United States v. Thomas

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.


____________________

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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