United States v. Nygren
Opinion
This sentencing appeal poses a question of first impression in this circuit: may feigned incompetency comprise the basis for an obstruction-of-justice enhancement and, thus, support an upward offense-level adjustment under USSG § 3C1.1 ? We answer this question in the affirmative, reject the defendant's other assignments of error, and affirm his sentence.
I. BACKGROUND
We start by rehearsing the relevant facts and travel of the case. During the summer of 2014, defendant-appellant Steven Nygren was hired as the chief financial officer of Brooklin Boat Yard (the Boatyard), a closely held corporation located in Brooklin, Maine. Almost immediately, he began fleecing his new employer: in little more than a year, he forged at least 63 checks, totaling over $732,000, and deposited the proceeds into an account that he controlled. During the same time span, he also racked up more than $83,000 in unauthorized purchases on the Boatyard's credit cards. Some of the money was spent on personal expenses and the rest was invested in a store owned by the defendant.
Discovering that the Boatyard's coffers had been depleted, the Boatyard's owner notified authorities of his suspicion that the defendant had been forging checks. In a surreptitiously recorded conversation with the owner on September 13, 2015, the defendant admitted to stealing money. The defendant then went on the offensive, circulating a letter at his store, which stated that "there are at least 2 sides to every story" and that "nothing is ever as it *80 seems." The letter also accused the Boatyard's management of misspending and of paying "hush up money" to women.
Three days after the surreptitiously recorded conversation, law enforcement officers executed both arrest and search warrants at the defendant's home. In due course, a federal grand jury sitting in the District of Maine charged the defendant with 63 counts of bank fraud,
see
On August 25, 2016, the defendant - who had suffered a stroke four months earlier - appeared before a magistrate judge for initial presentment. Noting that the defendant's medical condition and motion to obtain a competency evaluation combined to raise a question of competency, the magistrate judge deferred the matter for 60 days. At his postponed arraignment on October 24, 2016, the defendant pleaded not guilty to all counts and indicated that he planned to file a motion for a competency hearing.
See
The government objected to the motion for a competency hearing. It pointed out, among other things, that the defendant had performed poorly on two tests administered by the defendant's expert to detect malingering: the test of memory malingering (TOMM) and the validity indicator profile (VIP), the latter being "designed to identify valid and invalid responding." Based on his extremely low scores on these tests, the expert's report warned that the defendant might have been exaggerating his memory difficulties. The district court nonetheless overruled the government's objection and granted the defendant's motion for a competency hearing. The court ordered, though, that the defendant continue his rehabilitation and undergo a second competency evaluation at a government facility.
The second competency evaluation was conducted at a federal Bureau of Prisons (BOP) facility in February and March of 2017. The BOP evaluator concluded that the defendant was legally competent to stand trial - a conclusion based in part on her assessment that the defendant had applied insufficient effort during the examination process, resulting in feigned or exaggerated cognitive limitations consistent with malingering. The evaluator began by administering the Minnesota Multiphasic Personality Inventory - Second Edition, a test which includes "validity scales designed to detect random responding as well as attempts by an examinee to distort results in a positive or negative direction." The defendant's results on these validity scales, she concluded, were consistent with the exaggeration of brain injury, cognitive dysfunction, and disability. Then - after the defendant had once again failed the same two malingering tests earlier administered by his own retained expert - the BOP evaluator terminated her examination, *81 stating that the defendant's results on those three tests "would serve to invalidate any measures of cognitive functioning." With respect to the TOMM, the evaluator specifically found that the defendant's "scores were significantly below those that would be expected even of individuals presenting with the most severe effects of traumatic brain injury." She also specifically found that the defendant's self-described memory deficits surrounding the circumstances of his alleged crimes were "inconsistent with any known memory functions." The defendant was then re-examined by his own expert, who concurred with the conclusion that the defendant was legally competent.
In the wake of these reports, the defendant sought to withdraw his request for a competency hearing and to change his plea. The district court, unwilling to accept the defendant's stipulation to his competency, said that it would conduct a colloquy and make findings on the defendant's competency before considering the defendant's proposed change of plea. At a combined competency and change-of-plea hearing, see Fed. R. Crim. P. 11, the court found the defendant legally competent and accepted his guilty plea to all counts.
But that was not the end of the brouhaha over competency. In the initial presentence investigation report (PSI Report), the probation officer recommended a two-level enhancement for obstruction of justice, see USSG § 3C1.1, premised on the defendant's "systematic, sustained, and intentional under performance on objective testing as part of his evaluations in an effort to present as incompetent to avoid legal culpability." Employing similar reasoning, the probation officer recommended against an offense-level reduction for acceptance of responsibility. See USSG § 3E1.1. Even though the defendant objected to these recommendations, both were maintained in the final version of the PSI Report.
At a presentence conference, the defendant reiterated his objections to the PSI Report and apprised the district court of his desire to offer expert testimony at the disposition hearing. The government responded that it would present its own expert testimony and chronicled additional conduct of the defendant that it viewed as relevant to the disputed recommendations (including circulating the letter at the store). Following the conference, the government filed a sentencing memorandum and the defendant filed a rejoinder.
The district court convened the disposition hearing on May 25, 2018. 1 After hearing the proffered expert testimony and reviewing the relevant materials, the court found that the government had shown by preponderant evidence that the defendant had attempted to obstruct justice through his efforts "to manipulate consciously and deliberately the psychological evaluations in order to skew the justice system in his favor." Accordingly, the court concluded that an obstruction-of-justice enhancement was appropriate. Then, citing the strong inverse relationship between obstruction of justice and acceptance of responsibility, the court found that the defendant had not carried his burden of showing that he qualified for an acceptance-of-responsibility credit. It added that, in any event, the defendant's distribution of the letter (which denied responsibility for the charged crimes and tried to shift the *82 blame to the Boatyard's owner) was inconsistent with acceptance of responsibility.
The applicable guideline sentencing range (GSR), calculated with an enhancement for obstruction of justice and without a credit for acceptance of responsibility, was 87-108 months. The district court proceeded to sentence the defendant to 95-month incarcerative terms on each of the 63 bank-fraud counts and 60-month incarcerative terms on the two remaining counts, with all sentences to run concurrently. The court also ordered the defendant to pay restitution in the amount of $815,496.27. This timely appeal followed.
II. ANALYSIS
In this venue, the defendant asserts that his sentence was procedurally flawed due to two errors in the calculation of his GSR. "Federal criminal sentences imposed under the advisory guidelines regime are reviewed for abuse of discretion."
United States
v.
Santiago-Rivera
,
A. Obstruction of Justice .
The defendant's principal plaint concerns the district court's determination that an offense-level enhancement for obstruction of justice was warranted. This determination was premised upon the court's finding that the defendant feigned incompetency. The defendant challenges that finding both as a matter of fact and as a matter of law.
"[T]he obstruction-of-justice enhancement rests on the rationale that 'a defendant who commits a crime and then ... [makes] an unlawful attempt to avoid responsibility is more threatening to society and less deserving of leniency than a defendant who does not so defy' the criminal justice process."
United States
v.
Emery
,
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, [the sentencing court should] increase the offense level by 2 levels.
USSG § 3C1.1. The government must prove the applicability of this enhancement by a preponderance of the evidence.
See
United States
v.
Quirion
,
It is a common-sense proposition that "a defendant who feigns incompetency misrepresents his psychiatric condition to his examiners, intending that they will believe him and convey their inaccurate impressions to the court."
United States
v.
Greer
,
Here, the district court specifically found that the defendant had feigned incompetency, *83 engaging in a pattern of malingering "in order to skew the justice system in his favor." In making this finding, the district court acknowledged that the defendant suffered a significant medical episode that temporarily diminished his competency. But even though the defendant exerted effort in his rehabilitation process, initial examination by the defendant's own expert raised a substantial question of malingering, documented by the results of the TOMM and VIP tests. Noting this question, the district court wisely ordered further testing, which yielded similar - but more definitive - results. The court then heard testimony at the disposition hearing from both experts, who elaborated upon their earlier conclusions: the defendant's expert conceded that malingering was at least a possible explanation for the defendant's test scores, and the BOP expert cogently explained her conclusion that the defendant had malingered during both of his competency evaluations.
The district court implicitly found these experts credible. The defendant has pointed to nothing that would permit us to second-guess either this credibility determination or the feigned incompetency finding that flowed from it.
See
id.
at 81 ("Credibility determinations made at sentencing are peculiarly within the province of the district court and will rarely be disturbed on appeal.");
United States
v.
Ruiz
,
We note, moreover, that the district court specifically rejected the defendant's argument that malingering was inconsistent with the defendant's concerted rehabilitation efforts. The court found it not at all implausible that a defendant would attempt to improve his condition through rehabilitation while simultaneously underperforming on tests relevant to his capacity to stand trial. So, too, the court was unswayed by the defendant's suggestion that his selective memory loss was not indicative of malingering but, rather, was indicative of a concern that information shared would be used against him (which the defendant now imaginatively recharacterizes as an unannounced invocation of this Fifth Amendment privilege against self-incrimination). These supportable findings come well within the district court's proper province.
To sum up, we discern no clear error in the district court's actual finding of feigned incompetency.
See
United States
v.
Batista
,
*84
Even though we uphold the district court's factual finding of feigned incompetency, we still have some unfinished business. The court's use of that finding as the foundation of an obstruction-of-justice enhancement raises an important question, as yet unresolved in this circuit: may feigned incompetency comprise the basis for an obstruction-of-justice enhancement and, thus, support an upward offense-level adjustment under USSG § 3C1.1 ? This is a question of law, engendering de novo review.
See
United States
v.
Moreno
,
Although this is a question of first impression, we do not approach it without some guidance. The commentary to the sentencing guidelines, "which we generally treat as authoritative unless it conflicts with federal law,"
United States
v.
Cates
,
The commentary does, however, describe some limitations to the enhancement's application. For instance, a defendant's choice to exercise a constitutional right does not constitute obstruction of justice.
See
The application notes (part of the commentary) do supply a non-exhaustive list of examples of obstructive conduct.
See
We think the application notes make pellucid that obstruction of justice is capacious enough to encompass a broad swathe of conduct.
See
United States
v.
Voccola
,
Against this backdrop, we turn to the case at hand. At the outset, we note that the type of conduct involved in feigning incompetency closely resembles several of the listed examples of obstructive conduct (including attempting to produce a false record and providing materially false information to a judge or probation officer). And since a defendant "is accountable for [his] own conduct and for conduct that [he] ... counseled, commanded, induced, procured, or willfully caused," USSG § 3C1.1 cmt. n.9, it seems logical that he should be held responsible for erroneous conclusions that he has caused another to reach.
See
United States
v.
Owolabi
,
In all events, the guideline commentary strongly suggests that the obstruction-of-justice enhancement should be construed to encompass feigned incompetency. Such conduct is "serious[ ]," USSG § 3C1.1 cmt. n.3, as criminal proceedings are stalled while a defendant is deemed incompetent to stand trial,
see
There is more. Regardless of whether a defendant's pretense of incompetency is successful, a serious risk exists that his efforts will significantly impede or at least delay the progress of his case. After all, a court confronted with a question of legal competency must tread carefully and determine whether the defendant has "sufficient present ability to consult with his lawyer ... [and] a rational as well as factual understanding of the proceedings against him."
Rosenthal
v.
O'Brien
,
This reasoning applies with equal force when a defendant has not spun a fictitious illness from whole cloth but, rather, has willfully exaggerated the symptoms of a genuine illness in a manner intended to influence a competency assessment.
See
Batista
,
Of course, a criminal defendant should not have to fear that raising a genuine question of competency will adversely
*86
affect his case. But we are confident that imposing an obstruction-of-justice enhancement on a defendant who deliberately feigns incompetency in order either to avoid or delay his trial (and, thus, his punishment) will not subject his right to request a competency hearing to an unconstitutional chilling effect.
Accord
United States
v.
Bonnett
,
The defendant struggles to deflect this holding. He argues that his efforts to feign incompetency were not material, that they were not related to any relevant conduct, and that, in any event, his malingering did not significantly obstruct or impede the investigation or prosecution of the charged crimes. These arguments lack force.
The first component of the defendant's asservational array rests on a problematic premise. He posits that his false statements to competency evaluators must cross a materiality threshold before triggering the enhancement. This argument sweeps too broadly: although materiality is mentioned in the application notes and is defined as "evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination," USSG § 3C1.1 cmt. n.6, the application notes do not uniformly demand a finding of materiality. Only a handful of the examples (those related to providing materially false information or statements) contain such a requirement.
See
Here, however, we need not decide whether the materiality requirement applies beyond those delineated examples. Ordinarily, "materiality is a case-by-case issue,"
United States
v.
Biyaga
,
Next, the defendant argues that his obstructive conduct was not related to any relevant conduct. This argument draws its essence from the requirement that obstructive conduct must be "related to ... the defendant's offense of conviction and any relevant conduct." USSG § 3C1.1. In turn, the guidelines define "relevant conduct" as "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detention or responsibility for that offense."
The defendant submits that his actions did not comprise an attempt to avoid responsibility for his crimes because he did not possess the requisite intent.
See
United States
v.
White
,
The defendant's final sally fares no better. He contends that feigned incompetency may comprise obstruction of justice only when it "significantly obstructed or impeded the official investigation or prosecution of the instant offense." This language is derived from one (and only one) of the examples of covered conduct in the application notes: "providing a materially false statement to a law enforcement officer." USSG § 3C1.1 cmt. n.4(G). But that cherry-picked example can be contrasted with two other examples, which specify, respectively, that an obstruction-of-justice enhancement may lie when a defendant provides "materially false information to a judge or magistrate judge" or "to a probation officer in respect to a presentence or other investigation for the court."
In an effort to turn the tide, the defendant counters that the statements at issue here were provided "to someone other than a court officer" and, thus, his conduct bears a closer resemblance to providing false information to a law enforcement officer. So, he says, his conduct could not comprise obstruction of justice within the purview of the enhancement unless it impeded the progress of the case. This construction elevates hope over reason.
Stripped to its essence, the defendant's conduct is more similar to providing materially false information to a probation officer than to a law enforcement officer. Like the role of a probation officer, the role of a competency evaluator is to furnish relevant information to the court. Necessarily, then, statements to a competency
*88
evaluator are made with the defendant's full knowledge that they are likely to impact his court case. In contrast, communications to law enforcement officers face a higher bar because such communications are often "made on the spur of the moment and [may] reflect panic, confusion, or mistake."
Greer
,
That ends this aspect of the matter. We discern no error in the district court's application of the obstruction-of-justice enhancement on the basis of the defendant's feigned incompetency.
B. Acceptance of Responsibility .
The defendant has another string to his bow: he takes aim at the district court's refusal to grant him an offense-level reduction for acceptance of responsibility. See USSG § 3E1.1. The defendant's arrow misses his target.
A reduction for acceptance of responsibility is available "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense."
Our determination that the sentencing court did not err in imposing an obstruction-of-justice enhancement goes a long way toward defeating the defendant's quest for an acceptance-of-responsibility credit. Barring some extraordinary circumstance or set of circumstances, a defendant who has received an obstruction-of-justice enhancement normally is ineligible for an acceptance-of-responsibility credit.
See
USSG § 3E1.1 cmt. n.4. The instances in which the two may go hand in hand are "hen's-teeth rare."
United States
v.
Maguire
,
There are no hen's teeth to be found here. The district court explicitly found that "the case [wa]s not extraordinary," remarking that the defendant's pretended incompetency went "to the very heart of the judicial process." The defendant identifies no error in this finding, instead reiterating his arguments against the court's application of the obstruction-of-justice enhancement in the first place. In any event, this finding easily passes muster under clear-error review 3 and, *89 therefore, the court's refusal to shrink the defendant's offense level for acceptance of responsibility is unimpugnable.
III. CONCLUSION
We need go no further. For the reasons elucidated above, the judgment of the district court is
Affirmed .
Without regard for its earlier commitment to allow the presentation of expert testimony at the disposition hearing, the district court issued a written sentencing order on April 10, 2018. After the defendant objected, the court vacated the written sentencing order. Because that order is a nullity, we do not discuss it further.
Of course, a sentencing court may take any such impediment (or the absence thereof) into account when determining whether to impose the obstruction-of-justice enhancement.
See
Batista
,
This supportable finding makes it unnecessary for us to address the defendant's attack on the district court's alternative finding that the defendant's circulation of the blame-shifting letter at his store indicated that he had not accepted responsibility for his crimes. For the sake of completeness, though, we note that the defendant's argument - that conduct preceding the filing of federal charges cannot be considered when assessing acceptance of responsibility - was not aired below. Since "legal theories not raised squarely in the lower court cannot be broached for the first time on appeal,"
Teamsters Union, Local No. 59
v.
Superline Transp. Co.
,
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Steven NYGREN, Defendant, Appellant.
- Cited By
- 13 cases
- Status
- Published