
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1182                                    UNITED STATES,                                      Appellee,                                          v.                                   ROBERT VOCCOLA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                         [Mary M. Lisi, U.S. District Judge]                                        ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            David L. Martin for appellant.            _______________            Sheldon Whitehouse, United  States Attorney for Rhode Island,  for            __________________        appellee.                                 ____________________                                   November 5, 1996                                 ____________________                      BOWNES, Senior Circuit Judge.   Defendant-appellant                      BOWNES, Senior Circuit Judge.                              ____________________            raises  three  issues in  this appeal.    They are:   (1) the            denial of  defendant's motion  for recusal of  the sentencing            judge;  (2)  whether  the  district court  clearly  erred  in            increasing defendant's  sentencing level for his  role in the            offense; and (3) whether the district judge clearly  erred in            finding that defendant obstructed justice.  We affirm.                                      Background                                      Background                                      __________                      A   grand  jury   returned   a  twenty-four   count            indictment charging defendant,  Robert Voccola, his  brother,            Edward Voccola, and one  of Edward's employees, Roger Cavaca,            with  an extensive  scheme  of  automobile  insurance  fraud.            Count one of  the indictment charged  each of the  defendants            with  a federal  racketeering  violation, 18  U.S.C.    1962;            counts two through  twenty-three charged each defendant  with            federal  mail fraud  in violation  of 18  U.S.C.    1341, and            aiding and abetting mail fraud in violation of 18 U.S.C.   2;            count  twenty-four charged  co-defendant Edward  Voccola with            obstruction of justice in violation of 18 U.S.C.   1503.                      Defendant Robert Voccola pled guilty to counts two,            four, five, and twenty of the indictment, co-defendant Edward            Voccola pled guilty to  count one of the indictment,  and co-            defendant  Roger Cavaca  pled  guilty to  counts three,  six,            seventeen, and nineteen of the indictment.                                         -2-                                          2                      Further facts bearing on the sentencing issues will            be stated when we discuss those issues.                                         RECUSAL                                       RECUSAL                                      The Facts                                      The Facts                                      _________                      The facts  on which  the recusal motion  was based,            although somewhat lengthy and convoluted, are not disputed.                      The  district  judge, Hon.  Mary  M.  Lisi, held  a            chambers   conference  prior  to   the  scheduled  sentencing            hearing.  During the  conference, she expressed concern about            financial  information furnished  by  defendant for  the pre-            sentence  report.   She  questioned how  the defendant  could            cosign  a loan for his  son when he  had listed approximately            $100,000 in unpaid debts  on his personal financial statement            and had submitted affidavits to the court claiming indigency.            Defendant's  sentencing  was,  therefore, continued  so  that            additional  financial information could  be obtained.   After            the conference,  defendant alleges that he  realized, for the            first time, that  the district judge served as  a member of a            state commission  investigating the financial activities of a            number  of   persons  and  corporations,  one   of  whom  was            defendant.                      Some background  facts are now necessary.   In 1991            the  Rhode Island Depositors  Economic Protection Corporation            (DEPCO) was  created to address  the problems arising  from a            financial  crisis in Rhode Island.   The crisis was triggered                                         -3-                                          3            by  the failure of numerous  banks and credit  unions, all of            which were insured by  a private insurance fund --  the Rhode            Island Share  and Depositors Indemnity  Corporation (RISDIC),            which also failed.   The unpaid debts of defendant  listed on            the pre-sentence report were owed to DEPCO.                      The state  commission on which the  judge served as            an  appointee of the governor, before she became a judge, was            the Select  Commission to  Investigate the Failure  of RISDIC            Insurance Financial Institutions.    She took an active  role            in the commission's investigation of the cause of the failure            of  the banks, the credit unions, and RISDIC.  The commission            held hearings,  questioned witnesses, and  subpoenaed records            during the  course of its investigation,  which lasted nearly            two years.  In December 1992, the commission issued a report,            recommending in effect that  DEPCO take appropriate action to            resolve the crisis.   Legal action  to recover loan  proceeds            was one of the specific recommendations.  The commission made            its  findings  and  the  evidence  adduced  at  the  hearings            available  "to   law  enforcement  agencies,  DEPCO  and  the            receivers of  RISDIC institutions  so that they  could pursue            criminal and civil  action."  Report of  Select Commission to            Investigate Failure of RISDIC,  at 2  (1992).   Defendant was            not named or identified in any of this material.                      On October  3, 1994,  Edward D. Pare,  receiver for            the  Rhode Island Central Credit  Union, which was insured by                                         -4-                                          4            RISDIC,  sued defendant  and his  wife for  failure to  pay a            promissory note for $105,000  owed to the credit union.   The            note  was secured  by  a mortgage  on a  yacht  -- the  Bella            Famina.   An in rem  proceeding against the  boat was brought                         __ ___            together with an in personam action against defendant and his                             __ ________            wife.  Judge Lisi handled this case.   The in personam action                                                       __ ________            was terminated by  default.  Neither  defendant nor his  wife            appeared at any hearing.                      Defendant has  produced  no evidence  or  made  any            allegations  that the  district  judge gained  any  knowledge            about  defendant  personally  and/or  his  financial  affairs            during the course of her service on the state commission.                      After a  hearing on  the motion to  disqualify, the            court stated:                         Let me deal right now  with the Motion                      to Disqualify.                         Mr. Martin,  I certainly do  not fault                      you for bringing such  a motion.  I think                      it's  absolutely within  your prerogative                      and certainly if  it is in  your client's                      best  interest  to do  so, that  you file                      such  a  motion.     I  think  that   the                      impartiality of the Court is the sine qua                      non  of our  justice  system.   It is  an                      issue  that  I   believe  I  am   acutely                      sensitive of.   And  so, I  have reviewed                      with  great care the motion that you have                      filed as well  as all of the  appendices,                      although  I  must  admit that  I  did not                      reread  the entire  report of  the RISDIC                      Commission  which  you  have appended  to                      your motion.                         Let me  just say  that  you are  quite                      correct in asserting  that I served as  a                                         -5-                                          5                      member  of the  colloquially-known RISDIC                      Commission  for some  two years  and that                      the purpose  of  that commission  was  to                      investigate the reasons  for the  failure                      of RISDIC  and ultimately the  closure of                      some  45   financial  institutions  which                      affected  approximately one-third  of the                      population of this  state; the effects of                      which continue to affect the taxpayers of                      this state.                         In  any event,  as your  motion points                      out, this Defendant was  never identified                      by name  anywhere in the  reports, public                      hearings or other materials  generated by                      that  commission.   And quite  frankly, I                      never  heard your  client's name  until I                      came  to this  Court.    And perhaps  the                      first time  I ever heard his  name was in                      connection with the  other case you cite,                      which I did preside over, and that is the                      in rem action  against the BELLA  FAMINA,                      which apparently  was a motor  boat owned                      by  the Defendant  and his  wife.   And I                      believe  that that action likewise was an                      in  personam  action against  Mr. Voccola                      and his wife.                           As  you correctly  point  out in  your                      memo,  that action  terminated as  to the                      Defendant and his wife by default.   It's                      my recollection that  neither Mr. or Mrs.                      Voccola  answered  the  Complaint.    The                      hearing that you  reference taking  place                      with respect to  that action, I  can tell                      you, dealt solely  with the claim of  the                      substitute custodian who was  looking for                      more  money than  the marshal  thought he                      was entitled to.  And that the Defendant,                      nor his wife, nor anyone on their  behalf                      even appeared at any such hearing.                         The case law which both Mr. Martin and                      the  Government  cite  indicates to  this                      Court that any charge of  partiality must                      be supported by a factual basis; that the                      movant cannot simply  rely on  conclusory                      allegations  or  innuendo.   And further,                      that disqualification is appropriate only                      if the  facts provide what  an objective,                                         -6-                                          6                      knowledgeable member of the  public would                      find  to   be  a  reasonable   basis  for                      doubting the judge's partiality.   That's                      the test  in the First Circuit  on a 455A                      request.                         I  have  weighed   the  exhibits   and                      information you've provided in your memo.                      And I have, in so weighing that evidence,                      stepped away from the bench and  into the                      shoes  of  that knowledgeable,  objective                      person  in the street.  And I come to the                      conclusion that there is no evidence that                      would  point to  a lack of  partiality on                      behalf of this Court.                         Instead, my concern is that the motion                      having been  filed this late in  the game                      after that chambers conference  wherein I                      addressed to both  you and the Government                      my skepticism, if you will,  or questions                      as to the financial information which had                      been  provided --  the DEPCO  part  of it                      aside -- how does one -- and I think that                      this is  a plausible  question.   I don't                      think  that   the  Sentencing  Commission                      expects   judges   to  review   financial                      information    provided    to   make    a                      determination  as to  whether or  not the                      Defendant is  capable of paying a fine --                      to simply accept  whatever we're  handed.                      I   would   hope   that  the   Sentencing                      Commission would expect us  to scrutinize                      that information to make  a determination                      as  to the  Defendant's ability to  pay a                      fine.                         And when I see that the  Defendant, in                      a  1994 tax return,  reports zero income,                      yet is able to sign a loan for his son to                      buy  a $23,000  car, is  able to  lease a                      1995 Lincoln Continental, it does raise a                      question in my mind  as to whether or not                      the information provided to  Probation is                      correct.   And as  I said in  December, I                      had those questions, I wanted answers and                      I  wanted  to  give the  Defendant  ample                      opportunity,  not  only  to  provide  the                      additional information, but to prepare an                      explanation since one would be requested.                                         -7-                                          7                         All of that having been said, I do not                      believe  that you  have  met your  burden                      under  Section 455.   And the  Motion for                      Disqualification is denied.                                      Discussion                                      Discussion                                      __________                      Defendant's recusal motion is  based on 28 U.S.C.              455(a), which states:                      Any justice, judge, or magistrate  of the                      United States shall disqualify himself in                      any proceeding in which  his impartiality                      might reasonably be questioned.            Defendant's  claim that  the  district judge's  "impartiality            might reasonably be  questioned" is  based on  three sets  of            facts:                      (1) the judge presiding over his criminal                      case had previously served as a member of                      an investigative commission, a commission                      charged with  examining improprieties and                      fraud in financial institutions;  (2) the                      judge,  as  a member  of  the commission,                      recommended     criminal    and     civil                      prosecutions  of individuals  who engaged                      in fraudulent  business transactions with                      these  failed  institutions; and  (3) the                      defendant had in fact borrowed money from                      one  of the failed institutions and later                      been sued by the receiver for fraud.            Brief for Appellant at 5-6.                      The case law fleshes out the bare-bone words of the            statute.  At the outset of our case law analysis we note that            a guilty plea  does not bar a recusal motion.   United States                                                            _____________            v. Chantal, 902 F.2d 1018, 1020-21 (1st Cir. 1990).            __________                      The test in this  circuit for determining whether a            judge's impartiality might  reasonably be questioned  is long                                         -8-                                          8            established.  The standard stated in United States v. Cowden,                                                 _______________________            545 F.2d  257, 265 (1st Cir.  1976),  cert.  denied, 430 U.S.                                                  _____  ______            909 (1977), is the one we follow:                      [w]hether   the   charge   of   lack   of                      impartiality  is  grounded on  facts that                      would    create   a    reasonable   doubt                      concerning the  judge's impartiality, not                      in the mind of  the judge himself or even                      necessarily  in the mind  of the litigant                      filing the motion under  28 U.S.C.   455,                      but  rather in the mind of the reasonable                      man.            See  also  Town of  Norfolk v.  United  States Army  Corps of            ___  ____  __________________________________________________            Eng'rs, 968 F.2d 1438, 1460 (1st Cir. 1992); United States v.            ______                                       ________________            Lopez,  944 F.2d  33, 37  (1st Cir.  1991); United  States v.            _____                                       _________________            Martorano, 620  F.2d 912, 919  (1st Cir.), cert.  denied, 449            _________                                  _____  ______            U.S. 952 (1980).                      There are two additional considerations in weighing            a  claim of  impartiality.   First, there  must be  a factual            basis  for the  claim that  there  appears to  be  a lack  of            impartiality.    Lopez,  944  F.2d at  37;  United  States v.                             _____                      _________________            Giorgi, 840 F.2d  1022, 1035 (1st Cir. 1988).   And second, a            ______            decision  not  to  recuse  is  reviewed  only  for  abuse  of            discretion.    Lopez, 944  F.2d  at  37; Panzardi-Alvarez  v.                           _____                     ____________________            United  States, 879  F.2d  975, 984  (1st  Cir. 1989),  cert.            ______________                                          _____            denied, 493 U.S. 1082 (1990).            ______                      These are the general rules  that apply.  There are            cases factually analogous to the one at bar.  For example, in            United States v. Giorgi, 840 F.2d at 1035, we held:            _______________________                                         -9-                                          9                      Although  the  knowledge  of a  defendant                      gained during a  judicial proceeding  may                                                            ___                      present grounds for  a reasonable  person                      to question a  judge's impartiality,  see                                                            ___                      Blizard v. Frechette, 601 F.2d 1217, 1220                      ____________________                      (1st Cir. 1979) (citation  omitted), mere                      exposure to  prejudicial information does                      not, in itself,  establish the  requisite                      factual  basis:   "[T]he  judicial system                      could not function  if judges could  deal                      but once  in their lifetime with  a given                      defendant, or had to withdraw from a case                      whenever they had  presided in a  related                      or  companion case or in a separate trial                      in the  same case."  Cowden,  545 F.2d at                                           ______                      266  (citations  omitted).   And  we have                      held that unless a party can  establish a                      reasonable  factual  basis  to   doubt  a                      judge's  impartiality  "by  some kind  of                      probative  evidence,"  then a  judge must                                                           ____                      hear  a case  as assigned.   Blizard, 601                                                   _______                      F.2d at 1221 (citation omitted).            In In Re Cooper, 821 F.2d 833, 844 (1st Cir. 1987), we noted:               ____________            "Judges are not disqualified  from trying defendants of whom,            through prior judicial proceedings,  they have acquired a low            view."                        We end our case law analysis by quoting from Liteky                                                                   ______            v.  United States, 510 U.S.  540 (1994).   In Liteky, Justice            _________________                             ______            Scalia, writing  for the  majority, explicated in  detail the            history  of  the  recusal doctrine.    Id.  at  543-51.   The                                                   ___            question  in Liteky  was whether  recusal under  28  U.S.C.                           ______            455(a) was  subject to  the limitation of  the "extrajudicial            source" doctrine.  The Court held that the doctrine did apply            to   455(a).  Id.  at 554.  In the course of  the opinion the                          ___            Court stated:                                         -10-                                          10                      Also    not   subject    to   deprecatory                      characterization as "bias" or "prejudice"                      are  opinions held by  judges as a result                      of   what   they   learned   in   earlier                      proceedings.   It has long  been regarded                      as normal  and proper for a  judge to sit                      in the same case  upon its remand, and to                      sit  in  successive trials  involving the                      same defendant.            Id. at 551.            ___                      As  to defendant's  contention  that  Judge  Lisi's            prior participation on the investigative  commission requires            recusal,  we find the  connection between  such participation            and defendant's criminal case to be  too attenuated to create            a reasonable doubt concerning the judge's impartiality in the            mind of the reasonable man.  The commission did  not focus on            this particular case  or on this  particular defendant.   Cf.                                                                      ___            United  States  v.  Payne,  944 F.2d  1458  (9th  Cir.  1991)            _________________________            (finding that judge's prior service on pornography commission            did not require recusal from child molestation case).                      Applying the legal principles to the facts asserted            as a basis  for recusal, it is obvious to  us that Judge Lisi            quite properly denied the motion for her recusal.                                THE SENTENCING APPEALS                                THE SENTENCING APPEALS                      We  turn  now  to  defendant's  challenges  to  the            district  court's  upward   adjustments  under  the   Federal            Sentencing Guidelines  for (i)  his role  in the  offense and            (ii)  obstruction of  justice.   First,  we  provide a  brief            statement of the law relevant to appellate review of district                                         -11-                                          11            court  determinations  to make  upward adjustments  under the            Guidelines.   "When we review a  district court's application            of a  sentencing guideline, we utilize  a bifurcated process.            First we review  the guideline's legal  meaning and scope  de                                                                       __            novo.   Next, we  review the  court's fact-finding  for clear            ____            error, giving due deference to the court's application of the            guidelines to the facts."  United States v. Mitchell, 85 F.3d                                       _________________________            800, 813  (1st Cir. 1996)(quoting United  States v. Thompson,                                              __________________________            32 F.3d  1, 4 (1st Cir.  1994)).  Cf. Koon  v. United States,                                              ___ ______________________            116  S.  Ct.  2035  (1996) (departures  from  the  Guidelines                                        __________            reviewed under  abuse of  discretion standard, id.,  at 2043,                                                           ___            which includes  review "to determine that  the discretion was            not guided  by erroneous  legal  conclusions."   Id. at  2048                                                             ___            (emphasis added)).                      We  consider the facts as they are set forth in the            unobjected-to portions of the Presentence Report  ("PSR") and            the  sentencing hearing  transcript.   See  United States  v.                                                   ___  _________________            Cali,  87 F.3d  571, 573  (1st Cir.  1996); United  States v.            ____                                        _________________            Grandmaison, 77 F.3d 555, 557 (1st Cir. 1996).            ___________                                 Role in the Offense                                 Role in the Offense                                 ___________________                      At sentencing, the district  court applied a three-            level  enhancement  to  defendant's  sentence  based  upon  a            finding that  defendant was a  "manager or supervisor"  of an            extensive   scheme  under   the   United  States   Sentencing            Guidelines ("U.S.S.G."),   3B1.1.  Because the details of the                                         -12-                                          12            insurance fraud scheme are  important to the determination of            defendant's  "manager or supervisor"  status, we rehearse the            relevant  facts.   Throughout the  course of  the automobile-            insurance fraud  scheme, defendant  owned  and ran  Allandale            Auto Body in Providence,  Rhode Island.  His brother  and co-            defendant ran  another  auto  body  shop in  the  same  city.            Although  there  were   occasional  variations,  each   false            insurance claim generally followed  the same pattern.  First,            an  individual would purchase  Massachusetts or  Rhode Island            vehicle insurance with liability coverage only.  Usually only            the  first  payment was  made  on  the automobile  insurance.            Prior to the  second payment coming due,  an "accident" would            take  place.   The  "accident"  always  occurred between  the            insured vehicle and another  vehicle that was either already,            or  soon  came  to  be,  in  the  possession  of  one of  the            defendants' auto  body shops.  After  these staged accidents,            the  defendants   would  file  insurance   claims  under  the            insurance policies in order  to "repair" the "hit" car.   The            two  body shops  used  the  same  damaged  cars  to  show  to            different  insurance  appraisers  as  the car  "hit"  by  the            insured   vehicle.      In  all,  there  were  at  least  six            individuals involved in the fraud: defendant and his brother,            Edward, his brother's employee, Mr. Cavaca, his employee, Mr.            Christopher, defendant's  sister-in- law,  Ms. Ng, and  a Mr.            Hubert.                                             -13-                                          13                      As detailed  in the  PSR, defendant admitted  to at            least  one  instance in  which  he  directed  the actions  of            another in furtherance  of the fraud.  In his  own version of            the events relating to a fraud in which his sister-in-law was            involved,   he states that, "I told her what she should do; I            told  her  to bring  her  car  to my  shop  and  to tell  her            insurance company that she had hit a parked car.  I also told            her to tell her  insurance company that the  car she had  hit            was at [my brother's auto body shop]."                       In  deciding to  apply the  three-level enhancement            for managerial  status, the  district judge stated,  "I think            that  what is most telling  in this case  are the Defendant's            own words .  . .  where the Defendant  himself describes  his            directions  to  Ms. Ng."    The  court expressly  found  that            "beyond  being  a   willing  participant,  he  directed   the            transactions which make up  the underlying schemes to defraud            the various victims in this case."                                        Discussion                                      Discussion                                      __________                      Utilizing  the  bifurcated   review  process,   see                                                                      ___            Mitchell,  85 F.3d at 813, we first examine the legal meaning            ________            and scope  of the  Guideline applied  by the  district court.            Sentencing Guideline   3B1.1 mandates  a three-level increase            if "the defendant was a  manager or supervisor . . .  and the            criminal activity  involved five or more  participants or was            otherwise  extensive."  U.S.S.G    3B1.1.  The plain language                                         -14-                                          14            of  the  Guidelines  requires  that  a  two-step  process  be            employed  when   determining   the  applicability   of   this            enhancement.   First, the  criminal scheme  must be  found to            have five  or more participants or  be "otherwise extensive."            Id.  Second, the defendant must  be found to have managed  or            ___            supervised the scheme.   See United States v. Joyce,  70 F.3d                                     ___ ______________________            679, 682 (1stCir. 1995), cert. denied, 116S. Ct. 1556 (1996).                                     _____ ______                      As  an  initial  matter,  we note  that  the  first            requirement  under this  Guideline  has been  met.   The  PSR            conclusively shows  that there  were six participants  in the            scheme.1   Defendant does not challenge  the district court's            determination  on  this  issue.    The  crux  of  defendant's            contention  lies  in    the  district  court's  finding  that            defendant was a manager or supervisor of the illegal scheme.                      The  legal meaning  and  scope of  the "manager  or            supervisor"   role  under  the   Guidelines  has  been  given            considerable attention by this court  in recent years.   See,                                                                     ___            Cali, 87 F.3d at  576-79.  Our decisions are  consistent: "we            ____            have  required 'some  degree  of  control  or  organizational            authority  over  others'  to  support  a    section  3B1.1(b)            adjustment."   Id.  at  578 (citation  omitted).   Therefore,                           ___            "[m]anagerial status .  . . attach[es]  if there is  evidence            that a defendant, in  committing the crime, exercised control                                            ____________________            1.  A participant is a  person who "is criminally responsible            for the commission  of the  offense, but need  not have  been            convicted."  U.S.S.G.   3B1.1, comment n.1.                                         -15-                                          15            over,  or  was  otherwise  responsible   for  overseeing  the            activities  of, at least one other person."  United States v.                                                         ________________            Savoie, 985 F.2d 612, 616 (1st Cir. 1993).              ______                      The  district  court  was  correct  in  relying  on            evidence of direction and control over others when making its            decision to  apply the    3B1.1(b) enhancement.   There  was,            therefore, no mistake  of law in the court's determination of            the scope and legal meaning of   3B1.1(b).                      We turn now to the district court's fact-finding on            the issue.   Because "[t]he determination  of the defendant's            role  in an offense is fact-specific," Joyce, 70 F.3d at 682,                                                   _____            we remain  "deferential to  the sentencing court's  views and            review the determinations made  only for clear error."   Id.                                                                      ___            Examining the  facts as set out  in the PSR, which  detail at            least one instance in which the defendant expressly admits to            managing the actions  of another in furtherance of the fraud,            we can find no basis for assigning error, clear or otherwise,            to the district court's determination.  As the district court            pointed  out, by admitting to  directing Ms. Ng  on the finer            points  of  the  fraudulent  activity,  defendant  in  effect            acknowledged that he managed the  activities of "at least one            other person" in the course of the illegal activity.  Savoie,                                                                  ______            985 F.2d at 616.                       The government "need only prove by a  preponderance            of evidence that an  upward adjustment was warranted," Joyce,                                                                   _____                                         -16-                                          16            70  F.3d   at  682   (citation  omitted),  and   when  making            determinations  regarding a defendant's  role in the offense,            "the sentencing court may look beyond the count of conviction            to the whole of the defendant's pertinent conduct."  Id.   We                                                                 ___            find ample support for the district court's decision to apply            the  three-level  enhancement.     We  note  that  additional            evidence of  managerial status,  above and beyond  that which            the district court expressly relied on at  sentencing, can be            found in the PSR  to support a   3B1.1(b)  enhancement. These            facts include  an admission  that he engineered  a fraudulent            claim  for Mr.  Christopher,    as  well  as  the  fact  that            defendant  owned one  of the  body shops  involved in  such a            sophisticated scheme  of insurance fraud.   Evidence relating            to a defendant's  role in  the offense may  be probative  "by            fair inference."   United  States v. Tejada-Beltran,  50 F.3d                               ________________________________            105, 113 (1st. Cir  1995).  It would therefore  be reasonable            for  the district  court to  have inferred,  from defendant's            ownership  of one  of the  loci of  the criminal  activity, a            certain  degree  of  managerial  control.   It  is  apparent,            therefore, that enhancement by  three levels under   3B1.1(b)            was proper.                                Obstruction of Justice                                Obstruction of Justice                                ______________________                      The   final   matter   in   this   appeal  concerns            defendant's  challenge  to  the  district  court's  two-level            upward  enhancement  under     3C1.1 of  the  Guidelines  for                                         -17-                                          17            obstruction of  justice.  Under the  Guidelines, the sentence            is  enhanced by  two  levels where  "the defendant  willfully            obstructed or  impeded, or  attempted to obstruct  or impede,            the  administration  of  justice  during  the  investigation,            prosecution or sentencing of the instant offence."  U.S.S.G              3C1.1.                        The facts leading the court to apply the adjustment            were  presented  at   the  sentencing  hearing  through   the            testimony of Maureen Ng, the defendant's sister-in-law and an            unindicted  co-conspirator in  the insurance  fraud.   Ms. Ng            testified that  when  she was  first  contacted by  a  Postal            Inspector, defendant advised her "not to speak to him and not            to come to Rhode Island."   She also testified to  the effect            that  defendant  advised her  not  to  answer the  door  when            investigators were trying to serve a subpoena, and throughout            the  investigation  defendant advised  her  "not  to talk  to            anyone."  Finally, she  testified that defendant attempted to            convince  her to  leave  the jurisdiction,  and  "go down  to            Florida", in order to avoid the investigation.                      At sentencing, the district court found as follows:                      Based on the testimony of Ms. Ng, which I                      find to  be credible,  I  find that  this                      defendant    did   engage    in   conduct                      obstructing      or     impeding      the                      administration of  justice by counselling                      and  directly  advising Ms.  Ng  to avoid                      grand  jury  subpoenas, which  were being                      served    in    connection    with    the                      Government's    investigation    of   the                      insurance  fraud  scheme  to  which  this                                         -18-                                          18                      defendant has entered  a plea of  guilty;                      that  Ms.  Ng's   acquiescence  and   the                      Defendant  telling  her   to  avoid   the                      subpoenas,   hindered   the  Government's                      investigation for a  period of time while                      she,  herself, admits  to hiding  her car                      and   not  going   in   her   house   and                      essentially   avoiding  service   of  the                      subpoena  as she  was directed  to  do by                      this Defendant.            Tr. at  71.   Defendant challenges this  finding, basing  his            appeal on  (i) the lack of evidence of any threat against the            witness, and (ii)  the court's failure  to take into  account            additional testimony  by Ms.  Ng which, in  defendant's view,            would counsel against a   3C1.1 enhancement.                                      Discussion                                      Discussion                                      __________                      Little needs to be said regarding the legal meaning            of    3C1.1.  The language of  the Guideline is clear enough;            it  applies  where the  defendant  intentionally impedes,  or            attempts  to  impede,  the   investigation  of  an   offense.            Culpability under  the Guideline  is also applicable  where a            defendant causes,  or attempts  to cause, the  obstruction of            justice by a third  party.  The Application Notes  state that            "[u]nder this  section, the defendant is  accountable for his            own  conduct  and  for conduct  that  he  .  . .  counselled,            commanded,  induced, procured, or willfully caused."  U.S.S.G              3C1.1, note 7.  Clearly, conduct  such as that described by            Ms.  Ng falls within  the scope of  the Guideline.   The only            remaining basis for  reversal, therefore, is if it  was error            for the district court to rely on Ms. Ng's testimony.                                         -19-                                          19                      "Any  credibility  assessment  made  at  sentencing            falls within  the  province of  the  district court,  and  it            should  be   respected  on   appeal  unless  it   is  clearly            erroneous."  Joyce,  70 F.3d at  682 (citation omitted);  see                         _____                                        ___            United States v. Indelicato, No. 95-1907, slip op. at 14 (1st            ___________________________            Cir.  Oct.  15, 1996).    We find  no error  in  the district            court's  factual  determination  that   defendant  obstructed            justice.   The evidence  presented by Ms.  Ng wholly supports            the district court's  determination that defendant obstructed            justice, and there is  nothing in the record to  suggest that            the district court  was somehow  in error in  relying on  the            testimony of Ms. Ng.                        We turn briefly to defendant's specific assignments            of  error.  First, contrary to what defendant argues,   3C1.1            does  not require the existence of threats in order to apply.            A court may find  that defendant "obstructed  or  impeded" an            investigation,  without  resorting  to  threats  to  obtain a            witness's cooperation.  The  Application Notes are plain that            a  wide range of conduct  will suffice to  properly enhance a            sentence  for obstruction of justice.  U.S.S.G.   3C1.1, note            3a.                        Second,  defendant argues  that the  district court            erroneously ignored  testimony  suggesting that  he  was  not            instructing Ms. Ng to obstruct the investigation or  to avoid            the service of a subpoena, but rather, merely advising her of                                         -20-                                          20            her right to preserve her Fifth Amendment right against self-            incrimination.  But the  obstruction of justice adjustment is            supported  by actions  of the  defendant irrespective  of any            advice  about rights  under the  Fifth Amendment.   Defendant            advised  Ms. Ng not to  answer the door  for the investigator            trying to serve the subpoena and to go to Florida in order to            avoid the  investigation.  Because "[t]he  facts constituting            obstruction of  justice for sentencing purposes  need only be            established  by  a  preponderance  of  the evidence,"  United                                                                   ______            States  v.  Thomas,  86  F.3d 263  (1st  Cir.  1996)(citation            __________________            omitted), defendant's challenge to the enhancement fails.                      Affirmed.                      Affirmed.                      _________                                                                                         -21-                                          21
