United States v. Terazze Taylor

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30040

Plaintiff-Appellee,

D.C. No.

v. 2:12-cr-00195-

JLR-4

TERAZZE A. TAYLOR,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted

February 6, 2014—Seattle, Washington

Filed April 18, 2014

Before: Raymond C. Fisher, Ronald M. Gould and

Morgan B. Christen, Circuit Judges.

Opinion by Judge Fisher

2 UNITED STATES V. TAYLOR

SUMMARY*

Criminal Law

Affirming a sentence for defrauding the Veteran’s

Administration, the panel held that a defendant who willfully

provides materially false testimony at a bond revocation

hearing may be subject to an enhancement for obstruction of

justice under U.S.S.G. § 3C1.1.

The panel held that the defendant’s testimony to the

magistrate judge during a bond revocation hearing was

material as defined in the commentary to § 3C1.1, that a

specific finding of “perjury” was not required, and that the

district court made sufficient findings to support the

enhancement as an attempt to obstruct or impede the

administration of justice with respect to prosecution “of the

instant offense of conviction.”

COUNSEL

Sharon J. Blackford (argued), Sharon Blackford PLLC,

Seattle, Washington, for Defendant-Appellant.

Helen J. Brunner (argued), S. Kate Vaughan, Assistant United

States Attorneys, Jenny A. Durkan, United States Attorney,

Seattle, Washington, for Plaintiff-Appellee.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. TAYLOR 3

OPINION

FISHER, Circuit Judge:

Defendant Terazze Taylor appeals the district court’s

imposition of a two-level enhancement for obstruction of

justice under U.S. Sentencing Guidelines Manual (U.S.S.G.)

§ 3C1.1, based on Taylor’s false and misleading testimony at

a bond revocation hearing in this case. We hold that Taylor’s

willful, false statements during the bond revocation hearing

warranted enhancement as an attempt to obstruct or impede

the administration of justice with respect to the prosecution

“of the instant offense of conviction.” Id. We therefore

affirm his sentence.

I

In July 2012, Taylor was arrested for submitting

fraudulent travel vouchers to the Veteran’s Administration

(VA). A veteran of Operation Iraqi Freedom, Taylor

frequently traveled to a VA Medical Center for various

medical appointments. He sought reimbursement for his

travel expenses, but intentionally gave an incorrect address on

the form, thereby increasing the amount of each

reimbursement by $165. He also sought reimbursement for

days he did not attend any medical appointments. In total,

Taylor fraudulently obtained approximately $16,599 in travel

reimbursements from the VA.

After his arrest, Taylor was released on a pretrial

appearance bond with the standard condition that he not

commit a further federal, state or local crime. Shortly

thereafter, however, Taylor was charged with domestic

violence for allegedly assaulting his ex-girlfriend, Jovan

4 UNITED STATES V. TAYLOR

Ness. The state prosecutor dismissed the charges without

prejudice, but Taylor was arrested on a federal warrant for

violating a condition of his appearance bond in this case,

prompting a pretrial bond revocation hearing.

At the hearing, the government presented the testimony

of an independent eyewitness, two police officers and

Taylor’s probation officer on the merits of the domestic

violence charges. The independent witness testified that she

observed Taylor physically assaulting Ness and pulling her

forcefully from her vehicle while Ness screamed for

assistance. One of the police officers testified that Ness told

him Taylor had assaulted her. Another police officer who

spoke with Taylor after the incident testified that Taylor

denied having had any interaction with Ness at all that day.

According to the probation officer, however, Taylor’s GPS

monitoring bracelet indicated that he was within 10 feet of the

location of the alleged assault for approximately three

minutes at the time in question.

Taylor testified on his own behalf, as did Ness, the

alleged victim. Ness denied that Taylor had assaulted her,

claiming instead that Taylor was attempting to stop her from

driving her car, as she was heavily medicated for pain at the

time of the incident. She also denied telling the police she

had been assaulted, although she acknowledged that she had

obtained a restraining order against Taylor the day of the

incident. For his part, Taylor denied physically assaulting

Ness but did admit to being at the scene of the incident

briefly, testifying that he was attempting to stop Ness from

driving her vehicle while medicated.

At the conclusion of the hearing, the magistrate judge

found by a preponderance of the evidence that Taylor had

UNITED STATES V. TAYLOR 5

committed the assault. The judge credited the testimony of

the independent witness and the two officers, and found that

Ness “did not, in appearance to me, seem that she was

completely testifying candidly, and her denials to me were

not believable.” The judge also found that Taylor’s testimony

was contradicted on key points by that of the officers.

Without further commenting on Taylor’s veracity, the

magistrate judge revoked Taylor’s appearance bond.

Taylor ultimately pled guilty to defrauding the VA. At

sentencing, relying on the magistrate judge’s findings and a

recording of Taylor’s testimony at the bond hearing, the

district court imposed a two-level enhancement for

obstruction of justice under section 3C1.1.1 Taylor now

challenges the enhancement.

II

Section 3C1.1 provides for a two-level increase in the

offense level if:

(1) [T]he 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

1

The district court concluded in the alternative that the obstruction

enhancement could be based on telephone calls Taylor made to two

women while he was incarcerated at the federal detention center, urging

them to convince Ness to try to “fix this situation.” Because Taylor’s

testimony at the bond revocation hearing was sufficient to support his

enhancement for obstruction, we do not address this alternative ground.

6 UNITED STATES V. TAYLOR

defendant’s offense of conviction . . . or (B) a

closely related offense . . . .

U.S.S.G. § 3C1.1. Conduct that may trigger this

enhancement includes “committing, suborning, or attempting

to suborn perjury” or “providing materially false information

to a judge or magistrate judge.” Id. § 3C1.1 cmt. n.4(B), (F).

The district court imposed a two-level increase based on

what it found to be Taylor’s false testimony at the bond

revocation hearing. It reasoned that part of the prosecution of

the underlying offense of conviction involved a determination

of whether Taylor should “be detained or should . . . not be

detained,” and an “outright falsehood during that detention

period” is “part of [that] process.” We review de novo the

“district court’s characterization of [Taylor’s] conduct as

obstruction within the meaning of Section 3C1.1,” and we

review its factual findings for clear error. United States v.

Shetty, 130 F.3d 1324, 1333 (9th Cir. 1997).

Taylor argues that a two-level increase for obstruction of

justice is unwarranted under section 3C1.1, because his

statements at the bond revocation hearing were not related to

the “instant offenses of conviction” for defrauding the VA, or

any relevant conduct with respect to those offenses. In

Taylor’s view, his testimony concerning the alleged domestic

violence incident had no potential to impede the investigation

or disposition of the underlying federal offenses because his

custodial status was not related to the substance of his federal

charges.

We are unpersuaded by Taylor’s arguments, because his

restrictive reading of section 3C1.1 is contrary to our case law

interpreting section 3C1.1 and the accompanying application

UNITED STATES V. TAYLOR 7

notes. First, the phrase “prosecution of . . . the instant offense

of conviction” in section 3C1.1 is not limited to the

adjudication on the merits of the underlying criminal charges;

it also encompasses certain proceedings and procedures

collateral to that adjudication. As the district court

recognized, whether a defendant warrants pretrial detention

is an integral part of any federal prosecution. A judicial

officer must make an initial determination of whether the

accused shall be released before trial, 18 U.S.C. § 3142(a), or

if detention is required because “no condition or combination

of conditions will reasonably assure the appearance of the

person as required and the safety of any other person and the

community,” id. § 3142(e)(1). In making this determination,

a judicial officer is guided by the work of pretrial services

officers, who must obtain “information pertaining to the

pretrial release of each individual charged with an offense.”

Id. § 3154(1). We have therefore held that lying to pretrial

services officers, conduct that can potentially impede this

inquiry, may warrant the obstruction enhancement under

section 3C1.1. See United States v. Magana-Guerrero, 80

F.3d 398, 400–01 (9th Cir. 1996); United States v. Benitez, 34

F.3d 1489, 1497 (9th Cir. 1994) (upholding obstruction

enhancement for providing false information to a pretrial

services officer because it “impeded the investigation and

prosecution” of the underlying offense).

It follows that a bond revocation hearing is also part of

the prosecution of a federal offense, as Taylor’s case

demonstrates. At the bond revocation hearing, the magistrate

judge had to determine whether Taylor should be detained

pending his federal trial based on the alleged domestic

violence crime, taking into account the same factors that

undergird an initial detention determination. See 18 U.S.C.

§ 3148(b). Taylor’s false statements to the magistrate judge,

8 UNITED STATES V. TAYLOR

who had to take evidence and make credibility findings in

making her determination, were an attempt to influence the

outcome of the revocation hearing and thus obstruct “the

administration of justice with respect to the . . . prosecution

. . . of the instant offense[s] of conviction.” U.S.S.G.

§ 3C1.1. The application notes to section 3C1.1 confirm that

Taylor’s conduct qualifies as obstruction, because he

“provid[ed] materially false information to a . . . magistrate

judge.” U.S.S.G. § 3C1.1 cmt. n.4(F).

Second, contrary to Taylor’s argument, his false

statements were also “related to . . . [his] offense[s] of

conviction.” U.S.S.G. § 3C1.1. There is no requirement

under section 3C1.1 “that the obstructive conduct relate

substantively to the offense of which the defendant is

convicted,” so long as the conduct relates to the investigation,

prosecution or sentencing of the underlying federal offense.

United States v. Hernandez-Ramirez, 254 F.3d 841, 844 (9th

Cir. 2001) (emphasis added); see also United States v. Verdin,

243 F.3d 1174, 1180 (9th Cir. 2001) (rejecting the argument

that “false statements about [the defendant’s] identity” cannot

support an obstruction enhancement when the statements lack

a substantive relationship to the offense of conviction);

United States v. O’Dell, 204 F.3d 829, 837 (8th Cir. 2000)

(noting that the Eighth Circuit has “repeatedly upheld an

enhancement under section 3C1.1 where the perjurious

testimony did not go to the underlying charge”); United

States v. Crousore, 1 F.3d 382, 385 (6th Cir. 1993) (“[T]he

test is not whether the false statement was about the actual

crime charged, but whether it was made during the

investigation, prosecution, or sentencing of the ‘instant

offense.’”). Following this principle, we have upheld an

obstruction enhancement when a defendant made false

statements on a financial affidavit to obtain court-appointed

UNITED STATES V. TAYLOR 9

counsel, see Hernandez-Ramirez, 254 F.3d at 843–44, and

when a defendant provided false information, unrelated to the

offense of conviction, to a probation or pretrial services

officer, see Verdin, 243 F.3d at 1179–80; Magana-Guerrero,

80 F.3d at 400–01; Benitez, 34 F.3d at 1497. Under the

proper standard, Taylor’s false testimony during his bond

revocation hearing was related to the prosecution of his

offenses of conviction, supporting an obstruction

enhancement.2

Accordingly, we hold that a defendant who willfully

provides materially false testimony to a judge during a bond

revocation hearing may be subject to a sentence enhancement

under section 3C1.1. See O’Dell, 204 F.3d at 836–37

(upholding a section 3C1.1 enhancement for a defendant who

lied to the magistrate judge during a bond revocation

hearing); see also United States v. Butters, 513 F. App’x 103,

105 (2d Cir. 2013) (“[F]alsely obtaining bail has the potential

to impede the investigation or prosecution of a case . . . .”)

(internal quotation marks and citation omitted); United States

v. Davidson, 417 F. App’x 347, 349–50 (4th Cir. 2011) (per

curiam) (upholding enhancement for obstruction based on the

defendant’s intentional, false testimony during a bond

revocation hearing).

2

The Second Circuit’s decision in United States v. Khimchiachvili, 372

F.3d 75 (2d Cir. 2004), vacated on other grounds sub nom. Berwick v.

United States, 544 U.S. 917 (2005), has no application here.

Khimchiachvili parted ways with this court’s decision in Hernandez-

Ramirez, the Second Circuit holding that making false statements in a

financial affidavit to obtain court-appointed counsel did not trigger an

obstruction enhancement. Id. at 82–83. Even if Khimchiachvili has any

bearing on the issue for decision here, which we doubt, we are bound by

the contrary decision of our court.

10 UNITED STATES V. TAYLOR

Even accepting our interpretation of the sentencing

guidelines, Taylor maintains that an enhancement for

obstruction is not appropriate because he did not provide

“materially” false testimony to the magistrate judge, as

required by application note 4(F). Taylor’s testimony was

material as that term is defined in the commentary to section

3C1.1, however, because Taylor provided “information that,

if believed, would tend to influence or affect the issue under

determination.” U.S.S.G. § 3C1.1 cmt. n.6. The “issue under

determination” was not whether Taylor committed the

charged fraud and conspiracy offenses, but whether his bond

should have been revoked. See Hernandez-Ramirez, 254 F.3d

at 844 (holding that false information in the defendant’s

financial affidavit was material because this information

would tend to affect “whether the magistrate judge found him

qualified for appointed counsel”); Magana-Guerrero, 80 F.3d

at 400 (holding that a lie to a pretrial officer was material

because if “believed, it could have influenced matters such as

his entitlement to bail or his sentence”). Indeed, the Eighth

Circuit upheld the enhancement on facts essentially identical

to those here, rejecting the defendant’s argument that his

perjurious testimony in his bond revocation hearing was not

material. See O’Dell, 204 F.3d at 837 (holding that “the

‘issue under determination’ was whether [the defendant]’s

pretrial release should be revoked”). Because Taylor’s

testimony, if believed, could have affected his custodial status

pending trial, his statements were material under section

3C1.1.

Finally, Taylor argues that absent an explicit finding of

perjury by the magistrate judge, there was no way for the

district court to determine whether Taylor had the required

mens rea for the obstruction enhancement – that he

“willfully” provided false testimony on a material matter.

UNITED STATES V. TAYLOR 11

U.S.S.G. § 3C1.1. We disagree. As long as the district court

made sufficient findings that the defendant acted willfully, a

specific finding of “perjury” was not required to support the

obstruction enhancement for providing false testimony to the

magistrate judge. See id. § 3C1.1 & cmt. n.4(F). Whether

Taylor’s testimony is viewed as committing perjury, see id.

§ 3C1.1 cmt. n.4(B), or providing false information to a

judge, see id. § 3C1.1 cmt. n.4(F), the elements of an

obstruction enhancement here are the same. A defendant

commits perjury for purposes of section 3C1.1 if, while under

oath, he “gives false testimony concerning a material matter

with the willful intent to provide false testimony, rather than

as a result of confusion, mistake, or faulty memory.” United

States v. Dunnigan, 507 U.S. 87, 94 (1993) (citing 18 U.S.C.

§ 1621(1)). Similarly, an obstruction enhancement for

“providing materially false information to a judicial officer

. . . includes a requirement of willful intent to deceive the fact

finder.” O’Dell, 204 F.3d at 836 (quoting United States v.

Molina, 172 F.3d 1048, 1058 (8th Cir. 1999)) (internal

quotation marks omitted).

Under either formulation, “the term ‘willfully’ requires

that the defendant ‘consciously act with the purpose of

obstructing justice.’” United States v. Lofton, 905 F.2d 1315,

1316–17 (9th Cir. 1990) (quoting United States v. Stroud, 893

F.2d 504, 507 (2d Cir. 1990)). Because “inaccurate

testimony or statements sometimes may result from

confusion, mistake, or faulty memory[,] . . . not all inaccurate

testimony or statements necessarily reflect a willful attempt

to obstruct justice.” U.S.S.G. § 3C1.1 cmt. n.2. Therefore,

when a defendant objects to a sentence enhancement for

obstruction of justice on this basis, “a district court must

review the evidence and make independent findings

necessary to establish a willful impediment to or obstruction

12 UNITED STATES V. TAYLOR

of justice, or an attempt to do the same.” Dunnigan, 507 U.S.

at 95.

The district court made sufficient findings here. Although

the magistrate judge did not explicitly find that Taylor lied

under oath, it is clear from the record that she did not believe

Taylor’s testimony, as she concluded that his version of the

incident was contrary to the testimony of the independent

witness and the police officers, whom she credited. The

district court noted that it had listened to a recording of the

hearing and found that Taylor had, “clearly and

unambiguously and under oath,” told “a story” that was

“simply not true, based on the totality of the evidence” in “an

effort to persuade the magistrate that [he] should not be taken

back into custody.” The district court also found that

Taylor’s false statements did not “demonstrate confusion.”

These are sufficient findings to support an obstruction

enhancement, and, “[g]iven the numerous witnesses who

contradicted [Taylor] regarding so many facts on which [he]

could not have been mistaken,” not clearly erroneous.

Dunnigan, 507 U.S. at 95–96; see also Hernandez-Ramirez,

254 F.3d at 843; Magana-Guerrero, 80 F.3d at 400

(upholding a finding of willfulness based on an inference

from the conflicting testimony of the probation officer and

the defendant).

III

For the foregoing reasons, we hold that a defendant who

willfully provides materially false testimony at a bond

revocation hearing may be subject to an enhancement for

UNITED STATES V. TAYLOR 13

obstruction of justice under section 3C1.1. We therefore

affirm Taylor’s sentence.

AFFIRMED.