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.
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?
Q. Did there come a time that you advised Mr.
Martin of his constitutional rights?
Q. And subsequent to that did you have a
conversation with him?
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?
Q. Who initiated that conversation?
Q. To the best of your recollection, can you tell
his Honor what Mr. ...