Cir. 1995).
6th Circuit says perjury finding only requires preponderance of the evidence. (461) In evaluating whether a defendant has committed perjury, note 1 to § 3C1.1 directs a court to evaluate a defendant’s testimony in a light most favorable to the defendant. Defendant argued that this requires a court to decide the perjury question under a clear and convincing evidence standard. The Sixth Circuit disagreed, holding that preponderance of the evidence is the correct standard for all fact-finding at sentencing, and note 1 does not change this standard. The preponderance of the evidence standard requires a fact-finder to weigh the evidence on both sides of a contested issue. The admonition in note 1 requires the judge, as he or she weighs the evidence, to be especially alert for factors that militate in favor of finding alleged false testimony by the defendant to be actually true. Here, the evidence most favorable to defendant was that he was consuming large quantities of alcohol during the time in question. However, defendant did not state that he could not remember certain matters. Instead, he denied any involvement in the drug conspiracy. Furthermore, he gave these answers in response to questions from his own counsel. The questions were not “sprung on” defendant by the prosecutor. U.S. v. Zajac, 62 F.3d 145 (6th Cir. 1995).
6th Circuit increases for obstruction and denies acceptance credit based on trial perjury. (461) Defendants were convicted of attempted carjacking. At trial defendants testified that they never intended to steal their robbery victim’s truck. The Sixth Circuit upheld an obstruction of justice enhancement and approved the denial of an acceptance of responsibility reduction based on defendants’ trial perjury. The fact that defendants admitted committing an armed robbery did not negate their denial of the carjacking. Defendants were not challenging the applicability of the carjacking statute; they were contesting the victim’s version of the facts. U.S. v. Hudson, 53 F.3d 744 (6th Cir. 1995).
6th Circuit approves obstruction enhancement based on perjury in grand jury. (461) The district court enhanced defendant’s sentence for obstruction of justice after finding he lied about material facts during his grand jury testimony at a critical time during the government’s investigation. The Sixth Circuit affirmed. Defendant’s grand jury testimony varied considerably from the other testimony and evidence concerning his involvement in the charged offense. Defendant admitted receiving only two packages of ephedrine, while other evidence showed that he received five or six packages. One witness, who the court found credible, testified that defendant’s apartment was used to manufacture methcathinone, but defendant denied ever being present when methcathinone was manufactured. Although defendant discussed methcathinone with another conspirator, he denied knowing that the conspirator manufactured methcathinone. Moreover, even after his grand jury testimony, defendant gave an undercover agent a “recipe” for making methcathinone. U.S. v. Mahaffey, 53 F.3d 128 (6th Cir. 1995).
6th Circuit upholds obstruction enhancement for escaping from halfway house, altering appearance, and engaging in standoff with police. (461) Within 24 hours after learning he was under investigation for the instant offense, defendant fled the halfway house where he was staying for an unrelated offense. He dramatically altered his appearance, and was not apprehended until over a year later. When he was confronted by authorities, he shouted he had a gun and engaged in a confrontation with police for over 30 minutes. The Sixth Circuit agreed that defendant’s conduct justified an obstruction of justice enhancement. Defendant’s behavior of fleeing the halfway house, altering his appearance, and engaging in a standoff with police was more than “avoiding or fleeing from arrest.” Further, defendant defied a judicial order when he fled. Although the judicial order stemmed from a different prosecution, his escape was motivated by the imminent charges in the instant case. U.S. v. Oleson, 44 F.3d 381 (6th Cir. 1995), overruled on other grounds by U.S. v. Reed, 77 F.3d 139 (6th Cir. 1996).
6th Circuit upholds obstruction enhancement for giving false name before indictment on federal charges. (461) Defendant was arrested twice on drug charges by local police. In both instances, he gave police a false name, appeared before the municipal court using the false name, was released on bail, and fled the jurisdiction. He was subsequently indicted on federal drug charges. Defendant argued that these facts did not constitute grounds for an obstruction of justice enhancement because at the time he committed the acts the federal grand jury had not returned an indictment. The Sixth Circuit rejected defendant’s claim that his actions were unrelated to the instant case. Defendant’s indictment, conviction and sentence stemmed directly from the arrests in which he used a false name to make bail and flee. U.S. v. Smart, 41 F.3d 263 (6th Cir. 1994).
6th Circuit imposes obstruction enhancement for “simple” perjury. (461) Defendant was convicted of sexual abuse of a minor. The district court enhanced his sentence for obstruction of justice based on his testimony that he had never had any sexual contact with the victim. The 6th Circuit rejected his claim that a § 3C1.1 enhancement for perjury is only appropriate if the perjury imposes an incremental burden on the government. The Supreme Court rejected this view in U.S. v. Dunnigan, 113 S.Ct. 1111 (1993) and upheld a § 3C1.1 enhancement for a defendant who committed “simple” perjury by denying involvement in all aspects of the crime. The district court’s findings encompassed all elements of perjury except materiality. In such a case, Dunnigan does not require a remand because materiality is a question of law. Defendant’s denial of a sexual relationship with the victim was clearly material to the charge of sexual abuse of a minor. U.S. v. Seymour, 38 F.3d 261 (6th Cir. 1994).
6th Circuit applies obstruction enhancement for false testimony explaining criminal activity. (461) Defendant, a Kentucky state representative, was convicted of extortion, racketeering and making false statements to federal investigators. The 6th Circuit upheld an obstruction of justice enhancement for false testimony defendant gave to explain his criminal activities. Defendant testified that he did not receive money or did not know what he received from a lobbyist. However, a videotape showed defendant placing $500 in his pocket, removing it, and looking at it. Defendant also claimed he gave an assistant money from his campaign fund because the assistant had worked for it. In fact, the money was intended to compensate the assistant for incurring tax liability as a result of defendant’s illegitimate loan to his girlfriend. U.S. v. Blandford, 33 F.3d 685 (6th Cir. 1994).
6th Circuit upholds enhancement even though court did not specifically identify perjurious comments. (461) The district court enhanced defendant’s sentence for obstruction of justice based on her perjury at trial. The 6th Circuit upheld the enhancement, even though the district court did not identify specific statements as untruthful. The colloquy between the court and counsel identified which statements the government claimed were untruthful. The record showed that the court had in mind these statements when it imposed the enhancement. U.S. v. Ledezma, 26 F.3d 636 (6th Cir. 1994).
6th Circuit upholds obstruction enhancement for sending emergency personnel to FBI agent’s unlisted address. (461) While under FBI investigation, defendant falsely reported a domestic disturbance at the case agent’s unlisted address, causing the dispatch of a deputy sheriff, firemen and rescue workers. The district court enhanced defendant’s sentence for obstruction of justice, finding the dispatch of emergency personnel was designed to intimidate the FBI agent and to seek retribution on him for his part in the investigation. The 6th Circuit agreed. A co-defendant had advised the agent that defendant was proficient at unearthing personal information about individuals, and used his expertise to learn the agent’s address. The co-defendant testified that he overheard defendant tell others how he had sent the fire department to the agent’s home. U.S. v. Jackson, 25 F.3d 327 (6th Cir. 1994).
6th Circuit says failure to admit cocaine use on pretrial release was obstruction of justice. (461) Defendant received an enhancement for obstruction of justice because he failed to reveal a prior conviction to his probation officer and falsely denied using cocaine while on pretrial bond. The 6th Circuit agreed that defendant willfully and materially obstructed justice under section 3C1.1 by failing to admit his use of cocaine while on pretrial release. The court rejected decisions in the 3rd and 7th Circuits holding that the denial of drug use while on bail or on release awaiting sentencing is not an obstruction of justice. Although defendant’s failure to admit his cocaine use was not outcome determinative, it was relevant to the choice of sentence within the guideline range. U.S. v. Garcia, 20 F.3d 670 (6th Cir. 1994).
6th Circuit upholds obstruction enhancement based on perjurious denial of fraudulent marriage. (461) Defendant received an enhancement for obstruction of justice for falsely denying to the probation officer and to the court that he had entered into a fraudulent marriage to obtain a “green card.” Defendant claimed the enhancement was improper because the marriage had nothing to do with the charges against him. The 6th Circuit upheld the enhancement because the fraudulent marriage was relevant to defendant’s sentence. A defendant’s perjurious testimony at detention and sentencing must be material and nontrivial to warrant the obstruction enhancement. A false statement at a sentencing hearing relevant to sentencing is material and nontrivial for purposes of section 3C1.1. The fraudulent marriage was relevant to defendant’s sentencing, since a court may consider prior criminal conduct, whether or not charged, in determining a sentence within the prescribed guideline range, or in determining whether a departure is warranted. U.S. v. Aideyan, 11 F.3d 74 (6th Cir. 1993).
6th Circuit relies on associate’s account of defendant’s solicitation of him to bribe a witness. (461) The 6th Circuit upheld an enhancement for obstruction of justice. The district court was entitled to conclude that an associate testified truthfully about defendant’s alleged solicitation of him to bribe a witness. U.S. v. Moss, 9 F.3d 543 (6th Cir. 1993).
6th Circuit holds that lie justifying obstruction enhancement need not concern offense of conviction. (461) The 6th Circuit held that in determining whether a false statement justifies an obstruction enhancement, the test is not whether the false statement was about the actual crime charged, but whether the statement was made during the investigation, prosecution, or sentencing of the instant offense. Thus, defendant’s false statements at his detention hearing and at his sentencing hearing that he did not trade a gun for marijuana justified the enhancement, even though the lie was not “about” his firearm and drug possession offenses. Defendant’s lies were material. At the detention hearing, the court needed to know the true nature of the offense so that it could assess defendant’s risk to society. At sentencing, the information was relevant to the court’s efforts to determine an appropriate sentence. U.S. v. Crousore, 1 F.3d 382 (6th Cir. 1993).
6th Circuit upholds reckless endangerment enhancement. (461) After burglarizing a pharmacy, defendants fled and their car hit a police car trying to intercept them. The 6th Circuit upheld an enhancement for reckless endangerment under section 3C1.2. The judge relied on the presentence report’s finding that in driving recklessly at speeds of up to 100 miles per hour on mountain roads, defendant evinced a “wanton disregard for the safety of other motorists.” U.S. v. Mills, 1 F.3d 414 (6th Cir. 1993).
6th Circuit says obstruction enhancement must be imposed if perjury is committed. (461) The government contended that the district court should have imposed an enhancement for obstruction of justice because defendant committed perjury at trial. The 6th Circuit agreed that if defendant committed perjury, the district court must apply the obstruction enhancement. Here, the district court declined to make a finding on the perjury issue, concluding that the government’s remedy was to bring a perjury prosecution. Although this was an option open to the government, it did not preclude a request to apply the obstruction enhancement. The case was remanded for the district court to determine whether defendant committed perjury, and if so, to apply the enhancement. Judge Merritt dissented, believing that a district court is not required in all cases to make a finding on whether a defendant has committed perjury. U.S. v. Morgan, 986 F.2d 151 (6th Cir. 1993).
6th Circuit affirms obstruction and more than minimal planning enhancements. (461) Defendant’s Ohio driver’s license was suspended for 99-years after numerous convictions for driving while intoxicated. Defendant then obtained an Ohio driver’s license in the name and social security number of another person. While using this false license, he was again arrested for drunk driving. He pled guilty in federal court to using a false social security number. However, at his initial appearance, he did not provide complete information to the court regarding his criminal record, and the magistrate’s order of detention noted that defendant lied to the court about his record. Based upon these circumstances, the 6th Circuit held that enhancements for more than minimal planning and for obstruction of justice were not clearly erroneous. Judge Merritt dissented from the obstruction enhancement, since defendant had also received a reduction for acceptance of responsibility. U.S. v. Eve, 984 F.2d 701 (6th Cir. 1993).
6th Circuit upholds obstruction enhancement for making false statements and falsifying records. (461) Defendant, a doctor, was convicted of possession of controlled substances and failing to maintain proper records. The 6th Circuit affirmed an enhancement for obstruction of justice based on evidence that (a) after the DEA had begun its investigation of him, defendant made a series of false statements to agents, (b) defendant falsified records, and (c) defendant lied to the Michigan Department of Licensing by testifying that he had administered 90 percent of the drugs to his patients. U.S. v. August, 984 F.2d 705 (6th Cir. 1993).
6th Circuit upholds obstruction enhancement despite failure to identify untruthful statements. (461) The 6th Circuit affirmed an enhancement for obstruction of justice based upon defendant’s perjury, even though the court did not identify the specific statements by defendant that were untruthful. An examination of the colloquy between court and counsel at sentencing revealed that the district court accepted the government’s argument, which identified the specific untruthful statements. Although the court itself did not repeat the statements it found to be untruthful, the court had in mind the statements by defendant that had just been referenced by government counsel. Nonetheless, the better practice and the requirement to be followed hereafter is that when assigning points for obstruction of justice, the district court should identify specifically which statements or actions by a defendant constitute obstruction of justice. U.S. v. Clark, 982 F.2d 965 (6th Cir. 1993).
6th Circuit finds that defendant threatened witness in an attempt to obstruct justice. (461) The 6th Circuit affirmed the district court’s finding that defendant communicated a threat to a witness in an attempt to obstruct justice. Thus an enhancement for obstruction of justice was not clearly erroneous. The witness testified that defendant threatened that “his people from Kentucky” would attend his trial and would take care of witnesses testifying against him. An FBI agent also testified that he received information of defendant’s threat from a confidential source and later verified the threat with the witness. The district court made a credibility determination and believed the witness and FBI agent over defendant. U.S. v. Hoffman, 982 F.2d 187 (6th Cir. 1992).
6th Circuit upholds obstruction enhancement for perjury at trial. (461) Defendant was convicted of being a felon in possession of a firearm. He received an enhancement for obstruction of justice based upon his testimony at trial that the firearms and ammunition found in his possession belonged to his girlfriend. He argued that the jury verdict was not inconsistent with his testimony, since they could have believed his testimony, but still found that his conduct constituted possession of firearms. Thus, he contended, the enhancement had a chilling effect on his right to go to trial and testify. The 6th Circuit affirmed the obstruction enhancement. The district court evaluated the evidence, made a credibility determination, and found that the defendant perjured himself while testifying under oath. U.S. v. Bennett, 975 F.2d 305 (6th Cir. 1992).
6th Circuit reaffirms that perjury is grounds for obstruction enhancement. (461) The 6th Circuit rejected defendant’s challenge to a two-level enhancement for obstruction of justice based upon his perjury at trial. First, the argument was moot because defendant received the mandatory sentence required by the Armed Career Criminal Act, and thus his sentence was not affected by his offense level. Second, even if the issue were not moot, the court refused to abandon its decision in U.S. v. Acosta-Cazares, 878 F.2d 945 (6th Cir. 1989), which held that perjury at trial is grounds for an obstruction enhancement. The 4th Circuit, in U.S. v. Dunnigan, 944 F.2d 178 (4th Cir. 1991), reversed 507 U.S. 87 (1993), held that such an enhancement would place an intolerable burden on a defendant’s right to testify on his own behalf. But this decision is in conflict with six other circuits. U.S. v. Warren, 973 F.2d 1304 (6th Cir. 1992).
6th Circuit rules obstruction enhancement may be based on perjury at sentencing hearing. (461) Defendant contended that an obstruction of justice enhancement based upon his perjury at his sentencing hearing was inappropriate because his untrue statements were limited to specific areas he disputed in the plea agreement. The 6th Circuit rejected this argument. A defendant has the right to object at the sentencing hearing to factual findings relevant to the application of the guidelines. However, the right is not so broad as to entitle a defendant to perjure himself. “The oath a defendant takes before testifying at a sentencing hearing is no less sacred than the one he takes before testifying at trial.” U.S. v. Hamilton, 929 F.2d 1126 (6th Cir. 1991).
6th Circuit affirms obstruction enhancement for defendant who concealed age and identity from officials. (461) The 6th Circuit affirmed the district court’s enhancement of defendant’s offense level for obstruction of justice. Defendant lied about her age and identity upon arrest, and lied to a juvenile court judge during a hearing to determine her identity. In addition, defendant convinced her mother to lie about defendant’s age and identity to the juvenile court judge. U.S. v. Williams, 940 F.2d 176 (9th Cir. 1991) (en banc).
6th Circuit upholds obstruction enhancement based upon defendant’s perjury. (461) The 10th Circuit affirmed an enhancement for obstruction of justice based upon the district court’s determination that defendant committed perjury at trial. Defendant had stated that he had not seen drugs in the small apartment in which a drug buy took place. He also claimed to be playing a dice game in the apartment, which given the size of the apartment, the district court found “implausible.” Defendant also changed his testimony concerning one of his codefendants. U.S. v. Head, 927 F.2d 1361 (6th Cir. 1991).
6th Circuit affirms obstruction enhancement for defendant who testified untruthfully. (461) The 6th Circuit affirmed an obstruction enhancement where the district court found that defendant had lied “openly, continuously, almost ridiculously before the jury.” Although the district court expressed some misgiving about applying the enhancement, the 6th Circuit noted that once the district court had found that defendant had testified untruthfully as to a material fact, it had no discretion under the guidelines not to apply the enhancement. U.S. v. Alvarez, 927 F.2d 300 (6th Cir. 1991).
6th Circuit upholds obstruction of justice enhancement where defendant jumped bond before sentencing. (461) Although no sentencing date had been set when defendant fled, he admitted that he had been instructed to report to the probation officer and failed to do so. The 6th Circuit found that the fact that a sentencing date had not been set was “irrelevant.” The defendant “was no stranger to the criminal justice system, and he can doubtless be presumed to have known that he was not free to decamp after his conviction.” The court found that “it is enough in any event that he disobeyed an instruction to report to the probation officer.” Accordingly the court upheld the two level increase for obstruction of justice under § 3C1.1. Judge Wellford concurred, but expressed some questions, in the absence of a separate prosecution for bail jumping, “about using defendant’s flight while on bond as a means to enhance the punishment of a drug conspiracy.” U.S. v. Perry, 908 F.2d 56 (6th Cir. 1990).
6th Circuit affirms enhancement for obstruction of justice when defendant perjured himself at suppression hearing. (461) After determining that defendant testified falsely at a suppression hearing, the district court increased defendant’s base offense level by two points for obstruction of justice under guideline § 3C1.1. The 2nd Circuit affirmed the enhancement since the district court specifically found defendant’s testimony untruthful. The enhancement does not chill the right to testify because a defendant has no right to testify falsify. U.S. v. Matos, 907 F.2d 274 (2nd Cir. 1990).
6th Circuit rules committing perjury while testifying constitutes obstruction of justice. (461) The 6th Circuit held that if the district court finds that the defendant committed perjury while testifying, it may properly increase his offense level by two points under § 3C1.1. The court held that this section does not infringe on the 5th Amendment right to testify. A defendant may deny his guilt by pleading not guilty without being punished, but he has no right to commit perjury by denying his guilt while testifying as a witness. U.S. v. Acosta-Cazares, 878 F.2d 945 (6th Cir. 1989), abrogation on other grounds recognized by U.S. v. Malcuit, 104 F.3d 880 (6th Cir. 1997).
7th Circuit upholds obstruction increase and denial of acceptance reduction for encouraging witness to ignore trial subpoena. (461) Defendant challenged an obstruction of justice enhancement he received for encouraging a potential witness, his girlfriend, to ignore a trial subpoena. He argued that he told her to ignore it only because he thought the government had dropped the charges against him. However, he presented no evidence in support of this implausible claim, not even an affidavit. Furthermore, the subpoena had not been quashed, so defendant had to know that he was telling her to violate a court order. Thus, the Seventh Circuit upheld the finding of obstruction of justice. The obstruction increase also greatly undermined defendant’s claim to be entitled to a sentencing discount for acceptance of responsibility. While there may be “extraordinary cases” in which both adjustments might apply, “there has to be evidence of contrition” and not just a plea of guilty. U.S. v. Bey, 748 F.3d 774 (7th Cir. 2014).
7th Circuit upholds obstruction increase for lying about withdrawing from arson conspiracy. (461) Defendant solicited White to burn down her house so that she could collect a settlement from her insurance company. She initially pled guilty, but then testified at a change of plea hearing that she had changed her mind and told White not to burn down the house, but that he did it anyway. A few days before trial, defendant notified the court that she wished to plead guilty, and admitted she had solicited White’s help. The district court applied a § 3C1.1 obstruction of justice increase based on defendant’s testimony during the first change-of-plea hearing, and the Seventh Circuit affirmed. Defendant’s testimony would have allowed her to advance a withdrawal defense. Because her testimony could allow a reasonable factfinder to conclude that defendant had withdrawn from the conspiracy, it was not an admission of the crime of conspiracy, so the district court could not accept her guilty plea to that crime. Moreover, even if defendant’s false testimony did not put her guilt as a co-conspirator into question, it had the effect of minimizing her role in the offense, and that alone was sufficient to warrant the adjustment. U.S. v. Hargis, 747 F.3d 917 (7th Cir. 2014).
7th Circuit upholds obstruction increase for using alias during court proceedings. (461) Defendant gave a false name to the arresting officers. He continued to use the alias at his pretrial services interview, initial appearance, and other court proceedings. The district court granted defendant bond and released him on his own recognizance. Almost three years later, the government learned defendant’s true identity and that he was present illegally in the United States. Defendant’s bond was then revoked and he was taken into custody. The Seventh Circuit upheld a § 3C1.1 obstruction of justice increase for defendant’s misrepresenting his identity. Note 5(A) says the obstruction guideline should not be applied where the defendant merely provided “a false name or identification document at arrest.” However, Note 5(A) applies only to false information at the time of arrest, and does not apply to false statements to a court officer after arrest. Defendant’s use of the false identity was material, because it affected the court’s decision to detain him following arraignment. U.S. v. Sandoval, 747 F.3d 464 (7th Cir. 2014).
7th Circuit finds failure to make willfulness finding was harmless error. (461) Defendant was convicted of being a felon in possession of a firearm. The district court imposed a two-level enhancement for obstruction of justice based on the affidavit defendant submitted to the court in support of a motion to suppress. The court found that his sworn description of his arrest and search was very different from the version of those events presented by the police officers’ testimony, and that the judge had credited the officers’ testimony. The Seventh Circuit upheld the obstruction increase. Defendant’s affidavit concerned a material matter. It caused the district court to hold an evidentiary hearing to determine whether the critical evidence supporting defendant’s prosecution, the gun, was obtained by the police officers in violation of defendant’s Fourth Amendment rights. Although the lack of an explicit finding of willfulness was more problematic, the error was harmless because the armed career criminal guideline trumped the effect of the obstruction enhancement, and there was no indication that it had any effect on the ultimate sentence. U.S. v. Riney, 742 F.3d 785 (7th Cir. 2014).
7th Circuit upholds obstruction increase based on trial perjury. (461) Defendant was convicted of being a felon in possession of a firearm. The most substantial evidence against him was the testimony of arresting officers who saw him throw something on the ground near where a handgun was found. Defendant testified that he never touched or even saw a gun, and claimed he had dropped his phone in the grass. The district court applied a § 3C1.1 obstruction increase based on defendant’s perjury at trial. The Seventh Circuit rejected defendant’s constitutional challenge to the obstruction enhancement, and upheld the enhancement. While a defendant is allowed to testify on his own behalf, he has no right to commit perjury. Defendant did not simply deny that he possessed the firearm; rather, he repeatedly denied even seeing a firearm and testified that it was his cell phone that the police officers saw in his possession when they arrived. The court found defendant’s testimony incredible in light of the other evidence presented at trial. It also found that this testimony was material and not the result of confusion, mistake, or faulty memory. U.S. v. Stenson, 741 F.3d 827 (7th Cir. 2014).
7th Circuit affirms obstruction increase based on defendant’s letter to child of witness. (461) The district court applied an obstruction of justice enhancement based on a letter defendant sent to the daughter of Harris, a woman who was going to testify against him. The court thought that the letter was an attempt to convince “the child to get to her mother.” Defendant contended that the district court erred in concluding that the letter was obstructive because the letter urged Harris to tell the truth and urged Harris’s daughter to respect her mother’s decision. But, in the letter, defendant also stated that Harris’s testimony for the government would be lies, that her testimony was all the government had to convict him, and that Harris had been tricked by her own lawyer. Defendant’s letter was an intentional effort to convince Harris’s daughter that her mother’s testimony would be lies, which were the only evidence the government had against him, and that a conviction would ruin his “life and the lives of [his] kids.” The district court reasonably interpreted this effort as a willful attempt to persuade Harris’s daughter to try to sway her mother’s testimony. U.S. v. Cheek, 740 F.3d 440 (7th Cir. 2014).
7th Circuit approves reckless endangerment during flight enhancement. (461) Defendant challenged the district court’s application of a two-level enhancement for reckless endangerment during flight, under § 3C1.2, but the Seventh Circuit upheld the increase. Defendant did not contest that he was traveling at a high rate of speed during a police officer’s pursuit, or that he pointed a firearm at the three individuals who followed him after he tried to enter a hotel, as well as the individual who blocked defendant’s path of escape in the hotel parking lot. While speeding excessively, defendant could have lost control and injured other drivers or pedestrians on or near the road. Defendant’s brandishing a gun during his flight presented a substantial risk that an officer arriving on the scene might discharge his gun in defense, causing injury to one of the hotel guests or another officer. Taken together, the undisputed facts demonstrated that defendant “recklessly created a substantial risk of death or serious bodily injury to another person” when he fled from law enforcement on the day of his arrest. U.S. v. Brown, 716 F.3d 988 (5th Cir. 2013).
7th Circuit holds that five-year flight from arrest was obstruction of justice. (461) After learning that police were closing in on his drug ring, defendant fled to Nigeria and then Amsterdam, where he lived for several years under an alias. He challenged a § 3C1.1 enhancement, arguing that his conduct in evading arrest was not obstruction of justice, but merely flight. The Seventh Circuit upheld the enhancement. Defendant delayed his apprehension by five years, and during that period put the government to the expense of searching for him on three continents before finally procuring his arrest and extradition. Note 5(D) does provide that “avoiding or fleeing from arrest” does not warrant application of the enhancement. However, the panel ruled that flight from arrest is obstruction of justice under the guideline if it is likely to burden a criminal investigation or prosecution significantly. This criterion was easily satisfied here. Five years of avoiding arrest through use of alibis and travel to foreign countries was bound to create a significant hindrance to a prosecution. U.S. v. NDuribe, 703 F.3d 1049 (7th Cir. 2013).
7th Circuit applies obstruction increase where defendant avoided prosecution by remaining abroad for four years. (461) After agreeing to cooperate with authorities investigating his drug conspiracy, defendant received a death threat from his co-conspirator, fled to the Philippines, and stayed for four years. Later, he pled guilty to drug charges, and received a two-level obstruction of justice increase based on his remaining in the Philippines for years. The Seventh Circuit affirmed. The district court did not believe defendant’s version of events, concluding that he avoided prosecution through calculated evasion of authorities. The court focused not on defendant’s flight to the Philippines, but on his decision to remain abroad for four more years. The district court’s findings sufficiently reflected defendant’s willful obstruction of justice. The court found that defendant fled the jurisdiction before being indicted; knew during his years abroad that an investigation into the conspiracy was ongoing; recognized the possibility of federal charges given his initial cooperation with authorities; and hid in the Philippines for years without contacting authorities. U.S. v. Schwanke, 694 F.3d 894 (7th Cir. 2012).
7th Circuit upholds obstruction increase for perjured testimony that minimized defendant’s role. (461) Defendant and two co-conspirators stole more than a half-million dollars from the bank where defendant worked as a teller. Although defendant pled guilty, in her sworn statement to the court, she minimized her role in the offense, trying to pin most of the blame on her co-conspirators. The Seventh Circuit upheld a § 3A1.1 obstruction of justice increase, ruling that the court’s finding that defendant lied during her plea colloquy in an intentional effort to mislead the court was well-supported by the evidence. Several witnesses identified defendant as a recruiter and a decision-maker and an organizer. The government was not required to object to defendant’s perjured testimony during the plea hearing in order to preserve the issue for sentencing. The false statements about her role in the offense were material to her role in the offense under § 3B1.1. U.S. v. Grigsby, 692 F.3d 778 (7th Cir. 2012).
7th Circuit upholds obstruction increase based on false statements to IRS agent. (461) The district court applied a § 3C1.1 obstruction of justice enhancement based on false statements defendant made to the IRS regarding his residence and employment status. The Seventh Circuit affirmed. Defendant made false statements to an IRS agent on three occasions. First, he falsely stated that he lived at a home in St. Clair County, Illinois, when he actually lived in Madison County, Illinois with his wife. Second, he stated that he and his brother were thinking about closing the doors of their business because they did not have any current work. In truth, they did have work, including a demolition for which they issued an invoice five days later. Third, the brothers told an IRS agent during a field interview that they did not have any income or work. In fact, on the same day they made a deposit of $7,500 from one client and received an additional $240,377 from the client that year. These lies were material because they “influence[d] or affect[ed] the issue under determination,” whether the defendant and his wife could afford to pay their taxes owed. U.S. v. McKinney, 686 F.3d 432 (7th Cir. 2012).
7th Circuit upholds obstruction increase based on defendant’s false claim that police planted gun on him. (461) Chicago police arrested defendant for weapons crimes stemming from his possession of a loaded handgun. While in custody, he contacted his girlfriend and asked her to file a complaint with the Chicago police department, alleging that his arresting officers planted the gun on him. The girlfriend did so, but after a police investigation, immediately recanted the complaint. Defendant pled guilty in federal court to being felon in possession of a firearm. The Seventh Circuit affirmed an obstruction of justice increase. Through his girlfriend, defendant claimed that the arresting officers planted a gun on him when they did not do so. If his complaint had been believed, it could have affected the issue in this case—whether he illegally possessed a firearm. The fact that the girlfriend may not have known that the information she relayed to the police was false did not matter. The girlfriend’s intent was irrelevant. U.S. v. Selvie, 684 F.3d 679 (7th Cir. 2012).
7th Circuit says findings were adequate to support obstruction increase. (461) Defendant was convicted of drug charges. The district court applied an obstruction of justice enhancement because defendant’s pretrial statements to authorities were different from those offered at trial, to such an extent that the differences could not be a result of “mistake or faulty memory.” Defendant argued on appeal that the judge failed to identify a specific statement he made at trial that was inconsistent with his post-arrest statements. The Seventh Circuit upheld the obstruction increase. Although the sentencing judge did not specifically state which of defendant’s statements at trial amounted to perjury, he did reference the inconsistencies between defendant’s post-arrest statements and his trial testimony. At trial, defendant testified that the cocaine found in the apartment belonged to Simon. In contrast, in his post-arrest interview with police officers, defendant admitted that everything in the apartment was his. Further, the PSR’s basis for applying the enhancement was defendant’s trial testimony that the cocaine did not belong to him. The judge certainly read the PSR and relied upon its findings at the sentencing hearing. From this, the panel concluded that the judge believed defendant gave false testimony concerning ownership of the drugs found in the apartment. U.S. v. Johnson, 680 F.3d 966 (7th Cir. 2012).
7th Circuit approves obstruction increase for lying to DEA agents. (461) Defendant, a medical doctor, was convicted of distributing fentanyl and obtaining morphine by misrepresentation and fraud. At trial, a DEA agent testified that defendant told the agent that Evans, a nurse who was also defendant’s patient, had severe dental problems and that Evans’ oral surgeon had asked defendant to handle Evans’ pain management. This directly contradicted the surgeon’s trial testimony that Evans never disclosed she was taking fentanyl, and he had never discussed Evans’ pain management with defendant. At trial, defendant claimed that he either misspoke during his interview with the agent or the agent misheard him. The Seventh Circuit upheld an obstruction of justice increase based on defendant’s intentional misstatements to DEA agents during the investigation. The district court found that defendant’s statement about his contact with the oral surgeon was false, that in making the statement he intended to obstruct the investigation, and that this false statement was sufficient to justify application of the obstruction increase. The court was in the best position to judge the credibility of defendant’s claim. U.S. v. Pellmann, 668 F.3d 918 (7th Cir. 2012).
7th Circuit applies obstruction increase for approaching witness in hallway prior to testimony at trial. (461) Defendant’s role in a fraud scheme was to intercept the fraudulently-ordered merchandise upon delivery. At trial, a couple of intended victims planned to testify that they observed defendant walk by their house twice and look at a decoy package on their porch while talking on a cell phone. After the wife testified but before the husband testified, defendant approached the couple outside the courtroom, and attempted to justify his presence in their neighborhood, claiming he was there to meet a friend. The husband proceeded to testify as planned. The Seventh Circuit affirmed an obstruction of justice increase based on defendant’s exchange with couple. The fact that the husband did not feel intimidated and went forward with his testimony did not undercut the possibility that defendant wanted to influence his testimony. It was difficult to imagine what other reason defendant would have for approaching the couple outside of the courtroom directly before the husband’s testimony. U.S. v. Sandoval, 668 F.3d 865 (7th Cir. 2011).
7th Circuit says defendant’s intent in failing to appear was irrelevant for obstruction purposes. (461) In 2003, defendant pled guilty to drug charges. He fled before sentencing, and was not apprehended until 2008. His sentence was increased for obstruction of justice, despite his argument that his flight was motivated by fear of his former gang associates—who he claimed had made threats to retaliate against him in prison—rather than a desire to frustrate justice. The Seventh Circuit found that defendant’s intent in failing to appear for sentencing was irrelevant for obstruction purposes. Although § 3C1.1’s use of the word “willfully” requires a specific intent to obstruct justice, courts have also held that engaging in the conduct listed in the notes, is often sufficient to support the obstruction adjustment. For failure to appear cases, the adjustment is triggered if the defendant knew that he had to appear in court and voluntarily and intentionally failed to do so. For purposes of intent, it is sufficient that the defendant made a conscious decision not to appear, regardless of the reason, thereby obstructing the administration of justice. U.S. v. Martinez, 650 F.3d 667 (7th Cir. 2011).
7th Circuit affirms finding that defendant committed perjury at suppression hearing. (461) Defendant received a § 3C1.1 obstruction of justice enhancement based on the court’s finding that he committed perjury when he testified that he signed a Miranda waiver because the agents tricked him by presenting the waiver form as a property receipt. However, in light of testimony from agents present when defendant signed the waiver indicating that defendant freely and voluntarily waived his Miranda rights, the district court concluded that defendant’s testimony was false and that he knew it was false. The Seventh Circuit held that the district court made adequate findings that defendant committed perjury at the suppression hearing. U.S. v. Vallar, 635 F.3d 271 (7th Cir. 2011).
7th Circuit applies obstruction increase for defendant who failed to appear for sentencing. (461) Defendant challenged the district court’s finding that he willfully obstructed justice under § 3C1.1 when he failed to appear for his sentencing hearing and eluded police until he was arrested two-and-a-half months later. He contended that he did not meet the willfulness requirement for the enhancement, and he had a “panicked state of mind,” and not a “bad intent or evil purpose to obstruct justice.” The Seventh Circuit upheld the obstruction increase. While a “disturbed mental state” in very limited cases may be taken into account, defendant’s case was not one of those. Defendant did not deny that he knew about his sentencing hearing. Defendant’s choice not to attend his sentencing hearing and to evade the justice system for two-and-a-half months before being caught, whether caused by panic, fear, or any other emotions, was clearly obstructive conduct deserving of an enhancement. U.S. v. Curb, 626 F.3d 921 (7th Cir. 2010).
7th Circuit affirms obstruction increase for denying knowledge that transported money was drug proceeds. (461) Defendant, a long-haul truck driver, was convicted of drug conspiracy charges based on a single occasion when he transported drug money. The district court imposed an obstruction of justice increase after concluding that defendant willfully lied at trial about his knowledge of the source of the money he was transporting. The Seventh Circuit affirmed the obstruction increase. A special agent testified that he interviewed defendant several months after his arrest. At that time, defendant told the agent that he had met a Camilo” in a bar about a week before his trip to Indianapolis, and that Camilo had asked him to pick up money from someone in Indianapolis. The agent asked defendant what he meant by “money,” and defendant replied, “well, you know … you know.” When the agent asked for further clarification, defendant told him it was “drug money.” At trial, defendant acknowledged that he told the agent that the money came from drug proceeds, but he testified that he did not know that fact until after his arrest. The Seventh Circuit found no error in the district court’s decision to impose the obstruction enhancement. U.S. v. Saenz, 623 F.3d 461 (7th Cir. 2010).
7th Circuit says increases for violating judicial orders and for obstructing justice were not double counting. (461) Defendant was convicted of fraudulently acquiring and selling corporate securities. He argued that the district court impermissibly double-counted when it increased his offense level for violating a judicial order, § 2B1.1(b)(8)(c), and for obstructing justice, § 3C1.1. The Seventh Circuit found no double counting here because each enhancement was based on distinct conduct, one for transferring frozen funds in violation of a judicial orders, and the other for interfering with the SEC’s investigation. U.S. v. Favara, 615 F.3d 824 (7th Cir. 2010).
7th Circuit applies obstruction increase for defendant who fled after being released and did not keep in touch. (461) After being arrested and told that he would be prosecuted for drug offenses, defendant agreed to cooperate with the government and was released from jail. Part of the agreement was that he would keep in touch with the prosecutors. But after a month, he moved to Florida without telling them and was there for two years before being apprehended and brought back to Chicago to stand trial. He challenged an obstruction of justice increase, arguing that he was merely fleeing, and pointing out that flight is not a ground for enhancement. The Seventh Circuit upheld the obstruction of justice enhancement. It is the conduct, not the state of mind, that distinguishes initial flight from obstructive conduct. Obstruction generally and in this case begins when there has been no initial flight, or when flight ends. Here, defendant was released in exchange for promises to cooperate and to keep in touch, broke his promises, created delay and expense, and so merited the enhancement. U.S. v. Gonzalez, 608 F.3d 1001 (7th Cir. 2010).
7th Circuit upholds obstruction increase based on elaborate lies at trial regarding material facts. (461) Defendant bought multiple firearms on several occasions during a one-month period. During an April interview with ATF agents, he told a series of stories before finally settling on a story that the firearms he purchased in March were stolen out of the backseat of his unlocked car, and that the six additional handguns purchased in April were to replace the ones that had been stolen. He was convicted of making a false statement to a federal law enforcement officer. The Seventh Circuit upheld an obstruction of justice enhancement based on defendant’s false testimony that he was the true purchaser of the firearms but that they were subsequently stolen. Defendant did not independently have enough money to make the firearm purchases. Defendant asked the jury to believe that, although he would not leave the guns in his three-level house, because the front lock was broken and there were “no good hiding places,” he was willing to leave them in plain sight in the backseat of his unlocked car. A simple denial of guilt cannot serve as the basis for an obstruction of justice enhancement, but an elaborate mistruth regarding material facts is more than sufficient to support the enhancement. U.S. v. Dinga, 609 F.3d 904 (7th Cir. 2010).
7th Circuit upholds obstruction increase for giving false name to pretrial services officer. (461) At the time of his arrest, defendant falsely identified himself as Benino Jesus Arroyo-Arroyo and also provided a false date of birth. When he met with a pretrial services officer, defendant again repeated his alias and false date of birth, gave false names for his parents, and also presented himself to be a legal resident of the U.S. These false facts appeared in the bail report prepared for the court. Prior to defendant’s initial appearance, his fingerprints revealed his true identity and the fact of his previous deportation. The Seventh Circuit upheld a § 3C1.1 obstruction of justice enhancement based on the false name defendant gave the pretrial services officer. Note 4(h) provides a non-exhaustive list of examples of the types of conduct to which the obstruction enhancement applies, including “providing materially false information to a probation officer in respect to a presentence or other investigation for the court.” The fact that defendant had been living in the United States for some time as Arroyo-Arroyo for some time did not mean he was not being deceptive when he used it. U.S. v. Bedolla-Zavala, 611 F.3d 392 (7th Cir. 2010).
7th Circuit upholds obstruction increase for false statements about attorney’s lack of preparation. (461) The district court found that defendant lied in his sworn statement in support of his motion to withdraw his plea. Specifically, the court found that defendant lied when he claimed that his previous attorney “had not prepared a trial defense or devised a trial strategy … in part from his case load,” and lied again when he claimed that his previous counsel “began telling [him] to plead guilty.” Defendant conceded that these statements were false, but maintained they were immaterial. The Seventh Circuit disagreed and upheld an obstruction of justice enhancement based on the false statements. A falsehood told at a pretrial hearing is material it if is calculated to substantially affect the issue under determination at that hearing. Although defendant recanted when he took that stand at the hearing on the motion, the panel still upheld the district court’s finding of a perjurious intent. The focus is on the intent at the time the statement is made, not at the time the court ultimately makes its decision. U.S. v. DeLeon, 603 F.3d 397 (7th Cir. 2010).
7th Circuit upholds obstruction increase based on false statements in suppression affidavit. (461) In defendant’s motion to suppress statements he made to agents, defendant asserted that he was subjected to custodial interrogation prior to receiving his Miranda warnings. In his affidavit in support of the suppression motion, defendant claimed that he was handcuffed immediately after agents entered the house, then taken to the garage and questioned, and did not receive any Miranda warnings until he arrived at the police station. At the evidentiary hearing, however, an agent testified that defendant was not handcuffed immediately upon entry of agents into the residence, and that after the initial questioning, defendant was given Miranda warnings. The district court credited the government agent’s account of the events, found defendant’s version was false, and enhanced his offense level for obstruction of justice. The Seventh Circuit affirmed the obstruction increase. Although defendant argued that his statements were not false, the district court’s credibility determinations were entitled to special deference. U.S. v. Gonzalez-Mendoza, 584 F.3d 726 (7th Cir. 2009).
7th Circuit upholds obstruction enhancements for misrepresenting role in the offense. (461) During his plea colloquy, defendant refused to admit the government’s claim that he was a king of the Black Disciples street gang. The government then introduced substantial evidence establishing defendant’s role as a king, and the district court concluded that defendant “absolutely lied” about his role in the Black Disciples. The Seventh Circuit upheld an obstruction of justice increase based on defendant’s false testimony. He was not trying to correct the government’s assertion that he was responsible for co-conspirators’ activities even when he did not control their geographic area. To the contrary, defendant’s testimony was in response to a lengthy description by the government of his ascension through the Black Disciples’ ranks and its explanation of the Black Disciples’ leadership structure. Defendant’s statement was in the form of a flat denial – “it’s not me.” The lie was material, since it affected whether a § 3B1.1 enhancement or a § 3B1.2 reduction was applicable. U.S. v. White, 582 F.3d 787 (7th Cir. 2009).
7th Circuit rejects claim that letter to victim was friendly attempt to discourage civil lawsuit. (461) Defendant pled guilty to receiving child pornography. The district court applied a § 3C1.1 obstruction of justice increase because defendant violated the terms of his pretrial release by repeatedly contacting one of his victims and his family in an attempt to maintain control over the family and to influence their willingness to cooperate with the prosecution. Defendant argued that he did not threaten or intimidate the victim and his family, but instead had “friendly” conversations with them in the hopes that they would not initiate a civil lawsuit against him. The Seventh Circuit was not persuaded. Defendant was facing multiple felony child-pornography counts and the likelihood of spending the rest of his life in prison if convicted. The possibility of a civil suit was the least of his problems. Defendant’s letter to the victim closed with instructions not to say anything to anyone about the letter and a caution: “Don’t slip, the agents are just waiting for something like this.” The district court correctly concluded that defendant’s conduct was intended to hamper the investigation. U.S. v. Nurek, 578 F.3d 618 (7th Cir. 2009).
7th Circuit holds that attempting to escape custody warranted obstruction of justice increase. (461) While in the local police department, waiting for transfer to federal custody, defendant attempted to escape. While his hands were cuffed behind his back, and waiting in the station’s hallway, defendant sprinted down the hallway and through two sets of the station’s doors into the parking lot, where he was apprehended. The Seventh Circuit upheld a § 3C1.1 obstruction of justice increase based on defendant’s attempt to escape from police custody. Defendant argued that the court improperly used a finding that his conduct was “knowing” rather than “willful,” as required for the enhancement. Previous cases have that willful intent, for § 3C1.1 purposes, cannot be presumed by the unauthorized flight of a handcuffed defendant from the back of an officer’s car. However, at the time of defendant’s attempted escape, he had already spent a day in jail, and his attempted escape was from custody and not arrest. Application Note 4(e) states that “escaping or attempting to escape from custody” justifies the enhancement. U.S. v. Bright, 578 F.3d 547 (7th Cir. 2009).
7th Circuit affiirms obstruction increase where defendant withheld documents from grand jury. (461) Defendant received an obstruction of justice enhancement based on his failure to comply with a grand jury subpoena requesting copies of tax returns and accounting schedules used to prepare the returns. Defendant responded to the subpoena by claiming that the law firm did not have the accounting schedules due to a “computer crash.” However, six months later, one week after the grand jury returned a superseding indictment, his wife, who was the law firm’s accountant, printed out the accounting schedules. At trial, she testified that defendant never gave her the subpoena and that she did not know that the grand jury had subpoenaed the law firm’s accounting schedules until after the indictment. The Seventh Circuit upheld the obstruction enhancement. It was obstructive for defendant to fail to tell the one person in his law firm who had control over the subpoenaed documents about what documents the subpoena requested. The computers’ fortuitous recovery in time for defendant to use the accounting schedules in his own defense strongly suggested that defendant’s “computer crash” excuse was not believable. U.S. v. Powell, 576 F.3d 482 (7th Cir. 2009).
7th Circuit affirms obstruction increase for making willful misrepresentations under oath. (461) Defendant was convicted of conspiracy to distribute and possess with intent to distribute methamphetamine. The district court applied an obstruction of justice increase, finding that defendant lied when he stated, under oath, that he had never sold methamphetamine. The Seventh Circuit affirmed. The district court did not base the enhancement on the assumption that in finding defendant guilty, the jury must have rejected defendant’s buyer/ seller defense. Instead, the court noted that defendant unequivocally stated in his sworn testimony that he never had sold meth, and characterized this statement as an obstruction and permitted the enhancement. The court specifically found that defendant had willfully made misrepresentations under oath that were relevant to the prosecution. U.S. v. Dean, 574 F.3d 836 (7th Cir. 2009).
7th Circuit approves obstruction increase based on trial perjury. (461) Defendant was one of several defendants convicted of a string of robberies. He testified at trial that he had nothing to do with an April 24 robbery, and that he had simply been driving around two co-defendants that day. His explanation for his presence at the scene of the robbery was that he was waiting in the car for one co-defendant in an alleyway. He thought the co-defendant was visiting a friend and was surprised to see the co-defendant “jog” up to the car followed by police. When police drew their guns, defendant jumped into the backseat and hid. The Seventh Circuit upheld an obstruction of justice increase based on defendant’s perjury. The district court stated it was not simply finding that defendant committed perjury based upon his denial of guilt, but that he had willfully and intentionally attempted to obstruct justice. U.S. v. Williams, 553 F.3d 1073 (7th Cir. 2009).
7th Circuit upholds reckless endangerment enhancement for reaching for gun while in flight. (461) Defendant pled guilty to conspiring to possess with intent to distribute heroin and crack, and firearms charges. The district court applied a §3C1.2 enhancement for reckless endangerment during flight because defendant reached for his gun while fleeing from arresting officers. The court found that when defendant reached for his gun, no matter what his intent was in doing so, he created a substantial risk of harm warranting the increase. Defendant risked causing one of the officers to shoot and possibly hit another officer, or defendant, or some other person in the area. The Seventh Circuit affirmed the enhancement. Although the court incorrectly considered the danger to defendant himself, the error was harmless because simply reaching for a loaded gun is enough to create a substantial risk of serious bodily injury to another person. The risk is even greater where, as here, the person handling the gun is also running at full speed. U.S. v. Easter, 553 F.3d 519 (7th Cir. 2009).
7th Circuit rules court sufficiently identified false statements to support obstruction increase. (461) Defendant withheld employment taxes, including federal income taxes, FICA, and Medicare, from her employees pay, but failed to make tax deposits to the government or to pay the matching employer’s contribution for employment taxes. The district court applied an obstruction of justice enhancement, finding defendant made repeated statements under oath to the jury and to the court that, for a two-year period, she did not know that she was not paying the employee withholding taxes, that she did not make a conscious decision to stop paying taxes, and she did not act willfully or purposefully. The Seventh Circuit held that the court sufficiently identified the perjurious statements made by defendant. The fact that the court did not cite a specific part of the record did not matter. In addition to identifying the false statement, the court also made findings regarding the other elements of the obstruction increase in detail. U.S. v. Ellis, 548 F.3d 539 (7th Cir. 2008).
7th Circuit approves obstruction enhancement for trial perjury. (461) Defendant was the driver in an armed bank robbery. At trial, he testified that he believed he was driving his co-defendants to a marijuana transaction, not a bank robbery. He claimed that he sped away from the police in the getaway van because he was under duress; his co-defendants had put a gun to his head. Defendant also testified that he deliberately crashed the van into a pole to put an end to the high-speed chase, and fled the crash scene because he thought the van was going to explode. The district judge concluded that defendant’s testimony was not credible. The Seventh Circuit approved an obstruction of justice increase, finding it “obvious” that defendant lied. U.S. v. Price, 516 F.3d 597 (7th Cir. 2008).
7th Circuit upholds finding that defendant attempted to threaten or intimidate potential witness. (461) Defendant pled guilty to drug charges after a number of his drug associates, including Raymond, began cooperating with law enforcement. While defendant was free on bond pending sentencing, he left his work area and approached Raymond at her work station. He claimed he wanted to ask her why she had lied to law enforcement agents about him. Raymond denied talking to investigators about him. The conversation became heated after Raymond told defendant that her cousin, a retired police officer, had told her to let him know if defendant ever bothered her. Defendant told Raymond he was going to do his time in jail just as she should have to do her time and that she was no better than anyone else. When Raymond threatened to call her cousin, defendant directed profanities at her and then walked away. Raymond also claimed that during the encounter defendant told her that he had “a gun and three bullets and if one bullet doesn’t do the job, one of the other two will.” The Seventh Circuit affirmed an obstruction of justice increase. The timing, setting and context of defendant’s confrontation of Raymond supported the finding that he was attempting to threaten or intimidate her. U.S. v. Johnson, 497 F.3d 723 (7th Cir. 2007).
7th Circuit affirms obstruction enhancement based on false trial testimony. (461) At his trial for possession of illegal fireworks, defendant testified that he did not purchase fireworks from one manufacturer, but two of his accomplices testified that they helped defendant buy fireworks from that manufacturer. Defendant also testified that he did not sell illegal fireworks in 1999, even though an undercover agent bought those fireworks from defendant’s business in that year. The district court enhanced defendant’s sentence under § 3C1.1 for obstruction of justice based on his trial testimony. The Seventh Circuit affirmed, holding that the credible testimony of defendant’s accomplices was sufficient to show that defendant committed perjury. U.S. v. Shearer, 479 F.3d 478 (7th Cir. 2007).
7th Circuit examines guideline issues before issuing limited Booker remand. (461) Before remanding defendant’s case to the district court to determine if it would have imposed the same sentence had it realized that the Sentencing Guidelines were advisory only, U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), the Seventh Circuit examined the guideline issues defendant raised to guide the district court’s deliberations. The district court applied a § 2D1.1 (b)(1) weapon increase based on a gun found under the mattress in defendant’s bedroom and the gun she kept in her purse. Defendant was selling drugs out of the house, and displayed a firearm to a co-conspirator to intimidate him. The panel saw “no clear error in these factual findings, whatever their relevance may be to the ultimate sentence.” The obstruction of justice increase found the most support in the record. The district court found that defendant lied when she testified that she had no knowledge of the drug trafficking conspiracy. However, the jury verdict contradicted this assertion. The court also found that defendant lied when she said that the drug ledger did not belong to her, and when she claimed that she was not acting as a lookout for a drug sale. The jury’s findings strongly contradicted these assertions. U.S. v. Parra, 402 F.3d 752 (7th Cir. 2005).
7th Circuit says failure to make perjury findings was harmless error. (461) The district court applied a § 3C1.1 obstruction of justice increase, finding that defendant had perjured himself in his trial testimony. The court noted that defendant told “a lie which no one would believe,” but which constituted his defense. While these findings were “too skimpy” to satisfy U.S. v. Dunnigan, 507 U.S. 87 (1993), the Seventh Circuit found that the error was harmless. It was clear from the record that defendant took the stand in his defense and lied when he denied possessing a gun. Defendant’s testimony that Allen put the gun in his pocket directly contradicted a witness’s account of the events. The court found defendant’s version incredible, as did the jury, and the lack of more explicit findings on materiality or intent, although regrettable, did not justify remanding this case for resentencing. U.S. v. Saunders, 359 F.3d 874 (7th Cir. 2004).
7th Circuit says defendant waived objection to court’s failure to cite specific instances of perjury. (461) In challenging a § 3C1.1 obstruction of justice increase, defendant argued that the government failed to abide by the district court’s order requiring the defendant to be provided notice of what statements would be used against him. The Seventh Circuit disagreed, since the PSR did not make a factual finding or calculation to which the government could object. Instead, the report noted that the probation officer was not present during trial and could not determine whether defendant willfully provided false testimony that would meet the criteria for obstruction of justice. Although defendant contended that the court failed to articulate any specific instances of perjury when it applied the adjustment, he did not object to the court’s lack of specific findings at sentencing. Because defendant did not object at sentencing, the issue was waived. U.S. v. Mutuc, 349 F.3d 930 (7th Cir. 2003).
7th Circuit upholds obstruction increase for perjury about escape from prison camp. (461) Defendant wandered away from a minimum security prison “camp.” At trial, he testified that he had wandered into the woods to pray and gotten lost but had every intention of returning. The Seventh Circuit affirmed an obstruction of justice increase based on defendant’s perjury at trial. Defendant’s testimony was inconsistent with the testimony of a corrections officer who inadvertently discovered defendant as he was walking away from the camp. Defendant initially tried to hide from the officer, and only became cooperative when the officer warned defendant that he could return with the officer to the camp or be chased down by U.S. marshals. U.S. v. King, 338 F.3d 794 (7th Cir. 2003).
7th Circuit affirms obstruction increase for asking witness to give false alibi. (461) Prior to trial in the present robbery conspiracy case, defendant was tried for robbery in a state court proceeding. At the state trial, defendant and a woman, Calvin, testified that they were together at a place far from the bank during the robbery, thus providing an alibi for defendant. Defendant was acquitted by the jury in that trial. For the present federal case, defendant had listed Calvin as an alibi witness and subpoenaed her. Testifying before the grand jury, Calvin and another woman recanted defendant’s alibi and testified that defendant had asked them to lie about being with him at the time of the robbery. The district court applied an obstruction of justice increase after finding that defendant had attempted to convince Calvin to lie to federal authorities for him. The Seventh Circuit affirmed the obstruction increase. Defendant’s argument that this was merely a “he said, she said” situation was simply an attack on the sufficiency of the evidence supporting the court’s findings of fact as to the credibility of the witnesses. Defendant’s unsupported assertions were insufficient to make the court’s credibility findings clearly erroneous. U.S. v. Sutton, 337 F.3d 792 (7th Cir. 2003).
7th Circuit upholds obstruction increase based on trial perjury. (461) Defendant was convicted of mail fraud for a scheme to defraud elderly investors. The district court found that defendant committed perjury by willfully providing false testimony concerning statements he made to Grinnell. At trial, defendant testified that he told Grinnell to inform investors that the promissory notes were risky investments. Grinnell denied being told that information by defendant. The district court found defendant’s testimony more credible given her continued use of the fraudulent brochures and the sheer number of investors. The court also noted that on cross-examination, defendant initially answered that he had given Grinnell the disclaimer “in so many words,” but when pressed further, he unequivocally responded that he told her to inform investors of the risk. The court also found that defendant’s testimony was material and a point on which defendant was not likely to be mistaken or confused. It also was willfully given. Given these findings and the fact that defendant argued only that the court should not have believed Grinnell over him, the Seventh Circuit held that the obstruction of justice increase was not clear error. U.S. v. Sims, 329 F.3d 937 (7th Cir. 2003).
7th Circuit agrees that defendant attempted to intimidate witness. (461) Defendant suspected Allen of tipping off police to his motorcycle gang’s drug dealing. When Allen got out of jail, he discovered several of his vehicles and other valuable items were missing. Defendant promised Allen that he would get his property back if it turned out that he had not been giving information to police. A few months later, Allen was scheduled to testify before the grand jury when defendant cornered him outside the hearing room and asked him about the proceedings. When police later found defendant sitting in a van outside the building, he claimed that he was there to support his daughter-in-law, who was also scheduled to appear that day. The district court did not believe this story, finding that defendant’s conduct was intended to intimidate Allen. The Seventh Circuit found no clear error. U.S. v. Boos, 329 F.3d 907 (7th Cir. 2003).
7th Circuit applies obstruction increase for continued mailing of papers to judge, prosecutor and court employees after court order to stop. (461) Defendant, who adhered to the tenets of the Moorish Science Temple, believed, among other things, that he was entitled to compensation for every mention of his name. Defendant demanded that the prosecutor, witnesses, and judge enter into compensation contracts before defendant would acknowledge the court’s authority. Before trial, he used his mailing privileges to sent the judge the prosecutor, personnel in the clerk’s office, and several potential witnesses copies of a security agreement requiring them to pay $500,000 for each use of his name. The district court directed defendant in open court to cease mailing these documents. Defendant refused to comply, and in sentencing, the court concluded that defendant had obstructed justice. The Seventh Circuit affirmed. The judge noted that clerks and others in the courthouse had asked to be relieved from the case because they were fearful of getting frivolous bills. Moreover, the enhancement is authorized not only for successful obstruction but also for any attempt to obstruct justice. U.S. v. James, 328 F.3d 953 (7th Cir. 2003).
7th Circuit applies reckless endangerment increase to defendant who threw loaded weapon with safety off. (461) While attempted to avoid arrest, defendant ran into nearby woods. Officers pursued with guns drawn, and a police dog eventually cornered defendant. By then, he had discarded his gun, which a police officer located and retrieved from an area of undergrowth that witnesses described as a “briar patch.” As the officer pulled the gun from the briar patch, the weapon discharged, fortunately causing no injuries. In support of a § 3C1.2 reckless endangerment increase, the government argued that (1) by leaving the rifle in a briar patch, defendant created a substantial risk that the gun would discharge, as it actually did, when pursuing officers tried to retrieve it, and (2) defendant created a risk that the rifle would fire simply by throwing it with a round in the chamber and the safety off. The Seventh Circuit affirmed the enhancement based on the court’s finding that defendant threw the rifle with a round in the chamber and the safety off. There was no evidence about why the briar patch was an unsafe place to leave a weapon, and nothing in the record explained why the gun went off. However, throwing a rifle, which was fully capable of firing, could actually cause the gun to go off when it hit the ground, thus creating a risk of serious injury to pursing officers. U.S. v. Lard, 327 F.3d 551 (7th Cir. 2003).
7th Circuit applies obstruction increase for perjury at suppression hearing. (461) Defendant was stopped by police officers for failing to signal a traffic turn. After determining defendant’s driver’s license had been suspended, he was placed under arrest. During an inventory search of his car, officers found a loaded pistol. Defendant was convicted of being a felon in possession of a firearm. The district court applied an obstruction of justice increase because defendant falsely testified at a suppression hearing that he had used his turn signal the night of the incident. The court concluded that defendant had intentionally exaggerated while under oath at the suppression hearing on the “critical” issue at stake; namely, whether he had his turn signal operating on the night of his arrest. The Seventh Circuit held that the district court’s findings encompassed all the factual predicates for a finding of perjury (materiality, willfulness, and falsity), and thus affirmed an obstruction of justice increase. U.S. v. Bass, 325 F.3d 847 (7th Cir. 2003).
7th Circuit applies obstruction increase based on threats to witnesses. (461) Although defendant raised challenges to several of the court’s grounds for an obstruction of justice increase, defendant did not dispute the statement attributed to him – that he would “send some friends from Kansas to ‘F’ up [a co-conspirator’s] family” if he talked to the authorities.” The Seventh Circuit found that defendant’s conduct of threatening witnesses provided a sufficient basis for the obstruction of justice enhancement. Although defendant contended that the statement was merely “jailhouse bravado,” the district court found that the statement was a threat. U.S. v. Chatmon, 324 F.3d 889 (7th Cir. 2003).
7th Circuit applies obstruction increase where grand jury testimony was contradicted by defendant’s later admissions. (461) The Seventh Circuit affirmed an obstruction of justice increase. There was sufficient evidence to support the court’s finding that defendant’s statements before the grand jury were false, given his own admission at his change of plea hearing that the government’s recitation of the factual basis underlying the plea was essentially correct. Moreover, the testimony of several witnesses at the sentencing hearing supported the perjury finding. U.S. v. Blalock, 321 F.3d 686 (7th Cir. 2003).
7th Circuit affirms obstruction increase for implausible and preposterous story. (461) Defendant was involved in a scheme to possess and distribute drugs. In particular, he received a call from his brother asking him to get a warehouse ready for a drug delivery. Defendant secured a warehouse by bribing employees of the warehouse. At trial, he claimed that he believed he was securing a warehouse for the purpose of “souping-up” a truck for a tractor pull. The district court found this story to be implausible and preposterous and applied an obstruction of justice increase. The Seventh Circuit found that this conclusion was not clearly erroneous. U.S. v. Gonzalez, 319 F.3d 291 (7th Cir. 2003).
7th Circuit upholds obstruction increase based on selective inability to remember at co-defendants’ trial. (461) While defendant provided complete testimony against the other defendants in front of the grand jury, at trial he stated that he could not remember the facts as they related to the others. The district court found this purported lack of memory to be perjurious and thus a material obstruction of justice. The Seventh Circuit upheld an obstruction of justice increase. Defendant’s claim that selective inability to remember was just a coincidence (at trial he still remembered everything about his own involvement), was too incredible to merit further discussion. Defendant’s claim that his obstruction was unrelated to his case because it was at the trial of his co-defendants was unavailing because the relevant guideline has been amended to include obstruction in closely related offenses. U.S. v. Gonzalez, 319 F.3d 291 (7th Cir. 2003).
7th Circuit holds that general findings were sufficient to support obstruction increase. (461) Defendant argued that the judge failed to make proper findings when imposing a two-level enhancement for obstruction of justice under § 3C1.1. Although the Seventh Circuit agreed that more specific findings would have been preferable, separate findings of fact regarding each element of perjury are not strictly necessary to uphold an obstruction increase so long as the trial court determines that the defendant lied to the judge and jury about matters crucial to the question of defendant’s guilt. Here, the court found that defendant lied when he said that drugs were planted on him and/or in his car. This was sufficient to describe a “failure to give truthful testimony on material matters that were designed to substantially affect the outcome of the case.” U.S. v. Holman, 314 F.3d 837 (7th Cir. 2002).
7th Circuit affirms that defendant who looked for wire on informant believed investigation was “probably underway.” (461) Investigators used a confidential informant to make a controlled purchase of drugs from defendant at a bar. After the informant spent a short time in the bar, he came out with defendant. Defendant lifted up his own shirt and appeared to try to get the informant to raise his shirt, as if looking for a hidden wire. The informant ran from defendant, and defendant chased him on foot and then in his car. The informant took refuge in the officers’ unmarked vehicle. Defendant pursed the informant and the officers in his car and cornered them in an alley. The officers drew their weapons and defendant then drove away. Defendant challenged an obstruction of justice increase, arguing that there was inadequate evidence to show that he knew that an investigation was underway when he confronted the informant, and that at best, it showed that he was attempting to find out if an investigation was underway. Although the issue was close, the Seventh Circuit held that district court’s finding that defendant believed an investigation was probably underway was not clearly erroneous. Defendant lifted up his shirt and appeared to try to get the informant to lift his shirt. It was reasonable to infer that defendant was looking for a wire, which would lead to the reasonable inference that defendant believed an investigation was “probably underway. U.S. v. Tirado, 313 F.3d 437 (8th Cir. 2002).
7th Circuit holds that truck driver that stole load used special skill. (450) Defendant, a licensed commercial truck driver, picked up a load containing more than $64,000 worth of toys. Instead of delivering the shipment, defendant pulled off the road at various points and sold toys off the back of the truck, using the money to support his drug habit. The Seventh Circuit affirmed a § 3B1.3 special skill enhancement. This circuit has previously held that the skills necessary to operate an 18-wheeler constitute a special skill. U.S. v. Lewis, 41 F.3d 1209 (7th Cir. 1994). Defendant’s skill facilitated the commission of the crime. First, defendant’s extraordinary skill in driving a truck, including his record of two million miles of accident free driving, gave him access to the load of toys, even though he had, by his own admission, ten previous felonies. His skills allowed him to drive the load away from its owner, disable the tracking device to conceal his whereabouts along the route, and pull off at selected stops to sell the good he was hired to deliver. Without his special skills, he would not have had the access or means to steal these goods and transport them between states. U.S. v. Smith, 332 F.3d 455 (7th Cir. 2003).
7th Circuit holds that lie to police did not justify obstruction increase but perjury did. (461) 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 affirms obstruction increase for attempt to send police on wild goose chase and false trial testimony. (461) A black man wearing a construction vest and an orange hardhat robbed a bank. Pursuing police officers came upon defendant at a gas station, and after observing that he matched the description of the bank robbery suspect, they arrested him. Defendant claimed that his car had just been stolen by a black man wearing a construction vest and that he had come to the station to call police. After he was taken into custody, defendant was identified as the robber by several eyewitnesses. The Seventh Circuit affirmed a § 3C1.1 obstruction of justice enhancement based on the fabricated story defendant gave to police. Although defendant contended that his fabricated story did not “significantly” obstruct or impede the investigation, the law of the circuit says that actual prejudice to the government resulting from the defendant’s conduct is not required. Defendant’s statement to the police was an attempt to waste valuable police resources by setting the police on a wild goose chase for a helmet-clad car thief who did not exist. Moreover, during his trial testimony, defendant denied, under oath, that he told the police someone dressed like the bank robber stole his car the day of the heist. U.S. v. Owens, 308 F.3d 791 (7th Cir. 2002).
7th Circuit affirms obstruction increase for perjury during suppression hearing. (461) At 4 a.m., while patrolling an area known for drugs, police officers observed defendant walking in the middle of the right lane of traffic. Concerning for his safety, the officers stopped the defendant and recognized him as a drug dealer who the officers had previously arrested in the same location. The officers searched defendant and found crack and a firearm. Defendant moved to suppress the firearm and drugs. At his suppression hearing, defendant testified that he was walking on the side of the road and that he did not have crack cocaine in his pocket. The district court found that the officers’ testimony was truthful and that defendant’s version was false, and imposed an obstruction of justice increase. The Seventh Circuit affirmed. The court reviewed defendant’s testimony and assessed his credibility. The court found his testimony untruthful as to several points material to the issues raised in the hearing, that is, whether there were sufficient facts to support reasonable suspicion for a Terry stop. The court’s findings were sufficient to support the increase. U.S. v. Jackson, 300 F.3d 740 (7th Cir. 2002).
7th Circuit applies obstruction increase for refusal to comply with court order to supply a voice exemplar. (461) Shortly after the government rested its case, defendant’s counsel informed the prosecution that he intended to call an FBI agent to the stand to testify about the government’s use of voice exemplars in another case as a means of voice identification. The aim of this testimony was to suggest that the FBI’s language expert lacked an adequate basis upon which to identify defendant’s voice on the tape recordings because the government had not used voice exemplars. After the court overruled the government’s objection to this line of inquiry, the government asked the court to order defendant to provide a voice exemplar. Defendant refused, and the court imposed an obstruction of justice based on that refusal. The Seventh Circuit affirmed, rejecting defendant’s claim that the government deprived him of due process by waiting until he had already commenced his defense to make its request for a voice exemplar. Defendant opened the door to that request by putting on testimony that called into question the reliability of the government’s voice identification. In no sense was he “set up” by the government. U.S. v. Mansoori, 304 F.3d 635 (7th Cir. 2002).
7th Circuit applies obstruction increase for false statement to probation officer about source of income. (461) The district court applied a § 3C1.1 obstruction increase because of defendant’s false statement to the probation officer that he had worked at Flemons’ Express. However, Flemons stated that defendant had not worked there and that he had fabricated pay stubs on defendant’s behalf because defendant had told him that he needed to show his probation officer that he had a job. Given that defendant’s lie to the probation officer was part of a continuing scheme to hide his true source of income (drug sales), the Seventh Circuit ruled that the district court did not clearly err in finding that defendant willfully obstructed justice. The court also did not clearly err in finding that defendant’s false statements were material, as they concerned his personal history – a major factor in the sentencing determination. U.S. v. Partee, 301 F.3d 576 (7th Cir. 2002).
7th Circuit applies increase for high-speed chase through residential neighborhood. (461) After being aware that a co-conspirator was arrested, defendant immediately sped off in his car in a clear attempt to avoid being apprehended. The officers identified themselves to defendant and demanded that he stop his vehicle. Instead, defendant picked up speed, traveling through a residential neighborhood at a speed of up to 50 miles an hour. He led police on a high-speed chase and in the process, his vehicle hit a police vehicle, ran over an officer’s foot and collided with another car on a residential street. These acts posed a danger to the officers and innocent bystanders. The Seventh Circuit found that these circumstances fell squarely within the scope of § 3C1.2 for creating a substantial risk of serious bodily injury. U.S. v. Thomas, 294 F.3d 899 (7th Cir. 2002).
7th Circuit holds that defendant need not know of investigation for obstruction to be “willful.” (461) Defendant “heard” that Sutton might have told the police about their drug deals. Defendant told Sutton that “[talking to the police] was a good way to get a bullet in the head.” The district court found that defendant had obstructed the investigation by threatening Sutton. Defendant argued that in order for § 3C1.1 to apply, he would have to know or believe that an investigation was underway, otherwise there was no “willful” violation. However, knowledge of an investigation is not required for a “willful” violation to occur. See U.S. v. Snyder, 189 F.3d 640 (7th Cir. 1999). The term “willful” does not mean “knowing” or “aware,” it means “intentionally” or “deliberately.” See U.S. v. Jenkins, 275 F.3d 283 (3d Cir. 2001). Accordingly, the Seventh Circuit affirmed the obstruction of justice increase. U.S. v. Martin, 287 F.3d 609 (7th Cir. 2002).
7th Circuit affirms obstruction increase for false claim at suppression hearing. (461) Defendant moved to suppress the evidence obtained in the search of his home on the grounds that he never gave consent to search. He submitted an affidavit in support of his motion stating that the officers never asked for consent to search, he never gave consent to search, and any consent he did give was not voluntary. The district court found the consent to search was voluntary and refused to suppress the evidence. It also found that his false statement was “willfully false and certainly material to the issue at hand.” Note 4(f) to § 3C1.1 says that the obstruction of justice increase may be imposed for “providing materially false information to a judge or magistrate.” The Seventh Circuit ruled that the district court’s findings were sufficient to support the obstruction increase. U.S. v. Martin, 287 F.3d 609 (7th Cir. 2002).
7th Circuit relies on hearsay that defendant participated in witness intimidation. (461) After determining that Templin had informed on him, Matias and defendant visited Templin at home. Templin’s roommate answered the door and defendant restrained her while Matias confronted Templin. Defendant challenged a § 3C1.1 obstruction of justice increase, arguing that there was no direct proof that he was at the residence, because Templin only relayed what her roommate told her happened and did not see defendant herself. The Seventh Circuit found no error. The Federal Rules of Evidence do no apply at sentencing hearings, and the judge may consider information that would not be admissible at trial, including uncorroborated hearsay. The district court found that defendant attempted to obstruct justice by aiding and abetting Matias’s efforts to intimidate Templin, and by restraining Templin’s roommate. The court’s findings were sufficient to support the increase. U.S. v. Martin, 287 F.3d 609 (7th Cir. 2002).
7th Circuit applies obstruction increase for threatening witness. (461) Defendant threatened Johnson shortly after authorities sent a co-conspirator a “target” letter informing him that he had become the focus of a federal criminal investigation. The government argued that defendant knew Johnson had witnesses his drug-dealing and that he must have surmised that Johnson was providing information to the government. Defendant argued that there was no nexus between his threats and Johnson’s statements to police, and that the threats were part of an unrelated dispute that occurred prior to the federal investigation. However, Johnson testified that she ran into defendant shortly after she had been interviewed by police, and he had threatened to make her “another Daley case,” a local unsolved murder in which defendant’s sister had been charged with but not convicted. The Seventh Circuit found no error. Defendant pointed to nothing in the record that suggested that the court’s decision to credit Johnson’s testimony constituted clear error. U.S. v. Crowley, 285 F.3d 553 (7th Cir. 2002), superseded on other grounds by guideline as stated in U.S. v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir. 2004).
7th Circuit says voluntary and intentional failure to report for trial was willful. (461) The district court applied an obstruction of justice increase based on defendant’s failure to appear at trial. Defendant argued that his failure to appear was not willful, pointing out that he did not attempt to engage in illegal activities, flee the jurisdiction, alter his appearance or otherwise elude authorities. The Seventh Circuit held that the failure to appear was willful because it was voluntary and intentional. Defendant’s attorney told the court that defendant was absent “against [his] strong and repeated advice.” When the court recessed to allow defendant the opportunity to show up for trial, counsel paged defendant. Counsel reported to the court, on the record, that defendant had called in response to the page and stated that he was not coming to the court. Thus, defendant knew that his presence was required in court on his trial date and nevertheless decided not to attend. Because of defendant’s actions, his trial did not begin until more than two months after it was originally scheduled. It was not necessary that defendant attempt to flee the jurisdiction or forcibly resist arrest when apprehended in order for his behavior to constitute obstruction. U.S. v. Bolden, 279 F.3d 498 (7th Cir. 2002).
7th Circuit finds defendant’s assault on co-defendant obstructed justice. (461) Defendant argued that his assault on his co-defendant did not obstruct justice because the attack occurred after he had admitted his involvement in the conspiracy. The Seventh Circuit found this argument unavailing because defendant attacked the co-defendant before pleading guilty. All that is required for obstruction of justice is that the act “could affect, to some reasonable probability, the outcome of the judicial process; the [act] does not have to succeed in affecting the outcome.” U.S. v. Duncan, 230 F.3d 980, 988 (7th Cir. 2000). The Seventh Circuit found it was possible that the attack on the co-defendant could have influenced him to retract his statement and perhaps embolden defendant to go to trial or to dispute relevant conduct. There was no clear error. U.S. v. Mayberry, 272 F.3d 945 (7th Cir. 2001).
7th Circuit holds that perjury findings were sufficient to support obstruction increase. (461) The Seventh Circuit ruled that the district court’s perjury findings were sufficient to apply a § 3C1.1 obstruction enhancement. The court was not simply relying on the jury’s guilty verdict to find that defendant perjured himself. Nor was the court applying the enhancement because of a simple denial of guilt. Rather, the court applied the increase because the court found that defendant provided intentionally false information on several material matters. Namely, defendant lied about transactions occurring outside his cooperation with law enforcement, and lied about the code he used on the telephone to communicate with other conspirators about drug sales. He also lied about his participation in the conspiracy. All of these were material to the charge of conspiring to possess with intent to distribute cocaine, and the court did not err in applying the obstruction enhancement. U.S. v. Williams, 272 F.3d 845 (7th Cir. 2001).
7th Circuit applies obstruction increase based on denial of relevant conduct. (461) Defendant was convicted of embezzling money from the bank where he was employed. The district court found that defendant had perjured himself at sentencing when he (1) denied that he caused certain withdrawals from customer accounts that were presented as relevant conduct, and (2) claimed that he never intended to keep the funds that he was charged with embezzling. The Seventh Circuit found that the district court did not clearly err in determining that defendant’s denial of relevant conduct amounted to perjury. Moreover, although defendant claimed that he did not intend to keep the funds he admitted embezzling, there was ample evidence to the contrary. For example, defendant did not return these funds to the bank until after the FBI had visited him and indicated that it knew that he had taken the money without authorization. Moreover, defendant admitted that he had placed these funds in accounts set up in the names of relatives and that he had used the money for his personal benefit. These facts supported a finding that defendant intended to conceal these withdrawals and to appropriate the money on a permanent basis. U.S. v. Anderson, 259 F.3d 853 (7th Cir. 2001).
7th Circuit holds that court’s findings encompassed all required elements of perjury. (461) Defendant argued that the district court failed to make sufficient findings to support an obstruction of justice. The Seventh Circuit affirmed the enhancement, ruling that the court’s findings encompassed all of the required elements of perjury. Although the district court did not identify the exact statements that were perjurious, the court did specifically point to testimony that conflicted with the agents’ account of defendant’s post-arrest statements – his denial of the fact that he knew his brother was a drug dealer and that he went to a drug transaction with his brother to help count the money. The court’s findings encompassed falsity, willfulness, and materiality. It was clear that the district court found defendant’s testimony at trial contradicted the arresting officers’ account of his earlier post-arrest statements, and that the officers’ account was inherently more reliable. U.S. v. Carrera, 259 F.3d 818 (7th Cir. 2001).
7th Circuit upholds obstruction increase for perjury. (461) Defendant challenged the court’s enhancement of his sentence for obstruction of justice. The Seventh Circuit affirmed. The district court was entitled to disbelieve defendant’s trial testimony, which was contrary to admissions he made to law enforcement officers and to the testimony of other witnesses. U.S. v. Green, 258 F.3d 683 (7th Cir. 2001).
7th Circuit holds that perjury findings satisfied Dunnigan. (461) Defendant argued that the district court erred in applying a § 3C1.1 obstruction of justice increase without first making specific findings of perjury. The Seventh Circuit disagreed, ruling that the court’s findings satisfied the test in U.S. v. Dunnigan, 507 U.S. 87 (1993). The court found that defendant’s denial of selling crack was “a complete and utter falsehood that amounts to perjury, because quite clearly, as well, it’s willful. I … make no finding that [defendant] was at all confused or had any sort of bad memory in light of that testimony.” The court also found that the testimony concerned a material matter, stating “this type of falsehood … goes directly to issues of Relevant Conduct, which is central to his sentence.” U.S. v. Jefferson, 252 F.3d 937 (7th Cir. 2001).
7th Circuit upholds obstruction increase for falsely denying prior arrests. (461) During the presentence investigation, the probation officer asked defendant about previous arrests and convictions. Defendant indicated that he had not been arrested in Utah. The probation officer later determined that defendant had been arrested on multiple occasions in that state; and at least one of these arrest had culminated in a conviction. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s failure to disclose those arrests. Although the guidelines do not oblige the defendant to volunteer information to the probation officer, neither do they permit him to lie about his criminal record. Note 4(h) recognizes that a defendant willfully obstructs justice within the meaning of the guidelines when he gives “materially false information to a probation officer in respect to a presentence or other investigation for the court.” Lies about one’s arrest record constitutes obstruction of justice. See U.S. v. Thomas, 11 F.3d 1392 (7th Cir. 1993). U.S. v. Ruiz, 249 F.3d 643 (7th Cir. 2001).
7th Circuit upholds obstruction increase based on testimony of five witnesses. (461) The district court found that defendant committed perjury by lying about his reasons for running from his home during the police raid, by coaching and orchestrating Burke’s false confession and paying him for it, by falsely denying that he owned the gun in the closet, by untruthfully professing that he did not deal drugs, and by lying about lacking knowledge about the safe in Spaeth’s apartment and drugs in Burke’s car. Defendant argued that the judge’s perjury finding was supported only by the testimony of government witnesses. The Seventh Circuit ruled that this was insufficient to overturn the judge’s determination. The testimony of five witnesses supported the judge’s finding that defendant committed perjury when he denied involvement in the cover-up. U.S. v. Noble, 246 F.3d 946 (7th Cir. 2001).
7th Circuit affirms obstruction increase for perjury at change of plea hearing. (461) The district court applied an obstruction of justice increase because it found that defendant perjured himself when he testified at his change of plea hearing that he did not actually brandish or point his handgun at any bank employees during his robbery. At sentencing, the bank manager and one of the tellers testified that defendant pointed the gun at them and held it to their backs, and the manager stated that defendant held the gun to his head. The district court credited the testimony of the bank employees over defendant’s and found by a preponderance of the evidence that defendant’s testimony was both false and material. The Seventh Circuit ruled that the district court did not clearly err. U.S. v. Banks-Giombetti, 245 F.3d 949 (7th Cir. 2001).
7th Circuit upholds obstruction increase even though defendant later claimed his memory was hazy. (461) Because of his admitted heroin addiction, each morning before trial defendant’s blood was tested for the presence of heroin. Throughout the course of the proceedings, defendant’s tests were negative. At trial, the government presented eight witnesses who testified that defendant knowingly and actively participated in the insurance fraud. Despite this testimony, defendant took the stand in his defense, denying his involvement in the insurance fraud scheme. The district court applied an obstruction of justice enhancement based on defendant’s perjury at trial. Defendant argued that he did not willfully provide false testimony, suggesting that as a result of his constant heroin use, his memory of events was quite hazy. The Seventh Circuit held that the district court did not commit clear error in finding defendant’s claim of a hazy memory to be unpersuasive. Defendant did not take the stand and claim that his heroin use had caused him not to remember what he had done during the years in question. Rather, he flatly and categorically denied involvement in the scheme, in blatant contradiction to numerous witnesses’ testimonies. Defendant was not under the influence of drugs when he gave this testimony. Even if defendant were not lying now, his testimony at trial asserting that he did not participate in the scheme was still sufficient to warrant the § 3C1.1 increase. U.S. v. White, 240 F.3d 656 (7th Cir. 2001).
7th Circuit credits testimony that defendant’s phone call constituted threat. (461) Defendant placed a collect call to Toombs after he had entered his guilty plea but prior to sentencing. Toombs reported that in the course of that conversation, defendant asked Toombs why he had given the gun to the police. Also, according to Toombs, defendant asked Toombs not to testify against him if he were asked to do so. After hearing Toombs’ testimony, the district court applied a § 3C1.1 obstruction of justice increase, finding that the contents of defendant’s telephone call constituted an “implied threat.” The Seventh Circuit affirmed, ruling that the district court acted within its discretion in crediting this testimony and making the factual finding that defendant threatened Toombs. The panel rejected defendant’s challenge to the reliability of Toombs’ testimony. Although Toombs could not remember exactly what defendant told him during the telephone call, he did state several times that he remembered the substance of the conversation: “that it would be best” if Toombs did not testify. U.S. v. Irby, 240 F.3d 597 (7th Cir. 2001).
7th Circuit holds that perjury findings were adequate for obstruction increase. (461) Defendant challenged an obstruction of justice enhancement, contending that the district court’s perjury findings were inadequate because the judge did not find that he had willfully given false testimony. The Seventh Circuit found no clear error. The court independently evaluated defendant’s testimony and found him untruthful when his testimony was compared to that of the other witnesses. Defendant’s statements that he did not deal drugs out of the house or that the drugs found near him were not his could not be said to be the result of confusion, mistake, or faulty memory. U.S. v. Gardner, 238 F.3d 878 (7th Cir. 2001).
7th Circuit holds that court’s perjury findings were sufficient for obstruction enhancement. (461) Defendant was convicted of being a felon in possession of a firearm. The court found that defendant committed perjury in testifying that he was an expert in firearms, that he did not own or have access to the firearms, nor possess the keys to the gun cabinet, and that he did not purchase guns from Wright. This testimony was contradicted by the government’s witnesses. The Seventh Circuit held that the district court’s finding met all the standards required for the § 3C1.1 obstruction of justice enhancement. Separate findings on each element of perjury are not strictly necessary. U.S. v. Ofcky, 237 F.3d 904 (7th Cir. 2001).
7th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant defrauded the federal government by submitting false Medicare reimbursement claims on behalf of an ambulance company she operated. The district court applied an obstruction of justice enhancement, finding that defendant had lied in testifying about three matters: (1) calls she made to a doctor’s office; (2) the conduct of a federal agent during the investigation; and (3) whether certain (unspecified) conversations with her employees occurred. Defendant argued that the court did not make the necessary findings on the elements of perjury. The Seventh Circuit rejected this argument given the following statement made by the district judge: “I didn’t believe [defendant’s] testimony was the result of confusion, mistake, or faulty memory. I thought it really did function more as a creative revision of what had happened.” Although defendant contended that the first two instances of alleged perjury did not qualify as perjury, the district court did not commit clear error in finding that defendant perjured herself in giving this testimony. U.S. v. Freitag, 230 F.3d 1019 (7th Cir. 2000).
7th Circuit uphold obstruction increase for offering employee money to testify falsely. (461) Defendant defrauded Medicare and Medicaid through her home health care supply company. She billed these programs for supplies that patients never ordered, for supplies that patients never received, and for supplies that were not ordered or prescribed by a doctor. The district court found that defendant had obstructed justice by offering to pay a former employee $700 to testify falsely that “skin barriers” were medically necessary for all patients, by producing false documents to mitigate the loss to the victims of the fraud and by removing medical supplies from a patient’s home to thwart an ongoing investigation. The Seventh Circuit affirmed the § 3C1.1 increase. There was factual support in the record for each of the district court’s findings regarding the enhancement. The former employee’s testimony was material. All that is required for an obstruction enhancement is that the suborned perjury could affect, to some reasonable probability, the outcome of the judicial process; the suborned perjury does not have to succeed in affecting the outcome. If the former employee had testified that skin barriers were medically necessary for all patients, as defendant asked her to do, it was possible that defendant would not have been held responsible for overbilling for skin barriers. It was of no consequence that the employee never actually testified falsely. U.S. v. Duncan, 230 F.3d 980 (7th Cir. 2000).
7th Circuit affirms obstruction increase for transferring ownership of business after police raid. (461) Defendant operated massage parlors that were fronts for his prostitution business. After his operation was raided, defendant reacted by transferring ownership of his businesses to his son, but he continued to maintain de facto control over the operation. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s transfer of the business to his son after it was raided. The district court found that defendant transferred the property to “divert” the authorities from his enterprise. While defendant argued that “divert” was not the same thing as “obstruct,” or “impede,” this parsing of the district court’s finding was disingenuous. Defendant’s intent was “to divert at least the investigative officers and agents and the prosecutors from pursuing this matter any further.” Thus, the court found that defendant intended to obstruct justice, and this finding was not clearly erroneous. The fact that defendant transferred his property by way of a deed which was a matter of public record did not matter. Evidence is material if, when believed, it tends to influence or affect the issue under determination. See Note 6 to § 3C1.1. Here, who owned the business was material to the money laundering and conspiracy convictions. U.S. v. Baker, 227 F.3d 955 (7th Cir. 2000).
7th Circuit applies obstruction increase for threatening government witness. (461) While awaiting sentencing, defendant was imprisoned at the same county jail as Nelson, a cooperating co-conspirator. Nelson reported to the government that defendant had threatened Nelson’s life because Nelson was planning to testify for the government. According to Nelson, he was entering the jail’s gym while defendant was leaving. Defendant accused Nelson of setting him up, then pointed his finger at Nelson as if it were a gun, and said “pow.” Defendant also told Nelson “when you hit the streets, you dead.” The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s threats against Nelson. A rational trier of fact could find that Nelson was a credible witness. The testimony of prison officials corroborated, in part, Nelson’s testimony. The officials reported on the prisoners’ housing patterns and activities and explained that it was not impossible for the incident to have occurred. Also, as soon as Nelson left the jail, he reported the threats to the DEA and then moved out of the state. U.S. v. Johnson, 227 F.3d 807 (7th Cir. 2000).
7th Circuit says obstruction increase not incompatible with acceptance reduction. (461) Defendant, the president of a credit union, helped Binet, the chairman of the board, defraud the credit union in a number of transactions. Defendant testified before the grand jury that he refused to participate in Binet’s scheme to use the credit union’s money to purchase a collateralized mortgage obligation residual (CMOR) for their own profit, and had no idea whether Binet ever did so. However, defendant later admitted in his plea agreement that he participated in the CMOR’s purchase and shared in its profits. Defendant also failed to mention that he had conspired to alter the minutes of the board meetings. The Seventh Circuit affirmed an obstruction of justice increase. Based on evidence of defendant’s and Binet’s intertwined dealings and Binet’s testimony, the district court found that defendant had willfully withheld information about material facts. The obstruction enhancement was not incompatible with defendant’s receipt of a reduction for acceptance of responsibility. Defendant’s plea agreement noted that because defendant admitted his guilt after being confronted with evidence that he caused the minutes to be altered, he would fall under note 4 to § 3E1.1, which allows for both an obstruction increase and an acceptance reduction. U.S. v. Lopez, 222 F.3d 428 (7th Cir. 2000).
7th Circuit rules multiple enhancements for conduct during flight were not double counting. (461) The district court imposed multiple enhancements for defendant’s conduct while escaping from a bank robbery: (1) under § 2B3.1(b)(4) for taking a teller hostage during his escape from the bank; (2) under § 3A1.2(b) for assaulting an officer by pointing his gun at the officer several times during the escape; and (3) under § 3C1.2 for endangering others during flight by causing a pursuing officer to fire on him and by driving the wrong way down a one-way street. Defendant argued that the § 3C1.2 enhancement penalized him for conduct already accounted for under the two other guidelines. The Seventh Circuit disagreed. The three enhancements punished three different aspects of defendant’s conduct during his flight from the bank. The district court’s finding that defendant’s driving posed a substantial risk of serious bodily injury or death to another person was not clearly erroneous. U.S. v. White, 222 F.3d 363 (7th Cir. 2000).
7th Circuit agrees that perjury was material. (461) Defendants marketed phony investment documents called “prime bank instruments” to unsuspecting victims. The district court found that defendant committed perjury at trial when he “testified to the validity of the prime bank instruments.” Defendant argued that his statements were neither false nor material, and that he testified only that he believed the prime bank instruments were valid, not that they actually were valid. The Seventh Circuit found that this argument took defendant’s testimony out of context, and affirmed a § 3C1.1 obstruction increase. Defendant testified at length about the mechanics of the instruments, and overall made it clear that he was portraying them as legitimate investment vehicles. This perjury was material to the offense of conviction—laundering the proceeds of an illegal investment scheme. U.S. v. Polichemi, 201 F.3d 858 (7th Cir. 2000).
7th Circuit affirms obstruction enhancement based on perjury during suppression hearing. (461) At the suppression hearing, both defendants testified that they invoked their right to counsel and asked for an attorney. The interviewing agents, however, testified that each defendant signed written waivers of their right to remain silent after being fully advised of their rights. After listening to this testimony, the district court found that defendants lied under oath. Accordingly, the Seventh Circuit ruled that an obstruction of justice enhancement was not clearly erroneous. U.S. v. Frazier, 213 F.3d 409 (7th Cir. 2000).
7th Circuit applies obstruction increase for defendant’s testimony that he did not receive Miranda warning. (461) The district court applied an obstruction of justice increase based on what the court classified as defendant’s perjurious testimony that he did not receive his Miranda warnings. Defense counsel claimed that her client may have been “innocently” mistaken in his assertion and that due to confusion and noise he did not recall whether he received the warning. However, the judge disagreed, since if that were the case, defendant would have said he did not really remember. Instead, defendant affirmatively stated that he did not receive the warning. The Seventh Circuit affirmed the increase, deferring to the trial judge on issues relating to the credibility of witnesses. Moreover, by rejecting defendant’s claim that he was confused, the court essentially concluded that the testimony was intentionally false. The testimony was material because defendant was attempting to suppress statements he made to police that the prosecution intended to use in their case against him. U.S. v. Stokes, 211 F.3d 1039 (7th Cir. 2000).
7th Circuit applies obstruction enhancement for perjured testimony at trial. (461) The district court applied an obstruction of justice enhancement for defendant’s perjured testimony at trial that he did not know Tia Musarra or Michelle Procter. The court made an independent finding that defendant lied, concluding that defendant’s testimony was so diametrically opposed to that of the other witnesses that one version had to be a lie. The court credited the version of facts set out by the other witnesses, noting that this version was supported by other evidence in the case including travel records and the presence of defendant’s nickname in Musarra’s address book. Thus, the district court concluded that defendant’s testimony was intentionally false and not the result of confusion or faulty memory. The Seventh Circuit held that the district court’s finding was not clearly erroneous. U.S. v. Turner, 203 F.3d 1010 (7th Cir. 2000).
7th Circuit holds that obstruction enhancement not double counting. (461) Defendant leased illegal gambling machines to local bars and taverns. He did not report his illegal income to the IRS and encouraged bar owners to lie about how much money they received from the gambling machines. Defendant also entered into backdated lease agreements with the bar owners that misrepresented the income received from the machines. Defendant argued that the court double counted when it used the same conduct to establish his obstruction conspiracy and to support a § 3C1.1 obstruction of justice enhancement. The Seventh Circuit rejected the double counting argument because the enhancement was based on different conduct. See note 7 to § 3C1.1 (enhancement proper if a significant further obstruction occurred). In this case, when defendant became aware of the IRS investigation, he tried to influence witness testimony. He encouraged bar owners to lie about their payment arrangements, asking them to say they paid a flat rate for the machines instead of splitting the profits. U.S. v. Lanzotti, 205 F.3d 951 (7th Cir. 2000).
7th Circuit applies obstruction enhancement for bribing witness not to implicate defendant. (461) Warwick testified that while he was in jail, defendant instructed him not to talk to police. The next day, while waiting in a holding cell before their appearance in court, defendant told both Warwick and Gonzalez to stay quiet and not implicate defendant and his girlfriend in the drug stop. In exchange for their silence, defendant would get them attorneys and “put money in their books.” Defendant also discussed helping the two men make bond so they could flee the jurisdiction if released. Defendant argued that a § 3C1.1 obstruction of justice enhancement did not apply because there was no testimony that defendant threatened Warwick with bodily harm, nor a threat of any nature. The Seventh Circuit affirmed the enhancement, since the guidelines do not require a threat of bodily harm, nor a threat of any nature. Also, defendant did more than advise Warwick to exercise his 5th Amendment right to remain silent; defendant also told Warwick not to implicate defendant and his girlfriend. As a reward, defendant promised the two men the services of an attorney and money. The fact that defendant only sent Warwick $300 was irrelevant. The guidelines do not contain a minimum bribe amount. U.S. v. Richards, 198 F.3d 1029 (7th Cir. 2000).
7th Circuit applies obstruction enhancement for false testimony to exculpate family. (461) Defendant and his wife conspired with his brother Gilbert and Gilbert’s wife to burn down defendant’s house for the insurance proceeds. The district court applied an obstruction of justice enhancement based on defendant’s testimony that Tony, a second brother, had no involvement in the fraud scheme. Defendant testified that no one, including Tony, entered the house after the arson investigator left the premises. However, Gilbert testified that he and Tony entered defendant’s house and removed newspaper from the couch and the walls. Because defendant’s statements were made to exculpate his family, the Seventh Circuit found no error in the obstruction enhancement. The Seventh Circuit also affirmed an obstruction enhancement for defendant’s wife based on her testimony that Tony and his wife were not involved in the conspiracy. This testimony contradicted statements that she made to insurance adjusters and to the FBI prior to trial. U.S. v. Kroledge, 201 F.3d 900 (7th Cir. 2000).
7th Circuit affirms obstruction enhancement for lies to investigators. (461) Defendant conspired with his brothers and their wives to burn down a house to collect the insurance proceeds. The district court applied an obstruction of justice enhancement because defendant provided an alibi for his brother and sister-in-law on the night of the fire. Defendant argued that any misstatements were immaterial because they were made early in the investigation. The Seventh Circuit disagreed. Although misstatements made to investigators that do not force investigators to expend additional resources are not material, pretrial statements that significantly obstruct or impede an investigation are material. Moreover, although defendant claimed that his statements were mistakes made by a simple man confused by the proceedings, the district court found that his statements were made willfully in an attempt to obstruct justice. The Seventh Circuit also affirmed an obstruction of justice enhancement for defendant’s wife, who falsely told investigators that the brother and his wife lived in the basement apartment of Mathews while the house was being rebuilt. Mathews testified that the wife asked her to lie to investigators, and asked Mathews whether she could use Mathews’ name on receipts submitted to the insurance company. U.S. v. Kroledge, 201 F.3d 900 (7th Cir. 2000).
7th Circuit applies obstruction enhancement for perjury at suppression hearing. (461) At a suppression hearing, defendant falsely testified that police officers did not read him his Miranda rights, and falsely claimed that officers threatened him to alter the contents of his statements. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury during the suppression hearing. Since defendant did not challenge the enhancement at the time of sentencing, the judge was entitled to adopt the PSR’s findings without making independent findings on the record. Although the PSR did not contain a finding of materiality, because defendant did not dispute the enhancement, an appellate court needed only to review whether the record’s silence on materiality was likely to have made a difference in the judgment. In this case, the sentencing judge presided at the suppression hearing, and thus was better qualified than the author of the PSR to assess the materiality of defendant’s perjury. Defendant’s falsehoods were material. If the judge had believed defendant’s version of the events, he might have suppressed the statements. Therefore, they were “designed to influence the outcome of the issue under determination,” namely the admission of the statements. U.S. v. Galbraith, 200 F.3d 1006 (7th Cir. 2000).
7th Circuit says failure to appear at trial obstructed trial. (461) Defendant failed to appear at his scheduled bond execution hearing. After he was indicted for failure to appear, defendant appeared for an initial appearance and was held without bond. After a plea agreement was reached, defendant was once again released. He then failed to appear at a change of plea hearing and another arrest warrant was issued. After defendant failed to appear for trial, another bench warrant was issued. U.S. Marshals attempted to arrest defendant but he escaped. When marshals finally located defendant days later, he slammed the front door of the house in the face of the officers, requiring them to break down the door in order to take custody of defendant. The Seventh Circuit affirmed a § 3C1.2 enhancement since defendant’s conduct clearly obstructed the investigation and trial of his case. Defendant absented himself from three duly scheduled court appearances. As a result, there were three arrest warrant issued against defendant during the pendency of the proceedings; the third arrest warrant being issued based on defendant’ failure to appear at his own trial. An individual who does not appear at his own trial obviously obstructs the trial. U.S. v. Blackman, 199 F.3d 413 (7th Cir. 1999).
7th Circuit applies obstruction enhancement for perjury about type of cocaine. (461) The district court applied an obstruction of justice enhancement because defendant committed perjury when he testified that he distributed powder, rather than crack, cocaine. Defendant argued that inconsistencies in his testimony were not willful or material, but arose out of his confusion about the differences between crack and cocaine base, his frustration with Mandley’s inaccurate statements regarding the volume and frequency of her drug buys from defendant, and his insistence that the government meet its burden of proof. The Seventh Circuit upheld the sentencing judge’s finding that defendant’s testimony was perjurious. The court highlighted the testimony it found perjurious, and stated that the testimony was intentionally false, rather than a result of confusion, mistake or faulty memory. The court also referred to the materiality of defendant’s inconsistent statements. The type of cocaine defendant distributed as well as the scope of his relevant conduct were material because they were central to the sentencing in this case. U.S. v. Branch, 195 F.3d 928 (7th Cir. 1999).
7th Circuit says lie that did not affect sentence was still material. (461) Defendant entered a bank carrying a briefcase, a hidden BB gun, and a note saying that he had a gun and a bomb. At his plea hearing and in a statement to his probation officer, defendant denied possessing the gun. At sentencing, the judge found that defendant had the BB gun with him during the robbery and ruled that the briefcase qualified as a dangerous weapon by virtue of the note saying that defendant had a bomb. See note 1(d) (a harmless object that appears to be a dangerous weapon is treated as a dangerous weapon). Because the briefcase was classified as a dangerous weapon, the judge concluded that defendant’s lie about the gun was not material, and so was not an obstruction of justice. The Seventh Circuit ruled that the district court misconstrued the legal concept of materiality. A lie is material if it could, with some reasonable probability, affect the outcome of the process. Whether the lie actually affected the sentence is immaterial. By falsely denying that he possessed the BB gun, defendant caused the probation service to find an alternative basis for the dangerous weapon enhancement. There was some chance that the judge, if she believed defendant’s lie about the gun, might not impose the enhancement. U.S. v. Buckley, 192 F.3d 708 (7th Cir. 1999).
7th Circuit applies obstruction enhancement for threatening victim about reporting crime. (461) Defendant and Lock engaged in sexual acts with an 11-year old boy. The Seventh Circuit affirmed an obstruction of justice enhancement based on the boy’s testimony that defendant showed him several pistols and rifles and threatened to kill him if he told anyone what they had been doing. Defendant argued that the boy was not credible since he also testified about imaginary fights with bikers and trips to a museum. In addition, Lock flatly denied any threats were made. However, Lock had not been sentenced at the time he testified, so he had an incentive to deny that the boy had been threatened. Furthermore, the boy’s testimony was corroborated by the pistols and rifles that were found in defendant’s house. Whether defendant was aware that he was under investigation at the time the threats were made was irrelevant, since defendant did not withdraw his threats after the investigation began, and so obstructed justice during the course of the investigation. U.S. v. Snyder, 189 F.3d 640 (7th Cir. 1999).
7th Circuit rules reckless endangerment enhancement not inconsistent with assault acquittal. (461) When police attempted to arrest defendant, he drove straight at them, forcing them to jump out of the way in order to avoid being run over. Defendant then led police on a high-speed chase through a residential neighborhood. He was convicted of robbery and firearms charges, but the jury acquitted him of assaulting a federal officer. Defendant argued that since he was acquitted of the assault charges, it was improper for the district court to enhance his sentence under § 3C1.1 for reckless endangerment. The Seventh Circuit held that the reckless endangerment enhancement was not inconsistent with defendant’s acquittal on assault charges. First, the assault charge and the reckless endangerment enhancement were not substantively equivalent. Second, the standard of proof for the assault charge was guilt beyond a reasonable doubt, while the standard of proof for the sentencing enhancement was a preponderance of the evidence. A court may consider acquitted conduct as long as that conduct has been proven by a preponderance of the evidence. The government met its burden when it established that defendant had led police on a high-speed chase through a residential neighborhood. U.S. v. Watson, 189 F.3d 496 (7th Cir. 1999).
7th Circuit applies obstruction enhancement for trying to get friend to testify falsely about gun ownership. (461) The sentencing judge found that defendant had attempted to obstruct justice by asking Kirk to falsely claim responsibility for a gun found in defendant’s car. As part of this scheme, Kirk misstated the facts to an officer early in the investigation. However, once the trial began and Kirk was placed under oath, he decided to tell the truth, stating that defendant had borrowed the gun from him on the evening of his arrest, and that he had never been in defendant’s car. The Seventh Circuit affirmed the § 3C1.1 enhancement. The trial judge did not clearly err in relying on Kirk’s testimony. An appellate court will not disturb a district judge’s credibility determination unless it is completely without foundation. The judge here noted that Kirk had incriminated himself in numerous criminal drug activities, had no apparent motive to fabricate testimony about this issue because he and defendant were friends, Kirk’s story was corroborated by other testimony, and defendant “had every reason in the world” to avoid the gun charge because of the penalty he would face as a felon. U.S. v. Mancillas, 183 F.3d 682 (7th Cir. 1999).
7th Circuit applies obstruction enhancement to two different counts. (461) Defendant argued that the court engaged in double counting by adding a two-level obstruction of justice enhancement to Count One (being a felon in possession of a firearm) and Count Three (possession of marijuana with intent to distribute). The Seventh Circuit found no double counting since the obstruction enhancement applied to two separate counts. Double counting refers to the impermissible practice of assessing more than one enhancement to the offense level for a single offense based on the same underlying conduct. Defendant’s conduct was not cited as grounds for two separate enhancements on the same count, but for two separate counts. U.S. v. Mancillas, 183 F.3d 682 (7th Cir. 1999).
7th Circuit says defendant’s denial of recruiting fictitious students was material. (461) Defendant worked at a beauty school that defrauded the federal government of thousands of dollars through a scam involving the distribution of Pell Grant funds. The district court enhanced her sentence under § 3C1.1 for obstruction of justice, finding she was less than honest when testifying about her role as a recruiter for the school. The Seventh Circuit held that the district court’s factual findings were adequate to support the obstruction enhancement. The court identified the testimony it found false – defendant’s denial that she recruited fictitious students. The issue of recruiting students was material to the government’s case against her. It clearly went to the question of her guilt and would influence a jury as to its decision about her guilt. The recruiters were an intricate part of the scam. Without them, the fictitious students would not have flowed through the school’s doors. U.S. v. Craig, 178 F.3d 891 (7th Cir. 1999).
7th Circuit rejects use of “two-witness rule” at sentencing. (461) The district court applied an obstruction of justice enhancement because it found that defendant perjured himself at trial. Defendant argued that the “two-witness rule” of the federal criminal perjury statute, 18 U.S.C. § 1621, applied here. To prove that a defendant gave false testimony in violation of § 1621, the government must provide either the testimony of two witnesses, or the testimony of one witness and “sufficient corroborative evidence.” The Seventh Circuit upheld the enhancement and rejected the application of the two-witness rule at sentencing. The Federal Rules of Evidence do not apply at sentencing. A sentencing court is free to consider a wide range of information, including hearsay evidence, that may be inadmissible at trial. However, a defendant’s sentence must be based upon reliable information. In this case, the district court based the enhancement on the testimony of three credible witnesses. These indicia of reliability were more than enough to support the enhancement. U.S. v. Menting, 166 F.3d 923 (7th Cir. 1999).
7th Circuit says conviction under firearm statute still subject to obstruction enhancement. (461) Defendant pled guilty to a single drug trafficking count and to carrying a weapon during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). He argued that § 924(c) is not amenable to guideline enhancements, and thus he should not have received a § 3C1.1 guideline enhancement. The Seventh Circuit found that defendant misinterpreted U.S. v. Mrazek, 998 F.2d 453 (7th Cir. 1993). That case said that a § 924(c) conviction “precludes the enhancement the Guidelines would otherwise provide.” The words “the enhancement” were not a blanket prohibition on any guideline enhancement, but referred specifically to a § 2K2.4 increase for using a firearm during a bank robbery. When a defendant gives false testimony with the intent to secure a lower sentence, a court may impose a § 3C1.1 enhancement. In this case, the district court based the obstruction enhancement on defendant’s testimony at his withdrawal of plea hearing, which was at odds with his Rule 11 hearing averments. U.S. v. Martinez, 169 F.3d 1049 (7th Cir. 1999).
7th Circuit relies on hearsay evidence that defendant attempted to influence witnesses. (461) Defendant was convicted of armed robbery. At sentencing, a police officer testified that defendant attempted to intimidate or influence the testimony of two witnesses. About three weeks before trial, a man in custody told the officer that defendant had asked him to go to the house of one of defendant’s victims and offer drugs and to return the items defendant had stolen from the victim. The victim and her sister told the officer that the man did in fact communicate this message to them. The officer also testified that his partner received a phone call from another victim who reported that a woman came to his house and said that she had “an offer” for the victim from defendant. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s efforts to influence the witnesses. Congress has explicitly permitted the use of hearsay testimony in sentencing proceedings. Defendant did not present any information suggesting that the hearsay was inaccurate or unreliable. The fact that one potential witness was in custody did not make him unreliable. U.S. v. Eskridge, 164 F.3d 1042 (7th Cir. 1998).
7th Circuit rules court satisfied Dunnigan in applying obstruction enhancement for perjury. (461) Defendant and his son were involved in a long-term conspiracy to distribute cocaine. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury at trial and at sentencing. The district court made independent findings of perjury and identified the specific false testimony that supported the obstruction enhancement. The court stated that defendant lied about a locked door to his son’s room and lied about how he financed his cocaine purchases. The judge also listed numerous other discrepancies between defendant’s testimony and other witnesses’ testimony regarding material facts. Although a court must construe testimony in the light most favorable to defendant, this does not require the court to accept the defendant’s version of events. All it means is that when the judge “after weighing the evidence, has no firm conviction,” the benefit of the doubt goes to the defendant. U.S. v. Hach, 162 F.3d 937 (7th Cir. 1998).
7th Circuit approves obstruction enhancement for lies about relevant conduct. (461) From 1990 to 1994, defendant was the police chief of a suburb of Chicago. During his four-year tenure, he accepted $500 a month from organized crime to protect illegal gambling in the town’s bars and restaurant. Between 1980 and 1990, defendant had been police chief of another suburb, and he took bribes there to protect illegal gambling in that town. The district court applied an obstruction of justice enhancement because defendant concealed his earlier bribes from the probation service. The Seventh Circuit held that defendant’s lies about his relevant conduct justified the § 3C1.1 enhancement. A defendant obstructs justice both when he makes it more difficult for the government to apprehend or convict him, and when he makes it more difficult for the court to give him the sentence he deserves. U.S. v. Sapoznik, 161 F.3d 1117 (7th Cir. 1998).
7th Circuit applies obstruction enhancement for lies about state of mind. (461) Defendant repeatedly submitted fraudulent loan applications to various lenders. The district court applied a § 3C1.1 obstruction of justice enhancement because it found he was less than truthful when he explained his state of mind at the time he completed the applications and when he gave his purported interpretation of the words used on the applications. The Seventh Circuit affirmed the obstruction enhancement. The district court found that defendant was well aware that the various loans were unsecured and that his contradictory testimony was false. The court’s findings were a permissible view of the evidence. U.S. v. Swanquist, 161 F.3d 1064 (7th Cir. 1998).
7th Circuit applies obstruction enhancement for suborning perjury. (461) Defendant was involved in a scheme to steal a trailer containing eight marine engines. A few months after the theft, defendant was observed using a backhoe to dig a large hole in the ground at his father’s business. One of the stolen engines was eventually discovered buried in the spot where defendant had been seen digging. At trial, defendant’s only witness testified that he, rather than defendant, had dug the hole in which the stolen engine was found. This testimony was directly contradicted by two government witnesses. The Seventh Circuit affirmed an obstruction of justice enhancement for suborning perjury. U.S. v. Miller, 159 F.3d 1106 (7th Cir. 1998).
7th Circuit finds lies were material even though defendant admitted possessing firearms. (461) A jury convicted defendant of being a felon in possession of a firearm based on two weapons police found in his house in early 1997. Defendant argued that because he admitted the elements of the offense, any untruthful testimony relating to other matters was immaterial and thus not perjury for § 3C1.1 purposes. The Seventh Circuit affirmed the § 3C1.1 enhancement because the district court found defendant’s testimony material. Defendant gave false testimony concerning the officers’ entry into his home, his reasons for possessing the weapons, his criminal association with two drug dealers, and his plans to rob another drug dealer. Although defendant was unsuccessful in obtaining a jury instruction regarding the need for him to possess the weapons, he clearly attempted to affect the outcome of the trial. His attempted defense was perjurious. U.S. v. Santoro, 159 F.3d 318 (7th Cir. 1998).
7th Circuit finds obstruction for lying to police about location of stolen money. (461) Defendant stole $700,000 in Indiana. He told police that all of the money, except for $30,000 he had spent, had been stolen from his car in Pennsylvania. He told police to look at pry marks on the car, which was parked outside the police station. However, despite the pry marks, there was no sign of a forced entry. Nevertheless, police investigated the theft by traveling to Pennsylvania to make inquiries. Defendant argued that his lie was not an obstruction of justice because the crime was complete and therefore, the location of the money was immaterial. Moreover, the lie did no harm because the police did not believe it. The Seventh Circuit rejected this argument. Defendant’s failure to return the money was material to sentencing because it justified the denial of an acceptance of responsibility reduction, and sentencing is part of the prosecution. Moreover, defendant’s lies caused police to go to another state to investigate, and thus obstructed justice even if they were immaterial to guilt or the sentence. U.S. v. Wells, 154 F.3d 412 (7th Cir. 1998).
7th Circuit finds obstruction and denies § 3E1.1 reduction based on changing story. (461) Defendant committed two bank robberies. She was arrested with her boyfriend. During a post-arrest interview with FBI agents, she denied her boyfriend was involved and said she robbed the banks because she needed the money for herself and her children. After police found a loaded pistol in her van, she told FBI agents that her boyfriend had instructed her to rob both banks, but that neither she nor the boyfriend possessed the gun at the time of the robberies. However, at her plea hearing, she said the boyfriend held the gun in his lap en route to the second robbery. At sentencing, defendant said the boyfriend had a gun during both robberies. The Seventh Circuit affirmed an obstruction of justice enhancement and denied an acceptance of responsibility reduction based on defendant’s changing story. Even if defendant told the court the truth, and had lied to the FBI agents, as she contended, her false statement that there was no gun concealed the very reason for the robbery–coercion with a gun. Thus, her false statements were material. In addition, there was evidence that the statement impeded the investigation. The government was forced to dismiss its criminal complaint against the boyfriend. Defendant did not deserve a § 3E1.1 reduction. Her increasing efforts to invoke a claim of coercion suggested that she attempted to shift blame to her boyfriend rather than accept responsibility for her conduct. U.S. v. Gibson, 155 F.3d 844 (7th Cir. 1998).
7th Circuit applies obstruction increase for coaching co-conspirator on story to tell investigators. (461) Defendants partially owned and operated an aluminum smelting company. They entered into a scheme in which a co-conspirator’s company submitted false invoices, or invoices to cover personal work at defendants’ houses, to the smelting company. Defendants would write checks to cover these invoices, and defendants and the co-conspirator would split the proceeds. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendants’ efforts to coach the co-conspirator regarding what he should say to the FBI. They met with the co-conspirator to discuss how to deal with any audits or investigations, told the co-conspirator what to say to the FBI, and told the co-conspirator to destroy records. U.S. v. Mankarious, 151 F.3d 694 (7th Cir. 1998).
7th Circuit holds acquittal on one count did not make perjury finding improper. (461) The district court applied a § 3C1.1 enhancement for obstruction of justice based on its findings that defendant committed perjury at both the suppression hearing and at trial. Defendant claimed that the court’s finding was erroneous because, although he was convicted on three counts, the jury acquitted him on one count, which demonstrated that he may not have testified falsely and committed perjury. The Seventh Circuit found that the acquittal had nothing to do with the court’s finding that he committed perjury. A district court’s perjury finding is based primarily on the issue of credibility, and an appellate court gives near absolute deference to a court’s credibility determination because the judge observed the witness first-hand. U.S. v. Mattison, 153 F.3d 406 (7th Cir. 1998).
7th Circuit says other evidence did not make perjury immaterial for obstruction purposes. (461) Defendants were involved in a large “chop shop” conspiracy that involved several interlocking businesses from body shops to junkyards in at least four states. The Seventh Circuit affirmed obstruction of justice enhancements for four of the defendants based on their perjury at trial. One defendant argued that his testimony was not material, as required by § 3C1.1, because the government had so much other evidence that it did not matter in the grand scheme of things. The court rejected this argument. U.S. v. Griffin, 148 F.3d 850 (7th Cir. 1998).
7th Circuit upholds obstruction enhancement based on perjury at suppression hearing. (461) The district court found defendant committed perjury during a suppression hearing when he testified that during his interrogation, the police pointed a gun at his head and that he made no statement to the police immediately following his arrest. The Seventh Circuit upheld an obstruction of justice enhancement. Although the district court did not use the word “willful” in making its findings, the court’s reasoning plainly revealed its judgment that defendant deliberately gave false testimony. Immediately after identifying the perjured testimony, the court castigated defendant for another act of intentional duplicity¾his carefully documented false identity. Also, the substance of defendant’s allegations¾that a gun was held to his head and that police fabricated the statements he made during the interrogation¾was not the type of testimony about which a defendant could be unintentionally mistaken. U.S. v. Doe, 149 F.3d 634 (7th Cir. 1998).
7th Circuit approves obstruction enhancement for testimony that had “no hint of believability.” (461) Defendant was convicted of drug conspiracy charges based on several packages containing drugs that were shipped from Los Angeles to Milwaukee. Defendant had taken several short trips to Los Angeles. The government believed that the trips were to buy the drugs and ship them to Milwaukee. However, defendant testified at trial that the trips to California were to meet two women. However, he was unable to remember the names or phone numbers of the women. The Seventh Circuit upheld an obstruction of justice enhancement based on defendant perjury at trial. The district court said that defendant’s story “had no hint of believability” and that it did not believe that defendant had testified truthfully about his reason for the trips. The court found the testimony incredible, so it was not required to point to conflicting evidence. U.S. v. Brimley, 148 F.3d 819 (7th Cir. 1998).
7th Circuit applies obstruction enhancement for flight while attorney negotiated plea. (461) Defendant learned he was the subject of a criminal investigation in November 1995 when he was interviewed by an FBI agent. In January, defendant’s attorney contacted the assistant U.S. attorney in charge of the case and began negotiating a plea. In February, defendant sold his cars, and fled to another state under an assumed identity. When he was arrested in May, he was living under the assumed name and had several identifications under that name, had altered his hair color, and had a book on how to create a new identity. Defendant argued that an obstruction enhancement was improper under note 4(d) to § 3C1.1 because he was merely avoiding or fleeing arrest. The Seventh Circuit affirmed the obstruction enhancement because this was not the spontaneous flight from arrest to which note 4(d) refers, but a calculated and deliberate plan to evade authorities where an indictment was imminent. U.S. v. Porter, 145 F.3d 897 (7th Cir. 1998).
7th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant, the business manager of his local union, was convicted of mail fraud and embezzlement of union funds. The Seventh Circuit affirmed an obstruction of justice enhancement based on his perjury at trial. The judge specifically found four instances of false statements during the trial by defendant which constituted obstruction of justice. The judge independently evaluated defendant’s testimony and found that he was untruthful. Nothing more was required. U.S. v. Carlino, 143 F.3d 340 (7th Cir. 1998).
7th Circuit finds obstruction where defendant named someone else as his accomplice. (461) Defendant and his brother robbed a bank. Defendant was arrested 10 days later but did not identify his brother as the accomplice. Instead, he told police that his accomplice was a person called “G-Dog” whom he could not identify further. Defendant was then tried and convicted. About a month later, his brother turned himself in to the FBI and admitted his participation in the robbery. The Seventh Circuit upheld an obstruction of justice enhancement based on the false information defendant gave to police about his accomplice. Defendant’s false statements and lack of cooperation added several months to the investigation while they searched for G-Dog. Defendant’s statements went well beyond a simple refusal to identity his brother as the accomplice. Defendant suggested a specific person whose identity defendant did not know¾a crack user who might be found in the local neighborhood under the name G-Dog. Moreover, defendant solicited a letter from his brother that was designed to falsely minimize the role defendant had played in the robbery. U.S. v. Taylor, 135 F.3d 478 (7th Cir. 1998).
7th Circuit rules increase cannot be based on lies unrelated to offense of conviction. (461) 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 finds obstruction in telling girlfriend to say defendant had no knowledge of crimes. (461) Defendant and two women traveled through several states stealing credit cards and using the cards to acquire merchandise and cash. After their arrest, defendant sent one co-defendant who was his girlfriend a letter instructing her to say that he had no knowledge of any illegal activity until the day they were arrested, and to be “real convincing” and “consistent” to avoid an obstruction of justice charge. He argued that the letter did not constitute an obstruction of justice because he did not threaten or bribe his girlfriend, but was simply “reinforcing an idea.” The Seventh Circuit upheld an obstruction of justice enhancement because the district court reasonably found the letter was an attempt to suborn perjury. The letter was a “thinly veiled means of rehearsing their cover story.” Defendant’s relationship with the girlfriend explained why he did not need to threaten or bribe her. The fact that the letter was unsuccessful was irrelevant. The enhancement also applies to attempts to obstruct justice. U.S. v. Ewing, 129 F.3d 430 (7th Cir. 1997).
7th Circuit applies § 3C1.2 for 60 mph flight through residential areas on rainy day. (461) Defendant challenged an increase under § 3C1.2 for reckless endangerment during flight, claiming he drove away from postal inspectors “at a low rate of speed.” The Seventh Circuit affirmed the enhancement based on testimony and surveillance tapes showing that defendant drove through residential areas on a rainy day reaching speeds of 60 mph, failed to stop at a stop sign, passed other vehicles, and forced at least one vehicle to stop in order to avoid an accident. This reckless conduct plainly warranted a § 3C1.2 enhancement. U.S. v. Emerson, 128 F.3d 557 (7th Cir. 1997).
7th Circuit findss obstruction for lies to investigators, influencing witnesses, and perjury. (461) Defendant, an employee of the U.S. Postal Service, hired contractors to perform work on post offices in exchange for kickbacks of money, vehicles, services and real estate. The Seventh Circuit approved an obstruction of justice enhancement because defendant gave false statements to postal inspectors, attempted to fabricate a common story and influence witnesses, and provided perjured testimony. Defendant lied by telling inspectors that he personally inspected all post offices to ensure that contract work was performed and to certify invoices for payment, that he paid contractors for work they performed on his personal properties, and that he purchased various properties from savings rather than kickbacks. He contacted one of the contractors at least twice in order to concoct a common story regarding their meetings and financial dealings. Finally, he committed perjury at trial. U.S. v. Emerson, 128 F.3d 557 (7th Cir. 1997).
7th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant was convicted of conspiracy to distribute cocaine and various counts of money laundering. During the course of the conspiracy, defendant supplied a musician with whom she was romantically involved with at least 8 kilograms of cocaine. She testified that she did supply the man with cocaine, she did not know he was a drug dealer and that he never gave her cash as payment for drugs. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury at trial. The district court clearly found that defendant “tried to peddle a fish story to the jury.” U.S. v. Thompson, 126 F.3d 1032 (7th Cir. 1997).
7th Circuit affirms obstruction enhancement despite claim that defendant lied to protect associate. (461) Defendant sold fraudulent second mortgage promissory notes through a business called American Association of Retired Taxpayers (AART). Defendant previously had worked with an associate at AART. Several years before defendant was arrested in this case, he told the associate that if anyone contacted the man regarding AART, the man should state that “Mike Keanally,” a fictitious person, had taken over the company. After defendant was arrested and released on bond, defendant spoke with the associate again and encouraged him to adhere to the Keanally story. Defendant argued that he merely agreed to stick to the lie for the associate’s behalf, and that he had no intent to obstruct justice in his own case. The Seventh Circuit affirmed an obstruction of justice enhancement. Regardless of defendant’s motive for lying, shifting the blame for the fraud scheme to a fictitious person would still obstruct justice. The investigation and prosecution of defendant’s case would have been impeded if both he and the associate has stuck to the Keanally story, and defendant would have benefited from the obstruction. U.S. v. Burke, 125 F.3d 401 (7th Cir. 1997).
7th Circuit affirms obstruction enhancement for intimidating witness. (461) Defendant was convicted of a conspiracy to distribute marijuana. The Seventh Circuit affirmed an obstruction of justice enhancement based on evidence that defendant distributed a “wanted” poster with a picture of a government witness described as a “snitch,” offering money to anyone who would beat up the witness. Defendant also tried to convince another co-conspirator not to testify. Although the “wanted” poster was never admitted into evidence, the enhancement was adequately supported by the other evidence. Two witnesses in addition to the informant testified about defendant’s efforts to obstruct justice. U.S. v. Lindsey, 123 F.3d 978 (7th Cir. 1997).
7th Circuit rejects challenge to obstruction increase even though defendant received § 3E1.1 reduction. (461) Defendant argued that the district court erred by imposing a 3C1.1 obstruction of justice enhancement when at the same time it gave him an acceptance of responsibility reduction under § 3E1.1. The Seventh Circuit held that the acceptance of responsibility reduction did not give defendant grounds for challenging the obstruction enhancement. The extraordinary case is the one in which, having obstructed justice, the defendant still qualified for the acceptance of responsibility reduction. If there were a problem here, it would be with defendant’s receiving an acceptance of responsibility reduction notwithstanding his obstruction of justice. The potentially aggrieved party was the government and not defendant. U.S. v. Shelby, 121 F.3d 1118 (7th Cir. 1997).
7th Circuit rules court made independent finding of perjury to support obstruction enhancement. (461) Defendant accompanied an associate purchasing drugs from an undercover agent. Arresting officers found a gun on defendant. The district court applied § 3C1.1 for lying on the witness stand, in particular regarding his claim that the gun was planted and he was framed. Defendant argued that the district court failed to make an independent determination of his perjury. The Seventh Circuit disagreed. At sentencing, the court noted that the facts at trial suggested only one thing–that defendant carried the weapon in relation to the drug transaction. In a subsequent decision and order, the judge reiterated that statement and added: “The Court found, independent of the jury’s conclusion, that [defendant] did not tell the truth when he explained away the presence of a gun on his person during the underlying arrest.” Because it was the basis of a § 924(c) charge, the gun’s appearance at the scene was material. U.S. v. Bonilla-Comacho, 121 F.3d 287 (7th Cir. 1997).
7th Circuit applies obstruction enhancement for perjury and failing to provide grand jury with financial records. (461) Defendant was involved in a Chicago crime syndicate. The Seventh Circuit affirmed a § 3C1.1 enhancement because defendant failed to comply with a grand jury subpoena for his financial records, and he perjured himself while testifying in his own defense. In response to a subpoena, defendant’s accountant gave him all of his financial records, including copies of IRS 1099’s which had been prepared but never filed by defendant. Rather than turning these over, defendant insisted that he never received the forms and submitted only cancelled checks and receipts. In addition, the judge properly found defendant’s testimony at trial to be “preposterous.” For example, defendant claimed he did not file tax returns because he did not have the enough money to pay his taxes and was afraid tax liens would ruin his credit. However, at the time he was “broke,” he purchased a $450,000 house, paid for $100,000 in improvements, bought a $54,000 limo, a $68,000 boat, and a $42,000 boat slip. U.S. v. Zizzo, 120 F.3d 1338 (7th Cir. 1997).
7th Circuit holds court must apply § 3C1.1 after finding defendant attempted or did obstruct justice. (461) Defendant and his family fraudulently procured unemployment compensation checks for fictitious employees of the bar and restaurant he owned with his brother. After defendant denied he was the one who ran the bar and directed the scheme, the government was forced to obtain handwriting exemplars to confirm his identity. Although the district court found that defendant attempted to falsify his handwriting exemplars, it did not apply § 3C1.1. The Seventh Circuit held once the government proves by a preponderance of the evidence that a defendant had willfully obstructed or impeded the administration of justice, the sentencing court has no discretion but to impose the § 3C1.1 enhancement. The court erred in not imposing the enhancement here once it determined that defendant falsified his handwriting exemplars. The judge improperly refused to apply the enhancement in light of his decision to deny defendant an acceptance of responsibility reduction in order to avoid what he considered to be an excessive sentence. The clear mandate of the guidelines precludes such an exercise of discretion. U.S. v. Zaragoza, 117 F.3d 342 (7th Cir. 1997).
7th Circuit affirms obstruction enhancement for failure to appear for sentencing. (461) The district court applied a § 3C1.1 enhancement based on defendant’s failure to appear for a sentencing hearing. The Seventh Circuit affirmed the district court’s finding that the failure to appear was willful. The PSR, which defendant acknowledged receiving, listed the hearing date on its front page. Defendant’s feeble response was that he must have overlooked the date, although he offered no reason why he might have done so. Defendant’s argument amounted to an attack on the court’s credibility determination. The court concluded that defendant acknowledged receipt of the PSR, which clearly showed the hearing date. The court also considered the fact that defendant had missed other hearing dates in the past. U.S. v. Green, 114 F.3d 613 (7th Cir. 1997).
7th Circuit rules court made satisfactory perjury finding. (461) Defendant participated in a conspiracy that staged auto accidents, made false medical claims, and then collected fraudulent insurance proceeds. The district court imposed an obstruction of justice enhancement based on defendant’s trial testimony that a staged accident was real. The Seventh Circuit affirmed, ruling that the district court made a satisfactory finding of perjury. The court stated that defendant’s testimony was “totally unbelievable, incredible” and that defendant perjured himself and obstructed justice. U.S. v. Green, 114 F.3d 613 (7th Cir. 1997).
7th Circuit finds obstruction in false testimony and attempts to stop co-defendants’ cooperation. (461) The district court applied an obstruction of justice enhancement because defendant testified falsely that he had not dealt crack after he was released from jail. He also attempted to pressure co-defendants to retract incriminating statements, and tried to get other co-defendants to withdraw their plea agreements and refuse to testify. The Seventh Circuit found sufficient evidence to support the § 3C1.1 obstruction enhancement. Although defendant attempted to discredit the witnesses, the court was entitled to believe those witnesses and disbelieve defendant’s denials. Defendant’s attempt to influence the witnesses was also a proper basis for the enhancement. The court properly considered the testimony of a police officer who had been informed of defendant’s activities by the co-defendants themselves. Although this was hearsay, the ordinary rules of evidence do not apply at sentencing. U.S. v. Pippen, 115 F.3d 422 (7th Cir. 1997).
7th Circuit finds obstruction in attempt to influence testimony on related offense. (461) Defendant was originally charged with conspiracy to defraud by passing worthless checks on his closed checking accounts. A superceding indictment added a money laundering count based on defendant’s paying his co-conspirator’s cash bond with proceeds from the scheme. The district court enhanced defendant’s sentence for obstruction of justice based on his visits to the jailed co-conspirator to discuss whether the co-conspirator was going to testify against defendant about the check cashing scheme. Defendant argued that the visits did not occur “during the investigation, prosecution, or sentencing” of the money laundering offense because they occurred before he was charged with money laundering. The Seventh Circuit held that § 3C1.1 does not require the obstruction to have occurred after the authorities have begun investigating the offense of conviction. Defendant’s attempt to influence his co-conspirator’s testimony on the check cashing scheme involved evidence material to his money laundering conviction. U.S. v. Laurenzana, 113 F.3d 689 (7th Cir. 1997).
7th Circuit rules defendant’s denial of knowledge was more than mere denial of guilt. (461) Defendant argued that the district court imposed an obstruction enhancement for perjury based solely on the jury’s rejection of his claim of innocence. The Seventh Circuit found that the district court properly imposed the obstruction of justice enhancement based on defendant’s perjury at trial. The court specifically remembered defendant’s testimony and found that it amounted to a denial of any knowledge that there was a cocaine transaction going on, which the court, as well as the jury, found incredible. The denial of knowledge is not the same as a general denial of guilt. U.S. v. Godinez, 110 F.3d 448 (7th Cir. 1997).
7th Circuit affirms obstruction increase for letter to co-defendant about cover story. (461) Defendant, a CPA, filed numerous false tax returns, each claiming a refund. The Seventh Circuit affirmed an obstruction of justice enhancement based on a letter defendant wrote to a co-defendant who had filed one of the fraudulent returns, advising the co-defendant how to behave if the IRS raised any questions about his refund. Contrary to defendant’s argument, the letter went beyond a simple suggestion to remain silent to IRS agents. He advised the co-defendant how to avoid talking to the IRS and also rehearsed the “facts” underlying the co-defendant’s tax returns. He suggested giving demonstratively false answers to the agents to avoid talking to them. Also, the “information” about the co-defendant’s alleged employment activities was false. The district court properly inferred that legitimate information about one’s employer and whether one was running his own business was something the co-defendant would have known on his own. U.S. v. Madoch, 108 F.3d 761 (7th Cir. 1997).
7th Circuit upholds obstruction enhancement for failing to appear before grand jury. (461) After having been served with a subpoena, defendant failed to appear before the grand jury and prevented his wife from appearing as well. The application notes to § 3C1.1 list failure to appear for a judicial proceeding as an example of obstruction of justice. Defendant argued that a grand jury proceeding is not a judicial proceeding. The Seventh Circuit did not address this claim since the list in the application notes is non‑exhaustive, and the relevant inquiry is whether defendant’s conduct was of the type contemplated by § 3C1.1. The district judge properly concluded that defendant’s conduct was detrimental to the investigatory process and he therefore had obstructed justice. U.S. v. Monem, 104 F.3d 905 (7th Cir. 1997).
7th Circuit upholds obstruction enhancement for asking clients to lie to IRS. (461) Defendant was an accountant who prepared tax returns for a fee. He prepared false tax returns for clients, claiming refunds to which the clients were not entitled. To conceal his identity from the IRS, defendant did not sign his name as a paid tax preparer. When one client was approached by the IRS, defendant advised her not to disclose his name to the IRS as the paid preparer of her false return. He gave the same advice to other clients who were approached by the IRS about their returns. The Seventh Circuit upheld an obstruction of justice enhancement based on defendant’s attempt to get his clients not to disclose his identity to the IRS. Improperly attempting to influence a witness qualifies as obstruction of justice under § 3C1.1. Whether defendant knew he was under investigation at the time he attempted to improperly influence his clients was irrelevant. Defendant’s obstructive conduct was not a requisite element of his underlying substantive offense. U.S. v. Friend, 104 F.3d 127 (7th Cir. 1997).
7th Circuit says bank robber’s perjury about source of cash was obstruction. (461) Defendant pled guilty to one bank robbery but went to trial on a second bank robbery charge. After the second robbery, defendant and a friend bought a van for $3000 cash. At trial, defendant testified that the money he used to buy the van was money left over from the first robbery. The district court found this testimony perjurious, and increased the sentence for obstruction of justice under § 3C1.1. The Seventh Circuit affirmed. Defendant had called his mother the day before the second robbery asking for money, and then showed up hours after the second robbery with $3000 in cash to buy a van. The district court could properly find that defendant was lying when he told the jury that the money was left over from the first robbery. U.S. v. Smith, 103 F.3d 600 (7th Cir. 1996).
7th Circuit affirms obstruction based on perjury at suppression hearing. (461) Defendant smuggled drug‑filled balloons into prison by ingesting them. At least one of the balloons broke during ingestion, causing defendant to overdose. Two days later and again five days later, defendant confessed to the smuggling. He later moved to suppress both confessions by testifying that his confessions were involuntary because they were the product of a methamphetamine‑induced psychosis. The officers who took defendant’s confessions testified that they did not notice any unusual behavior during the interrogation, and that defendant was able to selectively and cautiously answer or avoid questions during the two sessions. The Seventh Circuit approved an obstruction of justice enhancement based on defendant’s perjury at the suppression hearing. The district court’s credibility findings are given great deference on appeal. U.S. v. Hall, 101 F.3d 1174 (7th Cir. 1996).
7th Circuit affirms obstruction enhancement for perjury at first trial. (461) Defendant, a union official, was charged with numerous federal offenses arising from a series of investments he made with money from the union’s pension and health and welfare funds. The first trial, at which he testified in his own defense, resulted in a mistrial due to a hung jury. The second trial resulted in conviction. The district court applied an obstruction of justice enhancement for perjury during the first trial. The Seventh Circuit affirmed. The judge made an independent review of the record and specifically referred to three examples of willfully false statements defendant made under oath on matters material to the charges. The judge found that several instances where defendant denied directing the purchase of certain stock, and his description of certain kickbacks as loan repayments were “blatant” instances of perjury. U.S. v. Glover, 101 F.3d 1183 (7th Cir. 1996).
7th Circuit upholds obstruction enhancement for perjury at suppression hearing. (461) Defendant was stopped at the airport carrying 686 grams of heroin. The heroin was found in defendant’s coat pocket during a pat down search. Defendant unsuccessfully sought to suppress the heroin by falsely claiming she did not consent to the search. The Seventh Circuit affirmed an obstruction of justice enhancement and denied an acceptance of responsibility reduction based on her perjury at the suppression hearing. Defendant testified that she explicitly told the DEA agents that she did not consent to the pat down, while the two agents both testified that she did. The district judge found the officers’ testimony credible. Defendant did not accept responsibility even though she admitted the offense. She maintained throughout the proceedings that she had refused to consent to the search. Admitting guilt, but vigorously contesting the testimony of federal officers to suppress evidence, is not an extraordinary situation that warrants an acceptance of responsibility reduction despite an obstruction enhancement. U.S. v. Yusuff, 96 F.3d 982 (7th Cir. 1996).
7th Circuit affirms obstruction for claimed unawareness of telemarketing scam. (461) Defendant worked for a scam in which telemarketers advised victims that they had won one of five “prizes.” Possible prizes included a car, cash and five “dream” vacations. To receive the “prize” the victim had to send the company $250 for promotional fees and taxes. The “prize” awarded was vacation vouchers for which the telemarketing firm had paid $45. Prior to sentencing, defendant submitted a letter to the court which stated that he was unaware that neither cash nor the car were ever awarded. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s statement. The court could conclude that his statement was materially false and an attempt to obstruct justice. U.S. v. Jackson, 95 F.3d 500 (7th Cir. 1996).
7th Circuit upholds obstruction enhancement for perjury at suppression hearing. (461) Defendant testified at a suppression hearing that he was not advised of his Miranda rights before making a statement to FBI agents. This testimony was contradicted by the testimony of a co-defendant and an FBI agent, the time entered on a signed waiver form, and defendant’s own affidavit filed in support of his motion to suppress. The Seventh Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury at the suppression hearing. Defendant testified that FBI agents executing a search warrant overlooked him, and only read him his rights after the cocaine had been found. To believe this testimony, the court would have had to discredit the time recorded on his Advice of Rights form, and the testimony of several FBI agents. U.S. v. Guiterrez, 92 F.3d 468 (7th Cir. 1996).
7th Circuit says defendant may not claim that evidence he sought to suppress with perjured testimony was not material. (461) Defendant was convicted of drug charges. Before trial, defendant moved to suppress a statement he made to police at the time of his arrest. He testified at the suppression hearing that the statement was coerced. The district court enhanced his sentence for obstruction of justice based on perjury at the suppression hearing. Defendant argued that his testimony was not materially false because the statement was cumulative of the evidence offered by the government. The Seventh Circuit found it inconsistent to argue that evidence he moved to suppress was not important to the government’s case. The district court found that defendant lied as to nearly everything he said in support of his motion to suppress the statement. U.S. v. Reddrick, 90 F.3d 1276 (7th Cir. 1996).
7th Circuit agrees that defendant’s omission of social security payments and bank accounts was intentional. (461) Defendant made his living by stealing others’ property, selling it, and laundering the proceeds. When defendant provided the probation office with his financial information, he failed to disclose certain bank accounts and his monthly social security payments. He challenged an obstruction of justice enhancement, claiming the omission was inadvertent. The Seventh Circuit affirmed the § 3C1.1 enhancement and the court’s finding that the omissions were intentional. Defendant was quite adept in manipulating numerous sources of income through various bank accounts. His application for the social security benefits was not something in the distant past, but occurred almost contemporaneously with the instant offense. It was “unbelievable” that defendant forgot about these benefits. U.S. v. Gabel, 85 F.3d 1217 (7th Cir. 1996).
7th Circuit upholds § 3C1.1 enhancement and denies § 3E1.1 reduction for threatening witnesses. (461) The district court applied an obstruction of justice enhancement and denied defendant an acceptance of responsibility reduction based on evidence that defendant had threatened two witnesses during the investigation and prosecution of the case. A defendant who has both gone to trial and obstructed justice must overcome a strong presumption to convince a court he is entitled to an acceptance of responsibility reduction. U.S. v. Thomas, 86 F.3d 647 (7th Cir. 1996).
7th Circuit finds obstruction for giving false name and redirecting mail from investigators. (461) Defendant pled guilty to mail fraud, credit card fraud, bank fraud, and unlawful use of social security numbers. The Seventh Circuit upheld an obstruction of justice enhancement for defendant’s use of a false name and his attempt to divert his mail from investigators. When he was first arrested for a traffic offense, he asserted his name was “Garland Crum.” If this were the extent of his obstructive activities, the enhancement would be improper. However, after the arrest, defendant incorporated the name “Garland Crum.” Defendant incorporated the name in an attempt to “legalize” it, and thereby keep his fraudulent scheme afloat, and to develop a defense in the event he was apprehended. Also, following his fraud arrest, he instructed an acquaintance to complete a change of address form on his behalf in order to redirect mail from his residence to a post office box. This was designed to prevent investigators from obtaining further information regarding defendant’s activities. U.S. v. Akindele, 84 F.3d 948 (7th Cir. 1996).
7th Circuit affirms obstruction for failure to appear despite defendant’s eventual surrender. (461) The district court imposed an obstruction of justice enhancement because defendant failed to appear in court for a scheduled pretrial conference. Nine days after he failed to appear, but before the arrest warrant was executed, defendant self-surrendered. The Seventh Circuit upheld the obstruction enhancement despite the surrender. The enhancement was appropriate because defendant never offered an acceptable explanation for his nonappearance. The fact that he appeared voluntarily rather than being arrested was a point in his favor, but it did not mandate that he “get a pass” under § 3C1.1. U.S. v. Gilleylen, 81 F.3d 70 (7th Cir. 1996).
7th Circuit affirms obstruction enhancement for attempting to keep victim from testifying. (461) Defendant transported a minor across state lines for prostitution purposes. The victim testified that when police arrested defendant, he looked at her and mouthed the words “I’m going to get you bitch.” Also, she testified that a friend of defendant’s told her that defendant would give her $3000 if she would keep her mouth shut about the events. The friend told her that if she didn’t take the bribe, there “would be a price on her head.” The government also presented a recorded conversation in which the friend discussed bribing the victim with the owner of the escort service involved. The Seventh Circuit affirmed an obstruction of justice enhancement for defendant’s attempt to keep the victim from testifying. Although the FBI was unable to further corroborate the bribe in a later recorded call between defendant and the victim, this did not erase defendant’s earlier attempt. U.S. v. Robinzine, 80 F.3d 246 (7th Cir. 1996).
7th Circuit holds that perjury findings justified obstruction adjustment. (461) The district court enhanced defendant’s sentence for obstruction of justice based on his perjury at trial. He argued that U.S. v. Dunnigan, 507 U.S. 87 (1993) required each alleged falsehood to be reviewed independently to determine whether it amounted to perjury. The Seventh Circuit disagreed, holding that the court’s findings satisfied Dunnigan. The district judge reviewed the PSR, his trial notes, sentencing briefs and testimony at the sentencing hearing. He identified five separate false statements and discussed why he found each to be material and untrue. While the judge did not explicitly find that each was willful, this was implicit. A specific finding as to each element of perjury was not required. The judge properly relied on his own handwritten notes of the trial, since a trial transcript was not available. U.S. v. Hickok, 77 F.3d 992 (7th Cir. 1996).
7th Circuit finds no double jeopardy in obstruction increase despite conviction for false statements. (461) Defendant, the founder and officer of a business school, converted federal financial aid funds and student loans for his own use. To further the scheme, he made false statements to auditing accountants, Department of Education investigators, and financial institutions. He argued that a § 3C1.1 obstruction enhancement violated the double jeopardy clause because the evidence for the enhancement also formed the basis for his conviction for making false statements. The Seventh Circuit, relying on Witte v. U.S., 515 U.S. 389, 115 S.Ct. 2199 (1995), held the enhancement did not violate double jeopardy. The false statement count was preguidelines. The increase constituted punishment for the guideline offenses only and not for the actual obstructive conduct. U.S. v. Ross, 77 F.3d 1525 (7th Cir. 1996).
7th Circuit finds that obstructive conduct occurred during an official investigation. (461) Defendant, the founder and officer of a business school, converted federal financial aid funds and student loans for his own use. To further the scheme, he made false statements to auditing accountants, Department of Education (DOE) investigators, and financial institutions. He challenged an obstruction of justice enhancement based in part on false statements to DOE investigators, arguing that they did not occur during “an official investigation.” The Seventh Circuit affirmed the § 3C1.1 enhancement, holding that the inspection was “an official investigation.” Section 3C1.1 is not limited strictly to conduct occurring during the pendency of some legal proceeding. “An official investigation” requires only investigative action by federal law enforcement or government employees “acting within the course and in furtherance of their official duties.” U.S. v. Ross, 77 F.3d 1525 (7th Cir. 1996).
7th Circuit holds defendant’s actions need not significantly obstruct or impede investigation. (461) Defendant made false statements to Department of Education (DOE) investigators. He challenged a § 3C1.1 enhancement, arguing that his conduct did not significantly impede or obstruct the DOE’s investigation. The Seventh Circuit held that defendant’s conduct need not significantly obstruct the investigation. Note 3(g) does say that the enhancement applies to providing a materially false statement to a law enforcement officer that significantly obstructed the official investigation. However, defendant’s enhancement was based primarily on directing others to conceal evidence material to the DOE investigation, rather than on making false statements to a law enforcement officer. Note 3(d) was not applicable because defendant’s conduct did not occur “contemporaneously with arrest.” U.S. v. Ross, 77 F.3d 1525 (7th Cir. 1996).
7th Circuit holds that perjury finding satisfied Dunnigan. (461) Defendant argued that the court’s finding that he committed perjury was not supported by the presentence report. The Seventh Circuit held that the court’s findings satisfied U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). The court stated that having heard all of the evidence at trial, it found defendant’s testimony on a material issue was untruthful. This finding was clearly sufficient. The court’s finding did not depend on the presentence report alone; it was based on the court’s evaluation of defendant’s testimony in light of all the evidence in the case. U.S. v. Sinclair, 74 F.3d 753 (7th Cir. 1996).
7th Circuit approves obstruction enhancement for misrepresenting name to pretrial services officer. (461) After his arrest, defendant identified himself to police and pretrial services personnel as his brother, and gave his brother’s date of birth and social security number. His brother did not have a criminal record; defendant did. The Seventh Circuit upheld an obstruction of justice enhancement based on defendant’s misrepresentation of his identity to the federal agents, pretrial services officer, and the magistrate at his detention hearing. Although defendant did not speak at the detention hearing, his decision to remain silent rather than correct the false identity he created for himself was a material nondisclosure, which was indistinguishable from a material misrepresentation. The fact that defendant gave the false information for the PSR to a pretrial service officer rather than to a probation officer was not relevant. The critical fact was that the information given by defendant was to be used by the court making bail, release and other presentence determinations. Defendant was providing materially false information for the use of a judge or magistrate. U.S. v. Garcia, 69 F.3d 810 (7th Cir. 1995).
7th Circuit approves obstruction enhancement for perjury at suppression hearing. (461) Defendant and his father were arrested at the airport carrying drugs and a substantial amount of cash. During a pre-trial suppression hearing, defendant claimed that he was grabbed by the officers and told that if he tried to run, they could shoot him in the back. In contrast, the officers testified that their encounter and subsequent search of defendant’s bag was consensual. The Seventh Circuit upheld an obstruction of justice enhancement based on defendant’s perjury during the suppression hearing. The district court’s credibility decisions would not be reviewed on appeal. Defendant’s account of the encounter with police was material, because it was directly relevant to the determination of whether the meeting was legal. Actual prejudice to the government is not required to support the enhancement. U.S. v. Nobles, 69 F.3d 172 (7th Cir. 1995).
7th Circuit says defendant who allowed attorney to convey false information cannot claim 5th Amendment privilege. (461) The district court imposed an obstruction of justice enhancement because defendant misrepresented to the magistrate at his detention hearing that he was a legal U.S. resident, and denied to his pretrial services officer that he had been found guilty of counterfeiting under another name. Defendant argued that his 5th Amendment rights were violated because he was silent at his detention hearing. He also claimed that his misrepresentation to the pretrial services officer was not material because the government still obtained all of the information about him. The Seventh Circuit upheld the § 3C1.1 enhancement, holding that the 5th Amendment was not implicated because defendant conveyed the false information about his legal status through his counsel. A defendant cannot stand idly by while he hears his attorney provide false information to the court, and then claim he was exercising his 5th Amendment privilege against self-incrimination. The enhancement was also proper because defendant misrepresented his criminal history to his pretrial services officer. The prior criminal record was material, because it was relevant to whether or not defendant should be released on bail. U.S. v. Owolabi, 69 F.3d 156 (7th Cir. 1995).
7th Circuit says high speed chase through residential neighborhood involved reckless endangerment. (461) Defendant fled from police at a high rate of speed through residential neighborhoods. One officer had to drive between 60 and 70 miles per hour to catch defendant. The Seventh Circuit held this evidence supported a reckless endangerment enhancement under § 3C1.2. U.S. v. Velasquez, 67 F.3d 650 (7th Cir. 1995).
7th Circuit approves obstruction enhancement for defendant’s false testimony. (461) Defendant was convicted of extortion charges based on the activities of men he hired to help him collect a business debt. The district court applied an obstruction of justice enhancement based on defendant’s testimony that he did not hear the victim say that he was afraid during their telephone conversations, and his claim that he believed the man he hired ran a collection business. The Seventh Circuit affirmed. The district court listened to the taped phone conversations, in which the victim frequently told defendant that he was afraid and that he was being threatened. Defendant never said he was having difficulty hearing the victim during the conversation. Defendant’s testimony that he was going to pay the men $10,000 to deliver some papers was false. Defendant was aware of what the men were doing. Defendant’s testimony that he thought the victim referred to the men as “goofs” rather than “goons” was false. U.S. v. Knox, 68 F.3d 990 (7th Cir. 1995).
7th Circuit agrees that testimony about possession of counterfeit bills was perjurious. (461) Defendant was arrested when police raided an apartment suspected of being the center of a drug ring. At the time of his arrest, defendant possessed $909 in U.S. currency and $320.00 in counterfeit bills. At trial, defendant testified that he was part of a drug ring led by another man. He stated that he had spoken with an officer in the sheriff’s office about becoming an informant. He claimed that it was in accordance with the officer’s instruction that he possessed the 16 counterfeit $20 bills at the time of his arrest. The Seventh Circuit upheld an obstruction of justice enhancement based on defendant’s perjury concerning his possession of the counterfeit money. The district court believed that the money was to be used in a drug transaction, based on the fact that it was mixed in with the legitimate money, and defendant carried so many bills. If defendant were providing samples to the police, he would only need a few bills, not 16. The officer testified that although defendant had discussed cooperating, defendant had been leery of becoming an undercover operative. It was implausible that he would have undertaken this task without notifying the police. U.S. v. Mitchell, 64 F.3d 1105 (7th Cir. 1995).
7th Circuit approves obstruction enhancement where grouping rule caused obstruction count not to influence offense level. (461) Defendant argued that an obstruction of justice enhancement for destruction of records was improper in light of the separate charge which alleged the same conduct. The Seventh Circuit found no double counting, since the application of the grouping rules caused the obstruction conduct not to affect the base offense level calculation. Defendant’s offense level was based on the most serious offense—mail and wire fraud. The two-level obstruction of justice enhancement was added to the offense level taken from the mail and wire fraud conviction. U.S. v. Briscoe, 65 F.3d 576 (7th Cir. 1995).
7th Circuit agrees that perjury was material to entrapment defense. (461) Defendant, a grand jury member, communicated secret information to a friend who was under grand jury investigation. The district court found that defendant had perjured himself at trial by testifying that he had not provided his friend with information before December 1993. This testimony conflicted with tape-recorded conversations between defendant, the friend, and an undercover agent. The Seventh Circuit affirmed a § 3C1.1 enhancement, holding the perjury was material since it went directly to defendant’s entrapment defense. The district court made adequate findings. The court adopted the PSR and concluded that defendant committed “blatant perjury.” This was sufficient to support the enhancement. U.S. v. Girardi, 62 F.3d 943 (7th Cir. 1995).
7th Circuit applies § 3C1.1 adjustment for willfully disguising handwriting exemplar. (461) The Seventh Circuit held that defendant’s attempt to disguise a handwriting exemplar to be given to the FBI for comparison to writings to be introduced at trial justified a § 3C1.1 enhancement. Such an action amounted to concealing evidence (one’s handwriting style) that was material to the official investigation. The record supported the finding that defendant had disguised his handwriting. He took six hours to complete the 12 pages of exemplars. Both the government’s expert and defendant’s expert agreed that the exemplar was not freely and naturally executed, despite defendant’s claim to the contrary. Another exemplar of defendant’s handwriting led experts to conclude that he wrote the items in dispute at trial. U.S. v. Yusufu, 63 F.3d 505 (7th Cir. 1995).
7th Circuit affirms obstruction enhancement for defendant who instructed associate to remove money hidden in his home. (461) Defendant supervised a large marijuana distribution network. After he was arrested, he telephoned an associate and instructed him to recover about $113,000 that defendant had hidden in a Pac Man machine in his home. The associate complied, giving $2,000 to defendant’s girlfriend, $10,000 to defendant’s lawyer, and hiding the remainder. The Seventh Circuit upheld an obstruction of justice enhancement based on defendant’s instructions to remove the money from his home. Even if defendant did not know that the government needed to show substantial assets to obtain a CCE conviction, he knew that the money was subject to forfeiture. U.S. v. Gibbs, 61 F.3d 536 (7th Cir. 1995).
7th Circuit approves § 3C1.1 enhancement for lies during presentence interview. (461) Defendant argued that the trial court abused its discretion in imposing an obstruction of justice enhancement. The PSR recommended the increase because defendant lied during a presentence interview. The Seventh Circuit held that the enhancement, even if based on the PSR alone, was not an abuse of discretion. U.S. v. Wimberly, 60 F.3d 281 (7th Cir. 1995).
7th Circuit bases obstruction enhancement on jail house conversations about killing witness. (461) The district court imposed an obstruction of justice enhancement based on jail house conversations in which defendant talked of his desire to have a witness killed. Defendant claimed that his discussions with the inmate were merely “jail talk” and not serious conversations. The Seventh Circuit affirmed the enhancement. Whether defendant had the requisite intent was a credibility determination left to the discretion of the sentencing court, who had the opportunity to listen to a taped conversation and listened to the witnesses. Moreover, defendant acted in accordance with his plan. When the inmate asked defendant why he had not called the inmate’s cousin to do the job, defendant stated that he had spoken to his own cousin, who had agreed to do it. The inmate’s testimony was sufficient evidence of defendant’s solicitation of two men to murder the witness. U.S. v. Henderson, 58 F.3d 1145 (7th Cir. 1995).
7th Circuit upholds obstruction enhancement for trial perjury. (461) The district court imposed an obstruction of justice enhancement based on defendant’s trial perjury. The Seventh Circuit held that the court made sufficient findings of perjury to support the § 3C1.1 enhancement. The judge spent the better part of the sentencing hearing considering defendant’s behavior at trial and explicitly found that he had lied at two trials when he disavowed any knowledge of a drug transaction taking place at an apartment. The judge concluded that defendant’s testimony was perjurious and warranted the obstruction enhancement. U.S. v. Romero, 57 F.3d 565 (7th Cir. 1995).
7th Circuit holds that court made adequate perjury findings to support obstruction enhancement. (461) Defendant challenged an obstruction of justice enhancement based on his perjury at trial. The Seventh Circuit held that the district court made adequate findings of perjury to support the enhancement. Contrary to the great weight of evidence, defendant testified that his group had been discussing a legitimate entertainment venture rather than a cocaine deal. The district court found that defendant’s story was “a concocted, calculated set of falsehoods.” U.S. v. Johnson-Dix, 54 F.3d 1295 (7th Cir. 1995).
7th Circuit finds concealing and selling forgeries were distinct acts for double counting purposes. (461) Defendant, the owner and operator of a chain of art galleries, sold numerous forgeries as originals. Under a settlement with the FTC, defendant agreed to surrender certain work and agreed not to make misrepresentations in the sale of artwork. Defendant did not turn over all the artwork as required. He subsequently sold nine prints to one customer, at least one of which was a fake. He argued that an obstruction of justice enhancement for violating the FTC order by concealing certain prints and records was double counting, since he received a § 2F1.1(b)(3)(B) enhancement for violating the FTC injunction by selling the prints. The Seventh Circuit held that the enhancements were not double counting since they were based on different conduct. The sale for which defendant received the § 2F1.1(b)(3)(B) enhancement was factually distinct from his concealing the prints from the FTC. Although the concealment enabled him to make the sale, the concealment and sale were distinct acts. U.S. v. Austin, 54 F.3d 394 (7th Cir. 1995).
7th Circuit finds reckless endangerment in flight from police in high speed chase. (461) Defendant challenged a § 3C1.2 reckless endangerment enhancement, arguing he was entitled to flee from postal inspectors when they fired at his car, and that he already received a bodily injury enhancement under § 2A2.2(b)(3)(A). The Seventh Circuit upheld the enhancement based on a separate incident in which defendant fled from police and led them on a high speed chase. This conduct, independent of defendant’s assault on the two postal inspectors, was sufficient to justify the reckless endangerment enhancement. U.S. v. Woody, 55 F.3d 1257 (7th Cir. 1995).
7th Circuit approves obstruction enhancement for perjury at trial. (461) Police saw defendant cashing stolen checks. When they attempted to arrest him, defendant drove his car at the officers, forcing them to dive out of the way. In a later incident, defendant hit with his car a postal inspector who attempted to arrest him. Defendant testified at trial that he was merely delivering the checks for his employer. He admitting seeing the police who attempted to arrest him, but denied trying to hit them or hearing sirens or seeing flashing lights. He also claimed that he did not realize the man he hit was a postal inspector and that he left quickly because he was being shot at from behind. The Seventh Circuit approved an obstruction enhancement based on defendant’s trial perjury. Defendant’s testimony concerning the stolen checks and his encounters with law enforcement officers were material to the outcome of the case. He testified untruthfully to deceive the jury into believing he was innocent. U.S. v. Woody, 55 F.3d 1257 (7th Cir. 1995).
7th Circuit upholds obstruction enhancement for suborning perjury. (461) Defendant committed bankruptcy fraud by failing to disclose certain assets to the bankruptcy trustee, and other misconduct. When defendant began selling artwork he had concealed from the trustee, the government searched his house and found additional artwork and furniture. Defendant asked his brother-in-law to falsely claim that he owned some of the art. The Seventh Circuit upheld an obstruction of justice enhancement based on defendant’s attempt to suborn perjury. Note 3 to § 3C1.1 lists suborning perjury and attempting to suborn perjury as examples of conduct to which the enhancement applies. U.S. v. Michalek, 54 F.3d 325 (7th Cir. 1995).
7th Circuit finds obstruction for telling potential witness that being seen with drug agent “wasn’t healthy.” (461) A cooperating witness purchased cocaine from one of defendant’s co-conspirators and turned the cocaine over to a drug task force agent. The Seventh Circuit upheld an obstruction of justice enhancement based on defendant’s confrontation with the witness in which he told the witness he had been seen with the agent, and that it “wasn’t healthy.” Defendant did not need to know that the witness was working for the government. A threat to a potential witness is sufficient to warrant a § 3C1.1 enhancement, as long as the statement was intended to threaten, intimidate or unlawfully influence that person. U.S. v. Johnson, 46 F.3d 636 (7th Cir. 1995).
7th Circuit says obstruction was related to fraud conviction. (461) Defendants committed bank fraud in obtaining a business loan by falsely representing that they made a necessary capital injection. In the course of their scheme, defendants received an advance for purchase of equipment they never bought. They convinced the equipment owner to give a fictitious story to explain the purchase of the equipment. The Seventh Circuit upheld a § 3C1.1 enhancement, concluding that defendants’ obstructive conduct was related to their offense of conviction. The owner’s original testimony impeded the investigation of the bank fraud, necessitating the expenditure of additional time and money. U.S. v. Brown, 47 F.3d 198 (7th Cir. 1995).
7th Circuit approves obstruction enhancement for denying criminal record. (461) When defendant was interviewed for the presentence report, he denied certain prior juvenile convictions, asserting that the arrests belonged to another person with the same name. The Seventh Circuit held that defendant’s denial of his criminal record was grounds for an obstruction of justice enhancement. The matter was clearly material. His claim that he “forgot” his criminal acts was implausible, since he was incarcerated for them. U.S. v. Rogers, 45 F.3d 1141 (7th Cir. 1995).
7th Circuit finds obstruction enhancement was not double counting despite obstruction conviction. (461) Defendant was convicted of money laundering and obstruction of justice. She argued that an enhancement for obstruction of justice constituted improper double counting. The Seventh Circuit held that the court properly followed note 6 to § 3C1.1. The court grouped the money laundering and obstruction of justice offenses under § 3D1.2(c). The money laundering count was the most serious, and so the court applied its offense level. The enhancement for obstruction of justice was not double counting because it was used to enhance only the money laundering offense level. If the obstruction count had carried a higher offense level, note 6 would have required the obstruction offense level to be applied without the enhancement. Note 6 was written to avoid double counting. U.S. v. Maggi, 44 F.3d 478 (7th Cir. 1995).
7th Circuit holds that perjury findings satisfied Dunnigan. (461) Defendant argued that the district court improperly relied on the testimony of unreliable government witnesses to determine that he committed perjury and to enhance his sentence for obstruction of justice. The Seventh Circuit approved the obstruction enhancement, since the perjury findings satisfied U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). The district court made a specific finding that defendant had committed perjury at trial. The finding was supported by the record, since defendant’s version of the facts was contradicted by the government witnesses’ testimony. The government’s testimony was corroborated by fingerprint evidence, hand-writing exemplars and tape recordings. Defendant’s false testimony was material because it bore directly on the extent of his involvement in the conspiracy. An appellate court will not “second guess” a trial judge’s assessment of the reliability and credibility of witnesses. U.S. v. Dillard, 43 F.3d 299 (7th Cir. 1994).
7th Circuit holds that judge made adequate perjury findings to support obstruction enhancement. (461) The Seventh Circuit held that the district court make adequate findings to support an obstruction of justice enhancement based on defendant’s perjury. The judge made independent findings that defendant lied when he denied any connection with marijuana dealings and lied when he presented phony timber records in an attempt to argue that he sold timber and not marijuana. Those factual findings were sufficient to satisfy U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). U.S. v. Mustread, 42 F.3d 1097 (7th Cir. 1994).
7th Circuit approves obstruction enhancement for falsely telling magistrate that defendant was not on parole. (461) During a detention hearing, the government stated that it believed defendant was on parole at the time of his arrest. Defendant interrupted and falsely told the magistrate that he was not on parole. The Seventh Circuit approved an obstruction of justice enhancement. Note 5 to § 3C1.1 specifically states that the enhancement applies to a defendant who provides materially false information to a judge or magistrate. The information was material, since the purpose of the hearing was to determine whether the defendant, if released, would appear in court as required and would not endanger the safety of others. Whether the magistrate ultimately relied on defendant’s parole status was not relevant. The fact that defendant was not under oath at the time he made the statement also was not relevant. Although defendant was not represented by an attorney during the hearing, the judge told defendant that he had the right to remain silent and warned him that anything he said could be used against him. U.S. v. Harrison, 42 F.3d 427 (7th Cir. 1994).
7th Circuit affirms obstruction enhancement based on affidavit of government agent filed in motion to revoke bond. (461) The district court enhanced defendant’s sentence for obstruction of justice. The 7th Circuit, without an extended discussion, upheld the court’s consideration of the affidavit of a government agent filed before a magistrate judge in connection with a motion to revoke defendant’s bond for threatening a witness. U.S. v. Cole, 41 F.3d 303 (7th Cir. 1994).
7th Circuit approves obstruction enhancement based on attempt to suborn perjury and attempted escape. (461) The district court imposed a § 3C1.1 enhancement based on evidence that defendant sent a letter soliciting false testimony from a potential witness, and attempted to escape from jail. The 7th Circuit approved the enhancement. The fact that the potential witness never testified was irrelevant, since § 3C1.1 also punishes attempts to obstruct justice. In addition, the government offered proof that a jailer found a hacksaw blade in a box defendant threw in the trash. A metal heating grate at the back of defendant’s cell had been hack sawed at all the soldering joints. Although defendant denied being involved in an escape attempt, he failed to present any other evidence to rebut the government’s proof. U.S. v. Linnear, 40 F.3d 215 (7th Cir. 1994).
7th Circuit approves obstruction enhancement for denying co-conspirators’ involvement. (461) The day after he was arrested, defendant made a statement to the FBI concerning the conspiracy. The 7th Circuit approved an obstruction of justice enhancement based on a sworn affidavit he submitted several months later, retracting portions of his statement concerning the involvement of his co-conspirators. Defendant was facing a conspiracy charge when he retracted his statements. The criminal investigation of the conspiracy was still underway and any information concerning his co-conspirators was material evidence. Actual prejudice to the government was not required for an obstruction enhancement. The enhancement applies when a defendant attempts to obstruct justice. Because defendant’s affidavit was a sworn statement, it did not fall under the scope of application notes 4(b) and 3(g). U.S. v. Francis, 39 F.3d 803 (7th Cir. 1994).
7th Circuit says failure to impose obstruction enhancement was clear error. (461) Defendant organized a large-scale marijuana distribution ring, and laundered money for it. During an interview with authorities, defendant denied knowing about the drug activities of one of his distributors, and denied receiving drug money from the distributor. The 7th Circuit held that the district court’s failure to impose an obstruction of justice enhancement was clear error. The distributor’s cash was drug proceeds that flowed from the conspiracy in which defendant was a member. Thus, the cash was relevant to establish the charge of conspiracy to distribute marijuana for which defendant was convicted. U.S. v. Sax, 39 F.3d 1380 (7th Cir. 1994).
7th Circuit upholds obstruction enhancement for making retaliatory phone calls to informant. (461) An informant received three anonymous phone calls. Defendant’s nephew, who lived with defendant, made the first call at 3:21 a.m. The nephew told the informant he would “kick [the informant’s] ass.” Defendant called the informant at 3:50 a.m. and said “How you doin?” He called back again minutes later and said the same thing. The 7th Circuit upheld an obstruction of justice enhancement based on the retaliatory phone calls. Defendant, acting with his nephew, threatened the informant physically. All three calls were from defendant’s home within a half-hour span. Defendant’s follow-up phone calls did not spring from a sudden concern for the informant’s well being, but were intended to let the informant know that the threat came from defendant himself. Defendant also denied to his probation officer that he made the phone calls. The false information was material since it bore on the obstruction enhancement. U.S. v. Dorn, 39 F.3d 736 (7th Cir. 1994).
7th Circuit enhances sentence for telling potential witness “I’ll make sure you go down too.” (461) While in custody after robbing a bank, defendant left several messages on his girlfriend’s answering machine. The 7th Circuit approved an obstruction of justice enhancement based on his statement that “I also know that you turned state’s on me but I’ll make sure you go down too Baby.” This was clearly an attempt to influence a co-defendant within the meaning of note 3 to § 3C1.1. The message meant “if you testify against me, I will testify against you.” The implied message was “if you do not testify against me, I will not testify against you.” This was clearly an invitation to the girlfriend to participate in a criminal conspiracy to obstruct justice. U.S. v. Wright, 37 F.3d 358 (7th Cir. 1994).
7th Circuit approves obstruction enhancement for defendant who received money from fleeing co-conspirators. (461) Defendant supplied drugs to two major Illinois distributors. When one of the distributors was en route to Mexico, fleeing police, he met with defendant and turned over to him $225,000 in drug proceeds that defendant later delivered to a man in Arizona. The 7th Circuit upheld an obstruction of justice enhancement based on defendant’s role in receiving the $225,000 in drug proceeds, temporarily concealing the money, and later releasing the funds to a courier in Arizona. It was unlikely that this money was received in the ordinary course of the conspiracy. Given that defendant turned the money over to a third party at the border, it was more likely that defendant knew his distributor was “on the lam.” U.S. v. Curtis, 37 F.3d 301 (7th Cir. 1994).
7th Circuit approves obstruction enhancement for lies at sentencing hearing. (461) At his plea hearing, defendant testified that when arrested he had possession of two kilograms of cocaine, and that he was planning to sell it. At the sentencing hearing, he testified that the informant actually possessed the drugs when the two were arrested, and that defendant had carried a firearm to protect the cocaine. The 7th Circuit upheld an enhancement for obstruction of justice based on defendant’s lies at the sentencing hearing. The district court could properly conclude that defendant’s testimony was contradictory and the difference in his accounts was more than a matter of degree. The government did not breach the plea agreement by “urging” the court to apply the obstruction enhancement. First, the government only pointed out the inconsistencies in defendant’s testimony after the court, sua sponte, asked the parties to address the matter. Second, the agreement provided that defendant could be prosecuted if he testified falsely. U.S. v. Winston, 34 F.3d 574 (7th Cir. 1994).
7th Circuit concludes that defendant did more than simply deny guilt. (461) The district court enhanced defendant’s sentence for obstruction of justice based on his perjury at a suppression hearing. The 7th Circuit affirmed, concluding that defendant did more than simply deny guilt, as he contended. Defendant told the court, under oath, that the suitcase he checked at the airport was not his and that it belonged to an older man who had asked him to check it for him in Los Angeles. He also claimed agents never asked for his consent to search the luggage. U.S. v. Osuorji, 32 F.3d 1186 (7th Cir. 1994).
7th Circuit relies on hearsay to find defendant attempted to escape from jail. (461) Defendant’s probation officer testified that he received a report from a guard stating that the guard found defendant standing on top of the toilet with his head protruding through a hole in the ceiling tiles. The district court found that defendant attempted to escape and enhanced his sentence for obstruction of justice. The 7th Circuit held it was proper to base the obstruction enhancement on this hearsay evidence. If defendant wanted the guard to testify, he could have subpoenaed him. Moreover, defendant did not object to the facts, he simply claimed that they did not support the conclusion that he was trying to escape. Although counsel suggested defendant was trying to commit suicide, the judge did not find this explanation credible. The fact finder’s selection of one of two reasonable choices cannot be clearly erroneous. Judge Curtin dissented. U.S. v. McGill, 32 F.3d 1138 (7th Cir. 1994).
7th Circuit upholds obstruction for omitting $470,000 cash during detention hearing. (461) During a detention hearing, defendant told the magistrate judge that his pretrial service report was correct, when in fact, the report omitted $470,000 in cash that defendant had in his home. The 7th Circuit upheld an obstruction of justice enhancement, agreeing that defendant’s possession of nearly a half million dollars in cash was material to the question of whether he was a flight risk. Defendant’s misrepresentation was not protected by the 5th Amendment. He could have declined to answer the judge’s questions concerning the completeness of the report, but he chose to affirmatively misrepresent the extent of his assets. U.S. v. Taylor, 31 F.3d 459 (7th Cir. 1994).
7th Circuit rules court made necessary findings of perjury to support obstruction enhancement. (461) Defendant, who was also known as “Chema,” testified at trial that he was not Chema, but that he knew somebody else who went by that name. His defense was that the government was prosecuting the wrong person. The 7th Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial. Five witnesses all testified at trial that defendant was Chema. The only contradictory evidence was defendant’s testimony. The district court made the required findings under U.S. v. Dunnigan, 113 S.Ct. 1111 (1993). When defense counsel objected to the government’s claim that defendant perjured himself, the judge told counsel not to waste his time, and that defendant’s testimony was “laughable” and “unbelievable.” U.S. v. Sanchez, 32 F.3d 1002 (7th Cir. 1994).
7th Circuit finds obstruction where defendant denied he came to town to sell drugs. (461) Defendant was arrested in Madison possessing 20 to 35 grams of crack cocaine. Evidence showed that he had made previous trips from Chicago to Madison to sell drugs. At trial, defendant stated that he came to Madison to see an old girlfriend and to buy a gold chain. His testimony was “vague” as to the number of previous visits he had made to Madison. The 7th Circuit upheld an obstruction of justice enhancement. The district court did not clearly err in finding that defendant grossly underestimated the number of visits to Madison. Furthermore, defendant’s denial that he came to Madison to sell drugs was material. U.S. v. Robinson, 30 F.3d 774 (7th Cir. 1994).
7th Circuit upholds obstruction for failure to appear despite defendant’s belief that appearance was excused. (461) Defendant received an obstruction of justice enhancement based on her failure to appear for a hearing before a magistrate. She argued that she was injured at the time and unable to drive, and was told by the arresting officer that she need not appear at the hearing. The officer claimed he only told her he would look into it and get back to her. The district court found defendant’s failure to appear caused the government the inconvenience of having the Marshal’s Service arrest her, and also delayed the processing of the case. The 7th Circuit upheld an obstruction of justice enhancement, although it questioned the decision to impose it. Defendant admitted receiving notice of the hearing and failed to appear, although there was disagreement as to whether or not she reasonably believed her appearance was excused. U.S. v. Montague, 29 F.3d 317 (7th Cir. 1994).
7th Circuit upholds obstruction enhancement for defendant’s lies about gun ownership. (461) Defendant was convicted of being a felon in possession of a firearm. The 7th Circuit upheld an enhancement for obstruction of justice based on defendant’s false testimony at trial about the ownership of the gun found in his bedroom. Defendant falsely testified that the gun was not his, that he did not know how the gun got in his bedroom, and that it might have been “planted” by police. Police officers testified that at the time of his arrest, defendant declared the gun was his. The jury believed the officers. U.S. v. Barker, 27 F.3d 1287 (7th Cir. 1994).
7th Circuit finds court made perjury findings as required by Dunnigan. (461) Defendant challenged an obstruction of justice enhancement based on his perjury, claiming the district court did not make the findings required by U.S. v. Dunnigan, 507 U.S. 87 (1993). The 7th Circuit ruled that the district court made adequate findings. The court reviewed the evidence, including the testimony of defendant and his doctor, and tape recordings of transactions between defendant and an undercover agent. It determined that defendant deliberately lied when he claimed that he was incapacitated as a result of hypoglycemia and also when he stated that he was simply attempting to curry sexual favors from the agent. U.S. v. Abdelkoui, 19 F.3d 1178 (7th Cir. 1994).
7th Circuit does not compare lies of others who did not receive obstruction enhancement. (461) Defendant was involved in a scheme to stage automobile accidents to collect on fraudulent insurance claims. The 7th Circuit upheld an obstruction of justice enhancement based on defendant’s “material” lies to government investigators. Defendant did not deny that he merited the enhancement, but said other defendants should have received it for comparable lies. However, an appellate court may not examine the sentences of co-defendants. It may only review defendant’s sentence, and here, the enhancement was not clearly erroneous. Defendant insisted that none of the accidents had been staged and directed others to tell investigators that a fictional “Diane” had orchestrated the scheme. He gave investigators a physical description of “Diane” and even prepared a written script for one of his co-conspirators to use during a monitored telephone call. U.S. v. Colello, 16 F.3d 194 (7th Cir. 1994).
7th Circuit says plea allowing obstruction enhancement did not violate0 due process. (461) Pursuant to a plea agreement, the government dropped obstruction of justice charges. However, the agreement expressly stated that the government could use evidence of the obstruction during sentencing. Defendant ultimately received an enhancement for obstruction of justice under 3C1.1, and argued that the plea agreement was unconstitutional. The 7th Circuit upheld the plea agreement and the enhancement, finding defendant’s argument was based on a “tortured” reading of McMillen v. Pennsylvania, 477 U.S. 83 (1986). McMillen refers to what a legislature can do to restructure an offense; it does not by analogy apply to what prosecutors can or cannot do. Defendant’s sentence was in perfect compliance with the sentencing guidelines. U.S. v. Robinson, 14 F.3d 1200 (7th Cir. 1994).
7th Circuit says “don’t let them put words in your mouth” was attempt to keep witness quiet. (461) The 7th Circuit upheld an enhancement for obstruction of justice based on a finding that defendant had tried to persuade a witness not to give complete and truthful information to the government. The conclusion was based on tapes of two telephone conversations between the two, and their testimony regarding a conversation which took place when the witness visited defendant in jail. Although defendant did not directly tell the witness to lie, defendant’s admonition “don’t let them put words in your mouth” could be construed as “don’t spill the beans.” The district court concluded that defendant was telling the witness in a guarded way that he should not cooperate. The district court had to decide whether defendant or the witness was telling the truth about the import of their cryptic conversations, and the appellate court would not disturb this credibility finding. U.S. v. Robinson, 14 F.3d 1200 (7th Cir. 1994).
7th Circuit upholds obstruction enhancement for providing false information to probation officer. (461) Defendant provided false information to the probation officer regarding his birth date and date of high school graduation, and failed to disclose his prior arrest record and dishonorable discharge from the military. He challenged an enhancement for obstruction of justice on the grounds that there was no evidence that his actions were designed to obstruct justice. The 7th Circuit upheld the enhancement, since he willfully provided false information to the probation officer. The false information was clearly material, since it thwarted the probation officer from investigating defendant’s personal and criminal background, which are major factors in a defendant’s sentence. U.S. v. Thomas, 11 F.3d 1392 (7th Cir. 1993).
7th Circuit upholds reckless endangerment increase for car chase through residential areas. (461) The 7th Circuit upheld a § 3C1.2 enhancement for recklessly endangering the life of another person during defendant’s flight from police after a drug sale. Defendant led the police on a chase, at dusk, along a two-lane highway that ran through a series of residential subdivisions. He traveled at speeds of 35 to 50 miles an hour while swerving from lane to lane to prevent police from going around him. A reasonable person would exercise a higher standard of care than defendant did. U.S. v. Chandler, 12 F.3d 1427 (7th Cir. 1994).
7th Circuit upholds obstruction enhancement based on perjury at trial. (461) Defendant testified at trial that he bought the marijuana in question to support his own serious “habit” and that he did not intend to distribute it. The district court disagreed and used the uncharged perjury as the basis for an obstruction of justice enhancement. The 7th Circuit affirmed, since the court made independent findings of perjury, as required by U.S. v. Dunnigan, 507 U.S. 87 (1993). The district court evaluated the defendant’s testimony against the testimony of other witnesses and found that the defendant’s version of events lacked credibility. That finding was not clearly erroneous. U.S. v. Pedigo, 12 F.3d 618 (7th Cir. 1993).
7th Circuit upholds obstruction adjustment based on verdict and finding of perjury. (461) The Seventh Circuit affirmed an obstruction enhancement based on defendant’s perjury. The district court stated that the jury’s verdict created a presumption that defendant perjured himself on the witness stand, and also specifically determined from its own independent review of the evidence that defendant had done so on several occasions during trial. Although the court mentioned defendant’s withdrawal of a plea, it concluded that defendant’s trial testimony was enough to support the enhancement. U.S. v. Carson, 9 F.3d 576 (7th Cir. 1993), abrogation on other grounds recognized by U.S. v. Monroe, 73 F.3d 129 (7th Cir. 1995).
7th Circuit upholds obstruction enhancement where defendant did more than give police false name. (461) Defendant argued that he did not obstruct justice when he told police his name was Ricky Cummings, instead of Stevie Stevenson, since under state law, an individual may lawfully change his name without resorting to a legal proceeding. The 7th Circuit upheld the enhancement, since defendant did more than simply state his name. He told a deputy that the auto in the front yard of the house belonged to his cousin Stevie Stevenson. This statement directly implied that defendant was not Stevenson. While defendant did not cause the government to expend great resources pursuing a false lead, he nonetheless attempted to obstruct justice and did in fact impede the investigation. Such conduct is sufficient for an adjustment under section 3C1.1, and no finding of actual prejudice to the government is required. U.S. v. Stevenson, 6 F.3d 1262 (7th Cir. 1993).
7th Circuit upholds obstruction enhancement based on perjury. (461) The 7th Circuit affirmed that defendants had committed perjury when they testified that the amount of cocaine attributable to them was quite limited, and therefore an obstruction of justice enhancement was justified. The testimony the court relied on in determining that defendants had perjured themselves was not suspect, it was merely contradicted by defendants’ own testimony. The court specifically found that defendants obstructed justice by telling deliberate lies while on the witness stand. The discrepancies in the size and number of drug transactions testified to by a prosecution witness and by defendants were too large to be attributed to faded memories or confusion but were the result of selective memory lapses. U.S. v. Pitz, 2 F.3d 723 (7th Cir. 1993).
7th Circuit rejects acceptance reduction and upholds obstruction enhancement based on entrapment claim. (461) Defendant claimed that he sold drugs to police because he was “entrapped by his love” for his girlfriend, who cooperated with the police in organizing the sale. Finding this testimony “untruthful” and “utterly incredible,” the district court enhanced defendant’s sentence for obstruction of justice and denied him a downward adjustment for acceptance of responsibility. The 7th Circuit affirmed, rejecting defendant’s argument that raising an affirmative defense showed that he accepted responsibility. U.S. v. Emenogha, 1 F.3d 473 (7th Cir. 1993).
7th Circuit upholds obstruction enhancement for lie told at suppression hearing. (461) In support of as motion to suppress, defendant testified that his consent to a search occurred only after police had threatened him and his family. The motion was denied, defendant was convicted, and the district court enhanced defendant’s sentence for obstruction of justice based on defendant’s testimony at the suppression hearing. The 7th Circuit affirmed. Defendant was wrong to say that denial of the motion did not constitute a finding that defendant had lied; in fact, the district court explicitly characterized defendant’s testimony as “not credible.” U.S. v. Emenogha, 1 F.3d 473 (7th Cir. 1993).
7th Circuit upholds obstruction enhancement for perjury. (461) The 7th Circuit upheld an enhancement for obstruction of justice based on defendant’s perjury at trial. Defendant testified that he never sold any cocaine to his associate. The district court’s conclusion that defendant gave perjured testimony was not clearly erroneous. U.S. v. Carter, 999 F.2d 182 (7th Cir. 1993).
7th Circuit finds obstruction in lie about ownership of luggage. (461) Defendant was stopped in an airport on suspicion of drug trafficking. He allowed police to examine his plane ticket, which included a baggage claim check. Defendant and agents then separated, but defendant abandoned his checked luggage at the airport, and cocaine was found in it upon examination. The district court enhanced defendant’s sentence for obstruction of justice based on his testimony at trial that the bag was not his and he had not possessed a baggage claim check. The 7th Circuit affirmed, noting that if defendant’s story had been believed, he would have escaped punishment for his crime. U.S. v. Soto-Lopez, 995 F.2d 694 (7th Cir. 1993).
7th Circuit affirms that judge made independent finding of defendant’s perjury. (461) The 7th Circuit upheld an enhancement for obstruction of justice based on defendant’s trial perjury. To support an enhancement, all the district court must do is make a specific independent finding that defendant was less than truthful when he testified. Here, the court stated that it was convinced beyond a reasonable doubt that defendant “told a fabricated story on the witness stand,” and that his testimony was “outrageously untrue.” U.S. v. Hofer, 995 F.2d 746 (7th Cir. 1993).
7th Circuit sees no error in imposing, at resentencing, adjustment not imposed before. (461) Defendant was resentenced after appeal. At the first sentencing, the district judge had declined to enhance the sentence for obstruction notwithstanding defendant’s escape attempt. On resentencing, a second judge, imposed the adjustment. On appeal, defendant argued that this was error because the first judge had explicitly considered the adjustment and decided not to make it. The 7th Circuit noted, however, that the first judge had denied the adjustment because of confusion over whether the guidelines authorized it. Since the law on that point had since been clarified, it was proper to include the adjustment. U.S. v. Connor, 992 F.2d 1459 (7th Cir. 1993).
7th Circuit affirms finding of perjury. (461) Though an obstruction of justice enhancement is appropriate if a defendant commits perjury at trial, specific findings of perjury are required where the defendant objects to the adjustment. Defendant objected to application of the adjustment to him. The 7th Circuit upheld the adjustment based on the district court’s finding of perjury, which specifically mentioned defendant’s nervousness while testifying and the other evidence in the record contradicting defendant’s story. U.S. v. Dominguez, 992 F.2d 678 (7th Cir. 1993).
7th Circuit holds that obstructive conduct can begin before investigation into offense starts. (461) Defendant told an accomplice that if he were ever arrested, the accomplice should destroy a briefcase he was holding for defendant. The briefcase contained incriminating evidence of the instant offense. The 7th Circuit upheld an enhancement for obstruction of justice based on defendant’s instructions to his accomplice. It did not matter that as soon as defendant was arrested he began to cooperate, and accordingly received an acceptance of responsibility reduction. The act constituting an obstruction occurred before his arrest, while the acts constituting acceptance of responsibility occurred after his arrest. The fact that the order to obstruct justice came before the investigation into the offense was also not important, since the obstruction, if it occurred, would disrupt the investigation. i.U.S. v. Lallemand, 989 F.2d 936 (7th Cir. 1993).
7th Circuit holds that adoption of PSR was finding that defendant committed perjury. (461) Defendant claimed that the district court imposed an obstruction of justice of enhancement without specifically finding that he committed perjury or otherwise obstructed justice. The 7th Circuit rejected this, ruling that the district court made an independent finding of obstruction. A court may discharge its duty to make factual findings by adopting the findings contained in a presentence report. By adopting the position of the Probation Department, the court found that defendant had committed perjury. U.S. v. Troka, 987 F.2d 472 (7th Cir. 1993).
7th Circuit affirms obstruction based on false name and social security number given to court. (461) When defendant was arrested, he gave federal agents a false name and social security number. At his initial appearance before a magistrate, he once again gave his fictitious name. It took officials a week to determine defendant’s true identify through an FBI fingerprint check. The 7th Circuit affirmed an enhancement for obstruction of justice. If the court had accepted defendant’s ruse, it would not have discovered his prior criminal activities, and his sentencing range would have been reduced significantly. U.S. v. Price, 988 F.2d 712 (7th Cir. 1993).
7th Circuit upholds obstruction enhancement for providing false information about drug quantity. (461) The 7th Circuit upheld an adjustment for obstruction of justice because defendant was “less than truthful at every step of the proceedings.” In his three proffers, at his change of plea hearing, and during sentencing, defendant provided incorrect and false information as to the amount of drugs distributed by the conspiracy and his leadership role within it. U.S. v. Yanez, 985 F.2d 371 (7th Cir. 1993).
7th Circuit finds false statements at co-conspirator’s detention hearing were material. (461) Defendant and her husband were convicted of drug conspiracy charges. The 7th Circuit affirmed an obstruction of justice enhancement based on false information that defendant provided to the magistrate judge when she testified at her husband’s detention hearing. At that hearing, she swore that she did not know that a drug deal was occurring, and that she had not been told where she and her husband were going in her car that evening. The false statements were material, since they could have influenced the magistrate judge’s decision. The statements were not a mere denial of guilt. There is no basis for distinguishing between a false denial of guilt at one’s own trial, which constitutes grounds for enhancement, and sworn testimony at a detention hearing. U.S. v. Gunning, 984 F.2d 1476 (7th Cir. 1993).
7th Circuit upholds reliance on testimony that defendant threatened witness. (461) A cooperating co-conspirator testified that defendant threatened him while the two were in the holding area during trial in an attempt to influence his testimony about a meeting with undercover DEA agents. The 7th Circuit affirmed that it was proper to rely upon this testimony in imposing an obstruction of justice enhancement. The district court believed the witness’s account of the threats and refused to accept defendant’s denials. The appellate court would not “second guess that judgment because the trial judge, with an opportunity to view and weigh the witnesses’ testimony, [was] in the best position to make such determinations.” U.S. v. Campbell, 985 F.2d 341 (7th Cir. 1993).
7th Circuit finds that judge made independent finding of perjury. (461) The 7th Circuit upheld an obstruction of justice enhancement, affirming that the district court made an independent determination that defendant lied on the witness stand. The district court stated that because defendant used a false address, a different name and a false driver’s license, his testimony that he was not aware that a transaction was being structured to avoid reporting requirements was “willfully false.” U.S. v. Wilson, 985 F.2d 348 (7th Cir. 1993).
7th Circuit upholds perjury as basis for obstruction of justice enhancement. (461) Citing U.S. v. Dunnigan, 944 F.2d 178 (4th Cir. 1991), defendant argued that an obstruction of justice enhancement based on his perjury at trial created an unconstitutional burden on his right to testify. The 7th Circuit reaffirmed that nothing in Dunnigan caused it to reconsider its position that such an enhancement was proper if the district court made an independent finding that defendant committed perjury. U.S. v. Adebayo, 985 F.2d 1333 (7th Cir. 1993).
7th Circuit upholds obstruction enhancement based upon threatening witness and perjury. (461) The 7th Circuit upheld an enhancement for obstruction of justice based on defendant’s threats to a witness and perjury. In a taped conversation, defendant told a government informant that he would take a “personal vendetta” against anyone who got him in trouble with the law. Moreover, defendant lied about things the informant told him. The judge’s decision to rely on information in the PSI rather than to believe defendant’s assertions was a judgment of defendant’s credibility. On the other hand, certain false statements defendant made to police upon his arrest did not justify enhancement since the government conceded that the statements did not hinder their investigation. But, remand was unnecessary, since the first two grounds amply supported the enhancement. U.S. v. Kaufmann, 985 F.2d 884 (7th Cir. 1993).
7th Circuit affirms obstruction enhancement despite adoption of erroneous PSI. (461) Defendant received an obstruction of justice enhancement based in part on incorrect statements in her PSI. Nevertheless, the 7th Circuit affirmed the enhancement, because the judge made an independent determination that defendant perjured herself, based on other information. The judge commented that defendants were “flimflam artists who manipulated the court,” and that they “repeatedly set up strawpersons only to knock them down in the hope of confusing the proceedings.” These statements satisfied the requirement that district court specifically find that defendants obstructed justice by committing perjury. U.S. v. Jones, 983 F.2d 1425 (7th Cir. 1993).
7th Circuit finds obstruction based on perjury and nondisclosure. (461) There was no doubt that defendant obstructed justice by committing perjury. Defendant’s claim that he helped his co-defendant flee from federal authorities because of threats made against her was belied by evidence that he had told a friend prior to the co-defendant’s trial that he would never let her go to jail and had begun to seek out a haven in the Bahamas. Despite defendant’s claim that he had contacted the CIA concerning these threats, there was sufficient evidence supporting the determination that he had not. In addition to the agency’s denial, the IRS and defendant were unable to provide any substantiation of these contacts. Defendant’s failure to provide the probation officer with all of his aliases was also grounds for the enhancement. The nondisclosure of such information was the functional equivalent of furnishing affirmative misinformation. U.S. v. Jones, 983 F.2d 1425 (7th Cir. 1993).
7th Circuit upholds obstruction enhancement for threats to witness during presentence investigation. (461) Prior to sentencing, defendant’s bond was revoked for threatening his girlfriend that he would retaliate against her for cooperating with the FBI. The 7th Circuit affirmed that the threats were a proper ground for an obstruction of justice enhancement. Although defendant contended that his case was essentially over, the enhancement applies to obstruction of the sentencing process as well obstructive activities before and after trial. It was proper for the district court to conclude that the purpose of defendant’s threats was to thwart the girlfriend’s further cooperation with government officials. U.S. v. Woods, 976 F.2d 1096 (7th Cir. 1992).
7th Circuit upholds obstruction enhancement based on perjury at trial. (461) The 7th Circuit affirmed an enhancement for obstruction of justice based on defendant’s perjury at trial. In order to justify such an enhancement, the district court must make a specific independent finding that a defendant was less than truthful when he testified. The district court clearly did that in this case. Defendant’s testimony was contrary to a government agent’s testimony at several critical junctures, in particular with regard to when the agent paid defendant money and his location during the drug transaction. The district judge, who was in the best position to evaluate defendant’s truthfulness, determined that defendant had lied about these facts as well as about the agent’s alleged efforts to entrap defendant. U.S. v. Easley, 977 F.2d 283 (7th Cir. 1992).
7th Circuit upholds obstruction enhancement for failure to report drug arrest while on bond. (461) After defendant’s arrest, he was released on bond. The conditions of his release included the requirement that he report to the probation office all contact with law enforcement officers regarding criminal matters within 24 hours. At a bail revocation hearing, defendant failed to mention that he recently had been arrested by local police for heroin possession. Defendant challenged for the first time on appeal an enhancement for obstruction of justice based on this conduct. The 7th Circuit affirmed that the enhancement was not plain error. It was well within the discretion of the district court to consider defendant’s violation of his bail conditions as an attempt to obstruct justice. U.S. v. Jackson, 974 F.2d 57 (7th Cir. 1992).
7th Circuit upholds obstruction enhancement for perjury at trial. (461) Defendant, a licensed firearms dealer, was convicted of various charges relating to his sale of firearms to a convicted felon. He received an enhancement for obstruction of justice based on his testimony at trial that the government agent to which he sold firearms never told him he was a convicted felon. In contrast, both the agent and an ATF agent testified that on two occasions the agent told defendant he was a felon, and another ATF agent testified that defendant told him he knew it was wrong to have sold a firearm to a felon. The 7th Circuit affirmed the obstruction enhancement, rejecting defendant’s claim that basing it a mere denial of other witnesses’ testimony would have a chilling effect on a defendant’s right to testify on his own behalf. There is no right to commit perjury. U.S. v. Casanova, 970 F.2d 371 (7th Cir. 1992).
7th Circuit affirms obstruction enhancement based on independent finding of perjury. (461) Defendant claimed that the district court, which cited perjury as the basis for an obstruction of justice enhancement, grounded its determination on the jury’s guilty verdict rather than an independent finding of perjury. The 7th Circuit affirmed that the district court had made an independent determination of defendant’s perjury. The district court considered not only the jury verdict, but also defendant’s own statements, and independently assessed the credibility of that testimony. Defendant offered a detailed explanation of his whereabouts the morning of the instant offense, which both the jury and the judge rejected. U.S. v. Doubet, 969 F.2d 341 (7th Cir. 1992), abrogation on other grounds recognized by U.S. v. Buchanan, 115 F.3d 445 (7th Cir. 1997).
7th Circuit holds that defendant’s “admissions” were lies that justified obstruction enhancement. (461) The 7th Circuit affirmed an enhancement for obstruction of justice and the denial of a reduction for acceptance of responsibility based upon defendant’s explanation for his involvement in a murder for hire scheme. Defendant’s contentions that he was forced into the scheme by the undercover FBI agent, that the confidential informant threatened the safety of defendant and his family, and that he did not intend to have former in-laws killed, were properly labeled by the district court as lies and fabrications. Defendant’s trip to meet the FBI agent, the payment of $500 on account with a promise of another $1000, and his supplying pictures and addresses of the intended victims supported this determination. The lies not only were grounds for a denial of a reduction for acceptance of responsibility, but were grounds for the obstruction enhancement. U.S. v. Carr, 965 F.2d 408 (7th Cir. 1992).
7th Circuit upholds obstruction enhancement for committing perjury. (461) The 7th Circuit found no clear error in the district court’s two-level enhancement under § 3C1.2 for committing perjury. U.S. v. Becker, 965 F.2d 383 (7th Cir. 1992).
7th Circuit affirms obstruction enhancement based on three different stories defendant gave police. (461) Following his arrest, defendant told police that he kept cocaine in his apartment for his personal use and denied any knowledge of the source of the cocaine. Later that day, defendant gave a second statement in which he claimed that he purchased the cocaine from a drug dealer named “Solo,” that he made crack from the cocaine, and that the crack was for his personal use. At trial, defendant denied any knowledge of the drugs which were found in his apartment. The 7th Circuit ruled that this was sufficient to support an enhancement for obstruction of justice. U.S. v. Lawrence, 951 F.2d 751 (7th Cir. 1991).
7th Circuit affirms obstruction enhancement based on defendant’s perjury at trial. (461) The 7th Circuit affirmed the district court’s determination that defendant had committed perjury at trial and earned a two-level enhancement for obstruction of justice. At trial, defendant testified that he had never received or sold cocaine. Given the verdict of the jury, the district court could only find that defendant lied. U.S. v. Bafia, 949 F.2d 1465 (7th Cir. 1991).
7th Circuit affirms obstruction enhancement based upon “incredible” story given by defendant. (461) Defendant contended that the district court improperly used the defendant’s decision to testify and the subsequent guilty verdict as evidence that he testified untruthfully. The 7th Circuit affirmed the enhancement for obstruction of justice under section 3C1.1. Defendant testified that he was not involved in a cocaine transaction and stated that he had provided a loan of $4800 to his co-conspirator at approximately 5:50 p.m. to be used for the purchase of a used car. He further stated that he was waiting in a parking lot expecting the co-conspirator to return approximately an hour and a half later after having purchased the car and resold it at a profit. The district court found this testimony to be “incredible” in the face of testimony to the contrary, and the appellate court agreed. U.S. v. Welch, 945 F.2d 1378 (7th Cir. 1991).
7th Circuit affirms obstruction enhancement based upon defendant’s denial of violation of condition of bond. (461) The 7th Circuit affirmed a two-point enhancement for obstruction of justice based on defendant’s denial that he had slept overnight at a friend’s house while awaiting sentencing. A condition of defendant’s release on bond pending sentencing was that he reside at his sister’s home. Although defendant told a DEA agent that he had spent the night at the friend’s house, defendant told his probation officer that he had fallen asleep at the friend’s house for only one or two hours. The court rejected defendant’s contention that his “fib” was not a material falsehood. The issue was whether defendant violated the conditions of his release. Application note 3(h) states that providing materially false information to a probation officer in respect to a presentence or other investigation for the court is an example where the enhancement applies. The term “investigation” covers a broader range of inquiries than defendant’s guilt or innocence. U.S. v. Thompson, 944 F.2d 1331 (7th Cir. 1991).
7th Circuit affirms obstruction enhancement based on defendant’s threats to witnesses. (461) The 7th Circuit held that the evidence supported the district court’s enhancement for obstruction of justice. In addition to testifying untruthfully at the trial of co-conspirators, several witnesses testified that defendant attempted to intimidate them into changing their testimony regarding his involvement in the conspiracy. U.S. v. Cooper, 942 F.2d 1200 (7th Cir. 1991).
7th Circuit affirms obstruction enhancement for lying on essential evidentiary matters at trial. (461) The 7th Circuit affirmed an enhancement for obstruction of justice where the district court concluded that defendant lied about essential evidentiary matters at trial. U.S. v. Cochran, 955 F.2d 1116 (7th Cir. 1992).
7th Circuit affirms obstruction enhancement where threats against witness were corroborated. (461) At defendant’s sentencing hearing, a police detective testified that a government informant reported that defendant had called the informant and had threatened him and his attorney. According to the detective, the informant had also advised his attorney about the threats. Less than a week after the alleged threatening phone calls, the informant was shot at by another co-conspirator, who accused the informant of being “a snitch.” Neither the informant or the informant’s attorney testified at sentencing concerning the alleged threats. Nonetheless, the 7th Circuit affirmed an enhancement for obstruction of justice, rejecting defendant’s claim that the enhancement was based upon unreliable and uncorroborated hearsay. The court expressed doubts that the informant’s allegations, by themselves, would be sufficiently reliable to justify the enhancement. However, the shooting incident, which took place shortly after defendant was arrested, tended to corroborate the informant’s story. U.S. v. Jewel, 947 F.2d 224 (7th Cir. 1991).
7th Circuit rejects attempted escape as grounds for departure but would permit obstruction enhancement. (461) The 7th Circuit rejected an upward departure based on defendant’s attempted escape from custody prior to trial. The court agreed with the 8th Circuit’s decision in U.S. v. Cox, 921 F.2d 772 (8th Cir. 1990) that an attempted escape did not justify a departure. The appellate court also disagreed with the district court’s determination that only an “arbitrary” distinction between section 4A1.1(d) and (e), (pre-trial and post-trial detention), prevented the attempted escape from being included in defendant’s criminal history. The Sentencing Commission could rationally decide that one who has been convicted of a crime is more dangerous than someone who has not yet been convicted. However, the court said the attempted escape would have warranted a two-level enhancement in offense level for obstruction of justice under section 3C1.1. Judge Kane dissented. U.S. v. Connor, 950 F.2d 1267 (7th Cir. 1991).
7th Circuit upholds obstruction enhancement based upon judge’s independent determination of defendant’s perjury. (461) Defendant contended that the district court improperly imposed an obstruction of justice enhancement based upon the jury’s guilty verdict. The 7th Circuit disagreed, holding that the district judge made an independent determination that defendant lied at trial on three different issues. Other witnesses’ testimony conflicted with defendant’s testimony on each point, and the district court was in the best position to determine whether defendant was lying. The court concluded that defendant lied about how he was holding the beer bottle which he used to strike his victim, the sequence of events leading up to the confrontation, and whether the victim was holding a shiny item in his hand. Defendant’s fabrication about how he was holding the bottle was particularly material, since if defendant’s story were true, defendant would have hurt his own hand rather than cutting out his victim’s eye. U.S. v. Corn, 956 F.2d 135 (7th Cir. 1992).
7th Circuit upholds obstruction enhancement based on defendant’s perjury at trial. (461) Defendant received an obstruction of justice enhancement based upon his testimony that a prison inmate did not intend to participate in a bank robbery conspiracy, which conflicted with the inmate’s conviction of conspiracy. Defendant contended that this was unfair because he only testified as to his perception of the inmate’s intent, which did not amount to perjury. The 7th Circuit upheld the enhancement, finding it was supported by two theories. First, defendant’s testimony concerning who initiated the robbery plan conflicted with the testimony of another conspirator. Second, defendant’s testimony concerning the inmate’s intent also justified the enhancement. The court rejected the 4th Circuit’s decision in U.S. v. Dunnigan, 944 F.2d 178 (4th Cir. 1991), holding that an enhancement under section 3C1.1 based upon a defendant’s perjury at trial was an unconstitutional infringement on the right to testify. U.S. v. Jones, 950 F.2d 1309 (7th Cir. 1991).
7th Circuit upholds obstruction enhancement based upon false testimony. (461) The 7th Circuit summarily rejected defendant’s challenge to an enhancement under section 3C1.1 for obstruction of justice. Defendant (a) falsely denied under oath that he had a criminal record, and (b) falsely denied under oath that he ever purchased drugs from the conspiracy. These statements went beyond the simple denial of guilt protected by the “exculpatory no” doctrine. U.S. v. Brown, 944 F.2d 1377 (7th Cir. 1991).
7th Circuit finds obstruction where defendant gave co-defendant cash and securities for “safe-keeping.” (461) When defendant learned that the police were investigating a drug distribution ring in which he was involved, he gave $35,000 in cash and securities to a co-conspirator “for safekeeping.” Defendant testified at his sentencing hearing that the money was given to his co-conspirator to use in his defense if necessary. The 7th Circuit affirmed an enhancement for obstruction of justice under guideline section 3C1.1 based upon this conduct. The court agreed that turning over physical evidence of a crime to another individual for safekeeping once that person is on notice that there is a criminal investigation in progress meets the definition of obstruction. There was no merit to defendant’s claim that the enhancement should only have been granted on the money laundering charge, and not the drug trafficking charge. Both the cash and securities were proceeds of drug sales and thus evidence relevant to the drug trafficking charge. U.S. v. Brown, 944 F.2d 1377 (7th Cir. 1991).
7th Circuit upholds obstruction enhancement based on defendant’s false testimony. (461) The 7th Circuit upheld the district court’s decision to enhance defendant’s sentence for obstruction of justice based upon his false testimony. Defendant testified that he lost all contact with a drug seller by mid-October. However, a tape recording from November 3 showed that defendant gave an informant directions as to where to meet the seller. The finding of obstruction of justice was not clearly erroneous, and therefore the district court acted within its discretion in denying defendant a reduction for acceptance of responsibility. U.S. v. Feekes, 929 F.2d 334 (7th Cir. 1991).
7th Circuit upholds obstruction enhancement based upon defendant’s lies. (461) The district court reviewed defendant’s testimony at her detention hearing and was convinced that she lied repeatedly. The magistrate conducting the hearing made the same determination. The district court judge also found that defendant testified untruthfully at her sentencing hearing. The judge noted that he had a difficult time getting a straight answer from defendant, and found inconsistencies that indicated she lied throughout the hearing. Based on this record, the 7th Circuit affirmed an enhancement for obstruction of justice. U.S. v. Hassan, 927 F.2d 303 (7th Cir. 1991).
7th Circuit upholds obstruction enhancement based upon defendant’s letter to his girlfriend. (461) Immediately after defendant was interviewed by FBI agents concerning his use of stolen information to trade on the stock market, defendant wrote a letter to his girlfriend in which he stated to her that she “could not know anything about deals or stock,” and “You know you’re innocent and there is no way conceivable that you could have known anything about anything.” According to the girlfriend, both of these statements were false, and defendant could not have believed that she was unaware of his criminal activity. The 7th Circuit upheld an enhancement for obstruction of justice based upon defendant’s letter. The letter was a “subtle and somewhat clever attempt to tell her, ‘Don’t spill the beans.’” U.S. v. Cherif, 943 F.2d 692 (7th Cir. 1991).
7th Circuit affirms perjury as basis for obstruction enhancement. (461) The 7th Circuit affirmed an enhancement for obstruction of justice under guideline § 3C1.1 based upon defendant’s perjury at trial. Despite a government tape of defendant negotiating a drug deal with a government agent, defendant denied that he was the person on the tape, denied ever dealing drugs and denied ever meeting the government agent. Defendant’s testimony was more than a denial of wrongdoing, it was “a batch of lies.” Section 3C1.1 does not have an unconstitutionally chilling effect on a defendant’s right to testify, since a defendant has no right to commit perjury. The section is not unconstitutional even though its two-level enhancement in offense level results in a greater sentence increase for a defendant with a high base offense level than for a defendant with a low base offense level. In proportionality analysis, the focus is not on punishment across cases but on whether the quantum of punishment in a specific case is proportionate to the crime. Here, defendant’s sentence bore a rational relationship to his offense. U.S. v. Contreras, 937 F.2d 1191 (7th Cir. 1991).
7th Circuit affirms obstruction enhancement based upon defendant’s attempt to “con” the jury. (461) Defendant was convicted of concealing his true employment activity from the Social Security Administration and HUD. The 7th Circuit affirmed an enhancement for obstruction of justice based upon the district court’s determination that defendant attempted to “con” the jury. When initially contacted by government investigators, defendant gave at least three different reasons for his failure to disclose his employment. At trial, defendant first stated that he truthfully disclosed his employment in spite of overwhelming evidence to the contrary. Later, he contended that he believed he was not required to report this work until he had been working for a year, despite evidence that in the past he had reported a job which he had held for only one week. U.S. v. Hintzman, 937 F.2d 1196 (7th Cir. 1991).
7th Circuit affirms that guidelines permit obstruction enhancement for lying to a magistrate. (461) The district court imposed a two-point enhancement for obstruction of justice based on defendant’s false testimony before a magistrate during a hearing on his motion to suppress certain evidence. The 7th Circuit rejected defendant’s contention that the enhancement was improper because the district judge did not personally observe the alleged perjury. The fact that the perjured testimony occurred during a proceeding which was conducted by a magistrate did not affect the validity of the enhancement. The November 1990 version of Application Note 3(f) to guideline § 3C1.1 specifies that lying in a proceeding before a magistrate is a ground for an obstruction enhancement. Since this amendment was merely a clarification of existing law, the enhancement was proper. U.S. v. Caicedo, 937 F.2d 1227 (7th Cir. 1991).
7th Circuit upholds obstruction enhancement based upon defendant’s testimony that he did not know goods were stolen. (461) Defendant was found guilty of possession of a stolen interstate shipment in connection with his involvement in a conspiracy to steal a trailer and its shipment. The 7th Circuit affirmed an enhancement for obstruction of justice, finding the district court made sufficiently specific findings by stating that defendant “attempted to mislead the jury as to his knowledge and participation . . . in the theft. . . .” In his trial testimony, defendant made numerous representations that he did not know that either the trailer or its contents were stolen. Even when defendant admitted on cross-examination that he knew something was not quite right because the shipment was being unloaded into a co-defendant’s basement late at night, he still continued to maintain that he did not know that the shipment was stolen. U.S. v. Davis, 938 F.2d 744 (7th Cir. 1991).
7th Circuit upholds obstruction enhancement based upon defendant’s denial of material fact. (461) Defendant was convicted of several counts of sexual abuse. Defendant contended that an enhancement for obstruction of justice was improper because the only portion of his testimony that was not consistent with a material finding of fact by the court was his refusal to admit any penetration. He contended that the act was so brief that he was unaware he had penetrated his victim. The 7th Circuit rejected this argument. Defendant was aware by the time he testified that the court’s determination of his guilt depended significantly on whether the court found that penetration had occurred. Defendant did not express uncertainty about whether penetration had occurred. Rather, he repeatedly denied such penetration. Thus, the district court could determine that defendant had testified falsely on this material issue. U.S. v. Cherry, 938 F.2d 748 (7th Cir. 1991).
7th Circuit rejects denial of guilt to investigators as ground for obstruction enhancement but affirms on other grounds. (461) 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 affirms obstruction enhancement based upon defendant’s lies. (461) Defendant received an enhancement for obstruction of justice for lying at trial. He contended that the statements which the district court found to be perjurious were nothing more than minor inconsistencies, and reflected an imperfect recollection rather than a conscious effort to mislead the jury. The 7th Circuit rejected this contention. All of defendant’s “misstatements” served either to bolster defendant’s entrapment defense or to exonerate a co-defendant. Given this pattern, it was not clear error for the district court to conclude that defendant’s “misstatements” were outright lies intended to mislead the jury. U.S. v. Rodriguez, 929 F.2d 1224 (7th Cir. 1991).
7th Circuit affirms that defendant obstructed justice by attempting to hire inmate to kill witness. (461) Defendant challenged a two-level enhancement for obstruction of justice based upon his alleged attempt to hire an inmate to kill potential government witnesses. The 7th Circuit found that the enhancement was not clearly erroneous. Although the inmate’s testimony was contradicted by defendant, “the district court made a well-reasoned determination, based upon the credibility of the respective witnesses.” The inmate who testified as to the offer had “little motive to fabricate” his testimony, and his story was internally consistent and not contradicted by extrinsic evidence. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit holds that defendant who lied about identity to pre-trial services officer obstructed justice. (461) Defendant used false identification to open a bank account. Upon her arrest, defendant provided the pre-trial services officer with false information concerning her name, date of birth, length of residence in the United States, current address, family history, financial status and arrest record. This information was given to the U.S. Magistrate, who relied upon the information in setting a low appearance bond. Defendant contended that enhancing her sentence for obstruction of justice punished her twice for the offense for which she was convicted. The 7th Circuit rejected this argument, noting that although defendant’s conduct was similar in nature, she performed two distinct and separate acts of providing false information. U.S. v. Ojo, 916 F.2d 388 (7th Cir. 1990).
7th Circuit finds that defendant who gave false name to FBI and lied about his arrest and fingerprint record obstructed justice. (461) Defendant, who upon arrest had given the FBI a false name and lied about his arrest and fingerprint record, argued that an upward adjustment for obstruction of justice was improper, since two days later he recanted and gave authorities the correct information. The 7th Circuit upheld the upward adjustment, noting that even if defendant’s actions did not impact the investigation, the guidelines provide for an increase for attempts to obstruct justice as well as actual obstructions. U.S. v. Gaddy, 909 F.2d 196 (7th Cir. 1990).
7th Circuit holds that influencing codefendant’s grand jury testimony warranted obstruction of justice adjustment. (461) Defendant was convicted of conspiracy and of making false statements before a grand jury. The district court enhanced his offense level for obstruction of justice after it found that he had provided his codefendant with the script of what to say. The 7th Circuit affirmed the enhancement, ruling that the sentencing court’s factual finding that the defendant had taken advantage of codefendant’s request for assistance in reconstructing the facts of the offense was not clearly erroneous. The sentencing court found that defendant had actually attempted to influence codefendant’s testimony through the use of a “script.” U.S. v. Fozo, 904 F.2d 1166 (7th Cir. 1990).
7th Circuit holds that providing false name of source of cocaine warranted obstruction of justice adjustment. (461) Shortly after a drug defendant was arrested, he provided a false name to a government agent concerning the source of his cocaine. The following morning he recanted and provided the government with the true source of the cocaine. He argued that the sentencing court therefore erred in enhancing his offense level for obstruction of justice under § 3C1.1. The 7th Circuit disagreed, stating that because the false name that he gave caused the government to expend resources by pursuing the false lead, it was not clearly erroneous for the judge to find that this constituted an obstruction of justice. Furthermore, the defendant received credit for his subsequent recantation by being granted an acceptance of responsibility adjustment. The 7th Circuit found that the defendant was not entitled to a double benefit for this action. U.S. v. Dillon, 905 F.2d 1034 (7th Cir. 1990).
7th Circuit holds that flight involving high speed chase justified adjustment for obstruction of justice. (461) The 7th Circuit stated that mere flight in the immediate aftermath of a crime, without more, is insufficient to justify an obstruction of justice enhancement under § 3C1.1. But where the facts “demonstrate clear physical endangerment of others, whether it be law enforcement personnel and/or innocent bystanders” an obstruction of justice adjustment is proper. In this case the defendant led federal, state and local law enforcement personnel on a fifteen-to-twenty-minute life- endangering high speed chase. During the high speed chase defendant drove through a residential area at speeds between 80 and 90 miles an hour, ran red lights and stop signs, drove up on sidewalks and through yards while sideswiping and colliding with other vehicles. The court held that this justified the enhancement. U.S. v. White, 903 F.2d 457 (7th Cir. 1990).
7th Circuit holds that defendant who failed to appear for arraignment obstructed justice. (461) The 7th Circuit found that defendant’s failure to appear for his arraignment was a willful interference with the disposition of criminal charges, thus justifying an enhancement for obstruction of justice. Defendant’s conduct was willful because it was done with the purpose of disobeying the law. The court rejected defendant’s argument that there is a distinction between an act done with the purpose of obstructing justice and an act done with the purpose of disobeying the law. The court also declined to adopt a narrow definition of “obstruction of justice” that includes only acts that corrupt a court’s truth-finding process. “Obstruction of justice” also includes conduct that may hinder the progress of a case without the use of deceit. U.S. v. Teta, 918 F.2d 1329 (7th Cir. 1990).
7th Circuit upholds adjustment for obstruction of justice where defendant destroyed checks after arrest. (461) The defendant was convicted of theft of mail. The district court enhanced defendant’s sentence on the ground that, following release from custody on the day of her arrest, she had destroyed checks obtained from the mail. The 7th Circuit affirmed, ruling that the district court’s findings were not clearly erroneous and that defendant’s destruction of the checks constituted obstruction of justice even though these checks were not part of the charged conduct. U.S. v. Brown, 900 F.2d 1098 (7th Cir. 1990).
8th Circuit applies obstruction increase to defendant who left treatment facility while on pretrial release. (461) While on pretrial release, defendant resided in a residential drug treatment facility. Three days before a change of plea hearing, defendant slipped away from the facility and did not return. He did not attend the hearing, and the judge issued a warrant for his arrest. He was ar¬rested, and pled guilty to drug and firearms charges. The Eighth Circuit upheld a § 3C1.1 obstruction of justice in¬crease. By absconding from the drug treatment facility in violation of his pretrial release conditions, defendant escaped “from custody” within the meaning of § 3C1.1. Defendant also satisfied § 3C1.1 by failing to appear at his court ordered change-of-plea hearing. U.S. v. Ray, __ F.3d __ (8th Cir. Nov. 18, 2014) No. 14-1711.
8th Circuit upholds obstruction increase for attempting to destroy written confession. (461) Defendant provided a written statement to a police detective that he had been in possession of the firearm. As defendant was about to sign the statement, the detective told defendant that he needed to be honest about how long he had possessed the firearm. Defendant then grabbed the statement and tried to destroy it. After a struggle, two officers were able to control defendant and seize the torn statement. Defendant challenged a § 3C1.1(a) obstruction of justice increase, arguing that his conduct was a “panicked reaction” to the detective’s sudden revelation of his intent to pursue other unspecified and unnamed offenses. The Eighth Circuit upheld the enhancement, finding that the government presented sufficient evidence that defendant’s actions were a willful attempt to obstruct justice. Despite the detective telling defendant that the statement was evidence and would be seized, defendant refused to give the detective the statement and attempted to destroy it. All of this occurred while the detective was interviewing defendant about his being a felon in possession of a firearm. The district court did not commit clear error when it found that defendant’s attempt to destroy the written confession was a “conscious[ ] act with the purpose of obstructing justice.” U.S. v. Collins, __ F.3d __ (8th Cir. June 11, 2014) No. 13-2455.
8th Circuit upholds obstruction increase for sex offender who lied about state of residence. (461) Defendant was convicted of failing to register as a sex offender in Arkansas, in violation of 18 U.S.C. § 2250(a). To prove he lived in Arkansas, the government introduced defendant’s testimony from a previous case in Missouri. At that hearing, defendant appeared to tell the judge that he had left Missouri and had been living in Arkansas for the year prior to his arrest. At his federal trial, however, defendant denied living in Arkansas during that time and testified that he had misunderstood the judge’s question at the state plea hearing. The Eighth Circuit upheld an obstruction of justice enhancement based on defendant’s trial testimony that he did not live in Arkansas. Based on its own observations at his federal trial, the district court found by a preponderance of the evidence that defendant’s trial testimony had been willfully false. The information was material. Since defendant denied at trial having lived in Arkansas for more than a few days at a time, his previous sworn statement that he had lived in Arkansas for about a year was important evidence. U.S. v. Kozohorsky, 708 F.3d 1028 (8th Cir. 2013).
8th Circuit upholds obstruction increase and denial of acceptance reduction based on post-plea threats to potential witness. (461) Defendant pled guilty to multiple counts of sending and mailing threatening communications to an FBI agent. After pleading guilty, defendant continued to write letters to the agent and his wife, and other law enforcement officers. The Eighth Circuit upheld a § 3C1.1 obstruction of justice increase based on the letters defendant sent to the FBI agent. The agent’s knowledge of defendant’s conduct made him a likely witness in future proceedings affecting defendant. Threats made against a potential witness could reasonably be concluded as intended to obstruct or impede the administration of justice. The panel also held that the district court did not err in denying defendant a reduction for acceptance of responsibility. Defendant’s post-plea conduct, including mailing threatening letters to the FBI agent, did not reflect acceptance of responsibility. U.S. v. Hutterer, 706 F.3d 921 (8th Cir. 2013).
8th Circuit finds court did not rely solely on PSR in applying obstruction increase for trial perjury. (461) Defendant was convicted of multiple counts of stalking and extortion against his ex-wife. His behavior included creating a website containing secret recordings of their sexual encounters, nude pictures of his ex-wife, pictures of her suicide attempt, and copies of all of her text messages and emails to him. When she refused to take him back, he mailed dozens of postcards to addresses throughout her community, advertising the website along with abusive language. At trial, defendant made a number of implausible statements under oath, including that he did not intend to harm his ex-wife, and that his ex-wife assisted him in creating the website. The Eighth Circuit upheld the obstruction increase, rejecting defendant’s claim that the court erroneously relied solely on the findings in the PSR. The district court made the requisite independent finding that defendant committed perjury, and did not merely rubberstamp the PSR’s conclusions and recommendations. The district court based its finding of perjury on its own independent evaluation and not solely on the PSR. U.S. v. Petrovic, 701 F.3d 849 (8th Cir. Dec. 13, 2012).
8th Circuit finds obstruction where defendant created handcuff keys to attempt escape. (461) At defendant’s sentencing, a U.S. Marshal testified that prison guards discovered two homemade handcuff keys in defendant’s cell. According to the Marshal, during the investigation, other inmates revealed defendant’s plans to escape from jail and his use of the law library (which lacked surveillance) to practice removing handcuffs. The district court applied a two-level adjustment for obstruction of justice based on the attempted escape. Defendant argued that there was no attempt because he did not take a substantial step toward an escape. The Eighth Circuit disagreed and upheld the obstruction increase. The Marshal’s testimony satisfied the intent requirement, because defendant disclosed to other inmates his plan to escape. A defendant takes a “substantial step” when he takes actions “necessary to the consummation of the crime that were of such a nature that a reasonable observer, viewing the actions in context could conclude that the actions were undertaken in accordance with a design to commit the actual offense.” A casual observer would view the creation of handcuff keys (and practice using them) as “in accordance with a design” to escape. U.S. v. Tyerman, 701 F.3d 552 (8th Cir. 2012).
8th Circuit approves obstruction increase for disposing of assets defendant knew were subject to forfeiture. (461) Defendant pled guilty to fraud and money laundering, and agreed to forfeit all property derived from proceeds traceable to the offenses. The government sought forfeiture of a Ford Mustang and a motorcycle. During a deposition, defendant reported selling the Mustang, but said he either lost the sale proceeds or “somebody took” the proceeds while he was drunk. He also testified that he gave the motorcycle to somebody he knew only as “Jako” who was trying to assume defendant’s bank loan on the motorcycle. The Eighth Circuit upheld an obstruction of justice increase, and the denial of an acceptance of responsibility reduction, based on defendant’s sale of an asset that was subject to forfeiture, his failure to turn over the proceeds of that sale, and his false statement that he lost the proceeds. U.S. v. Dufresne, 698 F.3d 663 (8th Cir. 2012).
8th Circuit approves obstruction increase and denies acceptance reduction for perjury at trial. (461) Defendant contended that the district court erred in applying a two-level increase for obstruction of justice, based on its finding that defendant intentionally gave false testimony about the quantity of drugs in the conspiracy and his knowledge of co-conspirator Burridge. The Eighth Circuit found no error. Lying to obtain a lighter sentence is obstruction of justice under § 3C1.1, and the district court’s finding that defendant lied must be accepted unless clearly erroneous. As for the denial of credit for acceptance of responsibility, this was not an extraordinary case where a defendant who obstructed justice may also receive an adjustment for acceptance of responsibility. U.S. v. Walker, 688 F.3d 416 (8th Cir. 2012).
8th Circuit upholds obstruction increase for forged letters from medical professionals. (461) Prior to sentencing, defendant filed objections to his PSR. Attached to the objections were letters, purportedly written by health care professionals, discussing defendant’s addiction to pain relievers and his mental health issues. The letters requested that defendant be allowed to participate in drug and alcohol rehabilitation programs while in prison. These letters were forgeries that defendant had given to his attorney. The Eighth Circuit ruled that the district court properly applied an obstruction increase based on the forged letters. The letters could have affected both the length of the sentence and the conditions of his imprisonment. Whether a defendant has a history of drug abuse is relevant to his “history and characteristics,” 18 U.S.C. § 3553(a)(1), and the need for a sentence “to provide the defendant with needed … medical care [and] other correctional treatment.” The district court said that it often recommends participation in the Bureau of Prison’s 500-hour residential drug treatment program for defendants with a substance abuse problem. U.S. v. Rickert, 685 F.3d 760 (8th Cir. July 19, 2012).
8th Circuit approves obstruction increase based on telling family members to lie. (461) After a neighbor reported defendant’s inappropriate contact with the neighbor’s son, defendant began a campaign to terrorize the neighbor. He was convicted of unauthorized access to a protected computer, aggravated identity theft, threats to the Vice President of the U.S, and child pornography charges. The Eighth Circuit upheld the obstruction of justice enhancement based on letters defendant wrote to his children and sister. The letters instructed them to “keep to [defendant’s] story” about the alleged kiss between defendant and the neighbor’s son, and the neighbor’s ensuing confrontation with defendant. He told his children and sister to write only positive things about him, and insisted he edit their letters. The evidence related to defendant’s motivation to commit the offenses. Moreover, the district court was independently justified in applying the obstruction increase based on its finding that defendant perjured himself when attempting to withdraw his guilty plea. His claim that he did not commit the charged crimes “directly contradicted the sworn statements [he] made during his change of plea hearing.” U.S. v. Ardolf, 683 F.3d 699 (7th Cir. 2012).
8th Circuit upholds obstruction increase based on lies during at suppression hearing and at trial. (461) The district court applied an obstruction of justice enhancement based on defendant’s testimony that he was not Mirandized and did not intend to sell the methamphetamine found in his garage. The Eighth Circuit upheld the obstruction of justice enhancement. Both at trial and during the suppression hearing, defendant claimed that he was not read his Miranda rights. However, Officer Branch testified that he did, in fact, read defendant his Miranda rights. And, contrary to defendant’s testimony, both Officer Branch and Officer Noonan testified that they never threatened defendant in any way. Defendant also testified at trial that he never sold drugs. However, he was caught with about nine grams of 80 percent pure methamphetamine that he claimed was for personal use. He also had drug baggies and a drug scale. Officer Lang estimated that the meth was worth between $800 and $900, and was not an amount purchased for personal use. Officer Lang also testified that it was common for heavy meth users to sell the drug to support the habit. Additionally, a co-conspirator confirmed that defendant had sold him methamphetamine. U.S. v. Vega, 676 F.3d 708 (8th Cir. 2012).
8th Circuit approves obstruction increase for perjury at trial. (461) A jury convicted defendant of “assault resulting in serious bodily injury” in violation of 18 U.S.C. §§2, 1153, and 113(a)(6). At trial, six eyewitnesses, including the victim and defendant’s minor son, testified that defendant and her minor nephew assaulted the victim during a party at defendant’s home. The Eighth Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial. Defendant’s own testimony was dramatically different from that of the other witnesses. The district court relied upon the testimony of defendant’s son, which the district court found to be “unquestionably” and “completely credible,” and which was inconsistent with defendant’s own testimony. U.S. v. White, 675 F.3d 1106 (8th Cir. 2012).
8th Circuit approves obstruction increase for perjury at trial. (461) During a search of defendant’s residence, a police officer found five shotgun shells in an orange hunting vest hanging in the closet. Defendant was convicted of being a felon in possession of ammunition. The district court found that defendant had perjured himself at trial, and applied an obstruction of justice enhancement. At trial defendant denied knowledge of the ammunition, but at his state parole-revocation hearing, he admitted that he saw the ammunition when unpacking a box containing the vest. Moreover, the officer who conducted the search testified that it would have been impossible for anyone handling the vest to not recognize that it held shells. The Eighth Circuit upheld the obstruction increase. Defendant made conflicting statements under oath at his parole revocation hearing and at trial regarding his knowledge that the ammunition was in the orange vest. Further, the searching officer’s testimony was consistent with the district court’s finding. U.S. v. Anderson, 674 F.3d 821 (8th Cir. 2012).
8th Circuit upholds obstruction increase for text messages seeking to have informant killed. (461) Defendant pled guilty to distributing five or more grams of methamphetamine. The district court applied an obstruction of justice enhancement based on a series of text messages defendant sent to an undercover agent, discussing how to silence an informant. The Eighth Circuit rejected defendant’s claim that the evidence was insufficient to show that he intended to obstruct justice. Among other incriminating statements, defendant told the agent “lure him somewhere he won’t be a problem anymore,” and “I don’t want him breathing.” Whether defendant’s comments reflected “a genuine intent to obstruct justice or were mere braggadocio [was] a question of fact akin to a credibility determination that the district court was in a far better position of address” than the appellate court. The text messages supported a reasonable inference that defendant intended to interfere with or harm the informant. The panel rejected defendant’s contention that the text messages were not a substantial step amounting to obstruction of justice. U.S. v. Smith, 665 F.3d 951 (8th Cir. 2011).
8th Circuit upholds obstruction increase based on trial perjury. (461) Defendant was convicted by a jury of three counts of mailing threatening communications and one count of interstate communication of threats. The district court applied an obstruction of justice enhancement, finding that he willfully gave false testimony at trial. He testified that the four communications were not intended as threats, and that he was trying to stop certain crimes from occurring and “get things back on the right track.” The district court found that defendant testified falsely regarding his motives for making the threatening communications, his conversations with one victim, and his relationship with another victim. The Eighth Circuit upheld the obstruction increase. In light of the district court’s superior position from which to judge credibility, as well as ample proof that defendant made the communications for reasons other than those he declared at trial, the district court did not clearly err in applying the obstruction increase. U.S. v. Mabie, 663 F.3d 322 (8th Cir. 2011).
8th Circuit finds no double-counting where obstruction increase was applied to underlying offense. (461) Defendant was convicted of aiding and abetting a violation of the Medicare anti-kickback statute and the falsification of a document in connection with a government investigation. The Eighth Circuit rejected defendant’s claim that an obstruction of justice enhancement constituted impermissible double-counting. Defendant’s two offenses were grouped under § 3D1.1(c), and the court determined a single offense level for the group. When an obstruction offense is grouped with an underlying offense, the offense level for the grouped offense is the offense level for the underlying offense, increased by the two-level obstruction adjustment under § 3C1.1, or the offense level for the obstruction offense, whichever is greater. Here, the sentencing court followed the grouping rules by imposing a two-level obstruction adjustment to the base offense level for the underlying anti-kickback statute offense. There was thus no double-counting of the obstructive conduct. U.S. v. Yielding, 657 F.3d 688 (8th Cir. 2011).
8th Circuit says obstruction increase was based on defendant’s false statements, not his opinions. (461) Defendant fired a rifle through the front grill of a government-owned truck in the custody of Bourne, a land assessor for the Bureau of Indian Affairs. He was convicted of depredation of government property. The district court applied a § 3C1.1 obstruction of justice increase, finding that defendant had testified falsely about his belief that Bourne was a trespasser and about threatening actions he claimed Bourne had taken. The Eighth Circuit affirmed the obstruction increase. The perjury finding was not based solely on defendant’s professed opinion or belief about the significance of certain actions, but rather included a finding that actions described by defendant simply did not occur. The court expressly found perjurious defendant’s testimony that, after defendant ordered Bourne to exit the truck, Bourne glared at him, revved the truck’s motor, and snapped his hand on the gear shifter, causing defendant to fear that Bourne intended to run over him with the truck. This testimony addressed material facts, not just opinion or belief. U.S. v. Wisecarver, 644 F.3d 764 (8th Cir. 2011).
8th Circuit approves obstruction increase for sending numerous documents to officials to retaliate against them. (461) Defendant participated in a scheme that marketed and sold fraudulent “diplomatic immunity” cards. The PSR listed two factual bases to support an obstruction of justice enhancement: (1) that some members of the movement killed the pet of a law enforcement officer to intimidate and retaliate against the officer; and (2) that defendant sent numerous pro se documents to officials prior to trial, in violation of a court order, in order to intimidate or retaliate against the officials. The Eighth Circuit upheld the enhancement. The panel agreed with defendant that the court could not have based the enhancement on the conduct involving the official’s pet, since defendant objected to this PSR fact, and the government did not put on any evidence at sentencing to support this allegation. However, defendant did not object to the factual allegations regarding the documents sent to the U.S. Attorney and Marshal, and admitted sending them. Under these circumstances, the district court could properly consider those facts. This pretrial conduct was sufficient to apply the obstruction enhancement. U.S. v. Goodyke, 639 F.3d 869 (8th Cir. 2011).
8th Circuit applies obstruction increase for defendant’s testimony that he had not seen child porn on his computer. (461) Technicians discovered child pornography on defendant’s computer when he took the computer in for service. Defendant was convicted of possessing child pornography. At trial, defendant testified that he had never seen any of the images of child pornography found on his hard drive. However, McConnell, a fellow detainee in the county jail, testified that defendant told him that he had child porn on his computer, that he had been viewing child porn at the time his computer froze, and that he planned to testify that the images were already on the computer when he received it. The Eighth Circuit upheld an obstruction of justice enhancement, rejecting defendant’s argument that the court erred in relying on McConnell’s “inherently untrustworthy” testimony. The district court found that defendant testified falsely concerning a material matter, and explicitly noted that it did not consider McConnell’s testimony in reaching this conclusion. The location of the pornographic images on defendant’s hard drive, the proximity of those images to defendant’s personal photos, and the links to child porn websites in defendant’s “Favorites” folder, all contradicted defendant’s testimony that he had never seen the images of child porn. U.S. v. Yarrington, 634 F.3d 440 (8th Cir. 2011).
8th Circuit affirms obstruction increase based on testimony of threats to co-conspirator. (461) At defendant’s sentencing hearing, Duran, a co-conspirator, testified that defendant threatened and assaulted him while the two were in prison. Duran testified that while he was sitting on a bench in the booking area, defendant crossed the room in a line of inmates. As defendant passed Duran, he stepped out of the line, slapped Duran, and said in Spanish that Duran was a “traitor” and that he would “lose out or be killed.” A security guard testified at the sentencing hearing that he heard a “smacking noise” but did not see defendant strike Duran. However, the guard reviewed a security recording to confirm that the slap occurred. The guard also testified that he heard defendant say something to Duran near the time of the slap, but since he did not speak Spanish, he could not confirm that defendant had threatened Duran. The Eighth Circuit upheld an obstruction of justice enhancement. The court was free to believe Duran’s testimony that defendant threatened him, regardless of whether the guard sufficiently understood Spanish to corroborate what defendant said to Duran. U.S. v. Sandoval-Sianuqui, 632 F.3d 438 (8th Cir. 2011).
8th Circuit upholds obstruction increase for defendant who lied at trial. (461) Defendant was convicted of armed robbery of a bank. He left the bank driving a truck that had been stolen during a previous robbery. The district court increased the sentence for obstruction of justice under § 3C1.1, because at trial, defendant denied stealing the truck or committing any of the robberies. To explain his arrest, he testified that he was picked up while walking, placed in an unmarked police car, and driven to the scene of the last robbery by “crooked cops.” He denied confessing to detectives, claimed he was not given Miranda warnings, and then refused to answer further questions when the prosecutor began playing a tape of defendant being given those warnings. The district court found that defendant’s unequivocal denial that he robbed the bank and his testimony that he was arrested elsewhere was contrary to the overwhelming evidence. Thus he made willfully false statements under oath about a material matter. The Eighth Circuit upheld the obstruction increase. There is no constitutional right to lie. U.S. v. Ewing, 632 F.3d 412 (8th Cir. 2011).
8th Circuit finds defendant knew he was fleeing from police officers. (461) Defendant pled guilty to drug charges, and received a § 3C1.2 increase for reckless endangerment during flight. The Eighth Circuit affirmed, rejecting defendant’s argument that there was insufficient evidence that he knew he was fleeing from law enforcement officers. At sentencing, the district court reviewed surveillance photos and heard testimony about defendant’s flight and one of the officer’s injuries. The court credited the testimony of the officers and rejected defendant’s contention that he had been unaware that the people who stopped him were police officers. The officers testified how they identified themselves as police at least twice after blocking defendant’s vehicle in the motel parking lot. Defendant was also instructed to get out of his truck by one office who was within four to five feet and wearing a police officer badge on his shirt. Two other officers who approached defendant’s truck were wearing policy raid gear with police insignia on the front and back, and one was wearing a cap that read “Police.” The court’s findings were not clearly erroneous. U.S. v. Silva, 630 F.3d 754 (8th Cir. 2011).
8th Circuit upholds obstruction increase for false statement to investigators about source of down payment. (461) Defendant was convicted of multiple fraud charges based on his participation in the fraudulent sale and financing of 12 residential properties. The district court applied an obstruction of justice, in part, because defendant made materially false statements to an investigator when he denied that he assisted one of the buyers down payments on the properties. The Eighth Circuit held that the district court was correct to apply the enhancement for defendant’s obstructive conduct even though defendant was convicted for that same conduct. See Note 8 to § 3C1.1. The panel also disagreed with defendant’s claim that his materially false statement did not “significantly obstruct[] or impede[] the official investigation or prosecution” of the offense. The sellers group’s handling of the down payments under false pretenses was a key fact in a difficult-to-prove conspiracy. In order to prove the case, the prosecutors were required to prove that defendant gave the buyers the down payment. Because of defendant’s lies, the government needed to use clandestine tactics, such as equipping one of the buyers with a recording device, in order to prove this material fact. U.S. v. McKanry, 628 F.3d 1010 (8th Cir. 2011).
8th Circuit upholds obstruction increase based on trial perjury. (461) The district court applied an obstruction of justice increase, finding that defendant willfully lied under oath at trial, and repeated those lies at sentencing. The court cited as examples defendant’s testimony that he personally used a substantial portion of the crack he purchased and his repeated denials that he knew about the crack found during the warrant search of his residence. The Eighth Circuit upheld an obstruction of justice increase. Lying to obtain a lighter sentence is obstruction of justice under § 3C1.1, and the district court’s finding that defendant lied must be accepted unless clearly erroneous. U.S. v. Moore, 624 F.3d 875 (8th Cir. 2010).
8th Circuit upholds obstruction increase based on defendant’s contradictory sworn statements. (461) Defendant argued the district court erred in imposing a two-level enhancement under § 3C1.1 for obstruction of justice. The Eighth Circuit disagreed. During defendant’s initial change of plea hearing, defendant acknowledged he was guilty of conspiracy to distribute methamphetamine, and admitted a series of facts that supported his guilt. When he later attempted to withdraw his guilty plea, he made statements that directly contradicted his earlier sworn statements. Defendant also signed a sworn affidavit which contradicted his prior sworn statements and the undisputed facts in the PSR. U.S. v. Alvarado, 615 F.3d 916 (8th Cir. 2010).
8th Circuit affirms obstruction increase for attempting to influence witness to create alibi. (461) The district court imposed an obstruction of justice enhancement for two independent reasons. First, the court found that during the investigation, defendant told law enforcement he attended a party the night of the robbery and lied to law enforcement about the time he left the party. The court also found that defendant gave his brother, who testified before the grand jury, false information about when he left the party. The court found this conduct material to the offense of conviction because it provided defendant with an alibi. The court viewed defendant’s conduct as attempting to unlawfully influence a witness and attempting to suborn perjury. The Eighth Circuit concluded that the district court did not clearly err. U.S. v. Jones, 612 F.3d 1040 (8th Cir. 2010).
8th Circuit approves obstruction increase for lying at trial about intent to engage in sexual activity with minor. (461) Defendant was convicted of attempting to entice Emily, a minor he met over the Internet, to engage in sexual activity. Emily was, fact, an undercover agent with the Internet Crimes Against Children Task Force. Defendant testified at trial that he did not travel to the motel where he had arranged to meet Emily to commit the crime, but that he merely traveled to the location to ensure that Emily arrived home safely. He specifically stated that his online chats were merely a “fantasy” to see how much Emily would discuss online. The Eighth Circuit upheld an obstruction of justice increase, since the evidence overwhelming indicated a different interpretation of his actions. Defendant drove to the hotel, attempted to book a room, and drove around the surrounding area when he did not see Emily. Additionally, a condom and bubble bath were found in his car, indicating that he desired to engage in sexual conduct with Emily. Moreover, his testimony directly contradicted his confession to police after his arrest. U.S. v. Young, 613 F.3d 735 (8th Cir. 2010).
8th Circuit upholds obstruction increase for perjury at trial. (461) Defendant was convicted of attempt to manufacture methamphetamine and possession of a firearm. The district court applied an obstruction of justice enhancement based on its finding that he had committed perjury. The court found that the evidence of meth manufacturing supplies in his home and his purchase of large amounts of pseudoephedrine contradicted his testimony that he never manufactured meth. His testimony included facially incredible statements that all of his pseudoephedrine purchases, including purchasing medication from multiple stores on the same day, were to treat hay fever. Given these circumstances, the district court’s determination that defendant committed perjury was not clearly erroneous. U.S. v. Mashek, 606 F.3d 922 (8th Cir. 2010).
8th Circuit applies increase for high-speed chase through rush hour traffic. (461) Defendant robbed a bank, and then led police on a high-speed chase through morning rush hour traffic, reaching speeds of over 100 miles per hour. He eventually exited his vehicle pointing a pellet gun at police. The Eighth Circuit upheld a § 3C1.2 increase for recklessly creating a substantial risk of death or serious bodily injury to others. Although mere flight might not justify an enhancement, defendant’s acts following the robbery created a substantial risk of serious bodily injury to commuters, bystanders, and law enforcement. U.S. v. Small, 599 F.3d 814 (8th Cir. 2010).
8th Circuit upholds obstruction increase for ordering destruction of records before audit. (461) Defendant worked for an employment and training organization funded by grants from federal, state, and local governments. She pled guilty to fraud charges relating to the improper allocation of the time of company employees, and billing of the various government entities. The Eighth Circuit rejected defendant’s challenge to an obstruction of justice enhancement. The PSR indicated that prior to an auditor’s visit, defendant ordered the destruction of time records that would have shown inconsistencies in reporting practices of employees – conduct that was directly relevant to the pending investigation. This was corroborated at sentencing by the testimony of an FBI agent, who recalled statements of others that defendant either directed them to dispose of a number of time cards of individual employees, or who were otherwise involved in the destruction or alteration of company business records. This evidence was sufficient to support the enhancement. U.S. v. Cunningham, 593 F.3d 726 (8th Cir. 2010).
8th Circuit holds that § 3C1.1 applies to threats to prosecutor and family. (461) Defendant pled guilty to multiple drug counts. The district court applied an obstruction of justice enhancement based on evidence that while defendant was in custody awaiting disposition of his charges, he attempted to hire someone to murder the wife of the assistant U.S. attorney prosecuting his case. The Eighth Circuit affirmed. First, defendant’s attack on the district court’s factual findings was unavailing. The court’s conclusion was not based solely on a credibility judgment, but defendant’s own words in a recorded telephone call with a deputy posing as a hit man. The court rejected defendant’s argument that the obstruction enhancement does not apply where a defendant targets a prosecutor or his family. The language of § 3C1.1 is broad, and recognizes that obstructive conduct can vary widely in nature. Attempting to procure the murder of a prosecutor’s wife falls well within the scope of the guideline. U.S. v. Wahlstrom, 588 F.3d 538 (8th Cir. 2009).
8th Circuit upholds inference that defendant knew his witness would give perjured testimony. (461) Defendant was convicted of various drug crimes. At trial, a co-defendant who pled guilty testified on defendant’s behalf. The district court applied an obstruction of justice increase based on the co-defendant’s perjury, finding that defendant knew the co-defendant would lie on the stand. The Eighth Circuit upheld the obstruction enhancement. Defendant’s counsel established that he had never spoken to the witness, yet represented to the court that he knew the witness would testify that defendant was not involved in the offense. The district court drew the reasonable and permissible inference that defendant and the co-defendant, housed at the same jail, had spoken at the jail about the content of the co-defendant’s proposed testimony and that defendant had told his lawyer what that testimony would be. U.S. v. Montes-Medina, 570 F.3d 1052 (8th Cir. 2009).
8th Circuit increases sentence for recklessly endangering others while fleeing from police with loaded gun. (461) Defendant was the passenger in a stolen vehicle that led police on a high-speed chase. Defendant and the driver jumped from the moving vehicle just before it struck a pole, and then attempted to flee on foot. After an officer tackled defendant, he struggled on the ground with the officer, continually attempting to reach toward his own waistband until the officer handcuffed him. Once defendant was handcuffed, officers found a loaded pistol in defendant’s waistband and cocaine base in a plastic baggie in his pocket. The Eighth Circuit upheld a § 3C1.2 enhancement for recklessly endangering others in the course of fleeing from law enforcement officers. Defendant recklessly created a substantial risk of serious harm to others while fleeing from police. U.S. v. Bates, 561 F.3d 754 (8th Cir. 2009).
8th Circuit upholds obstruction increase based on perjury at co-conspirator’s trial. (461) The day after his arrest on drug charges, defendant told police that Martinez had given him the drugs he possessed at the time of his arrest. At Martinez’s trial, however, defendant testified that he had obtained the drugs from someone else and that Martinez knew nothing about the drug trafficking. When confronted on cross-examination with his prior statement, defendant said that he had lied to police during his post-arrest interview in order to pin the blame on Martinez. The district court found that defendant committed perjury and applied a two-level obstruction of justice increase. The Eighth Circuit held that the district court did not err in imposing the obstruction enhancement. The court found that defendant had lied at trial from his demeanor and the “patently incredible nature of some of [his] testimony” in light of other evidence about the trafficking operations and his association with Martinez. The court also found that defendant’s perjury was knowing and willful and that it was material to the issue of Martinez’s guilt. U.S. v. Aleman, 548 F.3d 1158 (8th Cir. 2008).
8th Circuit approves obstruction increase based on false testimony at sentencing. (461) The district court applied an obstruction of justice increase because it found that defendant had lied under oath at sentencing, and that the lie was material because it was an attempt to discredit Williams, a government witness. Defendant was a suspect in a shooting, and Williams testified that defendant had asked him to falsely implicate a man known as Shoo Boo. Defendant contradicted William’s testimony, claiming that he did not know and had never heard of Shoo Boo. However, an FBI agent testified that defendant had told him during an interview that he knew Shoo Boo, that he had provided a physical description of Shoo Boo, and that he had said Shoo Boo used rental cars to sell crack. The Eighth Circuit upheld the obstruction enhancement. If the district court had believed defendant’s false testimony, that could have influenced its view of the credibility of the other witnesses at sentencing and its understanding of facts relevant to an appropriate sentence for his case. U.S. v. Brown, 539 F.3d 835 (8th Cir. 2008).
8th Circuit affirms obstruction increase for urging girlfriend not to mention defendant’s knife. (461) Defendant and his girlfriend robbed a bank. The district court applied an obstruction of justice increase based on (1) the girlfriend’s testimony that when she visited defendant in jail, he showed her a note urging her not to say anything about a knife; and (2) defendant’s letter to his girlfriend stating, “I hope and pray to God you did not say anything about a weapon . . . [b]ecause it will make it worse on me and you even if they promised not to prosecute you. . . .” The Eighth Circuit held that the district court did not err in finding the girlfriend’s testimony “totally believable,” and in imposing the obstruction increase based on defendant’s attempts to prevent his girlfriend from revealing that defendant carried a concealed knife during the bank robbery. U.S. v. McDonald, 521 F.3d 975 (8th Cir. 2008).
8th Circuit applies reckless endangerment increase where defendant barricaded himself in hotel room and claimed to have a gun. (461) Defendant and his girlfriend robbed a bank. After police made contact with them outside their hotel room, the couple retreated and barricaded themselves in their room and a standoff ensued. Defendant initially claimed to have a gun. Adjacent rooms were cleared and the SWAT team was called in to assist. During the standoff, defendant threw two chairs through a closed window in their second floor room. Officers were close to where the chairs and broken glass landed. After about two and one-half hours, officers forcibly entered the room and took defendant and his girlfriend into custody. The Eighth Circuit upheld a two-level enhancement under § 3C1.2 for reckless endangerment during flight. It was not the actions of law enforcement, in dispatching the SWAT team or breaking down the door of defendant’s hotel room, that “recklessly created a substantial risk of death of serious bodily injury to another person.” Instead, it was defendant’s conduct (barricading himself in hotel room for over two hours, claiming to be armed with a gun, and hurling furniture through a window) that constituted reckless endangerment. U.S. v. McDonald, 521 F.3d 975 (8th Cir. 2008).
8th Circuit says court was required to impose obstruction increase where defendant instructed her daughter to lie to investigators. (461) Defendant pled guilty to drug charges. She stipulated that she told her daughter to withhold from investigators information regarding defendant’s involvement in the criminal enterprise. The district court refused to apply an obstruction of justice enhancement. Citing the Fifth Amendment, the court held that the enhancement should not apply where a mother simply advises her daughter to remain silent about criminal activity. The Eighth Circuit held that defendant did more than that here, and the district court was required to apply the obstruction increase. The stipulation stated that defendant attempted to influence her daughter not to reveal defendant’s involvement in drug distribution and about defendant’s use of her daughter in the distribution of controlled substances. Thus, the advice was not to the daughter to keep silent to protect herself, but to conceal defendant’s involvement in illegal activity. U.S. v. McMannus, 496 F.3d 846 (8th Cir. 2007), abrogated as to post-sentencing rehabilitation by Pepper v. U.S., 131 S.Ct. 1229 (2011).
8th Circuit affirms obstruction increase for perjury at trial. (461) The district court found that defendant purposefully perjured himself when he testified that, among other things, he did not have access to police or prosecutorial files, that he was only a user and not a seller of drugs, and that all of the government’s witnesses were lying in their trial testimony. The Eighth Circuit affirmed an obstruction of justice increase. These matters were material to the drug distribution conspiracy charge. U.S. v. Whirlwind Solder, 499 F.3d 862 (8th Cir. 2007).
8th Circuit applies obstruction increase based on trial perjury. (461) After an evening of drinking with his family, defendant was found raping his stepsister, who was passed out in her bedroom. During the investigation and trial of the case, defendant changed his version of the events a number of times. Upon his arrest, he gave a taped statement to an FBI agent claiming that he went into his stepsister’s bedroom because he wanted to have sex with her but that his stepmother interrupted him before “he could get anything started.” At trial, he testified that he had lied to the FBI agent, and he never wanted to have sex with his stepsister, and that he never went into her bedroom. He also made a number of other conflicting statements. A jury convicted defendant of sexual abuse. The Eighth Circuit affirmed a § 3C1.1 obstruction of justice enhancement based on defendant’s perjury. Defendant claim that he lied to the FBI agent, and told the truth at trial. However, the district court found that defendant lied at trial, cited the pages of the transcript on which his perjury occurred, and found that the false testimony was material and willfully given. Thus, the court made all of the findings necessary to support an obstruction of justice enhancement. The court’s finding that his statements to investigators were closer to the truth than his statements to the jury was supported by the evidence. His statements to investigators more closely matched the descriptions of other witnesses. U.S. v. Thundershield, 474 F.3d 503 (8th Cir. 2007).
8th Circuit holds that high-speed chase warranted increase for risk of death or serious bodily injury while fleeing police. (461) When a highway patrol officer approached a stolen car, defendant pulled out and led the officer on a high-speed chase over four miles of country roads. The speeds were in excess of 90 miles per hour. The chase ended when the stolen vehicle drove through a ditch, struck an embankment, traveled briefly on an westbound interstate highway, and spun out on the eastbound shoulder of the highway. The Eighth Circuit affirmed the application of a § 3C1.2 increase 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.” The fact that defendant was the only person injured did not alter the risk of bodily injury created by his flight. Defendant’s flight recklessly endangered the safety of the officer and those traveling along the county roads and the highway. U.S. v. Harper, 466 F.3d 634 (8th Cir. 2006).
8th Circuit affirms obstruction justice based on implied threats to witnesses. (461) Defendant pled guilty to drug charges. The local sheriff who arrested defendant spoke with former neighbors Missy and Tony less than a week after the arrest as part of the ongoing investigation. They told the deputy that since his arrest, defendant had been looking for them where they had relocated and had threatened to kill them. Defendant was also stopped in his car after following the deputy so that the deputy could “see what it felt like.” Finally, about five months later, the deputy notice a large illuminated sign next to defendant’s business stating “I see you, Missy. I see you too, Tony.” The Eighth Circuit affirmed an obstruction of justice increase, ruling that the court’s conclusion that defendant’s conduct constituted an implied threat to the former neighbors was not clearly erroneous. U.S. v. Brown, 461 F.3d 1062 (8th Cir. 2006).
8th Circuit upholds obstruction increase for failing to appear for sentencing as ordered by the court. (461) Defendant argued that the court erroneously applied an obstruction of justice increase based on her failure to appear for sentencing on November 10, 2004 because she was not actually sentenced until July 15, 2005, a hearing at which she was present. The Eighth Circuit found no error. Defendant had agreed to turn herself in to the custody of the U.S. Marshals Service on November 10, 2004 in exchange for the government not seeking immediate pre-trial detention on new charges brought against her. Defendant entered a plea to the new charges on November 9 and was instructed by the court to turn herself in on November 10. Defendant failed to follow this instruction and as a result, the court issued an arrest warrant. Defendant was arrested on November 29, 2004 when she was found hiding in a closet at her residence. At sentencing, a deputy U.S. Marshal testified about the government resources required to bring defendant into custody on the active warrant. These facts constituted sufficient evidence that defendant willfully obstructed justice by defying the court’s instruction to appear for sentencing on November 10, 2004. U.S. v. Edelmann, 458 F.3d 791 (8th Cir. 2006).
8th Circuit upholds obstruction increase for perjured explanation of threats. (461) Defendants sent a copy of an article about a district judge’s murdered family to a lawyer, two judges and the district court connected to various litigation involving defendant’s family. The handwritten words “Be Aware Be Fair” appeared on the article. The district court applied an obstruction of justice increase because one defendant told police and testified that she only sent the article to the attorney and judges because she wanted them to know that had happened to the other judge’s family and she was not sure they would have read the paper. She also said that her failure to put a return address on the envelope was not to conceal her identity. The court found that both of those statements were perjured statements, about a material issue, and not as a result of confusion mistake or faulty memory. The Eighth Circuit affirmed the obstruction increase. Although a defendant who testifies in her own behalf, and then gets convicted, is not automatically subject to the obstruction enhancement, and it was a close question, the district court clearly felt that defendant crossed a line. The district court did not clearly err in so deciding. U.S. v. Floyd, 458 F.3d 844 (8th Cir. 2006).
8th Circuit approves obstruction increase for inconsistent statements to investigators. (461) Defendant pled guilty to second degree murder in Indian country following the death of his four-year-old son. Defendant originally told FBI agents that his son’s injuries resulted from him falling off of the hood of a parked car, and he denied hitting the child. He later told investigators that his son had also fallen off his bike prior to entering the coma, had been knocked down by a dog, and had recently fell from a jungle gym. He also admitted pushing the boy out of the door the morning he went into the coma, causing him to hit his head on the cement porch, but denied any further involvement. It was not until 10 months after the boy’s death that defendant told investigators about swinging the boy’s head into a table. The Eighth Circuit affirmed an obstruction of justice increase based on the inconsistent statements defendant made to investigators. Even if the other accidents defendant described did occur and therefore did not constitute lies, defendant certainly tried to mislead the investigators about the cause of his son’s injuries. Defendant’s statement that he never hit the boy was not “technically truthful.” Defendant’s denial that he hit the boy, knowing full well that he had shoved him into a wall and swung his head into a table immediately prior to the boy losing consciousness, was a blatant lie in an attempt to place the blame for the injuries elsewhere. Although defendant had no obligation to tell investigators anything, once he chose to talk, he had an obligation to be truthful. U.S. v. Sitting Bear, 436 F.3d 929 (8th Cir. 2006).
8th Circuit applies obstruction increase for threatening fellow prisoners. (461) The district court found that defendant obstructed justice by threatening two of his fellow prisoners with harm if they provided information to law enforcement. He argued that because he did not know when he made the threat that those he threatened were cooperating witnesses of the government, he did not obstruct justice. The Eighth Circuit found no error. There was evidence at trial that when he made the threat, defendant knew that those he threatened intended to provide information to the prosecution. Indeed, a reasonable inference is that is why he threatened them. U.S. v. Crume, 422 F.3d 728 (8th Cir. 2005).
8th Circuit says Booker error did not affect substantial rights of defendant with maximum offense level. (461) An enhancement for obstruction of justice was erroneous under U.S. v. Booker, 543 U.S. 220 (2005) because it was imposed on the basis of judge-found facts in a mandatory guidelines regime. U.S. v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc). Thus, the first two prongs of the plain error test were satisfied. The Eighth Circuit found that the error did not affect defendant’s substantial rights, however. The obstruction enhancement resulted in an offense level of 45, but the district court sentenced defendant at an offense level of 43, the maximum level under the guidelines. Moreover, nothing in the record suggested that the district court would have sentenced defendant to a lighter sentence had it been operating under an advisory guidelines regime. U.S. v. Keller, 413 F.3d 706 (8th Cir. 2005).
8th Circuit applies obstruction increase for informing co-conspirators that undercover agent was police officer. (461) After being arrested on drug charges, defendant signed an agreement in which he agreed to cooperate with law enforcement. However, defendant revealed to his co-conspirator that a drug task force agent working undercover was actually a police officer. Although defendant denied that he had disclosed the officer’s identity, a co-conspirator indicated that defendant had described the officer in detail, including his vehicle and undercover name. The district court imposed an obstruction of justice increase, finding this testimony convincing and corroborated by the co-conspirator’s changed demeanor and later method of transacting business. The Eighth Circuit affirmed. U.S. v. Ellerman, 411 F.3d 941 (8th Cir. 2005).
8th Circuit applies obstruction increase for assaulting potential witness. (461) Prior to trial, defendant and two other men assaulted a co-conspirator in jail in an alleged attempt to prevent the co-conspirator from testifying against defendant. The district court specifically found that defendant’s assault on the co-conspirator – who had furnished evidence against defendant, and at the time of the attack, was scheduled to testify against defendant – occurred in the course of attempting to avoid responsibility for the offense. The district court also found that defendant used violence or credible threats of violence in connection with the offense. Accordingly, the Eighth Circuit held that the district court did not err in assessing the obstruction increase. U.S. v. Carrillo, 380 F.3d 411 (8th Cir. 2004).
8th Circuit says court was required to apply obstruction increase. (461) Defendant was involved in a conspiracy to burn down his nightclub in order to collect insurance proceeds. A co-conspirator died when the nightclub exploded. In a pre-Blakely case, the government argued that the district court erred in not imposing a two-level enhancement for obstruction of justice, contending that defendant made false or inconsistent statements to law enforcement officials concerning: (1) the monitoring of the nightclub security system; (2) defendant’s relationship with the co-conspirator; (3) why the co-conspirator had copies of the blueprints for the nightclub; (4) whether there were gas cans in defendant’s truck the evening of the fire; and (5) defendant’s assertion to investigators that he was current on his loan payments for the nightclub. The Eighth Circuit concluded that the district court found that defendant had obstructed, or attempted to obstruct, the investigation into the nightclub explosion, and thus was obligated to impose the enhancement. The court’s line of questioning demonstrated its implied finding that defendant had attempted to obstruct the investigation into the explosion, but that he was unsuccessful. Since § 3C1.1 punishes attempts as well as successful obstruction, the enhancement should have been given. U.S. v. Manfre, 368 F.3d 832 (8th Cir. 2004).
8th Circuit upholds obstruction increase based on trial perjury. (461) State transportation officials decided to inspect defendant’s truck after noticing that the truck was not displaying required DOT and ICC numbers or an Iowa fuel tax sticker. Nineteen packages containing 122.6 kilograms of marijuana and 445.2 grams of methamphetamine were found in the truck. At a suppression hearing, defendant testified that his truck displayed the required DOT and ICC numbers. The district court found that this was false based on photos of the truck which showed these numbers were nowhere to be seen. Defendant also testified that he never consented to the search, but the judge found the officer’s contrary testimony credible. Finally, defendant testified that he had no knowledge of the drugs found in his truck, but the judge found this false based on the presence of his palm print on the packaging of the drugs and the testimony of two witnesses. The Eighth Circuit found no clear error in the district court’s finding that defendant perjured himself. U.S. v. Mendoza-Gonzalez, 363 F.3d 788 (8th Cir. 2004).
8th Circuit says high speed chase and barging into stranger’s home created substantial risk of death or serious bodily injury. (461) Defendant was driving a vehicle while intoxicated when he chose to flee the police, who pursued with police cars and a helicopter. He drove at high speeds in a residential area, at one point crossing an intersection through oncoming cross-traffic. After abandoning his car, defendant charged into a stranger’s home, requiring a police officer to enter the house at gunpoint to arrest defendant. The residents of the house included a mother and her seven children, who were upset and frightened by the situation. The Eighth Circuit upheld a two-level increase under § 3C1.2 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’s conduct clearly created such a risk. U.S. v. Cook, 356 F.3d 913 (8th Cir. 2004).
8th Circuit says obstructive conduct supported increase without perjury finding. (461) Defendant was convicted of fraud charges for hiding his assets from the government in order to avoid paying a fine and restitution ordered from a previous arson conviction. The district court applied a § 3C1.1 obstruction of justice increase, stating that it was based on a “combination” of the fact that defendant told “something other than the complete truth during his testimony” and the facts contained in paragraph 251 of his PSR. Because the information in the cited section of the PSR supported an obstruction increase, and the district court made the factual findings that defendant committed most of this conduct, the Eighth Circuit found that the court was required to apply the obstruction increase. The cited conduct including encouraging others to give false testimony to the grand jury; advising another witness not to disclose any information concerning some vehicles that defendant had given him to sell; giving materially false trial testimony; making false statements to government investigators; and concealing assets that were the subject of the investigation. U.S. v. Frank, 354 F.3d 910 (8th Cir. 2004).
8th Circuit says obstruction increase was not double counting where obstructive conduct was unrelated to underlying convictions. (461) Defendant maintained that obstruction of justice inhered in his charges of fraud, money laundering, and false statements, and that applying the § 3C1.1 adjustment to him amounted to double counting. However, defendant’s 49 counts were grouped together in a single group pursuant to § 3D1.2(d), and under the multi-count grouping rules, defendant’s convictions on the 47 counts other than his two-money laundering offenses were disregarded in calculating his adjusted offense level. Among the 49 counts of conviction were two counts of obstruction of justice. The conduct underlying defendant’s obstruction of justice convictions overlapped with, but went beyond, the conduct underlying the money laundering convictions. Therefore, the Eighth Circuit ruled that the imposition of the obstruction adjustment was not impermissible double counting because the court expressly identified obstructive conduct unrelated to the conduct underlying the money laundering convictions. U.S. v. Frank, 354 F.3d 910 (8th Cir. 2004).
8th Circuit holds that perjury findings were sufficient to support obstruction increase. (461) During sentencing, the court stated “The Court makes the specific finding that [defendant] committed perjury by knowingly and intentionally testifying falsely as to material matters during the trial of this case.” The court then detailed the testimony it concluded was false. The Eighth Circuit held that this finding was sufficient to support a § 3C1.1 obstruction of justice increase. Further, the record supported the perjury finding. Defendant testified and contradicted much of a police detective’s testimony about defendant’s statement to him. Defendant denied saying that the substance in his pocket was cocaine, denied ever selling drugs in the area, denied having any money seized from his person, denied knowing that co-conspirator Paschal had any drugs on her person, denied making 100 trips to Chicago to purchase drugs and denied telling the detective that he made those trips. U.S. v. Harris, 352 F.3d 362 (8th Cir. 2003).
8th Circuit defers to court’s credibility assessment in support of obstruction increase. (461) Defendant was convicted of being a felon in possession of a firearm based on a handgun found in a dresser located in the spare bedroom of defendant’s residence. At trial, defendant’s mother testified that, without defendant’s knowledge, she obtained the gun from Williams and put it in the dresser. After the trial, in support of a claim that the police withheld exculpatory information, defendant submitted an affidavit from Williams stating that he told police about seeing a gun in defendant’s mother’s possession 15 months prior to defendant’s arrest. The district court denied the motion for a new trial, and at sentencing, enhanced defendant’s sentence under § 3C1.1 for obstructing justice by enlisting his mother and Williams to lie on his behalf. The Eighth Circuit affirmed. A district court’s findings as to the credibility of a witness are “virtually unreviewable on appeal.” The record supported the district court’s findings and credibility determinations. U.S. v. Gary, 341 F.3d 829 (8th Cir. 2003).
8th Circuit holds that nature of defendant’s perjury was clear enough to make up for lack of findings. (461) The district court imposed an obstruction of justice increase based on defendant’s perjury at trial. Although the court did not state the specific elements that constituted perjury, the obstruction increase can be affirmed when the evidence is unequivocal. The nature of defendant’s testimony was unequivocal. At trial, a police detective testified that defendant sold him drugs multiple times at a particular McDonald’s. In response, defendant denied having ever sold drugs. He also stated under oath that he had never been to that particular McDonald’s. This testimony was directly contradictory to the testimony of the detective. Because the district court said, in sentencing, that it believed the testimony of the detective, the Eighth Circuit ruled that the nature of defendant’s perjury was sufficiently clear to affirm the sentencing enhancement. U.S. v. Pena, 339 F.3d 715 (8th Cir. 2003).
8th Circuit says obstruction increase should have been applied where defendant gave inconsistent accounts under oath. (461) During a hearing in which defendant pled guilty to tampering with food products, he admitted that he put needles in various food products sold at a local grocery store. At sentencing, however, the district court allowed defendant to withdraw his guilty plea and the matter proceeded to trial. At trial, defendant testified that he did not put needles in any of the food products, and claimed that he had confessed to the crime because he was afraid he might be convicted and wanted to take advantage of the favorable plea agreement offered by the jury. The government requested an obstruction of justice increase, arguing that defendant had committed perjury either at the change of plea hearing or at trial. The district court, however, rejected the increase, finding defendant had been unduly pressured into pleading guilty, and held that there was insufficient evidence that defendant committed perjury. The Eighth Circuit reversed the court’s refusal to apply the obstruction increase, since it was apparent that defendant perjured himself either when he admitted guilt at the change of plea hearing or when he denied guilt at trial. That fact, coupled with the jury’s uncontested finding of guilt and the material nature of the false testimony, meant the obstruction increase was applicable. U.S. v. Swick, 334 F.3d 784 (8th Cir. 2003).
8th Circuit applies obstruction increase to defendant who barricaded house and disposed of illegal drugs. (461) Defendant gave 1,4-Butanediol (1,4-BD), a so-called “date rape” drug, to his children’s babysitter and then made sexual advances to her, which were interrupted by the return of defendant’s wife. After defendant went to work, the sitter told the wife what defendant had done. The wife collected a sample of the substance and took it to the police department and filed a report. The police accompanied the wife home where they discovered that defendant had barricaded the only door to which the wife had a key and that the remaining doors had been secured with dead bolt locks. After gaining entry to the house, they discovered that defendant and the bottle of 1,4-BD were gone. The court imposed an obstruction of justice increase based on the fact that defendant barricaded his house while his wife was out and disposed of the remaining 1,4-BD. The Eighth Circuit affirmed the § 3C1.1 increase, ruling that the district court did not clearly err in finding that defendant knew an official investigation was probably underway. Defendant knew he had given an illegal substance used for date rapes to a 19-year old babysitter and then touched her in an inappropriately sexual manner and knew that the babysitter had had an opportunity to talk to his wife or others after he went to work. He drove to another state where he disposed of the drug’s container, and he barricaded the only door to the house for which he wife had a key. U.S. v. Orchard, 332 F.3d 1133 (8th Cir. 2003).
8th Circuit affirms obstruction increase for advising fellow inmate to blame co-defendant for drug lab. (461) Defendant advised a fellow inmate to tell law enforcement that a co-defendant was responsibility for the methamphetamine lab that officers had discovered. Thus, this was an attempt to place more of the blame on the co-defendant than the facts warranted. The Eighth Circuit agreed that this was a clear attempt to impede the investigation and, accordingly, warranted an obstruction of justice increase. Defendant argued that the conversation was not taken seriously by the inmate, as evidenced by the fact that he did not accept the invitation to place the blame on the co-defendant. However, an obstruction of justice does not have to be completed, or successful, to qualify for the enhancement. U.S. v. Eis, 322 F.3d 1023 (8th Cir. 2003).
8th Circuit applies obstruction increase for suborning perjury about defendant’s age. (461) Defendant alleged he was a juvenile at the time of his drug offenses and moved to dismiss the indictment. At the hearing on this motion, he presented the testimony of his sister, who stated defendant was born in 1984, making him 17 at the time of the offense. The government presented the expert testimony of a radiologist who opined that defendant’s skeletal x-rays indicated his age to be between 24 and 27. Moreover, defendant had previously given August 19, 1975 as his birth date. The district court rejected the sister’s testimony and denied the motion. The Eighth Circuit affirmed an obstruction of justice increase based on defendant suborning the perjurious testimony of his sister. Defendant did more than force the government to prove a jurisdictional prerequisite to his prosecution (that he was over 18). Instead, he suborned perjury to obstruct the government in its prosecution efforts. U.S. v. Calderon-Avila, 322 F.3d 505 (8th Cir. 2003).
8th Circuit upholds obstruction increase based on perjury. (461) During his testimony, defendant denied using and manufacturing methamphetamine. The jury, after having considered extensive physical and testimonial evidence that directly linked defendant to the conspiracy, found beyond a reasonable doubt that defendant conspired to manufacture methamphetamine. In imposing an obstruction of justice increase based on defendant’s perjury, the court stated, “[T]here was plenty of evidence for the jury to find beyond a reasonable doubt [that] defendant was guilty. And I understand he continues to maintain his innocence, but I heard the trial testimony, and I think [it constitutes] obstruction of justice.” Because the court in effect made a specific finding of perjury and because the obstruction increase was not clear error, the Eighth Circuit affirmed. U.S. v. Kessler, 321 F.3d 699 (8th Cir. 2003).
8th Circuit upholds obstruction increase based on trial perjury. (461) The district court found that defendant had testified under oath, that he had lied about a material fact, that his testimony was inconsistent with the majority of evidence and that he knew he was lying. The court found that while defendant acknowledged his participation in the drug conspiracy, his testimony regarding his whereabouts during the morning of certain murders was not believable. The Eighth Circuit upheld an obstruction of justice increase. Moreover, a removal of the increase would have no effect on defendant’s sentence. Under 18 U.S.C. § 1958(a), the penalty for a murder for hire resulting in death is life imprisonment. Under § 5G1.1(b), where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence. U.S. v. Washington, 318 F.3d 845 (8th Cir. 2003).
8th Circuit upholds obstruction increase based on letter that was attempt to suborn perjury. (461) The district court applied an obstruction of justice increase based on a letter defendant wrote to friend who was incarcerated. The district court found that the letter’s “context and syntax” reflected an attempt to suborn perjury. The letter stated that defendant was seeking a reduced sentence for diminished capacity and instructed the friend as to what to testify to at sentencing. Defendant also asked the friend to tell authorities that he had a mental impairment, and gave a detailed list of the purported manifestations of his “impairment.” The Eighth Circuit held that the district court did not err in relying solely on the letter as grounds for an obstruction of justice enhancement. While it would have been preferable for the government to have provided the court with additional evidence, given the deferential standard of review, there was no basis of reversal. Judge Riley dissented. U.S. v. Johnson, 316 F.3d 818 (8th Cir. 2003).
8th Circuit bases obstruction increase on conduct that occurred at resentencing. (461) Defendant’s original sentence was vacated because the district court erroneously relied on certain information in resolving a disputed issue. After testifying at the resentencing hearing, the probation officer advised the district court that defendant had “stared at” him, “shook his head,” and “moved his lips” during the hearing. Based on his “experience in dealing with defendants,” the probation officer concluded that defendant was conveying the message “I am going to get you” or “I am going to get even with you.” Others confirmed this behavior. The district court found that defendant’s conduct was “hostile” and “intimidating” and applied an obstruction of justice enhancement. The Eighth Circuit affirmed, holding that the court’s application of the increase based on defendant’s conduct during the resentencing hearing did not violate the scope of the remand. Although a court may not consider post-sentencing rehabilitation at resentencing as the basis for a downward departure, it is not inconsistent to consider post-sentencing obstructive conduct that occurs in the judge’s presence. Otherwise, the judge would lack an effective remedy for obstructive conduct that interferes with the resentencing process. U.S. v. Stapleton, 316 F.3d 754 (8th Cir.2003).
8th Circuit upholds reliance on co-conspirator testimony even though not supported by investigative report. (461) A state trooper stopped a car driven by Santos and Arreguin. After the police discovered methamphetamine in the car, Santos agreed to make a controlled delivery of the meth to defendant. The district court imposed an obstruction of justice enhancement based on Santos’s trial testimony that defendant had tried to bribe him into taking responsibility for the methamphetamine. Defendant argued that Santos’s testimony was incredible, noting that an investigative report stated that Santos had accused Arreguin, not defendant, of attempting to bribe him into taking responsibility for the drugs. However, at trial Santos testified that the report was incorrect. While Santos’s testimony was not supported by the investigative report, he was vigorously cross-examined about the matter. Thus, the Eighth Circuit refused to find that the district court erred in relying on Santos’s trial testimony. U.S. v. Santos-Garcia, 313 F.3d 1073 (5th Cir. 2002).
8th Circuit applies obstruction increase for failure to appear at plea and sentencing hearing. (461) Defendant argued that his failure to appear at his plea and sentencing hearing did not warrant an obstruction of justice increase. The Eighth Circuit disagreed. The commentary to § 3C1.1 notes that “escaping or attempting to escape from custody before trial or sentencing, or willfully failing to appear, as ordered, for a judicial proceeding,” is enough to bring a defendant within § 3C1.1’s ambit. Defendant willfully fled the jurisdiction before his plea and sentencing hearing. He remained at large for some five months and was only apprehended after he was identified during a routine traffic stop. The district court did not err in applying the § 3C1.1 adjustment. Moreover, defendant was not entitled to an acceptance of responsibility reduction. In an “extraordinary case,” a defendant might receive an obstruction of justice enhancement and an acceptance of responsibility decrease. Defendant gave no reason for treating his case as extraordinary. U.S. v. Young, 315 F.3d 911 (8th Cir. 2003).
8th Circuit upholds obstruction increase despite absence of specific findings on elements of perjury. (461) At trial, defendant testified that he had no knowledge of the cocaine found in his bag. He also denied material aspects of a witness’s testimony that defendant had described his drug trafficking activities to the witness and offered the witness a job distributing drugs in the future, hoped his fingerprints would not be found on the drugs in the bag, and paid his traveling companion $5000 to plead guilty to a possession offense. The district court imposed an obstruction of justice increase based on defendant’s trial perjury. Defendant argued that the court made only a general finding of perjury, thereby violating the requirements of U.S. v. Dunnigan, 507 U.S. 87 (1993). The Eighth Circuit affirmed the obstruction increase despite the absence of specific findings on the elements of perjury because the evidence of defendant’s willfulness was “unequivocal” and “the record left no doubt that the defendant’s false testimony at trial was not the result of confusion, mistake, or faulty memory.” Defendant testified on the central issues at trial, and the PSR identified specific ways in which that testimony was contrary to the jury’s verdict. Having heard the trial testimony, the court overruled defendant’s general objection to the relevant paragraphs of the PSR. Its obstruction finding was supported by the record. U.S. v. Brown, 311 F.3d 886 (8th Cir. 2002).
8th Circuit applies obstruction increase for perjury about intent to receive child pornography. (461) The district court found that defendant perjured himself when he testified under oath that although he had ordered child pornography, specifically asking for girls aged 7-14, he did not believe that he would receive child pornography. Defendant testified that in his experience searching the Internet for pornography, his use of terms describing minor females often returned the material he sought, material involving younger adult women and somewhat older men. Characterizing defendant’s answers as “clearly phony,” the district court stated: “I believe the defendant was committing perjury.” Given the weight of evidence against defendant and the district court’s superior position from which to judge credibility, the Eighth Circuit held that the district court did not clearly err in finding that defendant had committed perjury. U.S. v. Stulock, 308 F.3d 922 (8th Cir. 2002).
8th Circuit affirms obstruction increase for trial perjury about involvement in drug business. (461) The district court applied an obstruction of justice increase because it found that defendant willfully lied when she testified that she had nothing to do with her then-husband’s methamphetamine business and had never shared meth with anyone else. She denied involvement in the meth manufacturing activities that other witnesses said she participated in, such as cleaning glassware, taking out the garbage from the manufacturing process, collecting money, and driving her husband to collect ingredients. Her testimony conflicted with that of many other witnesses who testified that she was actively involved in the manufacture and distribution of the drugs. The court specifically found that defendant committed perjury, that her denial of involvement with the meth was willful, and that it was material. The Eighth Circuit ruled that the court’s finding that defendant committed perjury was not clearly erroneous, and was sufficient to support the increase. U.S. v. Titlbach, 300 F.3d 919 (8th Cir. 2002).
8th Circuit affirms obstruction increase despite court’s failure to make findings. (461) Police found cocaine in a semi-trailer defendant was towing. During questioning, he proposed several “scenarios,” including one in which “someone” would be paid $125,000 to carry a shipment of cocaine. He also said that once a person starting working for a drug organization, it is extremely dangerous for him to leave it behind. At trial, he testified that he did not know there was cocaine in his trailer and he had not proposed the “scenarios” during the police interrogation. The Eighth Circuit affirmed an obstruction of justice increase based on defendant’s perjury at trial, despite the court’s failure to make independent findings that the defendant willfully gave false testimony concerning a material matter in the case. See U.S. v. Dunnigan, 507 U.S. 87 (1993). A court’s failure to make the findings required by Dunnigan is not always grounds for reversal and remand. Defendant’s testimony was obviously material and plainly inconsistent with the jury’s verdict. Moreover, after reviewing the trial transcript, the panel had no doubt that defendant’s decision to provide false testimony was willful. Even if it remanded the case for a new sentencing determination, the district court would have no choice but to apply the obstruction increase. “Under these exceptional circumstances, a remand would be waste of time and effort.” U.S. v. Esparza, 291 F.3d 1052 (8th Cir. 2002).
8th Circuit applies obstruction justice to defendant who beat alleged snitch. (461) The district court found that defendant and his associates had beaten Alvarez, whom they believed to be a snitch, and that defendant had told Alvarez’s brother than “if you say anything about this you are next.” The Eighth Circuit affirmed an obstruction of justice enhancement. Defendant’s desire to silence a snitch and to intimidate others supported the finding that defendant believed that he was under investigation. U.S. v. Vaca, 289 F.3d 1046 (8th Cir. 2002).
8th Circuit affirms obstruction increase based on trial perjury. (461) Several government witnesses testified about defendant’s involvement in a crack cocaine conspiracy. Defendant testified in his own defense, admitting he was a crack cocaine addict, had cooked it once, had been friends with his co-conspirators, and had purchased crack from them for his personal use. However, he denied going with them to buy drugs, denied that he sold drugs, and denied that he conspired to distribute crack. The Eighth Circuit affirmed an obstruction of justice increase based on defendant’s perjury at trial. Not only did the district court hear the testimony at trial, but at sentencing it heard arguments on the conflicts in the testimony. The government read portions of the trial transcript to highlight the conflicts between defendant’s testimony and that of the other witnesses. In addition, the court made a specific finding that defendant had committed perjury on “some pretty critical issues.” The court’s failure to make a finding on willfulness did not warrant remand. There was no doubt that defendant’s denials of his involvement in the conspiracy “could not have been the result of confusion, mistake, or faulty memory.” U.S. v. Simms, 285 F.3d 1098 (8th Cir. 2002).
8th Circuit says escape from halfway house is escape from “custody” for purposes of obstruction increase. (461) After being arrested, defendant was released on a $10,000 unsecured bond, but the release was subject to conditions, among which was a requirement that she reside at a particular halfway house. Defendant failed to report to the halfway house and did not telephone its staff to advise it of her location. A warrant for her arrest was issued and she was arrested 10 days later. The district court applied a § 3C1.1(e)(1) obstruction of justice increase based on defendant’s escape “from custody.” See Note 4(e) to § 3C1.1. Defendant argued that required residence at a halfway house is not “custody” within the meaning of the application note. The Eighth Circuit, agreeing with two other circuits to decide this issue, U.S. v. Swanson, 253 F.3d 1220 (10th Cir. 2001); U.S. v. Draper, 966 F.3d 982 (9th Cir. 1993), held that absconding from a halfway house is an escape from custody for purposes of § 3C1.1. The requirement that one reside in a halfway house is a substantial restraint on one’s liberty. Although required residence in a halfway house is not considered custody for certain other purposes, such as the felony of escape from custody under 18 U.S.C. § 751, a legal term does not have to mean the same thing in every context. Here, treating a requirement of residence in a halfway house as “custody” serves the purposes of the obstruction of justice guideline. Hayes v. U.S., 281 F.3d 724 (8th Cir. 2002).
8th Circuit allows increase for obstruction even if that act was also an overt act of the conspiracy. (461) Defendant argued that he was subject to multiple punishments (double counting) for obstruction of justice under § 3C1.1, for instructing one of his prostitutes to lie to a federal grand jury, when that act also served as one of the overt acts alleged in the charge of conspiracy to transport individuals for prostitution under the Mann Act. The Eighth Circuit found no error because conspiracy and a substantive act taken as part of that conspiracy can be separate crimes. Therefore, the district court could properly increase defendant’s sentence for obstruction of justice even though that act also served as an overt act of the conspiracy. U.S. v. Evans, 272 F.3d 1069 (8th Cir. 2001).
8th Circuit upholds obstruction increase where defendant admitted writing warning letters to co-conspirators. (461) Before sentencing, the probation officer filed a PSR addendum, describing letters intercepted by U.S. Marshals in which defendant requested that his wife warn co-conspirator of the government’s investigation, advised her how to traffic in drugs without getting caught, and threatened a co-conspirator. Defendant did not object to the facts alleged in the addendum so he could not contest these facts on appeal. Additionally, defendant admitted he wrote the letters intending to warn other conspiracy members of the investigation. The Eighth Circuit ruled that this admission was sufficient to support a § 3C1.1 obstruction enhancement. U.S. v. Gomez, 271 F.3d 779 (8th Cir. 2001).
8th Circuit applies obstruction increase for denial of guilt under oath that constituted perjury. (461) Defendant voluntarily testified under oath that he was not involved in the manufacture of methamphetamine. The jury was presented with evidence directly contradictory to this testimony, including testimony from other witnesses who said that they had been present when he manufactured meth. Given this conflicting testimony, and the ample circumstantial evidence against defendant, the jury found him guilty on all count of attempting to manufacture meth. The sentencing judge also observed all of the evidence and testimony first-hand as the presiding judge at trial. Under these facts, the Eighth Circuit found no clear error in imposing an obstruction of justice enhancement based on a “denial of guilt under oath that constitutes perjury.” Note 2 to § 3C1.1. U.S. v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001), overruled on other grounds by U.S. v. Diaz, 296 F.3d 680 (8th Cir. 2002).
8th Circuit agrees that defendant knew he was fleeing from law enforcement during high-speed chase. (461) After defendant purchased drugs from an undercover officer, police officers approached his vehicle and he fled. During the ensuing chase, defendant drove at speeds of 80 to 100 miles per hour, ran two red lights, and swerved in and out of traffic on a busy highway. Although two of the three officers who approached his car were wearing vests marked “POLICE,” defendant testified that he was unaware that he was being pursued by police. He claimed he looked in his rearview mirror and only saw the officer in street clothes and believed he was being robbed. He also denied seeing any flashing police lights during the chase. The Eighth Circuit affirmed a § 3C1.2 increase for reckless endangerment during flight, rejecting defendant’s claim that he did not knowingly flee the police. The officer in street clothes testified that he ran up to defendant’s car window and shouted “police,” and that the two officers wearing the raid vests approached defendant’s car from the front and identified themselves as police officers. Another officer’s testimony was similar. The district court conducted an evidentiary hearing, listened to the conflicting testimony, and accepted the police officers’ version of the facts, including that they had made defendant aware of their identities and had told him not to move. The district court did not clearly err. U.S. v. Moore, 242 F.3d 1080 (8th Cir. 2001).
8th Circuit holds that presentence misbehavior justified obstruction increase and no acceptance reduction. (461) Although defendant was cooperative throughout his interview process with the probation departure, he subsequently failed alcohol and drug tests while under court-ordered supervision at a halfway house, absconded from the halfway house prior to a bond-revocation hearing, and failed to appear for the hearing. In light of this presentencing misbehavior, the Eighth Circuit found no error in the district court’s denial of an acceptance of responsibility reduction and the imposition of an obstruction of justice enhancement. U.S. v. Martinez, 234 F.3d 1047 (8th Cir. 2000).
8th Circuit approves upward departure for extraordinary obstruction of justice. (461) The district court made a two-level upward departure based on defendant’s obstructive conduct, finding that § 3C1.1 did not adequately capture defendant’s obstructive conduct—”the most pervasive this Court has seen.” While in jail, defendant communicated with her sons, a co-defendant and a material witness, respectively, by having another inmate mail defendant’s letters to a friend who would then remail them to the sons. Defendant tried to convince one son to give authorities the same untruthful story she had given. She also made threats against a fellow inmate, who had met with a government attorney prior to sentencing and provided information about defendant’s statements concerning the offense. Further, defendant offered yet another fellow inmate $1,000 to testify that another inmate who had spoken to the government was lying. The Third Circuit held that the district court did not abuse its discretion in departing upward based on defendant’s exceptional efforts at obstruction of justice. U.S. v. Lewis, 235 F.3d 394 (8th Cir. 2000).
8th Circuit says false statements were willful. (461) Defendant and an associate were arrested in a reverse sting. At trial, defendant testified that he was unaware of the drugs until the day of the attempted sale, that he had no intention of buying the drugs and that he only went to see it because his associate insisted. He also provided an innocent explanation for the large amount of money found on him at the time of his arrest. The money was in three bundles: $3300 for plane tickets for his children to fly from Alaska to visit him, $5,600 for attorney’s fees resulting from state drug charges, and the remainder in a third bundle. The Eighth Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury at trial, despite the district court’s failure to specifically find defendant’s false statements to be willful. That was “a failure in form alone, insufficient to warrant remand.” Defendant’s statements could only have been the result of a willful intent to deceive the jury and obstruct the judicial process. U.S. v. Robinson, 217 F.3d 560 (8th Cir. 2000).
8th Circuit approves obstruction enhancement for threats to prosecution witnesses. (461) Defendant directed acts of intimidation toward two prosecution witnesses, Toner and Rice. Prior to trial, defendant telephoned Toner and demanded that Toner swear on the lives of his children that he had not cooperated with authorities. Defendant also warned Toner that he could expect a visit from defendant once he was released from jail. At trial, defendant directed similar threats to Rice, calling Rice derogatory names and making a throat-cutting gesture while Rice was testifying. The Eighth Circuit upheld the district court’s finding that defendant’s acts were attempts to impermissibly influence or intimidate a witness. Thus, a § 3C1.1 obstruction of justice enhancement was proper. U.S. v. Thompson, 210 F.3d 855 (8th Cir. 2000).
8th Circuit applies reckless endangerment increase for pushing minor in path of police car. (461) Defendant pushed a minor child in his sole care and custody into the path of an oncoming police car as he fled from police officers attempting to execute a search warrant on his home. He challenged a § 3C1.2 increase for reckless endangerment while fleeing from police, claiming he was not under arrest or otherwise required to submit to the officers when he fled. The Eighth Circuit affirmed the enhancement. Note 3 says that “during flight” is to be construed broadly, and the enhancement applies where the conduct occurs in the course of resisting arrest. U.S. v. Goolsby, 209 F.3d 1079 (8th Cir. 2000).
8th Circuit upholds court’s interpretation of notes of defendant’s telephone conversations. (461) The government contended that defendant obstructed justice by attempting to persuade his former girlfriend and his estranged wife not to speak to investigators. Defendant claimed that his only intention was to arrange to see his children, and to make sure that his former girlfriend, who he said he believed was also under investigation, would not talk to an agent before consulting counsel. These points depended on the interpretation of notes made of telephone conversations with defendant. The Eighth Circuit held that the interpretation placed on these notes by the district court was reasonable. Perhaps the benign interpretation urged by defendant would also have been reasonable, but the finding made on these issues by the district court was not clearly erroneous. U.S. v. Shepard, 207 F.3d 455 (8th Cir. 2000).
8th Circuit upholds obstruction enhancement for perjury at bond revocation hearing. (461) The district court found that defendant committed perjury when he testified before a magistrate in a bond revocation hearing. Police who stopped defendant for a traffic violation found a substance hidden in his jacket that field tested positive for methamphetamine. The substance turned out to be a caffeine mixture, and defendant was charged with possession with intent to distribute a simulated controlled substance. At the hearing before the magistrate, defendant testified that he had mistakenly put on a jacket that belonged to someone else, and that he did not know that the simulated drugs were in the jacket. The magistrate found this testimony to be “entirely lacking in credibility.” At sentencing, the district court made its own independent findings and concluded that defendant committed perjury. The Eighth Circuit found no clear error. Perjury need not be material to the underlying offense; it need only be material to the issue being decided. Here, the “issue under determination” was whether defendant’s pretrial release should be revoked. Defendant’s perjurious testimony had the potential to influence or affect that determination. U.S. v. O’Dell, 204 F.3d 829 (8th Cir. 2000).
8th Circuit rules that failure to make specific willfulness finding did not require remand. (461) The district court applied a § 3C1.1 obstruction of justice enhancement for committing perjury at trial. The district court provided clear findings that defendant’s trial testimony, in which he denied knowing that cocaine was in his car, was both false and material. However, the court failed to make a specific finding of willfulness regarding the perjured testimony. The Eighth Circuit agreed that an overt willfulness finding would have been preferable, but ruled that its omission did not require a remand. After reviewing the record, the appellate court had no trouble concluding that defendant’s false trial testimony was the product of calculation. Thus, the district court did not clearly err in assessing the two-level increase. U.S. v. Taylor, 207 F.3d 452 (8th Cir. 2000).
8th Circuit approves obstruction justice for uncounted assault conviction. (461) Defendant pled guilty to drug charges and assaulting a federal officer. The assault conviction was based on defendant’s spitting at a DEA officer who was helping put defendant in his cell. Under § 3D1.4, the assault conviction was disregarded in calculating defendant’s adjusted offense level. The district court increased defendant’s offense level two levels to account for the assault, likening the assault to an obstruction of justice under § 3C1.1. Defendant challenged the increase as an unwarranted departure. The Eighth Circuit ruled that the court imposed a § 3C1.1 obstruction of justice enhancement, rather than made an upward departure. At sentencing, the court stated defendant’s sentence would be “enhanced,” and that the adjustment “comes for what is in the court’s view … an obstruction of justice.” Under note 4 to § 3C1.1, a defendant’s separate count of conviction for obstructive conduct is a sufficient foundation for the enhancement. The district court did not err in concluding that defendant’s 18 U.S.C. § 111(a) conviction was a conviction for obstructive conduct. See U.S. v. Olunloyo, 10 F.3d 578 (8th Cir. 1993) (§ 111(a) “encompasses conduct that properly may be deemed obstructive.”) U.S. v. Herr, 202 F.3d 1014 (8th Cir. 2000).
8th Circuit says false statement was more than mere denial of guilt. (461) Defendant, a licensed insurance agent, misappropriated several insurance premium payments she received from elderly clients. During an interview with insurance officials, defendant falsely stated that she had withdrawn $100,000 from her bank account and returned the money to client Leake as a refund of annuity premiums. The Eighth Circuit affirmed an obstruction of justice enhancement, rejecting defendant’s argument that this false statement was not material, and holding that it did not constitute a mere denial of guilt. See note 2 to § 3C1.1 (a defendant’s unsworn denial of guilt is not a basis for an obstruction enhancement). Defendant provided an exculpatory version of her dealings with client Leake that caused the inspector to analyze the financial activity in defendant’s bank accounts, which demonstrated that she never withdrew $100,000 to refund to Leake. Although a defendant has the right to put the government to its proof, there is no constitutional right to lie. U.S. v. Baker, 200 F.3d 558 (8th Cir. 2000).
8th Circuit upholds reckless endangerment enhancement for pointing gun at police. (461) One of several officers who executed a search warrant at defendant’s residence testified at sentencing that all the officers were wearing uniforms or badges clearly identifying themselves as police when they entered the house and that they repeatedly shouted “Police!” and “Search warrant!” The officer further testified that defendant came into the living room from a hallway carrying a loaded semi-automatic rifle and that he began to level the gun at the officers. When defendant was told that the officers had a warrant, he replied “I don’t care. Get out of my house.” Based on this record, the Eighth Circuit upheld a § 3C1.2 enhancement for reckless endangerment during flight. Under note 3, this adjustment also applies when the defendant acts recklessly in “preparation for flight” or “in the course of resisting arrest.” U.S. v. Rice, 184 F.3d 740 (8th Cir. 1999).
8th Circuit upholds obstruction enhancement where failure to appear was grouped with drug counts. (461) The district court grouped together defendant’s convictions for aiding and abetting the possession of cocaine base, using a minor in a drug trafficking offense, and failing to appear. The court arrived at a base offense level of 32, using § 2D1.2(a)(1), the guideline for drug offenses involving underage individuals. The court then added two levels for obstruction of justice to account for defendant’s failure to appear, and gave him a three-level reduction for acceptance of responsibility. Defendant complained that the result was impermissible double counting. The Eighth Circuit disagreed. Defendant’s crime of using a minor in a drug trafficking crime was “counted” once when § 2D1.2 was used as the base offense for his grouped offenses. His crime of failing to appear was “counted” once when he received an enhancement for obstruction of justice, an adjustment the guidelines require when a failure-to-appear offense is grouped in this fashion. USSG § 2J1.6, note 3 & § 3C1.1, note 8. U.S. v. Bell, 183 F.3d 746 (8th Cir. 1999).
8th Circuit applies obstruction enhancement where defendant said associates not involved in drug sales. (461) Defendant and two associates made several small drug sales to an undercover agent. The district court applied an obstruction of justice enhancement because defendant submitted a notarized affidavit and testified at trial that he was the only defendant involved in the drug transactions. The court found such testimony was contrary to the “overwhelming evidence.” The Eighth Circuit held that the court’s findings supported the obstruction enhancement. The district court’s factual findings were sufficiently specific to provide meaningful appellate review. The enhancement was proper. Although defendant testified that neither of his co-defendants was involved in any of the controlled buys, police recorded one of the co-defendant on audiotape as she negotiated the details of the drug transactions. She was also videotaped during the drug transactions. The undercover agent witnessed the other co-defendant’s involvement in the last controlled buy. U.S. v. Molina, 172 F.3d 1048 (8th Cir. 1999).
8th Circuit applies obstruction enhancement for false claim that informant threatened defendant. (461) Defendant and a co-conspirator operated a methamphetamine laboratory in defendant’s cabin. They invited Kearbey, defendant’s brother-in-law, to assist them in manufacturing methamphetamine. Unbeknownst to them, Kearbey was assisting federal authorities. Defendant was arrested after Kearbey delivered government-provided ephedrine to the cabin. At trial, defendant attempted to persuade the jury that Kearbey had threatened him, thus forcing him to manufacture methamphetamine. The district court found this testimony perjury. Because this finding was not clearly erroneous, the Eighth Circuit affirmed an obstruction of justice enhancement. U.S. v. Hunt, 171 F.3d 1192 (8th Cir. 1999).
8th Circuit affirms obstruction enhancement for threats made before defendant knew buyer was informant. (461) The district court applied an obstruction of justice enhancement because of threats defendant made to a drug buyer that he correctly suspected was acting as an informant. On one occasion defendant opened the buyer’s shirt as if he was looking for a wire and told informant that if anything were to happen to defendant there would be “hell to pay” from his “brothers.” During another transaction, defendant warned the buyer that if anything happened to him, “there would be some people getting even.” On a third occasion, defendant passed or showed the buyer a handwritten note containing a similar message. The Eighth Circuit held that the threats defendant made to the buyer before he knew the man was acting as an informant adequately supported the obstruction enhancement. Defendant’s statements would certainly have the effect of chilling a reasonable person’s cooperation with law enforcement authorities. Although defendant did not have actual knowledge of an ongoing investigation, defendant believed that an investigation was probably underway. Brown v. U.S., 169 F.3d 531 (8th Cir. 1999).
8th Circuit finds sufficient evidence that defendant made threatening phone call to witness. (461) At trial, a drug courier testified that a few days before she was to cooperate with the government, she received a threatening telephone call from someone who identified himself as “Ike.” Defendant was the only “Ike” involved in the drug conspiracy. The courier did not identify the caller as defendant, because she had never spoken to defendant. However, she testified that other conspirators had told her that they all were working for a person named “Ike,” that she would be travelling to California for “Ike,” and that he would pay her for the trips. The courier also testified that the voice that threatened her did not belong to any of the other males she knew who were involved in the conspiracy. The Eighth Circuit affirmed an obstruction of justice enhancement based on the telephone threat against the courier. The district court did not clearly err in finding that defendant threatened the courier. U.S. v. Garrison, 168 F.3d 1089 (8th Cir. 1999).
8th Circuit applies obstruction enhancement for false alibi testimony. (461) Defendant and two other men robbed a credit union. The Eighth Circuit, without discussion, held that the district court correctly applied an obstruction of justice enhancement for defendant’s perjured testimony that he was elsewhere at the time of the robbery. U.S. v. Boyd, 168 F.3d 1077 (8th Cir. 1999).
8th Circuit affirms obstruction enhancement based on defendant’s trial perjury. (461) Witnesses testified that defendant kicked in the door of their house and entered the house carrying a beer bottle, which broke on the door frame. Defendant confronted the occupants with the broken beer bottle, extending the jagged edge toward them as he approached. Several of the occupants fled the house. Defendant testified that he went to the house in search of his girlfriend and that one of the occupants, unprovoked, broke a beer bottle over defendant’s face and cut him with the broken bottle. The jury, disbelieving defendant’s testimony, convicted him of burglary. The Eighth Circuit affirmed a § 3C1.1 obstruction of justice enhancement based on defendant’s perjury at trial. The court’s finding that defendant committed perjury was fully supported by the record. Moreover, the district court stated a separate and independent ground to support the § 3C1.1 enhancement. It also found that defendant threatened one of the witnesses after the altercation. U.S. v. Gomez, 165 F.3d 650 (8th Cir. 1999).
8th Circuit applies obstruction enhancement based on post-arrest, pre-indictment flight. (461) Defendant was arrested after police found drugs in his apartment. He agreed to cooperate and was conditionally released to permit his cooperation, but was instructed to have daily contact with the police. After several weeks, communications broke down, and defendant left the state without notifying officials. He was arrested in another state on unrelated charges several months later. He challenged an obstruction of justice enhancement based on his flight from the jurisdiction, since at the time of his flight no charges had been filed against him and he was not under a judicial order to stay within the jurisdiction. The Eighth Circuit held that the post-arrest, pre-indictment flight of a defendant who is not in custody warrants a § 3C1.1 obstruction of justice enhancement. Although defendant was not in custody, he had agreed to cooperate and was aware that he had to keep in contact with police or be indicted. He not only breached that agreement, but impeded the investigation and prosecution of his case. U.S. v. Billingsley, 160 F.3d 502 (8th Cir. 1998).
8th Circuit affirms obstruction increase where court found defendant willfully lied at trial. (461) Defendant was convicted of bank fraud based on misrepresentations he and his wife made to obtain an SBA-guaranteed bank loan. The district court applied a § 3C1.1 obstruction of justice enhancement after finding defendant knowingly and willfully lied under oath at trial about matters material to the charges against him. The Eighth Circuit found sufficient evidence to support the court’s perjury finding. Much of defendant’s testimony, particularly with respect to the ownership and lien status of a certain parcel of property, directly conflicted with other evidence presented to the court. U.S. v. Brekke, 152 F.3d 1042 (8th Cir. 1998).
8th Circuit finds obstruction based on co-conspirator’s testimony of defendant’s threats. (461) Defendant complained that unreliable hearsay evidence was used to support an obstruction of justice enhancement. At sentencing, a co-conspirator testified that prior to trial defendant had contacted her twice through two different friends, first to tell her to return anything she received from federal agents unopened, and second to tell her he knew where she lived, that he had family living around the corner if he wanted to do anything to her, that he thought she was trying to send him away for a long time, and he just wanted to talk to her. The Eighth Circuit affirmed an obstruction of justice enhancement based on the co-conspirator’s testimony. Uncorroborated hearsay evidence may properly be considered by the court as long as the defendant is afforded an opportunity to explain or rebut the evidence. U.S. v. Jackson, 155 F.3d 942 (8th Cir. 1998).
8th Circuit applies obstruction enhancement based on letter to co-conspirator. (461) Defendant, his brother and an associate were discovered in possession of more than 150 rocks of crack cocaine. While awaiting trial, defendant attempted to deliver a note to his brother, which was intercepted by a jailer. The note recited a version of the brothers’ crime that varied substantially from the brother’s prior statements to authorities and from defendant’s own incriminating statements. Defendant argued that the note stated the facts as he believed them. Finding this incredible, the district court found that the letter was written in an attempt to get the brother to commit perjury and manufacture testimony. The Eighth Circuit approved an obstruction of justice enhancement based on defendant’s letter to his brother. The district court was in the best position to make a credibility determination about defendant’s motives and veracity. U.S. v. Holt, 149 F.3d 760 (8th Cir. 1998).
8th Circuit applies reckless endangerment increase for high speed chase on rural road. (461) Defendants attempted to rob a bank but were interrupted. A police officer who had received a description of their fleeing truck encountered the vehicle on a gravel road. A chase ensued that lasted several miles and reached speeds of 70-80 miles per hour. As the truck approached a police roadblock, a trooper fired a round from his shotgun at the truck. Defendants finally stopped. The Eighth Circuit affirmed a § 3C1.2 enhancement for reckless endangerment during flight from police officers. The officers involved in the chase and motorists and pedestrians in the area were placed at substantial risk. The fact that the flight took place in daylight, on country roads in a rural area, and no other vehicles or pedestrians were encountered did not account for the risk to the officers involved. The passenger defendant was also responsible for the risk because he aided and abetted the driver during the chase. The passenger admitted waving the shotgun during the car chase in the hope that whoever was chasing them would see the gun and back off. U.S. v. Valdez, 146 F.3d 547 (8th Cir. 1998).
8th Circuit finds sufficient evidence that defendants attempted to harm witness. (461) Defendants were convicted of attempting to rob a bank. The Eighth Circuit affirmed an obstruction of justice enhancement based on defendants’ attempt to harm a witness–the bank president who they attempted to rob. Numerous witnesses testified that defendants had talked about having the president killed. The district court found these witnesses credible. U.S. v. Valdez, 146 F.3d 547 (8th Cir. 1998).
8th Circuit applies obstruction increase for making “cutthroat” gesture in witness’s direction. (461) At sentencing, two U.S. Marshals testified that during a trial recess while only the two marshals, a deputy, and a witness against defendant were in the courtroom, defendant knocked on the courtroom door to get the witness’s attention. He then made a “cutthroat” gesture in the witness’s direction by drawing his hand across his throat. Although the witness’s testimony continued after this incident, the marshals testified that he was noticeably disturbed by the occurrence. The Eighth Circuit upheld an obstruction of justice enhancement based on the “cutthroat” gesture to the witness. The court reasonably interpreted this as an attempt to influence or intimidate the witness. U.S. v. Moss, 138 F.3d 742 (8th Cir. 1998).
8th Circuit holds that perjury was relevant to money laundering convictions. (461) Defendant was convicted of wire fraud, transporting stolen property, and money laundering. Because all 25 counts related to the same basic series of transactions, the district court grouped the counts together. The district court applied an obstruction of justice enhancement based on defendant’s perjury at trial. Defendant contended that this was improper because his perjury related only to the wire-fraud and stolen property counts, and had nothing to do with the money laundering counts. The Eighth Circuit affirmed an obstruction of justice enhancement, ruling the perjury was relevant to the money laundering counts. The money laundering statute required defendant to know that the financial transaction involved the proceeds of unlawful activity. The court found that defendant lied about his understanding of the ownership of the money in question. This information was relevant to the jury’s finding of whether defendant was guilty of money laundering. U.S. v. Norman, 143 F.3d 375 (8th Cir. 1998).
8th Circuit says burning farmhouse with drug lab was a material hindrance. (461) Police learned that defendants were manufacturing methamphetamine at a nearby farmhouse. After FBI agents surrounded the house and ordered defendants to vacate, they set the lab on fire, and the whole farmhouse burned down. Note 3(d) to § 3C1.1 provides that the obstruction of justice enhancement applies when the defendant has participated in destroying or concealing material evidence. However, if such conduct occurs contemporaneously with the defendant’s arrest, the enhancement does not apply unless it resulted in a material hindrance to the investigation, prosecution or sentencing. The Eighth Circuit held that even if the fire could be considered contemporaneous with defendants’ arrest, the total destruction of the farmhouse and a “substantial amount of potential evidence” constituted a material hindrance within the meaning of the guidelines. U.S. v. Coleman, 148 F.3d 897 (8th Cir. 1998).
8th Circuit finds obstruction in failure to appear at judicial proceeding. (461) After defendant’s arrest, he was transported to the hospital by authorities. He said he would check himself into the hospital and come to court the next morning. Defendant did not check into the hospital and did not appear in court the next day. He was rearrested four days later in the town where he was originally arrested. The Eighth Circuit upheld an obstruction of justice enhancement based on defendant’s willful failure to appear at a judicial proceeding. Defendant knew he was to be in court and simply decided not to appear. U.S. v. Eagle, 133 F.3d 608 (8th Cir. 1998).
8th Circuit finds obstruction for burning property that housed drug lab and fleeing from police. (461) Defendant was involved in a conspiracy to manufacture and distribute methamphetamine from a laboratory on his property. The Eighth Circuit affirmed an obstruction of justice enhancement under § 3C1.1 because defendant burned his house and barn and fled from police on two occasions. He set fire to his property after he learned he was the target of an investigation into the production and distribution of methamphetamine. He knew the police had searched his property only days before the fire. Although the deputy from whom defendant fled was attempting to arrest him on unrelated charges, there was evidence that defendant knew he was suspected of drug dealing and that he intended to evade capture and protect the illegal operation. U.S. v. Dierling, 131 F.3d 722 (8th Cir. 1997).
8th Circuit finds defendant’s comments to witness sufficiently established escape attempt. (461) Defendant and his brother attempted to kill an undercover agent. After the attempt, defendant changed his appearance, assumed a new identity, obtained a fake identification and passport, and fled the country to London, where he was later arrested. The government presented evidence that he had attempted to escape from custody in Britain. A witness testified that defendant called her from jail and informed her than on his way from jail to court there would be an escape attempt. He also informed her that he had recruited a guard to help him and that he would flee to South America. The district court imposed an obstruction enhancement based on the escape attempt. The Eighth Circuit affirmed an obstruction of justice enhancement based on this limited evidence of defendant’s escape attempt. Although the evidence regarding the escape attempt was not overwhelming, the district court’s finding that the government met its burden was not clearly erroneous. This finding was based on credibility determinations, which are the province of the district court. Attempting to escape clearly merits a § 3C1.1 enhancement. U.S. v. Rodgers, 122 F.3d 1129 (8th Cir. 1997).
8th Circuit uses hearsay concerning threats to support obstruction enhancement. (461) A co-conspirator testified at his own sentencing hearing that defendant had sent the co-conspirator threatening letters regarding the co-conspirator’s possible decision to testify, and that defendant spoke with the co-conspirator and threatened to assault a second co-conspirator because that co-conspirator cooperated with the government. The second co-conspirator asserted in an affidavit that defendant’s threats reached him and he was intimidated. The Eighth Circuit affirmed an obstruction of justice enhancement, holding that the court did not err in crediting the co-conspirators’ hearsay. The district court presided at the first co-conspirator’s sentencing and was in the best position to assess his credibility. The second co-conspirator’s affidavit was consistent with the first co-conspirator’s testimony, which lent it additional indicia of reliability. U.S. v. Drapeau, 121 F.3d 344 (8th Cir. 1997).
8th Circuit holds court’s findings on perjury and role were sufficiently specific. (461) Defendant argued that the court’s findings were inadequate with respect to his role in the offense enhancement and his obstruction of justice enhancement. The Eighth Circuit held that the court’s perjury and role in the offense findings were sufficiently specific. The court stated it was “absolutely convinced” that defendant perjured himself “over and over and over again,” but it did not explicitly list particular statements by defendant that it believed to be false. Although citing such specific instances are preferable, it is enough that the court made an independent and specific finding that the defendant committed perjury. The court also stated that based on all the evidence, it was “firmly convinced” that defendants were leaders of the entire conspiracy. They “put it together, they manipulated it, they implemented it, and they organized numerous other people to participate in the scheme.” U.S. v. Grajales-Montoya, 117 F.3d 356 (8th Cir. 1997).
8th Circuit denies § 3E1.1 reduction and affirms obstruction enhancement based on trial testimony. (461) Defendant was convicted of a heroin and methamphetamine conspiracy. A co-defendant testified that defendant was his sole source for heroin and his primary source for methamphetamine. There was evidence that defendant was in charge of at least four houses where people could order heroin by telephone. However, defendant testified that he worked for the co-defendant. He denied shipping and packaging drugs and denied selling methamphetamine to the co-defendant. The Eighth Circuit upheld the denial of an acceptance of responsibility reduction and affirmed an obstruction of justice enhancement based on defendant’s trial testimony. The district court could properly credit the co-defendant’s testimony and discount defendant’s testimony. U.S. v. Rodriguez, 112 F.3d 374 (8th Cir. 1997).
8th Circuit affirms § 3A1.2(b) and § 3C1.2 increases for ramming car into police roadblock. (461) The Eighth Circuit summarily affirmed § 3A1.2(b) and § 3C1.2 enhancements for assaulting a police officer when defendant rammed his car into a police roadblock and for his chase-related conduct that created a risk of serious injury to other drivers and pedestrians. U.S. v. Miner, 108 F.3d 967 (8th Cir. 1997).
8th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant, a banker, helped two brothers commit fraud by making it appear that his bank had lent the brothers a large sum of money. The Eighth Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury at trial. The district court found that defendant testified falsely in an attempt to affect the outcome of his trial. Contrary to a memo he wrote indicating that the bank’s loan was merely a paper transaction and that he never intended to disburse the funds, defendant testified at trial that the bank’s loan to the brothers was legitimate. Also in direct conflict with the evidence, defendant testified that he did not withhold information from the city’s attorney and that the bank intended to disburse the loan to the brothers. U.S. v. Gjerde, 110 F.3d 595 (8th Cir. 1997).
8th Circuit upholds obstruction for perjury at suppression hearing. (461) Defendant robbed a bank in Texas. After he was arrested, he confessed to the Texas robbery and another robbery in Missouri. He pled guilty to the Texas robbery and not guilty to the Missouri robbery, and moved to suppress the statements he made following his Texas arrest. At the suppression hearing, defendant testified that he gave the statements only because he had been beaten, dragged behind a horse and threatened. The Eighth Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury during the suppression hearing. The district court found defendant’s testimony incredible. It conflicted with the testimony of four law enforcement officers, and defendant’s own statements under oath at his Texas guilty plea hearing. U.S. v. Lank, 108 F.3d 860 (8th Cir. 1997).
8th Circuit affirms obstruction for lying to jury and asking co‑conspirator to lie. (461) Defendant was convicted of methamphetamine charges. At trial, he testified that he had never distributed methamphetamine. This testimony was contradicted by four witnesses. The Eighth Circuit affirmed an obstruction of justice enhancement based on defendant’s lies to the jury and his request that a co‑conspirator lie to the grand jury. The finding that defendant lied to the jury and persuaded another to lie to the grand jury was amply supported by the evidence. U.S. v. Garin, 103 F.3d 687 (8th Cir. 1996).
8th Circuit says change in obstruction commentary did not affect defendant. (461) Defendant was originally sentenced under the 1992 guidelines for four drug crimes. The appellate court affirmed an obstruction of justice enhancement but vacated the sentences on two counts for violating the ex post facto clause. Defendant argued that the district court’s refusal to reconsider the obstruction of justice determination on remand violated the ex post facto clause. Defendant argued that the 1987 guidelines would have given him the benefit of a statement that “suspect testimony and statements should be evaluated in a light most favorable to the defendant.” At the time of sentencing, the guideline read the “false testimony or statements by the defendant” should be so evaluated. The Eighth Circuit found no ex post facto violation since defendant would not have been entitled to this standard under either version of the guidelines. This standard applies when a defendant has given false or suspect statements or testimony. It does not apply where the defendant is charged with obstructing justice by threatening a witness. U.S. v. Behler, 100 F.3d 632 (8th Cir. 1996).
8th Circuit affirms obstruction enhancement for perjured alibi at trial. (461) The district court applied an obstruction of justice enhancement, finding defendant’s alibi at trial was perjurious. Defendant argued that the enhancement was inapplicable because a reasonable jury could have believed him and his alibi witness. The Eighth Circuit affirmed. The district court’s findings included 12 specific instances where defendant’s testimony was flatly contradicted by either his own subsequently disavowed confession or the unequivocal testimony of his former co-conspirators or other witnesses. U.S. v. Kime, 99 F.3d 870 (8th Cir. 1996).
8th Circuit affirms obstruction enhancement based on judge’s evaluation of trial testimony. (461) Defendant challenged a § 3C1.1 enhancement for obstruction of justice, claiming the district court relied on the jury’s rejection of his testimony without making an express finding that defendant had committed perjury. The Eighth Circuit affirmed the enhancement, concluding that the court’s finding that defendant had testified falsely was properly based on the court’s independent evaluation of defendant’s trial testimony. The sentencing transcript showed that the court expressly found that defendant had lied about his involvement in a drug conspiracy. The court documented each element of the alleged perjury as required by Dunnigan. U.S. v. Crosby, 96 F.3d 1114 (8th Cir. 1996).
8th Circuit rejects acceptance credit and affirms obstruction increase for denying connection to drugs. (461) A motel employee reported that several people had checked into the motel and appeared to be conducting drug transactions from their room and their auto. The car was registered to defendant. Defendant was apprehended in a traffic stop. Drugs were found on his person. A search of the motel room uncovered additional drugs and a gun. The Eighth Circuit upheld the denial of a § 3E1.1 reduction for acceptance of responsibility. Defendant did not satisfy any of the factors listed in § 3E1.1. Police discovered the gun and crack in the motel room without defendant’s assistance. Except for the crack police found hidden in defendant’s hat at his arrest, defendant continued to deny any connection to the drugs found in the hotel room. Defendant’s perjury at trial also warranted a § 3C1.1 obstruction of justice enhancement. The trial court found that several of defendant’s statements under oath were “outright fabrications.” U.S. v. Thomas, 93 F.3d 479 (8th Cir. 1996).
8th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant was convicted of conspiracy to distribute crack cocaine. The district court found that defendant committed perjury at trial as to the money in his possession and his involvement in the sale of crack cocaine. The Eighth Circuit affirmed an obstruction of justice enhancement based on his trial perjury. Defendant’s testimony concerned a material matter and nothing suggested that it was given out of confusion or mistake. U.S. v. Scott, 91 F.3d 1058 (8th Cir. 1996).
8th Circuit approves obstruction enhancement for perjury at trial. (461) Defendant and others purchased high mileage, late model cars, altered their odometers, forged the title and registration documents to show the altered mileage, and resold the cars through a coconspirator’s car dealership. At trial defendant testified that he had no knowledge of the odometer tampering. The Eighth Circuit approved an obstruction of justice enhancement based on defendant’s perjury at trial. The jury and the trial judge thought defendant’s testimony was “knowingly and materially false.” This was not a case where the defendant was confused, mistaken or suffering from faulty memory. U.S. v. Berndt, 86 F.3d 803 (8th Cir. 1996).
8th Circuit approves obstruction enhancement for scheme to intimidate witnesses. (461) Defendant was convicted of accepting a bribe as a public official. The district court applied an obstruction of justice enhancement based on evidence that defendant’s friends and relatives were terrorizing certain individuals who had testified against defendant. The Eighth Circuit approved the enhancement, even though there was no evidence that defendant ever directly tormented the government witnesses. Defendant was chargeable for conduct that he aided and abetted, counseled, commanded, induced, procured, or willfully caused. U.S. v. Hang, 75 F.3d 1275 (8th Cir. 1996).
8th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant and an associate were convicted of assaulting another man outside a convenience store. The Eighth Circuit affirmed an obstruction of justice enhancement based on defendant’s testimony denying that he committed the assault. The district court reviewed the evidence and made an independent finding that defendant had obstructed justice by committing perjury during the trial. The victim testified that as he lay on the ground, he was kicked in the jaw by someone standing behind him, whom he took to be defendant, since the latter was the only person the victim recalled seeing there. The store manager also testified that she saw defendant kick the victim in the chin. U.S. v. Big Crow, 74 F.3d 163 (8th Cir. 1996).
8th Circuit applies § 3C1.1 and denies § 3E1.1 reduction for absconding from supervision and continuing drug use. (461) After pleading guilty and being released on bond, defendant tested positive for various controlled substances. He later absconded for three months. When he was re-arrested, he admitted using marijuana while out on bond. The Eighth Circuit affirmed a § 3C1.1 enhancement because defendant absconded from supervision. It also affirmed the denial of a § 3E1.1 reduction based on defendant’s continued drug use. U.S. v. Thomas, 72 F.3d 92 (8th Cir. 1995).
8th Circuit approves obstruction enhancement where defendant denied involvement in attempted murder. (461) Defendant participated in a long-term violent drug trafficking organization. The district court applied an obstruction of justice enhancement because defendant denied any involvement in the attempted murder of a co-conspirator. The Eighth Circuit approved the obstruction enhancement since the evidence established that defendant committed the attempted murder on behalf of the drug conspiracy. Several eyewitnesses, including the victim, testified that defendant shot the victim. The jury found that the government proved defendant’s attempt to murder the victim beyond a reasonable doubt. The court chose to credit the testimony of the three witnesses over defendant’s testimony. U.S. v. Darden, 70 F.3d 1507 (8th Cir. 1995).
8th Circuit finds obstruction in testimony that “O’s” meant outfits rather than ounces of crack. (461) In a recorded conversation, defendant referred to “three O’s.” Although other testimony showed that this referred to three ounces of crack, defendant testified that “O’s” referred to outfits. The Eighth Circuit affirmed an obstruction of justice enhancement for this perjurious testimony. U.S. v. Jackson, 67 F.3d 1359 (8th Cir. 1995).
8th Circuit upholds obstruction enhancement for failure to provide complete financial information. (461) Defendant concealed assets from the bankruptcy court and his creditors. The Eighth Circuit upheld an obstruction of justice enhancement based on defendant’s intentional failure to provide financial information requested by the probation officer. He submitted an incomplete and unsigned statement with a note authorizing his accountant to provide the probation office with any additional financial information. However, the accountant did not have the requested information. The requested financial information was material to determining defendant’s ability to pay fines or restitution. The information defendant gave also contained falsehoods. For example, although he claimed his consulting work was paying his personal expenses, he listed his net salary as “none.” He also failed to list $13,500 that he received from his son. In light of this behavior, the denial of a § 3E1.1 reduction was proper. U.S. v. Anderson, 68 F.3d 1050 (8th Cir. 1995).
8th Circuit approves obstruction enhancement based on perjury. (461) The Eighth Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at trial. At sentencing, the district court identified specific instances in which defendant had falsely denied knowledge or involvement in drug trafficking, with the intent to cause the jury to find him not guilty. These findings were sufficient to warrant the enhancement. U.S. v. Pena, 67 F.3d 153 (8th Cir. 1995).
8th Circuit affirms § 3C1.1 enhancement despite court’s failure to find perjury was willful. (461) Defendant challenged a § 3C1.1 enhancement because the district court did not specifically find his perjury was willful. The Eighth Circuit affirmed, even though it would have been preferable for the district court to have made an overt willfulness finding. A review of the record showed that defendant’s trial testimony was “insincere, cynical and calculated—willful perjury of the most odious kind.” U.S. v. Lambros, 65 F.3d 698 (8th Cir. 1995).
8th Circuit says false evidence need not have actual effect on investigation. (461) Defendant stalked and harassed his former girlfriend by shooting into her unoccupied vehicle, sending threatening letters, and sending her a bra with a red target sticker affixed. He was convicted of possessing an unregistered sawed-off rifle. During the investigation, defendant tried to conceal his role by claiming to also be a victim. He claimed to have received threatening letters and showed one to police. He also asked police to investigate target stickers he had placed on his own vehicle. The Eighth Circuit affirmed an obstruction of justice enhancement even though defendant’s conduct had no real effect on the investigation or prosecution. By creating false evidence, defendant attempted to obstruct or impede the investigation. The attempt did not have to have any actual effect on the investigation. The obstructive acts were sufficiently related to the instant offense of possessing an unregistered firearm. U.S. v. Otto, 64 F.3d 367 (8th Cir. 1995).
8th Circuit approves obstruction enhancement for defendant who fled and used aliases for three years to evade arrest. (461) After being arrested on fraud charges, defendant admitted her involvement, offered to cooperate, and was released. She then retrieved fraudulently obtained goods from storage and sold them, using the proceeds to finance a flight from the state. Investigators located her in another state three years later living under an alias. The Eighth Circuit approved an obstruction of justice enhancement, finding defendant’s conduct was more than “mere flight to avoid arrest.” The facts contradicted defendant’s contention that she merely was not in the state when agents began looking for her. Defendant actively impeded arrest and resolution of her case. U.S. v. Smith, 62 F.3d 1073 (8th Cir. 1995).
8th Circuit says moving to new residence, changing appearance and living under alias was more than mere avoidance of arrest. (461) After defendant was indicted, IRS agents attempted to arrest him. He could not be found, although he subsequently called into the office and was told that he should surrender. He was not captured until 17 months later, living under an alias. The Eighth Circuit upheld a § 3C1.1 enhancement, finding that defendant’s conduct following the filing of the indictment and issuance of an arrest warrant constituted more than merely avoiding or fleeing from arrest. Defendant changed his residence, used an alias, and attempted to change his appearance. When authorities finally caught up with him, defendant refused to surrender and was only removed from the house following the use of tear gas and flash bombs. Defendant did not “instinctively flee” the scene of a crime. He willfully and deliberately engaged in conduct over a considerable amount of time calculated to mislead and deceive authorities. U.S. v. Walcott, 61 F.3d 635 (8th Cir. 1995).
8th Circuit affirms § 3C1.1 enhancement for failure to reveal true identity. (461) The district court imposed an obstruction of justice enhancement because defendant provided a false resident alien identification card to a probation officer. Defendant argued that his failure to reveal his true identity did not impede investigation of the offense or the sentencing process. The Eighth Circuit affirmed the enhancement, since defendant’s failure to provide a truthful identity hampered preparation of the PSR, and precluded a determination of whether he had a criminal history. Defendant’s true identity was still not known. Moreover, even if defendant did not succeed in actually obstructing the administration of justice, his use of an alias constituted attempted obstruction, warranting a § 3C1.1. enhancement. The enhancement did not violate the 5th Amendment. The allegedly improper references to defendant’s alienage were made by the prosecutor and could not be imputed to the district court. U.S. v. Pereira-Munoz, 59 F.3d 788 (8th Cir. 1995).
8th Circuit says that false background information was material given nature of fraud scheme. (461) Defendant committed two stock brokerage swindles using aliases and false Social Security numbers. He claimed that the false background information he gave to the FBI and his probation officer did not warrant a § 3C1.1 enhancement because they did not impede the investigation and thus were not material. The Eighth Circuit held that the false background information was material given the nature of defendant’s crimes. Financial records of the kinds involved in defendant’s scams are classified by information like name, Social Security numbers, and birth facts–the very things defendant lied about. U.S. v. Cohen, 60 F.3d 460 (8th Cir. 1995).
8th Circuit says obstruction enhancement did not infringe right to testify or appeal. (461) Defendant and his friends staged a car collision, and defendant fraudulently collected disability insurance benefits. Defendant denied at trial that the accident was staged, contrary to testimony from a co-conspirator. An accident reconstructionist also testified that the crash could not have occurred the way defendant described it. The Eighth Circuit upheld an obstruction of justice enhancement for perjury, ruling that the enhancement did not unconstitutionally infringe defendant’s right to testify, present his factual defense, or appeal his conviction. There was sufficient evidence to support the court’s finding of perjury. U.S. v. Irons, 53 F.3d 947 (8th Cir. 1995).
8th Circuit approves obstruction increase for financing potential witness’s flight from police. (461) Defendant operated a drug distribution business. After police found drugs at the home of one of defendant’s associates, defendant supplied the associate with money to flee prosecution. The Eighth Circuit approved an obstruction of justice enhancement based on defendant’s financing of the associate’s flight. The associate was a potential witness against defendant. He knew of defendant’s crimes, and was in a position to benefit from cooperation with the police. The enhancement was not because defendant helped the associate flee from justice, but because he attempted to put the associate out of the government’s reach as a witness. His conduct was akin to asking a witness not to cooperate, which falls within § 3C1.1. U.S. v. Alexander, 53 F.3d 888 (8th Cir. 1995).
8th Circuit upholds finding that defendant threatened co-conspirator into refusing to testify. (461) The district court based an obstruction of justice enhancement on its finding that defendant threatened a co-conspirator into refusing to testify. The Eighth Circuit upheld the district court’s finding that defendant threatened the co-conspirator. The district court found credible the co-conspirator’s testimony that defendant threatened him and his family and that defendant made the co-conspirator write a letter that retracted his prior statements to police. U.S. v. Escobar, 50 F.3d 1414 (8th Cir. 1995).
8th Circuit upholds obstruction enhancement for defendant who fled to Canada after agreeing to cooperate. (461) The district court applied an obstruction of justice enhancement because defendant had agreed to cooperate in the investigation of his offense, but then fled to Canada, taking some of his illegally derived funds. He also told another target of the investigation that the FBI would be coming. The Eighth Circuit affirmed, rejecting defendant’s claim that he went to Canada to seek new legal representation. Although the enhancement is not warranted under note 4(d) when a defendant flees immediately after the crime to avoid arrest, this exception did not apply to defendant. Defendant’s flight was not an instinctive pre-arrest flight, but a willful breach of his agreement to cooperate. The case was even more compelling because defendant alerted a co-conspirator, and took illegal proceeds out of the country. U.S. v. Hare, 49 F.3d 447 (8th Cir. 1995).
8th Circuit upholds obstruction based on conflicting evidence that defendant threatened witness. (461) The district court enhanced defendant’s sentence for obstruction of justice because defendant allegedly made threatening phone calls to the father of a major government witness. The Eighth Circuit upheld the enhancement even though the evidence concerning the calls was conflicting. At trial, a DEA agent testified that the father told him that defendant repeatedly phoned and threatened the witness and his family. The father admitted reporting the frequency and content of these calls to the DEA. However, he said the calls were not of a harassing nature. Where there are two permissible views of the evidence, the district court’s choice between them cannot be clearly erroneous. U.S. v. Rice, 49 F.3d 378 (8th Cir. 1995).
8th Circuit says court must impose obstruction enhancement if defendant threatened witness. (461) Defendant and his brother beat up a man. The PSR stated that defendant and his brother confronted a witness to the beating and told him that it was a family matter that did not concern him, and if he testified, they would beat him too. Defendant denied the incident occurred. The district court refused to enhance defendant’s sentence for obstruction of justice, stating that if the incident did occur, it did not amount to obstruction of justice. The incident was a “bar room conversation” that, in the context of an ongoing power struggle between Indian families, was part of “reservation life.” The Eighth Circuit held that the district court erred in failing to determine whether the threat occurred. If defendant did threaten the witness, then the district court was required to enhance his sentence for obstruction of justice. The guidelines do not make exceptions for “social circumstances,” such as “the realities of reservation life.” Hall v. U.S., 46 F.3d 855 (8th Cir. 1995).
8th Circuit upholds obstruction enhancement for perjury at suppression hearing. (461) Defendant moved to suppress his signed confession. At the hearing, he denied making the statements found in the confession. He admitted reading a waiver of rights form before signing it, but claimed not to have read the confession before he signed it. The Eighth Circuit upheld an obstruction of justice enhancement based on defendant’s perjury at the suppression hearing. Defendant’s testimony that he had not read the confession directly contradicted the district court’s finding that defendant knew what was in the confession when he signed it. U.S. v. Chadwick, 44 F.3d 713 (8th Cir. 1995).
8th Circuit rules reversal of conviction did not erase previous perjury during trial. (461) Defendant was originally convicted of aggravated sexual abuse and sexual abuse of a minor. The victim testified at trial that she had voluntary sex with defendant on two occasions, but he denied that he even knew the victim before the court case. He received an obstruction of justice enhancement based on his perjury at trial. The conviction was reversed, however, because the court erroneously admitted evidence of defendant’s previous sexual misconduct. Defendant then pled guilty to sexual abuse of a minor. The district court again enhanced his sentence for obstruction of justice based on the perjury during his trial. The Eighth Circuit affirmed, holding that the reversal of defendant’s conviction on other grounds did not erase his previous obstructive conduct during trial. The trial was part of the prosecution of the offense to which defendant pled guilty on remand. U.S. v. Has No Horse, 42 F.3d 1158 (8th Cir. 1994).
8th Circuit approves obstruction enhancement for giving false name to authorities. (461) Defendant gave arresting officers a false name. He gave the FBI the same false name, along with a false date and place of birth, false social security number, and false address. He repeated the information to the pretrial services officer who interviewed him for the purpose of making a recommendation to the magistrate judge about pretrial release. Defendant continued to use the false name before the magistrate judge. The 8th Circuit approved an obstruction of justice enhancement. Defendant could not rely on note 4(a) (requiring deceptive conduct to hinder the investigation) since defendant did more than just provide a false name at arrest. Under the commentary, the obstruction of justice enhancement applies if defendant provided materially false information to a magistrate. Defendant’s identify was a material fact. He also provided materially false information to the pretrial services officer. Defendant’s conduct was more like the conduct listed in note 3, to which § 3C1.1 applies, than the less serious conduct listed in note 4. U.S. v. St. James, 30 F.3d 84 (8th Cir. 1994).
8th Circuit holds that use of alias during arrest hindered government’s investigation. (461) Defendant participated in a scheme to cash bogus checks. Before the government filed the bank fraud indictment, defendant was arrested trying to cash a fraudulent check made out to “Lawrence Palmer.” He told police his name was Lawrence Palmer and gave them identifying information for Palmer. The police released him. Federal authorities indicted defendant under Palmer’s name, and did not learn his true identify until after an arrest warrant was issued. An FBI agent spent “the better part of a week” trying to find Palmer to arrest him. He eventually learned he was pursuing the wrong person. The 8th Circuit agreed that defendant’s use of an alias during his arrest hindered the government’s investigation, and therefore merited an obstruction of justice enhancement under note 4(a) to § 3C1.1. Defendant stipulated that the attempt to cash the counter check was part of the instant offense. U.S. v. McCoy, 36 F.3d 740 (7th Cir. 1994).
8th Circuit upholds obstruction enhancement for perjury at trial. (461) Defendant was convicted of giving a gratuity to a public official in connection with his attempted purchase of property from the Resolution Trust Company (RTC). The district court enhanced defendant’s sentence for obstruction of justice for perjury at trial. The 8th Circuit agreed that defendant perjured himself when he denied knowing that RTC was a government agency. Defendant (a) had materials in his briefcase describing RTC, (b) was familiar with the certifications that federal regulations required purchasers of RTC property to sign, (c) compared his arrangement with the official to the method of doing business with government officials in India, and (d) insisted that the official call him from pay phones. U.S. v. Patel, 32 F.3d 340 (8th Cir. 1994).
8th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant was convicted of methamphetamine charges. At trial, defendant testified that his contact with one drug dealer was limited to attempts to collect a $20,000 loan. Defendant also stated that he did not know the “professor,” who cooked the methamphetamine. The 8th Circuit upheld an enhancement for obstruction of justice based on perjury at trial. The drug dealer’s statements and tape recordings of telephone conversations between defendant and the dealer provided substantial evidence that defendant’s statements at trial were false. U.S. v. McCormick, 29 F.3d 352 (8th Cir. 1994).
8th Circuit upholds obstruction enhancement for failure to appear for state proceeding. (461) Local police initially arrested defendant after he opened bank accounts using fictitious names and social security numbers. He failed to appear for arraignment. He was eventually indicted and prosecuted in federal court on charges of misrepresenting his social security number. The 8th Circuit upheld an enhancement for obstruction of justice based on defendant’s failure to appear in state court. Application note 3(e) provides that willfully failing to appear for a judicial proceeding warrants an obstruction enhancement. The guidelines make no distinction between state and federal authorities or proceedings. Section 3C1.1 only requires a connection between the obstructed state proceedings and the investigation of the federal offense. This requirement was satisfied here, for defendant’s misrepresentation of his social security number was an intimate part of the conduct for which local police arrested him. U.S. v. Adediran, 26 F.3d 61 (8th Cir. 1994).
8th Circuit finds that defendant procured perjured testimony from sister. (461) The district court imposed an obstruction of justice enhancement after finding that defendant had suborned the perjury of his sister, one of his alibi witnesses. Defendant argued that the government did not prove that defendant procured the sister’s perjured testimony. The 8th Circuit found a sufficient nexus between the testimony and defendant. Defendant and his relatives provided false alibi testimony for one another. Defendant sent a letter to one relative, asking him to find documents that would “jog” the relative’s memory as to defendant’s whereabouts during the crime. U.S. v. Duranseau, 26 F.3d 804 (8th Cir. 1994).
8th Circuit approves obstruction enhancement for perjury at suppression hearing. (461) The 8th Circuit approved an enhancement for obstruction of justice because defendant lied under oath at the suppression hearing about his consent to the search. He also used his experience as a police officer to attempt to manipulate the proceedings. U.S. v. Gleason, 25 F.3d 605 (8th Cir. 1994).
8th Circuit affirms enhancement for defendant who testified he never possessed or distributed cocaine. (461) The district court found that defendant committed perjury by testifying that he never possessed or distributed cocaine. The 8th Circuit affirmed an enhancement for obstruction of justice, finding the court’s credibility determination not clearly erroneous. U.S. v. Maxwell, 25 F.3d 1389 (8th Cir. 1994).
8th Circuit affirms enhancement for telling wife to “take care of” suspected informants. (461) The district court imposed an obstruction of justice enhancement based on an agent’s testimony that he overheard defendant tell his wife on the phone from jail to “take care of” two suspected informants. The agent testified that defendant appeared “very angry” and “very demanding.” Defendant argued that because his wife did not actually carry out the threat, the enhancement was unjustified. The 8th Circuit rejected the argument. The enhancement was not clearly erroneous. U.S. v. McIntosh, 23 F.3d 1454 (8th Cir. 1994).
8th Circuit finds court made perjury findings supporting obstruction enhancement. (461) Defendant was convicted of conspiracy to distribute cocaine. At trial, he testified that the money the government seized was currency he was loaning to a friend to buy a truck, and that the recorded telephone calls between himself and the friend were part of a ruse to gain the friend’s trust. He received an enhancement for obstruction of justice based on perjury at trial. Defendant argued that the district court failed to make specific findings of untruthful testimony. The 8th Circuit upheld the enhancement, finding the district court did make such findings. The record established a solid basis for the perjury finding. U.S. v. Blanc, 24 F.3d 1029 (8th Cir. 1994).
8th Circuit finds bankruptcy fraud impeded investigation of bank fraud. (461) Defendant was convicted of bank fraud, fraudulently transferring property in contemplation of bankruptcy, and fraudulently concealing the proceeds of a sale in contemplation of bankruptcy. Defendant received an enhancement for obstruction of justice because he provided false information to and concealed information from the bankruptcy court in matters relating to the bank fraud. The 8th Circuit affirmed. It was clear that the court could not impose an obstruction enhancement on the bankruptcy fraud counts based of his conduct in bankruptcy court, since this would result in double counting. However, the court could properly assess an obstruction enhancement as to the bank fraud count, since the court found that defendant’s conduct in the bankruptcy proceeding impeded the investigation of all of the counts in the indictment, which necessarily included the bank fraud. U.S. v. Rimell, 21 F.3d 281 (8th Cir. 1994).
8th Circuit upholds obstruction enhancement for harboring a fugitive for two months. (461) Defendant was convicted of drug charges and harboring a fugitive. The 8th Circuit upheld an enhancement for obstruction of justice because defendant aided and abetted the fugitive to evade the law for about two months. U.S. v. Zerba, 21 F.3d 250 (8th Cir. 1994).
8th Circuit upholds perjury findings to justify obstruction enhancement. (461) Defendant received an enhancement for obstruction of justice based upon her perjury at trial. She argued that the district court did not make specific findings of particular false statements, and did not support the findings by anything more than the guilty verdict. The 8th Circuit found that the court made sufficient findings of perjury to justify the obstruction enhancement. The judge stated that he examined defendant’s testimony and was convinced that she committed perjury by denying any involvement in the drug conspiracy. U.S. v. Turk, 21 F.3d 309 (8th Cir. 1994).
8th Circuit upholds obstruction increase for denying all involvement in drug transactions. (461) The trial court imposed an enhancement for obstruction of justice based on defendant’s testimony at sentencing denying all involvement in drug transactions, including the one for which he was convicted. The 8th Circuit upheld the enhancement. The district court made a specific finding that defendant’s testimony was false. That finding was not clearly erroneous. U.S. v. Magee, 19 F.3d 417 (8th Cir. 1994).
8th Circuit upholds obstruction enhancement for perjury at trial. (461) Defendant, the mayor of a small city, was convicted of attempted extortion. The 8th Circuit upheld an obstruction of justice enhancement based on his perjury at trial. An enhancement for perjury at trial does not unconstitutionally burden a defendant’s right to testify on his own behalf. The court’s perjury finding was supported by the evidence. Defendant testified that a city contractor first approached him and offered money for the purpose of helping the city’s residents, and that defendant distributed the $3,000 he received to others. However, the government’s witnesses and tape-recorded conversations showed these statements were false. U.S. v. Clay, 16 F.3d 892 (8th Cir. 1994).
8th Circuit upholds obstruction enhancement where defendant denied being in state. (461) The 8th Circuit upheld an enhancement for obstruction of justice based on defendant’s perjury at trial. Defendant denied being in Minnesota during April 1992 even though his employment records indicated otherwise. Defendant also denied involvement with certain drugs seized in Utah. U.S. v. Casares-Cardenas, 14 F.3d 1283 (8th Cir. 1994).
8th Circuit upholds obstruction of justice enhancement for perjury at trial. (461) Defendant was convicted of assaulting a federal officer and being a felon in possession of a firearm. The district court imposed an obstruction of justice enhancement based on defendant’s perjury at trial. It noted that defendant’s testimony was contradicted by other witnesses in several important respects, including as to his knowledge that a gun was in his car and that the car chasing him belonged to a tribal police officer. The 8th Circuit upheld the enhancement. The testimony of the other witnesses supported the conclusion that defendant perjured himself. The sentencing judge heard the trial testimony, and made sufficiently specific findings to support the enhancement. U.S. v. Oakie, 12 F.3d 1436 (8th Cir. 1993).
8th Circuit rules that interference with federal officers may be considered obstruction of justice conviction. (461) After resisting federal agents attempting to arrest him, defendant pled guilty to drug charges and forcible interference with federal agents, in violation of 18 U.S.C. § 111. The district court treated the section 111 conviction as an obstruction of justice conviction, and imposed an enhancement under section 3C1.1, note 3, which provides for an obstruction of justice enhancement where there is a separate count of conviction for such conduct. The 8th Circuit agreed that the section 111 conviction was an obstruction of justice conviction for guidelines purposes. The enhancement did not constitute double counting. Double counting results where the obstruction of justice enhancement is predicated upon conduct that is coterminous with the conduct that is the basis for the count of conviction to which the enhancement is applied. Here, the enhancement was applied to the drug charges. U.S. v. Olunloyo, 10 F.3d 578 (8th Cir. 1993).
8th Circuit upholds obstruction enhancement for hiding car in insurance fraud scheme. (461) Defendant participated in a “shadow-car scheme” through which he used two similar cars, one of which was in poor condition, to con insurance companies and banks out of money. The 8th Circuit affirmed an enhancement for obstruction of justice based on evidence that after defendant’s grand jury testimony, he abandoned one of the vehicles in a remote part of Arkansas on his father-in-law’s property with the VIN removed. The enhancement did not constitute double-counting. Defendant’s insurance fraud did not require him to conceal the higher value vehicle after fraudulently obtaining the insurance proceeds. This was done to obstruct the investigation of the crime. U.S. v. Ransom, 9 F.3d 707 (8th Cir. 1993).
8th Circuit upholds post-conviction flight as basis for obstruction and denial of acceptance credit. (461) Pending sentencing, defendant was released on her own bond. After testing positive for drugs, she abandoned her family and fled to California. The 8th Circuit held that defendant’s flight to California before sentencing was sufficient to deny her a reduction for acceptance of responsibility and to impose an enhancement for obstruction of justice. U.S. v. Shinder, 8 F.3d 633 (8th Cir. 1993).
8th Circuit says flushing drugs down toilet materially hindered the prosecution. (461) Defendant received an enhancement for obstruction of justice because he flushed cocaine down the toilet as police executed a search warrant at his residence. Although the conduct was contemporaneous with his arrest, the 8th Circuit upheld the enhancement. The district court could have reasonably concluded that defendant’s destruction of evidence materially hindered the investigation and prosecution. Because of defendant’s destruction of the evidence, agents were able to seize only cocaine residue. The government did not have physical evidence of defendant’s drug-trafficking activities until four months later, when he was arrested at a party. Defendant’s destruction of evidence thus caused a four-month delay in the investigation. U.S. v. Kenyon, 7 F.3d 783 (8th Cir. 1993).
8th Circuit upholds obstruction enhancement even though defendant’s perjury occurred before present charges. (461) At defendant’s appearance and bond hearing on drug charges, defendant lied about his purchase of two houses, stating that his father owned the houses. He later recanted and admitted that he purchased the houses and titled them in his father’s name. He was later charged with and pled guilty to money laundering. The 8th Circuit upheld an enhancement for obstruction of justice, even though defendant had not yet been indicted for money laundering when he committed perjury. The instant offense under section 3C1.1 is the offense of conviction. It may or may not be the offense which initially attracted the attention of the police. U.S. v. Allen, 5 F.3d 345 (8th Cir. 1993).
8th Circuit affirms that defendant knew he was fleeing from police officers. (461) Defendant challenged an enhancement under section 3C1.2 for reckless endangerment during flight, claiming that he did not knowingly flee from law enforcement officials. The 8th Circuit rejected this claim. One officer testified that he heard the other officer identify himself as a police officer and they stopped behind defendant’s car, that a red rotating light was on the dash of the car while pursuing defendant after he sped off, and that officers had to force him off the road to apprehend him. The district court found the officer’s testimony credible and that defendant’s testimony that was “merely fleeing from an unidentified pair of individuals who he believed were out to harm him” was not credible. U.S. v. Sykes, 7 F.3d 1331 (7th Cir. 1993).
8th Circuit upholds obstruction enhancement for tearing up stolen checks while in holding cell. (461) While in a police car and a holding cell at the police station, defendant tore up four stolen checks he had in his possession. The 8th Circuit upheld an enhancement for obstruction of justice, rejecting defendant’s claim that his conduct occurred contemporaneously with arrest as provided in note 3(d) to section 3C1.1. This exception includes only conduct that is a “spontaneous or visceral or reflexive response occurring at the point arrest becomes imminent.” Moreover, the exception does not apply if the conduct resulted in a material hindrance to the official investigation. The act of tearing up the checks resulted in delay and expense because investigators were forced to send the check pieces to a government crime laboratory to be reassembled. U.S. v. Sykes, 7 F.3d 1331 (7th Cir. 1993).
8th Circuit upholds obstruction enhancement where defendant used identical twin’s name. (461) Defendant led investigating officers on a high speed chase, struck a parked car, discarded substances, fought with arresting officers when cornered, attempted to chew up his driver’s license, and gave his twin brother’s name when he was arrested. The false identity confused police, but they were able to confirm defendant’s identity through post-arrest fingerprinting. On another occasion, defendant signed his brother’s name to a wire transfer of money, a deception the government did not unravel until late in the trial. Based on these facts, the 8th Circuit upheld an enhancement for obstruction of justice. The record supported the district court’s finding that defendant engaged in a concerted effort to obstruct justice by “playing his twin brother’s name off against” his own. Moreover, although fleeing from arrest alone does not warrant the enhancement, defendant’s destruction of incriminating evidence while fleeing did. U.S. v. Mabry, 3 F.3d 244 (8th Cir. 1993), abrogation on other grounds recognized by U.S. v. Sheppard, 219 F.3d 766 (8th Cir. 2000).
8th Circuit upholds obstruction enhancement for attempted escape on unrelated offense. (461) §3C1.1 provides for an enhancement when the defendant attempts to obstruct justice during the investigation, prosecution, or sentencing of the “instant offense.” The 8th Circuit upheld the adjustment for a defendant convicted of drug offenses who had attempted to escape from custody for a different offense during investigation of his drug crimes. The escape was an attempt to obstruct justice for the “instant offense” even though the custody was for a different offense. U.S. v. Ball, 999 F.2d 339 (8th Cir. 1993).
8th Circuit upholds obstruction enhancement based on threats to government witness. (461) The 8th Circuit upheld an enhancement for obstruction of justice under §3C1.1 based on the district court’s finding that defendant and others under his control threatened a government witness. At the bond revocation hearing, the government witness testified that while out on bail, defendant returned to town and threatened to kill him because he was a government witness. U.S. v. Grady, 997 F.2d 421 (8th Cir. 1993).
8th Circuit upholds adjustment where defendant attempted to bribe co-defendants. (461) Defendant offered his co-defendants money to help him “get out of this mess.” The co-defendants refused his offer. The 8th Circuit held that the district court did not clearly err in finding that defendant’s actions constituted an attempt to suborn perjury, and in therefore adjusting defendant’s offense level for obstruction of justice. U.S. v. Armstrong, 992 F.2d 171 (8th Cir. 1993).
8th Circuit says obstruction enhancement was not punishment for testifying or for bad “attitude.” (461) Defendant argued that the district court improperly increased his sentence because he took the stand to testify, and to punish him for the “attitude” displayed by him and his lawyer. The 8th Circuit rejected these claims. The district court imposed the obstruction of justice enhancement because it specifically found that defendant’s testimony constituted perjury and noted that upon his arrest, defendant denied he was being arrested by law enforcement officers and even denied that he was in the clearly marked U.S. Marshal’s office. The court’s only reference to defendant’s “attitude,” was that in addition to his obstruction of justice, defendant’s attitude did not warrant a decrease for acceptance of responsibility. U.S. v. Neal, 990 F.2d 355 (8th Cir. 1993).
8th Circuit affirms obstruction enhancement where there were conflicts in testimony. (461) The district court imposed an enhancement for obstruction of justice and denied a reduction for acceptance of responsibility after concluding that conflicts between the testimony of defendant and other witnesses concerning the creation of false documents were the result of purposeful deception by defendant. The 8th Circuit affirmed. Perjury is grounds for an obstruction of justice enhancement. The denial of the acceptance of responsibility reduction was not without foundation. U.S. v. Marx, 991 F.2d 1369 (8th Cir. 1993).
8th Circuit finds district court properly resolved objection to obstruction enhancement. (461) The PSR recommended an obstruction of justice enhancement because defendant submitted forged documents to the court during trial, and then committed perjury while testifying about these documents. Defendant objected to these allegations, but the district court imposed the enhancement. The 8th Circuit affirmed that the district court properly resolved defendant’s objections and satisfied Fed. R. Crim. P. 32(c)(3)(D). During sentencing, both defendant and the government argued about what the evidence at trial demonstrated concerning the alleged forgery and perjury. After listening to the arguments, the sentencing judge agreed that the defendant used documents at trial to try to fool the jury and to obstruct justice. The court then overruled defendant’s objections and imposed the obstruction enhancement. U.S. v. Mills, 987 F.2d 1311 (8th Cir. 1993).
8th Circuit upholds obstruction enhancement for perjury and use of an alias. (461) After defendant and his co-conspirators were indicted, defendant left the state. He obtained an Arizona driver’s license under a false name. When stopped for a traffic violation in California, he gave the officer the license with the false name. Nonetheless, the officer determined his true identify and arrested him. The 8th Circuit upheld an enhancement for obstruction of justice based upon defendant’s perjury and his use of the alias. At a pretrial hearing, defendant testified that he did not really know one of his co-conspirators and never made any plans to meet with him. This testimony was contradicted by the trial testimony of several witnesses. This perjury, by itself, would justify an obstruction enhancement. Additionally, the use of the alias supported the enhancement, since defendant provided a materially false statement to a law enforcement officer that significantly obstructed or impeded an investigation. U.S. v. Womack, 985 F.2d 395 (8th Cir. 1993).
8th Circuit finds that defendant intended to harm cooperating co-conspirator. (461) The 8th Circuit affirmed an enhancement for obstruction of justice based on the finding that defendant attempted to procure the bodily injury of a prosecution witness in order to prevent him from testifying. At sentencing, the government presented tapes and transcripts of defendant’s communications from jail after his arrest as well as testimony from the recipient of these communications. The recipient testified as to what defendant said to her and as to what she understood him to mean. Defendant testified that the object of his communications was not to see that the witness was harmed, but to obtain evidence with which to discredit the witness at trial. The district court found that even without the recipient’s testimony, it was obvious from defendant’s communications that “something was afoot.” Furthermore, the court expressly found the recipient’s testimony to be “very credible.” U.S. v. Adipietro, 983 F.2d 1468 (8th Cir. 1993).
8th Circuit upholds obstruction for counterfeiter who attempted to conceal additional bills. (461) Defendant was arrested in a bar after attempting to pass a counterfeit $100 bill. After his arrest, he phoned his brother and instructed him to remove from his apartment an additional $39,600 in counterfeit bills. He challenged an obstruction of justice enhancement on the grounds that the concealment of the $39,600 was not material to the investigation, prosecution or sentencing of the instant offense of passing a single counterfeit bill. The 8th Circuit affirmed the enhancement. The $39,600 was relevant to defendant’s sentencing, and resulted in an enhancement based upon the face value of the currency involved in the offense. Moreover, the additional money was relevant in proving defendant’s knowledge of the counterfeit character of the bill he attempted to pass, particularly since at his arrest he claimed he possessed the counterfeit bill innocently. U.S. v. Lamere, 980 F.2d 506 (8th Cir. 1992).
8th Circuit upholds obstruction enhancement for perjury at trial. (461) The 8th Circuit affirmed an enhancement for obstruction of justice based on defendant’s perjury at trial. A defendant has the right to testify at trial, but not to commit perjury. The record contained ample evidence that defendant committed perjury. At trial, defendant denied he had sexual contact with the victim. However, the victim and a fellow police officer testified that defendant had raped the victim, and genetic evidence indicated that defendant was the father of the victim’s child. U.S. v. Claymore, 978 F.2d 421 (8th Cir. 1992).
8th Circuit affirms obstruction enhancement based on letter requesting friend to get others to commit perjury. (461) Shortly after his arrest, defendant wrote a letter to a friend from jail asking the friend to get in touch with certain people and request that they tell police the same story he told them. The 8th Circuit affirmed an enhancement for obstruction of justice based on the letter. The district court did not believe defendant’s testimony that he was attempting to determine whether the people would tell the truth so that he could use them as defense witnesses. It was irrelevant that the letter contained no threats or intimidation and that the solicitation was not made directly to its targets. U.S. v. Larson, 978 F.2d 1021 (8th Cir. 1992).
8th Circuit upholds obstruction enhancement for defendant who threw cocaine out window. (461) Defendant challenged an enhancement for obstruction of justice, claiming he threw cocaine and money out the window to protect himself from what he thought was a robbery, and not to conceal evidence from the police. The 8th Circuit upheld the enhancement, since the police knocked on the door, announced themselves, and stated that they had a search warrant. U.S. v. Hale, 977 F.2d 455 (8th Cir. 1992).
8th Circuit affirms that false statement to FBI agents significantly impeded investigation. (461) A resident of a halfway house discovered a duffel bag containing marijuana. Defendant, another resident of the halfway house, initially told FBI agents that the duffel bag was not his, but later admitted ownership. The 8th Circuit upheld an enhancement for obstruction of justice based upon the false statements to the FBI agents. The initial denial of ownership of the duffel bag significantly obstructed or impeded justice. Defendant did not admit that the duffel bag belonged to him until after an FBI polygrapher had been flown in to administer a polygraph. Thus, the false statement necessitated a second interview with additional special personnel. U.S. v. Penn, 974 F.2d 1026 (8th Cir. 1992).
8th Circuit affirms obstruction enhancement based upon perjury at trial. (461) Defendant was convicted of structuring financial transactions to avoid the reporting requirement. Despite evidence to the contrary, he testified at trial that the money involved in the transaction was his own money and money he borrowed from a friend, and was not drug proceeds. The 8th Circuit affirmed an enhancement for obstruction of justice based upon defendant’s false testimony at trial. The court rejected defendant’s claim that the enhancement was improper because a reasonable jury could have believed his trial testimony. The enhancement may be applied when “there is a strong finding of perjury based on the trial judge’s independent evaluation of the defendant’s testimony.” Here, noting the jury clearly believed contrary testimony concerning the source of the funds, the district court expressly found that defendant willfully attempted to obstruct justice by giving false testimony at the trial. U.S. v. Patino-Rojas, 974 F.2d 94 (8th Cir. 1992).
8th Circuit declines to consider whether obstructive conduct must be connected to instant offense. (461) Defendant was indicted on firearm and drug charges. Two weeks after the indictment, a DEA agent was in defendant’s neighborhood looking for vehicles that defendant owned that might be subject to forfeiture in connection with the drug charges. During a conversation with the agent, defendant allegedly threatened the agent’s family and girlfriend. Thereafter the drug charges were severed. Defendant was convicted of the firearm offense, and received an enhancement for obstruction of justice for threatening the agent. He argued for the first time on appeal that the obstructive conduct did not occur “during the investigation, prosecution or sentencing of the instant (firearms) offense” as required by section 3C1.1. The 8th Circuit rejected this argument. The prosecution of the firearm charge was pending at the time of the threats, so as a purely temporal matter, the threat did occur during the prosecution of the instant offense. The court refused to consider whether the term “during” connotes some logical relationship between the obstructive conduct and the instant offense. U.S. v. Allmon, 972 F.2d 244 (8th Cir. 1992).
8th Circuit upholds obstruction enhancement for use of an alias on an affidavit of financial status. (461) The 8th Circuit upheld an enhancement for obstruction of justice based upon defendant’s use of an alias on an affidavit of financial status provided to a parole officer. Previous cases have upheld the enhancement even when the police knew the defendant was using an alias. Here, the police did not know defendant’s true identify, and therefore the enhancement was certainly appropriate. U.S. v. Thompson, 972 F.2d 201 (8th Cir. 1992).
8th Circuit upholds obstruction enhancement for perjury at trial. (461) The 8th Circuit affirmed an enhancement for obstruction of justice based upon defendant’s perjury at trial. The district court found defendant committed perjury when he denied having ever met or contacted two co-conspirators or having gone to California for a cocaine transaction. Defendant’s testimony was in direct contradiction with one of his co-conspirator’s testimony and to motel receipts and phone records that placed defendant in California. U.S. v. Swinney, 970 F.2d 494 (8th Cir. 1992).
8th Circuit affirms obstruction enhancement for defendant’s testimony at trial that he never sold heroin. (461) Defendant received an enhancement for obstruction of justice because he testified untruthfully at trial. Defendant argued that he only denied the allegations in the indictment, and such an upward adjustment effectively punished him for testifying at trial. The 8th Circuit upheld the enhancement. Defendant’s testimony that he never sold heroin to a co-conspirator directly contradicted the co-conspirator’s testimony, and was inconsistent with the jury verdict. This testimony alone provided the basis for the upward adjustment. U.S. v. Briggs, 969 F.2d 689 (8th Cir. 1992).
8th Circuit affirms obstruction enhancement based upon perjury at trial. (461) The 8th Circuit affirmed an obstruction of justice enhancement under section 3C1.1, finding no clear error in the district court’s determination that defendant’s testimony was “blatantly untruthful” and that he deserved the enhancement. U.S. v. Johnson, 962 F.2d 1308 (8th Cir. 1992).
8th Circuit affirms enhancements for engaging in conduct evidencing intent to carry out threat and obstruction of justice. (461) Defendant told the mother of a thirteen-year-old girl that he was returning to Nebraska to take the girl away, and that she had been “bought and paid for.” When he returned to Nebraska, he told friends that the authorities were looking for him and that he wanted to paint his car so it would not be recognized. He asked them to hide him until 3:08 p.m. when school let out. Defendant eventually pled guilty to transmitting in interstate commerce a telephone communication containing a threat to kidnap. While incarcerated, defendant attempted to place numerous collect calls to the girl’s residence. Defendant denied that he intended to kidnap the girl. The 8th Circuit upheld an enhancement under section 2A6.1(a) for engaging in conduct evidencing an intent to carry out the threat, and under section 3C1.1 for obstruction of justice. Judge Heaney, dissenting in part, did not believe defendant’s phone calls after his arrest constituted an attempt to obstruct justice. Since the girl’s family never accepted the calls, the court could only speculate as to why defendant called. U.S. v. Hill, 943 F.2d 873 (8th Cir. 1991).
8th Circuit affirms obstruction enhancement based on defendant’s perjury at trial. (461) The 8th Circuit affirmed a two-level enhancement under section 3C1.1 based on the trial judge’s determination that defendant had perjured himself at trial. The court rejected the 4th Circuit’s decision in U.S. v. Dunnigan, 944 F.2d 178 (4th Cir. 1991) reversed, 507 U.S. 87 (1993), which would have disallowed an enhancement based on a defendant’s perjury at trial. Senior Judge Heaney, concurring, believed that Dunnigan expressed the better view and said the case should be reconsidered en banc to determine the extent to which an obstruction enhancement is proper when a defendant testifies at trial and is found to be untruthful. U.S. v. Ogbeifun, 949 F.2d 1013 (8th Cir. 1991).
8th Circuit affirms obstruction enhancement for warning co-conspirators of arrival of police. (461) When police pulled up to the house which defendant and a co-conspirator were approaching on foot, defendant threw down a clear plastic bag and yelled words to the effect of “Run! Police!” Defendant and his co-conspirator were arrested, and the bag contained cocaine base. Defendant contended that an enhancement for obstruction of justice was improper because his throwing down the cocaine base and warning of the arrival of the police did not materially hinder the investigation of the case. The 8th Circuit affirmed the enhancement. Defendant was sentenced on October 19, 1990. The sentencing guidelines in effect on that date did not require that a defendant’s conduct result in a “material hindrance” in order for an obstruction increase to apply. U.S. v. Sparks, 949 F.2d 1023 (8th Cir. 1991).
8th Circuit affirms obstruction enhancement for defendant who produced cancelled checks with altered VINs. (461) Defendant pled guilty to three counts of mail fraud in connection with the sale of three cars with altered odometer readings. The 8th Circuit affirmed an enhancement for obstruction of justice based upon the fact that during the investigation, defendant produced cancelled checks with altered or eliminated vehicle identification numbers. Application note 3(c) to section 3C1.1 authorizes an enhancement when a defendant produces an altered document during an official investigation. U.S. v. Morton, 957 F.2d 577 (8th Cir. 1992).
8th Circuit affirms that government proved that defendant attempted to escape from custody. (461) Defendant received a two-level enhancement for obstruction of justice based on the district court’s finding that defendant attempted to escape from custody. The 8th Circuit affirmed, ruling that the finding was not clearly erroneous. A deputy marshal testified that during the transfer of nine or ten prisoners, including defendant, he saw defendant standing with his hands on an emergency door trying to open it. He further testified that defendant looked surprised to see him, smiled, shrugged his shoulders and then said “I had nothing to lose by trying.” Defendant testified that he had a dislocated ankle, and that he leaned against the emergency doors in order to rest. He also testified that he made the statement, “Well can you blame me for trying,” but that he had no intention of escaping, emphasizing that he was shackled and did not know the building. Giving due regard to the district court’s credibility determinations, the district court’s findings were not clearly erroneous. U.S. v. Miller, 943 F.2d 858 (8th Cir. 1991).
8th Circuit upholds obstruction enhancement and denies acceptance of responsibility for flight and use of an alias. (461) Defendant contended that an enhancement for obstruction of justice was improperly imposed upon him for merely avoiding or fleeing arrest, as discussed in application note 4(d) to guideline section 3C1.1. The 8th Circuit upheld the enhancement, ruling that defendant did more than simply avoid or flee arrest. Defendant left the jurisdiction and remained a fugitive for about a year. During that time he used a driver’s license he had stolen from his brother and obtained work under his brother’s name. He also violated the conditions of his probation imposed by the State of Missouri. At his sentencing hearing, he agreed that his goal had been to remain as far away as possible so that he would not be involved in the proceedings in any way or forced to cooperate or testify against his co-defendants. The 8th Circuit also affirmed that defendant’s year-long fugitive status supported the denial of a reduction for acceptance of responsibility. U.S. v. Lyon, 959 F.2d 701 (8th Cir. 1992).
8th Circuit upholds obstruction enhancement based upon perjury of defendant and his father-in-law. (461) The 8th Circuit upheld an enhancement for obstruction of justice based upon the district court’s finding that defendant perjured himself and suborned the perjury of his father-in-law. The district court did not make its finding based only on jury’s disbelief of the testimony as evidenced by the guilty verdict. Rather, the “experienced” trial judge based his decision upon his personal observation of defendant and his father-in-law at the trial. The findings of perjury were clearly based upon the witnesses’ demeanor and all the evidence presented at trial. Under application note 3(b) to section 3C1.1, obstruction of justice includes committing, suborning or attempting to suborn perjury. U.S. v. Seabolt, 958 F.2d 231 (8th Cir. 1992).
8th Circuit upholds obstruction enhancement for lying at sentencing hearing. (461) The 8th Circuit upheld an enhancement under section 3C1.1 for obstruction of justice based upon the district court’s finding that defendant lied at sentencing for the purpose of obtaining a lighter sentence. The record supported the district court’s finding. Defendant minimized his involvement in the criminal activity, and his testimony varied from the testimony of the government’s witnesses in several material respects. U.S. v. Flores, 959 F.2d 83 (8th Cir. 1992).
8th Circuit affirms obstruction enhancement based on defendant’s threat to keep co-conspirator from going to authorities. (461) The 8th Circuit affirmed an obstruction of justice enhancement based upon defendant’s threat to a co-conspirator to keep her from going to authorities. Note 3 to section 3C1.1 provide that an enhancement is proper when a defendant threatens a co-defendant or witness. U.S. v. Davila, 964 F.2d 778 (8th Cir. 1992).
8th Circuit upholds obstruction enhancement based upon defendant’s solicitation of false testimony from her minor children. (461) Defendant was convicted of various charges in connection with her scheme to collect insurance proceeds by burning down her house. The 8th Circuit affirmed an enhancement under guideline section 3C1.1 based upon defendant’s solicitation of false testimony from her two minor children. The district court’s decision was based upon the credibility of defendant and her children. Their testimony was contradicted on major points by the testimony of a man she solicited to burn the house, and the testimony of his family. The district court had the opportunity to observe the character and demeanor of the witnesses and defendant. U.S. v. Noland, 960 F.2d 1384 (8th Cir. 1992).
8th Circuit affirms obstruction enhancement based upon defendant’s threatening phone call. (461) Defendant was involved in a drug distribution ring. After one of the ring’s street dealers was arrested and pled guilty, defendant called the dealer and suggested that an informant had informed on the dealer. Defendant then suggested that informants would be less of problem if they were killed. The district court found that defendant’s conversation with the dealer was an implicit threat to the dealer concerning what would happen to the dealer if he should inform upon the drug ring. Thus, defendant received a two-level enhancement for obstruction of justice. The 8th Circuit affirmed, agreeing that defendant’s conversation with the dealer constituted a threat, and that such a threat justified an obstruction of justice enhancement. U.S. v. Nunn, 940 F.2d 1148 (8th Cir. 1991).
8th Circuit upholds obstruction enhancement for defendant who threw drugs out car window while being followed. (461) Defendant threw a package of cocaine out a car window while the car was being closely followed by police officers in an unmarked vehicle that was flashing its headlights. Defendant had just purchased cocaine from his supplier for resale to the car’s driver, an undercover police officer. Although defendant claimed he threw the cocaine out the window because he was afraid, the 8th Circuit upheld the district court’s enhancement for obstruction of justice. The new commentary to the guidelines states that attempting to destroy or conceal evidence during arrest alone does not constitute obstruction of justice. However, this did not help defendant, since the guideline in effect when defendant was sentenced had been interpreted to permit an enhancement for a defendant who throws drugs out the window of a vehicle while being approached by police. U.S. v. Watts, 940 F.2d 332 (8th Cir. 1991).
8th Circuit affirms obstruction enhancement based upon false testimony. (461) The 8th Circuit affirmed the district court’s decision to enhance defendant’s offense level for obstruction of justice based upon his false trial testimony. The district court did not rely upon the jury’s disbelief of defendant’s testimony, but expressly found that the testimony was, at least in part, false. Moreover, the district court properly denied defendant a reduction for acceptance of responsibility, for this was not an extraordinary case in which adjustments for both obstruction of justice and acceptance of responsibility were proper. U.S. v. Willis, 940 F.2d 1136 (8th Cir. 1991).
8th Circuit upholds obstruction enhancement despite denial of government’s request to withdraw from plea agreement. (461) Defendant’s plea agreement required defendant to provide truthful information to the government about narcotics activities. After a series of interviews, the government concluded that defendant had been less than forthright, and moved to withdraw from the plea agreement. The district court denied this motion. Defendant contended that a two-level enhancement for obstruction of justice was inconsistent with the district court’s decision not to allow the government to withdraw from the plea. The 8th Circuit disagreed, finding that the two actions were not inconsistent. U.S. v. Duke, 935 F.2d 161 (8th Cir. 1991).
8th Circuit upholds obstruction enhancement for defendant’s escape from custody. (461) Defendant escaped from custody after being arrested for bank robbery. He was convicted of both armed robbery and escape from federal custody. Defendant contended that it was improper to increase his offense for obstruction of justice based upon the escape. The 8th Circuit rejected this argument, but did find that the district court erred in calculating defendant’s offense level. The court did not group the two counts, resulting in a combined adjusted offense level of 20, to which the district court added two points for obstruction of justice. The two counts should have been grouped together under guidelines § 3D1.2(c), which provides for grouping when one count embodies conduct that is treated as an adjustment to another count. This is to prevent “double counting” of offense behavior. Once the counts were grouped, defendant only had a base offense level of 19, which did not reflect any increase based on his escape. Then it was proper to add two points to the offense level for his obstruction of justice. U.S. v. Hankins, 913 F.2d 1256 (8th Cir. 1991).
8th Circuit upholds obstruction enhancement for defendant’s escape from custody. (461) Defendant escaped from custody after being arrested for bank robbery. He was convicted of both armed robbery and escape from federal custody. Defendant contended that it was improper to increase his offense for obstruction of justice based upon the escape. The 8th Circuit rejected this argument, but did find that the district court erred in calculating defendant’s offense level. The court did not group the two counts, resulting in a combined adjusted offense level of 20, to which the district court added two points for obstruction of justice. The two counts should have been grouped together under guidelines § 3D1.2(c), which provides for grouping when one count embodies conduct that is treated as an adjustment to another count. This is to prevent “double counting” of offense behavior. Once the counts were grouped, defendant only had a base offense level of 19, which did not reflect any increase based on his escape. Then it was proper to add two points to the offense level for his obstruction of justice. U.S. v. Hankins, 913 F.2d 1256 (8th Cir. 1991).
8th Circuit upholds obstruction enhancement where defendant threatened cooperating co-defendants. (461) The 8th Circuit upheld a two-point enhancement for obstruction of justice based upon evidence that defendant threatened his co-defendants who were cooperating with authorities. One co-defendant testified at defendant’s trial that defendant stated that the co-defendant would be a “dead man,” if he “narked [defendant] out.” In addition, several proceedings involving the cooperating co-defendants were held in camera. The probation officer testified at defendant’s sentencing that he believed that this was done for safety reasons. Defendant had the opportunity to present witnesses or testimony to rebut the district court’s findings, and did not. U.S. v. Nash, 929 F.2d 356 (8th Cir. 1991).
8th Circuit upholds obstruction of justice enhancement based upon flight from police. (461) Defendant argued that his flight from authorities did not qualify as obstruction of justice under guidelines § 3C1.1. The 8th Circuit rejected this argument. Defendant’s actions were not merely an “instinctual attempt to evade arrest.” Defendant raced down a highway, drove on the shoulders, went around road blocks, and crossed the median with the Highway Patrol in hot pursuit. Defendant collided with an occupied car while trying to cross the median, then drove away from the scene of the accident. He threw torn falsified money orders, a military identification card, and business cards from the windows of his car. He did not stop until confronted by an armed state trooper. Defendant endangered others’ lives and destroyed incriminating evidence, which supported the finding of obstruction of justice under the guidelines in effect on the date defendant was sentenced. U.S. v. Paige, 923 F.2d 112 (8th Cir. 1991).
8th Circuit affirms obstruction of justice enhancement for defendant who threw drugs out of car window during traffic stop. (461) The vehicle defendant was driving was pulled over after police observed a traffic violation. As police approached the vehicle, defendant threw a plastic bag out of the passenger window. The bag contained cocaine, and a subsequent search of the vehicle revealed additional cocaine. The 8th Circuit upheld a sentence enhancement for obstruction of justice based upon the act of tossing the cocaine out of the window. The court rejected defendant’s argument that tossing the cocaine was an impulsive act, similar to flight to avoid apprehension. “Such an act was a deliberate attempt to conceal or destroy material evidence from police . . .” The court also rejected defendant’s argument that he was not attempting to obstruct the “instant offense,” since the “instant offense” was the traffic violation. The term “instant offense” refers to the offense of conviction, in this case possession with intent to distribute cocaine. U.S. v. Dortch, 923 F.2d 629 (8th Cir. 1991).
8th Circuit upholds obstruction enhancement for use of alias despite no loss to government. (461) Defendant received an upward adjustment for obstruction of justice based upon his use of an alias. Defendant did not dispute that he gave arresting officers an alias and later signed another alias on a financial status affidavit at his first appearance before the federal magistrate. Defendant did contend that the enhancement was improper because there was no showing that his use of aliases caused the government to lose any time, manpower or money. The 8th Circuit found that whether the government suffered such a loss was irrelevant, since guideline § 3C1.1 encompasses attempted obstruction, which does not require success in actual obstruction. U.S. v. Yerks, 918 F.2d 1371 (8th Cir. 1990).
8th Circuit holds that misleading investigators about identity of accomplice constituted obstruction. (461) When defendant and her accomplice were arrested, the accomplice gave the police a false name. The police were unable to connect the crime with the accomplice because of the false name, and charges against the accomplice were eventually dismissed. At defendant’s trial, which ended in a mistrial, defendant referred to the accomplice by the false name. When the accomplice’s true identity was finally discovered, defendant and the accomplice were charged in a superseding indictment and convicted. The 8th Circuit found that defendant’s attempts to mislead authorities as to the true identity of her accomplice justified the enhancement for obstruction of justice. Defendant knew the accomplice’s true identity, as evidenced by her address book which was recovered from her motel room. Moreover, there was no evidence that the false name was a legitimate alias for the accomplice, rather than an assumed name designed to mislead investigators. U.S. v. Turpin, 920 F.2d 1377 (8th Cir. 1990).
8th Circuit affirms adjustment for obstruction and denial of reduction for acceptance of responsibility. (461) Defendant appealed the district court’s decision to deny him a two-level reduction for acceptance of responsibility and to assess him a two-level penalty for obstruction of justice. The 8th Circuit affirmed, finding that defendant lied on several occasions concerning the extent of his past drug dealings. This was not only a breach of his plea agreement, thus disqualifying him for an acceptance of responsibility reduction, but was also grounds for an obstruction of justice enhancement. Defendant was not punished for failing to confess the full extent of his drug involvement. That would violate the 5th Amendment. Rather, he was punished for lying, after he had voluntarily agreed in his plea agreement to reveal all of his past drug dealings. U.S. v. Lawrence, 918 F.2d 68 (8th Cir. 1990).
8th Circuit imposes obstruction of justice enhancement on defendant who lied about extent of thefts. (461) Defendant pled guilty to theft of government mail by a postal employee. The government claimed that defendant opened numerous letters and stole a total of $645, while defendant maintained in his stipulation of facts and at his plea hearing that he stole only $90 from three pieces of mail. At sentencing, defendant admitted he had lied about the extent of his thefts in order to minimize his sentence under the guidelines. The 8th Circuit found that the district court erred in not increasing defendant’s offense level for obstruction of justice. Defendant lied during the investigation of his offense, and this lie was material, since under the guidelines, the offense level increases as the value of the stolen property increases. Defendant was not being punished for the exercise of a constitutional right, since there is no constitutional right to lie. Judge Heaney dissented, noting that the government never suggested that defendant’s apparent lies constituted an obstruction of justice until he recanted them at sentencing. U.S. v. Lange, 918 F.2d 707 (8th Cir. 1990).
8th Circuit finds that defendant’s failure to provide handwriting exemplar constituted obstruction of justice. (461) Defendant refused to comply with a court order to provide a handwriting sample. The 8th Circuit held that his defiance of the court order, which was an attempt to conceal his handwriting style, constituted concealing material evidence, and thus justified a two level increase in his offense level under guideline § 3C1.1. U.S. v. Reyes, 908 F.2d 281 (8th Cir. 1990).
8th Circuit holds that defendant’s attempts to postpone trial justified adjustment for impeding administration of justice. (461) Codefendant and defendant made misrepresentations concerning the codefendant’s health in order to obtain a continuance. Several days before trial, defendant fired her attorney and sought another continuance. The 8th Circuit found that this conduct adequately supported an upward adjustment for impeding the administration of justice. Morphew v. U.S., 909 F.2d 1143 (8th Cir. 1990).
8th Circuit finds that perjury justified enhancement for obstruction of justice and finding of no acceptance of responsibility. (461) Although defendant freely admitted her own involvement in a drug conspiracy, she committed perjury by testifying that her husband had nothing to do with it. The court found that this justified the district court’s enhancement for obstruction of justice. The perjury, which was not followed by any repentance or remorse, also justified the district court’s refusal to reduce defendant’s offense level for acceptance of responsibility. U.S. v. Dyer, 910 F.2d 530 (8th Cir. 1990).
8th Circuit holds that obstruction of justice adjustment is proper if defendant perjures himself at trial. (461) Drug defendant received an upward adjustment for obstruction of justice after the sentencing court found he had perjured himself by denying that a co-defendant was aware of a certain cocaine transaction. He claimed that a sentencing court cannot justify putting a defendant in the position of telling a different story than he told at trial in order to receive a more lenient sentence when he would run the risk of admitting perjury. The 8th Circuit disagreed. It found the enhancement was properly based upon a comparison between the defendant’s testimony and the co-defendant’s confession to the probation officer. Thus, the defendant’s fears were unfounded. Because he was properly subjected to an obstruction enhancement, he was not entitled to an acceptance of responsibility adjustment (§ 3E1.1, application note 4). U.S. v. O’Meara, 895 F.2d 1216 (8th Cir. 1990).
8th Circuit upholds enhancement for obstruction of justice for misleading agents and threatening a witness. (461) Defendant pled guilty to two counts of counterfeiting and the court enhanced the offense level for obstruction of justice. On appeal defendant argued the adjustment was based solely on uncorroborated hearsay and evidence that lacked reliability. The evidence showed defendant tried to mislead Secret Service agents through false information as to the source of his knowledge and by advising them not to go to the trailer where the counterfeit money was being made. Other evidence showed defendant threatened a witness. The 8th Circuit found evidence of the threat reliable because the person who relayed the threat possessed a copy of the complaint and defendant was the only person other than court personnel who had a copy of the complaint. Based on these factors, the enhancement was affirmed. U.S. v. Penson, 893 F.2d 996 (8th Cir. 1990).
8th Circuit holds that giving a false name to arresting officer permits adjustment for obstruction of justice. (461) The 8th Circuit held that it is proper to enhance a defendant’s offense level for obstruction of justice when he gives a false name to an arresting officer. False statements may constitute obstruction of justice even if they occur outside a judicial proceeding. The government need not show it was prejudiced. Section 3C1.1 also encompasses attempted obstruction. Additionally, although the defendant’s name was not material for conviction purposes, it was material for sentencing purposes. A successful attempt to hide one’s true identity may result in an improper criminal history score. Finally, the district court’s finding that the defendant possessed the requisite criminal intent was not clearly erroneous. Thus, the enhancement was proper. U.S. v. Patterson, 890 F.2d 69 (8th Cir. 1989).
8th Circuit holds requesting co-defendant’s to keep silent constitutes obstruction of justice. (461) Drug defendant had requested that his co-defendant’s not mention the involvement of two individuals when making statements to law enforcement officials. The 8th Circuit affirmed the district court’s granting of a two level adjustment under § 3C1.1. The court held that the defendant’s conduct clearly fell within the boundaries of the application notes to the obstruction of justice section. U.S. v. Holland, 884 F.2d 354 (8th Cir. 1989).
8th Circuit finds evidence was sufficient to support finding that defendant aided and abetted obstruction of justice. (461) Defendant received a 2 point increase in her offense level for obstruction of justice and she appealed. The 8th Circuit affirmed the adjustment, finding no clear error in the district court’s findings that she had participated in an argument with an informant and had communicated her suspicions concerning the informant’s identity to her husband. The enhancement was proper. U.S. v. Williams, 879 F.2d 454 (8th Cir. 1989).
8th Circuit finds giving a false name at time of arrest constituted obstructing judicial proceedings. (461) Defendant’s offense level was increased by two points under § 3C1.1 because he willfully obstructed judicial proceedings by giving authorities a false name at the time of the arrest. It took almost four weeks for the police to find out his true name. Under these facts, the finding was not clearly erroneous. U.S. v. Brett, 872 F.2d 1365 (8th Cir. 1989).
9th Circuit finds false testimony at bond hearing can be obstruction. (461) Defendant was charged with submitting fraudulent travel vouchers to the Veterans Administration. Shortly after his release, defendant was charged with domestic violence, and he was arrested for violating a condition of his appearance bond. At the bond hearing, defendant denied physically assaulting his girlfriend, but three witnesses testified that he had assaulted her. The court found that defendant had committed the assault. At his sentencing for submitting fraudulent travel vouchers, the district court enhanced defendant’s offense level by two under § 3C1.1 for obstruction of justice at the bond hearing. The Ninth Circuit held that a bond revocation hearing is part of the prosecution on the federal offense, that defendant gave materially false testimony, and that the increase was proper. U.S. v. Taylor, __ F.3d __ (9th Cir. April 18, 2014) No. 13-30040.
9th Circuit upholds obstruction enhancement based on false trial testimony. (461) At defendant’s trial for tax evasion, he testified that he could not have signed a false loan application because he was out of town on the day it was signed. Currency transaction reports showed that defendant cashed checks on the same dates and was in town to sign the loan application. Based on defendant’s trial testimony, the district court imposed an obstruction of justice enhancement. The Ninth Circuit upheld the district court’s finding that defendant committed perjury during his testimony. U.S. v. Kahre, 737 F.3d 554 (9th Cir. 2013).
9th Circuit upholds obstruction enhancement for fleeing before charges brought. (461) After being convicted of transportation of child pornography, defendant was allowed to remain on pretrial release. Acting on a tip, a Pretrial Services Officer asked defendant if he had any firearms. Defendant initially denied having the firearms, but a week later admitted to the officer that he had the guns. Defendant then fled to Mexico. Based on his possession of the firearms, defendant was convicted of possession of a firearm by a convicted felon. At sentencing, the district court enhanced defendant’s offense level by two under § 3C1.1 for obstruction of justice because he failed to appear for the hearing on the violation of his pretrial conditions, lied to the Pretrial Services Officer, and fled to Mexico. The Ninth Circuit held that the district court properly imposed the obstruction-of-justice enhancement even though some of defendant’s conduct was related to his child pornography prosecution. U.S. v. Manning, 704 F.3d 584 (9th Cir. 2012).
9th Circuit applies obstruction enhancement even if defendant was unaware of criminal investigation. (461) Defendant fraudulently withdrew about $16,000 from a bank. When the bank questioned these withdrawals, defendant claimed that they had been made by a third person. When the bank rejected this claim, defendant filed a civil lawsuit against the bank. As a result, the bank referred the matter to the FBI. During that lawsuit, defendant gave perjured testimony in a deposition. At defendant’s sentencing for bank fraud, the district court increased defendant’s sentence under § 3C1.1 for obstruction of justice based on that conduct. The Ninth Circuit held that the district court had an adequate factual basis for applying the obstruction-of-justice enhancement because defendant gave perjured testimony under oath after the FBI had initiated its investigation. The court rejected defendant’s argument that the district court could not apply the enhancement because he did not know of a pending criminal investigation. U.S. v. Gilchrist, 658 F.3d 1197 (9th Cir. 2011).
9th Circuit upholds finding that testimony constituted material perjury, not mere denial of guilt. (461) Defendant participated in an assault on an African-American man. Based on the assault, he was charged with violating the victim’s civil rights, in violation of 18 U.S.C. §§ 241 and 245. At trial, defendant denied that he and his accomplices assaulted the victim because of his race or that he had directed racial slurs at the victim shortly before the attack. The jury rejected that testimony and convicted defendant. The district court enhanced defendant’s sentence under § 3C1.1 for obstruction of justice based on defendant’s testimony at trial. The court found that defendant had committed perjury and that his false testimony was material to whether defendant acted with a racial motivation. The Ninth Circuit held that the district court adequately supported its decision to enhance defendant’s sentence and that defendant’s testimony was not merely a “general denial of guilt.” U.S. v. Armstrong, 620 F.3d 1172 (9th Cir. 2010).
9th Circuit upholds finding that testimony was material perjury, not mere denial of guilt. (461) Defendant participated in an assault on an African-American man. Based on the assault, he was charged with violating the victim’s civil rights, in violation of 18 U.S.C. §§ 241 and 245. At trial, defendant denied that he and his accomplices assaulted the victim because of his race or that he had directed racial slurs at the victim shortly before the attack. The jury rejected that testimony and convicted defendant. The district court enhanced defendant’s sentence under § 3C1.1 for obstruction of justice based on defendant’s testimony at trial. The court found that defendant had committed perjury and that his false testimony was material to whether defendant acted with a racial motivation. The Ninth Circuit held that the district court adequately supported its decision to enhance defendant’s sentence and that defendant’s testimony was not merely a “general denial of guilt.” U.S. v. Armstrong, 620 F.3d 1172 (9th Cir. 2010).
9th Circuit says obstruction of civil investigation preceding criminal case may support obstruction enhancement. (461) During a civil audit of defendant’s business by the IRS, defendant provided the auditor with phony promissory notes in an effort to show that funds flowing into the business came from loans and were not income. Later, defendant was convicted of filing a false tax return and other offenses. At sentencing, the district court increased defendant’s offense level under § 3C1.1 of the 2001 Guidelines because defendant obstructed the IRS audit. At the time, § 3C1.1 provided that a defendant’s offense level should be increased for obstruction if he impeded the administration of justice during the course of the investigation, prosecution, or sentencing of the offense of conviction. The Ninth Circuit held that under the applicable version of the Guidelines obstruction of a civil investigation of the same conduct that leads to a criminal prosecution may support an enhancement for obstruction of justice. U.S. v. Yip, 592 F.3d 1035 (9th Cir. 2010).
9th Circuit upholds obstruction enhancement resting on use of foreign injunction against witness. (461) Defendant distributed obscene images through e-mail using a company based in Mauritius, and he was charged with interstate transmission of obscene material. Shortly before trial, defendant obtained an injunction in the courts of Mauritius that barred a government witness from testifying as to the affairs of defendant’s company. As a result, the witness declined to testify. When the district court confronted defendant’s counsel over the injunction, he agreed to have the injunction lifted. At sentencing, the district court enhanced defendant’s sentence under § 3C1.1 on the ground that defendant’s effort to prevent the witness’s testimony constituted obstruction of justice. The Ninth Circuit agreed that defendant’s conduct amounted to an effort to threaten or intimidate the witness and affirmed the enhancement. U.S. v. Kilbride, 584 F.3d 1240 (9th Cir. 2009).
9th Circuit rejects claim that mental illness negated ability to obstruct justice. (461) The district court found that defendant obstructed justice under § 3C1.1 at his fraud trial by presenting several false, material statements and by attempting to place the blame on an accomplice who played a minor role in the scheme. On appeal, defendant argued that he could not have willfully obstructed justice because he suffered from a mental condition that prevented him from acting willfully. In support, he offered an evaluation from a psychologist, who concluded after one meeting with defendant that defendant had “unrealistic ideas about reality” and showed signs of dementia. The Ninth Circuit held that defendant had failed to show that he could not act willfully. U.S. v. Garro, 517 F.3d 1163 (9th Cir. 2008).
9th Circuit upholds finding that defendant committed perjury at marijuana cultivation trial. (461) At defendant’s trial for cultivating marijuana, he testified that he had been recruited to pick tomatoes, that he had arrived at the site of the marijuana grow for the first time the night before his arrest there, and that he had no knowledge of or involvement in the marijuana cultivation. The jury rejected this testimony and convicted defendant. At sentencing, the district court found that defendant committed perjury at trial and enhanced his sentence under § 3C1.1. The Ninth Circuit agreed that the defendant’s testimony was false, material, and willful, and affirmed. U.S. v. Cordova-Barajas, 360 F.3d 1037 (9th Cir. 2004).
9th Circuit upholds obstruction enhancement for false testimony at civil rights trial. (461) The obstruction adjustment, § 3C1.1, requires proof that defendant willfully obstructed justice and that the obstruction was material. At his trial for civil rights violations, defendant falsely testified that he was at work when the other defendants were at a party where they planned to attack minorities using a public park. The Ninth Circuit held that defendant’s testimony was willful because he knew that his employment records would rebut his testimony. The court also found the testimony to be material because presence at the party was probative of defendant’s participation in the effort to threaten the minorities using the park. U.S. v. Allen, 341 F.3d 870 (9th Cir. 2003).
9th Circuit affirms that defendant committed perjury in testimony about firearms. (461) At sentencing, defendant sought a downward departure on the ground that the firearms were possessed solely for lawful sporting purposes or collection under guideline § 2K2.1(b)(2). He testified that he did not know how the loaded weapons got next to his bedside, on top of his television set, in his closet and in his truck he was driving. The district court found that this testimony was patently false and that defendant committed perjury. On appeal, the Ninth Circuit affirmed, holding that his testimony was material because “[i]f the court believed that [defendant] did not know how the weapons got to the locations, it could have led the court to conclude that the weapons were kept for sporting and collection purposes.” U.S. v. Hinostroza, 297 F.3d 924 (9th Cir. 2002).
9th Circuit holds interference with state investigation supports obstruction enhancement. (461) After participating in a murder, defendant became the focus of a state investigation. During the investigation, he solicited another man to give false information to state law enforcement officers, and he personally gave false information to state investigators. At his sentencing for Hobbs Act robbery and using or carrying a firearm during a crime of violence, the district court enhanced his sentence under § 3C1.1 for obstruction of justice. The Ninth Circuit affirmed. The enhancement was appropriate because the state officers were investigating the offense that formed the basis for his federal conviction. U.S. v. Pizzichiello, 272 F.3d 1232 (9th Cir. 2001).
9th Circuit says submitting false financial affidavit to obtain counsel can support obstruction adjustment. (461) When defendant made his initial appearance in federal court, he executed a financial affidavit to support his request for appointed counsel listing a $35,000 “business debt” with a monthly payment of $670. However, after he pled guilty to tax charges, he told the probation office that he had purchased a bar in 1997 and that he earned about $1,300 per month from the bar. He reported that the bar closed down the day after his arrest. At sentencing, the district court increased his offense level by two levels for obstruction of justice under § 3C1.1 for his failure to disclose his ownership interest in the bar in his financial affidavit. On appeal, the Ninth Circuit affirmed, holding that the submission of a false financial affidavit to a magistrate judge for the purpose of obtaining appointed counsel is sufficiently related to the offense of conviction to support the adjustment. The information was material whether or not it actually affected the Judges’ decision to provide counsel. U.S. v. Hernandez-Ramirez, 254 F.3d 841 (9th Cir. 2001).
9th Circuit upholds obstruction increase where defendant lied to probation officer about his identity. (461) Defendant was arrested driving a load of marijuana into the United States from Mexico. Upon arrest, he falsely claimed he was David Wayne Bess, and presented a copy of a birth certificate and a California identification card in that name. Later, when he pleaded guilty to importing marijuana, he testified that “Bess was his true name.” After his plea, he continued to lie about his identity to the probation officer during a presentence interview, providing details about his assumed family life and his twin brother. Seven months after arrest, the probation officer finally learned defendant’s true name from defense counsel. The district court increased his sentence by two levels under § 3C1.1 for obstructing the probation officer’s investigation. On appeal, the Ninth Circuit affirmed, holding that the November 1, 1998 amendment allowing consideration of obstructive conduct in a closely related case did not affect the existing rule that false statements about identity are material to the offense of conviction and therefore are appropriate for an obstruction increase. U.S. v. Tellez Verdin, 243 F.3d 1174 (9th Cir. 2001).
9th Circuit finds defendant obstructed justice by testifying falsely. (461) In order to find that a defendant’s perjury obstructed justice, the district court must find that the defendant’s testimony was (1) false, (2) material and (3) willful.” U.S. v. Shannon, 137 F.3d 1112, 1119 (9th Cir. 1998). The district court’s determination that a defendant obstructed justice is reviewed for clear error. Here, the district court found that defendant committed perjury when he testified that he did not participate in planning the carjacking, that his co-defendant assaulted him with a gun and raped him; that the co-defendant was the one who beat the victim; and that he never saw the police chief in the Carlin truck stop, but fled because he wanted to escape from the co-defendant. The district court also addressed the requirements of willfulness and materiality. The Ninth Circuit held that the district court’s findings were not clearly erroneous. U.S. v. Morgan, 238 F.3d 1180 (9th Cir. 2001).
9th Circuit upholds obstruction increase for perjury before the grand jury. (461) In order to impose the obstruction enhancement, the district court must find (1) false testimony, (2) on a material matter, (3) with willful intent. U.S. v. Robinson, 63 F.3d 889, 891 (9th Cir. 1995). Viewing defendant’s testimony in a light favorable to him, the Ninth Circuit held that the district court did not clearly err in imposing a two-level increase for obstruction of justice. “The record adequately reflects, as the district court found, that [defendant] committed perjury before the grand jury.” U.S. v. Tam, 240 F.3d 797 (9th Cir., 2001).
9th Circuit says finding of materiality was sufficient for obstruction increase. (461) Defendant did not object to the presentence report’s two level increase for obstruction of justice under guideline § 3C1.1. However, after the court had ruled on the basic offense level, including the obstruction enhancement, the government discussed the obstruction of justice increase, and defense counsel very briefly said “the obstruction points are not material.” The district court responded that the “whole intent” of defendant’s testimony at his co-defendant’s trial was to demonstrate that the co-defendant “was an absolute dupe who knew nothing of what was going on, and that plainly gets us into the obstruction of justice aspect.” The Ninth Circuit held that this response sufficiently met the district court’s obligation under U.S. v. Dunnigan, 507 U.S. 87, 95 (1993), to find materiality, because it plainly indicated that defendant’s testimony went to the heart of the case against the co-defendant. Although the district court did not discuss the falsity or willfulness requirement of Dunnigan, this was because defendant did not object to those aspects. U.S. v. Rojas-Millan, 234 F.3d 464 (9th Cir. 2000).
9th Circuit upholds obstruction increase for threatening a witness. (461) Application Note 3 to § 3C1.1 says the obstruction enhancement encompasses “threatening, intimidating, or otherwise unlawfully influencing a … witness … or attempting to do so.” Here, defendant admitted that he supplied Strahan with methamphetamine and that he learned that Strahan had been arrested soon afterward. An officer testified that he had listened to a telephone answering machine tape on which defendant called Strahan a “narc.” The officer said the tape was “very menacing, it was very profane, very foul language, cursing, threatening to – and I believe the words were ‘thrash you within an inch of your life.’” The district judge made a factual finding that defendant attempted to threaten or intimidate Strahan because he might have cooperated with police. The Ninth Circuit ruled that this was not error. U.S. v. Scheele, 231 F.3d 492 (9th Cir. 2000).
9th Circuit upholds obstruction increase where court found defendant lied at trial. (461) The district court explicitly stated at sentencing that the only question regarding the obstruction of justice enhancement centered on defendant’s denial at trial that he had stolen mail from the victim’s mail box. The court then found “by independent evidence that the defendant clearly lied when he testified that he didn’t steal the mail.” “There’s no question in my mind that he lied.” The Ninth Circuit noted that defendant’s testimony was contradicted by testimony from the victim and another resident of the apartment, as well as significant circumstantial evidence. “The district court’s finding therefore was not clear error.” U.S. v. Sager, 227 F.3d 1138 (9th Cir. 2000).
9th Circuit upholds obstruction increase despite late findings and cutting off allocution. (461) At the sentencing hearing, defendant argued that the enhancement for obstruction of justice was unwarranted. The district judge eventually cut off his argument on this point. On appeal the Ninth Circuit found no violation of due process, noting that defendant’s right to allocution “permits him to speak so that he may influence whether the district court chooses the lower, middle or higher end of the guideline range, not so he can argue the legal merits of a particular guideline.” In addition, the district judge did not make the required findings to support the obstruction increase until he filed written findings five days after sentencing. However the Ninth Circuit noted that Fed. R. Crim. P. 32(c)(3)(D) does not specifically require that the findings be made at the sentencing hearing. U.S. v. Daas, 198 F.3d 1167 (9th Cir. 1999).
9th Circuit upholds obstruction increase where district court found that perjury was intentional. (461) The perjury enhancement grew out of the defendant’s alibi defense that the truck in which he had been stopped belonged to another person and had been left with the defendant to use. Defendant claimed that the evidence found in the truck therefore belonged not to him, but to the truck owner. The truck’s owner testified for the government that the alibi was not true. The defendant tried to elaborate on the alibi in his trial testimony, but ended up contradicting himself. The district court found the defendant’s alibi evidence was material, false, and willful. The Ninth Circuit upheld this factual finding. U.S. v. Mattarolo, 209 F.3d 1153 (9th Cir. 1999).
9th Circuit finds obstruction where defendant created false affidavits and tampered with witnesses. (461) The district court found by a preponderance of the evidence that defendant willfully created affidavits with the expectation that they would mislead the court. There was also evidence, although controverted, that defendant attempted to improperly influence a witness by offering cash and that he intimidated a witness. Based on this evidence, the Ninth Circuit held that the district court could properly find by a preponderance of the evidence that defendant obstructed justice. U.S. v. Tidwell, 191 F.3d 976 (9th Cir. 1999).
9th Circuit finds obstruction in false statements to state investigators of case later filed federally. (461) The obstruction of justice guideline, § 3C1.1, requires a finding that the defendant willfully provided a materially false statement that actually obstructed the official investigation of the present federal offense. In this case, defendant intentionally submitted false prospectuses in response to an investigative subpoena issued by Arizona officials. Defendant argued that these false statements did not constitute obstruction under 3C1.1 because he did not obstruct the federal investigation. The Ninth Circuit rejected the argument, noting that the state agency was investigating the same offense that was later filed federally, i.e., defendant’s Ponzi scheme. The panel agreed with the Second Circuit’s decision in U.S. v. Zagari, 111 F.3d 307, 328-329 (2d Cir. 1997), that if the defendant “willfully and materially impeded the search for justice in the instant offense,” the enhancement should apply, even if the obstruction occurred before state rather than federal law enforcement officials. U.S. v. Luca, 183 F.3d 1018 (9th Cir. 1999).
9th Circuit affirms obstruction increase for perjury at trial. (461) The district court may enhance a sentence for obstruction of justice under § 3C1.1 if the defendant’s testimony was false, material, and willful. U.S. v. Shannon, 137 F.3d 1112, 1119 (9th Cir.) (per curiam). “Mere dispute or disagreement as to a defendant’s perception of facts, without more, should not give rise to a charge of perjury in the context of sentencing.” Id. at 1119 n.3. Here, the district court saw the defendant testify and supported the obstruction of justice enhancement with the proper findings of fact. The Ninth Circuit held that the record supported those findings. U.S. v. Cooper, 173 F.3d 1192 (9th Cir. 1999).
9th Circuit holds falsifying a handwriting exemplar is obstruction of justice. (461) Agreeing with U.S. v. Taylor, 88 F.3d 938, 943-45 (11th Cir. 1996), U.S. v. Yusufu, 63 F.3d 505, 514-15 (7th Cir. 1995), and U.S. v. Valdez, 16 F.3d 1324, 1335 (2d Cir. 1994), the Ninth Circuit held that falsifying a handwriting exemplar constitutes obstruction of justice under guideline § 3C1.1. The panel rejected defendant’s argument that the district court should have made specific findings as required by U.S. v. Dunnigan, 507 U.S. 87 (1993). Dunnigan was a perjury case, and the district court here made appropriate findings for a handwriting case. U.S. v. Flores, 172 F.3d 695 (9th Cir. 1999).
9th Circuit finds obstruction where defendant caused two-day delay in locating kidnapped child. (461) Defendant and her brother lured their eleven-year-old niece from her foster parent’s home, drove her to the Las Vegas airport and put her on a plane to Florida under a false name. When defendant was questioned by the FBI, she adamantly denied any knowledge of the child’s disappearance and falsely stated that her brother was not involved in the disappearance. In addition, she suggested that the girl’s biological father had kidnapped her. On the same day, defendant told her relatives in Florida to move the girl to a friend’s home to evade the police. After repeated questioning, defendant eventually helped the police to find the girl two days after she was kidnapped. Defendant pled guilty to conspiracy to commit an international parental kidnapping of a minor, and her sentence was increased by two levels for obstruction of justice under § 3C1.1. On appeal, the Ninth Circuit affirmed, holding that defendant’s purposeful conduct “created an actual impediment or obstruction to the government’s efforts to locate” the girl. Although a two-day delay in an investigation may not always warrant an obstruction enhancement, “the delay in this case placed the well being of a child at risk.” U.S. v. McNally, 159 F.3d 1215 (9th Cir. 1998).
9th Circuit upholds finding that defendant committed perjury at trial. (461) The district court made special findings that defendant’s testimony was false, material and willful. The district court adopted the government’s summary of four specific falsehoods and three general falsehoods. In doing so, the court stated that it was “firmly convinced in its own mind that defendant was knowingly and deliberately testifying falsely¾in order to deflect all inferences of her own culpability.” The findings were sufficient under U.S. v. Dunnigan, 507 U.S. 87, 95 (1993), to support the two-level increase for obstruction of justice under § 3C1.1. U.S. v. Shannon, 137 F.3d 1112 (9th Cir. 1998).
9th Circuit says depositing $280,000 in Swiss bank obstructed tax investigation. (461) On December 3, 1991, defendant was notified that the IRS’s civil audit was being converted to a criminal tax investigation. Less than three weeks later, defendant’s wife transferred $280,000 to a Swiss bank account. The district court increased defendant’s sentence by two levels under 3C1.1 for obstruction of justice. On appeal, the Ninth Circuit affirmed, ruling that the fact that the government eventually learned of the $280,000 did not change the fact that defendant’s transfer of the funds to a Swiss bank was a “classic attempt to “conceal evidence . . . material to an official investigation.” U.S.S.G. 3C1.1 comment. (n.3(d)) (emphasis by the court). U.S. v. Shetty, 130 F.3d 1324 (9th Cir. 1997).
9th Circuit finds obstruction of justice despite defendant’s private polygraph test. (461) At the original sentencing hearing, defendant tried unsuccessfully to show that the document he submitted during the trial was not forged. He offered the testimony of a handwriting expert and a private polygraph examination. After his sentence was reversed on other grounds, the district court again enhanced his sentence for obstruction of justice despite defendant’s submission of the results of a second polygraph examination. In this second appeal, the Ninth Circuit affirmed the enhancement, finding that the second polygraph report was too inconclusive to be probative. Furthermore, the record remained “replete with examples of [defendant] using forged documents as a means of evading detection.” U.S. v. Stein, 127 F.3d 777 (9th Cir. 1997).
9th Circuit upholds obstruction of justice for false testimony by doctor in fraud case. (461) The enhancement for obstruction of justice was based on four examples of “knowingly false testimony” pointed to by the government at sentencing and adopted by the district court. The district court’s finding that defendant committed perjury in testifying was a factual determination which the Ninth Circuit found no reason to disturb. U.S. v. Rutgard, 116 F.3d 1270 (9th Cir. 1997).
9th Circuit says defendant’s attempt to signal during testimony was obstruction of justice. (461) Two witnesses whom the district court found to be credible testified that defendant had signaled his brother during the brother’s testimony. The Ninth Circuit held that such signaling qualifies as an obstruction of justice under guideline § 3C1.1, commentary note 3. The prosecution was not required to prove that the defendant actually obstructed justice; “a showing of attempt is sufficient to warrant the two level increase.” U.S. v. Sayetsitty, 107 F.3d 1405 (9th Cir. 1997).
9th Circuit upholds obstruction based on inference from circumstantial evidence. (461) Defendant was convicted of bankruptcy fraud and the district court added two levels for obstruction of justice because she participated in filing a fraudulent bankruptcy petition in the name of a California Department of Insurance investigator who had been investigating defendant’s cohorts for insurance and check fraud. The district court found that the fraudulent bankruptcy petition was filed by defendant’s cohorts “with an intent to disrupt the life of [the investigator].” Defendant’s fingerprint was found on the bankruptcy petition and the district court inferred from the close business and professional relationships between defendant and her cohorts that she was a knowing participant. The Ninth Circuit held that “the district court’s inference from the circumstantial evidence presented was reasonable.” U.S. v. Welch, 103 F.3d 906 (9th Cir. 1996).
9th Circuit upholds obstruction for false statements at suppression hearing. (461) The district court found that defendant Cuddy made false statements at his suppression hearing when he suggested that he was unaware that his phone calls were being monitored at the detention center. The district court relied on statements he made during his phone conversations such as “these calls are being monitored,” and “they monitor all our calls so . . . if you ask me a question, I can’t answer it. You’ll have to understand.” At the suppression hearing, defendant was evasive in his answers, “as if he was specifically attempting to suggest that he was not aware the detention center was taping his calls without specifically saying he was not aware they were taping his calls.” The district court did not err in finding that defendant made false statements at his suppression hearing and that he therefore obstructed justice. U.S. v. Sherwood, 98 F.3d 402 (9th Cir. 1996).
9th Circuit upholds obstruction enhancement for conspiracy to escape from jail. (461) While he was in custody awaiting trial, defendant conspired with others to escape from the federal prison. The Ninth Circuit held that this clearly demonstrated defendant’s obstructive conduct to avoid prosecution and sentencing in the present case. The fact that he did not actually escape does not effect the application of § 3C1.1. U.S. v. Wills, 88 F.3d 704 (9th Cir. 1996).
9th Circuit affirms that defendant was driver of van during high speed chase. (461) The district court’s factual findings underlying a sentence are reviewed for clear error. Review under the clearly erroneous standard is “significantly deferential, requiring a definite and firm conviction that a mistake has been committed.” Here, two police officers testified that defendant was the driver of the van. The trial judge found both officers’ testimony to be credible despite some inconsistencies. The discrepancy between the police reports and the officers’ testimony raised some doubt about whether or not defendant was the driver of the van. But the judge’s finding that defendant was the driver was not clearly erroneous. Therefore the two level increase for reckless endangerment during flight under Guideline § 3C1.2 was proper. U.S. v. Reed, 80 F.3d 1419 (9th Cir. 1996).
9th Circuit says lying to pretrial services officer was obstruction of justice. (461) Defendant told the pretrial services officer in his bail interview that he had no prior convictions, despite a long criminal record. On the advice of counsel he declined to discuss his criminal history with the probation officer. The co-defendant lied to the probation officer about ever having used an alias and also about when she first entered the United States. The district court increased both offense levels for obstruction of justice and refused to depart downward for acceptance of responsibility. On appeal, the Ninth Circuit affirmed, holding that providing materially false information to a pretrial services officer is obstruction of justice regardless of whether the falsehood actually obstructed justice. The fact that both defendants obstructed justice justified the court in denying credit for acceptance of responsibility. U.S. v. Magana-Guerrero, 80 F.3d 398 (9th Cir. 1996).
9th Circuit upholds obstruction adjustment for threatening witness and striking her in the face. (461) The district court increased defendant’s offense level by two levels under § 3C1.1 for obstruction of justice, finding (1) defendant went to the witness’s residence and told her that if the case went to jury trial it was going to be a “very expensive year” for the witness; (2) defendant had at least two conversations with the witness which “involved her continuing cooperation with the government”; (3) during one of those conversations, defendant struck the witness in the face; and (4) defendant sued the witness for malicious prosecution based on the assault, even though he was not prosecuted for the incident. The Ninth Circuit upheld these factual findings were even though it viewed the witness’s testimony with caution because she received benefits from the government for testifying, was allegedly an alcoholic, and admitted being a drug user. The witness’s testimony was corroborated in part by another witness, by a pretrial restraining order, and by information relating to defendant’s arrest for retaliating against the witness. U.S. v. Karterman, 60 F.3d 576 (9th Cir. 1995).
9th Circuit says 12-hour standoff with 70 officers was “reckless endangerment during flight.” (461) Defendant was taken into custody after a twelve hour standoff with up to seventy law enforcement officers. During the standoff he swore he would not be taken into custody and threatened to kill anyone who tried to arrest him. He also threatened to kill a federal judge and prosecutor, and their families. The 9th Circuit did not hesitate to characterize this prearrest showdown as a “course of resisting arrest,” within the meaning of §3C1.2. Defendant knowingly created a grave risk that someone would be injured or killed. Thus, he “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer,” within the meaning of §3C1.2. U.S. v. Campbell, 42 F.3d 1199 (9th Cir. 1994).
9th Circuit finds obstruction in defendant’s attempts to distance himself from his codefendants. (461) Defendant argued that the district court did not make sufficient findings to support the enhancement for obstruction of justice. The 9th Circuit rejected the argument, noting that it was not necessary for defendant’s false statements to actually mislead or impede the machinery of justice, because § 3C1.1 encompasses “attempted” obstruction of justice. Defendant’s persistent attempts to distance himself from his co-defendants began with his statements to investigating officers in the park and concluded with his testimony at trial. There was no need for the court to explain the obvious potential these falsehoods had for obstruction of justice. Moreover, the court made sufficient findings under U.S. v. Dunnigan, 113 S.Ct. 1111 (1993) because it found that there was (1) false testimony, (2) on a material matter, and (3) with willful intent. U.S. v. Ancheta, 38 F.3d 1114 (9th Cir. 1994).
9th Circuit upholds adjustment for attempt to impeach witness with forged document. (461) The 9th Circuit upheld an adjustment for obstruction of justice under § 3C1.1 based on defendant’s attempt to impeach a witness with a forged document. Notwithstanding defendant’s handwriting expert’s testimony and defendant’s privately administered polygraph exam, the trial court reasonably found the document had knowingly been forged and was willfully submitted by defendant, especially considering defendant’s pattern of using forged documents to avoid detection. U.S. v. Stein, 37 F.3d 1407 (9th Cir. 1994).
9th Circuit upholds obstruction where defendants lied about importing opium as medicine. (461) At sentencing, both defendants claimed that they brought the opium into the country as medicine, to give relief to their ill, aging father. However, their stories differed from each other and changed over time. The judge commented that the defendants were “lying right through their teeth,” but offered to grant a continuance to permit them to provide additional evidence. They declined, and the judge increased their sentences by two levels for obstruction of justice under §3C1.1. On appeal, the 9th Circuit affirmed, holding that the “obstruction was material, because the point of the lie was to obtain a downward sentencing departure.” U.S. v. Khang, 36 F.3d 77 (9th Cir. 1994).
9th Circuit finds obstruction for refusal to submit to court-ordered psychiatric examination. (461) The district court increased defendant’s base offense level by two levels for obstruction of justice because he refused to submit to a court-ordered psychiatric examination. On appeal, defendant argued that the information would not have assisted in his prosecution, and therefore he did not impede the prosecution. The 9th Circuit rejected the argument, noting that the psychiatric testimony which defendant refused “was necessary for the prosecution to respond properly to his defense of diminished capacity.” He claimed that his diminished capacity was due to five brain surgeries which led to mental impairments that negated specific intent. Thus the psychiatric evaluation was material, and the adjustment for obstruction of justice was proper. U.S. v. Fontenot, 14 F.3d 1364 (9th Cir. 1994).
9th Circuit finds defendant waived obstruction argument by not raising it in opening brief. (461) The district court increased the defendant’s offense level by 2 levels, finding he provided false and misleading statements to federal agents and perjured himself at trial. The 9th Circuit found defendant waived his obstruction of justice challenge by not raising it in his main brief because a party may not make new arguments in a reply brief. Moreover, even if the argument had been properly raised, the district court did not err in adding the 2 levels. U.S. v. Cox, 7 F.3d 1458 (9th Cir. 1993).
9th Circuit sustains conclusion that defendant’s denials constituted perjury. (461) Defendant was convicted of making, possessing and transporting a sawed-off shotgun after a jury trial in which he denied doing so. The Ninth Circuit sustained the district court’s conclusion that defendant’s denials constituted perjury justifying the increase for obstruction. U.S. v. Calise, 996 F.2d 1019 (9th Cir. 1993).
9th Circuit holds that absconding from pretrial release merits obstruction enhancement. (461) After he pled guilty but before sentencing, defendant was permitted to remain at large on condition that he reside at a community treatment center. He failed to return to the treatment center and robbed another bank before he was arrested two weeks later. The district judge adjusted his offense level upward by two points for obstruction of justice because he escaped from “custody” pursuant to U.S.S.G. 3C1.1(App. Note 3(e)). On appeal, the 9th Circuit affirmed, ruling that for purposes of the obstruction guideline, “custody” need only involve some degree of official control over a defendant such that a subsequent evasion amount to more than mere ‘avoiding or fleeing from arrest.’“ For purposes of the obstruction enhancement, “it is irrelevant whether justice is actually obstructed or impeded.” It is sufficient that the conduct “has the potential for obstructing the investigation, prosecution, or sentencing” of the defendant. U.S. v. Draper, 996 F.2d 982 (9th Cir. 1993).
9th Circuit finds obstruction based on refusal to testify at co-conspirator’s trial. (461) After defendant pled guilty, the government obtained a grant of immunity and an order compelling the defendant to testify in the trial of his co-conspirators. The defendant refused to testify and the district court held him in contempt. At sentencing, the district court increased defendant’s offense level for obstruction of justice based on his refusal to testify. In upholding the increase, the court relied on the 11th Circuit’s decision in U.S. v. Williams, 922 F.2d 737, 739 (11th Cir.) which had held that a defendant’s refusal to testify at a co-conspirator’s trial after an immunity order constituted an obstruction of justice under section 3C1.1. The defendant’s refusal to testify constituted a willful obstruction of, or at least an attempt to obstruct, the administration of justice during the prosecution of the co-conspirators. U.S. v. Morales, 977 F.2d 1330 (9th Cir. Oct. 1992).
9th Circuit finds threat to witness was obstruction. (461) Defendant was convicted of assaulting his girlfriend and breaking her jaw. When a park ranger came to the girlfriend’s rescue, the defendant ordered her to tell the ranger that everything was all right. When she refused to comply, he ran. The two-level increase for obstruction of justice was justified as an attempt to intimidate the girlfriend into staying quiet, rather than merely a request to help the defendant avoid arrest. The analogy to instinctive flight was not persuasive. Finally, threatening a witness leads to a section 3C1.1 increase regardless of whether there is a material hindrance to the investigation as a result. U.S. v. Snider, 976 F.2d 1249 (9th Cir. 1992).
9th Circuit finds assault before indictment was calculated to influence witness. (461) Two months before being indicted for the death of his step-child, the defendant violated a court order barring him from seeing his wife. He kicked his way into his former residence, assaulted his wife and told her he was not responsible for his step-daughter’s death. He also spoke to his wife about her cooperation with law enforcement officials during their investigation of the death. The District Court did not clearly err in determining that the episode was calculated to influence the wife’s opinion of the cause of the child’s death and her cooperation with law enforcement. U.S. v. White, 974 F.2d 1135 (9th Cir. 1992).
9th Circuit finds that public identification of witness as “snitch” constitutes obstruction. (461) Defendant wrote on a copy of a witness’ cooperation agreement, “the rat” and “snitch” and sent copies to his sister, a minister, and the witness’ mother. Copies were also circulated at a local restaurant and nightclub. Even though defendant testified he did not intend to hurt the witness, the district court found defendant had not been entirely candid regarding his reasons for the distribution and acted with a conscious intent to obstruct justice because he was angry at the witness. The Ninth Circuit affirmed, finding dissemination of the document could constitute an attempt to influence a witness and the conduct was sufficiently threatening to qualify as obstruction. The fact the witness testified in spite of the threats was irrelevant. Finally, even if the court were to consider the First Amendment argument raised for the first time on appeal, it would disagree because there is no right to make intimidating threats against government witnesses. U.S. v. Jackson, 974 F.2d 104 (9th Cir. 1992).
9th Circuit finds defendant obstructed justice by helping fabricate a story and instructing others to lie to agents. (461) The defendant obstructed justice under U.S.S.G. section 3C1.1 because he “attempted to obstruct or impede the administration of justice during the investigation” by helping concoct a story for suspects to tell investigating authorities if forced to discuss the illegal hunting of game, and instructing two suspects not to speak to police about the illegal hunt. Hence, his offense level was properly adjusted upward by two levels. U.S. v. Atkinson, 966 F.2d 1270 (9th Cir. 1992).
9th Circuit upholds obstruction adjustment where defendant threatened a witness. (461) Defendant argued that there was no evidence that he was responsible for the threats. However a witness testified that the letter was in defendant’s handwriting and the government submitted an affidavit which circumstantially indicated that defendant was the author of the letters as well as the “muffled voice caller” who made similar threats to [the witness] and her relatives. On this record, the 9th Circuit found that the obstruction adjustment was not clearly erroneous. U.S. v. Pascucci, 943 F.2d 1032 (9th Cir. 1991).
9th Circuit upholds obstruction enhancement even though defendant pled guilty to a less serious offense. (461) Defendant perjured himself during his first trial, and later pled guilty to a less serious offense based on the same criminal conduct. On appeal, he argued that it was improper to enhance his sentence for obstruction of justice based on the perjury because under § 3C1.1, the obstruction must occur during the prosecution of “the instant offense.” He argued that his perjury during the prior trial occurred during a separate prosecution for a separate offense. The 9th Circuit disagreed, holding that the “mere fact that, after a mistrial, appellant pled guilty to a less serious offense based on the same criminal conduct does not make the plea bargain into a separate prosecution.” The element of guilty knowledge was at issue in both charges and the appellant’s perjury “obstructed the government’s attempt to prove that guilty knowledge.” U.S. v. Stout, 936 F.2d 433 (9th Cir. 1991).
9th Circuit holds that defendant’s attempt to flush counterfeit bill down the toilet was obstruction of justice. (461) After his arrest, defendant feigned illness so he could go to the bathroom where he tried to flush a counterfeit bill down the toilet. He argued that this was not willful obstruction of justice, as required by § 3C1.1, because it was “an act of panic.” The 9th Circuit rejected the argument, noting that a “substantial period of time had passed after appellant was initially apprehended and before he attempted to destroy the bill.” Moreover, the appellant had to develop the plan of feigning illness in order to attempt to destroy the bill. U.S. v. Stout, 936 F.2d 433 (9th Cir. 1991).
9th Circuit upholds obstruction enhancement even though acts were committed during state, not federal, investigation. (461) The 9th Circuit acknowledged that the use of the language “the instant offense” in guideline § 3C1.1 suggests that there must be some connection between the obstruction and the federal offense for which the defendant is being sentenced. However, the court noted that defendant’s actions “were certainly designed to obstruct the investigation of the offense he committed, i.e. defrauding insurance companies, and that fraud “violated federal as well as state law.” Therefore, the court held that the obstruction of the state investigation into defendant’s fraudulent activities was properly considered in enhancing defendant’s federal sentence. U.S. v. Lato, 934 F.2d 1080 (9th Cir. 1991).
9th Circuit upholds enhancement even though one reason for enhancement was improper. (461) Defendant argued that because one of the district court’s grounds for the obstruction enhancement was improper, the case must be remanded for resentencing under U.S. v. Nuno-Para, 877 F.2d 1409 (9th Cir. 1989). The 9th Circuit rejected the argument, noting that in Nuno-Para the district court had not clearly given alternative grounds for the extent of the departure. Here, the district court gave “two separate and sufficient grounds for the two-point obstruction enhancement.” The court made clear that the grounds were “alternative, not cumulative.” Since the obstruction enhancement here was proper on at least one ground, remand was not required. U.S. v. Hernandez-Valenzuela, 932 F.2d 803 (9th Cir. 1991).
9th Circuit upholds obstruction adjustment for testifying untruthfully. (461) The 9th Circuit noted that “[u]nder the guidelines, testifying untruthfully is conduct that constitutes obstruction of justice,” citing § 3C1.1, commentary. note 1 (1989). The court rejected defendant’s argument that the adjustment was unconstitutional because it “chills the defendant’s right to testify” and “punishes him for perjury on an evidentiary showing of less than evidence beyond a reasonable doubt.” U.S. v. Torres-Rodriguez, 930 F.2d 1375 (9th Cir. 1991).
9th Circuit upholds obstruction enhancement where defendant fled from car after police pursuit. (461) Defendant’s flight did not occur in the immediate aftermath of his crime. The crime had taken place three weeks before. He had already been arrested for the offense and told that he was a suspect in a criminal case. The 9th Circuit found that this was far from the situation where a criminal is surprised in the act of committing a crime and makes “an evasive dodge” to avoid apprehension. For two weeks prior to his arrest defendant played a cat-and-mouse game of avoiding the authorities, though he knew he was expected to surrender himself voluntarily. Moreover, upon fleeing his car, he forced the arresting officers to chase him for over 40 minutes before they captured him. Judge Beezer dissented, arguing that these facts did not justify an obstruction enhancement. U.S. v. Mondello, 927 F.2d 1463 (9th Cir. 1991).
9th Circuit rules that defendant’s false statements to probation officer constituted obstruction of justice. (461) Defendant twice told the probation officer that a 1983 drug charge had been dismissed. Later he said that he had been convicted of a misdemeanor. Later investigation revealed that he had been convicted of a drug felony charge. The 9th Circuit affirmed the district court’s ruling this defendant’s false statements were willful. The enhancement for obstruction of justice under § 3C1.1 was not clearly erroneous. U.S. v. Christman, 894 F.2d 339 (9th Cir. 1990).
9th Circuit upholds finding that defendant obstructed justice by misstating his criminal history to the probation officer. (461) U.S.S.G. § 3C1.1, application Note 1(e) states that “furnishing material falsehoods to a probation officer in the course of a presentence or other investigation for the court” may justify a sentence adjustment for obstruction of justice. Here the district court found that the defendant deliberately misstated his number of prior convictions and found that the misstatements were material despite the defendant’s argument that the probation officer could have secured his “rap sheet” to find his prior convictions. On appeal, the 9th Circuit affirmed, agreeing that the misrepresentations were material and noting that in any event, § 3F1.1 encompasses “attempted” obstruction of justice. U.S. v. Baker, 894 F.2d 1083 (9th Cir. 1990).
9th Circuit holds that use of false name at time of arrest constituted obstruction of justice. (461) Noting its previously ruling that a defendant obstructs justice when he lies to a probation officer, the 9th Circuit held that the defendant here obstructed justice when he lied to the law enforcement officer who stopped and arrested him. Judge Tang dissented. U.S. v. Rodriguez-Macias, 914 F.2d 1204 (9th Cir. 1990).
9th Circuit finds that continued wire fraud from jail cell can justify obstruction-of-justice enhancement. (461) The guidelines call for a two-level upward adjustment in offense level for a defendant who obstructs justice. While in jail awaiting sentencing on wire fraud charges, defendant used his jail telephone to continue his wire fraud activities. Although Judges Thompson, Hall, and Leavy observed that the mere continuation of criminal activity would not justify an obstruction-of-justice adjustment, the court affirmed the adjustment on the facts of defendant’s case. Defendant had told his probation officer the extent of his pre-jail criminal activity, and the government was in the process of sorting out the extent of defendant’s fraud prior to sentencing. Defendant’s continued fraudulent activities complicated the government’s investigatory effort and required defendant’s probation officer to prepare an addendum to the presentence report. The upward adjustment was not precluded by the fact that defendant’s continued criminal activity had already been considered in denying defendant a downward adjustment for acceptance of responsibility. U.S. v. Lofton, 905 F.2d 1315 (9th Cir. 1990).
9th Circuit requires enhancement for obstruction of justice despite subsequent cooperative acts. (461) After pretrial release on drug charges, defendant absconded from supervised release and remained a fugitive for five months. Defendant did not dispute that such acts constitute obstruction of justice under the guidelines. Rather, he argued that the two-point enhancement should not have been made because he eventually voluntarily surrendered to authorities. Judges Fernandez, Tang, and Norris disagreed, holding that the two-point enhancement is mandatory whenever obstruction of justice is shown. Subsequent cooperative acts may be taken into account by the sentencing judge in determining where within the guideline range to sentence defendant, or by making other allowed adjustments. U.S. v. Avila, 905 F.2d 295 (9th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994).
10th Circuit upholds obstruction increase for having friend write exculpatory note. (461) Defendant was convicted of charges relating to his possession of firearms, marijuana, and methamphetamine. The district court applied an obstruction of justice enhancement because defendant had Orr, a friend, write a letter that exonerated defendant from some of the charges filed against him. The Tenth Circuit affirmed. The record supported the district court’s conclusion that defendant instigated preparation of the note and intended to use it to shift blame to Orr’s girlfriend. There was evidence that defendant intended to influence Orr to lie about the involvement of Orr’s girlfriend in the crime and that he asked Orr to sign a note to that effect. It was not relevant that defendant did not introduce the note at trial. The § 3C1.1 enhancement requires only an attempt to obstruct. Finally, the enhancement did not require that defendant be charged with or convicted of obstruction of justice or perjury. U.S. v. McKeighan, 685 F.3d 956 (10th Cir. 2012).
10th Circuit says asking third party to influence witnesses was attempt to obstruct justice. (461) While in jail awaiting trial, defendant called a woman named Michelle and asked her to warn “Fish” that the witnesses who planned to testify against defendant were also “snitching” about drug sales by “Fish.” He also stated that another woman, Ms. Scott, had been subpoenaed to testify at his trial, and that Michelle should tell Scott not to talk about his case. The district court applied a § 3C1.1 obstruction increase, finding that defendant’s statements to Michele constituted an attempt to obstruct justice. Defendant argued, based on the Fourth Circuit’s opinion in U.S. v. Brooks, 957 F.3d 1138 (4th Cir. 1992), that attempting to influence a witness through a third-party is not a substantial step towards obstruction of justice, unless the message was actually communicated by the witness. The Tenth Circuit rejected Brooks, ruling that a defendant need not actually threaten the witness, he need only attempt to influence the witness, and this can be done indirectly by asking a third party to communicate with the witness. The district court did not err in concluding that defendant’s statement concerning Scott showed his intent to obstruct justice and constituted a substantial step toward obstructing justice. U.S. v. Fleming, 667 F.3d 1098 (10th Cir. 2011).
10th Circuit upholds obstruction increase and denial of acceptance reduction for false testimony at plea withdrawal hearing. (461) Defendant sought to withdraw his guilty plea, testifying that his attorney promised him a 15-year sentence. He also testified that he had answered “yes” when the court asked him if he understood that his plea did not guarantee him a specific sentence, because his counsel told him to answer “yes” to the district court’s questions, whether or not he understood them. His counsel disputed all of this, and the district court refused to allow defendant to withdraw his plea, finding his testimony was not credible. The Tenth Circuit upheld an obstruction of justice enhancement based on defendant’s false testimony during the plea withdrawal hearing. An intentional lie in these circumstances is, by definition, an effort to impede the administration of justice with respect to the prosecution and sentencing of the case. The perjury also supported the denial of an acceptance of responsibility reduction. Defendant’s effort to avoid the consequences of his plea agreement using intentional lies under oath demonstrated that he had not accepted responsibility for his conduct. U.S. v. Soto, 660 F.3d 1264 (10th Cir. 2011).
10th Circuit applies obstruction increase for refusal to testify at co-defendant’s trial despite immunity. (461) The district court granted the government’s motion to compel defendant to testify at the trial of his co-defendant, and to grant defendant immunity for his testimony. However, defendant refused to testify, and the district court applied a two-level obstruction increase based on defendant’s refusal to testify. Defendant argued that the enhancement was improper because his refusal to testify did not obstruct the investigation, prosecution, or sentencing of his own offense. Prior to November 1998, it was clear that § 3C1.1 applied to a defendant who obstructed justice in a case closely related to his own. Defendant argued that Amendment 581, which added an application note that seemed to restrict the scope of the adjustment, barred the obstruction increase here. The Tenth Circuit rejected this interpretation, ruling that even after the adoption of Amendment 581, the obstruction of justice enhancement applies where a defendant attempts to obstruct justice in a case closely related to his own, such as that of a co-defendant. U.S. v. Mollner, 643 F.3d 713 (10th Cir. 2011).
10th Circuit applies obstruction increase for perjury at trial. (461) Defendant was convicted of obtaining money through false pretenses. The district court applied an obstruction of justice enhancement, finding that defendant had testified falsely at trial concerning what his investors knew and that this constituted obstruction of justice. The Tenth Circuit affirmed. Defendant testified at trial that his investors knew that their money was going to Nigeria to be invested in oil contracts. But three of his victims testified that defendant had only told them about a local real-estate investment. An FBI agent who had interviewed defendant testified that defendant had admitted that he had come up with the real estate investment scheme so that he could get more money for the oil investments, and that he had lied to investors about having a contact in the courthouse. These conflicts in testimony supported a finding of perjury. The sentencing judge, who had presided at trial and observed the demeanor of witnesses, could reasonably infer that defendant’s testimony was false and that the testimony was material to the prosecution. U.S. v. Flonnory, 630 F.3d 1280 (10th Cir. 2011).
10th Circuit affirms obstruction increase for false testimony at suppression and sentencing hearings. (461) Police seized a gun, ammunition and drugs in defendant’s apartment. At the police department, defendant wrote out a statement admitting that he consented to the police officers’ entry into his apartment. He later moved to suppress the evidence seized at his apartment, claiming that he did not consent to the search. At sentencing, defendant claimed that when the officers came to his door, he told them they could not come in because he was on the phone, but that they took the phone, hung it up, and pushed defendant to the side and came in. The Tenth Circuit upheld an obstruction of justice increase, finding that the district court did not clearly err in determining that defendant obstructed justice. The district court found that his testimony “that the officers forced their way into his apartment was false and it was made with the willful intent to mislead this court.” The record supported this finding. The officers testified that defendant consented to the entry into his apartment, that he freely waived his Miranda rights, and freely and voluntarily wrote and signed a statement in which he stated that he had consented to the entry. U.S. v. Parker, 594 F.3d 1243 (10th Cir. 2010).
10th Circuit holds that conviction for obstructing federal audit supported obstruction increase. (461) Defendant and her husband ran a residential mental health treatment house. They were convicted of a variety of offenses for directing their mentally ill residents to perform sexually explicit acts and farm labor in the nude, while maintaining that these acts constituted legitimate psychotherapy for the residents’ mental illnesses. The district court applied an obstruction increase to defendant’s husband based on his perjured testimony at trial, but found that the government’s proof was not sufficient to support an enhancement for defendant. However, one of her counts of conviction alleged that she obstructed a federal audit of Medicaid billing. This conviction was sufficient to compel the application of the obstruction enhancement. U.S. v. Kaufman, 546 F.3d 1242 (10th Cir. 2008).
10th Circuit applies obstruction increase even though conduct occurred during prosecution of state charges preceding federal indictment. (461) Defendant was arraigned on state drug charges. After she was released on bond, she fled to Mexico. Thirteen days later, the federal government indicted her on drug charges stemming from the same conduct, and a federal warrant was issued for her arrest. Several weeks later, the state court issued a warrant for failure to appear when defendant missed a court date. Many months later she was stopped crossing the border, and placed in federal custody. She was convicted of federal drug charges, and received an obstruction of justice enhancement based on her failure to appear at her state court hearing. The Tenth Circuit held that the obstruction increase applies when a defendant’s obstructive conduct occurs during the prosecution of state charges preceding the federal indictment, but both federal and state charges are based on the same underlying conduct. Defendant committed an offense that could have been prosecuted either by state or federal authorities. When she fled to Mexico, she did not know whether the prosecution she was obstructing was the one that eventually would proceed in federal court or in state court. While the guideline confines the enhancement to obstruction of administration of justice with respect to the “instant” offense, where a defendant’s obstructive conduct impedes or delays prosecution by both federal and state authorities, the enhancement is applicable. U.S. v. Contreras, 506 F.3d 1031 (10th Cir. 2007).
10th Circuit upholds obstruction increase for eating crack when car was pulled over by police. (461) When state police pulled over the car defendant was driving, he ate the crack cocaine he possessed to keep the officers from finding it. He was taken into custody, and at the police station, the crack was discovered when defendant vomited. Note 4(d) to § 3C1.1 includes as examples of obstructive conduct “destroying or concealing … evidence that is material to an official investigation or judicial proceeding … or attempting to do so.” The note contains a limited exception for “conduct [that] occurred contemporaneously with arrest (e.g. attempting to swallow or throw away a controlled substance),” which shall not by itself constitute obstruction of justice “unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender.” The Tenth Circuit concluded that this exception applies only to attempts to obstruct justice, and thus did not apply to defendant eating the crack when he was pulled over by police. Defendant’s conduct here went beyond mere attempt. He succeeded in swallowing the cocaine base, at a time when the police had no knowledge that he was in possession of drugs. The panel also rejected defendant’s claim that the conduct was not willful conduct because it occurred contemporaneously with arrest. Defendant admitted that he knew that if police discovered crack in his possession, his probation would be revoked, and that he ate the crack cocaine to prevent the officers from finding it. U.S. v. Bedford, 446 F.3d 1320 (10th Cir. 2006).
10th Circuit applies obstruction increase for perjury at suppression hearing. (461) At a suppression hearing, defendant denied many of the key facts testified to by the arresting officers, and stated that the officers, among other acts of misconduct, never read to him the written consent form. At sentencing, the district court found that defendant had testified falsely on six separate occasions, and enhanced his sentence under § 3C1.1 for obstruction of justice. The Tenth Circuit affirmed the increase since it was clear that the district court properly found at least two instances of perjury. The court found that defendant testified falsely that his uncle was wearing a seat belt, contradicting the officers’ testimony as to why they stopped defendant’s car. Although defendant did not challenge the falseness of his statement that the written search consent form he initialed was never read to him, he did challenge its materiality. However, such lies were clearly material, since if the court had not found that defendant had provided verbal consent for the search, it might have caused the judge to grant his motion to suppress. U.S. v. Salazar-Samaniega, 361 F.3d 1271 (10th Cir. 2004).
10th Circuit affirms obstruction increase and denies acceptance reduction to defendant who minimized injuries to murder victim. (461) It was undisputed that defendant and two friends got into a fight with the victim, and that after the fight was over, two of them drove the victim to a deserted road a short distance away and left him in his car. The victim was found dead in his car the following morning. Defendant testified that they were driving the victim home because he was drunk, and that when they realized they would have no way home, they pulled the car off the road and left the victim in the car so that he could “sleep it off” without being arrested. The district court imposed an obstruction of justice increase, finding adequate evidence that defendant knew or should have known that the victim had suffered life-threatening injuries and that without some medical care he would die. The court cited the fact that the victim was gurgling, as if he was choking on his own blood. Moreover, the victim’s position suggested that he was either unconscious or unable to move at the time he was placed in the car, yet defendant testified that the victim walked into the car by himself. The district court concluded that defendant and his friends willfully lied about a very material aspect of the case. The Tenth Circuit affirmed the obstruction increase. Moreover, defendants did not accept responsibility for their conduct. They continued to maintain that the victim suffered no more than a bloody nose, despite testimony from a police chief who knew the victim and could not recognize him when his body was found. U.S. v. Sarracino, 340 F.3d 1148 (10th Cir. 2003).
10th Circuit says information from informant in PSR was sufficient to support obstruction increase. (461) The PSR recommended an obstruction of justice increase because defendant colluded with Sanchez to present false testimony. The report noted that an FBI report identified an individual who was serving time with defendant in jail. During this time, Sanchez admitted to the informant that he, defendant and a third party committed the robbery, and that Sanchez’s girlfriend was supposed to have gotten rid of the evidence of the robbery but failed to do so, and that the girlfriend was in touch with defendant and had participated in a plan to present a false defense. Defendant objected, arguing that the information in the PSR was unreliable because the prosecution had not disclosed the FBI report, the identity of the informant, or the informant’s criminal record. The Tenth Circuit held that the district court properly determined that the informant’s statement was sufficiently reliable to support the obstruction increase. First, the informant had the opportunity to talk to defendant, since they were housed together twice. Second, the trial received no publicity, making it highly unlikely that the informant could have learned of the details he described unless he had talked to defendant. Defendant did little to challenge the reliability of the information. U.S. v. Espinoza, 338 F.3d 1140 (10th Cir. 2003).
10th Circuit approves obstruction increase based on perjury during suppression hearing. (461) Defendant moved to suppress certain incriminating statements that he made to law enforcement officers, claiming that his confession was not voluntary. In particular, he claimed that he had asked for a lawyer at the outset of the interrogation. Finding that defendant had committed perjury during the suppression hearing, the district court enhanced his sentence for obstruction of justice. The Tenth Circuit held that the court’s findings were adequate to satisfy U.S. v. Dunnigan, 507 U.S. 87 (1993) and U.S. v. Massey, 48 F.3d 1560 (10th Cir. 1995). The court’s reference to lies by defendant “about the voluntariness of [his] statements” must have related to defendant’s testimony that he had asked for a lawyer. While greater specificity would have been helpful, the court adequately identified the perjurious statements, as required by Massey. The panel also rejected defendant’s claim that it was not appropriate to apply the obstruction increase for perjury at a suppression hearing. The commentary to § 3C1.1 lists perjury as an example of conduct justifying an obstruction increase. The commentary does not specify that the perjury must be at trial. U.S. v. Hawthorne, 316 F.3d 1140 (10th Cir. 2003).
10th Circuit applies reckless endangerment increase where defendant disposed of gun in presence of children. (461) As police attempted to stop defendant, he removed a gun from his pocket and took off running through an apartment complex. After he rounded a corner, defendant stopped to hide his gun in a water turn-off hole. Upon turning the corner, the officer encountered about 10 children, ranging in age from five to 13, disembarking a school bus and pointing to the gun lying in the water turn-off hole, shouting “there it is.” The Tenth Circuit affirmed a § 3C1.2 increase for reckless endangerment during flight based on defendant’s disposal of the gun in the presence of children. Such conduct undoubtedly created a substantial risk of death or serious bodily injury to those children and the other bystanders around the apartment complex, and was a gross deviation from the standard of care that a reasonable person would exercise in such a situation. U.S. v. Brown, 314 F.3d 1216 (10th Cir. 2003).
10th Circuit increases sentence where defendant “impeded” justice by sham pretrial motion. (461) The Tenth Circuit upheld that district court’s two level increase under § 3C1.1 for impeding the administration of justice because he filed a sham pretrial motion in which he testified that he did not understand and did not waive his Miranda rights, and “repeatedly uttered falsehoods under oath.” The court noted that the sham motion proceeding delayed the trial for almost a month. “[A]lthough a defendant has a right to defendant himself, a defendant’s right to testify does not include a right to commit perjury.” U.S. v. Alexander, 292 F.3d 1226 (10th Cir. 2002).
10th Circuit upholds obstruction increase for use of alias at arraignment. (461) Defendant identified himself by his alias to the Secret Service agent who arrested him, and he provided the same alias and a false social security number to the magistrate judge who presided over his arraignment. At his detention hearing, he allowed his counsel to argue he should be released because, under his alias, he had no criminal history. Defendant did have a criminal history that would have been made known to the court if pretrial services had been provided with his actual name. The Tenth Circuit affirmed an obstruction of justice increase based on defendant’s use of the false name and social security number at the arraignment. Although defendant contended that the false information was immaterial to the arraignment because the proceeding’s only purpose was to advise him of the charges pending against him, it was plain that defendant’s misrepresentation was an attempt to obstruct or impede the administration of justice. U.S. v. Tran, 285 F.3d 934 (10th Cir. 2002).
10th Circuit affirms obstruction increase for escape from halfway house. (461) While at a halfway house pending sentencing, defendant signed out for work and never returned. He remained at large past sentencing, and eventually was apprehended in an apartment containing drug manufacturing equipment. He alleged that prison inmates had threatened his girlfriend and children, and that he left the halfway house in order to protect them, and that he planned to turn himself in once they were safe. The district court applied an obstruction of justice increase, finding that defendant’s flight, failure to communicate with his attorney, and the need for an arrest to secure his appearance in court showed that he did not intend to return to serve his sentence. The Tenth Circuit affirmed. Note 4 lists as examples of obstruction of justice “escaping or attempting to escape from custody before trial or sentencing” as well as “willfully failing to appear” for a judicial proceeding. Defendant’s motivations for fleeing were irrelevant — the only significant question was whether he willfully fled custody. Defendant was “in custody” in the halfway house. Moreover, failing to report by one released on bond is “comparable to an escape from custody.” U.S. v. DeFeo, 36 F.3d 272 (2d Cir. 1994). U.S. v. Swanson, 253 F.3d 1220 (10th Cir. 2001).
10th Circuit affirms obstruction enhancement for giving potential witness exculpatory statement to sign. (461) Defendant argued that in giving Flores an exculpatory statement to sign, he made no overt threat and did not directly tell Flores to lie, but was merely exercising “his constitutional rights to prepare a defense against the charges and seek prospective witnesses on his behalf.” However, the district court found that defendant had prepared a false “sworn statement” for Flores to sign in “an effort to block Mr. Flores out as a witness,” and that, as a result, Flores felt threatened and fearful for himself and his family. The Tenth Circuit found no clear error in these findings. The district court could easily have found defendant’s act to be an unlawful attempt to influence a witness, suborn perjury, or produce a false document during an official investigation. U.S. v. Heckard, 238 F.3d 1222 (10th 2001).
10th Circuit applies obstruction of justice enhancement for perjury at trial. (461) Defendant, a bank branch manager, was convicted of taking $32,000 in cash from the bank’s night deposit vault. The bank’s records indicated that, the evening the money was taken, the bank was entered by someone using defendant’s alarm code. The district court found that defendant perjured herself at trial by testifying that: (1) she did not enter the bank that evening and take money out of the night vault; (2) on past occasions the security officer had directed her to share her alarm code with other employees; and (3) she had requested a new alarm code from the bank’s security officer but had never received one. The Tenth Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury. Although the findings were the subject of conflicting testimony, the sentencing judge was entitled to weigh that conflicting testimony and assess its credibility. U.S. v. Weller, 238 F.3d 1215 (10th Cir. 2001).
10th Circuit upholds obstruction increase for quitclaims and mortgages of forfeiture assets. (461) The trial court assessed an obstruction of justice enhancement because defendant executed various quitclaim deeds and mortgaged a property, all of which were designated as substitute assets for forfeiture. Defendant claimed that his actions were not intended to circumvent the forfeiture, and that he undertook the actions to raise funds to pay the forfeiture that he anticipated would result from his convictions. Moreover, his actions could not have any effect, because the government’s interest in the property was superior to subsequent purchasers because of the previously filed notice of lis pendens. The district court did not find defendant’s arguments persuasive. The timing of the conveyances, the fact that the transactions were with defendant’s girlfriend and father, and defendant’s incomplete explanation as to how simple quitclaims would raise the anticipated forfeiture amount, persuaded the court to find obstruction of justice. While reasonable minds could differ, given the deferential standard of review, the Tenth Circuit concluded that the district court did not clearly err. U.S. v. Keeling, 235 F.3d 533 (10th Cir. 2000).
10th Circuit affirms obstruction enhancement for perjury about reasons defendant met drug courier. (461) Border Patrol agents intercepted a courier driving a truckload of marijuana near the Mexican border. He agreed to cooperate with authorities. When he arrived at his destination, he called a phone number on a scrap of paper. Defendant answered the phone and arranged to meet the courier. She was arrested when she arrived. The district court found that defendant committed perjury at trial by (1) denying that she knew the truck the courier drove contained marijuana; (2) claiming she had no prior information or knowledge of the courier’s call and did not expect a telephone call; (3) denying she had any criminal intent when she went to meet the courier; and (4) claiming that she was bringing the courier money for gasoline for the truck. The Tenth Circuit affirmed an obstruction of justice increase. The panel agreed with the district court that defendant’s story (that she went out in the middle of the night to help someone she did not know with gasoline) was inherently unbelievable. The record contained ample evidence that defendant lied under oath. The taped recordings of her telephone calls with the courier clearly supported the inference that defendant expected a drug delivery that night and went out to meet the courier. U.S. v. Chavez, 229 F.3d 946 (10th Cir. 2000).
10th Circuit applies obstruction enhancement for perjury at trial. (461) The district court applied an obstruction of justice enhancement based on defendant’s perjury at trial. The Tenth Circuit rejected defendants’ claim that the court did not follow the 1992 Sentencing Guidelines’ requirement that testimony be evaluated in a light most favorable to the defendant. The district court specifically noted that it had viewed one defendant’s statements “in the most favorable light.” The court also rejected defendants’ claim that the sentencing court did not make independent findings as required by United States v. Dunnigan, 507 U.S. 87 (1993). The court specifically cited two examples of defendant’s testimony which contradicted other persuasive trial testimony. The district court also expressly found that defendant’s testimony was material and willful. Both the diversion of corporate funds for personal use and the structuring of payments to avoid IRS reporting requirements constitute evasion or attempted evasion of income taxes. Thus, false testimony about such acts would be material to the prosecution of income tax evasion. Finally, while there were some indications of confusion as opposed to willfulness, the trial judge was best situated to determine whether defendant was merely confused or was being willfully evasive. U.S. v. Mounkes, 204 F.3d 1024 (10th Cir. 2000).
10th Circuit says awareness of impending investigation sufficient for obstruction enhancement. (461) Defendant, a correctional officer, assaulted a prison inmate who was to be escorted from his cell to a conference room. As part of the warden’s program to curtail prison beatings, each escort team was required to videotape the inmate escort. The videotape here did not show the assault. It showed only the escort team arriving at the cell and the subsequent escort down the hall. The junior officer in charge of taping the escort testified that he had recorded the entire assault, but that immediately after the assault, defendant ordered him to hand over the camera. Two other officers heard defendant say that he was rewinding the tape. The Tenth Circuit affirmed an obstruction of justice enhancement based on defendant’s tampering with the videotape. Although defendant claimed that the destruction occurred before the investigation of his offense, defendant knew that an investigation would be conducted and he understood the importance of the tape in that investigation. The very purpose of taping was to assist the warden in his official program to curtail unlawful beatings. Defendant’s awareness of an impending investigation was sufficient to satisfy the nexus requirement. U.S. v. Mills, 194 F.3d 1108 (10th Cir. 1999).
10th Circuit upholds obstruction enhancement for perjury. (461) In applying a § 3C1.1 obstruction enhancement, the district court cited three instances in which it believed defendant committed perjury. The Tenth Circuit affirmed after finding that the district court satisfied the requirements for an obstruction enhancement in two of the three instances of perjury it cited. The district court specifically found that defendant intentionally lied under oath in contradicting the testimony of Davey. The court also found that defendant “specifically testified with the intent to cause the jury not to find him guilty” when he claimed that the cash in his possession was not drug proceeds. Finally, the court found that defendant “was not telling the truth concerning the purchase of cocaine from Mr. Walton and that he wasn’t even very close to him.” The district court erroneously attributed to defendant the statement by Walton that the two were not close. Additionally, it was not clear as to which of defendant’s statements about Walton the court found untruthful. The error was harmless since the other two findings of perjury fully supported the obstruction enhancement. U.S. v. Anderson, 189 F.3d 1201 (10th Cir. 1999).
10th Circuit applies obstruction enhancement for perjury. (461) Defendant and a co-defendant were tried jointly on charges arising from a drug transactions. The co-defendant was found guilty, but defendant’s case ended in a mistrial after the jury was unable to reach a verdict. Defendant was found guilty in a second jury trial. Defendant argued that a § 3C1.1 obstruction of justice enhancement was not warranted, given that the jury in his first trial was unable to reach a verdict. The Tenth Circuit affirmed the obstruction of justice enhancement. During defendant’s sentencing, the district court specifically identified two instances where defendant willfully made material misstatements under oath. First, contradicting the testimony of an FBI agent, he denied making incriminating statements and signing a waiver form. Second, he stated that he met a co-conspirator to receive rent money rather than drug money. The court’s findings met the requirements of U.S. v. Dunnigan, 507 U.S. 87 (1993). U.S. v. Cerrato-Reyes, 176 F.3d 1253 (10th Cir. 1999).
10th Circuit relies on government report about attempted escape to impose obstruction enhancement. (461) The district court applied an obstruction of justice enhancement based on defendant’s attempt to escape from the county detention center after his trial and before the sentencing hearing. Defendant argued that the evidence that he participated in the attempted escape was unreliable. The government submitted a report to the court concerning the alleged escape attempt. Defendant objected to the report and asked the judge to require testimony at sentencing to establish the factual underpinning of the report. The report was not part of the appellate record. The Tenth Circuit found no basis for reversing the district court’s ruling that the report had sufficient indicia of reliability to use for sentencing purposes. At sentencing, defendant merely made the bald assertion that the report did not have sufficient indicia of reliability to be considered by the court, and gave no indication of the reasons for this position. On appeal, defendant merely recited the fact that he made this assertion in the district court. U.S. v. Wiseman, 172 F.3d 1196 (10th Cir. 1999).
10th Circuit affirms obstruction enhancement for calls made to informant before arrest. (461) Defendant and her two sons were convicted of drug charges based on controlled buys made by an informant and an undercover agent. At 11 p.m. the night before they were arrested, the informant received an anonymous threatening phone call. At about 2 a.m. in the morning defendant called the informant to tell him that telephone records from the hotel where the undercover agent was staying showed calls to the sheriff’s office. She asked defendant whether the agent was an undercover agent. The Tenth Circuit affirmed an obstruction of justice enhancement based on the phone calls. Although the informant was not the most credible witness as to some matters, his testimony regarding the phone calls was substantially corroborated. Defendant admitted that she made the 2 a.m. phone call, and that she and her son had the hotel records at her residence, where they were recovered by police. Although defendant did not directly threaten the informant, the phone calls were made with the intent to obstruct justice. U.S. v. Vaziri, 164 F.3d 556 (10th Cir. 1999).
10th Circuit affirms obstruction enhancement for perjury at trial. (461) Defendant was convicted of a marijuana conspiracy. The Tenth Circuit affirmed an obstruction enhancement because it was based on the court’s specific finding that defendant had perjured himself. This finding is reviewed with deference. U.S. v. Burch, 153 F.3d 1140 (10th Cir. 1998).
10th Circuit holds robbers responsible for high-speed chase even though they did not drive the getaway car. (461) Defendants robbed a bank and then ran to a waiting car driven by a co-defendant. The car led police on a high-speed pursuit, reaching speeds of up to 100 m.p.h. along an icy and damp road. The car ran through two “rolling roadblocks,” and attempted to ram a police officer’s vehicle. The Tenth Circuit affirmed § 3C1.2 reckless endangerment enhancements, holding that the high speed chase was reckless and that defendants were responsible for it even though they were only passengers in the vehicle. The chase, involving high speeds, icy and wet conditions, and the threat to ram a patrol car, involved a gross deviation from the standard of care a reasonable person would have exercised. Defendants consciously planned an armed robbery in which a quick getaway was an integral part of the plan. There was no evidence that they told the driver to slow down or stop the car during the chase. Defendants encouraged the driver’s reckless behavior. U.S. v. Conley, 131 F.3d 1387 (10th Cir. 1997).
10th Circuit affirms obstruction enhancement based on five instances of perjury at trial. (461) The district court found that an obstruction of justice enhancement was justified for defendant’s perjurious testimony at trial. The Tenth Circuit affirmed. The district court properly analyzed the elements of perjury as (1) false testimony under oath, (2) concerning a material matter, (3) with willful intent to provide false testimony. The court also identified five specific instances of perjury by defendant at trial, finding each to be willful and material. U.S. v. Hargus, 128 F.3d 1358 (10th Cir. 1997).
10th Circuit says factual impossibility is no defense to attempting to obstruct justice. (461) After defendant was arrested on drug charges, police executed a search warrant at his mother’s house and found a receipt for renting a storage facility. Unknown to defendant, authorities then searched the storage facility and found $167,260 in cash. The next day, in a recorded telephone call, defendant called his sister and told her to go to the storage facility and remove the cash. Defendant pled guilty to drug charges. He challenged a § 3C1.1 enhancement, arguing that his instructions to his sisters did not constitute an attempt to obstruct justice because the authorities had already seized the evidence. The Tenth Circuit held that factual impossibility is not a defense to an attempt to obstruct justice under § 3C1.1. Factual impossibility is generally not a defense to criminal attempt because success is not an essential element of attempt crimes. Likewise, factual impossibility is generally not a defense to an attempted obstruction enhancement because success is also not an essential element of attempt under § 3C1.1. U.S. v. Hankins, 127 F.3d 932 (10th Cir. 1997).
10th Circuit says perjury intended to relieve co-defendant of criminal liability was obstruction. (461) Defendant made several unauthorized excavations from archaeological sites located on government land. Defendant perjured himself by testifying that his co-defendant did not assist him in any digging and did not go into the alcoves where the excavations took place. The co-defendant later admitted entering the alcoves with defendant. The Tenth Circuit affirmed an obstruction of justice enhancement based on defendant’s perjurious attempt to relieve his co-defendant of criminal liability. A defendant need not provide a story that fully exculpates his co-defendant for the perjury to be material. The enhancement is warranted where a defendant provides false information bearing on the extent of the co-defendant’s criminal liability. U.S. v. Shumway, 112 F.3d 1413 (10th Cir. 1997).
10th Circuit rules court adequately identified perjurious testimony. (461) Defendants, one of whom worked in the office of the Oklahoma State Treasurer, were convicted of bribery and money laundering after arranging various securities transactions and sharing the commission earned on those transaction. The Tenth Circuit affirmed an obstruction of justice enhancement based on defendants’ perjury at trial. The district court explicitly found that both defendants committed multiple acts of perjury. If found that almost all of the first defendant’s testimony at trial was false, including her testimony as to her intent in the various transactions. The court found that the second defendant also lied about the transactions. These findings satisfied the requirements of the guidelines and U.S. v. Dunnigan, 507 U.S. 87 (1993). The court’s findings were not too conclusory. Once a judge identifies or describes the perjurious testimony in circumstances such as these, “fairly conclusory findings that such testimony was given with intent to commit perjury” are permissible. U.S. v. Pretty, 98 F.3d 1213 (10th Cir. 1996).
10th Circuit holds that adoption of PSR adequately identified perjurious statements. (461) Defendant was convicted of assault with a dangerous weapon. The district court enhanced defendant’s sentence under § 3C1.1 because defendant had committed perjury. The Tenth Circuit held that the district court adequately identified the statements it believed were false by adopting the PSR. The PSR specifically identified as perjurious defendant’s statements regarding his tribal pleas and his self‑defense claim, as well as his testimony that the victim possessed a knife. U.S. v. Denetclaw, 96 F.3d 454 (10th Cir. 1996).
10th Circuit says obstruction increase and judgment on bond did not violate double jeopardy. (461) The district court applied a § 3C1.1 enhancement because defendant failed to appear for arraignment as ordered. Defendant argued that the enhancement violated double jeopardy because judgment was previously entered against him on his $50,000 appearance bond as a result of the same conduct. The Tenth Circuit held that the § 3C1.1 enhancement did not violate double jeopardy. The $50,000 judgment for violating the appearance bond was not overly disproportionate to the government’s anticipated costs associated with being forced to delay defendant’s criminal proceeding and hunt him down. The judgment was remedial and not punitive, posing no double jeopardy bar to the § 3C1.1 enhancement. Moreover, the enhancement was not punishment for the failure to appear, but for the offense to which he pled guilty. U.S. v. Hawley, 93 F.3d 682 (10th Cir. 1996).
10th Circuit finds obstruction for trial testimony despite contrary affidavit at sentencing. (461) Defendant was convicted of being a felon in possession of a firearm after threatening a woman with a gun. The district court imposed a § 3C1.1 enhancement based on a witness’s testimony that when she visited defendant in jail, he told her to lie and say that she handed him the gun on the night of the incident. Defendant argued that this testimony was incredible, because at sentencing he presented an affidavit signed by the witness but in defendant’s handwriting contradicting the witness’s trial testimony on this issue. The Tenth Circuit upheld the enhancement, because the district court had the opportunity to observe the witness at trial and observe her credibility. U.S. v. Farnsworth, 92 F.3d 1001 (10th Cir. 1996).
10th Circuit approves obstruction enhancement for perjury at trial. (461) Defendants challenged their obstruction of justice enhancements based on their perjury at trial. The Tenth Circuit held that the district court made adequate findings to support the enhancement. The court identified the perjurious testimony, which allowed the appellate court to review the substance of its findings. This is all that is required by U.S. v. Dunnigan, 113 S. Ct 1111 (1993). U.S. v. Lang, 81 F.3d 955 (10th Cir. 1996).
10th Circuit says attempt to make it appear someone else committed crime was obstruction. (461) Defendant mailed two letters to Pizza Hut, threatening to commit drive‑by shootings at Pizza Hut locations if he were not paid $500,000. After he was arrested, he passed a third extortion letter to a government informant, instructing him to type the handwritten letter and mail it to Pizza Hut from outside the jail. He apparently hoped to persuade authorities that someone else was the extortionist. The Tenth Circuit affirmed an obstruction of justice enhancement based on defendant’s attempt to make someone else seem responsible for his crimes. U.S. v. Bruce, 78 F.3d 1506 (10th Cir. 1996).
10th Circuit approves obstruction enhancement for inconsistent testimony about ownership of gun. (461) DEA agents found eight guns in defendant’s trailer; one rifle had been illegally shortened. Defendant was convicted of possessing an unregistered firearm. At trial, defendant stated that he did not own the shortened rifle. However, before he was charged, he had confessed to owning all the guns found in the trailer. Defendant’s current girlfriend testified that defendant did not own the rifle; however, she also had earlier stated that he owned all the guns found in the trailer. An ex‑girlfriend testified that defendant owned the rifle, and that he had told her that he would say the rifle belonged to her because “the story would be better.” The Tenth Circuit affirmed an obstruction of justice enhancement based on defendant’s testimony that he did not own the rifle in question. The judge considered all the testimony and specifically found that defendant had committed perjury. U.S. v. Rowen, 73 F.3d 1061 (10th Cir. 1996).
10th Circuit approves obstruction enhancement for intimidating witness. (461) During a telephone conversation with a co-conspirator, defendant threatened the co-conspirator and instructed him to say as little as possible if questioned by police about their drug conspiracy. The Tenth Circuit approved an obstruction of justice enhancement based on defendant’s intimidation of the co-conspirator. Note 3(a) states that the enhancement is warranted if the defendant threatens, intimidates, or otherwise unlawfully influences a co-defendant, witness, or juror, directly or indirectly, or attempts to do so. This is precisely what occurred here. U.S. v. Edwards, 69 F.3d 419 (10th Cir. 1995).
10th Circuit affirms obstruction enhancement where videotape contradicted defendant’s testimony. (461) Defendants were observed on videotape cultivating marijuana plants growing in a National Forest. They received obstruction of justice enhancements based on their trial testimony that they just happened across the marijuana patches and were not growing the plants. On appeal, defendants argued that their testimony was not false because the tape showed them only picking leaves. The 10th Circuit upheld the enhancement. The district court reviewed the evidence and made independent findings necessary to establish that defendants’ trial testimony constituted perjury that obstructed justice. The record supported the court’s determination. U.S. v. Wood, 57 F.3d 913 (10th Cir. 1995).
10th Circuit says “sham” marriage to keep witness from testifying obstructed justice. (461) Defendant ran a gambling operation. A female co-conspirator decided not to testify against him despite a grand jury subpoena. Defendant consulted an attorney about the marital privilege, and told the co-conspirator they should get married so that she could not be forced to testify against him. The Tenth Circuit affirmed an obstruction of justice enhancement based on defendant’s “sham” marriage to the co-conspirator. Defendant’s scheme amounted to aiding and abetting the obstruction of justice. U.S. v. Blair, 54 F.3d 639 (10th Cir. 1995).
10th Circuit says concealment of bank account is material regardless of balance. (461) Defendant told his probation officer that he did not have a bank account. In fact, he had previously instructed his co-defendant to open a bank account in the name of Avid Telemarketing, and although the co-defendant was the owner and sole signatory on the account, defendant was the only person who ever used the account over a four-year period. The Tenth Circuit upheld an obstruction of justice enhancement. Although defendant may not have been the legal owner of the account, it was for all practical purposes his. Therefore, his representation that he did not have a bank account was false. The falsehood was material even though there was little money in the account. A small amount of money can form the basis for an award of restitution or imposition of a fine. Moreover, an examination of the bank account could reveal valuable information about defendant’s financial history. Thus, failure to disclose a bank account, regardless of the amount of money in the account at a given time, can influence or affect a sentencing court’s decision and is therefore material. U.S. v. Nelson, 54 F.3d 1540 (10th Cir. 1995).
10th Circuit approves obstruction enhancement for attempting to hide contraband. (461) Defendant and his company were convicted of selling drug paraphernalia, cultivating marijuana, and money laundering. The district court enhanced his sentence for obstruction of justice because after learning that other businesses had been raided, defendant removed contraband from his business, and uprooted plants from his indoor garden and hid them under a dresser drawer. The Tenth Circuit found that defendant had not preserved this issue for appeal, but that even if he had, the obstruction enhancement was warranted. Note 3(d) to § 3C1.1 states that the enhancement applies where the defendant destroys or conceals material evidence. U.S. v. Janus Industries, 48 F.3d 1548 (10th Cir. 1995).
10th Circuit upholds obstruction enhancement for warning co-conspirator to conceal evidence. (461) Defendant bought a gun using a counterfeit driver’s license and check produced by a co-conspirator. When the co-conspirator was killed during a police sting operation, defendant called the co-conspirator’s girlfriend and advised her to remove everything from her house belonging to her boyfriend. The 10th Circuit upheld an enhancement for obstruction of justice based on defendant’s attempt to conceal or destroy evidence. His action related to his offense, which was facilitated by the use of the driver’s license and check made by the co-conspirator. Under commentary note 3(d), defendant’s actions did not need to materially hinder the investigation, because this is only necessary where the obstructive conduct occurs “contemporaneously with arrest.” Defendant’s instructions to the girlfriend did not take place contemporaneously with his arrest. U.S. v. Rowlett, 23 F.3d 300 (10th Cir. 1994).
10th Circuit holds that asking witness to lie before grand jury is obstruction of justice. (461) A co-defendant’s girlfriend testified that after she received a subpoena to testify before a grand jury, defendant threatened her and told her “not to tell the truth” to the grand jury and that she should “stick to the same story.” Defendant denied threatening her, but did admit that he asked her to stick to their story (that they were not involved). The 10th Circuit upheld an enhancement for obstruction of justice, since asking a witness to lie before a grand jury is an attempt to obstruct justice. The fact that the attempt was unsuccessful did not matter. U.S. v. Fetherolf, 21 F.3d 998 (10th Cir. 1994).
10th Circuit affirms obstruction enhancement for misrepresenting financial situation to court. (461) Defendant received an enhancement for obstruction of justice for giving false and incomplete information regarding her financial situation to the court. The 10th Circuit affirmed, holding that (a) the court’s adoption of specific paragraphs of the PSR provided defendant and the appellate court with a clear understanding of the information upon which it relied in imposing the enhancement, and (b) defendant’s misrepresentations about her financial status and assets justified the enhancement. The enhancement was permitted under note 3(f) to section 3C1.1 for providing materially false information to a judge or magistrate, and under note 3(f) for providing materially false information to a probation officer. Moreover, note 6 to section 5E1.2 states that if a defendant willfully misrepresents all or part of his income or assets, the court may impose the enhancement. U.S. v. Ballard, 16 F.3d 1110 (10th Cir. 1994).
10th Circuit finds obstruction of justice where defendant attempted to place blame on juvenile. (461) Defendant argued that an enhancement for obstruction of justice based on perjury was erroneous because there was no showing that the alleged perjury actually interfered with the administration of justice. The 10th Circuit found that the district court made sufficient findings to support the enhancement. Defendant made conflicting statements to police before “settling on” the position that he and his brother were jointly responsible for a marijuana growing operation. He then testified at trial that his brother was solely responsible, contradicting the weight of the evidence. The district court found this was a strategy to place the blame on a family member who was charged as a juvenile and would therefore suffer the least penalty. U.S. v. Fitzherbert, 13 F.3d 340 (10th Cir. 1993).
10th Circuit holds that use of an alias was material even though authorities quickly learned defendant’s true identity. (461) During an interview with INS agents following his arrest, defendant gave a false name. The lie was eventually discovered. He challenged an enhancement for obstruction of justice on the grounds that the misstatements concerning his identity and use of aliases were not material because they were timely uncovered by the government. The 10th Circuit upheld the enhancement. Materiality in the context of false information is not determined by whether the authorities somehow manage to ferret out accurate information before a defendant’s first court appearance. Materiality is determined by whether the defendant’s conduct was sufficient to impede the investigation, not whether it was successful in that goal. U.S. v. Flores-Flores, 5 F.3d 1365 (10th Cir. 1993).
10th Circuit holds that court made independent findings of defendant’s perjury. (461) The 10th Circuit rejected defendant’s claim that the district court failed to support its obstruction of justice enhancement by making independent findings setting out his false testimony. The district court reviewed the contradictions between the testimony of defendant and other witnesses, and determined that portions of defendant’s testimony were untruthful. These findings were sufficient to establish specific instances of perjury and support an enhancement for obstruction of justice. U.S. v. Lowder, 5 F.3d 467 (10th Cir. 1993).
10th Circuit affirms enhancement for flushing cocaine base down toilet during search. (461) Defendant received an obstruction of justice enhancement for flushing cocaine base down the toilet when police entered his apartment to execute a search warrant. The 10th Circuit found sufficient evidence that the flushed item was cocaine base. The arresting officer testified that when he entered the bathroom, he saw defendant holding three packages similar to the ones containing cocaine base that the confidential informant had bought from defendant two days earlier. Defendant dropped them in the toilet. Although the officer ordered him to stop, defendant proceeded to flush the toilet and turned around and grinned at the officer. The officer then seized 1.5 grams of cocaine base found on the bathroom vanity top next to the toilet. U.S. v. Chatman, 994 F.2d 1510 (10th Cir. 1993).
10th Circuit upholds obstruction enhancement based on independent finding of perjury. (461) The district court enhanced defendant’s sentence for obstruction of justice based on its conclusion that he committed perjury at trial. The 10th Circuit found that the court complied with the requirement to review the evidence and make “independent findings” that the defendant willfully gave false testimony. The district court noted that it was not basing its decision solely on the jury’s verdict, but also on its own assessment of the correctness of the verdict. Defendant’s testimony centered on important matters about which it was not likely that defendant was merely confused or mistaken. U.S. v. Garcia, 994 F.2d 1499 (10th Cir. 1993).
10th Circuit says no relationship need exist between offense and obstructive conduct. (461) Defendant received an enhancement for obstruction of justice because, while awaiting sentencing on a federal firearms charge, he allegedly attempted to escape from county jail. The 10th Circuit affirmed the enhancement, rejecting defendant’s claim that a relationship must exist between the guidelines offense and the obstructive conduct. Application note 3(e) provides that escaping or attempting to escape from custody before trial or sentencing is grounds for the obstruction enhancement. Nothing more is required. The obstruction enhancement was also grounds for denying defendant a reduction for acceptance of responsibility. U.S. v. Amos, 984 F.2d 1067 (10th Cir. 1993).
10th Circuit upholds obstruction enhancement for threatening witness. (461) The 10th Circuit upheld an enhancement for obstruction of justice for threatening a witness while in custody before trial. Although the witness did not testify at sentencing, his statement was contained in the presentence report. The witness stated that defendant told him that he and his family would “never live.” Defendant simply testified, without further elaboration, that he did not make the statement. The appellate court assumed the sentencing court found defendant’s denial incredible. U.S. v. Guadalupe, 979 F.2d 790 (10th Cir. 1992).
10th Circuit affirms obstruction enhancement for advising witness to lie to FBI, participating in false deed, and threatening witness. (461) The 10th Circuit affirmed that both defendants deserved an enhancement for obstruction of justice in light of evidence that the first defendant (with the second defendant present) told a witness to lie to the FBI, the second witness participated in the preparation of a false deed, and the first witness threatened a potential witness regarding her testimony. U.S. v. Hollis, 971 F.2d 1441 (10th Cir. 1992).
10th Circuit upholds obstruction enhancement for defendant who lied at plea hearing to protect co-conspirators. (461) Defendant and several co-defendants were arrested for their participation in a “reverse buy” of marijuana. Four of the defendants chose to go to trial while defendant pled guilty on the eve of his scheduled trial. The 10th Circuit upheld an enhancement for obstruction of justice under section 3C1.1 based on defendant’s false testimony at his plea hearing concerning the roles of the co-defendants who were to go to trial. Defendant lied about the roles of his friends in order to protect them, notwithstanding the overwhelming evidence of the friends’ guilt. The obstruction enhancement applies where a defendant attempts to obstruct justice in a case closely related to his own, such as that of a co-defendant. Moreover, defendant’s perjury with respect to the actors associated with him in the transaction could have been an attempt to affect his own sentencing, to hide his role in the offense. U.S. v. Bernaugh, 969 F.2d 858 (10th Cir. 1992).
10th Circuit affirms obstruction enhancement based on efforts to get co-defendant to retract information provided to police. (461) The government introduced evidence that defendant, while incarcerated at the county detention center, asked his co-defendant to retract the information the co-defendant had already provided to authorities. Defendant told the co-defendant that if he would tell the police that he had obtained the cocaine from someone other than defendant, then defendant would obtain a lawyer for the co-defendant. The 10th Circuit affirmed that this was a sufficient ground for an obstruction of justice enhancement under guideline section 3C1.1. Attempting to influence the testimony of a potential witness can form the basis for an obstruction enhancement. U.S. v. Hernandez, 967 F.2d 456 (10th Cir. 1992).
10th Circuit affirms obstruction enhancement based upon false testimony at trial. (461) The 10th Circuit affirmed an enhancement under section 3C1.1 based upon the district court’s finding that defendant obstructed justice by giving false testimony at trial. “Our deference to the district court is especially appropriate when the issue concerns questions of a witness’ credibility.” U.S. v. Litchfield, 959 F.2d 1514 (10th Cir. 1992).
10th Circuit upholds obstruction enhancement based upon threats to witnesses. (461) At defendant’s trial several witnesses testified that defendant threatened to harm them if they testified against him or cooperated with authorities in their investigation of defendant. At the sentencing hearing, defendant denied making any threats. The 10th Circuit upheld an enhancement for obstruction of justice. Threatening a witness either before the witness testifies and prior to conviction or sentencing, or after the witness testifies, but prior to sentencing, is clearly within the scope of guidelines section 3C1.1. U.S. v. Hershberger, 956 F.2d 954 (10th Cir. 1992).
10th Circuit upholds obstruction enhancement where defendant instructed co-conspirator to throw cocaine from car. (461) Defendant received an enhancement for obstruction of justice after a co-conspirator testified that as police were attempting to overtake the car, defendant handed a bottle to a coconspirator and ordered her to throw it out the window, which she did. The bottle was later retrieved by police and found to contain cocaine. The 10th Circuit affirmed an enhancement based upon this evidence. The activity “indisputably” amounted to obstruction of justice. Although defendant contended that the co-conspirator’s testimony was not credible, the district court was entitled to believe it. U.S. v. Cook, 949 F.2d 289 (10th Cir. 1991).
10th Circuit upholds threatening letters as grounds for obstruction enhancement. (461) The government presented letters which defendant had written to an informant and potential witness against defendant. One letter noted that the government had done a good job of protecting the informant and that defendant had been “every day” trying “to get at” the informant for what he did to defendant. The other letter stated that defendant had “sent out copies of this paper to people I [know] here & with any luck maybe someone out there hates rats and will punish [the informant] and his family for me.” The 10th Circuit upheld the district court’s decision to enhance defendant’s offense level for obstruction of justice. Threatening, intimidating or attempting to unlawfully influence a co-defendant, witness or juror is grounds for the adjustment. U.S. v. McCann, 940 F.2d 1352 (10th Cir. 1991).
10th Circuit upholds obstruction enhancement based upon false testimony. (461) The 10th Circuit upheld the district court’s decision to enhance defendant’s sentence based upon his false testimony. The district court had found that defendant engaged in “material conduct” by giving a “fabricated version of what took place and his lack of involvement.” Defendant “maintained all the way along that he wasn’t involved in this bank robbery,” although the court found that he clearly was involved. U.S. v. Morgan, 936 F.2d 1561 (10th Cir. 1991).
10th Circuit affirms obstruction enhancement for defendant who used an alias. (461) The district court found that defendant had obstructed justice by withholding his true identity from law enforcement officials at the time of his arrest, and from the U.S. Magistrate at three separate court appearances. The 10th Circuit affirmed. Although Application Note 4 bars a sentence enhancement for use of an alias at arrest, Application Note 3(f) states that providing materially false information to a judge or magistrate merits an obstruction enhancement. Even if defendant was intoxicated at his arrest, he was not intoxicated each time he appeared before the magistrate. Although he gave his driver’s license with his correct name to the FBI, he permitted the court to prosecute him under the alias. Moreover, even if defendant’s attorney advised him to give an alias to the magistrate, the district court expressly found that defendant would have used an alias regardless of his attorney’s advice. U.S. v. Gardiner, 931 F.2d 33 (10th Cir. 1991).
10th Circuit upholds obstruction of justice enhancement based on defendant’s failure to appear at sentencing hearing. (461) Defendant failed to appear for his sentencing hearing. He turned himself in and was sentenced several days later. The 10th Circuit upheld an enhancement for obstruction of justice based on defendant’s original failure to appear at his sentencing hearing. Although his failure to appear did not “closely resemble” the examples provided in the guidelines, it did “impede[ or obstruct . . . the administration of justice during the prosecution of the instant offense .ÿ.ÿ. by delaying the imposition of his sentence for some ten days.” U.S. v. St. Julian, 922 F.2d 563 (10th Cir. 1990).
10th Circuit holds that sentencing judge need not find that defendant testified untruthfully beyond a reasonable doubt. (461) Defendant argued that permitting the sentencing court to consider his untruthfulness at trial violated due process because it allowed the court to “draw the line” between what is true or false, and because he was being punished for perjury, a crime for which he was not convicted. The 10th Circuit noted that these arguments were “flatly rejected” in U.S. v. Grayson, 438 U.S. 41. The fact that Grayson was a preguideline case did not affect its holding as to due process. The court also rejected the defendant’s argument that the evidence was insufficient to support the trial court’s finding. The court found no due process violation in the sentencing court’s consideration — based on a preponderance of the evidence — of criminal activity for which the defendant had never been charged or convicted. Thus the trial court was not clearly erroneous in adjusting the defendant’s sentence upward for obstruction of justice. U.S. v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990).
10th Circuit upholds adjustment for obstruction of justice based on defendant’s perjury, despite constitutional arguments. (461) Defendant argued that increasing his sentence for obstruction of justice based on his perjury at trial violated his due process right to testify. He argued that he had the right not to be placed on the “horns of a dilemma by having to decide whether the trial judge will punish him harsher at the sentencing stage if the jury returns a verdict of guilty and he testifies at trial.” The 10th Circuit rejected the argument, noting that prior to the guidelines it was not unconstitutional for a sentencing judge to consider a defendant’s false testimony. The court found no reason to apply a different rule to the guidelines. U.S. v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990).
10th Circuit approves enhancement for obstruction of justice due to defendant’s perjury. (461) The District Court enhanced defendant’s sentence, pursuant to guideline § 3C1.1, based on a finding that defendant perjured himself at trial. Defendant argued that presenting his theory of defense and denying guilt should not subject him to the possibility of an increase in punishment for perjurious testimony. The 10th Circuit disagreed. A denial of guilt or exercise of the right to testify in one’s own defense is not a basis for an enhancement under guidelines § 3C1.1. However, giving or suborning perjurious testimony is not the exercise of a constitutional right, and therefore the enhancement was proper. U.S. v. Keys, 899 F.2d 988 (10th Cir. 1990).
10th Circuit upholds enhancement for obstruction of justice for failing to disclose prior arrest. (461) In speaking to a pretrial services officer, defendant failed to disclose a prior arrest which had led to a conviction that was later reversed by the State Supreme Court. The district court enhanced her offense level for obstruction of justice because the defendant supplied false information regarding prior arrests. The 10th Circuit affirmed the enhancement, holding that the district court’s findings were not clearly erroneous. U.S. v. Williams, 897 F.2d 1034 (10th Cir. 1990).
11th Circuit applies obstruction increase for perjured testimony about involvement in robbery. (461) Despite defendant’s testimony that he was not involved in the armed robbery of a convenience store, a jury convicted him of robbery and firearms charges. The Eleventh Circuit held that the district court did not clearly err in imposing an enhancement for obstruction of justice. The record fully supported the district court’s finding that defendant perjured himself, because his testimony that he had no involvement in the robbery was material to the issue of his guilt, and was expressly contradicted by DNA and fingerprint evidence from the scene of the crime. While a defendant has a right to testify on his own behalf, “a defendant’s right to testify does not include a right to commit perjury.” U.S. v. McKinley, 732 F.3d 1291 (11th Cir. 2013).
11th Circuit approves obstruction increase for child porn ring’s elaborate methods to escape detection. (461) Defendants participated in a sprawling international child pornography ring, comprised of at least 64 individuals sharing more than 400,000 images and 1,000 videos of child pornography in at least six countries. The Eleventh Circuit upheld a § 3C1.1 obstruction of justice increase based on the elaborate and sophisticated methods the ring used to escape detection, including a maze of rotating newsgroups and parallel newsgroup postings to communicate and to hide their communications from outside, and having separate keys for encryption of the newsgroup text posts and for uploads of images and videos. Previous cases have rejected the argument that actions taken to escape detection were not obstructive. See U.S. v. Wayerski, 624 F.3d 1342 (11th Cir. 2010). There is no requirement that a defendant’s obstructive acts occur subsequent to the formal commencement of an investigation. U.S. v. McGarity, 669 F.3d 1218 (11th Cir. 2012).
11th Circuit affirms obstruction where defendant “wiped” his computer rather than answering door. (461) Defendant was a member of a child pornography ring. When agents sought to execute a search warrant at defendant’s home by “knocking and announcing,” he ignored their request for about 30 minutes. When they finally gained entrance into his home with the assistance of a locksmith, law enforcement found him in his living room, running a destructive “wipe” program on his computer. The Eleventh Circuit upheld an obstruction of justice enhancement based on defendant’s actions when the agents attempted to enter his home. U.S. v. McGarity, 669 F.3d 1218 (11th Cir. 2012).
11th Circuit upholds obstruction increase for lies to probation officer during pretrial interview. (461) Defendant applied for a U.S. passport under an alias. Before his initial court appearance, defendant was interviewed by a probation officer. During the interview, defendant represented that the alias was his true name, and gave a false date and place of birth. Defendant was convicted of aggravated identity theft, and received a two-level increase for obstruction of justice based on the false information he provided to the probation officer during his pretrial services interview. The Eleventh Circuit affirmed. Defendant’s obstructive conduct occurred during the investigation and prosecution of the aggravated identity theft offenses. The information was included in a pretrial services report that was prepared for the magistrate judge and was to be used at defendant’s bond hearing. Moreover, once the interview began, the probation officer informed defendant that any information he provided would be used for bond purposes, and that if he provided any false information, it could be used against him. The information was clearly material – defendant’s true identity and citizenship status were relevant to the magistrate’s bond determination. Because his conduct fell squarely within note 4(H), the government was not required to show an actual, significant obstruction or hindrance. U.S. v. Doe, 661 F.3d 550 (11th Cir. 2011).
11th Circuit reverses court’s refusal to apply obstruction enhancement. (461) Defendant was charged with forcibly assaulting, resisting, opposing and interfering with three U.S. Marshals who were attempting to arrest him. At trial, he testified that he did not recognize his pursuers as federal marshals, and believed they were carjackers. The Eleventh Circuit held that the district court erred by refusing to enhance defendant’s sentence for obstruction of justice for committing perjury at trial. Defendant’s testimony that he did not recognize his pursuers as federal marshals was irreconcilable with the record. The federal marshals testified that they wore vests that clearly identified them as law enforcement officers, at least one marshal attempted to approach defendant, and the marshals activated emergency lights and sirens that an eyewitness testified made the vehicles recognizable to the public. Although defendant claimed he did not intend to assault the officers, the evidence established that he used his vehicle as a battering ram to escape from a parking lot, and to attempt to force one marshal’s vehicle off a high ramp. At sentencing, defendant insisted that he was innocent of wrongdoing and the marshals were to blame for the incident. U.S. v. Williams, 627 F.3d 839 (11th Cir. 2010).
11th Circuit upholds obstruction increase for evasive measures taken before investigation began. (461) Four defendants were convicted of engaging in multiple child-pornography offenses. The PSR reported numerous obstructive acts that defendants took during the course of their child exploitation enterprise to avoid detection and thwart any law enforcement investigation. For example, defendants used continuously changing encryption keys to decipher and encrypt material posted to newsgroups, periodically moved from one newsgroup to another and changed their nicknames, used sophisticated computer file swapping techniques, and used special software that could lock down a computer or wipe it clear if law enforcement entered a member’s home. They argued that a § 3C1.1 obstruction of justice increase was inapplicable because at the time they took these precautions, they were not under arrest and did not know that they were under investigation. The Eleventh Circuit affirmed, finding that there was no requirement that a defendant be under arrest or know he is being investigated at the time he commits obstructive acts. U.S. v. Wayerski, 624 F.3d 1342 (11th Cir. 2010).
11th Circuit affirms refusal to give dispositive weight to third polygraph that contradicted jury’s verdict. (461) The district court applied an obstruction of justice increase, finding that defendant “blatantly lied” during her testimony at trial. She argued that the district court erred by refusing to consider the exculpatory results of a post-verdict polygraph examination. The Eleventh Circuit found no error. The district court did not “refuse to consider” the polygraph test. The court’s ruling was better understood as a refusal to give dispositive weight to the results of defendant’s third polygraph test. It was not a blanket prohibition on considering the exams, but instead a finding that the evidence that defendant gave perjured testimony was so overwhelming that no polygraph could sway the district court’s decision, especially not a third exam taken after the first two were inconclusive. The court did not err in refusing to give the third polygraph dispositive weight when it directly contradicted the jury’s verdict. U.S. v. Mateos, 623 F.3d 1350 (11th Cir. 2010).
11th Circuit upholds obstruction increase for warning employee not to cooperate with authorities. (461) Defendant was convicted of three misdemeanor counts of willful failure to file income tax returns. The district court applied a § 3C1.1 obstruction of justice increased based on defendant’s instructions to an employee not to respond to a grand jury subpoena. Defendant warned her that she would have to “pay the consequences” if she cooperated with the federal tax investigation. Defendant argued that because the subpoena was never entered into evidence, the government did not prove that the subpoena actually related to the charges in the indictment. The Eleventh Circuit affirmed the obstruction enhancement. The district court did not clearly err in finding that the evidence was sufficient to establish that the subpoena was related to the charged tax offenses. The court also did not err in finding that defendant’s threat that the employee would “pay the consequences” if she cooperated with authorities was an obstruction of justice. U.S. v. Snipes, 611 F.3d 855 (11th Cir. 2010).
11th Circuit upholds obstruction increase where trial testimony directly contradicted grand jury testimony. (461) The district court applied a two-level enhancement for obstruction of justice. Defendant’s trial testimony directly contradicted his grand jury testimony on a material matter. He testified before the grand jury that he knew what he was doing was illegal, but he later testified at trial that he only found out what he was doing was illegal after the fact, and that the prosecutors had influenced him to falsely admit criminal activity. The Eleventh Circuit found no clear error in applying the obstruction increase. U.S. v. Jennings, 599 F.3d 1241 (11th Cir. 2010).
11th Circuit upholds obstruction increase for false name given to magistrate judge. (461) Defendant was a Cuban agent convicted of conspiracy to gather and transmit national-defense information, in violation of 18 U.S.C. § 794. The district court applied an obstruction of justice enhancement because defendant gave a false name to the magistrate judge at his pretrial detention hearing. Defendant argued that his deception was part of the offense, instead of the “investigation, prosecution or sentencing.” He also claimed that the evidence did not establish that he had the requisite mens rea or that his conduct significantly hindered the prosecution or investigation of the offense. The Eleventh Circuit rejected each of these arguments. Note 1 does not exclude from the scope of § 3C1.1 conduct that relates to the offense of conviction. Providing a false name to a magistrate at a detention hearing qualifies as obstructive conduct. see Note 4(f) to § 3C1.1. U.S. v. Campa, 529 F.3d 980 (11th Cir. 2008).
11th Circuit upholds obstruction increase for false name given to magistrate judge. (461) Defendant was a Cuban agent convicted of conspiracy to gather and transmit national-defense information, in violation of 18 U.S.C. § 794. The district court applied an obstruction of justice enhancement because defendant gave a false name to the magistrate judge at his pretrial detention hearing. Defendant argued that his deception was part of the offense, instead of the “investigation, prosecution or sentencing.” He also claimed that the evidence did not establish that he had the requisite mens rea or that his conduct significantly hindered the prosecution or investigation of the offense. The Eleventh Circuit rejected each of these arguments. Note 1 does not exclude from the scope of § 3C1.1 conduct that relates to the offense of conviction. Providing a false name to a magistrate at a detention hearing qualifies as obstructive conduct. see Note 4(f) to § 3C1.1. U.S. v. Campa, 529 F.3d 980 (11th Cir. 2008).
11th Circuit finds that defendant directed bookkeeper to alter records to conceal misuse of federal funds. (461) Defendant, the executive director of a non-profit organization, was convicted of fraud and theft of federal funds in connection with the misuse of grant funds the organization received from a federal agency. The district court applied an obstruction of justice increase because defendant began to amend the accounting system to remove some of the unapproved expenditures after learning of the allegations and the pending investigation. Defendant contended that she bore no fraudulent intent when she ordered the reallocation of expenses in the accounting program, and that she was only correcting her prior misunderstanding of how program expenditures should be classified under government regulations. The Eleventh Circuit disagreed, and upheld the enhancement. There was sufficient evidence in the record to support the court’s finding that defendant did in fact direct the bookkeepers to alter the non-profit’s accounting records to conceal the unapproved expenditure of federal funds. U.S. v. Williams, 527 F.3d 1235 (11th Cir. 2008).
11th Circuit applies obstruction increase for calling witness defendant knew would give perjured testimony. (461) Defendant was convicted of possessing a firearm in a school zone. The district court found that several of defendant’s witnesses lied, and applied an obstruction of justice increase. Defendant objected on the ground that there was no evidence that he asked the witnesses to testify falsely. However, defendant knew that his witnesses would give perjured testimony. The Eleventh Circuit held that when a defendant calls a witness to testify on his behalf, knowing that the witness will give perjured testimony, the defendant suborns perjury, or, at least, “aid[s] and abet[s], … procure[s], or willfully cause[s]” the witnesses perjured testimony. The defendant is directly responsible for the proffering of the perjured testimony before the court, and obstructs the administration of justice under § 3C1.1. U.S. v. Bradberry, 466 F.3d 1249 (11th Cir. 2006).
11th Circuit upholds obstruction increase where FBI agent told defendant of investigation prior to attempted escape. (461) The district court applied a § 3C1.1 obstruction of justice increase because it found that defendant attempted to escape from county jail to avoid federal prosecution. He was being held in the county jail as a pretrial detainee, having been charged by the state for committing the bank robberies at issue here. An FBI agent came to the jail and informed defendant that the federal government was investigating the robberies and that he was a target of the investigation. Defendant argued that § 3C1.1 was inapplicable because no federal charges were pending at the time of his escape attempt. However, other courts have expressly found that the obstruction increase is applicable where the defendant’s conduct obstructed a state investigation, which later turned into a federal investigation. Here, because an FBI agent had informed defendant prior to his attempted escape that the federal government was going to prosecute him, the Eleventh Circuit held that the district court was justified in imposing the obstruction enhancement. U.S. v. Frasier, 381 F.3d 1097 (11th Cir. 2004).
11th Circuit upholds obstruction increase where defendant concocted false exculpatory tale. (461) Defendant withdrew for his personal use about $1.5 million from a client’s account in Austria. The U.S. government had previously informed defendant that all of his client’s funds were drug-tainted and forfeitable to the U.S. When the government asked defendant about the account, defendant lied about the location of the money and about the purpose of the transfers, stating that the money was used to support his client’s family. Based on this conversation, the government, with the help of foreign governments, traced the money and discovered it had been used for defendant’s own use. The Eleventh Circuit affirmed an obstruction of justice increase. Defendant did not simply deny his guilt; he concocted a false, exculpatory story that misled the government. The obstruction increase did not result in double counting. Defendant’s false statements were not part of is offense of tax evasion. U.S. v. Uscinski, 369 F.3d 1243 (11th Cir. 2004).
11th Circuit affirms obstruction increase for feigning amnesia and attempted arson. (461) The district court relied on three grounds to justify an obstruction of justice enhancement. The Eleventh Circuit found that two of those grounds independently supported the increase, and declined to address the third. First, defendant feigned amnesia, and his malingering postponed the trial for a year, forcing the government to waste time and resources in evaluating his competency. Second, defendant was involved in the attempted arson at his accountant’s office, which was undertaken to destroy documents relevant to defendant’s tax fraud. The enhancement did not “chill” a defendant’s right to seek a competency hearing, since a defendant has no right to improperly create a doubt as to his competency. There was sufficient evidence to connect defendant to the attempted arson, since one of defendant’s co-conspirators testified about it at the sentencing hearing. U.S. v. Patti, 337 F.3d 1317 (11th Cir. 2003).
11th Circuit upholds obstruction increase where defendant gave contrary information in attempt to withdraw plea. (461) Defendant swore at her original plea colloquy that she was guilty of the crimes charged in counts one and four of the indictment and that she was pleading guilty voluntarily. Later in support of her motion to withdraw her plea, she told the district court, again under oath, that she was not guilty, that she pled guilty at the behest of her attorney and that her plea was predicated on a belief that she would receive between six and 12 months’ imprisonment. One of these accounts necessarily was dishonest, and the Eleventh Circuit held that the district court acted within its discretion in crediting the former and discrediting defendant’s later disavowal of the voluntariness and intelligence of her guilty plea. Under these circumstances, an obstruction of justice increase was proper. U.S. v. Freixas, 332 F.3d 1314 (11th Cir. 2003).
11th Circuit approves obstruction increase for false testimony to SEC and attempt to get others to commit perjury. (461) Defendants were convicted of wire fraud based on their roles in corrupting the process by which a county selected an underwriter for a bond project. The Eleventh Circuit found that the record clearly established that both defendants obstructed justice. They each provided false testimony to the Securities and Exchange Commission in an effort to conceal their conduct. In addition, each of them encouraged another person to provide false testimony. The first defendant tried to convince a middleman in the scheme to sign a false affidavit, and the other defendant persuaded a colleague of his at his company to lie to the SEC. Finally, the first defendant provided false testimony at trial and stubbornly maintained his incredible testimony that the money he received was for legitimate, unrelated consulting engagements. U.S. v. Poirier, 321 F.3d 1024 (11th Cir. 2003).
11th Circuit holds that pinching government witness after trial warranted obstruction increase. (461) After trial but before sentencing, defendant approached a cooperating co-conspirator at the local jail yard and pinched him. Defendant said nothing to the co-conspirator during this incident. The district court applied an obstruction of justice increase based on defendant’s assault of the co-conspirator, who had been a witness at defendant’s trial. Defendant tried to minimize the nature of the assault, and contended that because it occurred after trial, it had no effect on the investigation or prosecution of his case. The Eleventh Circuit held that the district court did not clearly err in finding that defendant’s assault on the co-conspirator was in retaliation for the co-conspirator’s cooperation with the government during the investigation and trial. As such the assault warranted a § 3C1.1 obstruction of justice increase. U.S. v. Rubio, 317 F.3d 1240 (11th Cir. 2003).
11th Circuit affirms obstruction increase based on testimony that court identified as false and material. (461) Defendant was convicted of extortion charges after he and his co-conspirators forced the owners of a nightclub to sign over ownership of the club to the conspirators. The district court found that two of defendant’s statements at trial were false and material, and applied an obstruction of justice increase. One statement concerned whether or not defendant, a former owner of the club, had received $30,000 for his interest in a nightclub. The other statement involved whether defendant told a co-conspirator not to allow the victims to leave the nightclub until the “meeting” was over. The Eleventh Circuit affirmed the obstruction increase. Two owners testified that defendant received three installments totaling $30,000 for his share, thereby refuting defendant’s statement that he had not received any compensation for his interest in the club. Another witness testified that defendant stated that no one was to leave until the meeting was over. This contradicted defendant’s contention that he never told anyone to stop the owners from leaving the nightclub. U.S. v. Vallejo, 297 F.3d 1154 (11th Cir. 2002).
11th Circuit applies obstruction increase for perjury at sentencing hearing. (461) The district court applied an obstruction of justice increase, finding that defendant had provided false testimony at his sentencing hearing when he denied a Kuwaiti connection to his call sell scheme, denied placing the telephone calls himself, and denied using the names and social security numbers on his “customer list” in order to fraudulently establish telephone service. The Eleventh Circuit agreed that the record supported the district court’s perjury finding. First, it deferred to the district court’s credibility finding as it had the opportunity to see defendant and view him while he testified. Second, the evidence established that the calls originated from the U.S., and 90 percent of those calls were made to Kuwait. Third, defendant called the same telephone numbers in Kuwait from each location where he fraudulently established telephone service. Fourth, defendant’s testimony that five customers from New York followed him around the country in order to use his telephone service was unworthy of credence. Fifth, defendant received a $500 wire transfer from Kuwait. Thus, defendant’s continued denial of a Kuwaiti connection was incredible, a result of a willful intent to provide false testimony, and could not be the result of mistake or confusion. U.S. v. Singh, 291 F.3d 756 (11th Cir. 2002).
11th Circuit says obstruction increase does not require threat to be communicated to witness. (461) Defendant did not dispute the district court’s finding that he made threats against a government witness. Rather, he argued that § 3C1.1 requires that the threat be communicated to the witness, and that the district court failed to make a finding regarding the communication of the threat to the witness. The Eleventh Circuit, agreeing with the Second, Eighth, and Ninth Circuits, held that the obstruction enhancement does not require a threat to be communicated directly to the threatened person. See U.S. v. Shoulberg, 895 F.2d 882 (2d Cir. 1990); U.S. v. Capps, 952 F.2d 1026 (8th Cir. 1991); U.S. v. Jackson, 974 F.2d 104 (9th Cir. 1992). But see U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992) (holding that § 3C1.1 requires that the defendant either threaten the target in his presence or issue a threat with the likelihood that the target will learn of it). Here, a U.S. Marshal testified that several prison inmates contacted him and informed him that defendant had made threats against him and one of the inmate witnesses. The district court did not err in finding this was an attempt to obstruct justice by influencing or attempting to influence testimony through a threat. U.S. v. Bradford, 277 F.3d 1311 (11th Cir. 2002).
11th Circuit upholds use of hearsay to support obstruction increase. (461) The district court applied an obstruction of justice increase based on hearsay testimony that defendant threatened an unindicted co-conspirator. The Eleventh Circuit held that the district court properly considered the hearsay evidence. A district court may rely on such evidence “as long as the evidence has sufficient indicia of reliability, the court makes explicit findings of fact as to credibility, and the defendant has an opportunity to rebut the evidence.” The district court found that the testifying agent was a credible witness, and there was ample evidence to corroborate the testimony. In addition, both parties had an opportunity to submit their arguments to the court before a ruling on the enhancement was entered. U.S. v. Zlatogur, 271 F.3d 1025 (11th Cir. 2001).
11th Circuit rules detailed obstruction findings not needed in light of record. (461) The district court applied an obstruction of justice increase, finding that defendant “influenced Michael Hunter to give a false affidavit concerning material facts.” Defendant complained that the district court erred by failing to make specific findings of fact regarding which material facts Hunter testified falsely about or how defendant was responsible for them. The Eleventh Circuit found that although such detailed findings were preferable, they were not required “in the context of the record.” The district court indicated that its finding relied upon the evidence presented at trial, and the court expressly adopted the PSR. The addendum to that report, which addressed defendant’s objections to obstruction enhancement, discussed in detail defendant’s actions that warranted the enhancement. Moreover, because defendant did not request more specific findings of fact by the district court, it was too late to complain. U.S. v. Smith, 231 F.3d 800 (11th Cir. 2000).
11th Circuit says defendant’s post-flight conduct not inherent in failure to appear. (461) Note 2 to § 2J1.6 says that the obstruction enhancement does not apply to a failure to appear “unless the defendant obstructed the investigation or trial of the failure to appear count.” Defendant argued that an obstruction enhancement to his bond jumping offense level was improper because the reasons the court relied upon were already taken into account in formulating the applicable guideline. He cited U.S. v. Sarna, 28 F.3d 657 (7th Cir. 1994), in which the Seventh Circuit opined that fleeing the jurisdiction, working under an assumed name and evading law enforcement were types of conduct inherent in the offense of failure to appear and thus were not grounds for a departure. The Eleventh Circuit ruled that even if certain typical post-flight conduct is inherent in the crime of failure to appear, defendant’s conduct did not fall within that category. The documents found on defendant at the time of his arrest showed that defendant directed his family and friends to assist him in remaining at large by assessing a large amount of cash, erasing his asset trail, and instructing his son regarding his son’s grand jury testimony. U.S. v. Magluta, 198 F.3d 1265 (11th Cir. 1999), vacated in part on other grounds, 203 F.3d 1304 (11th Cir. 2000).
11th Circuit rules that court’s general findings were sufficient for obstruction enhancement. (461) In rejecting defendant’s objection to an obstruction of justice enhancement, the court found that “the defendant was untruthful at the trial with respect to each of the material matters and his involvement in it, and … the testimony he gave was designed to substantially affect the outcome of his case and for him to escape any responsibility.” The Eleventh Circuit held that these general findings were sufficient to support an obstruction of justice enhancement based on defendant’s trial perjury. “Although it is preferable that the district court make specific findings by identifying the materially false statements individually, it is sufficient if the court makes a general finding of obstruction encompassing all the factual predicates of perjury.” U.S. v. Diaz, 190 F.3d 1247 (11th Cir. 1999).
11th Circuit applies increases for assaulting officer during flight and reckless endangerment during flight. (461) When Secret Service officers tried to arrest defendant in his car, he attempted to hit one of the officers with his car and then fled. After an ensuing race in which defendant drove on the wrong side of the road at more than double the speed limit, defendant was arrested. The Eleventh Circuit held that a § 3A1.2(b) enhancement for assaulting an officer during flight and a § 3C1.2 enhancement for reckless endangerment during flight was not impermissible double counting. Unlike cases in which courts have found such enhancements to be double counting, see U.S. v. Hayes, 135 F.3d 435 (6th Cir. 1998), the enhancements were not levied “solely on the basis of the same conduct.” Defendant’s conduct did not occur in a small area of only “two or three car lengths,” or in a brief expanses of time. Rather, defendant’s assault of the agent was separated temporally and spatially from his subsequent, reckless conduct in leading police on a high-speed chase. This was not a single, uninterrupted event. U.S. v. Rodriguez-Matos, 188 F.3d 1300 (11th Cir. 1999).
11th Circuit applies obstruction enhancement for encouraging co-conspirator to flee. (461) After a co-conspirator White had been detained by police and served with a grand jury subpoena to provide fingerprints, photographs, and handwriting exemplars, defendant encouraged White to flee. Defendant argued that simply avoiding or fleeing from arrest does not justify the obstruction of justice enhancement, and therefore his encouraging of this conduct should also not constitute obstruction. The Eleventh Circuit rejected this argument because it presumed that White’s conduct was mere avoidance of arrest, when in fact, it was obstructive in and of itself. Although simple disappearance, without more, does not constitute obstruction of justice, see U.S. v. Alpert, 28 F.3d 1104 (11th Cir. 1994) (en banc), White’s conduct was more than mere flight. White deliberately refused to comply with a properly served subpoena to provide fingerprints, photographs and exemplars. In U.S. v. Taylor, 88 F.3d 938 (11th Cir. 1996), a defendant’s failure to comply with a subpoena for handwriting exemplars supported a § 3C1.1 enhancement. The fact that White fled, whereas the defendant in Taylor appeared as required, did not bring the case within the scope of Alpert. U.S. v. Rudisill, 187 F.3d 1260 (11th Cir. 1999).
11th Circuit applies obstruction enhancement for failure to report to treatment facility. (461) Before releasing defendant on bail, the judge ordered her to reside at STEP, a residential drug treatment center, and report on a regular basis to the pretrial services agency. Defendant did not report to STEP and did not report to the pretrial services agency. A warrant was issued for her arrest and she was taken into custody pending her sentencing hearing one month later. The Eleventh Circuit held that defendant’s failure to admit herself to STEP’s residential treatment facility and to report to her pretrial services officer supported an obstruction enhancement, since it: (1) caused a magistrate judge to entertain the pretrial services’ petition for a warrant for defendant’s arrest; (2) caused the U.S. Marshal’s Service to take defendant into custody; (3) caused a second magistrate judge to hold a preliminary revocation hearing; and (4) caused the same magistrate judge to hold a detention hearing. By taking the court time of the magistrate judges in this way, defendant prevented the judges from attending to other judicial business and therefore impeded the administration of justice. U.S. v. Witherell, 186 F.3d 1343 (11th Cir. 1999).
11th Circuit upholds obstruction enhancement based on perjury at trial. (461) An insurance carrier sent defendant a casualty-loss check in settlement of his corporation’s claim for a fire loss. Although the check was made payable to defendant’s corporation and various other parties, defendant deposited the check in his corporation’s account with only the endorsement of some of the parties. Defendant then withdrew funds for his own use. The bank suffered a loss in the amount it had to pay the parties who had not endorsed the check. At trial, defendant testified that after meeting with the bank manager, he did not believe that he needed the endorsements of all payees. However, the bank manager testified that he told defendant to get endorsements and signature guarantees for all payees. An FBI agent testified that defendant told him that the bank manager advised him to get all payees’ endorsements. The Eleventh Circuit affirmed an obstruction of justice enhancement based on defendant’s perjury. Defendant’s attempt to distinguish between what he “understood” following his meeting and what the bank manager told him was disingenuous. U.S. v. Gregg, 179 F.3d 1312 (11th Cir. 1999).
11th Circuit applies obstruction enhancement for threat and false statements about financial status. (461) The district court applied an obstruction of justice enhancement based on (1) false statements defendant made to a magistrate judge at an indigency hearing to determine his eligibility for court-appointed counsel, and (2) his statement to a VA employee that he “would like to blow [the investigating FBI agent’s] brains out.” The Eleventh Circuit affirmed the enhancement, noting that it has previously rejected arguments that statements concerning financial status were irrelevant to the offense. In addition, the fact that defendant did not intend, or anticipate, that his threat would be communicated to the FBI agent did not make the enhancement improper. U.S. v. Hitt, 164 F.3d 1370 (11th Cir. 1999).
11th Circuit approves obstruction enhancement for perjury at trial. (461) Defendant was convicted by a jury of drug charges. The Eleventh Circuit upheld an obstruction of justice enhancement based on his testimony at trial and at two prior bond revocation hearings. Perjury under oath on material matters, not due to confusion or mistake, justifies an increase. Defendant could not object that the court’s perjury findings were not sufficiently detailed. The PSR, which the district court adopted, spelled out the perjurious statements and the government elaborated on these during the sentencing hearing. More importantly, defendant did not request particularized findings at the sentencing hearing. U.S. v. Hubert, 138 F.3d 912 (11th Cir. 1998).
11th Circuit upholds obstruction enhancement for perjury at sentencing. (461) Defendant kidnapped a woman from a gas station, drove her across state lines, and raped her. He pled guilty to kidnapping. At sentencing, he admitted the kidnapping, but denied the rape, contending instead that they had consensual sex. The Eleventh Circuit held that the district court’s finding were adequate to support an obstruction of justice enhancement based on defendant’s perjury at sentencing. The court found that defendant’s testimony was a “concoction,” and that the victim had been sexually assaulted. The inconsistencies in defendant’s testimony, as well as the contradictions with other witness testimony, supported the conclusion that defendant intended to testify falsely, without confusion, about material matters. U.S. v. Lewis, 115 F.3d 1531 (11th Cir. 1997).
11th Circuit affirms § 3C1.1 enhancement for refusing to provide handwriting exemplars. (461) The district court applied a § 3C1.1 enhancement based on defendant’s refusal to comply with an order to provide handwriting exemplars. Defendant contended that he did not intent to obstruct justice, but refused because he mistrusted the government’s investigation. The Eleventh Circuit affirmed the enhancement. The district court found that defendant decided to defy authority rather than provide handwriting exemplars which the government was seeking in order to compare his writing to that on drug tally sheets. U.S. v. Brazel, 102 F.3d 1120 (11th Cir. 1997).
11th Circuit approves obstruction enhancement for perjury at trial. (461) The district court enhanced defendant’s sentence for perjury at his trial. The Eleventh Circuit affirmed, finding that defendant failed to establish that the court was clearly erroneous in its determination that he testified untruthfully at trial. Contrary to defendant’s claims, the court did not penalize him merely for his failure to plead guilty. U.S. v. Paradies, 98 F.3d 1266 (11th Cir. 1996).
11th Circuit affirms increase for refusing and disguising handwriting exemplars. (461) Despite a grand jury subpoena and a court order, defendant refused to supply the government with a handwriting exemplar. Eventually, he complied, but the government was unable to use these because he attempted to disguise his natural handwriting. The government was forced to use defendant’s signature on the fingerprint card he made when he was arrested. The Eleventh Circuit affirmed a § 3C1.1 enhancement for defendant’s repeated refusals to supply the handwriting exemplars and his efforts to disguise his handwriting in the exemplar he eventually provided. Although the court did not make individualized findings, the record reflected the basis for the enhancement and supported it. A remand was not necessary. U.S. v. Taylor, 88 F.3d 938 (11th Cir. 1996).
11th Circuit approves obstruction for false statements to law enforcement and judge. (461) Defendant made contradictory statements to authorities and the judge regarding the identity and whereabouts of his co‑defendants, and his role and the role of his co‑defendants in his fraud scheme. At his plea hearing, defendant agreed that the government accurately stated that his co‑defendant assisted in the scheme. However, in an interview with a federal agent immediately afterward, he stated that he himself played this role. Defendant also stated in that interview that another co‑defendant had no knowledge of the fraud scheme. However, in his proffer, defendant said he paid this co‑defendant $1000 for his part in the scheme. The Eleventh Circuit affirmed a § 3C1.1 enhancement, agreeing that defendant obstructed justice by making materially false statements during the course of the investigation and prosecution of the offense. These false statements also supported the denial of an acceptance of responsibility reduction. U.S. v. Arguedas, 86 F.3d 1054 (11th Cir. 1996).
11th Circuit holds that PSR provided notice of alleged perjurious statements. (461) The district court refused to apply an obstruction of justice enhancement for defendant’s perjury at trial, suggesting that a defendant must receive advance written notice of the specific statements alleged to have been perjurious. The Eleventh Circuit declined to decide whether such notice was required, since even if it was, the PSR provided it. The PSR gave specific examples of defendant’s perjurious statements. The district court apparently agreed with the PSR, finding defendant was a liar and a very manipulative person. The district court incorrectly believed it lacked the power to enhance defendant’s sentence due to a lack of notice. U.S. v. Hatney, 80 F.3d 458 (11th Cir. 1996).
11th Circuit says lies to magistrate about financial status were material. (461) The district court imposed an obstruction of justice enhancement because defendant lied to a magistrate judge about his financial assets at a pretrial hearing. In response to the magistrate’s question, defendant said he had no bank accounts or safe deposit boxes. The magistrate found him indigent and appointed a public defender to represent him. The DEA later found several safe deposits co‑leased by defendant and his father containing over $37,000. The Eleventh Circuit affirmed an obstruction of justice enhancement, finding defendant’s lies to the magistrate about his financial status were material. The pretrial hearing took place in the midst of the investigation into defendant’s crimes. The subject matter of the hearing, defendant’s legal representation, involved the potential prosecution of the crime. This was sufficient to meet the requirements of the guidelines. Since the false statement was to a magistrate, rather than a law enforcement officer, the statement need not have significantly obstructed or impeded the official investigation or prosecution of the offense. U.S. v. Ruff, 79 F.3d 123 (11th Cir. 1996).
11th Circuit relies on victim’s testimony to find defendant committed perjury. (461) Defendant and other inmates at a county jail beat up another prisoner who was to testify against a mutual friend. The district court applied a § 3C1.1 enhancement because defendant falsely testified that the victim hit him first, that defendant rushed in only to break up the fight, and the reason for the fight was the victim’s failure to take a shower. The Eleventh Circuit affirmed the enhancement, finding the victim’s testimony supported the court’s conclusion that defendant lied about the offense. U.S. v. Tapia, 59 F.3d 1137 (11th Cir. 1995).
11th Circuit bases § 3C1.2 enhancement on high speed chase and gun pointed at police officer. (461) Defendant participated in an armed bank robbery. He challenged a § 3C1.2 enhancement for reckless endangerment during flight, claiming that his accomplices forced him to flee. The 11th Circuit upheld the enhancement. After the robbery, defendant drove the getaway vehicle and engaged a policeman on a high speed chase. When the officer reached defendant’s truck, defendant swerved around other cars, and an accomplice aimed a weapon at the officer. Defendant then made an abrupt turn, drove off the highway and struck a tree. While the gunman held the gun on the officer, defendant and another accomplice ran into the woods. Defendant’s driving of the getaway vehicle and the actions of his co-conspirators recklessly created a substantial risk of death or serious bodily injury to the police officer and others. U.S. v. Jones, 32 F.3d 1512 (11th Cir. 1994).
11th Circuit approves obstruction enhancement where court made independent perjury findings. (461) Defendant argued that an obstruction of justice enhancement was a penalty for exercising his constitutional right to a jury trial. The 11th Circuit disagreed, holding that the obstruction enhancement was properly based on the district court’s independent finding that defendant repeatedly committed perjury during his trial and the trials of his co-conspirators. The district court imposed the enhancement not because defendant went to trial, but because he gave false testimony under oath. U.S. v. Jones, 32 F.3d 1512 (11th Cir. 1994).
11th Circuit holds that false statements to FBI about kidnapping warranted obstruction enhancement. (461) Defendant’s wife kidnapped a baby. Defendant lied to the FBI to help hide the baby, even though he knew the baby had been kidnapped and that police were seeking his wife. He was convicted of kidnapping. The 11th Circuit held that defendant should have received an enhancement for obstruction of justice based on his false statements to the FBI. Defendant’s statements were not mere denials of guilt or purely exculpatory statements. The statements were purposely made to impede and misdirect the investigation so that defendant could prevent his wife’s capture and the baby’s recovery. U.S. v. Salemi, 26 F.3d 1084 (11th Cir. 1994).
11th Circuit upholds obstruction enhancement for asking witness not to speak with FBI. (461) Defendant was involved in a conspiracy to steal trucks containing frozen seafood, which the conspirators then resold. A middleman became aware that defendants were selling stolen seafood. Defendant brought the middleman into a large walk-in freezer and told him that he should not speak to the FBI if contacted. The 11th Circuit upheld an enhancement for obstruction of justice. Given the language used by defendant and the circumstances surrounding its use, the court was not clearly erroneous in finding obstruction of justice. U.S. v. Garcia, 13 F.3d 1464 (11th Cir. 1994).
11th Circuit upholds obstruction enhancement where defendant lied during his plea negotiations. (461) The 11th Circuit affirmed an obstruction of justice enhancement in light of the district court’s findings that defendant lied during his plea negotiations, and that these lies impeded the investigation of the offense. U.S. v. Bushert, 997 F.2d 1343 (11th Cir. 1993).
11th Circuit affirms obstruction enhancement for producing false documents during discovery. (461) Defendant was indicted on tax evasion charges. During reciprocal discovery, he produced a document that he claimed was a January 1, 1985 agreement between the alleged owners of a sham corporation and himself. The substance of the agreement supported defendant’s theory of defense. The document had affixed to it the stamped signatures of the two officers of the company. The government was able to show that defendant did not obtain the signature stamp until February 8, 1985, after the date of the agreement. The 11th Circuit affirmed an enhancement for obstruction of justice for producing the false document. Note 3 to section 3C1.1 states that producing a false or counterfeit document during an official investigation or judicial proceeding constitutes obstruction of justice. U.S. v. Callahan, 981 F.2d 491 (11th Cir. 1993).
11th Circuit affirms that failure to reveal aliases and prior offense under alias was material. (461) Defendant failed to reveal to his probation officer all of the aliases by which he had been known. He also failed to tell the probation officer that he had been arrested under one of these aliases and had pled guilty to a misdemeanor charge of criminal trespass. The 11th Circuit affirmed an obstruction of justice enhancement based upon defendant’s failure to reveal all of his aliases and his prior misdemeanor conviction to the probation officer. Even though the misdemeanor was not countable in defendant’s criminal history calculation, the information was material, since if believed, it would tend to influence or affect the determination of defendant’s sentence within the appropriate guideline range. U.S. v. Odedina, 980 F.2d 705 (11th Cir. 1993).
11th Circuit upholds obstruction enhancement for defendant who ripped recording device off informant and fled with it. (461) As police approached, defendant ripped a tape recording device off an informant, fled the scene, and eventually turned himself in to authorities two weeks later. The 11th Circuit upheld an enhancement for obstruction of justice based upon defendant’s actions. At the time defendant was sentenced, guideline section 3C1.1 applied without qualification to defendants who attempted to destroy or conceal material evidence. The district court found that defendant understood that the informant was taping the conversation and thought that by taking the tape recording device, he was destroying evidence that would be material at trial. The fact that defendant took a transmitter, and not the tape itself, was irrelevant. Furthermore, defendant fled the scene and remained in hiding for two weeks before turning himself in to authorities. U.S. v. Revel, 971 F.2d 656 (11th Cir. 1992).
11th Circuit affirms obstruction enhancement based upon hearsay evidence that defendant threatened co-conspirator. (461) Defendant’s presentence report alleged that defendant threatened a co-conspirator and his family early in the planning stages of their conspiracy if the co-conspirator failed to follow through with their plan, and threatened him again while they were in prison awaiting sentencing. Defendant denied the allegations at the sentencing hearing and the co-conspirator did not testify. Nonetheless, the district court gave defendant a two-level enhancement for obstruction of justice based upon these allegations. The 11th Circuit found no error in the enhancement, despite the district court’s reliance upon the hearsay statements in the presentence report. Circuit case law clearly permitted the court to consider reliable hearsay evidence at sentencing. Application note 2 to guideline section 3C1.1, which requires that suspect testimony and statements be evaluated in a light most favorable to the suspect, did not require the district court to credit defendant’s testimony on this matter. U.S. v. Kramer, 943 F.2d 1543 (11th Cir. 1991).
11th Circuit affirms obstruction enhancement for failure to disclose a prior conviction that did not affect criminal history calculation. (461) The 11th Circuit upheld an obstruction of justice enhancement based upon defendant’s failure to reveal to his probation officer a prior misdemeanor conviction which, because it was uncounseled, could not be included in the calculation of his criminal history. The court rejected defendant’s claim that the misrepresentation was not material since it did not affect his criminal history score and the correct information was readily available from other sources. The threshold for materiality is “conspicuously low.” Material information is information that, if believed, would tend to influence or affect the issue under determination. The “issue under determination” when the probation officer inquires into past convictions is either what criminal history category should apply or what sentence within the calculated guideline range is appropriate. Defendant’s misdemeanor conviction was material to the appropriate sentence within the guideline range. U.S. v. Dedeker, 961 F.2d 164 (11th Cir. 1992).
11th Circuit rules flight from police does not constitute obstruction of justice but upholds enhancement. (461) When DEA agents followed defendant’s car into a drive-through lane of a fast food restaurant, the car reversed and headed toward a parking spot. When an agent approached the car on foot, the car did not stop, but drove up over a curb and struck another agent’s vehicle. Defendant challenged a two-level enhancement for obstruction of justice. The 11th Circuit, following other Circuits, found that under the prior version of the guidelines in effect at the time defendant was sentenced, mere flight from police does not justify an enhancement for obstruction of justice. The most recent version of the guidelines expressly states this rule. Nonetheless, the court upheld the enhancement in defendant’s case. Since defendant created a substantial risk of death or serious bodily injury to another person in the course of fleeing from police, such conduct did not constitute “mere flight.” U.S. v. Burton, 933 F.2d 916 (11th Cir. 1991).
11th Circuit affirms obstruction enhancement based upon defendant’s false testimony. (461) The 11th Circuit found defendant’s challenge to the two-level enhancement for obstruction of justice to be meritless. There was abundant evidence that defendant testified untruthfully in this case, and thus, an enhancement was in order. U.S. v. Chung, 931 F.2d 43 (11th Cir. 1991).
11th Circuit affirms obstruction enhancement to defendant who directed wife to conceal drugs and money. (461) The 11th Circuit found that the evidence supported the district court’s determination that defendant obstructed justice. Defendant made false statements to a probation officer and directed his wife to conceal money and drugs. In addition, defendant modified his attic in an effort to conceal the ongoing methamphetamine lab hidden there. U.S. v. Query, 928 F.2d 383 (11th Cir. 1991).
11th Circuit upholds obstruction of justice enhancement because judge made independent finding of defendant’s perjury. (461) Defendant claimed that the district court improperly enhanced his sentence for obstruction of justice solely because the jury found against his version of the facts. The 11th Circuit rejected this contention, finding that the district court made an independent determination that defendant committed perjury. The district court found that defendant “blatantly, intentionally and willfully lie[d] in material respects with regard to the offense charged, so as to create additional problems for the jury.” U.S. v. Husky, 924 F.2d 223 (11th Cir. 1991).
11th Circuit affirms obstruction of enhancement for defendant who assisted effort to evade capture. (461) Defendant was the first mate on a boat carrying 495 bales of marijuana from Colombia. Evidence revealed that, unlike others of the crew, he and the captain were fully aware of presence of the marijuana and were more centrally involved in the conspiracy to distribute the marijuana. When the boat was approached by a Coast Guard vessel, the boat attempted to evade capture by refusing to communicate with the Coast Guard and trying to move away from the vessel. The 11th Circuit found that the district court’s determination that defendant aided the captain’s attempt to evade the Coast Guard vessel was not clearly erroneous and justified the three point increase in offense level for obstruction of justice. U.S. v. Castillo-Valencia, 917 F.2d 494 (11th Cir. 1990).
11th Circuit finds that defendant who was a fugitive and hid his assets obstructed justice. (461) Defendant challenged a two level upward adjustment for obstruction of justice on the grounds that even though he had planned to have a witness killed, he had called off the plan. The 11th Circuit found that even if defendant’s cancellation of the plan to kill the witness made the plan fall short of an attempt to obstruct justice, defendant’s other conduct supported the upward adjustment. The evidence indicated that during the prosecution of his codefendants, defendant was a fugitive from justice, and that after his indictment and arrest, defendant continued to hide his assets. U.S. v. Pritchett, 908 F.2d 816 (11th Cir. 1990).
11th Circuit upholds obstruction of justice enhancement based on use of false name and false identification. (461) The 11th Circuit upheld the district court’s upward adjustment for obstruction of justice, “since the defendant” had used a false name and was in possession of false identification at the time of his arrest for failure to appear.” U.S. v. Gomez, 905 F.2d 1513 (11th Cir. 1990).
11th Circuit upholds enhancement for obstruction of justice even though court did not specifically identify perjurious statements. (461) The 11th Circuit held that “[a]lthough the district court did not specifically identify which portions of [defendant’s testimony it believed to be false, this does not preclude our affirming the district court’s enhancement under § 3C1.1.” The court found that the evidence clearly indicated that defendant testified falsely about whether he had even bought or sold marijuana in the past. The record was also “sufficient to support the conclusion” that defendant was not truthful in his testimony concerning whether or not he intended to purchase marijuana from the confidential informant. U.S. v. Wallace, 904 F.2d 603 (11th Cir. 1990).
11th Circuit rules upward adjustment in offense level for obstruction of justice is mandatory if factually supported. (461) A convicted alien smuggler argued that the district court erroneously enhanced his offense level under § 3C1.1 for obstruction of justice after it found that he had threatened to kill a material witness if that witness testified against him in court. The 5th Circuit held the enhancement was proper. An enhancement under that section is mandatory if the District Court makes a proper finding of fact to that effect. Since the court’s finding was not clearly erroneous, the upward adjustment was proper. U.S. v. Rivera, 879 F.2d 1247 (11th Cir. 1989).
11th Circuit holds obstruction of justice may occur at time of arrest, not merely during pending proceedings. (461) Defendant pled guilty to three counts of possessing stolen U.S. treasury checks and one count of retaining stolen checks. He appealed his sentence, claiming the district court erroneously enhanced his offense level two points for obstruction of justice under § 3C1.1 because he had not committed any misconduct during the pendency of the judicial proceedings. The 11th Circuit rejected the argument, holding that because there was a proper factual basis for the court to conclude that the defendant was trying to destroy or conceal the stolen checks at the time of his arrest, the two point enhancement was proper. Obstruction of justice can occur at the time of arrest; the guidelines do not limit it to “post offense conduct occurring during the pendency of judicial proceedings.” U.S. v. Cain, 881 F.2d 980 (11th Cir. 1989).
D.C. Circuit finds court’s earlier statement was not inconsistent with its perjury finding. (461) The district court applied an obstruction of justice increase under § 3C1.1 based on a statement defendant made at a pre-trial suppression hearing, which the court found to be deliberately false. The court found that defendant deliberately misrepresented that he was not interviewed until March 10, 2010, when in fact he was interviewed and confessed on March 9, 2010. The D.C. Circuit upheld the enhancement. The court’s finding, made at a March 20, 2011 sentencing hearing, was not inconsistent with the court’s early statement at an August status hearing that defendant “could be confused or decided based on his own legal research that he could raise an issue to get his confession suppressed by changing the timing.” The court made no finding of intent at the earlier hearing. In contrast, at the sentencing hearing, when it came time to make a finding on the obstruction enhancement, the court made an express finding by clear and convincing evidence that defendant’s testimony regarding the date of the confession “was false” and that defendant “deliberately lied.” U.S. v. Hines, 694 F.3d 112 (D.C. Cir. 2012).
D.C. Circuit finds defendant acted willfully in failing to appear, regardless of whether he was under a court order. (461) In March, defendant was charged with drug charges and released on his own recognizance. The government later dismissed the charges, but they were reinstated by a grand jury indictment. The district court set a June 5 arraignment, but defendant did not appear. Nothing was heard from defendant until he was arrested for another drug offense 11 months later. He challenged an obstruction of justice enhancement based on his failure to appear at the arraignment, arguing that he never was under a court order to appear at this arraignment and therefore could not have obstructed justice. The D.C. Circuit ruled that a violation of a court order was not necessary to find willful obstruction. A district court is permitted to infer that a defendant intended to obstruct justice if his conduct was directly and inherently obstructive. In addition, the evidence established that defendant acted willfully. On the date of the scheduled arraignment, defendant’s counsel stated he had spoken with defendant and had informed him of the time and date of the arraignment. Also, the Criminal Notice issued by the Clerk’s Office, announcing the time and date of the arraignment, indicated it was sent to defendant. U.S. v. Reeves, 586 F.3d 20 (D.C. Cir. 2009).
D.C. Circuit approves obstruction increase for false testimony. (461) Defendant was convicted of fraud charges in connection with the attempted purchase and resale of property. The district court applied an obstruction of justice increase because defendant lied on the stand, denying his close relationship with a co-conspirator, falsely denying that he threatened to evict the tenants and denied that he threatened the property owner that he could influence the police to withdraw their protection for the property. The D.C. Circuit upheld the obstruction increase. Defendant’s testimony about his ability to influence the police provided ample support for the district court’s decision that he lied. U.S. v. Brockenborrugh, 575 F.3d 726 (D.C. Cir. 2009).
D.C. Circuit affirms obstruction increase for repeating at perjury trial the same statements that were basis of charge. (461) Defendant was convicted of two charges of making false statements in a loan application and perjury for statements made during a prior bankruptcy proceeding. The district court applied a § 3C1.1 obstruction justice increase for repeating at her perjury trial the same statements she made during the bankruptcy proceeding. Note 7 to § 3C1.1 provides that the obstruction enhancement “is not to be applied to the offense level for [an underlying obstruction offense such as perjury] except if a significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself….” Defendant argued that simply repeating precisely the same statements that were the subject of perjury charges is not the sort of “significant further obstruction” that can justify an exception to Note 7’s general rule against applying obstruction increases to perjury convictions. The D.C. Circuit affirmed the obstruction increase. Note 7 does not give a defendant license to perjure herself in a criminal proceeding in order to avoid enhanced punishment for perjury. Lying under oath to protect oneself from punishment from lying under oath is precisely the sort of “significant further obstruction” to which Note 7 refers. U.S. v. McCoy, 316 F.3d 287 (D.C. Cir. 2003).
D.C. Circuit upholds perjury at trial based on jury’s verdict of perjury in related bankruptcy proceeding. (461) Defendant made false statements to obtain a bank loan for her recycling company. In one instance, she altered a letter from her company’s supplier which estimated the amount of waste paper they would provide defendant’s company. The district court found that defendant committed perjury during her criminal trial by testifying that her supplier had authorized her to alter the letter’s tonnage estimates. Defendant argued that the sentencing court could not possibly have found clear and convincing evidence (the standard in effect at the time) that she lied at trial because there was conflicting testimony, and the sentencing judge did not preside over the trial and hence did not personally observe witnesses’ demeanor. The D.C. Circuit rejected this argument since the trial jury also convicted defendant of committing perjury at a 1995 bankruptcy proceeding when she testified to the same story. Since the jury reached its conclusion based on a standard more stringent than “clear and convincing” evidence, and since the district court was entitled to rely upon the jury’s verdict at sentencing, the court’s opportunity to observe the testimony was irrelevant. U.S. v. McCoy, 242 F.3d 399 (D.C. Cir. 2001).
D.C. Circuit holds that perjury about identity at suppression hearing was material. (461) The district court applied an obstruction of justice enhancement because at his suppression hearing, defendant falsely denied that he was the man depicted in a photograph shown to him at the hearing. Defendant argued that the question was not material to the subject of the hearing, which focused on the voluntariness of defendant’s post-arrest confession. The D.C. Circuit termed this argument “specious.” The government presented evidence that at his arrest defendant claimed to be “Imione Wilson,” that he signed a waiver of his Miranda rights as “Imione Wilson,” and that a driver’s license bearing that name was found in his residence. Defendant denied that he had signed such a waiver and that he was Imione Wilson. When presented with the Imione Wilson driver’s license, he denied that he was the person depicted in the photo on the card. His denial was clearly material to whether or not he had signed the waiver, and thus to whether or not his confession had been voluntary. U.S. v. Wilson, 240 F.3d 39 (D.C. Cir. 2001).
D.C. Circuit says promise not to take a position did not bar government from advising court that witness was available. (461) The PSR alleged that defendant approached a witness and asked her to tell the FBI that defendant had returned the bribes that he had received. In the plea agreement, the government promised that it would not take a position on whether he should receive an obstruction of justice increase. At sentencing, defense counsel suggested that the court would have no evidence on which to base such an enhancement. The government informed the court that it could “make a case agent available to the Court should the Court want to hear that agent” testify. At the court’s request, the government then questioned the agent about the allegations in the PSR. Defendant argued that the government breached the plea agreement by taking a position of the obstruction increase. The D.C. Circuit disagreed. The government had a duty to provide relevant information about whether defendant obstructed justice, even though it had agreed not to take a stand on whether he should receive a sentence enhancement. The government acted appropriately in informing the court that a witness was available to recount the facts underlying the PSR. The prosecution did not violate the plea agreement by questioning the witness as instructed by the court. By limiting its questions to factual matters, the government merely facilitated the agent’s providing the court with relevant background on whether defendant obstructed justice. U.S. v. Ahn, 231 F.3d 26 (D.C. Cir. 2000).
D.C. Circuit applies obstruction increase even though no substantial effect on investigation or prosecution. (461) The district court ordered defendant to provide a handwriting exemplar that day to a State Department agent. Defendant left the courthouse without providing the exemplar, and did not provide it until the agent was finally able to contact him 19 days later. Defendant challenged an obstruction of justice enhancement, claiming his delay in providing the exemplar did not have a substantial effect on the investigation or prosecution of his case. The D.C. Circuit held that a § 3C1.1 enhancement can be based on a defendant’s failure to comply with a court order to provide a handwriting exemplar, regardless of whether the failure had a substantial effect on the investigation or prosecution. A defendant’s failure to provide the ordered exemplar clearly has the potential to weaken the government’s case, prolong the pendency of the charges, and encumber the court’s docket with an unnecessary trial. Whether or not the scheduled judicial proceedings are postponed was not dispositive. In addition, the fact that a defendant ultimately enters a guilty plea to some of the charges cannot be dispositive; until the court has accepted the plea, anything can happen. U.S. v. Maccado, 225 F.3d 766 (D.C. Cir. 2000).
D.C. Circuit says obstruction for reasons other than perjury not subject to more stringent proof. (461) Police stopped a car driven by defendant and found a loaded pistol hidden near the car’s steering wheel. They also found cocaine base in the pockets of defendant’s passenger. At trial the passenger testified that both the drugs and the gun belonged to defendant. He also said that defendant had offered him money or drugs to say that the gun was the passenger’s rather than defendant’s. The D.C. Circuit affirmed an obstruction of justice enhancement based on defendant’s attempt to have the passenger claim ownership of the gun. The obstruction did not need to be established by clear and convincing evidence. The case relied on by defendant, U.S. v. Montague, 40 F.3d 1251 (D.C. Cir. 1994), only requires clear and convincing evidence for obstruction enhancements based on a defendant’s perjury. The evidence was sufficient to support the enhancement. The fact that the jury acquitted defendant of drug charges did not mean that the court erred in crediting the passenger’s testimony. It was impossible to know why the jury acquitted defendant. Moreover, even if the jury disbelieved the passenger about the ownership of the drugs, it may have believed him with respect to the subornation of perjury. U.S. v. Dozier, 162 F.3d 120 (D.C. Cir. 1998).
D.C. Circuit upholds increase for perjury despite defendant’s claim that he misunderstood question. (461) The district court enhanced defendant’s offense level for obstruction of justice because it found that he lied on the stand. Defendant claimed he misunderstood the prosecutor’s questions. The D.C. Circuit affirmed the § 3C1.1 enhancement, finding the case was “not particularly close.” The district court found defendant lied when he denied any involvement in the drug conspiracy, and when he denied talking in code about drug deals with a co-conspirator. The court credited the testimony of the co-conspirator. Taped conversations between defendant and the co-conspirator supported this conclusion. Although the court improperly considered perjury concerning drug transactions that were not related to the offense of conviction, the error was harmless. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit affirms obstruction enhancement for perjury at trial. (461) The district court enhanced defendant’s sentence under § 3C1.1 finding that he willfully provided false testimony when he testified that he did not engage in the cocaine conspiracy until November 10, 1993, and that he was coerced into participating by an undercover officer and his concern for the safety of the wife of a co-conspirator. The D.C. Circuit found no clear error in the district court’s finding that defendant testified falsely and that the false testimony was material. Defendant’s testimony was directly contradicted by the undercover officer and the co-conspirator’s wife. The false testimony was clearly material because it was crucial to the government’s ability to defeat defendant’s entrapment claim. The false statements were willful. Defendant did not claim that the statements resulted from mistake or faulty memory. He only claimed that they were false. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit upholds obstruction enhancement for perjury. (461) Defendants were police officers caught in a reverse sting after providing “protection” to an undercover agent posing as a drug dealer. The D.C. Circuit affirmed obstruction enhancements based on defendants’ perjury at trial. One defendant testified that he did not know the undercover agent was a drug dealer until he met him and that he went along with the scheme because he was afraid of the dealer. However, another officer testified that he told defendant the agent was a drug dealer, and a videotape of defendant’s first meeting with the agent clearly showed that defendant knew in advance that the agent was a drug dealer and that defendant was not afraid of him. A second defendant also perjured himself by denying that he knew that the agent was a drug dealer before meeting with him. The district court properly concluded that these lies were material and were intended to mislead the court. U.S. v. Washington, 106 F.3d 983 (D.C. Cir. 1997).
D.C. Circuit affirms obstruction enhancement for planned prison escape. (461) During defendant’s incarceration pending sentencing, he planned to escape while visiting the hospital on a feigned illness. Defendant enlisted the aid of another prisoner and obtained a handcuff key and a map of the hospital from a prison guard. The D.C. Circuit held that defendant’s actions were more than mere planning, and came within the definition of “attempting to escape” under § 3C1.1. U.S. v. Badru, 97 F.3d 1471 (D.C. Cir. 1996).
D.C. Circuit upholds obstruction enhancement based on lies at bond hearing. (461) At defendant’s arraignment and bond hearing, he falsely identified the home of his girlfriend’s mother as his own residence for the preceding 10 years. The district court found that he had perjured himself and enhanced his sentence for obstruction of justice. On appeal, the D.C. Circuit held that the court’s “emphatic language” was sufficient under U.S. v. Montague, 40 F.3d 1251 (D.C. Cir. 1995) to reflect its finding by clear and convincing evidence that defendant provided materially false information to the court. Under Montague, the findings necessary to support the enhancement depend on the nature of the case. Easy cases, in which the evidence of perjury is indisputable, require less in the way of factual findings. This was such a case. All of the evidence indicated that defendant never physically resided at the address he provided the court. The mother told the probation officer that defendant had never lived in her house. Defendant’s own voter registration and bankruptcy petitions revealed various addresses over the 10-year period, none of which corresponded to the mother’s home address. U.S. v. Sobin, 56 F.3d 1423 (D.C. Cir. 1995).
D.C. Circuit upholds obstruction enhancement where defendant was convicted of obstruction of justice. (461) Defendant, a public official of a federal agency, conspired to solicit kickbacks from contractors in two projects, then conspired to conceal his activities. He was convicted of bribery and obstruction of justice. The D.C. Circuit upheld an obstruction of justice enhancement under § 3C1.1. Note 3 of § 3C1.1 contains a list of the type of conduct to which the enhancement applies. It specifically includes on that list conduct prohibited by 18 U.S.C. sections 1501-1516. Defendant was convicted under 18 U.S.C. § 1505 and 1512(b)(1). Since the jury found beyond a reasonable doubt that defendant committed these obstructive acts, the judge’s finding by a mere preponderance of the evidence that defendant committed these acts was reasonable. U.S. v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994).
D.C. Circuit upholds obstruction enhancement based on perjury. (461) Defendant, an attorney, assisted a client in obtaining a false birth certificate and passport. He received an enhancement for obstruction of justice based on his testimony at trial that he honestly believed his client bore the name under which the birth certificate and passport were issued. The D.C. Circuit upheld the enhancement. The jury found defendant guilty beyond a reasonable doubt of knowingly signing a false affidavit. That verdict made it a forgone conclusion that a district judge would conclude by a preponderance of the evidence that defendant testified falsely. U.S. v. White, 1 F.3d 13 (D.C. Cir. 1993).
D.C. Circuit rejects mens rea requirement for defendant who fled from court. (461) Defendant did not return to court when his jury returned its verdict against him. He surrendered on his own five days later. He argued that he did not “willfully” obstruct justice under section 3C1.1 because he fled out of fear, rather than with the intent to disrupt the administration of justice. The D.C. Circuit upheld the enhancement. Note 3(e) to section 3C1.1 (effective November 1992) states without qualification that an enhancement is proper for a defendant who willfully fails to appear as ordered for a judicial proceeding. A defendant’s underlying motivation for fleeing need not be examined. Although some older cases have held that section 3C1.1 requires a specific mens rea of obstructing justice, these cases predated the effective date of the current guideline, which included application note 3(e). U.S. v. Taylor, 997 F.2d 1551 (D.C. Cir. 1993).
D.C. Circuit says defendant should have disclosed zero-equity interest in property. (461) To permit evaluation of defendant’s ability to pay a fine, the probation office required defendant to list her assets. Defendant failed to disclose her ownership of property in which she later claimed to have no equity. The district court relied on this omission in finding obstruction of justice, and the D.C. Circuit affirmed, concluding that the omission was “material.” Defendant’s ability to service the loan would in itself be relevant in determining defendant’s ability to pay a fine, and the determination of the amount of equity in a home is an imprecise endeavor. The D.C. Circuit expressed doubt about U.S. v. Belletiere, 971 F.2d 961 (3d Cir. 1992), in which the court concluded that a defendant’s presentence denial of drug use did not obstruct justice because it did not involve the charged offense of drug distribution and because it was independently sanctioned through bail revocation. U.S. v. Smaw, 993 F.2d 902 (D.C. Cir. 1993).
D.C. Circuit holds that defendant’s perjury need not be implausible to justify obstruction enhancement. (461) The D.C. Circuit held that a defendant’s false testimony need not be implausible or particularly flagrant to justify the enhancement under section 3C1.1. The sentencing judge need only find that the defendant willfully committed, suborned or attempted to suborn perjury to obstruct justice. The admonition in application note 1 to evaluate the defendant’s testimony “in a light most favorable to the defendant” apparently raises the standard of proof above the preponderance of the evidence standard applicable to most other sentencing determinations, but it does not require proof of something more than ordinary perjury. To limit enhancements only to internally inconsistent testimony or flagrant lying would be to reward the “polished prevaricator while punishing those less practiced in the art of deception.” Here, the enhancement was proper, because although defendant’s testimony was not wildly implausible, if believed, it would have been a complete bar to conviction. Judge Wald dissented. U.S. v. Thompson, 962 F.2d 1069 (D.C. Cir. 1992).
Ohio District Court holds that guilty plea to willfully concealing material facts from a government agent required obstruction adjustment on other offenses. (461) Defendant pled guilty to illegally disposing of hazardous wastes and willfully concealing material facts from a government agent. He argued that his sentence on the hazardous waste counts should not be adjusted upward for obstruction of justice because his false statements did not disrupt a governmental function. The District Court for the Northern District of Ohio rejected the argument, ruling that because of the guilty plea, the court “must” add two levels. U.S. v. Bogas, 731 F.Supp. 242 (N.D. Ohio 1990).
Hawaii District Court finds defendant’s false testimony at detention hearing may be considered as “obstruction of justice.” (461) Defendant claimed that his false testimony at the detention hearing was not “willful” and therefore could not be used to increase his sentence for “obstruction of justice” under § 3C1.1 of the guidelines. The 9th Circuit disagreed, ruling that defendant’s false testimony was “considered and extensive.” Moreover, the court ruled that a determination that defendant had obstructed justice would also make an adjustment for acceptance of responsibility unwarranted. U.S. v. Rafferty, 710 F. Supp. 1293 (D.Hawaii, 1989).