USA v. Adonis House, 07-4043.   A federal jury convicted Adonis House of two counts of distribution of crack cocaine, and the district court sentenced him to 188 months in prison, followed by five years of supervised release.  On appeal,  contends that the district court improperly made a two-point adjustment to his base offense level under the United States Sentencing Guidelines for obstruction of justice.

A. Whether the District Court Properly Applied a Two-Level Enhancement for Obstruction of Justice Under U.S.S.G. § 3C1.1.


The section requires, first, a finding that the defendant endeavored to obstruct or impede the administration of justice, and that the obstructive conduct related to the offense of conviction or a closely related offense. We review de novo whether the district court made adequate findings to support an enhancement for obstruction of justice, while we review the underlying factual findings for clear error. United States v. Carrera, 259 F.3d 818, 831 (7th Cir. 2001).

According to the testimony of Anita Dunn, an FBI agent who investigated the incident after Brown reported it to the government in this case, Brown approached Avery at the scene of the accident, asked if he was planning on testifying against House, and asked him not to testify.   House disputes this version of events, claiming that he only asked Brown to speak to Avery about whether he would testify because Brown herself was skeptical about Avery's cooperation.

House's best argument in this respect is that Dunn's testimony indicated at two points that Brown did not approach Avery with the intent to intimidate him, and that Brown did not believe that House wanted her to intimidate Avery.

The sentencing guideline does not make attempts to "intimidate" the basis for an enhancement, however, but rather attempts to "obstruct or impede." This is because the obstruction of justice enhancement is designed "not just to prevent miscarriages of justice but also to reduce the burden on the justice system." United States v. Buckley, 192 F.3d 708, 710 (7th Cir. 1999).

The enhancement thus covers not only threats or intimidation but also "otherwise unlawfully influencing" a witness. United States v. Johnson, 46 F.3d 636, 638 (7th Cir. 1995). This circuit has previously held that "unlawfully influencing" a witness means intentionally engaging in conduct "having a natural tendency to suppress or interfere with the discovery of truth." Wright, 37 F.3d 358, 362 (7th Cir. 1994). 

This court's review of the sentencing enhancement thus boils down to the question of whether House intended for Brown to ask Avery not to testify, which itself boils down to the ancillary question of whether the district court had sufficiently reliable evidence of House's intent to justify imposing the sentencing enhancement. This is a factual question that this court reviews only for clear error. We note that the evidence of House's intent was rather thin.

There is thus only hearsay testimony from a single witness, and not the strongest hearsay testimony, on the crucial question of House's intent. Nor was Dunn's testimony, which the district court decided to credit, the strongest case that the government could have put on, given that it was hearsay testimony taken without giving the defense a chance to cross-examine either Brown or Avery about the encounter or, crucially, to cross-examine Brown about House's intent with respect to that encounter.

Nevertheless, this court will only disturb the district court's factual findings when it is "left with the definite and firm conviction that a mistake has been committed." United States v. Christ, 513 F.3d 762, 775 (7th Cir. 2008). While this may not have been the strongest possible case for a sentencing enhancement, this court will not reverse the district court on clear error review merely because it may disagree with its decision.

For the foregoing reasons, the conviction and sentence of the district court are AFFIRMED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

 

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