                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

         v.
                                                           Criminal No. 13-227 (CKK)
 VERNON HAWKINS,

    Defendant.


                                 MEMORANDUM OPINION
                                     (May 9, 2016)

       On August 13, 2013, Defendant Vernon Hawkins pled guilty to one count of Making a

False Statement in violation of 18 U.S.C. § 1001. Presently before the Court are the [58] Final

Presentence Investigation Report filed by the United States Probation Office, the Government’s

[63] Memorandum in Aid of Sentencing, Defendant’s [65] Memorandum in Aid of Sentencing,

the Government’s [70] Reply Memorandum in Aid of Sentencing, and Defendant’s [72] Response

to the Government’s Memorandum in Aid of Sentencing, each of which addresses the issue of the

appropriate calculation under the United States Sentencing Guidelines (“U.S.S.G.”) that the Court

should consider in imposing its sentence. Given the legal issues raised in the parties’ briefing on

this issue, the Court is now rendering its decision in writing in advance of the sentencing hearing

in order to explain the legal basis for the Court’s decision regarding the application of the

guidelines to this action.

       For the reasons described herein, the Court has determined that Defendant’s base offense

level should be calculated pursuant to U.S.S.G. §§ 2B1.1(c)(3) & 2J1.2(a), and, therefore, is 14.

Moreover, the Court finds that the parties have presented factual disputes that must be resolved in

order to determine whether the Court should apply an upward adjustment for obstruction of justice
pursuant to U.S.S.G. § 3C1.1 and/or a downward adjustment for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1(a). As such, the Court shall reserve ruling on these factual disputes

until the sentencing hearing.

                                        BACKGROUND

        On August 13, 2013, Defendant pled guilty to a one-count Information, charging Defendant

with a Making a False Statement in violation of 18 U.S.C. § 1001. See Information, ECF No. [1].

As described in the Information, on or about December 2011, Defendant gave a person (“Person

One”) funds that Defendant received from another criminal defendant pending sentencing before

this Court, in order to persuade Person One to leave town for an extended period of time, so that

Person One would be unavailable to speak with federal agents in the FBI’s investigation into a Get

Out of the Vote (“GOTV”) effort funded by a particular executive in support of a 2010 mayoral

campaign. Id. However, on or about August 16, 2012, Defendant did knowingly and willfully

make materially false, fictitious, and fraudulent statements and representations to FBI special

agents by stating that: (1) “he did not know of anyone asked or told to go out of town who had

been involved with” the 2010 mayoral campaign or the GOTV initiative at issue; (2) “he never

requested for anyone to leave town so that they could not come to the U.S. Attorney’s Office or

speak with federal agents”; and (3) “he did not help or assist with sending anyone out of town so

that they would not be able to speak with federal agents in the FBI’s investigation” of the GOTV

effort. Id.

        Pursuant to the plea agreement, the parties specifically reserved the right to litigate at

sentencing which sentencing guideline 1 is applicable to Defendant’s conduct. Plea Agmt. at 3,



        1
       Pursuant to the parties’ plea agreement, the 2012 edition of the U.S. Sentencing
Commission’s Guidelines Manual is applicable in this action. As such, all references to the
                                           2
ECF No. [6]. During the plea hearing, the Court specifically set forth both the Government’s and

Defendant’s view as the applicable guideline(s) and the related base offense level that would apply

under each calculation. Tr. 53:9—56:6 (Aug. 13, 2013), ECF No. [20]. Defendant indicated on

the record that he had discussed with counsel the parties’ differing positions regarding the

application of the guidelines. Id. 54:11, 54:17, 56:6.

       As previously mentioned, both parties and the U.S. Probation Office now have provided

the Court with briefing more fully explaining their respective guideline calculations and the bases

for those calculations. The Court shall briefly set forth the differing positions as to the appropriate

guideline calculation in this case. The following chart highlights the areas of dispute between the

various calculations before the Court:

                           U.S. PROBATION              GOVERNMENT                  DEFENDANT
                                OFFICE
 Base offense level               14                            14                          6

                          (U.S.S.G. §§ 2B1.1(c)(3)   (U.S.S.G. §§ 2B1.1(c)(3)   (U.S.S.G. § 2B1.1(a)(2))
                          & 2J1.2)                   & 2J1.2)
 Adjustment for                       0                         +2                          0
 Obstruction of
 Justice                                             (U.S.S.G. § 3C1.1)
 Acceptance of                       -2                         0                          -2
 Responsibility
                          (U.S.S.G. § 3E1.1(a))                                 (U.S.S.G. § 3E1.1(a))
 TOTAL OFFENSE                       12                         16                          4
 LEVEL


As such, the Court must first resolve the applicable base offense level, and then must determine

whether to apply an upward adjustment for obstruction of justice and/or a downward adjustment

for acceptance of responsibility. The Court shall address each issue in turn.



U.S.S.G. throughout this Memorandum Opinion shall refer to the 2012 edition unless otherwise
noted.
                                          3
                                          DISCUSSION

       A. Base offense level

       The first issue before the Court is whether Defendant’s base offense level is properly

calculated pursuant to U.S.S.G. § 2B1.1(a)(2), as Defendant asserts, or whether the cross-reference

provision of U.S.S.G. § 2B1.1(c)(3) is applicable. The parties generally agree that U.S.S.G. §

2B1.1 (fraud guideline) is the starting point for the analysis of a violation of 18 U.S.C. § 1001.

Defendant argues that the Court should apply U.S.S.G. § 2B1.1(a)(2), which provides that the base

offense level for a defendant convicted of an offense of fraud and deceit is 6. However, the

Government and the U.S. Probation Office assert that the cross-reference provision of U.S.S.G. §

2B1.1(c)(3), is applicable in this instance. Pursuant to U.S.S.G. § 2B1.1(c)(3), if the defendant is

convicted under a statute proscribing false, fictitious, or fraudulent statements or representations

generally, such as 18 U.S.C. § 1001, and “the conduct set forth in the count of conviction

establishes an offense specifically covered by another guideline in Chapter Two (Offense

Conduct),” the Court should apply that other guideline. 2 Application Note 15 to U.S.S.G. § 2B1.1

explains:

       Subsection (c)(3) provides a cross reference to another guideline in Chapter Two
       (Offense Conduct) in cases in which the defendant is convicted of a general fraud
       statute, and the count of conviction establishes an offense involving fraudulent
       conduct that is more aptly covered by another guideline. Sometimes, offenses
       involving fraudulent statements are prosecuted under 18 U.S.C. § 1001, or a
       similarly general statute, although the offense involves fraudulent conduct that is
       also covered by a more specific statute.




       2
         The parties do not dispute that the third requirement to apply the cross-reference provision
has been met in this case, i.e. the offense did not involve a firearm, destructive device, explosive
material, or controlled substance, nor did it involve arson or property damage by use of explosives.
See U.S.S.G. § 2B1.1(c)(3).
                                                   4
U.S.S.G. § 2B1.1 application n.15 (2012). 3 Based on the cross-reference provision, the

Government and the U.S. Probation Office assert that Defendant’s conduct is more aptly covered

by U.S.S.G. § 2J1.2, the guideline for obstruction of justice. Pursuant to U.S.S.G. § 2J1.2(a), the

base offense level for an obstruction of justice offense is 14.

       The parties raise two issues central to their respective positions. First, the parties dispute

whether the Court may look only to the charging document, in this case the Information filed on

August 12, 2013, or whether the Court may consider other evidence in the record, including the

facts set forth in Statement of the Offense to which Defendant stipulated as part of his plea, in

order to determine whether Defendant’s conduct satisfies all the elements of an obstruction of

justice charge such that the cross-reference provision of U.S.S.G. § 2B1.1(c)(3) is applicable. 4

Second, the parties dispute whether Defendant’s conduct meets the statutory requirements of

various obstruction of justice offenses when applying either the more or less restrictive view of

what conduct the Court may consider. For the reasons described herein, the Court shall consider

conduct specifically related to the offense of conviction in the Statement of the Offense and in the

charging document to which Defendant pled guilty in order to determine whether the cross-

reference provision U.S.S.G. § 2B1.1(c)(3) is applicable. However, the Court finds that even if it

only looks to the conduct set out in the count of the Information to which Defendant pled,

Defendant’s conduct satisfies all the elements of an obstruction of justice offense pursuant to 18




       3
          In the current version of the guidelines, this language appears at U.S.S.G. § 2B1.1
application n.16 (2015).
       4
         In this instance, Defendant pled guilty to a one-count Information. As such, in its analysis,
the Court discusses the “charging document” or “Information” broadly without distinguishing the
“count of conviction” because Defendant pled to the entirety of the charging document. If there
had been other counts that were dismissed as part of the plea, the Court would only consider the
counts to which Defendant actually was convicted.
                                                   5
U.S.C. § 1512(b)(3). Moreover, considering Defendant’s conduct as stipulated to in the Statement

of the Offense, the Court finds that Defendant’s conduct also is sufficient to satisfy the elements

of offenses pursuant to 18 U.S.C. §§ 1503 and 1512(c)(2).

               1. The Court shall consider both the offense conduct in the Information and in the
                  Statement of the Offense.

       The Court first turns to the issue of whether it may only look to the conduct set out in the

Information, or whether it may consider other proven conduct related to the offense of conviction

when determining whether Defendant’s conduct establishes an offense specifically covered by the

obstruction of justice guideline (U.S.S.G. § 2J1.2). At issue is the language of the cross-reference

provision of U.S.S.G. § 2B1.1(c)(3) that provides, in relevant part, that it is applicable when “the

conduct set forth in the count of conviction establishes an offense specifically covered by another

guideline in Chapter Two (Offense Conduct) . . . .” U.S.S.G. § 2B1.1(c)(3) (emphasis added).

Defendant argues that the language of the provision limits the Court’s inquiry into the conduct set

forth in the charging document. Def.’s Mem. in Aid of Sent’g at 4-7. The Government argues

that the language merely limits the Court’s inquiry to any offense conduct, as opposed to any

relevant conduct, whether it be in the charging document or in other evidence before the Court as

long as it is related to the offense of conviction. Govt.’s Mem. in Aid of Sent’g at 25-28. For the

reasons described herein, the Court agrees with the Government that it may consider both the

offense conduct in the Information and in the Statement of the Offense in this matter.

                       a. Plain meaning and history of U.S.S.G. 2B1.1(c)(3) support considering
                          offense conduct beyond that in the charging document.

       The cross-reference provision of U.S.S.G. 2B1.1(c)(3) became effective on November 1,

2001, pursuant to Amendment 617 to the guidelines. Prior to Amendment 617, the application

note to the fraud guideline provided: “Where the indictment or information setting forth the count

                                                 6
of conviction (or a stipulation as described in § 1B1.2(a)) establishes an offense more aptly

covered by another guideline, apply that guideline rather than [the fraud guideline].” U.S.S.G. §

2F1.1, application n.14 (2000) (amended 2001) (emphasis added). Amendment 617 made the

cross-reference provision a part of the actual guideline rather than a reference in the application

note. Notably, the Amendment also struck the reference to the “indictment or information” in the

newly enacted cross-reference provision of § 2B1.1(c)(3) and removed any reference to the

language of § 1B1.2, which discusses the use of a stipulation made as part of a plea agreement. At

that time, U.S.S.G. § 1B1.2 explained: “[I]n the case of a plea agreement (written or made orally

on the record) containing a stipulation that specifically establishes a more serious offense than the

offense of conviction, determine the offense guideline section in Chapter Two applicable to the

stipulated offense.” U.S.S.G. § 1B1.2(a) (2000). As the Government notes, the application notes

to U.S.S.G. § 1B1.2 also were amended effective November 1, 2001, to clarify when the Court

should apply the guideline for a stipulated offense. Specifically, the Sentencing Commission

explained: “A factual statement or a stipulation contained in a plea agreement (written or made

orally on the record) is a stipulation for purposes of subsection (a) only if both the defendant and

the government explicitly agree that the factual statement or stipulation is a stipulation for such

purposes.” U.S.S.G. app. C, Amend. 613 (emphasis added).

       The general purpose of the revisions in Amendment 617 was explained by the U.S.

Sentencing Commission:

       The amendment includes a new cross reference (subsection (c)(3)) that is more
       generally applicable and intended to apply whenever a broadly applicable fraud
       statute is used to reach conduct that is addressed more specifically in another
       Chapter Two guideline. Prior to this amendment, the fraud guideline contained an
       application note that instructed the user to move to another, more appropriate
       Chapter Two guideline, under specified circumstances. Although this note was not
       a cross reference, but rather a reminder of the principles enunciated in §1B1.2, it

                                                 7
       operated like a cross reference in the sense that it required use of a different
       guideline.

U.S.S.G. app. C, Amend. 617.

       Both parties contend that the history of Amendment 617 supports their position in this case.

Defendant focuses on the Sentencing Commission’s exclusion of the reference to U.S.S.G. §

1B1.2, the provision discussing facts in the stipulation, in support of its argument that the Court

may only look to the conduct described in the charging document. The Government argues that

the removal of the specific reference to the indictment or information from the cross-reference

provision bolsters its argument that the Court may look at any offense conduct, not just that in the

charging document.     Moreover, the Government argues that the reference to § 1B1.2 was

eliminated by the Sentencing Commission because § 1B1.2, as amended, allows the parties to

stipulate to the relevant offense guideline whereas § 2B1.1(c)(3), as amended, allows the Court to

consider the stipulated facts but eliminates the reference to the parties ability to stipulate to the

relevant offense guideline. Govt.’s Mem. in Aid of Sent’g at 26-27 n.16.

       A plain reading of the language of the guideline does not appear to limit the Court to

looking only at the conduct set forth in the indictment or information, as Defendant argues. Indeed,

the language of the provision itself – “the conduct set forth in the count of conviction establishes

an offense specifically covered by another guideline” – appears to limit the Court’s inquiry only

to the conduct related to the offense of conviction, as opposed to all relevant conduct including

conduct underlying other offenses to which a defendant was not convicted. The reference to the

“conduct set forth in the count of conviction” supports the conclusion that the Court can consider

conduct stipulated to by Defendant underlying the offense of conviction when determining the

appropriate guideline to apply under the cross-reference provision. Nothing in the language of the


                                                 8
§ 2B1.1(c)(3) appears to expressly limit the Court to looking only at the conduct in the charging

document and, notably, the Sentencing Commission actually eliminated the language referencing

the indictment or information when it created the cross-reference provision of § 2B1.1(c)(3) at

issue. Therefore, it appears that if the Commission had sought to limit the Court’s inquiry in the

way that Defendant argues, it would have left the explicit reference to those documents in the

provision. Instead, it appears based on the language of the cross-reference provision that the Court

may consider other facts stipulated to by Defendant that underlie his offense of conviction. As

such, the Court concludes the language of the cross-reference provision at issue supports the

Government’s interpretation that the Court may consider offense conduct contained in the

stipulated facts in the Statement of the Offense.

                       b. Cases interpreting U.S.S.G. 2B1.1(c)(3) cited by Defendant are
                          distinguishable.

       In reaching its conclusion, the Court recognizes that there are no cases that squarely support

this Court’s interpretation of § 2B1.1(c)(3) and there are cases that appear to apply § 2B1.1(c)(3)

in the manner advocated by Defendant.          However, the cases cited by Defendant can be

differentiated factually from the instant action and do not expressly address the nuanced issue

before this Court. Further, the Court notes that neither party has pointed to any binding authority

requiring the Court to adopt their respective position as to this issue. However, the Court shall

nonetheless discuss the cases cited by Defendant that reach a contrary finding and further explain

its reasoning for not adopting a similar approach.

       In United States v. Genoa, 343 F.3d 578 (2d Cir. 2003), the U.S. Court of Appeals for the

Second Circuit addressed the applicability of the cross-reference provision of § 2B1.1(c)(3) to a

defendant who pled guilty to one count of violating 18 U.S.C. § 1001 when he lied to the


                                                    9
Government during “innocence proffers.” The Second Circuit in its analysis noted that it had

interpreted the prior version of the cross-reference provision, in force before the enactment of

Amendment 617, to permit its application in instances when an offense was more aptly covered

by another guideline even if all the elements of the other offense could not be established. Id. at

583-84 (quoting United States v. Napoli, 54 F.3d 63, 66-67 (2d Cir. 1995)). After reviewing the

changes made by Amendment 617 to this provision, the Second Circuit found that the Sentencing

Commission’s inclusion of the requirement that the conduct alleged in the count of the indictment

be “specifically covered” by another guideline clarified that “§ 2B1.1(c)(3) is applicable only if

the elements of another offense are established by conduct set forth in the count of conviction . . .

.” Genoa, 543 F.3d at 584. However, the Second Circuit ultimately held that Defendant’s conduct

set forth in the count of the conviction did not establish violations of any obstruction-of-justice

statutes rendering the cross-reference provision of the fraud guideline inapplicable. Id. at 586.

While Defendant argues that the Second Circuit’s holding in Genoa definitively establishes that

the sentencing court should only look at the conduct in the indictment, the Second Circuit’s

analysis focuses on whether the cross-reference provision is applicable even if all the elements of

another offense covered by a different guideline are not established. Indeed, as the Second Circuit

explained: “[T]he plain language of § 2B1.1(c)(3) indicates that § 2B1.1(c)(3) is applicable only

if the conduct alleged in the count of the indictment of which defendant is convicted establishes

the elements of another offense.” Id. at 583. As such, while the Second Circuit does discuss “the

conduct alleged in the count of the indictment,” it does not specifically hold that the Court may

look only to the conduct in the charging document, and not to other conduct underlying the offense

of conviction, in order to determine whether all the elements of an offense covered by another

guideline have been established.

                                                 10
       Other U.S. Court of Appeals addressing the Second Circuit’s holding in Genoa have

reached differing results. 5 In United States v. Bah, 439 F.3d 423 (8th Cir. 2006), the U.S. Court

of Appeals for the Eighth Circuit citing to Genoa held that the cross-reference provision of §

2B1.1(c)(3) was inapplicable because the conduct set forth in the count of the indictment to which

the defendant pled did not establish another offense. The Eighth Circuit found that the plain

language of § 2B1.1(c)(3) requires that the Court look only to the language in the count of the

conviction in the indictment. Id. at 427. Importantly, the Eighth Circuit noted this reading of the

provision was “supported by the language that the United States Sentencing Commission chose to

exclude from the current version of the section.” Id. at 427 n.3. While the Eighth Circuit noted

that the Commission excluded the reference to a “stipulation,” it made no mention of the fact that

the Commission also excluded language specifically referencing the “indictment or information.”

See id. Similarly, citing to Genoa and Bah, the U.S. Court of Appeals for the Fifth Circuit in

United States v. Garcia, 590 F.3d 308 (5th Cir. 2009), held that the district court properly applied

the cross-reference provision of § 2B1.1(c)(3) because the one-count indictment alleged another

offense. Id. at 316.

       In contrast, the U.S. Court of Appeals for the Eleventh Circuit rejected a defendant’s

argument that based on Genoa, the district court erred in applying § 2B1.1(c)(3) at sentencing

because the provision requires that all the elements of another offense be established. 6 United



       5
           Defendant cites to United States v. Kim, 95 F. App’x 857 (9th Cir. 2004), an unpublished
opinion from the U.S. Court of Appeals for the Ninth Circuit in support of its argument. Def.’s
Mem. in Aid of Sent’g at 4. However, pursuant to Ninth Circuit Rule 36-3, unpublished opinions
issued prior to 2007 are not precedent. As such the Court has not considered this opinion because
it is not treated as precedent within that Circuit.
         6
           The Court has considered this unpublished opinion it is discussion because pursuant to
Federal Rule of Appellate Procedure 32.1, citation to cases issued on or after January 1, 2007, is
permissible.
                                                   11
States v. Ochoa, 291 Fed. App’x 265 (11th Cir. 2008), cert. denied 555 U.S. 1203 (2009).

Specifically, Defendant argued that Amendment 617 narrowed the application of the cross-

reference provision by adding the “specifically covered” language and removing the “more aptly

covered” language. 7 Id. at 268. The Eleventh Circuit, applying a plain error standard, found that

the explicit language of the cross-reference provision does not resolve the issue raised by the

defendant, nor was there any controlling precedent requiring that court to interpret the provision

as the defendant argued. Id. As such, the Eleventh Circuit affirmed the decision to apply the cross-

reference provision, finding that the district court had not plainly erred. Id.

       Defendant also cites to the U.S. District Court for the Southern District of West Virginia’s

opinion in United States v. Griffith, 115 F. Supp. 3d 726 (S.D.W.V. 2015), in support of his

argument that the Court should consider only the conduct set forth in the indictment. In Griffith,

the district court found that the cross-reference provision of § 2B1.1(c)(3) is only applicable if the

count of conviction establishes all the elements of an additional offense. Id. at 744. The district

court reached this conclusion based on the precedent from other courts, including the Second

Circuit’s holding in Genoa, the plain meaning and the history of § 2B1.1(c)(3), and the purpose of

the guidelines, i.e., to provide uniformity and predictability. Id. at 740-44. The district court noted

that requiring the count of conviction to make out all the elements of another offense “is the only

approach that promotes certainty in the court’s application of the [g]uidelines.” Id. at 743.

However, in Griffith, the defendant pled guilty to one count of making a false, fictitious, or

fraudulent statement or representation based on a statement he made to IRS special agents in

violation of 18 U.S.C. § 1001(a)(2). The 2014 statement that led to the charge of conviction related



       7
        As previously noted, the “more aptly covered” language remains in application note to §
2B1.1(c)(3). See U.S.S.G. § 2B1.1 application n.15 (2012).
                                              12
to an earlier series of schemes to collect cash kickbacks. Notably, however, in Griffith, the conduct

at issue that the district court declined to consider in its analysis of the applicability of the cross-

reference provision of § 2B1.1(c)(3), was conduct that the court had already deemed was not

relevant conduct. The court held that the conduct at issue, relating to the kickback scheme and

associated losses, was not relevant conduct because the scheme, even though it was expressly

referenced in the Information, did not occur during the commission of the offense of conviction (a

violation of 18 U.S.C. § 1001), in the preparation of that offense, or in the course of attempting to

avoid detection or responsibility for that offense. Id. at 733. Moreover, the district court found

that the scheme at issue and the offense of conviction were not part of the same common scheme

or plan or the same course of conduct. Id. at 736-37. As such, while the district court in Griffith

only focused on the conduct set forth in the information filed in that case, it declined to consider

other conduct it deemed as not relevant conduct to the charge of conviction. Id. at 744 (“In this

case, the Information fails to establish all of the elements for the additional offense of conspiracy

to commit honest services fraud, such as whether the Scheme involved the use of the mails or

wires.”). Like the court in Griffith, other district courts have approvingly cited Genoa and Bah as

standing for the proposition that the Court may look only to language of the indictment or

information when determining whether the cross-reference provision is applicable. See United

States v. Rodriguez, 493 F. Supp. 2d 833, 834 (W.D. Tex. 2007) (considering only the conduct

described in the count of conviction in defendant’s indictment); United States v. Ralph, No. 08-

40051-01, 2008 WL 4911151, at *2-3 (D. Kan. Nov. 13, 2008) (holding that the cross-reference

provision of U.S.S.G. § 2B1.1(c)(3) was inapplicable when defendant was convicted of a violation

of 18 U.S.C. § 1001, and the charging document did not establish specific intent required for the

offense of criminal interference with the right to fair housing).

                                                  13
       Here, the Government raises a slightly different argument than the issue discussed at length

in some of the earlier cited opinions. The Government’s argument is not that all the elements of

another offense need not be established in order for the Court to apply the cross-reference

provision. Rather, the Government argues that the Court need not restrict the inquiry of whether

another offense was established to the four corners of the charging document. The Government

contends that the Court should consider the conduct set forth in the Statement of the Offense which

Defendant admitted to as part of his plea. Stmt. of Offense, ECF No. [5]. As such, it is this Court’s

view that it addresses a slightly different issue than the one presented in either Genoa and Griffith.8

Moreover, as previously discussed, the Court finds nothing in the language of § 2B1.1(c)(3) that

restricts the Court to only consider the conduct set forth in the Information when, as here,

Defendant also stipulated to certain conduct as part of his plea agreement. The Court does find,

however, that its inquiry regarding the applicability of § 2B1.1(c)(3) is limited to offense conduct

underlying the offense of conviction (18 U.S.C. § 1001), as opposed to all relevant conduct. As

such, the Court now turns to the issue of whether Defendant’s conduct warrants applying the cross-

reference provision of § 2B1.1(c)(3).

               2. The offense conduct set forth in the Information and Statement of the Offense
                  warrant applying U.S.S.G. § 2B1.1(c)(3) in this action.

       The Court next turns to the issue of whether Defendant’s offense conduct in the

Information and Statement of Offense establish all the elements of an obstruction of justice offense

such that the Court should apply the cross-reference provision of U.S.S.G. § 2B1.1(c)(3), and

calculate Defendant’s base offense level using § 2J1.2 (obstruction of justice guideline). For the



       8
        As previously discussed, the Court does not dispute that other courts applying Genoa
have expressly only considered conduct set forth in the count(s) of conviction in the charging
document.
                                             14
reasons described, the Court finds looking only at the conduct in the Information, Defendant

violated 18 U.S.C. § 1512(b)(3). The Court also finds when considering the offense conduct in

the Information and the Statement of the Offense, that Defendant also violated 18 U.S.C. §§ 1503

and 1512(c)(2). As such, the Court shall apply the cross-reference provision of § 2B1.1(c)(3),

when calculating Defendant’s base offense level.

                       a. Conduct in the Information establishes a violation of 18 U.S.C. §
                          1512(b)(3).

       Notwithstanding the Court’s conclusion that it may look at all offense conduct in

determining which guideline to apply, the Court shall first look only to the conduct set forth in the

Information. For the reasons described herein, the Court finds that Defendant’s conduct as

described only in the Information to which he pled establishes all the elements of a violation of §

1512(b)(3). “To prove a violation of § 1512(b)(3), the government must establish beyond a

reasonable doubt that the defendant knowingly and willfully (1) engaged in misleading conduct

toward another person, (2) with the intent to hinder, delay or prevent the communication of

information to a federal law enforcement officer or federal judge, (3) about the commission or the

possible commission of a federal crime.” United States v. Veal, 153 F.3d 1233, 1253 (11th Cir.

1998), cert. denied 526 U.S. 1147 (1999), overruled on other grounds by Fowler v. United States,

131 S. Ct. 2045 (2011) as recognized in United States v. Chafin, 808 F.3d 1263, 1274 (11th Cir.

2015); see also United States v. Ronda, 455 F.3d 1273, 1284 (11th Cir. 2006); United States v.

Carson, 560 F.3d 566, 580 (6th Cir. 2009); United States v. Perry, 335 F.3d 316, 320-21 (4th Cir.

2003), cert. denied 540 U.S. 1185 (2004). “[T]o support a conviction under § 1512, ‘the

Government must show that there was a reasonable likelihood that a relevant communication

would have been made to a federal officer.’” Chafin, 808 F.3d at 1274 (quoting Fowler, 131 S.


                                                 15
Ct. at 2048).

        Pursuant to the Information, Defendant “knowingly and willfully” made materially false,

fictitious, and fraudulent statements and representations to FBI special agents. Information at 2.

Defendant engaged in “misleading conduct” by knowingly making false statements and

intentionally concealing material facts. Id.; see also 18 U.S.C. § 1515(a)(3) (defining “misleading

conduct”). Defendant’s “misleading conduct” was directed “toward another person,” in this case

the FBI special agents. Moreover, the false statements were made “with the intent to hinder, delay

or prevent the communication of information to a federal law enforcement officer.” Indeed, here,

Defendant made false statements to FBI special agents when he stated that he did not know of

anyone asked to go out of town who had been involved with the 2010 mayoral campaign or the

GOTV initiative at issue, that he never requested for anyone to leave town so that they could not

come to the U.S. Attorney’s Office or speak with federal agents, and that he did not help or assist

with sending anyone out of town so that they would not be able to speak with federal agents in the

FBI’s investigation of the GOTV effort. Information at 2-3. In providing this false information

to FBI agents, Defendant clearly intended to “prevent,” “hinder,” and “delay” the communication

of the truthful information he had on these topics. As Defendant admitted, he had given funds to

Person One in order to persuade Person One to leave town for an extended period of time so that

he would be unavailable to speak with federal agents in the FBI’s investigation of the GOTV

initiative. Id. at 3. Finally, Defendant’s “misleading conduct” related to the commission or the

possible commission of a federal crime. Here, Defendant’s false statements directly to the FBI

special agents were relevant to the possible commission of violations of: Sections 1512(b)(1),

(b)(3), (c)(2) (tampering with a witness, victim, or an informant); and Section 1503 (influencing

or injuring officer or juror generally).

                                                16
        Defendant argues that 18 U.S.C. § 1512(b)(3) is not applicable to Defendant’s conduct as

set forth in the Information because a violation under that statute requires the Defendant to engage

in misleading conduct toward a third person with the intent to hinder, delay, or prevent the

communication to a law enforcement officer. Def.’s Resp. to Govt.’s Mem. in Aid of Sent’g at 5.

As such, Defendant’s argument is that he could not violate § 1512(b)(3) by directly misleading a

federal law enforcement officer but rather that he must do so through a third party. The Court

finds this argument is without merit. As previously mentioned, the statute requires that the

defendant engage in misleading conduct toward “another person.” Nothing in the statutory

language appears to restrict the definition of “another person” to any non-federal law enforcement

officer, and courts interpreting the provision have concluded that “another person” is commonly

understood to mean “any person.” See, e.g., Veal, 153 F.3d at 1245 (“As the district court found,

there is no ambiguity in ‘another person,’ which is easily and commonly understood to mean any

person, regardless of whether he possessed knowledge of the commission or possible commission

of a federal crime from being an eyewitness or investigating official.”); United States v. Gardner,

993 F. Supp. 2d 1294, 1302 (D. Or. 2014) (“Although the legislative purpose and title of the

[Victim and Witness Protection Act] may support an argument that 18 U.S.C. § 1512(b)(3) applies

only to victims, witnesses, and informants, the plain text of the statute is unambiguous. Therefore,

the Court looks no further than the plain meaning of the text.”). Accordingly, the Court finds that

Defendant’s conduct as described only in the Information establishes all the elements of a violation

of § 1512(b)(3) and, as such, the application of U.S.S.G. § 2J1.2(a) (obstruction of justice

guideline) through cross-reference provision of § 2B1.1(c)(3) (fraud guideline) is warranted in this

case.



                                                17
                       b. Conduct in the Information and Statement of the Offense establishes
                          violations of 18 U.S.C. §§ 1503 and 1512(c)(2).

       The Court next considers Defendant’s conduct as set forth both in the Information and the

Statement of the Offense which includes conduct that Defendant admitted to as part of his plea

agreement. Pursuant to the Statement of the Offense, on or about August 16, 2012, Defendant,

with his lawyer present, engaged in a voluntary interview with two FBI agents and representatives

from the U.S. Attorney’s Office for the District of Columbia. Stmt. of Offense at 7. During that

interview, Defendant made “statements . . . he knew to be false and misleading to the FBI,” “with

knowledge of and in contemplation of a pending federal investigation.” Id. The false and

misleading statements mirror those described in the Information. See id. at 7-8. Moreover,

“[t]hese false statements were material, as they were capable of influencing the course of the FBI’s

investigation” and “were made in an attempt to influence the federal grand jury investigation” into

the GOTV initiative. Id. at 8. Defendant’s conduct was both knowing and willful. Id.               As

described herein, the Court finds that Defendant’s conduct as described satisfies all the elements

of violations of at least two obstruction of justice offenses codified under 18 U.S.C. § 1503 and §

1512(c)(2). The Court shall discuss each in turn.

       Pursuant to 18 U.S.C. § 1503, a person is prohibited from “corruptly . . . endeavor[ing] to

influence, obstruct, or impede, the due administration of justice.” 18 U.S.C. § 1503(a). “As to

obstruction of justice, 18 U.S.C. § 1503 is satisfied whenever a person, with the ‘intent to influence

judicial or grand jury proceedings,’ takes actions having the ‘natural and probable effect’ of doing

so.” In re Sealed Case, 162 F.3d 670, 674 (D.C. Cir. 1998) (quoting United States v. Aguilar, 515

U.S. 593, 600 (1995)). To do so corruptly, “‘the defendant need only have had knowledge or

notice that success in his fraud would have likely resulted in an obstruction of justice.’” United


                                                 18
States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015) (quoting United States v. Neiswender, 590

F.2d 1269, 1273 (4th Cir. 1979)). Here, it is clear that Defendant’s false statements made to the

FBI agents and the U.S. Attorney’s Office “in an attempt to influence the federal grand jury

investigation” satisfy all the elements of 18 U.S.C. § 1503.

       Pursuant to 18 U.S.C. § 1512(c)(2), a person is prohibited from corruptly obstructing,

influencing, or impeding any official proceeding, or attempting to do so. “The term ‘official

proceeding’ includes proceedings before federal judges, grand juries, and Congress.” United

States v. Ring, 628 F. Supp. 2d 195, 223 (D.D.C. 2009) (citing 18 U.S.C. §§ 1515(a)(1)(A) & (B)).

Defendant argues that he cannot be said to have acted “corruptly” because Defendant gave money

to and discussed leaving town with Person One, who was not under subpoena and had no legal

duty to speak with law enforcement officials. Defendant’s argument conflates the incident with

Person One with Defendant’s false statements to law enforcement officials regarding that incident.

In the Statement of the Offense, Defendant admitted that his false statements to FBI agents and

the U.S. Attorney’s Office “were made in an attempt to influence the federal grand jury

investigation” into the GOTV initiative. As such, Defendant’s false statements are the basis for

this violation rendering it irrelevant whether Person One was under subpoena or otherwise legally

obligated to speak with investigators. Indeed, “[o]nly persons conscious of wrongdoing can be

said to ‘knowingly . . . corruptly persuade.’” Arthur Andersen LLP v. United States, 544 U.S. 696,

706 (2005). Here, Defendant’s conduct satisfies all the elements of violating 18 U.S.C. §

1512(c)(2) because Defendant made false statements to FBI agents and the U.S. Attorney’s Office

in an attempt to influence the grand jury investigation into the GOTV initiative.

       Defendant also argues that the Government has failed to demonstrate that he violated all

the elements of an offense under either 18 U.S.C. §§ 1503 or 1512(c)(2) because there was an

                                                19
insufficient nexus between Defendant’s conduct and the grand jury proceeding. Def.’s Resp. to

Govt.’s Mem. in Aid of Sent’g at 6-7. This argument is without merit. The Supreme Court of the

United States in United States v. Aguilar, 515 U.S. 593 (1995), held that simply testifying falsely

to an investigating agent with knowledge that a grand jury proceeding had been convened was

insufficient to meet the requirements of § 1503. Id. at 601. Rather, the Court found that the statute

requires that “action taken by the accused must be with the intent to influence judicial or grand

jury proceedings.” Id. at 599. As the Court explained, “if the defendant lacks knowledge that his

actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” Id.

(emphasis added). Defendant argues that the nexus requirement would necessitate some additional

evidence, for instance, in order to show that the federal investigators were under subpoena to testify

before the grand jury. However, here, Defendant admitted as part of his plea that he was attempting

to influence the grand jury investigation when he made the false statements to the FBI agents and

the U.S. Attorney’s Office. Given this admission, there is clearly a nexus between Defendant’s

false statements and the grand jury proceeding.

       In sum, the Court concludes that upon consideration of the conduct only set forth within

the four corners of the Information to which Defendant pled, his conduct meets all the elements of

a violation of § 1512(b)(3). Moreover, the Court concludes that upon consideration of the conduct

set forth in the Information and the Statement of the Offense which Defendant agreed to as part of

his plea agreement, Defendant’s conduct satisfies all the elements of a violation of 18 U.S.C. §

1503 and of § 1512(c)(2). Having found that Defendant’s conduct meets all the elements of at

least three obstruction of justice offenses, 18 U.S.C. §§ 1503, 1512(b)(3), and 1512(c)(2), the Court

finds that the cross-reference provision of U.S.S.G. § 2B1.1(c)(3) is applicable because the conduct

set forth in the count of conviction establishes an offense specifically covered by the obstruction

                                                  20
of justice guideline (U.S.S.G. § 2J1.2). As such, the Court, applying U.S.S.G. § 2J1.2(a), finds

that Defendant’s base offense level is 14.

       B.      Upward Adjustment for Obstruction of Justice

       Turning to the next issue before the Court, the Government argues that the Court should

apply a two-level upward adjustment pursuant to U.S.S.G. § 3C1.1 for obstructing or impeding

the administration of justice. Pursuant to § 3C1.1,

       If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or
       impede, the administration of justice with respect to the investigation, prosecution,
       or sentencing of the instant offense of conviction, and (2) the obstructive conduct
       related to (A) the defendant’s offense of conviction and any relevant conduct; or
       (B) a closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. The application notes to the provision provide some specific examples of the

types of conduct to which this adjustment applies. Id. application n.4. Specifically, the non-

exhaustive list includes “providing a materially false statement to a law enforcement officer that

significantly obstructed or impeded the official investigation or prosecution of the instant offense,”

and “other conduct prohibited by obstruction of justice provisions under Title 18, United States

Code.” Id. application n.4(C) & (I). “‘Material’ evidence, fact, statement, or information . . .

means evidence, fact, statement, or information that, if believed, would tend to influence or affect

the issue under determination.” Id. application n.6.

       The Government contends that the Defendant made false statements and engaged in

obstructive behavior after he entered his plea that warrants applying this sentencing enhancement.

Govt.’s Reply Mem. in Aid of Sent’g at 23. Specifically, the Government asserts that during a

March 7, 2014, debriefing, “[D]efendant continued his obstruction, falsely claiming no

recollection of a $10,000 cash payment made on or about September 17, 2010 to Close Relative,

purportedly for campaign expenses, that the defendant brokered from Thompson through Person

                                                 21
G.” Id. at 9. Defendant asserts that his faulty memory regarding the $10,000 cash payment was

due to diagnosed memory deficiencies and further argues that the Court should not credit the

statements of “Person G” that support the notion that Defendant was involved in the $10,000 cash

payment. Def.’s Resp. to Govt.’s Mem. in Aid of Sent’g at 9-11. However, the Government

contends that Defendant has only proffered evidence regarding the alleged memory deficits from

examinations beginning in February 2015, well after the statements at issue were made, and

because, in the Government’s view, Defendant “did not have any similar failures of recollection

when describing other details and sequences of events.” Govt.’s Mem. in Aid of Sent’g at 15. As

such, the Government contends that Defendant’s arguments should not be credited.

       In sum, the Court is left with two factual disputes between the parties that it shall resolve

at sentencing.   The first issue is whether there is sufficient evidence to demonstrate by a

preponderance of the evidence that Defendant was involved in the $10,000 cash payment to Close

Relative. See United States v. Price, 409 F.3d 436, 444 (D.C. Cir. 2005) (Government “carries the

burden of proving any facts that may be relevant in sentencing.”); United States v. Washington,

115 F.3d 1008, 1010 (D.C. Cir. 1997) (“The burden is on the government to prove facts in support

of a sentence enhancement by a preponderance of the evidence.”). If the Court finds that

Defendant was involved with the cash payment as the Government alleges, then the second issue

the Court must resolve is whether Defendant made false statements in order to willfully obstruct

or impede the administration of justice such that U.S.S.G. § 3C1.1 should apply. Central to this

determination will be whether or not Defendant’s statements were the result of Defendant’s

memory deficits as argued by Defendant. Given that this determination requires the Court to make

factual determinations, the Court shall reserve its ruling on these issues until the sentencing

hearing.

                                                22
       C. Downward Adjustment for Acceptance of Responsibility

       Finally, Defendant argues that the Court should apply a two-level downward adjustment

for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Pursuant to § 3E1.1, “If the defendant

clearly demonstrates acceptance of responsibility for his offense, [the court should] decrease the

offense level by 2 levels.” Id. Pursuant to the application notes, a court may consider whether a

defendant “truthfully admit[ed] the conduct comprising the offense(s) of conviction, and truthfully

admit[ed] or not falsely den[ied] any additional relevant conduct for which the defendant is

accountable . . . .” U.S.S.G. § 3E1.1(a) application n.1(A). While the entry of a guilty plea is

“significant evidence of acceptance of responsibility,” “this evidence may be outweighed by

conduct of the defendant that is inconsistent with such acceptance of responsibility.” Id. at

application n.3. In determining whether to apply this adjustment, the D.C. Circuit has recognized

that “[t]he scope of the district court’s wide discretion under section 3E1.1 is not restricted to an

evaluation of the defendant’s acceptance of responsibility for the narrow offense of conviction and

its essential elements.” United States v. Taylor, 937 F.2d 676, 680 (D.C. Cir. 1991).

       Defendant asserts that he is entitled to the acceptance of responsibility adjustment because

he demonstrated public remorse for his actions, including during the plea hearing held in this

matter. Def.’s Resp. to Govt.’s Mem. in Aid of Sent’g at 19, n.6. The Government contends that

Defendant is not entitled to this downward adjustment because he has not “clearly” demonstrated

his acceptance of responsibility. Here, the Government asserts that there are two bases for not

applying this adjustment. First, the Government argues that Defendant’s alleged false statements

after the plea regarding the $10,000 cash payment warrant the Court declining to include this

adjustment in its calculation. As the Government notes, should the Court apply the upward

adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1 discussed above, the conduct

                                                 23
warranting such an enhancement “ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct.” U.S.S.G. § 3E1.1(a) application n.4. Second, the

Government contends that this adjustment should not be applied based on Defendant’s “denying

and minimizing his series of criminal offenses,” even though Defendant entered a plea in this

matter. Govt.’s Reply Mem. in Aid of Sent’g at 26. The Government’s second argument centers

around Defendant’s statements during the plea hearing and in his briefing in anticipation of

sentencing. See id. As such, the Court shall make a factual determination on the record during

the sentencing hearing as to whether the Government has established a basis for the Court to

decline to apply this adjustment based on the alleged $10,000 payment. The Court also shall

determine whether the record reflects that Defendant has otherwise clearly accepted responsibility

for his offense such that this adjustment is warranted.

                                          CONCLUSION

       For the foregoing reasons, the Court has determined that in calculating Defendant’s base

offense level under the U.S. Sentencing Guidelines, the cross-reference provision of U.S.S.G. §

2B1.1(c)(3), is applicable in this instance. The Court further finds that the conduct set forth in the

count of conviction establishes obstruction of justice offenses specifically covered by U.S.S.G. §

2J1.2. As such, the Court, applying that guideline, finds that Defendant’s base offense level is 14.

With respect to the potential upward adjustment for obstruction of justice pursuant to U.S.S.G. §

3C1.1 and the potential downward adjustment for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1(a), the Court shall determine at the sentencing hearing: (1) whether there is

sufficient evidence to demonstrate by a preponderance of the evidence that Defendant was

involved in the $10,000 cash payment to Close Relative; and (2) if so, whether Defendant made

false statements in order to willfully obstruct or impede the administration of justice such that

                                                 24
obstruction of justice adjustment should apply and such that acceptance of responsibility

adjustment should not apply. Moreover, the Court shall determine whether the acceptance of

responsibility adjustment should otherwise apply because Defendant clearly demonstrates

acceptance of responsibility for his offense. The Court shall render these rulings on the record at

the sentencing hearing.




                                                         /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     UNITED STATES DISTRICT JUDGE




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