U.S. v. Otto, 95-1104

• Decision Date: 06 October 1995
• Docket Number: No. 95-1104,95-1104
• Citation: 64 F.3d 367
• Parties: UNITED STATES of America, Appellee, v. Laurence Robert OTTO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 367

64 F.3d 367

UNITED STATES of America, Appellee, v. Laurence Robert OTTO, Appellant.

No. 95-1104.

United States Court of Appeals Eighth Circuit.

Submitted June 15, 1995.

Decided Aug. 23, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 6, 1995.

Virginia G. Villa, Asst. Federal Public Defender, Minneapolis, MN, argued, for appellant.

Michael W. Ward, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.

Before BEAM, Circuit Judge, ROSS, Senior Circuit Judge, and MURPHY, Circuit Judge.

BEAM, Circuit Judge.

Laurence Robert Otto was convicted of possessing an unregistered sawed-off rifle in violation of 26 U.S.C. Sec. 5861(d). The district court ¹ imposed a sentence of seventy-two months. Otto appeals both his conviction and his sentence. We affirm.

I. BACKGROUND

In March 1994, Otto was indicted by a federal grand jury on two weapons charges and ten counts of mailing a threatening communication. The charges accused Otto of being the "man in black" who had stalked and harassed Marilyn O'Leary and Clinton Bloom by firing bullets into their unoccupied vehicles, sending threatening letters, and sending O'Leary a bra with a red target sticker affixed. Prior to these incidents, Otto and O'Leary had dated for a time. The harassment allegedly began after O'Leary ended her relationship with Otto and began dating Bloom.

All twelve counts of the indictment were tried to a jury, but Otto was convicted of only one count: possessing an unregistered sawed-off rifle in violation of 26 U.S.C. Sec. 5861(d). The district court sentenced Otto to a prison term of seventy-two months. The sentence incorporated a two-level enhancement for obstruction of justice and a six-level upward departure.

II. DISCUSSION

On appeal, Otto contends he is entitled to a new trial because the jury was not properly instructed on the elements of a violation of 26 U.S.C. Sec. 5861(d). In the alternative, Otto seeks resentencing on the grounds that the enhancement and the upward departure were not warranted.

A. Jury Instruction

The National Firearms Act (the Act) makes it unlawful to possess a "firearm," as that term is statutorily defined, unless it is registered. 26 U.S.C. Sec. 5861(d). There is no dispute that the sawed-off rifle found in Otto's possession was an unregistered "firearm." ² However, Otto contends that the district court erred in refusing his requested jury instruction on the mens rea required to establish a violation of section 5861(d). We review a challenge to a jury instruction for abuse of discretion and will affirm if the entire charge fairly and adequately contains the law applicable to the case. United States v. Lynch, 58 F.3d 389, 391 (8th Cir.1995).

Otto proposed an instruction requiring the jury to find that "the defendant knew that the weapon he possessed was a firearm of a type that required it to be registered to him in the National Firearms Registration and Transfer Records." The district court refused this instruction. Instead, the court instructed the jury that a required element of the offense was that Otto "knew that the firearm had been modified to reduce its barrel length or its overall length...."

The Supreme Court addressed the mens rea required to establish a violation of the Act in Staples v. United States, --- U.S. ----, ----, 114 S.Ct. 1793, 1804, 128 L.Ed.2d 608 (1994). Under Staples, the Government must prove that the defendant knew of the features of the weapon that brought it within the scope of the Act. Id. at ----, 114 S.Ct. at 1804. In this case, the court's instruction, as previously noted, required the jury to find that Otto knew the weapon had been modified to reduce its barrel length or overall length. Since the shortened barrel and overall length were the features of the weapon which made it a "firearm," see supra note 2, the instruction fairly and adequately set forth the mens rea requirement. ³ Otto is not entitled to a new trial.

B. Obstruction of Justice Enhancement

The Sentencing Guidelines provide for an increase in offense level if the defendant "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense...." U.S.S.G. Sec. 3C1.1. Here, the district court imposed an obstruction of justice enhancement based on Otto's conduct during the investigation of the "man in black" incidents. Otto tried to conceal his role by claiming to be a victim. He claimed that he had received threatening letters himself and showed one of these letters to a police officer. ⁴ Otto also asked police to investigate target stickers which, with the assistance of a friend, he had placed on his own vehicle. We review the district court's factual findings for clear error, but review de novo its determination that an obstruction of justice enhancement applies. United States v. McCoy, 36 F.3d 740, 742 (8th Cir.1994).

To the extent Otto's conduct involved false statements made to law enforcement officers, the enhancement applies only if the statements "significantly obstructed or impeded" the investigation. See U.S.S.G. Sec. 3C1.1, comment. (n. 3(g) & n. 4(b)). Otto argues that the enhancement does not apply because his conduct had no real effect on the investigation or prosecution of the case. This argument fails.

The district court found that Otto's statements to the law enforcement officers significantly obstructed or impeded the investigation. ⁵ This factual finding is not clearly erroneous. Even if the false statements are disregarded, the remaining conduct clearly supports an enhancement. By creating false evidence (the letter and target stickers), Otto attempted to obstruct or impede the investigation. See U.S.S.G. Sec. 3C1.1, comment. (n. 3(c)). As to this conduct, we need not consider whether the attempt had any actual effect on the investigation. See United States v. St. James, 38 F.3d 987, 988 (8th Cir.1994).

Otto also argues that the enhancement was improper because none of his obstructive acts were directly related to the "instant offense"--possession of an unregistered firearm. We disagree. Otto's involvement in the "man in black" incidents was relevant to determining an appropriate sentence for the "instant offense." Otto sought to conceal evidence relevant to determining whether it was necessary to depart upward from the normal Guideline sentence for the unregistered firearm conviction. Under the law of this circuit, this is a sufficient relationship to support the enhancement. See United States v. Lamere, 980 F.2d 506, 515 (8th Cir.1992). The district court properly enhanced Otto's sentence for obstruction of justice.

C. Upward Departure

The district court imposed a six-level upward departure on the grounds that Otto's harassment of O'Leary and Bloom was extreme conduct, see U.S.S.G. Sec. 5K2.8, that inflicted extreme psychological injury, see U.S.S.G. Sec. 5K2.3. Without relying on acquitted conduct, the court found that Otto had stalked and terrorized O'Leary, Bloom, and O'Leary's children over an eighteen-month period. The court characterized Otto's conduct as an insistent and persistent series of acts that destroyed O'Leary's privacy and personal security.

We apply a three-step analysis in reviewing an upward departure. United States v. Nomeland, 7 F.3d 744, 747 (8th Cir.1993). We consider:

1) whether, as a question of law, the circumstances the district court relied on for departure are sufficiently unusual in kind or degree to warrant departure; 2) whether, as a question of fact, the circumstances justifying departure actually exist; and 3) whether the sentence is reasonable.

Id. As to the first question, we agree with the district court that the circumstances were sufficiently unusual in kind to warrant departure. The nature of Otto's conduct and the trauma it inflicted upon O'Leary and her children are not taken into account in the Guideline sentence for possessing an unregistered firearm. Otto argues that the circumstances do not warrant departure because his stalking conduct is not "relevant conduct." This argument ignores the fact that a sentencing court may consider other than relevant...