United States v. Thomas

• Court: Court of Appeals for the First Circuit
• Decided: June 25, 1996
• Docket: 95-2093
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________


No. 95-2093



                                    UNITED STATES,



                                      Appellee,



                                          v.



             JERMAINE THOMAS, A/K/A JEROME SCOTT, A/K/A JT, A/K/A CRAZY,



                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Deborah L. Potter and Law Office  of William Maselli on  brief for
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        appellant.

            Jay  P. McCloskey,  United States  Attorney, George  T.  Dilworth,
            _________________                            ____________________

        Assistant  United States  Attorney,  and  Helene Kazanjian,  Assistant
                                                  ________________

        United States Attorney, on brief for appellee.


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                                    June 25, 1996

                                 ____________________



Per Curiam.  Appellant-defendant Jermaine Thomas appeals
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            from  his sentence on the sole ground that the district court



            erred in enhancing his  base offense level by two  levels for



            obstruction of  justice. See U.S.S.G.  3C1.1.   "The question
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            whether  the  scope  of     3C1.1  encompasses  [defendant's]



            conduct  is subject  to de  novo review."   United  States v.
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            Moreno,  947  F.2d   7,  10  (1st  Cir.  1991).    Fact-bound
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            determinations, however, are reviewed for clear error. United
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            States  v. St.  Cyr, 977  F.2d 698,  705-06 (1st  Cir. 1992).
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            "The facts constituting obstruction of justice for sentencing



            purposes need only  be established by a preponderance  of the



            evidence." United  States v.  Mafanya, 24  F.3d 412,  414 (2d
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            Cir. 1994).



                 The  district court  found that  there was  a "shift  in



            prosecution  resources  and attention  from federal  adult to



            state  juvenile"  and back  again  as  a  result  of  Thomas'



            misstatements  at the time of  his arrest.   That finding was



            supported by the record  which included a financial affidavit



            filed  in federal  court on  the date  of Thomas'  arrest and



            documentation of  Thomas' presence in juvenile  court several



            days later.   The district  court did not  err in  concluding



            that  the  shift  in  prosecution   resources  and  attention



            constituted a "significant hindrance" within the meaning of  



            3C1.1, comment.  (n.4(a)). 


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That Thomas  eventually was  indicted by the  same grand



            jury  as his codefendants, does  not preclude a  finding of a



            significant hindrance.   Prosecution resources  were diverted



            as a result  of Thomas' false  statements at the time  of his



            arrest,  requiring  the  prosecution  of  Thomas  to  proceed



            differently  than if the false statements  had not been made.



            See United States v. McCoy, 36 F.3d 740, 742 (8th Cir.  1994)
            ___ _____________    _____



            (affirming  two-level enhancement for  obstruction of justice



            where  "additional  effort"  was  expended  as  a  result  of



            defendant's use of an alias at the time of a prior arrest).  



                 The  cases that Thomas  relies upon are  inapposite.  In



            United  States v.  Manning, 955  F.2d 770,  774-75 (1st  Cir.
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            1992), we held  that defendant's  use of an  alias and  false



            birthdate  at the  time of  his arrest  did not  constitute a



            "significant  hindrance"  where  it  was "unclear  [from  the



            record]  that  the  investigation  would  have proceeded  any



            differently or any faster had Manning [told the truth] at the



            time of his  arrest."  In this case,  by contrast, the record



            reveals that the federal prosecution of  Thomas was halted as



            a  result of his misstatements to the arresting officers, and



            recommenced  only  after  his  true  identity  and  age  were



            discovered.   See also United States  v. Bell, 953 F.2d  6, 9
                          ________ _____________     ____



            (1st Cir. 1992) ("there  was no showing or even  assertion by



            the  government [that  the  investigation or  prosecution had



            been impeded]").


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Thomas argues that the enhancement does not apply to his



            case  because he did  not "willfully" obstruct  or impede the



            administration  of justice.  See U.S.S.G.   3C.1.  He alleges
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            that his intent in lying about his name and age  was to avoid



            being  placed  in  an  adult prison,  not  to  avoid  federal



            prosecution.   Thomas'  conduct  appears to  fall within  the



            plain  language  of one  of  the listed  examples  of conduct



            meriting the enhancement  because he did,  and did knowingly,



            provide "a  materially false  statement to a  law enforcement



            officer that significantly obstructed or impeded the official



            investigation or  prosecution of the instant  offense."  Id.,
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            comment. (n.3(g)).  On the other hand, there is case law that



            the  defendant  must  have  a  specific  intent  to  obstruct
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            justice,  "i.e., . . . . the defendant consciously acted with
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            the purpose of obstructing justice."  United States  v. Reed,
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            49  F.3d 895, 900 (2d Cir. 1995).   See also United States v.
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            Gonzalez, 12 F.3d 298, 299-300 (1st Cir. 1993).
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                 We need  not decide in  this case whether  this specific



            intent  requirement should  be superimposed  on  the explicit



            examples  given  in  the guideline  commentary,  because  the



            enhancement is valid even  on such a premise.   The guideline



            itself  imposes  the enhancement  for willful  obstruction or



            attempted  obstruction  of  "the  administration  of justice"



            during  the complete  proceeding  from investigation  through
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            sentencing.      It   covers   not   only   obstructions   of


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"investigations," "prosecutions" or  "sentencing" but of  the



            entire  "administration  of  justice"  in  relation   to  the



            defendant's case so long as the obstruction occurs during the



            period specified.



                 Thus, the  defendant's use  of a  false identity  in the



            hope  of being released on bail is an obstruction of justice,



            see Mafanya, 24  F.3d at 415, because the  grant or denial of
            ___ _______



            bail is part of the process.  A determination as to whether a



            defendant  should  be  held in  an  adult  facility  or in  a



            juvenile  detention seems to us  scarcely less a  part of the



            administration  of   justice   and  involves   policies   and



            consequences that are far from trivial.  Since on Thomas' own



            version of events  he did  have a specific  intent to  affect



            this choice by lies as to his  age, we think that he had  the



            requisite specific intent  to obstruct the administration  of



            justice, even assuming that something beyond  conduct falling



            within the commentary is required.



                 Affirmed.  See Local R. 27.1.
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