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.
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
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.
June 25, 1996
Per Curiam. Appellant-defendant Jermaine Thomas appeals
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
whether the scope of 3C1.1 encompasses [defendant's]
conduct is subject to de novo review." United States v.
Moreno, 947 F.2d 7, 10 (1st Cir. 1991). Fact-bound
determinations, however, are reviewed for clear error. United
States v. St. Cyr, 977 F.2d 698, 705-06 (1st Cir. 1992).
"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
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.
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
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.,
comment. (n.3(g)). On the other hand, there is case law that
the defendant must have a specific intent to obstruct
justice, "i.e., . . . . the defendant consciously acted with
the purpose of obstructing justice." United States v. Reed,
49 F.3d 895, 900 (2d Cir. 1995). See also United States v.
Gonzalez, 12 F.3d 298, 299-300 (1st Cir. 1993).
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
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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