United States v. Correia , 47 F.3d 1156 ( 1995 )

47 F.3d 1156
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

UNITED STATES of America, Appellee,
v.
Roger W. CORREIA, Sr., Defendant, Appellant.

No. 94-1817

United States Court of Appeals,
First Circuit.

Feb. 16, 1995

Appeal from the United States District Court for the District of Massachusetts [Hon. William G. Young, U.S. District Judge ] Torruella, Chief Judge, Aldrich, Senior Circuit Judge, and Cyr, Circuit Judge.

1

Bjorn R. Lang, with whom Owen S. Walker was on brief for appellant.

2

Sheila W. Sawyer, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

3

D.Mass.

4

AFFIRMED.

5

PER CURIAM.

6

After appellant Roger Correia, Sr., pled guilty to four counts of defrauding the Social Security Administration ("SSA"), the district court enhanced his sentence pursuant to U.S.S.G. Sec. 3C1.1. The sole issue on appeal is whether the oath administered to appellant during the course of the fraud investigation conducted by the United States Department of Health and Human Services ("HHS") was authorized by law. We affirm.

7

The district court imposed a two-point upward adjustment for attempting to obstruct or impede the administration of justice during the HHS fraud investigation. The guideline commentary makes a clear distinction between sworn and unsworn statements. "Committing, suborning, or attempting to suborn perjury" is specifically enumerated conduct to which the adjustment applies. U.S.S.G. Sec. 3C1.1, comment. (n.3(b)).1 The only question raised is whether the HHS inspectors were authorized to administer an oath to appellant. See United States v. Debrow, 346 U.S. 374, 377 (1953).

8

The instant HHS investigation was conducted in accordance with the Inspector General Act of 1978, which establishes inspectors general within, inter alia, the Department of Health and Human Services, "to conduct and supervise audits and investigations relating to [its] programs and operations...." 5 U.S.C. app. 3 Sec. 2(1) (1994). The Inspector General of HHS is empowered "to administer to or take from any person an oath, affirmation, or affidavit whenever necessary in the performance of the functions assigned by this Act." Id. Sec. 6(a)(5) (emphasis added).

9

Appellant's lone argument is that it was not "necessary in the performance of the functions" assigned to the HHS to administer an oath in investigating this case. This claim rings especially hollow here, since appellant had lied to HHS investigators during an earlier interview, thereby enabling him to continue for almost two additional years to receive disability payments to which he was not entitled.

10

As appellant was subject to a duly administered oath at the time he willfully made materially false statements to the HHS inspectors, the two-point enhancement under U.S.S.G. Sec. 3C1.1 was entirely proper.

11

AFFIRMED.

1

Perjury is defined at 18 U.S.C. Sec. 1621:

Whoever, having taken an oath before a competent tribunal, officer, or person in any case in which a law of the United States authorizes an oath to be administered ... willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true ... is guilty of perjury....