
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2093                                    UNITED STATES,                                      Appellee,                                          v.             JERMAINE THOMAS, A/K/A JEROME SCOTT, A/K/A JT, A/K/A CRAZY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Deborah L. Potter and Law Office  of William Maselli on  brief for            _________________     ______________________________        appellant.            Jay  P. McCloskey,  United States  Attorney, George  T.  Dilworth,            _________________                            ____________________        Assistant  United States  Attorney,  and  Helene Kazanjian,  Assistant                                                  ________________        United States Attorney, on brief for appellee.                                 ____________________                                    June 25, 1996                                 ____________________                 Per Curiam.  Appellant-defendant Jermaine Thomas appeals                 __________            from  his sentence on the sole ground that the district court            erred in enhancing his  base offense level by two  levels for            obstruction of  justice. See U.S.S.G.  3C1.1.   "The question                                     ___            whether  the  scope  of     3C1.1  encompasses  [defendant's]            conduct  is subject  to de  novo review."   United  States v.                                    __  ____            ______________            Moreno,  947  F.2d   7,  10  (1st  Cir.  1991).    Fact-bound            ______            determinations, however, are reviewed for clear error. United                                                                   ______            States  v. St.  Cyr, 977  F.2d 698,  705-06 (1st  Cir. 1992).            ______     ________            "The facts constituting obstruction of justice for sentencing            purposes need only  be established by a preponderance  of the            evidence." United  States v.  Mafanya, 24  F.3d 412,  414 (2d                       ______________     _______            Cir. 1994).                 The  district court  found that  there was  a "shift  in            prosecution  resources  and attention  from federal  adult to            state  juvenile"  and back  again  as  a  result  of  Thomas'            misstatements  at the time of  his arrest.   That finding was            supported by the record  which included a financial affidavit            filed  in federal  court on  the date  of Thomas'  arrest and            documentation of  Thomas' presence in juvenile  court several            days later.   The district  court did not  err in  concluding            that  the  shift  in  prosecution   resources  and  attention            constituted a "significant hindrance" within the meaning of              3C1.1, comment.  (n.4(a)).                                          -2-                                         -2-                 That Thomas  eventually was  indicted by the  same grand            jury  as his codefendants, does  not preclude a  finding of a            significant hindrance.   Prosecution resources  were diverted            as a result  of Thomas' false  statements at the time  of his            arrest,  requiring  the  prosecution  of  Thomas  to  proceed            differently  than if the false statements  had not been made.            See United States v. McCoy, 36 F.3d 740, 742 (8th Cir.  1994)            ___ _____________    _____            (affirming  two-level enhancement for  obstruction of justice            where  "additional  effort"  was  expended  as  a  result  of            defendant's use of an alias at the time of a prior arrest).                   The  cases that Thomas  relies upon are  inapposite.  In            United  States v.  Manning, 955  F.2d 770,  774-75 (1st  Cir.            ______________     _______            1992), we held  that defendant's  use of an  alias and  false            birthdate  at the  time of  his arrest  did not  constitute a            "significant  hindrance"  where  it  was "unclear  [from  the            record]  that  the  investigation  would  have proceeded  any            differently or any faster had Manning [told the truth] at the            time of his  arrest."  In this case,  by contrast, the record            reveals that the federal prosecution of  Thomas was halted as            a  result of his misstatements to the arresting officers, and            recommenced  only  after  his  true  identity  and  age  were            discovered.   See also United States  v. Bell, 953 F.2d  6, 9                          ________ _____________     ____            (1st Cir. 1992) ("there  was no showing or even  assertion by            the  government [that  the  investigation or  prosecution had            been impeded]").                                         -3-                                         -3-                 Thomas argues that the enhancement does not apply to his            case  because he did  not "willfully" obstruct  or impede the            administration  of justice.  See U.S.S.G.   3C.1.  He alleges                                         ___            that his intent in lying about his name and age  was to avoid            being  placed  in  an  adult prison,  not  to  avoid  federal            prosecution.   Thomas'  conduct  appears to  fall within  the            plain  language  of one  of  the listed  examples  of conduct            meriting the enhancement  because he did,  and did knowingly,            provide "a  materially false  statement to a  law enforcement            officer that significantly obstructed or impeded the official            investigation or  prosecution of the instant  offense."  Id.,                                                                     ___            comment. (n.3(g)).  On the other hand, there is case law that            the  defendant  must  have  a  specific  intent  to  obstruct                                           ________________            justice,  "i.e., . . . . the defendant consciously acted with                       ____            the purpose of obstructing justice."  United States  v. Reed,                                                  _____________     ____            49  F.3d 895, 900 (2d Cir. 1995).   See also United States v.                                                ________ _____________            Gonzalez, 12 F.3d 298, 299-300 (1st Cir. 1993).            ________                 We need  not decide in  this case whether  this specific            intent  requirement should  be superimposed  on  the explicit            examples  given  in  the guideline  commentary,  because  the            enhancement is valid even  on such a premise.   The guideline            itself  imposes  the enhancement  for willful  obstruction or            attempted  obstruction  of  "the  administration  of justice"            during  the complete  proceeding  from investigation  through            ______            sentencing.      It   covers   not   only   obstructions   of                                         -4-                                         -4-            "investigations," "prosecutions" or  "sentencing" but of  the            entire  "administration  of  justice"  in  relation   to  the            defendant's case so long as the obstruction occurs during the            period specified.                 Thus, the  defendant's use  of a  false identity  in the            hope  of being released on bail is an obstruction of justice,            see Mafanya, 24  F.3d at 415, because the  grant or denial of            ___ _______            bail is part of the process.  A determination as to whether a            defendant  should  be  held in  an  adult  facility  or in  a            juvenile  detention seems to us  scarcely less a  part of the            administration  of   justice   and  involves   policies   and            consequences that are far from trivial.  Since on Thomas' own            version of events  he did  have a specific  intent to  affect            this choice by lies as to his  age, we think that he had  the            requisite specific intent  to obstruct the administration  of            justice, even assuming that something beyond  conduct falling            within the commentary is required.                 Affirmed.  See Local R. 27.1.                 ________   ___                                         -5-                                         -5-
