United States v. Rinick

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-13-2007
USA v. Rinick
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3776
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3776
UNITED STATES OF AMERICA
v.
WILLIAM RINICK,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 02-cr-00492-1)
District Judge: Honorable Eduardo C. Robreno
Submitted Under Third Circuit LAR 34.1(a)
January 16, 2007
Before: McKEE, AMBRO, and STAPLETON, Circuit Judges
(Opinion filed: March 13, 2007)
OPINION
AMBRO, Circuit Judge
A jury convicted the appellant, William Rinick, on one count of conspiracy to
distribute cocaine, 21 U.S.C. § 846, six counts of cocaine distribution, 21 U.S.C.
§ 841(a)(1), and one count of possession of cocaine with intent to distribute within 1,000
feet of a school, 21 U.S.C. § 860. He challenges the reasonableness of his 360-month
sentence based solely on the District Court’s alleged error in calculating the applicable
advisory Guidelines range. Specifically, Rinick contends that the Court erred when it
increased his base offense level by two points as a result of its finding that he had
obstructed justice. See U.S.S.G. § 3C1.1.1
We review criminal sentences for reasonableness by examining the factors in 18
U.S.C. § 3553(a). United States v. Booker, 543 U.S. 220, 258–65 (2005); United States v.
Cooper, 437 F.3d 324, 329–32 (3d Cir. 2006). An indispensable part of arriving at a
reasonable sentence is a correct calculation of the advisory Guidelines range. Cooper,
437 U.S. at 330. We review a District Court’s interpretation of the Guidelines de novo
and its factual findings for clear error. United States v. De La Cruz, 460 F.3d 466, 468
(3d Cir. 2006). Because we write only for the parties, we mention only those facts
relevant to deciding this appeal.
Rinick argues that the District Court’s findings do not support the application of
the Guidelines’ obstruction-of-justice enhancement for two reasons: (1) his conduct was
not sufficiently “obstructive”; and (2) he did not possess the requisite mental
state—namely, he did not know of any pending investigation or judicial proceeding at the
time he engaged in the allegedly obstructive behavior. We disagree with both of these
contentions.
1
The District Court had jurisdiction over this matter under 18 U.S.C. § 3231, and we
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).
2
In its extensive sentencing memorandum, the District Court made the following
findings, which are not clearly erroneous:
The court observed the demeanor of witnesses Sam Pollino, Michael
Focoso and Patricia Bongiorno on the stand, and finds them, under the
circumstances, to be credible. The court generally finds that an
enhancement is warranted based on the following evidence:
i. Sam Pollino testified at trial that Rinick, having heard an answering
machine message in which Pollino was identified as a “rat,” placed a
gun to Pollino’s head and stated, “[Y]ou wouldn’t even know it.”
This account was corroborated through the testimony of Focoso, who
stated that Rinick informed him that he had threatened Pollino with a
gun.
ii. Pollino also testified that, on another occasion, Rinick informed him
that “this is the room where we’re going to whack you,” a comment
that Pollino interpreted to mean that he could be killed for
cooperating [with the police]. Focoso also testified that it was his
understanding that Rinick meant to hurt or kill Pollino if Pollino was,
in fact[,] cooperating.
iii. Patricia Bongiorno testified at trial as to Rinick’s attempts to
intimidate her into divulging information concerning the
whereabouts of Sam Pollino. In particular, Mrs. Bongiorno testified
that Rinick, looking for Pollino, entered her home, sat uninvited at
her dining room table and demanded information as to Pollino’s
whereabouts, offered her $2000 in exchange for information, offered
her husband $1000 a week to be a “driver” for Rinick, that she and
her family were intimidated by Rinick and his behavior and
attempted to pacify him without giving any information as to
Pollino’s whereabouts.
iv. Pollino testified that Rinick patted him down on one occasion in an
attempt to determine whether he was wearing a recording device.
v. Focoso testified at trial as to Rinick’s attempts to influence him
against cooperating by referring to people who had been murdered.
As to Rinick’s first argument, we have no trouble concluding that this
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behavior—searching out and threatening to kill cooperating witnesses—rises to the level
of obstructive conduct. See U.S.S.G. § 3C1.1, cmt. (listing examples of obstructive
conduct). As the Government’s brief highlights, behavior less egregious than this has
been held sufficient to warrant the Guidelines’ obstruction-of-justice enhancement. See
Br. of Appellee at 23–24 (citing United States v. Drapeau, 121 F.3d 344 (8th Cir. 1997);
United States v. Pippeni, 115 F.3d 422 (7th Cir. 1997); United States v. Campbell, 985
F.2d 341 (7th Cir. 1993); United States v. Grady, 997 F.2d 421 (8th Cir. 1993); United
States v. Rivera, 971 F.2d 876 (2d Cir. 1992); United States v. Davila, 964 F.2d 778 (8th
Cir. 1992); United States v. Hershberger, 956 F.2d 954 (10th Cir. 1992)).
Rinick’s stronger argument is his second. He claims that, in order for the § 3C1.1
enhancement to apply, he must have subjectively known of a pending investigation into
his criminal conduct—knowledge he says that he did not have. Section 3C1.1 of the
Guidelines provides that
[i]f (A) the defendant willfully obstructed or impeded . . . the administration
of justice with respect to the investigation, prosecution, or sentencing of the
instant offense of conviction, and (B) the obstructive conduct related to (i)
the defendant’s offense of conviction and any relevant conduct . . . ,
increase the offense level by 2 levels.
The common understanding of the term “willfully” in the obstruction-of-justice context
includes a specific intent to interfere with a criminal proceeding—a mens rea necessarily
involving knowledge of the criminal proceedings obstructed. See 18 U.S.C. § 1503;
SARAH N. WELLING ET AL., FEDERAL CRIMINAL LAW AND RELATED ACTIONS 166–68,
§ 19.3.C (1998) (citing United States v. Aguilar, 515 U.S. 593 (1995); Pettibone v. United
4
States, 148 U.S. 197 (1895)); MODEL PENAL CODE Pt. I, art. 2, § 2.02(2)(a) & Pt. II, art.
242, § 242.1. The Government contends, however, that our decision in United States v.
Jenkins rejected this common understanding of the requisite mens rea. See 275 F.3d 283,
286–89 (3d Cir. 2001). And indeed, Jenkins noted that “awareness is not a prerequisite
for imposing the obstruction-of-justice” Guidelines enhancement. Id. at 288. But while
superficially supporting the Government, our statement, upon closer analysis, may not be
as conclusive as the Government would have it.
When making our ruling in Jenkins, we cited the Seventh Circuit Court of Appeals
in United States v. Snyder, 189 F.3d 640, 648 (7th Cir. 1999), for the proposition that the
Guidelines’ obstruction-of-justice enhancement did not require specific intent to impede
an investigation. Snyder, however, stemmed from an earlier case in that Circuit, United
States v. Polland, 994 F.2d 1262 (7th Cir. 1993).2 The specific issue in Polland was
whether the enhancement could apply if a defendant’s obstructive conduct primarily
affected an investigation of another person—even if there was no investigation of the
defendant at the time. The Seventh Circuit answered “yes,” saying that willfulness can be
present, as long as that investigation, known to the defendant, is somehow relevant to his
own offense of conviction, i.e., if the investigation of the other person could produce
2
Snyder contained no legal analysis of the mens rea required for a § 3C1.1 Guidelines
enhancement. It merely cited United States v. Schmidt, 47 F.3d 188 (7th Cir. 1995),
which likewise contained no analysis. Moreover it provided no factual context and
mentioned the mens rea requirement of § 3C1.1 in dictum in a footnote. Id. at 192 n.3.
Schmidt, however, did cite Polland. See id.
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evidence relevant to the defendant’s prosecution. Id. at 1269. It was undisputed that the
defendant in Polland fit this bill; he subjectively knew of a related investigation into
another person when he willfully obstructed it. Id. at 1265 (indicating that the defendant
knew of the other person’s arrest in their mutual drug conspiracy). Polland, therefore,
does not support the notion that the § 3C1.1 Guidelines enhancement requires no
knowledge of some investigation or pending proceeding.
The facts in our Jenkins case, which the Government cites, were similar to those in
Polland. Jenkins involved two investigations of the same defendant—one state and one
federal. Jenkins impeded the state proceedings against him, prompting the federal court
to enhance the sentence on his federal crime. Though we eventually held the state
proceeding not sufficiently related to the federal proceeding to justify the Guidelines’
enhancement, we first held it irrelevant that the defendant did not know about his federal
proceeding. Jenkins, 275 F.3d at 286–89.3 This was the context of our statement that
“awareness is not a prerequisite for imposing the obstruction-of-justice” Guidelines
enhancement. Id. at 288.
We might conclude, then, that the facts of Jenkins—like those in Polland—do not
support the full implications of its sweeping language and that our holding there did not
erase the requirement that, in order “willfully” to obstruct justice (thereby warranting the
Guidelines enhancement), a person must subjectively know of some proceeding, even if
3
Judge Becker did not join that part of the panel’s decision. See Jenkins, 275 F.3d at289 n.7.
6
not the particular proceeding under review. However, Jenkins did not cite Polland, but
rather Snyder. See id. And reading Jenkins that way would be in tension with our
express approval of Snyder, where the defendant had no knowledge of the only
proceeding of which to be aware (his own federal prosecution). Moreover, Jenkins
specifically disagreed with cases from several Courts of Appeals that have held the
obstruction-of-justice enhancement to be applicable only “where misconduct occurs with
knowledge of an investigation, or at least with a correct belief that an investigation is
probably underway.” See id. (citing United States v. Oppedahl, 998 F.2d 584, 586 (8th
Cir. 1993); United States v. Brown, 237 F.3d 625, 626–28 (6th Cir. 2001); United States
v. Lister, 53 F.3d 66, 69–71 (5th Cir. 1995)). Yet we still did not recognize in Jenkins the
significant point that the defendant in that case, in fact, knew of a related
proceeding—unlike in Oppedahl and similar cases, where there was no such proceeding
(and thus nothing to know).
We need not determine the breadth of Jenkins’s holding today, however, because
we conclude that the District Court found that Rinick did know about the investigation his
conduct sought to obstruct. The District Court adopted the Pre-Sentence Investigation
Report, which contained a recitation of Rinick’s relevant conduct. Significantly, the
report states that after Rinick received a message warning him that Pollino was a “rat,” he
“threatened to kill . . . Pollino, believing that he was working with the law enforcement”
(emphasis added). Moreover, the report makes clear that Rinick’s threatening behavior
toward Pollino’s neighbors (during which he sought the whereabouts of Pollino) occurred
7
after authorities executed search warrants on Rinick’s properties. These findings are not
clearly erroneous and establish that Rinick correctly believed (or, in fact, knew) that he
was under investigation at the time of his obstructive conduct. That is obstruction of
justice by any definition.
* * * * *
For the reasons stated above, we rule that the District Court did not err in applying
the two-level Guidelines enhancement for obstruction of justice. As a result, we affirm
Rinick’s 360-month sentence.
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