Wednesday, March 22, 2017

Third Circuit reverses obstruction of justice enhancement where failure to appear for trial was not "willful"

United States v. Kenneth R. Douglas, Docket No. 15-1754 (3d Cir. Feb. 22, 2017)

Defendant Kenneth Douglas was an airport employee who used his position and security clearance to help traffic more than 450 kilograms of cocaine from California to Pittsburgh over the course of 10 months. On the day his trial was set to begin, he failed to appear in court. The next day, he filed a motion for a continuance, claiming he was receiving medical attention for a suspected heart attack at the time his trial was set to begin. He submitted medical records and a doctor's note with his motion. Despite the medical records, the district court found no "solid evidence" that Douglas was suffering from a medical condition that warranted missing court. It's really, the court said, "sort of ambiguous." The district court revoked Douglas' bail and later released him on house arrest with electronic monitoring. Douglas was convicted after trial.

At sentencing, the district court adopted the calculations in the Presentence Report, which included an offense level 38 for more than 450 kilograms of cocaine, a two-level enhancement, under U.S.S.G. §3B1.3, for abuse of position of trust, and a two-level enhancement, under U.S.S.G. §3C1.1, for obstruction of justice, for a total offense level of 44, which is treated as a 43, the maximum offense level under the Guidelines. Douglas faced a Guidelines range of life imprisonment. The district court varied downward and sentenced him to 240 months imprisonment.

On appeal, Douglas challenged the district court's findings on drug quantity, abuse of position of trust, and obstruction of justice. The Third Circuit affirmed on drug quantity and abuse of position of trust, but reversed on obstruction of justice. Regarding drug quantity, the Court found that the testimony of Douglas' co-conspirator, coupled with flight records, telephone records, and bank deposits corroborating that testimony, supported the drug quantity finding. As to the abuse of position of trust enhancement, the Court noted the paramount public importance of airport security and the discretion that comes with security access at an airport. It compared Douglas' role as an airport employee with that of a prison guard, noting that the public places tremendous trust that the people in such positions will not use their positions to circumvent security measures to smuggle contraband into secure facilities like airports or prisons. The Court concluded that "[b]earing in mind the critical importance of airport security, and the expansive nature of Douglas's access to secured areas at SFIA, including the planes themselves, we cannot say that the District Court erred in concluding that Douglas" abused a position of public trust.

Turning to the obstruction of justice enhancement, the Third Circuit concluded that the district court erred in applying the enhancement because there was no evidence that Douglas willfully failed to appear as required by §3C1.1. Douglas provided medical documentation that explained his absence from court. Although the government and court both expressed skepticism at the excuse, the government offered no evidence that Douglas deliberately schemed not to appear in court by feigning illness. Absent such proof, and in light of the medical documentation presented indicating a lack of willfulness, the Third Circuit concluded that the district court erred in applying the enhancement for obstruction of justice. The Court remanded for resentencing because removing the enhancement lowered Douglas' Guidelines range from life imprisonment to 360 months to life imprisonment and was unsure whether the district court's downward variance to 240 months imprisonment would remain the same under the correctly calculated guideline range.

Judge Greenaway concurred in part, but filed a dissenting opinion as to the Court's decision regarding the abuse of position of trust enhancement. Judge Greenaway contended that the plain language of the Application Notes to §3B1.3 specify that only certain acts - those violating positions of trust characterized by professional or managerial discretion and by deference to the defendant's judgment rather than abuse of his access - qualify. Here, Douglas certainly had access, but he owed no fiduciary obligation to the airline, airport, or public, exercised no managerial or professional discretion within his company, and had no authority over someone or something at the airport other than himself. Instead, Judge Greenaway found Douglas more akin to the ordinary bank teller or hotel clerk, whom the Guidelines expressly specify are not covered by the enhancement. As Judge Greenaway noted, "[f]reedom of movement is a form of discretion, but it is not the managerial or professional discretion that is subject to this enhancement." Accordingly, he dissented from the majority's holding on the applicability of this enhancement.

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