United States v. Brenson

United States Court of Appeals, Eleventh Circuit.

No. 94-5309.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald A. BRENSON, Defendant-Appellant.

Feb. 5, 1997.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-23-CR-FAM), Federico A. Moreno, Judge.

Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, Senior
District Judge.

HANCOCK, Senior District Judge:

Ronald A. Brenson was convicted of obstructing justice in

violation of 18 U.S.C. § 1503 by corruptly endeavoring to

influence, obstruct or impede the due administration of justice in

the United States District Court for the Southern District of

Florida. Brenson also was convicted of conspiring with one or more

persons to violate 18 U.S.C. § 1503 by corruptly influencing,

obstructing or impeding the due administration of justice in the

United States District Court for the Southern District of Florida

in violation of 18 U.S.C. § 371. Following his conviction, the

district court sentenced Brenson to 120 months imprisonment,

followed by two years of supervised release. Brenson now appeals

his conviction on both counts and the sentence imposed. We find no

reversible error as to his conviction on either count nor any error

in the sentence imposed and accordingly affirm.

I. BACKGROUND

*
Honorable James H. Hancock, Senior U.S. District Judge for
the Northern District of Alabama, sitting by designation.
 The evidence at the trial of this case provided the following

factual information: The United States District Court for the

Southern District of Florida summoned Brenson to jury duty where he

was selected and served as a member of a federal grand jury

empaneled on February 16, 1993 that met once a week for

approximately ten months. (R10-61-62, 69, 70.) All grand jurors,

including Brenson, were given instructions by a United States

district judge, viewed a videotape, and received a booklet

concerning their duty to maintain secrecy as to the information

disclosed during the grand jury proceeding and the importance of

this confidentiality. (R10-62 to 68, 91-92.) The grand jury on

which Brenson served was conducting an investigation of Armando

"Mandy" Fernandez in connection with evidence of drug smuggling and

money laundering. (R10-95, 120-21; R11-32.)

The grand jury of which Brenson was a member had been in

session on November 4, 1993, but was not scheduled to convene again

until November 18, 1993. (R10-98.) Some time between November 8

and 10, 1993, Brenson attempted to call Joseph DeMaria, who he knew

to be an associate of Fernandez. (R10-126, 14.) Brenson called

DeMaria at a car dealership known as The Collection on the pretense

of wanting to purchase a Ferrari. (R10-126.) DeMaria instructed

Brenson to come to The Collection and talk to him about the car.

(R10-126.) Brenson took a bus and went in person to The Collection

to meet with DeMaria. (R10-126-27.) Brenson told DeMaria that The

Collection was under investigation and was going to be seized.

(R10-127.) DeMaria responded in disbelief stating that The

Collection had previously been seized and that it "was beyond the
statute of limitations." (R10-127.) Brenson then explained to

DeMaria, "I should not be here, but I am a member of a Grand Jury

that is investigating The Collection now and it is going to be

seized." (R10-127.) Brenson provided DeMaria with additional

information concerning the grand jury proceedings, including the

dates it had met as well as identifying witnesses and information

on assets presented as part of the investigation of Fernandez.

(R10-128.)

DeMaria requested that Brenson "wait here." (R10-128.) Then

DeMaria added "let me get somebody." (R11-23.) DeMaria proceeded

up some stairs to the executive offices. (R10-128.) DeMaria

returned with Fernandez, the target of the grand jury investigation

and introduced him as "Mandy, the owner of The Collection." (R10-

129.) DeMaria instructed Brenson to "tell him what you just told

me." (R10-129.) Brenson then repeated to Fernandez the

information he had learned as a grand jury member, including the

names of individuals to be indicted, charges that would be filed,

the names of witnesses who testified and properties that may be

subject to forfeiture. (R10-129-33; R11-24 to 26.) In response

to questions by DeMaria, Brenson confirmed the names of the

prosecutors conducting the Fernandez investigation. (R10-132.)

Brenson told DeMaria and Fernandez that the indictment against

Fernandez and others would be returned on November 18, 1993. (R10-

133.) As Brenson was leaving DeMaria stated the following: "We

have to stay in touch with you. How can we get a hold of you?" In

response, Brenson provided DeMaria with his beeper number. (R10-

133.)
 On November 18, 1993 the members of the grand jury, including

Brenson, met to vote on the indictment of Fernandez and returned an

indictment with Brenson voting in favor of the indictment. (R10-

99, 108.) There was no evidence that Brenson attempted to get any

member of the grand jury to change his or her vote as to the

indictment. (R10-107.) After Fernandez was indicted and arrested,

Special Agent Richard Kapouch of the Internal Revenue Service

("IRS") interviewed Fernandez and executed an affidavit for a

complaint against and arrest warrant for Brenson based on his

discussions with Fernandez. (R10-121.)

Brenson was arrested on January 20, 1994. (R10-122.) During

the arrest, Agent Kapouch of the IRS and Agent James Gregorius of

the Drug Enforcement Administration advised Brenson of his rights.

(R10-123.) Then Brenson voluntarily agreed to waive his rights and

speak to the agents. (R10-123.) Brenson admitted to disclosing

secret grand jury information to both Fernandez and DeMaria. (R10-

127 to 133.) According to Brenson, his motivation for disclosing

the grand jury information was an attempt to get a date with

DeMaria's daughter. (R11-6.) On January 27, 1994, a grand jury

indicted Brenson on one count of conspiracy to obstruct the due

administration of justice based on charges that Brenson conspired

with DeMaria and Fernandez in violation of 18 U.S.C. § 371 and one

count of endeavoring to obstruct the due administration of justice

in violation of 18 U.S.C. § 1503. (R1-12.)

When the agents asked Brenson if he wanted to cooperate in an

investigation of DeMaria, Brenson responded affirmatively. (R10-

134-35; R11-33.) The agents instructed Brenson that he should not
alert anyone that he was in trouble, had been arrested or that he

was cooperating.1 (R10-137; R11-34.) The next day Brenson

admitted to Agent Gregorius that he had alerted his friend, Mario

Palacio, that he was in trouble and asked Palacio to "get word" to

DeMaria that Brenson had been arrested, that he had been asked by

federal agents to cooperate against DeMaria, and that DeMaria was

now a target of an investigation. (R11-38, 39.)

Immediately before Brenson's trial was to begin, Brenson

stated to the court that he wanted to change his plea to guilty on

both counts. (R8-3.) Once the district court began the plea

colloquy to establish that Brenson acknowledged his guilt as to the

offenses charged, Brenson refused to admit that he acted

"corruptly" when disclosing grand jury information to Fernandez and

others. The district court would not accept Brenson's plea and

there was a discussion between the district court, counsel for the

parties and the defendant concerning the meaning of the term

"corruptly." (R8-10 to 22.)

The case proceeded to a four day trial before a jury with the

government presenting evidence concerning the required secrecy of

grand jury information as well as evidence of the statements made

by Brenson to government agents admitting that he had in fact

revealed such secrets. Brenson presented three witnesses. Two

attorneys, Howard Sohn and Yale Galanter, testified that they had

spoken with Brenson on the evening of his arrest. (R11-109 to

111.) The third witness, David Lawrence, was a friend of Brenson

1
Agent Gregorius testified that the warning did not prevent
Brenson from contacting an attorney. (R11-101.)
who testified that Brenson came to his home on January 20, 1994,

appearing "scared and confused" and Lawrence suggested that Brenson

contact Lawrence's lawyer, Mr. Sohn. (R11-110, 118-19.)

Brenson moved for acquittal at the close of the government's

case and at the close of the evidence, with both motions being

denied by the district court. (R11-107 to 109, 121-122.) On

August 26, 1994, counsel for both parties had a conference with the

district court on the jury charges to be given by the court. (R11-

122.) Both parties submitted proposed jury instructions on the

substantive offense. (R-1-48; R-1-49; R10-15.) The court agreed

to use the government's proposed instructions along with specific

language from the United States v. Thomas decision, 916 F.2d 647

(11th Cir.1990), in order to describe the obstruction of justice

charge, 18 U.S.C. § 1503. (R11-131 to 134; R3-16 to 20.)

The court rejected the defendant's request for instructions

requiring the government to prove that the defendant endeavored to

influence, obstruct or impede the Grand Jury proceeding itself,

rather than simply stating that defendant endeavored to influence,

obstruct or impede the due administration of justice. (R11-134 to

135; R3-13, 14, 19.) Defendant objected to the proposed jury

instruction without the requested language, but the district court

overruled the objection based on the court's reading of the Thomas

decision. (R3-19.)

On August 29, 1994, Brenson was convicted of conspiring to

obstruct justice and of obstructing justice, as charged in the

indictment. (R1-56-1.) Brenson filed motions for judgment of

acquittal and for a new trial on September 6, 1994. (R1-64-1; R1-
65-1.) In the motion for a new trial, Brenson argued that the

court erred in modifying the jury instruction to allow the finding

of obstruction to be to "due administration of justice" rather than

to the grand jury proceeding. (R-64-1 to 3.) Brenson repeated his

argument concerning the jury instructions in the motion for

acquittal, but also argued that there was insufficient evidence:

(1) of a nexus between Brenson's actions and how those actions

could have an impact upon the grand jury's investigation; (2) of

the necessary corrupt intent; and (3) of a separate agreement as

the basis for the conspiracy conviction. (R1-65.) In the motion

for acquittal, Brenson also argued that the conspiracy conviction

violated the Wharton rule. (R1-65-7.) Both motions were summarily

denied by the court on September 12, 1994. (R1-66.)

II. ISSUES ON APPEAL

On November 28, 1994, Brenson appealed the final judgment of

conviction and the sentence imposed. (R1-77.) On appeal, Brenson

takes issue with the sufficiency of evidence both as to his

conviction for endeavoring to obstruct the due administration of

justice and as to his conviction for conspiring to obstruct the due

administration of justice. Additionally, Brenson argues the

following: (1) the district court provided an erroneous jury

instruction as to the required proof under 18 U.S.C. § 1503, which

led to a conviction without a finding of an obstruction of a

judicial proceeding; (2) the requirement of a "corrupt" intent in

18 U.S.C. § 1503 renders the statute unconstitutionally vague as

applied to this case; and (3) the conspiracy charge merges into

the substantive offense under 18 U.S.C. § 1503 based on the Wharton
Rule. As to sentencing, Brenson argues on appeal that the sentence

imposed by the district court is not supported by the facts or law.

The specific issues raised by Brenson as to his sentence are

discussed below.

A. THE OBSTRUCTION OF JUSTICE CONVICTION

Brenson was convicted under the omnibus clause of 18 U.S.C.

§ 1503:

(a) Whoever ... corruptly or by threats or force, or by any
threatening letter or communication, influences, obstructs, or
impedes or endeavors to influence, obstruct, or impede, the
due administration of justice, shall be punished as provided
...

18 U.S.C. § 1503(a) (1995). "The omnibus clause is essentially a

catch-all provision which generally prohibits conduct that

interferes with the due administration of justice." United States

v. Thomas, 916 F.2d 647, 651, n. 3 (11th Cir.1990).

In order to convict Brenson under the omnibus clause of 18

U.S.C. § 1503, the government had to prove that: (1) Brenson

corruptly; (2) endeavored; (3) to influence, obstruct, or impede

the due administration of justice. Thomas, 916 F.2d at 651. The

government contends that the evidence presented at trial provided

sufficient proof as to all the necessary elements of § 1503.

Brenson argues on appeal, as he did during the trial, that because

he in no way impeded, obstructed or influenced the grand jury

investigation of Fernandez or the indictment of Fernandez, his

conviction for obstruction of justice is not supported by the

evidence and the jury instructions given by the district court

concerning the elements of § 1503 were in error.

The sufficiency of the evidence is a question of law which
receives a de novo review by this court. United States v.

Hooshmand, 931 F.2d 725, 733 (11th Cir.1991). "In considering

appellants' claims of insufficient evidence, this court must view

all of the evidence, together with all logical inferences flowing

from that evidence, in the light most favorable to the government,

and must draw all credibility choices in favor of the finder of

fact." United States v. Perez, 698 F.2d 1168, 1169 (11th

Cir.1983). "When a jury finds a defendant guilty, its verdict must

stand if "any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.' " United States

v. Saget, 991 F.2d 702, 711 (11th Cir.) cert. denied, 510 U.S. 950,

114 S.Ct. 396, 126 L.Ed.2d 344 (1993) (quoting Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979))

(emphasis in original). However, "if a reasonable jury must

necessarily entertain a reasonable doubt as to the defendant's

guilty," then the conviction must be reversed. United States v.

Thomas, 916 F.2d 647, 653 (11th Cir.1990).

1. THE ACT OF DISCLOSING SECRET GRAND JURY INFORMATION.

According to Brenson, the facts of this case require this

court to "place the metes and bounds on the very broad language of

the catchall provision" in § 1503 out of deference to the

prerogatives of Congress, as recognized in Dowling v. United

States, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985), and

out of concern that fair warning be given so the common world can

understand based on the language used what the law intends to do if

a certain line is passed. United States v. Aguilar, --- U.S. ----,

----, 115 S.Ct. 2357, 2362, 132 L.Ed.2d 520 (1995). Brenson argues
that the omnibus clause of § 1503 was not intended to apply to his

actions in disclosing secret grand jury information.

The Government responds by demonstrating that the omnibus

clause of § 1503 has been given a broad reading by this court.

"Section 1503 forbids interferences with the due administration of

justice, i.e., judicial procedure." United States v. Silverman,

745 F.2d 1386, 1393 (11th Cir.1984). "The statute aims "to prevent

a miscarriage of justice.' " Silverman, 745 F.2d at 1393.

In United States v. Brand, 775 F.2d 1460, 1465 (11th

Cir.1985), this court recognized that "[w]e have stated more than

once that the omnibus clause in broad enough to cover any act

committed corruptly, in an endeavor to impede or obstruct justice."

This court previously determined that "[t]he statute [§ 1503]

reaches all corrupt conduct capable of producing an effect that

prevents justice from being duly administered, regardless of the

means employed." United States v. Silverman, 745 F.2d 1386, 1393

(11th Cir.1984). Upon review of the evidence presented at trial,

it is clear that Brenson's disclosure of grand jury information to

the target of the grand jury investigation2, prior to any

2
Courts have uniformly recognized many compelling reasons
for enforcing the secrecy of grand jury proceedings:

(1) To prevent the escape of those whose indictment may
be contemplated; (2) to insure the utmost freedom to
the grand jury in its deliberations, and to prevent
persons subject to indictment or their friends from
importuning the grand jurors; (3) to prevent
subornation of perjury or tampering with the witnesses
who may testify before the grand jury and later appear
at the trial of those indicted; (4) to encourage free
and untrammeled disclosure by persons who have
information with resect to the commission of crimes;
(5) to protect the innocent accused who is exonerated
from disclosure of the fact that he has been under
indictment being returned, is the type of conduct capable of being

punished under § 1503.

In United States v. Howard, 569 F.2d 1331 (5th Cir.1978)3, the
defendants were convicted of conspiring to obstruct justice in

violation of § 1503 by attempting to sell transcripts of secret

grand jury testimony to persons under investigation by the grand

jury. On appeal, the court determined that the appropriation and

disclosure of secret grand jury materials constitutes an

obstruction of justice by breaching the secrecy of the grand jury

proceedings. Howard, 569 F.2d at 1336.

This court has previously determined that "[a]ny person "who
4
knowingly violates Rule 6(e)(2) [Fed.R.Crim.P.] or induces or

attempts to induce another person to violate the Rule may be

[convicted] for obstruction of justice under § 1503.' " United

States v. Saget, 991 F.2d 702, 713 (11th Cir.) cert. denied, 510

investigation, and from the expense of standing trial
where there was no possibility of guilt.

United States v. Howard, 569 F.2d 1331, 1335 (5th Cir.1978)
(quoting United States v. Proctor & Gamble Co., 356 U.S.
677, 681 n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077
(1958)) (other citations omitted).
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc ), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down before October
1, 1981.
4
Rule 6(e)(2) of the Federal Rules of Criminal Procedure
addresses the general rule of secrecy applicable to a grand jury
and states as follows:

A grand juror ... shall not disclose matters occurring
before the grand jury, except as otherwise provided for
in these rules. No obligation of secrecy may be
imposed on any person except in accordance with this
rule. A knowing violation of Rule 6 may be punishable
as a contempt of court.
U.S. 950, 114 S.Ct. 396, 126 L.Ed.2d 344 (1993) (quoting Blalock v.

United States, 844 F.2d 1546, 1561, n. 22 (11th Cir.1988) (JJ.

Tjoflat and Roetger, concurring specially)) (alteration in

original). Contrary to Brenson's argument, a person who improperly

reveals grand jury information in violation of Rule 6(e)(2) can be

convicted for obstruction of justice or contempt5, provided the

elements of § 1503 are proven.

According to Brenson, recently decided cases support his

argument that the act of disclosing grand jury information is

insufficient to support a conviction of obstruction of justice. In

making this point, Brenson relies on the Supreme Court's decision

in United States v. Aguilar for the proposition that the providing

of false information to agents that the defendant knows will

testify before a grand jury was insufficient to demonstrate that

Aguilar's action would have the natural and probable effect of

impeding the grand jury proceeding. However, upon review of the

Aguilar decision, the Supreme Court expressly stated that "[t]he

Government did not show here that the agents acted as an arm of the
grand jury, or indeed that the grand jury had ever summoned the

testimony of these particular agents [those agents who interviewed

5
The legislative history of § 1503 indicates that Congress
intended for § 1503 to cover acts of contempt that were
out-of-court which should be handled by indictment and trial
rather than summary contempt proceedings. United States v.
Griffin, 589 F.2d 200, 204-05 (5th Cir.), cert. denied, 444 U.S.
825, 100 S.Ct. 48, 62 L.Ed.2d 32 (1979); United States v.
Howard, 569 F.2d 1331, 1336 (5th Cir.), cert. denied, 439 U.S.
834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). Although the contempt
statute and § 1503 often overlap, section 1503 encompasses a
meaning and purpose distinct from that of the general contempt
provision. Howard, 569 F.2d at 1336.
Aguilar]" and evidence at trial relied on by the Government "would

not enable a rational trier of fact to conclude that [Aguilar] knew

that his false statement would be provided to a grand jury ..." ---

U.S. at ----, ---- - ----, 115 S.Ct. 2357, 2362-63. Thus, a close

reading of the Aguilar decision refutes Brenson's characterization

of the holding.

Similarly, Brenson relies on this court's decision in United

States v. Thomas, for the proposition that an attorney providing

false testimony is not enough to prove an obstruction of a grand

jury. In the Thomas decision the court pointed out that the court

was "not even convinced that the government established that

Thomas's testimony was false." 916 F.2d at 653. However, the

court did determine that even if they did believe that a jury could

reasonably find that Thomas's testimony was false beyond a

reasonable doubt, the government's case as to obstruction of

justice under § 1503 fails "because no evidence was introduced that

the statements had a natural and probable effect of impeding

justice." Thomas, 916 F.2d at 654.

Based on our reading of Thomas, the decision does not include

any determination that the act of giving false testimony could not

serve as a basis for an obstruction of justice conviction, but

rather reversed the conviction based on the absence of the

necessary evidence that such false testimony would have the natural

and probable effect of impeding justice. While the Thomas decision

can be fairly read to require that Brenson's actions of disclosing

grand jury information must be accompanied by proof of the "natural

and probable effect" of such disclosures on the due administration
of justice in order to support a conviction, we conclude that the

Thomas decision does not support Brenson's argument that his

illegal disclosures are actionable only as contempt of court and

not as a basis for an obstruction of justice conviction.

2. THE NATURAL AND PROBABLE EFFECT OF DISCLOSING THE GRAND JURY
INFORMATION.

Brenson argues that the evidence presented in his case failed

to meet the "nexus" requirement of § 1503 previously defined by

this court in United States v. Thomas, 916 F.2d 647, 651 (11th

Cir.1990), and adopted by the United States Supreme Court in the

Aguilar decision:

The action taken by the accused must be with an intent to
influence judicial or grand jury proceedings; it is not
enough that there be an intent to influence some ancillary
proceeding, such as an investigation independent of the
Court's or grand jury's authority. United States v. Brown,
688 F.2d 596, 598 (9th Cir.1982) (citing cases). Some courts
have phrased this showing as a "nexus" requirement—that the
act must have a relationship in time, causation or logic with
the judicial proceedings. United States v. Wood, 6 F.3d 692,
696 (10th Cir.1993); United States v. Walasek, 527 F.2d 676,
679, and n. 12 (3d Cir.1975). In other words, the endeavor
must have the " "natural and probable effect' " of interfering
with the due administration of justice. Wood, supra, at 695;
United States v. Thomas, 916 F.2d 647, 651 (11th Cir.1990);
Walasek, supra, at 679 ... [I]f the defendant lacks knowledge
that his actions are likely to affect the judicial proceeding,
he lacks the requisite intent to obstruct.

United States v. Aguilar, --- U.S. ----, ----, 115 S.Ct. 2357,

2362, 132 L.Ed.2d 520 (1995). According to Brenson, there was

insufficient evidence at trial to establish that he could have or

wanted to affect the grand jury deliberations during the week

before the indictment was signed by giving information to DeMaria.

The government is not required to prove that the action taken

would directly and immediately obstruct justice in order to violate

§ 1503, but rather that Brenson's conduct has a probable effect of
obstructing justice. Thomas, 916 F.2d 647, 651-52. "The

government is not required to prove ... that the defendant harbored

the specific purpose of obstructing the due administration of

justice; all the government has to establish is that the defendant

should have reasonably foreseen that the natural and probable

consequence of the success of his scheme would achieve precisely

that result." Silverman, 745 F.2d at 1393. In other words, "the

government is not required to prove that a defendant had the

specific purpose of obstructing justice, but it must establish that

the conduct was motivated at least in part, by a "corrupt motive.'

" United States v. Saget, 991 F.2d 702, 713 (11th Cir.) cert.

denied, 510 U.S. 950, 114 S.Ct. 396, 126 L.Ed.2d 344 (1993).

In United States v. Saget, this court determined that when the

defendants met with a grand juror, questioned the grand juror about

the investigation and asked the grand juror to keep them informed

of developments, "the disclosure of secret information by a grand

jury, which otherwise would not have been revealed, was a

reasonably foreseeable result" of such a meeting, thereby

concluding that defendants' actions had the natural and probable

effect of impeding the due administration of justice. 991 F.2d at

713. It directly follows that when Brenson meet with DeMaria and

Fernandez, provided details about the investigation and answered

questions along with agreeing to keep them informed of later

events, it was reasonably foreseeable that such actions would have

the probable effect of obstructing the due administration of

justice.

3. THE JURY INSTRUCTION ON 18 U.S.C. § 1503 DESCRIBING THE "NEXUS
ELEMENT."
 Brenson argues that the "nexus" requirement of § 1503

mandates that the government prove that his actions had the natural

and probable tendency of influencing that the grand jury proceeding

involving Fernandez. Relying on the language in Aguilar requiring

that the government prove that a defendant's actions were intended

to influence a judicial proceeding, rather than some ancillary

proceeding, Brenson argues that his actions must be proven beyond

a reasonable doubt to have been an endeavor to influence, obstruct

or impede the Grand Jury proceeding involving Fernandez and not

merely an endeavor to influence, obstruct or impede the due

administration of justice generally.

Based on this legal argument, Brenson requested the following

jury instruction during the charge conference:

Title 18, United States Code Section 1503, makes it a
federal crime to corruptly influence, obstruct, or impede the
due administration of justice in any Federal Court.

Count 2 charges the Defendant, RONALD A. BRENSON, with
corruptly endeavoring to influence, obstruct, or impede the
due administration of justice in the United States District
Court for the Southern District of Florida in November, 1993,
during the federal grand jury investigation of United States
v. Armando "Mandy" Fernandez, et al.

To "endeavor to influence, obstruct or impede" a grand
jury investigation means to commit an act that has the natural
and probable tendency of influencing, obstructing or impeding
the grand jury's investigation.

Therefore, the Defendant can be found guilty of that
offense if all of the following facts are proven beyond a
reasonable doubt:

First: That there was a pending grand jury proceeding as
alleged;

Second: That the defendant committed an act that had the
natural and probable tendency of influencing, obstructing or
impeding that grand jury's investigation; and

Third: That the defendant's acts were done knowingly and
 corruptly.

To act "corruptly" means to act knowingly and dishonestly with
the specific intent to subvert or undermine the integrity of
the grand jury proceeding.

(R1-48). At the charge conference, the government objected to the

phrasing of the "nexus" requirement in terms of the grand jury

rather than as to "the due administration of justice" based on the

terms of the statute, the charges in the indictment and the Thomas

decision. (R11-126 to 127). After reviewing the Thomas decision,

the district court agreed with the government and ruled that the

government's proposed jury instruction on the substantive offense

of § 1503 would be given along with direct quotations from the

Thomas decision. The district court denied Brenson's requested

instruction on § 1503 as covered by the instructions to be given.

When charging the jury in this case, the district court gave

the following instructions on § 1503, that were largely taken from

the Thomas decision:

Title 18, United States Code, Section 1503, a section of
that book, Title 18, makes it a Federal crime or offense for
anyone to corruptly endeavor to influence, obstruct or impede
the due administration of justice in any Federal Court. The
defendant can be found guilty of that offense if all of the
following facts are proved, beyond a reasonable doubt:

First, that there was a pending Grand Jury proceeding in
this Court as alleged; second that the defendant endeavored
to influence, obstruct or impede the due administration of
justice; and third, that the defendant's acts were done
knowingly and corruptly. These are the three things that the
government must prove and I will explain them in just a few
seconds.

In order to convict an individual under this statute, the
statute that I just spoke about, Section 1503 of that Title
18, the government must prove that he, must prove that he, the
defendant: Number one, corruptly or by threat; number two,
endeavored; and number three, to influence, obstruct or
impede the due administration of justice.
 Corruptly describes the specific intent of the crime.
Generally, the government must show that the defendant, Mr.
Brenson, knowingly and intentionally understood an action from
which an obstruction of justice was a reasonably foreseeable
result.

Although the government is not required to prove that the
defendant, Mr. Brenson, had the specific purpose of
obstruction of justice, it must, the government, must
establish that the conduct was prompted at least in part by
the corrupt motive.

The endeavor element of the offense describes any attempt
or effort to obstruct justice.

It is not necessary that an individual succeed in
actually obstructing justice to violate Section 1503. A
Section 1503 offense is complete when one corruptly endeavors
to obstruct or impede the due administration of justice. The
prosecution need not prove that the due administration of
justice was actually obstructed or impeded.

An individual is prohibited from engaging in any activity
constituting an effort to influence, obstruct or impede the
due administration of justice. The action taken by the
defendant does not need to directly and immediately obstruct
justice to be prohibited by Section 1503. The defendant's
conduct must be such, however, that its natural and probable
effect would be the interference with the due administration
of justice. That is the definition of Section 1503, Count II.

(R12-60 to 63). "A trial court's refusal to give a requested

instruction is reversible error only if (1) the substance of the

instruction was not covered in an instruction given, (2) the

requested instruction is a correct statement of law, (3) the

requested instruction deals with an issue properly before the jury,

and (4) the party seeking the requested instruction suffered

prejudicial harm by the court's refusal." United States v.

Hooshmand, 931 F.2d 725, 734 (11th Cir.1991). "Since these four

elements are in the conjunctive, if the requesting party cannot

show any one of the elements, then the district court did not

commit reversible error." United States v. Jennings, 991 F.2d 725,

731 (11th Cir.1993).
 In reviewing the district court's decision to refuse the

instruction requested by Brenson, the court recognizes that "[a]

district judge is vested with broad discretion in formulating his

charge to the jury so long as it accurately reflects the law and

the facts." United States v. Silverman, 745 F.2d 1386, 1395 (11th

Cir.1984). The jury instructions given by the district court

required a finding that there was a grand jury proceedings pending

at the time of Brenson's actions. Therefore, the district court

incorporated Brenson's request that the jurors be asked to focus on

the grand jury proceedings, although not in the exact terms that

Brenson desired.

Alternatively, the instruction requested by Brenson was not

a correct statement of the law. "[T]he court is bound to refuse a

requested instruction that is incomplete, erroneous, or

misleading." Silverman 745 F.2d at 1396. The phrase "due

administration of justice" has been defined by the former Fifth

Circuit as "judicial procedure," and as "the performance of acts

required by law in the discharge of duties such as appearing as a

witness and giving thoughtful testimony when subpoenaed." United

States v. Howard, 569 F.2d 1331, 1334, n. 4, 1337 (5th Cir.1978)

(quoting United States v. Partin, 552 F.2d 621, cert. denied, 434

U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977)).

While it is clear that a grand jury proceeding is a

recognized part of the judicial proceedings that can be impeded or

obstructed, it is not the only part of the judicial proceeding that

is protected by § 1503 from impediments, improper influence or

obstruction. Section 1503 employs the term "due administration of
justice" to provide a protective cloak over all judicial

proceedings, irrespective of at what stage in the judicial process

the improper activity occurs. In this case, Brenson's illegal

disclosure of grand jury information occurred prior to the return

of an indictment, an arrest, seizure or forfeiture of any assets,

and well before the trial of any individuals being investigated by

the grand jury. Therefore, his act of disclosing secret grand jury

information must be considered in relation to its natural and

probable effect of impeding, influencing or obstructing any of the

present or future stages of the judicial proceedings related to any

offenses by Fernandez or others that were the subject of the

investigation.

Based on the foregoing analysis, we conclude that the jury

instructions given by the district court accurately reflect the

necessary elements of proof for a conviction under § 1503. As long

as the jury instructions inform jurors that the government is

required to prove beyond a reasonable doubt that the defendant

corruptly took some action, the natural and probable effect of

which would be to obstruct or impede the enforcement of the law of

the land in a judicial proceeding, the nexus requirement has been

adequately explained. Therefore, we find no error in the district

court's refusal to give the jury instructions requested by Brenson.

B. CONSTITUTIONAL CHALLENGE TO THE TERM "CORRUPT" IN 18 U.S.C. §
1503

Brenson asserts that the term "corrupt" in 18 U.S.C. § 1503

is unconstitutionally vague. Because there are no first amendment
considerations present6, the court need only review the statute's

clarity as applied to the facts of this case. United States v.

Howard, 569 F.2d 1331, 1337, n. 9 (5th Cir.1978) (citing United

States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228

(1975)). Brenson cannot challenge § 1503 as constitutionally vague

on its face. Id.

In his constitutional challenge, Brenson relies on United

States v. Poindexter, 951 F.2d 369 (D.C.Cir.1991), cert. denied,

506 U.S. 1021, 113 S.Ct. 656, 121 L.Ed.2d 583 (1992), to analogize

the defendant in Poindexter to himself, and argues that if the

National Security Advisor to the President is not expected to know

what the term "corruptly" means, then Brenson should not be

expected to know its meaning. Brenson relies on his own confusion

and inability to understand the term "corrupt" as it applied to his

actions after discussing the term "corrupt" with the district court

and reviewing a copy of the pattern jury instructions on § 1503

published by the Eleventh Circuit District Judges Association as

proof of the term's vagueness.

The government correctly distinguishes the Poindexter opinion

of the United States Court of Appeals for the District of Columbia

Circuit, where the court determined that the term "corruptly" in 18

U.S.C. § 1505 was unconstitutional as applied to the making of a

false or misleading statement to the Congress. 951 F.2d at 386.

The holding of unconstitutionality was closely tied to the alleged

6
A prohibition against corrupt acts does not proscribe
constitutionally protected speech and is clearly limited to
unprotected activity. United States v. Thompson, 76 F.3d 442,
452 (2d Cir.1996).
illegal conduct by Poindexter and the unique nature of § 1505. Id.

at 385-87. The court stated in the Poindexter opinion that "the

language of § 1505 is materially different from that of § 1503" and

found cases construing § 1503 were not instructive in their

analysis as to whether the term "corruptly" in § 1505 was

unconstitutionally vague. Id. at 385.

If a criminal statute "define[s] the criminal offense with

sufficient definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement," then the statute is not

unconstitutionally vague. United States v. Moody, 977 F.2d 1420,

1424 (11th Cir.1992) (quoting Kolender v. Lawson, 461 U.S. 352,

357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)). The mere fact

that a term "covers a broad spectrum of conduct" does not render it

unconstitutionally vague. United States v. Griffin, 589 F.2d 200,

206 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 48, 62

L.Ed.2d 32 (1979).

"The obstruction of justice statute was drafted with an eye to

"the variety of corrupt methods by which the proper administration

of justice may be impeded or thwarted, a variety limited only by

the imagination of the criminally inclined.' " Griffin, 589 F.2d

at 206-207 (citing Anderson v. United States, 215 F.2d 84 (6th

Cir.1954), cert. denied, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 698

(1954)).

The former Fifth Circuit previously faced a challenge to §

1503 as unconstitutionally vague. In United States v. Howard, 569

F.2d 1331, 1336, n. 9 (5th Cir.1978), the court stated that "our
interpretation of the omnibus clause does not create a trap for the

unwary." Howard, 569 F.2d at 1337, n. 9. The statutory language

of § 1503 was declared "sufficiently clear and limited." Id. The

court concluded that "[i]f anyone unwittingly runs afoul of § 1503,

it will not be on account of misconstruction but because of an

ignorance for which there is no excuse." Id.

In United States v. Popkin, 943 F.2d 1535, 1539-40 (11th

Cir.1991), cert. denied, 503 U.S. 1004, 112 S.Ct. 1760, 118 L.Ed.2d

423 (1992), this court considered the meaning of the term

"corruptly" as used in 26 U.S.C. § 7212(a)7. In reviewing §

7212(a), this court adopted the reasoning in United States v.

Reeves, 752 F.2d 995 (5th Cir.), cert. denied, 474 U.S. 834, 106

S.Ct. 107, 88 L.Ed.2d 87 (1985), and the conclusion that "

"corruptly' is used for the purpose of "forbidding those acts done

with the intent to secure an unlawful benefit either for oneself or

for another.' " Popkin, 943 F.2d at 1540. This court went on to

hold that the use of "corruptly" in § 7212(a) "gives clear notice

of the breadth of activities that are proscribed." Id. Likewise,

we do not find the term "corruptly" in 18 U.S.C. § 1503 as applied

to Brenson's disclosure of secret grand jury information to be

7
26 U.S.C. § 7212(a) states, in relevant portions, as
follows:

Whoever corruptly or by force or threats of force
(including any threatening letter or communication)
endeavors to intimidate or impede any officer or
employee of the United States acting in an official
capacity under this title, or in any other way
corruptly or by force or threats of force ... obstructs
or impedes, or endeavors to obstruct or impede, the due
administration of this title, shall, upon conviction
thereof, be fined not more than $5,000, or imprisoned
not more than 3 years, or both ...
unconstitutionally vague.

"[T]he requirement that statutes give fair notice cannot be

used as a shield by one is already bent on serious wrongdoing."

United States v. Griffin, 589 F.2d 200, 207 (5th Cir.), cert.

denied, 444 U.S. 825, 100 S.Ct. 48, 62 L.Ed.2d 32 (1979). Based on

his own statements and the information provided to Brenson as a

grand juror, it is clear that Brenson knew that disclosure of this

information was unlawful. There is little need of advance notice

to an individual that the action taken, which he knows to be

unlawful, is a violation of the law. Griffin, 589 F.2d at 207.

C. THE CONSPIRACY CONVICTION

Brenson asserts three grounds to support his argument that the

conspiracy conviction was in error: (1) there was insufficient

proof that Brenson's actions in disclosing the information were

illegal and thus he cannot be guilty of a conspiracy to commit acts

which are not criminal; (2) the government failed to present

sufficient evidence that Brenson had an agreement with DeMaria to

reveal grand jury information in order to obstruct justice; and

(3) the substantive offense of endeavoring to obstruct justice

under § 1503 merges into the alleged "conspiracy" under the Wharton

Rule so that convictions under both § 1503 and § 371 would violate

the Wharton Rule.

"In order to sustain a conviction under 18 U.S.C. § 371, the

government must show (1) the existence of an agreement to achieve

an unlawful objective; (2) the defendant's knowing and voluntary

participation in the conspiracy; and (3) the commission of an

overt act in furtherance of the conspiracy." United States v.
Harmas, 974 F.2d 1262, 1267 (11th Cir.1992) (quoting United States

v. Cure, 804 F.2d 625, 628-30 (11th Cir.1986)). Brenson's first

ground for challenging the sufficiency of his conspiracy conviction

can be summarily disposed of based on the court's earlier

determination that there was sufficient evidence at trial to

convict Brenson of endeavoring to obstruct the due administration

of justice by the illegal disclosure of secret grand jury

information. There is no question that Brenson went out in search

of DeMaria and then provided desirable information to DeMaria and

Fernandez for the unlawful objective of notifying individuals who

were subject to or potentially affected by the ongoing grand jury

investigation.

1. Evidence of An Agreement

Next Brenson asserts that the evidence presented at trial was

insufficient in its proof of an agreement between Brenson and

DeMaria to reveal grand jury information. According to Brenson, an

agreement for Brenson to talk while his co-conspirators listened is

not a sufficient agreement to support a conspiracy conviction.

"The existence of a conspiratorial agreement may be established

through either direct or circumstantial evidence, such as

inferences from the conduct of the alleged participants." United

States v. Farris, 77 F.3d 391, 394 (11th Cir.1996). In fact "there

is rarely any direct evidence of any agreement to join a

conspiracy, and thus, the defendant's assent can be inferred from

acts that furthered the conspiracy's purpose." United States v.

Miller, 693 F.2d 1051, 1053 (11th Cir.1982).

The evidence presented at trial establishes that Brenson
purposefully arranged a meeting with DeMaria, who he knew to be an

associate of Fernandez. Once DeMaria introduced himself, Brenson

began disclosing grand jury information, including names of

witnesses who testified, assets to be seized, and other details.

Then when DeMaria brought in Fernandez, he introduced him as

"Mandy, the owner of The Collection" and asked Brenson to repeat

this secret grand jury information. Brenson began disclosing

details concerning the grand jury proceeding to Fernandez. As

Brenson was leaving, DeMaria stated that he wanted to "stay in

touch" with Brenson and asked how he could get a hold of him.

Brenson responded by providing DeMaria with his beeper number.

From the foregoing evidence, a rational juror could have

inferred from Brenson's actions that he did in fact enter into an

agreement with DeMaria and/or Fernandez to provide secret grand

jury information. Additionally, the evidence at trial provides a

sufficient basis for a rational juror to infer that Brenson had the

unlawful objective of illegally disclosing grand jury information

when he initiated the meeting with DeMaria. Based on the evidence

presented at trial, it is rational for a jury to determine that

once DeMaria introduced Fernandez to Brenson and Brenson assented

to provide such information directly to Fernandez, an agreement had

been reached for an unlawful objective. Furthermore, it is

rational for a juror to infer such an agreement from the fact that

when DeMaria expressed a interest in "staying in touch" with

Brenson and "getting a hold" of Brenson, Brenson provided his

beeper number for future contact.

Brenson appears to be asserting that there can be no
conspiracy because Brenson did not even know Fernandez, prior to

the meeting. Even assuming that the evidence established that

Brenson only intended to and only agreed to provide the grand jury

information to DeMaria, such an agreement would still have the

illegal objective of disclosing grand jury information and provide

evidence of a "corrupt motive" based on Brenson's intention to

provide an unlawful benefit to himself or another. Because the

evidence demonstrates that Brenson knew DeMaria was an associate of

Fernandez and had an interest in an asset that was to be seized,

there is sufficient evidence for a rational juror to conclude that

the action of providing the information to DeMaria would likely

affect the judicial proceeding. Although not discussed by the

parties, this same evidence also provides sufficient proof of

Brenson's voluntary participation in the conspiracy and an overt

act in furtherance of the conspiracy. Therefore, we conclude that

the evidence presented at trial was sufficient to support Brenson's

conviction under § 371 for conspiring to obstruct justice.

2. The Wharton Rule

The Wharton Rule states as follows: "[a]n agreement by two

persons to commit a particular crime cannot be prosecuted as a

conspiracy when the crime is of such a nature as to necessarily

require the participation of two persons for its commission."

Iannelli v. United States, 420 U.S. 770, 773, n. 5, 95 S.Ct. 1284,

1288, n. 5, 43 L.Ed.2d 616 (1975). The classic example of the

crime of adultery was used by Brenson to demonstrate the

applicability of the Wharton Rule. Iannelli, 420 U.S. 770, 784, n.

15, 95 S.Ct. 1284, 1293, n. 15, 43 L.Ed.2d 616 (1975). Brenson
argues that the conspiracy conviction in this case violates the

Wharton Rule based on the test set forth in Iannelli. The Supreme

Court suggested that a court look at the elements of both the

substantive offense and the conspiracy charge and if one requires

proof of a fact that the other does not, then there is no violation

of the Wharton Rule. 420 U.S. at 786, n. 17, 95 S.Ct. at 1294, n.

17.

As the government has pointed out, a person may violate

Section 1503 without acting in concert with another or absent any

assistance for another person, as when an individual, acting alone

destroys evidence relevant to a judicial proceeding. United States

v. Howard, 569 F.2d at 1334. Alternatively, even when dealing with

the disclosure of grand jury information, an individual could

violate § 1503 singularly by simply providing such information to

another individual when such disclosure would have the probable

effect of impeding the due administration of justice, without any

agreement with the second person. In other words, there is no

requirement that the government prove an "agreement" in order to

properly convict an individual under § 1503. Thus, the prosecution

and conviction of Brenson under § 1503 and for a conspiracy to

violate § 1503 under § 371 does not violate the Wharton Rule.

D. CHALLENGES TO THE SENTENCE IMPOSED

1. Background

The Presentencing Investigation Report ("PSI") prepared on

Brenson assigned an initial offense level for the two offenses of

12 based on grouping under § 3D1.2(b) and § 2J1.2 of the United

States Sentencing Guidelines (the "Guidelines"). Then, the PSI
suggested that Brenson's base offense level should be increased to

30 by consideration of the offense level of 42 in the Fernandez

case, based on the cross-referencing under § 2J1.2(c)(1) to §

2X3.1. The PSI recommended a two level increase in the offense

level for "abuse of trust" under § 3B1.3 and another two level

increase for "obstruction of justice" under § 3C1.1. The PSI

provided no suggestion of a downward adjustment based on acceptance

of responsibility.

The government submitted a memorandum to the district court

requesting the offense level of 30 based on Brenson being sentenced

pursuant to § 2X3.1 and its relation to the crimes charged in the

Fernandez indictment. (R1-67-4 to 5.) A two level increase in the

offense level based on "abuse of trust" under § 3B1.3 was also

requested by the government, as well as an additional two level

increase for "obstruction of justice" under § 3C1.1 related to

efforts by Brenson to "get word" to DeMaria that Brenson had been

arrested and that he was cooperating. (R1-67-5 to 6.)

Additionally, the government asked for a three level upward

departure for "disruption of governmental functions" under § 5K2.7

based on the government's assertion that the grand jury of which

Brenson had been a member had to be disbanded and a new jury heard

some of the investigations heard by Brenson's grand jury. (R1-67-6

to 7.) Finally, the government asked for another five level upward

departure under § 5K2.14 under public welfare, for a total offense

level of 42 after all requested increases. (R1-67-7 to 9.)

Brenson submitted a memorandum to the trial court in which he

argued that the appropriate maximum base offense level was 12 and
that both § 2J1.2 and § 2X3.1 were inapplicable to this case. (R1-

68-2, 4.) Brenson also objected to the use of the "abuse of

trust," "obstruction of justice" and "disruption of government

functions" adjustments because he argued that these elements were

inherent in the offense. (R1-68-3 to 5.) Brenson requested a

reduction for acceptance of responsibility based on his attempt to

plead guilty. (R1-68-6.)

At the initial sentencing hearing on October 31, 1994, the

district court: (1) applied the cross reference in § 2J1.2 and

under § 2X3.1 assigned an offense level of 30; (2) provided a two

level increase in the offense level for abuse of trust pursuant to

§ 3B1.3; (3) declined to provide an increase in the offense level

for obstruction of justice under § 3C1.1, as requested by the

government; (4) declined a reduction for acceptance of

responsibility pursuant to § 3E1.1, as requested by Brenson; and

(5) declined to give a three level upward enhancement or departure

under § 5K2.7 based on endangerment to public welfare. (R13-52 to

55.) During the hearing, Brenson's counsel requested that the

district court provide a downward departure for his role in the

offense. (R13-49, 56 to 58.) The trial court provided Brenson

additional time to brief the issue of a downward departure for

Brenson's minor role in the offense. (R13-58 to 61.)

The final sentencing hearing was held on November 28, 1994.

(R14-1.) At that time, the court declined to depart downward based

on Brenson's role in the offense, despite the fact that judge

expressed great personal concern because he believed the sentence

required by the Guidelines in this case to be unfair. (R14-9 to
11.) The district court sentenced Brenson to 120 months

imprisonment, followed by two years of supervised release, with no

fine imposed. (R14-11.)

2. Issues Raised on Appeal

Brenson challenges the district court's determinations as to

the following: (1) the application of the cross-reference to §

2X3.1 based on those offenses committed by Fernandez; (2) the

denial of a downward departure for his role in the offenses by
Fernandez; (3) the imposition of an upward adjustment for abuse of

trust under § 3B1.3 of the Sentencing Guidelines; and (4) the

district court's denial of a downward adjustment for acceptance of

responsibility.

a. Determination of the Base Offense Level

Brenson challenges the district court's assignment of an

offense level of 30, based on the cross-reference in § 2J1.2(c)(1)

to § 2X3.1 of the Guidelines.8 According to Brenson,

cross-referencing his sentence to those offenses to which Fernandez

8
Section 2J1.2 provides the "obstruction of justice" offense
with a base offense level of 12 and then states the following:

If the offense involved obstructing the investigation
or prosecution of a criminal offense, apply § 2X3.1
(Accessory After the Fact) in respect to that criminal
offense, if the resulting offense level is greater than
that determined above.

U.S.S.G. § 2J1.2(c)(1). Then based on section 2X3.1 the
base offense level is "6 levels lower than the offense level
for the underlying offense, but in no event less than 4, or
more than 30 ..." Based on the quantity of drugs involved
in the offenses to which Fernandez pled guilty, the base
offense for the underlying offense was either 42 or 38,
depending on which version of the Guidelines applied. Under
either version of the Guidelines, the maximum base offense
level for Brenson under § 2X3.1 is 30.
pled guilty is in error because: (1) § 2J1.2(c)(1) requires an

actual obstruction of justice and Brenson's conviction for

unsuccessfully "endeavoring" to obstruct justice renders this

provision inapplicable; and (2) Brenson was not an "accessory

after the fact."

Initially, Brenson argues that § 2J1.2(c)(1) cannot be

utilized in determining his sentence because the provision deals

only with an actual obstruction and not simply "endeavoring" to

obstruct justice. In this case Brenson has been convicted of

conspiring to obstruct justice in violation of 18 U.S.C. § 371 and

endeavoring to obstruct the due administration of justice in

violation of 18 U.S.C. § 1503. We believe that each of these

offenses is encompassed in § 2J1.2(c)(1) as an offense that

"involved obstructing the investigation or prosecution of a

criminal offense." We are not alone in our analysis that §

2J1.2(c)(1) applies to a conviction for endeavoring to obstruct the

due administration of justice under § 1503. See United States v.

Aragon, 983 F.2d 1306, 1315 (4th Cir.1993). 9 We agree with the

Fourth Circuit Court of Appeals' analysis and determination in

Aragon.

Brenson then argues that the district court erred in applying

9
The Fourth Circuit explained that because § 2J1.2 "is the
only section of the guidelines which covers 18 U.S.C.A. § 1503
... it follows logically that endeavoring to obstruct justice, a
subpart of 18 U.S.C.A. § 1503, is to be included within § 2J1.2."
United States v. Aragon, 983 F.2d 1306, 1315 (4th Cir.1993).
Additionally, the court relied on the use of the term "effort" in
the background commentary to § 2J1.2 as indicating that this
provision was "meant to guide sentencing for all violations of 18
U.S.C.A. § 1503, whether on an obstruction or "endeavoring'
theory." Aragon, 983 F.2d at 1315.
§ 2X3.1 as a cross-reference for determining his base offense

level. The argument concerning the inapplicability of § 2X3.1

appears to be based on a lack of understanding as to how § 2X3.1 is

applied in these types of cases. This court recently stated that

"[t]he language of the cross-referencing provision [§ 2J1.2] is

mandatory when the offense involves "obstructing the investigation

or prosecution of a criminal offense' without any qualification and

without regard to whether defendant or anybody else was convicted

of the underlying offense, or whether an offense could be shown to

have been committed at all." United States v. McQueen, 86 F.3d

180, 182 (11th Cir.1996). Pursuant to § 2J1.2, "a sentencing court

must apply the cross-reference provision," when applicable.

McQueen, 86 F.3d at 182 (emphasis added).

In United States v. McQueen, the district court erroneously

declined to apply the cross-referencing provision when sentencing

the defendant as to his obstruction of justice offense because the

defendant had been acquitted of the underlying offense (money

laundering). 86 F.3d at 182-84. This court pointed out that the

"district court erroneously focused on the definition of

"underlying offense' in § 2X3.1, which applies to a conviction as

an accessory after the fact" and "[t]hat definition does not apply

for cross-reference purposes." Id. at 183. Based on this same

rationale, Brenson need not be proven to be an accessory after the

fact, because the application of § 2X3.1 is due to the

cross-referencing requirement in § 2J1.2(c)(1) and not based on

Brenson being treated as an accessory after the fact.
 The application notes to § 2J1.2 of the Guidelines 10, in the

relevant part, state as follows:

The specific offense characteristics reflect the more
serious forms of obstruction. Because the conduct covered by
this guideline is frequently part of an effort to avoid
punishment for an offense that the defendant has committed or
to assist another person to escape punishment for an offense,
a cross reference to § 2X3.1 (Accessory After the Fact) is
provided. Use of this cross reference will provide an
enhanced offense level when the obstruction is in respect to
a particularly serious offense, whether such offense was
committed by the defendant or another person.

These notes indicate that the use of § 2X3.1 is intended not

to treat the defendant as having committed the underlying offense,

but to weigh the severity of one's actions in obstructing justice

based on the severity of the underlying offense that was the

subject of the judicial proceeding sought to be obstructed, impeded

or influenced. This court has recognized that the purpose of the

cross-referencing to § 2X3.1 is to provide proportionality in the

sentencing of such offenses. United States v. Pompey, 17 F.3d 351,

352 (11th Cir.1994).

Application of section 2X3.1 and viewing the underlying

offense "is not commensurate with conviction of the underlying

offense or a sentence for the underlying offense" but merely a

measure or point of reference for the severity of offenses

involving the administration of justice. United States v.

Roderick, 974 F.2d 1270, 1272-73 (11th Cir.1992) (dealing with §

2X3.1 in a sentence for a perjury offense). Thus, Brenson's

10
Commentary that provide either interpretation or
explanation of a guideline is binding, unless it violates the
Constitution or a federal statute or is plainly erroneous or
inconsistent with the regulation it interprets. Stinson v.
United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598
(1993).
argument that the government has the burden of proving that he

qualifies as an accessory after the fact to the crimes committed by

Fernandez is incorrect.

Brenson relies on this court's opinion in United States v.

Huppert, 917 F.2d 507 (11th Cir.1990) as supporting his arguments,

but the holding in Huppert is inapplicable to this case. The

decision in Huppert dealt with the court's refusal to apply § 2X3.1

where the defendant obstructed an investigation only to assist

himself, rather than others. United States v. McQueen, 86 F.3d

180, 182 (11th Cir.1996). In this case the facts demonstrate that

the disclosures by Brenson were intended to assist others in

obstructing or impeding the judicial proceedings related to

offenses committed by persons other than himself. Furthermore, the

language at issue in the Huppert was part of the commentary which

has been amended to now include attempts to avoid punishment for an

offense either committed by the defendant or to assist another

person in escaping punishment for an offense. See U.S.S.G. §

2J1.2(c)(1), commentary (backg'd) (Nov. 1, 1991).

Even assuming that the government was required to prove that

Brenson was an accessory after the fact to the offenses committed

by Fernandez, sufficient evidence was presented. The determination

of whether an individual is an accessory after the fact "is a legal

conclusion subject to de novo review." United States v. Huppert,

917 F.2d 507, 510 (11th Cir.1990). "The gist of being an accessory

after the fact lies essentially in obstructing justice by rendering

assistance to hinder or prevent the arrest of the offender after he

has committed the crime." Huppert, 917 F.2d at 510 (quoting United
States v. Willis, 559 F.2d 443, 444 (5th Cir.1977)). The evidence

presented at trial established that prior to any indictment being

returned, Brenson provided the target of the grand jury

investigation, Fernandez, and DeMaria with information regarding

witnesses who appeared before the grand jury, names of those who

could possibly be indicted and the possible charges, the proposed

forfeiture of certain assets and the anticipated date of the

indictment. This information once disclosed provided assistance to

Fernandez and DeMaria in a way capable of hindering or preventing

the arrest of Fernandez and/or the forfeiture of certain property.

Relying on the evidence presented, the sentencing court, if so

required, could properly determine that Brenson was an accessory

after the fact.

Based on the foregoing, we conclude that the district court

properly applied the cross-reference to § 2X3.1 in this case to

assign a base offense level of 30.

b. Denial of the Downward Departure

Brenson requested a downward departure under § 5K2.0 based on

his minimal role in the offenses committed by Fernandez and argues

that the district court erred in refusing to provide him with the

downward departure. Brenson's assertion is based on his belief

that he was not eligible for a downward adjustment under § 3B1.2

because he was the sole participant in the offense committed.

Based on the assumption that Brenson was treated as an accessory to

the offense committed by Fernandez under § 2X3.1, Brenson argues

that he qualifies as a "participant" under § 3B1.2 for those

offenses and his minimal role in the vast criminal enterprise of
Fernandez should be considered.

The threshold determination to be made by this court is

whether we have jurisdiction to decide this issue.

The Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq.,
prohibits a defendant from appealing a sentencing judge's
refusal to make a downward departure from the guidelines
sentencing range. Nonetheless, review is available for a
sentencing challenge based upon the district court's belief
that it had no authority to depart from the sentencing
guideline range.

United States v. Patterson, 15 F.3d 169, 171 (11th Cir.1994). This

court has no jurisdiction to review the denial of Brenson's request

for a downward departure unless "the sentencing court denied the

downward departure based upon a misapprehension of its own

discretionary authority to depart downward." Patterson, 15 F.3d at

171.

Obviously the district court understood its discretion under

§ 5K2.0 to provide a downward departure under limited circumstances

when it invited the defendant to file a motion for a downward

departure. After continuing the sentencing hearing and reviewing

the submissions by both parties as to a possible downward

departure, the court responded by stating "I have no choice but to

follow the law, and I think my reading of the law requires me to

deny the defendant's motion for a downward departure." (R14-9.)

Neither this statement, nor anything else in the transcript of the

sentencing proceedings, indicates that the district court

misunderstood its authority to depart downward. To the contrary,

the transcript of the sentencing proceedings illustrates that after

reviewing the arguments of the parties and despite the district

court's personal desire to minimize the sentence imposed, the
district court was unable to satisfy himself that the facts before

him justified a departure downward from the guideline range.

Accordingly, this court lacks jurisdiction to review the denial of

the downward departure.

c. Upward Adjustment for Abuse of Trust Under § 3B1.3

Brenson argues that the district court erred in adjusting his

sentence upward under § 3B1.3 for "abuse of trust." According to

Brenson, any abuse of trust is clearly inherent in the crime

itself. Brenson also points to the application notes of § 3B1.3

requiring a position of public or private trust be "characterized

by professional or managerial discretion (i.e. substantial

discretionary judgment that is ordinarily given considerable

deference)." U.S.S.G. § 3B1.3, commentary, n. 1. Brenson believes

that this provision does not apply to him because it was intended

to apply to supervisory positions where an individual abuses the

power to use discretionary judgment.

In reviewing the district court's decision to apply the

enhancement in § 3B1.3 for an abuse of trust in this case, the

court must proceed with a two-step analysis. First, the question

of whether conduct by a grand juror justifies the "abuse of trust"

enhancement is a legal conclusion requiring a de novo review.

United States v. Terry, 60 F.3d 1541, 1545 (11th Cir.1995).

The district court determined that an abuse of trust was not

inherent in the offenses of endeavoring to obstruction of justice

or conspiring to obstruct justice. A person who is not a grand

juror nor otherwise cloaked with a special duty by the judicial

system could endeavor to obstruct justice in various ways. In
other words, there is no inherent requirement that a person hold a

position of trust in order to be guilty of violating § 1503.

Second, the district court's decision that Brenson abused a

position of public trust is reviewable under a clearly erroneous

standard. 18 U.S.C. § 3742(d); United States v. Terry, 60 F.3d

1541, 1545 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.

737, 133 L.Ed.2d 687 (1996). Grand jurors are specially selected

to perform a vital function of the judicial process by serving as

the small representative sample of the community at large assigned

to listen to evidence of criminal activity, impartially weigh this

evidence and determine if there is sufficient evidence to support

an indictment of an individual. By performing this public duty, a

grand juror assumes a position of public trust as to such

responsibilities.

In applying § 3B1.3, the court should inquire as to whether

or not the defendant used any special knowledge or access provided

by his position of public trust to facilitate or conceal the

offense. United States v. Baker, 82 F.3d 273, 277 (8th Cir.1996).

"For this enhancement to apply, the position of trust must have

contributed in some significant way to facilitating the commission

or concealment of the offense." U.S.S.G. § 3B1.3, commentary, n.

1.

In this case, the controlling fact is that Brenson's position

as a grand juror provided him with information on the evidence in

the Fernandez investigation and facilitated the commission of this

crime by providing Brenson with access to information that would

otherwise not have been known to him. Brenson used his status as
a grand juror to endeavor to obstruct justice and emphasized to

DeMaria that the reason DeMaria would want to listen to Brenson was

because he was a grand juror. Likewise, when DeMaria requested a

way to keep in touch with Brenson in order to stay informed,

Brenson once again employed his status as a grand juror in making

this illegal agreement. Had Brenson not been serving as a grand

juror, Brenson would have had no way of providing ongoing

information about the investigation to DeMaria and Fernandez.

Based on the evidence presented, the district court's

determination that Brenson abused a position of public trust is not

clearly erroneous. Therefore, we conclude that in this case the

district court properly included a two level enhancement for abuse

of trust pursuant to § 3B1.3.

d. Denial of Downward Adjustment For Acceptance of Responsibility

Finally, Brenson states that the district court erred in

denying him a two or three level reduction in his offense level for

"acceptance of responsibility." Relying on the fact that he

admitted to federal agents shortly after his arrest that he

revealed grand jury information, Brenson argues that he is entitled

to the acceptance of responsibility reduction because he went to

trial only to preserve the legal issue as to whether or not

disclosing grand jury secrets was a per se violation of the

obstruction of justice statute. According to Brenson, the district

court mistook Brenson's legal arguments for a factual issue of

intent. Additionally, Brenson points to the fact that he assisted

authorities in the investigation and prosecution of his offense by

"timely providing complete information to the government concerning
his own involvement in the offense," as set out in § 3E1.1(b)(1)

and asserts that he is entitled to a three level reduction in his

base offense level.

We review the district court's decision as to acceptance of

responsibility only for clear error. United States v. Arguedas, 86

F.3d 1054, 1059 (11th Cir.1996). "The district court is in a

unique position to evaluate whether a defendant has accepted

responsibility for his acts, and this determination is entitled to

great deference on review. Unless the court's determination is

without foundation, it should not be overturned on appeal." United

States v. Pritchett, 908 F.2d 816, 824 (11th Cir.1990); U.S.S.G.

§ 3E1.1, commentary, n. 5.

Pursuant to § 3E1.1 of the Guidelines, only a defendant who

"clearly demonstrates a recognition and affirmative acceptance of

personal responsibility for his criminal conduct" may receive a

downward adjustment for acceptance of responsibility. U.S.S.G. §

3E1.1(a). The evidence presented at trial demonstrates that

immediately following his arrest, Brenson confessed to federal law

enforcement agents that he had provided secret grand jury

information to DeMaria and Fernandez. However, Brenson also agreed

to assist in the investigation of DeMaria on the condition that he

was not to inform anyone of his cooperation but sabotaged any

covert investigation of DeMaria by telling a friend, Mario Palacio,

to "get word" to DeMaria that he had been asked to cooperate

against DeMaria. Brenson's attempted guilty plea came only moments

before the trial proceedings were to begin and after a jury had

been selected. The plea was aborted during the plea colloquy once
Brenson refused to acknowledge the necessary state of mind, i.e.

that he had acted "corruptly" in disclosing this information.

The district court determined that while Brenson "has accepted

some responsibility for some of the actions in this particular

case, he has not accepted responsibility for all of his actions."

(R13-53 to 54). In denying the downward adjustment, the district

court acknowledged that while the defendant's insistence on going

to trial was a factor, it does not prevent the defendant from being

eligible for the downward adjustment. (R13-54.)

The comments to § 3E1.1 explain that there are "rare

situations" where a defendant could adequately accept

responsibility to qualify for a downward adjustment and proceed to

trial. U.S.S.G. § 3E1.1, commentary, n. 2. Brenson argues that

this case presents one such "rare situation." This court has

relied on the commentary in stating that "[s]uch a rare situation

may exist when a defendant goes to trial only to preserve issues

that do not relate to factual guilt." United States v. Gonzalez,

70 F.3d 1236, 1239 (11th Cir.1995), cert. denied, --- U.S. ----,

116 S.Ct. 1838, 134 L.Ed.2d 941 (1996). Brenson's decision to

proceed to trial was not based on a challenge to the statute's

application to his particular conduct as he has argued. Brenson's

pre-trial statements demonstrate that he refused to admit that he

had acted "corruptly" in disclosing this information. Therefore,

Brenson put the government to its burden of proof at trial by

denying an essential element of the crime, which directly relates

to the factual guilt. Upon review of the record in this case, the

district court's denial of the downward adjustment for acceptance
of responsibility was adequately supported and was not in error.

III. CONCLUSION

Accordingly, we conclude that we lack jurisdiction to review

the district court's refusal to grant a downward departure and

AFFIRM the decision of the district court on all other grounds.