USA. v. Maccado, 99-3101

• Decision Date: 04 October 2000
• Docket Number: No. 99-3101,99-3101
• Citation: 225 F.3d 766
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. Nigel Judson Maccado, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 766

225 F.3d 766 (D.C. Cir. 2000)

United States of America, Appellee v. Nigel Judson Maccado, Appellant

No. 99-3101

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2000

Decided October 4, 2000

Appeal from the United States District Court for the District of Columbia(No. 98cr00162-01)

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the brief was A. J. Kramer, Federal Public Defender.

Luis Andrew Lopez, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr., and Alan Boyd, Assistant U.S. Attorneys.

Before: Williams, Sentelle and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Concurring opinion filed by Circuit Judge Williams.

Rogers, Circuit Judge:

Nigel Judson Maccado appeals his conviction on the ground that the district court misapplied United States Sentencing Guidelines ("U.S.S.G.") § 3C1.1 (1995) by enhancing his sentence by two levels for obstruction of justice in the absence of a substantial effect on the investigation or prosecution of his case. He contends that the enhancement is unwarranted for his failure timely to comply with the court's order to give a handwriting exemplar for essentially two reasons. First, the nineteen-day delay in the taking of his handwriting exemplar that resulted from his noncompliance did not delay or otherwise hinder the scheduled judicial proceedings, and second, his guilty plea cured any obstruction. We hold that § 3C1.1 applies in the absence of a substantial effect on an investigation or prosecution, and accord due deference to the district court's determination that Maccado's deliberate disobedience of the court order warranted an enhancement under § 3C1.1. Accordingly, we affirm.

I.

Maccado was indicted in 1998 for possession of false identification documents with intent to defraud the United States and for making false statements in a passport application. See 18 U.S.C. §§ 1028(a)(4), 1542. He ultimately pleaded guilty on August 17, 1998, to the false statements charge. According to the government's proffer at the time Maccado pleaded guilty, the charges stemmed from his submission on September 11, 1997, of a completed United States Passport Application (Form DSP-11) in the name of David Arnar Proctor, born December 17, 1957, in Washington, D.C. Maccado listed his social security number as 577-86-2072 and presented as proof of citizenship a District of Columbia certificate with a recorded date of birth, as well as an employee identification card from his own construction company. He signed the form in the presence of the clerk at the Friendship Heights Post Office, who accepted the application on behalf of the Department of State. Several months later, Special Agent Leonard Codispot of the United States Department of State Bureau of Diplomatic Security obtained an arrest photograph of Maccado from the Montgomery County, Maryland, police records that matched the photo attached to the passport application. Agent Codispot also determined from the United States Immigration and Naturalization Service that Maccado was born in India in 1949, and was not a United States citizen and not entitled to a United States passport.

At a status hearing on Thursday, June 18, 1998, in contemplation of trial, the district court granted the government's motion to compel Maccado to submit a handwriting exemplar that day to Agent Codispot, who was present in the courtroom. When asked by the court if he understood the court's order, Maccado replied, "Yes, your Honor." Nevertheless, Maccado did not give the exemplar to the agent that day and had no further personal contact with the agent until July 7, 1998, when Agent Codispot obtained the exemplar from Maccado in Maryland. At that time Maccado was in the Charles County Detention Center in LaPlata, Maryland.¹

At Maccado's sentencing hearing, Agent Codispot testified that after the June 18th status hearing, he accompanied Maccado and his wife to the first floor of the court house. Agent Codispot told Maccado to wait while he obtained a copy of the court order, and that the exemplar would be taken in a vacant room in the courthouse. When Agent Codispot returned minutes later, Maccado was gone; his wife explained that Maccado had left to move the car. After waiting for over an hour for Maccado to return, Agent Codispot returned to his office and found a message from Maccado that his car had overheated and he had left it at his wife's office, that he had gone to visit a cousin in the hospital, and that he would do the "court-ordered things" at another time. Agent Codispot twice attempted unsuccessfully to reach Maccado at the pager number that Maccado had left as part of his recorded message.

Maccado's wife recounted somewhat different events. She testified that after the status hearing Agent Codispot informed them the exemplar would be taken at an office in Virginia, and that Maccado left the courthouse to retrieve the car so they could follow the agent to Virginia. Upon returning to her office later that day, Mrs. Maccado found a message from her husband explaining that he had encountered car problems and another message from her cousin's wife stating that Maccado had been to the hospital to get water for the car. Upon returning home around 4:30 p.m., Mrs. Maccado found her husband at home. She telephoned a mechanic and dropped the car off that night, leaving a message for the mechanic about the problem. She also telephoned Agent Codispot, leaving a message about rescheduling the taking of the exemplars.

At sentencing, the district court found:

that there has been obstruction of justice; that the obstruction of justice occurred when, notwithstanding a court order to go with the FBI agent [sic] to give a handwriting exemplar, and it's clear from the transcript that I told the defendant that he had to go with that agent that day to provide a handwriting exemplar, not-withstanding that, he didn't, and he hasn't offered any plausible explanation or reason why he didn't. I mean, I think that if I were to credit his testimony that he had to take his car to get it fixed, it's not amitigating circumstance to offset the failure to comply with the court directive to have that handwriting exemplar provided that day, and his failure to do so rises to the level of an obstruction of justice.

After applying the two-level enhancement under U.S.S.G. § 3C1.1 and crediting Maccado for acceptance of responsibility, id. § 3E1.1, which resulted in a sentencing range of 12 to 18 months, the court sentenced Maccado to 18 months' incarceration and three years' supervised release.

II.

On appeal, Maccado contends that mere disobedience of a court order is insufficient to constitute obstruction of justice under U.S.S.G. § 3C1.1 where the ordered evidence is produced within a relatively brief time prior to any scheduled court hearing and, thus, does not substantially influence the investigation or prosecution. Combined with his guilty plea to one count, that he maintains effectively cured any prior obstructive conduct, Maccado contends that the district court's application of U.S.S.G. § 3C1.1 involved an erroneous interpretation of law that is subject to de novo review.

As to our standard of review, we agree with Maccado. Maccado does not challenge the district court's findings that his conduct was unjustified, or that he materially breached the district court's order. Nor does he claim that he had a necessity defense or that his actions were not willful. Consequently, the only issue presented on appeal is whether § 3C1.1 requires that a defendant's conduct have a substantial effect on the investigation or prosecution of his case, and if so, whether a guilty plea negates the obstruction of justice. These are questions of law that the court reviews de novo. See United States v. (Michael) Taylor, 997 F.2d 1551, 1560 (D.C. Cir. 1993). Upon determining whether there is a substantial effect requirement in § 3C1.1, the court must accord due deference to the district court's factual determination that the defendant's conduct is within the range of punishable actions. See In re Sealed Case, 199 F.3d 488, 491 (D.C. Cir. 1999); 18 U.S.C. § 3742(e); see also United States v. Drew, 200 F.3d 871, 880 (D.C. Cir. 2000).

The relevant version of § 3C1.1 of the Sentencing Guidelines instructs that:

[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instance offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1 (1995).² In the Application Notes to the Guidelines, which the court must treat as authoritative, see Stinson v. United States, 508 U.S. 36, 38 (1993), the Sentencing Commission has included two non-exhaustive lists of examples to illustrate some of the kinds of conduct that do and do not fall within § 3C1.1. See Application Notes 3 & 4.None of the examples is precisely on point. By way of caveat, Application Note 2 states that "[o]bstructive conduct can vary widely in nature, degree of planning, and seriousness . . . [and] is not subject to precise definition." Application Note 3 gives as examples of when the enhancement is properly imposed "committing, suborning, or attempting to suborn perjury; . . . escaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding; . . . [or] providing materially false information to a judge or magistrate."U.S.S.G. § 3C1.1, Application Note 3(b), (e), (f).³ On the other hand, examples of acts that do not qualify for punishment under § 3C1.1 include "providing incomplete or misleading information, not amounting to a material falsehood, in respect to a presentence...