Thursday, July 21, 2005

Obstructive Conduct during State Investigation Triggers Obstruction Enhancement upon Federal Conviction for Different but Related Offense

United States v. Marshall Ayers, Docket No. 04-0103 (2d Cir. July 21, 2005) (Sack, Raggi, Hall) (per curiam): Some of us cynically speak of the "Rule of Severity" occasionally applied in criminal cases, especially when ugly facts are involved. The Rule is simple: Where a statute or rule can reasonably be interpreted in one of two ways, the Court will adopt the interpretation that results in greater punishment for the well-deserving defendant. Unlike its much better known cousin, the Rule of Lenity, the Rule of Severity does not of course officially exist. Yet its force is well-known to those who practice in this field.

The issue in this case is whether the defendant's effort to obstruct the state's investigation of his crime, which preceded the federal investigation and prosecution of a different but related crime, triggers the obstruction enhancement of U.S.S.G. § 3C1.1 for purposes of the federal sentence. The governing language from Section 3C1.1 provides that the 2-level enhancement is applicable only where, inter alia, "the defendant willfully obstructed or impeded . . . the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction . . . ." (emphasis added). Despite this language -- and especially the focus on "the instant" case -- the Court affirms the application of the enhancement for obstructive conduct that occurred during a state investigation of a state case that long preceded the federal prosecution for a different offense.

The essential facts are simple. Ayers allegedly shot & killed someone in June 2001. During the state's investigation of the murder, Ayers told one of his friends to destroy the gun allegedly used in the shooting. The friend did as Ayers asked.

Ayers was eventually indicted and prosecuted in state court for murder and criminal possession of a weapon in the 2nd degree. A jury acquitted him of both counts. It found him guilty only of a misdemeanor possession charge.

Thereafter, the feds got involved and prosecuted Ayers under § 922(g)(1), as he had a prior felony conviction. Ayers pleaded guilty in federal court. He did nothing obstructive during the federal proceedings. Nonetheless, at sentencing, the district judge imposed the 2-level obstruction enhancement based on Ayers's effort to destroy the gun during the state's investigation, pointing out the obvious fact that Ayers willfully and knowingly attempted to destroy material evidence.

The Circuit affirmed, noting that Ayers's "conduct is clearly obstructive [since] the destroyed evidence was material to an official investigation or judicial proceeding involving the offense of conviction, i.e., possession of a firearm by a convicted felon." Op. at 4. As support, it cited SecondCircuit precedent upholding application of the enhancement for obstructive conduct during civil SEC proceedings that preceded the criminal prosecution, as well as cases from other courts allowing the enhancement for obstructive conduct during a state investigation that eventually led to a federal prosecution. Op. at 5-6.

The opinion makes no effort, however, to confront the actual language of the obstruction enhancement, and specifically the word "instant". Even granting the Court's point that because the state's investigation encompassed both murder and criminal possession of a weapon in the 2nd degree, it thus encompassed the § 922(g)(1) "offense of conviction" (even though it clearly does not -- CPW-2d is possession of a weapon with intent to use it against another, while felon-in-possession simply prohibits the possession of a gun by a felon; it's apples and oranges), the obstruction enhancement can be imposed only if the obstructive act occurred "during . . . the instant offense of conviction." The "instant" case, as used in the law, refers to this case -- the case currently before the court. And in this context, the "instant" case is clearly the federal § 922(g)(1) prosecution. Ayers certainly did nothing obstructive in this case.

At best, there is ambiguity in the Guideline. The Rule of Lenity should therefore come into play and award the tie to the defendant. Unfortunately, the ugly facts of Ayers's misbehavior triggered the application of the contrary, unacknowledged Rule mentioned earlier.

That defendants like Ayers who commit obstructive acts deserve greater punishment, as the Court points out, cannot be disputed. Yet it is also irrelevant to the precise question before the Court in the instant appeal (there, I said it).


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