United States District Court, Southern District of New York
May 4, 1990
UNITED STATES OF AMERICA
GREG C. MARTIN, DEFENDANT.
The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
This Opinion resolves the present dispute under the
Familiarity with the general history of this litigation is
assumed, but a brief history of the dispute is useful here.
In an indictment filed on November 28, 1988, defendant
Martin was charged with six counts of bank robbery and five
counts of armed bank robbery, arising out of six separate
robberies.*fn1 Martin entered a plea of guilty to three
counts of armed bank
robbery (Counts two, four and six), on the understanding that
the remaining counts would be dismissed at the time of
The current dispute centers on two discrete but related
issues arising under the Sentencing Guidelines. The
pre-sentence report prepared by the Probation Department
included a two point increase in the offense level pursuant to
§ 3C1.1 on account of obstruction of justice. Because the
guidelines as they existed at the time the pre-sentence report
was prepared provided that a defendant who received a two
point enhancement for obstruction of justice should not
receive a two point deduction for acceptance of
responsibility,*fn2 a deduction which Martin might otherwise
receive as a result of his guilty plea, the probation officer
did not afford Martin such a deduction. Martin takes issue
with both the two point enhancement for obstruction of justice
and the lack of the two point deduction for acceptance of
For the reasons stated in this Court's Opinion of September
26, 1989, 1989 WL115967, familiarity with which is assumed, I
adopted the calculations of the Probation Department. By
letter dated October 10, 1989, defendant moved for
reconsideration of that Opinion, in consequence of which an
evidentiary hearing was held on March 2, 1990.*fn3 The
parties have submitted additional letter briefs and the matter
is now ripe for decision.
I. Obstruction of Justice
The pre-sentence report sets forth three general reasons for
the two point enhancement.*fn4 While I remain of the view
that specific incidents which do not amount to obstruction of
justice when viewed individually can constitute obstruction
when viewed in their entirety, I agree with defendant that the
pattern of conduct at issue "must be materially mendacious and
cannot be accorded the status of obstructive simply because a
course of conduct is arguably identifiable." Letter of Charles
A. Ross dated April 2, 1990 at 6 ("Ross Letter"). Thus, the
question becomes the materiality of each allegedly obstructive
incident, viewed in the context of the guidelines, and the
overall nature of the course of defendant's conduct viewed
against that same background.
A. Statements to Law Enforcement Officials
After being arrested on October 27, 1988 for the robbery he
committed on that date, Martin spoke with Special Agent Paul
Harvey of the Federal Bureau of Investigation's joint bank
robbery task force. Martin made certain false statements in
that interview. The issue arises whether these untruths
constitute obstruction of justice.
Harvey testified that after advising Martin of his
constitutional rights, he had a conversation with Martin
concerning Martin's involvement in robberies other than the
one for which he had just been arrested.
Q. I direct your attention to October 27, 1988.
Did you arrest Mr. Martin on that day?
A. Yes, I did.
Q. Did there come a time that you advised Mr.
Martin of his constitutional rights?
A. I did.
Q. And subsequent to that did you have a
conversation with him?
A. I did.
Q. At that time did Mr. Martin say anything about
the bank robbery of October 27, 1988?
A. He did. He admitted robbing it and gave us
details as to the robbery.
Q. At that time had you asked him whether there
were any other bank robberies that he was
Q. And what was his answer?
A. He said that was the only bank he had ever
Q. Agent Harvey, was there a conversation about
cooperation with Mr. Martin?
A. There was.
Q. Who initiated that conversation?
A. Mr. Martin did.
Q. To the best of your recollection, can you tell
his Honor what Mr. Martin said about that?
A. He said that he was not a career criminal,
that this was the only serious offense he had
ever committed, and he wanted to cooperate with
Q. The only serious offense that he was referring
to was the bank robbery at that time?
Q. On October 27, 1988, is that correct?
A. That's correct.
Transcript of Evidentiary Hearing of March 2, 1990 at 4-5
Harvey further testified that on October 28, 1988 he had
another conversation with Martin wherein Martin confessed to
a second robbery upon being confronted with a surveillance
photograph taken at the scene of that robbery.
Q. Now, on October 28, 1988 did you have a
subsequent conversation with Mr. Martin?
A. I did.
Q. And what was that conversation about?
A. That conversation related to another bank
Q. And who initiated that conversation?
A. The conversation was initiated by Martin.
Q. And did he indicate what he wanted to do in
A. Again, he told us he wanted to cooperate with
Q. At that time was there any discussion about
any other bank robberies?
Q. And what if anything did Mr. Martin say?
A. He admitted robbing a second bank, also in the
Bronx, a Chemical Bank on Castle Hill Avenue on
Q. Was there anything that you said or did which
preceded his admitting that bank robbery?
A. Yes. I showed him a surveillance photograph
taken during the course of that robbery.
Q. So prior to your showing him the surveillance
photo he indicated he only did one bank
A. Right, that's correct.
Tr. at 6-7. Agent Harris could not recall having a
conversation with Martin about the October 21 Chemical Bank
robbery prior to showing Martin the surveillance photograph.
Tr. at 7. After being shown the surveillance photograph,
Harris asked Martin if he had robbed any banks other than the
two that he had then confessed to. Martin responded that he
had not. Id.
Harvey next showed Martin another surveillance photograph of
a then unidentified male, which had been taken at the robbery
of an Anchor Savings Bank on October 18, 1988 and asked if
Martin could identify the man in the photograph. Harvey
testified as follows.
Q. Did you have any additional conversation[s]
with Greg Martin about any other bank
A. I showed him another photograph.
Q. And what photograph was that?
A. That was a photograph taken during a robbery
of an Anchor Bank at 117 East Fordham Road in
Q. Was that the bank robbery on October 18, 1988?
A. That's correct.
Q. And what was your purpose in showing him that
A. I wanted to find out whether he knew the
person in that photograph.
Q. And did he say he did?
A. He said he did, yes. He said not by name, but
he knew himto be a henchman, quote, henchman of
a man who he said — a man named Victor
who he said had forced him to rob that bank.
Q. Did you specifically ask him whether he knew
the name ofthat individual in the photograph?
A. I did.
Q. And what was his response?
A. He said he didn't know him by name.
Q. He did not know him by name?
A. He did not.
Tr. at 8-9. Law enforcement later came to learn that Martin
did in fact know the man in the surveillance photograph who
was identified as Luis Galarza, Martin's brother-in-law.*fn5
Tr. at 10. Special Agent Winslow testified that had Martin
responded truthfully concerning Galarza's identity, law
enforcement would have been able to arrest Galarza and in so
doing would have prevented four additional bank robberies. Tr.
Also on October 27, 1988, Harvey took what is commonly known
as a "pedigree," or a description of Martin's background. Tr.
at 12. Martin gave false information in respect of his date
and place of birth, social security number, and education. Tr.
On November 22, 1988, a meeting was held at the United
States Attorney's Office with AUSA Stuart GraBois; Martin;
Martin's attorney, Jack Lipson; and Agent Winslow. Martin's
attorney requested the meeting. At the November meeting Martin
expressed an interest in "cooperating" with the government.
Agent Winslow testified as below.
Q. To the best of your recollection, do you
recall the discussion in November that was had
with Mr. Martin, Mr.Lipson, the Assistant U.S.
Attorney and yourself at theU.S. Attorney's
office relative to Mr. Martin'scooperation?
Q. Can you tell that to his Honor?
A. Yes. Mr. Martin said he wanted to cooperate,
get this behind him. He said that he was only
involved in two bank robberies, the two that he
confessed to to Special Agent Harvey, that he
was forced to do those bank robberies by a drug
dealer named Victor. Mr. Martin said that he
owed alarge sum of money to Victor and Victor
was pressuring him to rob banks for him.
Q. Did you specifically ask him at that first
meeting whether he committed any other bank
Q. And did he answer you directly?
A. He said no.
Tr. at 41. After Martin stated that he had only been involved
in the two bank robberies which he had already admitted to, he
was shown a fingerprint analysis report and the results of a
photo spread identification arising out of the investigation
of the October 6, 1988 robbery of an Anchor Savings Bank
branch in the Bronx. This physical evidence implicated Martin
in the October 6 robbery. After being confronted with this
physical evidence, Martin admitted to this third bank robbery.
Tr. at 42. He further admitted preparing various bank robbery
demand notes for other robberies, but stated that he was not
involved in any more than the three bank robberies.
The government argues that each of these issues viewed
individually justifies the two point enhancement for
obstruction of justice pursuant to § 3C1.1, and that these
events viewed together, with or without
the various other untruths Martin told to pre-trial services
and the probation department, further supports the two point
The touchstone of the analysis is the sentencing guidelines
themselves. Section 3C1.1 provides as follows:
If the defendant willfully impeded or obstructed,
or attempted to impede or obstruct the
administration of justice during the
investigation or prosecution of the instant
offense, increase the offense level by 2 levels.
The guidelines commentary speaks in terms of "a defendant who
engages in conduct calculated to mislead or deceive
authorities," Commentary to § 3C1.1, and "[n]othing in the
plain language of the guideline indicates any congressional
intent to limit its application to conduct occurring after the
initiation of proceedings." United States v. Irabor,
894 F.2d 554, 556 (2d Cir. 1990). Thus, while an indictment
was not filed in the captioned case until November 28, 1988,
after all of the conversations with law enforcement which the
government contends amount to obstruction of justice, these
pre-indictment events may constitute obstruction under the
In respect of the conversations on October 27 and 28, 1988
and November 22, 1988, the testimony as it developed at the
evidentiary hearing reveals that Martin was not cooperating
with authorities at this point in time.*fn6 Therefore,
Martin's denial of any other robbery besides that with which
he was confronted at the time of each meeting cannot be
construed as anything beyond a denial of guilt. Such a denial
is not grounds for application of the obstruction of justice
provision. Application Note 2 to § 3C1.1 ("This provision
is not intended to punish a defendant for the exercise of a
constitutional right. A defendant's denial of guilt is not a
basis for application of this provision."). Had Martin entered
into an agreement to cooperate with authorities, then his lies
to investigating officers with regard to his participation in
various robberies would clearly amount to more than "simple
`denial of guilt'", United States v. Martin, slip op.
at 7, and would thus constitute obstruction of justice.
I take a different view of Martin's lie concerning the
identification of the individual pictured in a surveillance
photograph taken at the robbery of an Anchor Savings Bank on
October 18, 1988. When asked if he could identify the person
in the photograph Martin said that he knew the man, but not by
name. Tr. at 8-9. As it turned out, the man in the photograph
was Martin's brother-in-law, with whom Martin was very well
acquainted. While defendant is correct that "he had no
affirmative obligation to provide the F.B.I. with the identity
of the individual displayed in the photograph," once he
decided to answer questions concerning the individual's
identity, he had a responsibility to do so truthfully. The
application notes reflect that responsibility. Application
Note 1(a) to § 3C1.1 ("destroying or concealing material
evidence, or attempting to do so" is grounds for applying the
adjustment for obstruction of justice). Galarza's identity was
material evidence in respect of the investigation of the
robberies in which Martin had also participated and in denying
knowledge of Galarza's identity Martin was clearly attempting
to "conceal material evidence" from the authorities. The fact
that Martin's efforts to lead law enforcement astray were
unsuccessful*fn7 is irrelevant to the analysis. Irabor,
supra, at 556 ("[w]hether [defendant's] obstructive
conduct was ultimately successful is . . . irrelevant to the
applicability of the Guideline").
Defendant's attempt to mislead the authorities in respect of
Galarza's identity was an attempt to obstruct justice and as
such warrants a two point enhancement pursuant to § 3C1.1.
Martin's willful failure to give truthful information to Agent
Harvey concerning his "pedigree" information in respect of his
social security number further supports that conclusion.*fn8
B. Statements to Pre-trial Services
The Second Circuit has recently held that false statements
made in an interview with a pre-trial services officer can
support the two point enhancement for obstruction of justice.
Irabor, supra, at 555-56. In respect of Martin's
interview with Pre-trial Services Officer Sharon Regis, the
government contends that defendant gave false information
concerning his present address and telephone number. The
testimony as it developed at the hearing is unclear on this
point, however, and I do not view these alleged untruths as
grounds for application of the two point enhancement. While
Martin gave Regis three separate addresses and corresponding
telephone numbers as his present address, one of those
addresses was a hotel which he stated he had been staying at
for the past week while his house was being painted. This is
at least conceivable, and Regis herself conceded that there
would be no problem with a defendant having several current
addresses as long as those addresses were verifiable. Tr. at
31. However, Regis terminated the interview without exploring
the nature of Martin's association with the separate addresses
and did not attempt to verify any of them. Tr. at 32. In these
circumstances, I do not view the contents of the interview as
obstruction of justice.
C. Statements to Probation
In respect of Martin's falsehoods with regard to the
preparation of a pre-sentence report, the issue is the
materiality of the falsehoods. Application Note 1(e) to §
3C1.1 ("furnishing material falsehoods to a probation officer
in the course of a pre-sentence . . . investigation" supports
the application of the two points enhancement). Martin lied
about his educational and employment history, but such things
are not relevant to the determination of what sentence should
be imposed. See § 5H1.2 and 5H1.5. It is
therefore difficult to view these falsehoods as material and
I do not.
For the reasons stated above, application of the two point
enhancement for obstruction of justice pursuant to § 3C1.1
II. Acceptance of Responsibility
Guideline § 3E1.1(a) provides that "[i]f the defendant
clearly demonstrates a recognition and affirmative acceptance
of personal responsibility for his criminal conduct, reduce
the offense level by 2 levels." Defendant contends that he is
deserving of the two point deduction by virtue of his plea in
the instant case. However, "[a] defendant who enters a guilty
plea is not entitled to a sentencing reduction under this
section as a matter of right." § 3E1.1(c). Moreover, by
virtue of the two point enhancement for obstruction of
justice, defendant at bar must establish extraordinary
circumstances favoring a two point deduction for acceptance of
responsibility. Application Note 4 to 3E1.1. Defendant has
established no such extraordinary circumstances.
I remain of the view that defendant's involvement in a
narcotics offense while he was awaiting sentence on this
charge in the MCC fails to demonstrate that sort of "voluntary
termination or withdrawal from criminal conduct or
associations," Application Note 1(a) to § 3E1.1,
contemplated by the Sentencing Guidelines. For that reason
alone I decline to award defendant the two point deduction. In
addition, while defendant's repeated failure to admit to more
than the particular robbery with which he
was immediately confronted cannot be said to amount to
obstruction of justice, it can similarly not be said to
constitute acceptance of responsibility. See
Application Note 1(c) to § 3E1.1 ("voluntary and truthful
admission to authorities of involvement in the offense and
related conduct" warrants two point deduction for acceptance
For the reasons stated, I adopt the calculations contained
in the pre-sentence report and will sentence defendant within
the guidelines range set forth in that report.
Defendant will be sentenced on May 15, 1990 at 4:30 p.m. in
The foregoing is SO ORDERED.