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October 7, 1998


The opinion of the court was delivered by: SCHEINDLIN



 On June 26, 1998, following a two-week jury trial, Defendant Francis X. Livoti was convicted of violating the civil rights of Anthony Baez, in violation of 18 U.S.C. § 242. In anticipation of his upcoming sentence, a Presentence Report ("PSR") has been prepared. The defendant has objected to various portions of the PSR. The defendant has also submitted a motion for a downward departure. The Government, in turn, has submitted a Sentencing Memorandum, defending the PSR and moving for an upward departure. The defendant has submitted a response to the Government's Sentencing Memorandum.

 There are three major disputes, all of which involve issues of law. The first dispute is over the appropriate base offense level required by United States Sentencing Guidelines ("U.S.S.G.") § 2H1.1(a)(1). The second concerns the applicability of the specific offense characteristic found at U.S.S.G. § 2H1.1(b). Finally, the parties disagree as to whether an enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, is warranted.

 Because all of these disputes raise complicated issues of fact and law, I believe it is necessary to decide them in a written opinion so that the parties have a full and reasoned explanation of my decisions. In order to understand the discussion of the legal issues it is necessary to briefly summarize two portions of the testimony: (1) the description of the actual confrontation between the defendant and the victim; and (2) the medical testimony regarding the cause of death.

 I. Factual Background

 A. Overview

 At trial, four members of the Baez family testified that they saw Livoti restrain Anthony Baez in a choke hold on the morning of December 22, 1994. Trial Transcript ("Tr.") at 93-96, 102-04, 105, 223-25, 327-28, 412-13. According to the testimony of family members and police officers, Anthony Baez was then lowered to the ground, where he remained motionless until he was carried by four police officers to a patrol car and taken to Union Hospital. Tr. at 111-14, 116-19, 230-32, 234, 334-35, 338-39, 414-16, 472-74, 478, 480, 915-17, 1290-95, 1320-22, 1326-29. After arriving at the hospital, Anthony Baez's father told Dr. Kim Jaggers, an emergency room physician, that his son had been choked. Tr. at 418, 482-83, 526. Dr. Charles Hirsch, the Chief Medical Examiner of the City of New York, testified that the cause of Anthony Baez's death was asphyxiation due to neck and chest compression, Tr. at 637, and that, in his opinion, the neck compression was caused by a choke hold which lasted for at least one minute. Tr. at 627-28, 640-42.

 B. Detailed Account of the Confrontation Revealing Lack of Provocation

 The following account of the incident summarizes the credible evidence with respect to the events of December 22, 1994. *fn1" Henry Bothwell, one of the Baez brothers, testified that he, Anthony Baez, David Baez and Ramon Baez, Jr. were playing football outside their home when a police car pulled up and parked in the street. See Testimony of Henry Bothwell ("Bothwell Tr.") at 184. Between five and ten minutes later, another police car arrived. See id. at 186. This car came straight up to Ramon and David's location and almost hit David, causing him to "jump back." See id. at 187-88; Testimony of David Baez ("D. Baez Tr.") at 306. David walked toward the passenger side of the car and asked the driver, Francis Livoti, why he was trying to hit them. See Bothwell Tr. at 244; D. Baez Tr. at 307. This car then backed away and double-parked next to the other police car. See Bothwell Tr. at 188.

 Some time later, Anthony threw the football toward Henry, but it went over his head and hit the trunk of one of the police cars. See id. at 190. A few minutes later, the ball hit the police cars again. See id. at 192.

 After the football hit the police car, Livoti came out of the second car and started yelling and cursing at the Baez brothers to "get the hell out of here." See id. at 192-94; D. Baez Tr. at 311-12. He appeared angry and said "I want you the fuck out of here, I want you to go to your fucking home, I want you to go to a fucking park." See Bothwell Tr. at 193; D. Baez Tr. at 312-13. Either Anthony or Henry told Livoti that "this is where we live." See Bothwell Tr. at 193. According to Henry, nobody touched Livoti, nobody made any threatening gestures toward him and none of the brothers had any weapons. See id. at 194-95.

 After this incident, the four brothers backed away and huddled, deciding whether or not to continue with the game. See id. at 195. They decided to keep playing, but agreed that they would play the game in only one direction, rotating sides after each touchdown, so that they would not throw the ball in the direction of the police cars. See id. at 195-96.

 Shortly thereafter, Anthony threw the ball to Henry. See id. at 208. Livoti came out of the car. See id. He appeared angry and he came toward them, swearing. See id. at 208-09; D. Baez Tr. at 313-14. He said "didn't I tell you fucking guys to get out of the area? I want you to go the fuck home." See id. at 209. He went up to Raymond, saying "who's the ringleader, who's going to fight me now." See id. at 209; D. Baez Tr. at 314.

 Raymond started backing away from Livoti, raising his hands in the air with his palms facing Livoti. See Bothwell Tr. at 210. Henry and Anthony were in front of Livoti, and they stood where they were. See id. David walked around them, sat on the front bumper of Ramon Baez Jr.'s jeep, which was parked on the street, and said he was going to sit on the jeep and was not going home. See id. at 211; D. Baez Tr. at 314. As soon as David sat down, Livoti went over to him and said that he was going to spend his Christmas in Rikers. See Bothwell Tr. at 212; D. Baez Tr. at 314. He then turned him around, faced him down on the hood of the jeep and handcuffed him. See Bothwell Tr. at 212; D. Baez Tr. at 315-316. David did not resist or struggle with Livoti as he was being cuffed. See Bothwell Tr. at 214; D. Baez Tr. at 316. Livoti then took David over to the police car, pulling on his cuffs. See Bothwell Tr. at 213; D. Baez Tr. at 316-19.

 At this point, Henry and Anthony started walking toward the police car, with Raymond behind them. See Bothwell Tr. at 215. By the time they got to the jeep, Livoti was walking back toward them. See id. Livoti approached Anthony, the most vocal in protesting David's arrest, who was saying, "I know my rights, I know what you are doing is wrong, I'm a security officer in Orlando." See id. at 215-16; D. Baez Tr. at 319-22. Livoti told Anthony to "shut the hell up or [you're] going to go in too." See Bothwell Tr. at 216. Livoti then pushed Anthony to the back of the jeep. See id. According to Henry, Anthony did not push Livoti or move his hands toward him in any way. See id.

 Livoti then attempted to put Anthony's hands behind his back. See id. at 218-20. Anthony held his hands to his chest, with his elbows pulled in against his body, and Henry saw Livoti grab his by the arm and try to pull it towards his back. See id. Anthony resisted having his arms pulled back, struggling not to get cuffed. See id. at 220, 247, 288. Another officer then joined Livoti.

 Henry pleaded with the officers to let Anthony go, telling them that his brother had asthma. See id. at 221-22. Henry reached toward Anthony and tried to grab him, but the other officer turned around and faced Henry. See id. Henry backed away, and he saw Anthony leaning forward. See id.

 Henry then saw Livoti go and grab Anthony around the neck and pull him back up. See id. at 222-23, 260-61. Livoti's back was toward the jeep, his right arm, including the crook of the arm, was around Anthony's neck and the other arm was on his back. See id. ; D. Baez Tr. at 324, 381-82, 377; Testimony of Raymond Baez, Sr. ("R. Baez Tr.") at 413. Livoti had one leg underneath Anthony, and to David, it appeared that Livoti was trying to flip him down to the ground. See D. Baez Tr. at 324-25.

 While Livoti had his arm around Anthony's neck, Henry started backing up toward the house, calling for his father. See Bothwell Tr. at 224-25. He turned around toward the house and was tackled by one of the officers and handcuffed. See id. at 225-27. David had exited from the police car and was running toward the house, past where Anthony and Livoti were standing. See D. Baez Tr. at 327-29. A police officer jumped on David's back and threw him to the ground. See id. at 332. Another officer put a gun to his head. See Bothwell Tr. at 228; D. Baez Tr. at 332.

 The officer who tackled Henry picked him up and put him in the first police car. See Bothwell Tr. at 229. As they were walking to the car, Henry looked toward the back of the jeep and saw Anthony laying motionless on the ground with his eyes closed. See id. at 229-231; D. Baez Tr. at 334-35. Livoti was on top of him, with his knee on Anthony's back, handcuffing him, and two or three other officers were standing around. See Bothwell Tr. at 230; D. Baez Tr. at 335-38; R. Baez Tr. at 414-15.

 By the time Anthony arrived at the hospital at 2:05 a.m., he had no blood pressure, no pulse rate, and no respiratory rate. See Tr. at 503 (testimony of emergency room physician Dr. Kim Jaggers).

 C. The Cause of Death

 The Government called Dr. Charles Hirsch, New York City's Chief Medical Examiner, to testify regarding the cause of death. Dr. Hirsch based his conclusion on autopsy findings, including an examination of the autopsy reports, photographs and microscopic examination of certain tissue samples, as well as eyewitness descriptions of the events. Based on this evidence Dr. Hirsch concluded that Baez died due to asphyxiation, which means lack of air. Tr. at 628; 637.

 When asked his opinion as to the cause of death, Dr. Hirsch responded:

It is my opinion that the primary cause of death of Mr. Anthony Baez was asphyxia, due to compression of his neck and chest. It is also my opinion that acute and chronic asthma were contributory, lesser factors in his death.

 Id. at 637. He further testified that "Mr. Baez's injuries resulted from a choke hold." Id. at 640.

There was a compressive squeezing force exerted on his neck from side to side. The most reasonable explanation for this is a form of choke hold in which the assailant's elbow, the bend of the elbow is in the front of the neck, and the bicep and forearm close in a vice-like manner to squeeze and compress the neck from side to side.

 Id. at 640-41. Dr. Hirsch described this type of choke hold as a "carotid sleeper choke hold" designed to "compress the carotid arteries which provide the main source of blood to the brain." Id. at 641.

 It is at this point that the evidence becomes somewhat confusing. Dr. Hirsch concludes that while the physical evidence, such as internal bruising of the muscles, reveals that a carotid sleeper choke hold was applied, it was not successful because the carotid arteries were not compressed. Id. at 642. Dr. Hirsch knew this because blood continued to be pumped into Baez's face. Id. However, because the veins in Baez's neck were compressed by the choke hold, the ...

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