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U.S. v. MARTIN

May 4, 1990

UNITED STATES OF AMERICA
v.
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 Sentencing Guidelines.

BACKGROUND

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 sentencing.

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 responsibility.

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.

DISCUSSION

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
    involved in?

A. Yes.

Q. And what was his answer?

  A. He said that was the only bank he had ever
    robbed.
  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. ...

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