United States v. James Nduribe

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1975
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES U. N DURIBE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 682-2—Samuel Der-Yeghiayan, Judge.
A RGUED D ECEMBER 12, 2012—D ECIDED JANUARY 4, 2013
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The defendant (whose actual
name is Shefu Adebanji Alade Amisu, but we’ll refer to
him by the name he uses in the United States and under
which he was prosecuted) pleaded guilty to a heroin
offense and was sentenced to 116 months in prison. The
sentence was within the guidelines range (108 to 135
months), but only because the judge added two levels
for obstruction of justice to the defendant’s base offense
2 No. 12-1975
level. Without that addition his guidelines range
would have been 87 to 108 months, and the judge said
that had that been the applicable range he would have
imposed only a 94-month sentence.
In September 2006 the defendant, a Nigerian living
in Chicago, learned that police were at the home of a
co-conspirator. He called his own home and heard
strange voices. He called his drug supplier to warn
him that the police were closing in on the drug ring
and then (using a cellphone that he had bought after
learning the police were closing in) called relatives in
Nigeria and told them to send to him (under an alias) in
New York both a Nigerian passport and a plane ticket
from New York to Nigeria. They complied. He picked
up the documents in New York (to which he had
traveled by a circuitous route, via Little Rock, Arkansas),
flew to Nigeria, later flew from there to Amsterdam,
and after living there for several years under an alias
was arrested and after a year of fighting arrest and extra-
dition (by claiming that he was not Nduribe) was extra-
dited by the Dutch government to the United States.
He had evaded arrest for five years. Indicted in absentia,
upon returning to the United States he pleaded guilty
to his drug offense. He argues that his conduct in
evading arrest was not obstruction of justice, but
merely flight.
Oddly, there is no general federal crime of obstruction
of justice. Chapter 73 of the criminal code, 18 U.S.C.
§§ 1501-21, punishes a number of discrete forms of ob-
struction, none applicable to this case. But section 3C1.1(1)
No. 12-1975 3
of the sentencing guidelines adds two offense levels to
the defendant’s base offense level if “the defendant will-
fully 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.” This certainly describes the be-
havior of the defendant in this case. He delayed his
apprehension by five years and during that period put
the government to the expense of searching for him on
three continents before finally obtaining his arrest and
extradition, which undoubtedly involved our govern-
ment’s active participation in the extradition proceeding,
as in United States v. Kashamu, 656 F.3d 679, 681 (7th Cir.
2011). The delay may have made it more difficult for
the government to prosecute him and his confederates
and may have induced the government to make conces-
sions in plea bargaining that it would not have made
had it not been for the lag in time between the crime
and the defendant’s involuntary return to face justice.
Granted, these are conjectures; but we do not think proof
that a five-year wild goose chase is a burden to law en-
forcement is necessary; the point is obvious.
So if the obstruction guideline had stopped with the
passage we quoted, the case would be open and shut. But
the Sentencing Commission decided to elaborate the
guideline in a series of application notes, some of embar-
rassing obviousness, such as note 2, which says that
the assertion of a constitutional right is not obstruction
of justice. Note 4 is a nonexclusive list of acts of obstruc-
tion; again most of the listed items are obvious, such as
threatening a witness, suborning perjury, destroying
4 No. 12-1975
evidence, and escaping from custody. But note 5 lists
“some types of conduct [that] ordinarily do not warrant
application of this adjustment” (that is, the increase in
the base offense level), and among these are “(A) providing
a false name or identification document at arrest, except
where such conduct actually resulted in a significant
hindrance to the investigation or prosecution of the
instant offense” and “(D) avoiding or fleeing from ar-
rest” (provided the flight does not cause “reckless endan-
germent”).
These exceptions, particularly (D), puzzle us. If pro-
viding a false name or identification document at arrest
merits the two-level increase when “such conduct
actually resulted in a significant hindrance to the inves-
tigation or prosecution of the instant offense,” why
should avoiding or fleeing from arrest not merit the
increase when significant hindrance to the investiga-
tion or prosecution of the offense results? Five years of
avoiding arrest through use of alibis and travel to
foreign countries are bound to create a significant hin-
drance to a prosecution. If not—if for example essential
evidence of guilt serendipitously emerges in that pe-
riod—the burden of establishing the exception should
be the defendant’s.
Nduribe argues that he had no duty to surrender to the
police when he learned they were after him. The gov-
ernment concedes as much. But he did a lot more than
just not drive to the nearest police station and give
himself up. There’s a difference between not making it
easier for the police to arrest you and making it much
harder for them to do so.
No. 12-1975 5
Maybe application note (D) should be read as limited
to leaving the scene of an arrest or an attempt at arrest,
as distinguished from protracted flight. And, if not,
what would nevertheless still save the day for the gov-
ernment in a case like the present one would be the
hedge word “ordinarily”—the note says that the types
of conduct listed that include avoiding or fleeing arrest
“ordinarily do not warrant” enhancement of the sen-
tence. Maybe the Sentencing Commission when it
used the word “ordinarily” was thinking of the kind of
case we confronted in United States v. Draves, 103 F.3d
1328, 1336-37 (7th Cir. 1997). Draves was arrested for
credit card fraud and the arresting officers placed him
in their police car while they arrested an accomplice
nearby. While they were attending to the accomplice,
Draves, though handcuffed, managed to jump out of
the car (the police must have failed to lock the doors
from the outside) and flee on foot. The officers pursued
him and caught him “a mere three houses away from
the scene of arrest.” Id. at 1337; see also United States v.
Hagan, 913 F.2d 1278, 1284-85 (7th Cir. 1990); United
States v. Burton, 933 F.2d 916, 918 (11th Cir. 1991);
United States v. Stroud, 893 F.2d 504, 507-08 (2d Cir.
1990); United States v. Garcia, 909 F.2d 389, 392 (9th Cir.
1990). A handcuffed nonviolent criminal, Draves not only
failed to get far but cannot have put up any effective
resistance when the officers caught up with him after
the brief chase. Notice too that it was a case within
our suggested narrow reading of application note (D),
as Draves ran from the arrest scene; unlike Nduribe he
did not flee the vicinity of the arrest and end up
thousands of miles away living under a different name.
6 No. 12-1975
So the ruling in Draves was correct, but not for the
reason given in the opinion—that “panicked, instinctive
flight,” illustrated by Draves’s futile dash for freedom,
must be distinguished from “calculated evasion” of
apprehension. 103 F.3d at 1337. “Panic” and “instinct” are
not mitigating motivations for criminal behavior.
Much crime is not “calculated.” A criminal might panic
and kill an informant; a kleptomaniac might steal
instinctually. It was not Draves’s state of mind that
averted a finding of obstruction of justice but the fact
that his pathetic effort at flight did not impede the ad-
ministration of justice. He delayed law enforcement not
by years, as our defendant did, but by seconds. De minimis
non curat lex.
In a subsequent case, much like this one, we found
obstruction of justice when the defendant “knew he
would be charged with a crime; yet he fled the jurisdic-
tion, living in Mexico for several years and later
returning to the United States, relocating to distant Penn-
sylvania under an assumed name.” United States v. Arceo,
535 F.3d 679, 687 (7th Cir. 2008). For all we know Arceo
had fled in panic. Yet that was no defense. And there is
no suggestion of panicky or instinctive behavior in
this case; the defendant acted deliberately. And Nigeria
and the Netherlands are a lot farther from Chicago than
are Mexico and Pennsylvania. See also United States v.
Schwanke, 694 F.3d 894, 897 (7th Cir. 2012); United States
v. King, 506 F.3d 532, 535 (7th Cir. 2007); United States v.
Porter, 145 F.3d 897, 902-04 (7th Cir. 1998); United States v.
Feldman, 647 F.3d 450, 464-65 (2d Cir. 2011); United States
No. 12-1975 7
v. Martinez, 263 F.3d 436, 441 (5th Cir. 2001); United States
v. Billingsley, 160 F.3d 502, 506-07 (8th Cir. 1998).
Several cases, while factually distinguishable from
our cases, set a higher bar for the obstruction enhance-
ment. United States v. Bliss, 430 F.3d 640 (2d Cir. 2005), is
illustrative; see also United States v. Stites, 56 F.3d 1020,
1026 (9th Cir. 1995); United States v. Alpert, 28 F.3d 1104,
1106-07 (11th Cir. 1994) (en banc); United States v. Madera-
Gallegos, 945 F.2d 264, 268 (9th Cir. 1991). Bliss, a Vermont
resident, upon learning that police had executed a search
warrant of his bedroom (where he kept videotapes of his
sexually abusing his nine-year-old niece) and wanted to
speak to him, fled to California, where he used aliases, and
also gained weight and grew facial hair to alter his ap-
pearance. He was able to evade arrest for a year. The
Second Circuit—strangely as it seems to us—said that
Bliss’s actions “amount to little more than ‘simply
disappear[ing] to avoid arrest’ ” and thus “fall short
of what we believe the Sentencing Commission contem-
plated in prescribing the enhancement for obstruction
of justice.” 430 F.3d at 648. Disappearing to avoid ar-
rest? What better example of obstructing justice could
one want?
The opinion faults the FBI for having placed Bliss on
its “Ten Most Wanted List,” which the court said
resulted in the government’s spending “the bulk of its
resources . . . pursuing false leads provided by ‘America’s
Most Wanted’ viewers—not following Bliss on a wild
goose chase of his own making.” Id. at 650. Second-guess-
ing the government’s enforcement strategy (while
8 No. 12-1975
denying that it was doing that), the court reasoned that
had the government been smart, Bliss wouldn’t have
gotten away with his “disappearance” and so would not
have succeeded in obstructing justice. The court must
have forgotten the phrase “or attempted to obstruct or
impede” (emphasis added) in the guideline. See, e.g.,
United States v. Porter, supra, 145 F.3d at 904. The attempt
is culpable even if the police are clever and foil it. If
they’re not clever and so fail to foil it, that’s no reason
to exculpate their quarry for having succeeded in ob-
structing justice.
Flight from arrest is obstruction of justice within
the meaning of the guideline (even if read narrowly,
but with due weight given to the qualification in “ordi-
narily”) if it is likely to burden a criminal investigation
or prosecution significantly—likely to make the investi-
gation or prosecution significantly more costly or less
effective than it would otherwise have been, a criterion
easily satisfied in this case. (A defendant’s conduct is
attempted obstruction if, had it succeeded, it would
have had those consequences.) Twenty-two additional
months of imprisonment were not an excessive penalty
for the defendant’s five years of pertinacious, deceitful,
unexcused evasion of justice.
We add that warning a co-conspirator in a drug crime,
as Nduribe did, that the police are closing in might well
be thought an implied instruction to destroy the drugs
in order to eliminate a potent form of evidence in a
drug prosecution. (The supplier whom the defendant
called with the warning kept drugs in his home and
No. 12-1975 9
could have flushed them down the toilet.) That would
be an independent act of obstruction of justice, either
attempted or completed, depending on whether the
supplier heeded the warning and destroyed the drugs.
A FFIRMED.
1-4-13