Sunday, November 27, 2005

Year-Long Flight from Arrest, even when Coupled with Use of Alias, Not Sufficient to Justify Obstruction Enhancement

United States v. Michael Bliss, Docket No. 04-1163-cr (2d Cir. Nov. 23, 2005) (Meskill, Sack, Parker): This case primarily confirms that a defendant's flight from arrest, even when it results in a year-long delay in his apprehension by law enforcement, is not in itself sufficient to trigger the 2-level obstruction enhancement under U.S.S.G. § 3C1.1. See U.S.S.G. § 3C1.1 comment. (n.5). Moreover, the enhancement is not automatically triggered even when flight is coupled by the defendant's use of aliases. Rather, the enhancement is warranted only where the Government shows, additionally, that the defendant engaged in conduct that "actually resulted in a significant hindrance to the investigation or prosecution of the instant offense." Id. § 3C1.1 comment. (n.5(a)). Where a lengthy delay in arrest or the expenditure of significant resources by law enforcement cannot be attributed to the defendant's actions, the enhancement is not appropriate.

The essential facts are such. Acting on the complainant's claim that Bliss sexually molested her numerous times, police executed a search warrant at Bliss's mother's home, where he resided. Bliss was not there, but the police seized videotapes and other evidence of his guilt. When Bliss arrived home the next day, his mother informed him of what had occurred. Bliss then borrowed his mother's car, drove it to Hartford, rented a car under his own name, and drove that car to Los Angeles. He then obtained a job in L.A. under his own name, even filing a W-2 form under that name. He eventually used an alias, however, convincing his employer to pay him under the assumed name.

Bliss was not arrested until one year later. The reasons for the delay are not clear. At sentencing, the Government showed only that after Bliss's photo appeared on the TV program "America's Most Wanted," it expended significant resources tracking down false leads. The Government did not show that this expenditure was attributed to Bliss's flight or use of an alias.

Under these facts, the Circuit held that the obstruction enhancement could not be applied. First, Application Note 5 specifically exempts "avoiding or fleeing from arrest" as conduct triggering the enhancement. Second, since giving a false name to law enforcement agents upon arrest is also exempted, id. § 3C1.1 comment. (n.5(a) & (b)), Bliss's use of an alias during his flight cannot, in and of itself, warrant the enhancement. And while a defendant's flight "due to its duration or acts occurring in the course thereof, [may] ripen[] into a willful attempt to impede [] the administration of justice," United States v. Stroud, 893 F.2d 504, 508 (2d Cir. 1990), the Government must still show that (1) significant resources were expended, and that (2) this expenditure resulted from the defendant's conduct in avoiding arrest. Op. 16-17. "There must be some showing," the Court held, "that the defendant's obstructive conduct resulted in the delay in his apprehension." Op. at 20 (emphasis in original).

Here, the Government failed to show that Bliss's "use of an alias 'actually resulted in a significant hinderance to the investigation or prosecution of the instant offense." Op. at 18-19 (quoting U.S.S.G. § 3C1.1 comment. (n.5(a)). As noted, the "bulk of [the Government's] resources were spent pursuing false leads provided by 'America's Most Wanted' viewers -- not following Bliss on a wild goose chase of his own making." Op. at 20. Without a showing that Bliss's "use of an alias actually prejudiced the investigation," the obstruction enhancement was not warranted. Op. at 21.


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