United States v. Terazze Taylor ( 2014 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 13-30040
    Plaintiff-Appellee,
    D.C. No.
    v.                      2:12-cr-00195-
    JLR-4
    TERAZZE A. TAYLOR,
    Defendant-Appellant.          OPINION
    Appeal from the United States District Court
    for the Western District of Washington
    James L. Robart, District Judge, Presiding
    Argued and Submitted
    February 6, 2014—Seattle, Washington
    Filed April 18, 2014
    Before: Raymond C. Fisher, Ronald M. Gould and
    Morgan B. Christen, Circuit Judges.
    Opinion by Judge Fisher
    2                  UNITED STATES V. TAYLOR
    SUMMARY*
    Criminal Law
    Affirming a sentence for defrauding the Veteran’s
    Administration, the panel held that a defendant who willfully
    provides materially false testimony at a bond revocation
    hearing may be subject to an enhancement for obstruction of
    justice under U.S.S.G. § 3C1.1.
    The panel held that the defendant’s testimony to the
    magistrate judge during a bond revocation hearing was
    material as defined in the commentary to § 3C1.1, that a
    specific finding of “perjury” was not required, and that the
    district court made sufficient findings to support the
    enhancement as an attempt to obstruct or impede the
    administration of justice with respect to prosecution “of the
    instant offense of conviction.”
    COUNSEL
    Sharon J. Blackford (argued), Sharon Blackford PLLC,
    Seattle, Washington, for Defendant-Appellant.
    Helen J. Brunner (argued), S. Kate Vaughan, Assistant United
    States Attorneys, Jenny A. Durkan, United States Attorney,
    Seattle, Washington, for Plaintiff-Appellee.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. TAYLOR                     3
    OPINION
    FISHER, Circuit Judge:
    Defendant Terazze Taylor appeals the district court’s
    imposition of a two-level enhancement for obstruction of
    justice under U.S. Sentencing Guidelines Manual (U.S.S.G.)
    § 3C1.1, based on Taylor’s false and misleading testimony at
    a bond revocation hearing in this case. We hold that Taylor’s
    willful, false statements during the bond revocation hearing
    warranted enhancement as an attempt to obstruct or impede
    the administration of justice with respect to the prosecution
    “of the instant offense of conviction.” 
    Id. We therefore
    affirm his sentence.
    I
    In July 2012, Taylor was arrested for submitting
    fraudulent travel vouchers to the Veteran’s Administration
    (VA). A veteran of Operation Iraqi Freedom, Taylor
    frequently traveled to a VA Medical Center for various
    medical appointments. He sought reimbursement for his
    travel expenses, but intentionally gave an incorrect address on
    the form, thereby increasing the amount of each
    reimbursement by $165. He also sought reimbursement for
    days he did not attend any medical appointments. In total,
    Taylor fraudulently obtained approximately $16,599 in travel
    reimbursements from the VA.
    After his arrest, Taylor was released on a pretrial
    appearance bond with the standard condition that he not
    commit a further federal, state or local crime. Shortly
    thereafter, however, Taylor was charged with domestic
    violence for allegedly assaulting his ex-girlfriend, Jovan
    4                UNITED STATES V. TAYLOR
    Ness. The state prosecutor dismissed the charges without
    prejudice, but Taylor was arrested on a federal warrant for
    violating a condition of his appearance bond in this case,
    prompting a pretrial bond revocation hearing.
    At the hearing, the government presented the testimony
    of an independent eyewitness, two police officers and
    Taylor’s probation officer on the merits of the domestic
    violence charges. The independent witness testified that she
    observed Taylor physically assaulting Ness and pulling her
    forcefully from her vehicle while Ness screamed for
    assistance. One of the police officers testified that Ness told
    him Taylor had assaulted her. Another police officer who
    spoke with Taylor after the incident testified that Taylor
    denied having had any interaction with Ness at all that day.
    According to the probation officer, however, Taylor’s GPS
    monitoring bracelet indicated that he was within 10 feet of the
    location of the alleged assault for approximately three
    minutes at the time in question.
    Taylor testified on his own behalf, as did Ness, the
    alleged victim. Ness denied that Taylor had assaulted her,
    claiming instead that Taylor was attempting to stop her from
    driving her car, as she was heavily medicated for pain at the
    time of the incident. She also denied telling the police she
    had been assaulted, although she acknowledged that she had
    obtained a restraining order against Taylor the day of the
    incident. For his part, Taylor denied physically assaulting
    Ness but did admit to being at the scene of the incident
    briefly, testifying that he was attempting to stop Ness from
    driving her vehicle while medicated.
    At the conclusion of the hearing, the magistrate judge
    found by a preponderance of the evidence that Taylor had
    UNITED STATES V. TAYLOR                             5
    committed the assault. The judge credited the testimony of
    the independent witness and the two officers, and found that
    Ness “did not, in appearance to me, seem that she was
    completely testifying candidly, and her denials to me were
    not believable.” The judge also found that Taylor’s testimony
    was contradicted on key points by that of the officers.
    Without further commenting on Taylor’s veracity, the
    magistrate judge revoked Taylor’s appearance bond.
    Taylor ultimately pled guilty to defrauding the VA. At
    sentencing, relying on the magistrate judge’s findings and a
    recording of Taylor’s testimony at the bond hearing, the
    district court imposed a two-level enhancement for
    obstruction of justice under section 3C1.1.1 Taylor now
    challenges the enhancement.
    II
    Section 3C1.1 provides for a two-level increase in the
    offense level if:
    (1) [T]he defendant willfully obstructed or
    impeded, or attempted to obstruct or impede,
    the administration of justice with respect to
    the investigation, prosecution, or sentencing
    of the instant offense of conviction, and (2)
    the obstructive conduct related to (A) the
    1
    The district court concluded in the alternative that the obstruction
    enhancement could be based on telephone calls Taylor made to two
    women while he was incarcerated at the federal detention center, urging
    them to convince Ness to try to “fix this situation.” Because Taylor’s
    testimony at the bond revocation hearing was sufficient to support his
    enhancement for obstruction, we do not address this alternative ground.
    6                UNITED STATES V. TAYLOR
    defendant’s offense of conviction . . . or (B) a
    closely related offense . . . .
    U.S.S.G. § 3C1.1.         Conduct that may trigger this
    enhancement includes “committing, suborning, or attempting
    to suborn perjury” or “providing materially false information
    to a judge or magistrate judge.” 
    Id. § 3C1.1
    cmt. n.4(B), (F).
    The district court imposed a two-level increase based on
    what it found to be Taylor’s false testimony at the bond
    revocation hearing. It reasoned that part of the prosecution of
    the underlying offense of conviction involved a determination
    of whether Taylor should “be detained or should . . . not be
    detained,” and an “outright falsehood during that detention
    period” is “part of [that] process.” We review de novo the
    “district court’s characterization of [Taylor’s] conduct as
    obstruction within the meaning of Section 3C1.1,” and we
    review its factual findings for clear error. United States v.
    Shetty, 
    130 F.3d 1324
    , 1333 (9th Cir. 1997).
    Taylor argues that a two-level increase for obstruction of
    justice is unwarranted under section 3C1.1, because his
    statements at the bond revocation hearing were not related to
    the “instant offenses of conviction” for defrauding the VA, or
    any relevant conduct with respect to those offenses. In
    Taylor’s view, his testimony concerning the alleged domestic
    violence incident had no potential to impede the investigation
    or disposition of the underlying federal offenses because his
    custodial status was not related to the substance of his federal
    charges.
    We are unpersuaded by Taylor’s arguments, because his
    restrictive reading of section 3C1.1 is contrary to our case law
    interpreting section 3C1.1 and the accompanying application
    UNITED STATES V. TAYLOR                        7
    notes. First, the phrase “prosecution of . . . the instant offense
    of conviction” in section 3C1.1 is not limited to the
    adjudication on the merits of the underlying criminal charges;
    it also encompasses certain proceedings and procedures
    collateral to that adjudication. As the district court
    recognized, whether a defendant warrants pretrial detention
    is an integral part of any federal prosecution. A judicial
    officer must make an initial determination of whether the
    accused shall be released before trial, 18 U.S.C. § 3142(a), or
    if detention is required because “no condition or combination
    of conditions will reasonably assure the appearance of the
    person as required and the safety of any other person and the
    community,” 
    id. § 3142(e)(1).
    In making this determination,
    a judicial officer is guided by the work of pretrial services
    officers, who must obtain “information pertaining to the
    pretrial release of each individual charged with an offense.”
    
    Id. § 3154(1).
    We have therefore held that lying to pretrial
    services officers, conduct that can potentially impede this
    inquiry, may warrant the obstruction enhancement under
    section 3C1.1. See United States v. Magana-Guerrero, 
    80 F.3d 398
    , 400–01 (9th Cir. 1996); United States v. Benitez, 
    34 F.3d 1489
    , 1497 (9th Cir. 1994) (upholding obstruction
    enhancement for providing false information to a pretrial
    services officer because it “impeded the investigation and
    prosecution” of the underlying offense).
    It follows that a bond revocation hearing is also part of
    the prosecution of a federal offense, as Taylor’s case
    demonstrates. At the bond revocation hearing, the magistrate
    judge had to determine whether Taylor should be detained
    pending his federal trial based on the alleged domestic
    violence crime, taking into account the same factors that
    undergird an initial detention determination. See 18 U.S.C.
    § 3148(b). Taylor’s false statements to the magistrate judge,
    8                UNITED STATES V. TAYLOR
    who had to take evidence and make credibility findings in
    making her determination, were an attempt to influence the
    outcome of the revocation hearing and thus obstruct “the
    administration of justice with respect to the . . . prosecution
    . . . of the instant offense[s] of conviction.” U.S.S.G.
    § 3C1.1. The application notes to section 3C1.1 confirm that
    Taylor’s conduct qualifies as obstruction, because he
    “provid[ed] materially false information to a . . . magistrate
    judge.” U.S.S.G. § 3C1.1 cmt. n.4(F).
    Second, contrary to Taylor’s argument, his false
    statements were also “related to . . . [his] offense[s] of
    conviction.” U.S.S.G. § 3C1.1. There is no requirement
    under section 3C1.1 “that the obstructive conduct relate
    substantively to the offense of which the defendant is
    convicted,” so long as the conduct relates to the investigation,
    prosecution or sentencing of the underlying federal offense.
    United States v. Hernandez-Ramirez, 
    254 F.3d 841
    , 844 (9th
    Cir. 2001) (emphasis added); see also United States v. Verdin,
    
    243 F.3d 1174
    , 1180 (9th Cir. 2001) (rejecting the argument
    that “false statements about [the defendant’s] identity” cannot
    support an obstruction enhancement when the statements lack
    a substantive relationship to the offense of conviction);
    United States v. O’Dell, 
    204 F.3d 829
    , 837 (8th Cir. 2000)
    (noting that the Eighth Circuit has “repeatedly upheld an
    enhancement under section 3C1.1 where the perjurious
    testimony did not go to the underlying charge”); United
    States v. Crousore, 
    1 F.3d 382
    , 385 (6th Cir. 1993) (“[T]he
    test is not whether the false statement was about the actual
    crime charged, but whether it was made during the
    investigation, prosecution, or sentencing of the ‘instant
    offense.’”). Following this principle, we have upheld an
    obstruction enhancement when a defendant made false
    statements on a financial affidavit to obtain court-appointed
    UNITED STATES V. TAYLOR                             9
    counsel, see 
    Hernandez-Ramirez, 254 F.3d at 843
    –44, and
    when a defendant provided false information, unrelated to the
    offense of conviction, to a probation or pretrial services
    officer, see 
    Verdin, 243 F.3d at 1179
    –80; 
    Magana-Guerrero, 80 F.3d at 400
    –01; 
    Benitez, 34 F.3d at 1497
    . Under the
    proper standard, Taylor’s false testimony during his bond
    revocation hearing was related to the prosecution of his
    offenses of conviction, supporting an obstruction
    enhancement.2
    Accordingly, we hold that a defendant who willfully
    provides materially false testimony to a judge during a bond
    revocation hearing may be subject to a sentence enhancement
    under section 3C1.1. See 
    O’Dell, 204 F.3d at 836
    –37
    (upholding a section 3C1.1 enhancement for a defendant who
    lied to the magistrate judge during a bond revocation
    hearing); see also United States v. Butters, 513 F. App’x 103,
    105 (2d Cir. 2013) (“[F]alsely obtaining bail has the potential
    to impede the investigation or prosecution of a case . . . .”)
    (internal quotation marks and citation omitted); United States
    v. Davidson, 417 F. App’x 347, 349–50 (4th Cir. 2011) (per
    curiam) (upholding enhancement for obstruction based on the
    defendant’s intentional, false testimony during a bond
    revocation hearing).
    2
    The Second Circuit’s decision in United States v. Khimchiachvili, 
    372 F.3d 75
    (2d Cir. 2004), vacated on other grounds sub nom. Berwick v.
    United States, 
    544 U.S. 917
    (2005), has no application here.
    Khimchiachvili parted ways with this court’s decision in Hernandez-
    Ramirez, the Second Circuit holding that making false statements in a
    financial affidavit to obtain court-appointed counsel did not trigger an
    obstruction enhancement. 
    Id. at 82–83.
    Even if Khimchiachvili has any
    bearing on the issue for decision here, which we doubt, we are bound by
    the contrary decision of our court.
    10               UNITED STATES V. TAYLOR
    Even accepting our interpretation of the sentencing
    guidelines, Taylor maintains that an enhancement for
    obstruction is not appropriate because he did not provide
    “materially” false testimony to the magistrate judge, as
    required by application note 4(F). Taylor’s testimony was
    material as that term is defined in the commentary to section
    3C1.1, however, because Taylor provided “information that,
    if believed, would tend to influence or affect the issue under
    determination.” U.S.S.G. § 3C1.1 cmt. n.6. The “issue under
    determination” was not whether Taylor committed the
    charged fraud and conspiracy offenses, but whether his bond
    should have been revoked. See 
    Hernandez-Ramirez, 254 F.3d at 844
    (holding that false information in the defendant’s
    financial affidavit was material because this information
    would tend to affect “whether the magistrate judge found him
    qualified for appointed counsel”); 
    Magana-Guerrero, 80 F.3d at 400
    (holding that a lie to a pretrial officer was material
    because if “believed, it could have influenced matters such as
    his entitlement to bail or his sentence”). Indeed, the Eighth
    Circuit upheld the enhancement on facts essentially identical
    to those here, rejecting the defendant’s argument that his
    perjurious testimony in his bond revocation hearing was not
    material. See 
    O’Dell, 204 F.3d at 837
    (holding that “the
    ‘issue under determination’ was whether [the defendant]’s
    pretrial release should be revoked”). Because Taylor’s
    testimony, if believed, could have affected his custodial status
    pending trial, his statements were material under section
    3C1.1.
    Finally, Taylor argues that absent an explicit finding of
    perjury by the magistrate judge, there was no way for the
    district court to determine whether Taylor had the required
    mens rea for the obstruction enhancement – that he
    “willfully” provided false testimony on a material matter.
    UNITED STATES V. TAYLOR                       11
    U.S.S.G. § 3C1.1. We disagree. As long as the district court
    made sufficient findings that the defendant acted willfully, a
    specific finding of “perjury” was not required to support the
    obstruction enhancement for providing false testimony to the
    magistrate judge. See 
    id. § 3C1.1
    & cmt. n.4(F). Whether
    Taylor’s testimony is viewed as committing perjury, see 
    id. § 3C1.1
    cmt. n.4(B), or providing false information to a
    judge, see 
    id. § 3C1.1
    cmt. n.4(F), the elements of an
    obstruction enhancement here are the same. A defendant
    commits perjury for purposes of section 3C1.1 if, while under
    oath, he “gives false testimony concerning a material matter
    with the willful intent to provide false testimony, rather than
    as a result of confusion, mistake, or faulty memory.” United
    States v. Dunnigan, 
    507 U.S. 87
    , 94 (1993) (citing 18 U.S.C.
    § 1621(1)). Similarly, an obstruction enhancement for
    “providing materially false information to a judicial officer
    . . . includes a requirement of willful intent to deceive the fact
    finder.” 
    O’Dell, 204 F.3d at 836
    (quoting United States v.
    Molina, 
    172 F.3d 1048
    , 1058 (8th Cir. 1999)) (internal
    quotation marks omitted).
    Under either formulation, “the term ‘willfully’ requires
    that the defendant ‘consciously act with the purpose of
    obstructing justice.’” United States v. Lofton, 
    905 F.2d 1315
    ,
    1316–17 (9th Cir. 1990) (quoting United States v. Stroud, 
    893 F.2d 504
    , 507 (2d Cir. 1990)). Because “inaccurate
    testimony or statements sometimes may result from
    confusion, mistake, or faulty memory[,] . . . not all inaccurate
    testimony or statements necessarily reflect a willful attempt
    to obstruct justice.” U.S.S.G. § 3C1.1 cmt. n.2. Therefore,
    when a defendant objects to a sentence enhancement for
    obstruction of justice on this basis, “a district court must
    review the evidence and make independent findings
    necessary to establish a willful impediment to or obstruction
    12               UNITED STATES V. TAYLOR
    of justice, or an attempt to do the same.” 
    Dunnigan, 507 U.S. at 95
    .
    The district court made sufficient findings here. Although
    the magistrate judge did not explicitly find that Taylor lied
    under oath, it is clear from the record that she did not believe
    Taylor’s testimony, as she concluded that his version of the
    incident was contrary to the testimony of the independent
    witness and the police officers, whom she credited. The
    district court noted that it had listened to a recording of the
    hearing and found that Taylor had, “clearly and
    unambiguously and under oath,” told “a story” that was
    “simply not true, based on the totality of the evidence” in “an
    effort to persuade the magistrate that [he] should not be taken
    back into custody.” The district court also found that
    Taylor’s false statements did not “demonstrate confusion.”
    These are sufficient findings to support an obstruction
    enhancement, and, “[g]iven the numerous witnesses who
    contradicted [Taylor] regarding so many facts on which [he]
    could not have been mistaken,” not clearly erroneous.
    
    Dunnigan, 507 U.S. at 95
    –96; see also 
    Hernandez-Ramirez, 254 F.3d at 843
    ; 
    Magana-Guerrero, 80 F.3d at 400
    (upholding a finding of willfulness based on an inference
    from the conflicting testimony of the probation officer and
    the defendant).
    III
    For the foregoing reasons, we hold that a defendant who
    willfully provides materially false testimony at a bond
    revocation hearing may be subject to an enhancement for
    UNITED STATES V. TAYLOR               13
    obstruction of justice under section 3C1.1. We therefore
    affirm Taylor’s sentence.
    AFFIRMED.