United States v. Nygren
933 F.3d 76
| 1st Cir. | 2019Background
- Steven Nygren, CFO of Brooklin Boat Yard, forged at least 63 checks and made unauthorized credit-card charges, stealing over $732,000; charged in federal court with bank fraud, unauthorized device use, and tax evasion.
- After suffering a stroke, Nygren moved for competency proceedings; his retained expert initially found him incompetent, but testing raised concerns about malingering (failed TOMM and VIP tests).
- The Bureau of Prisons (BOP) evaluator concluded Nygren was competent and that he had feigned or exaggerated deficits; Nygren’s expert later concurred that he was competent.
- District court found Nygren competent, accepted guilty pleas, and the probation officer recommended a two-level USSG §3C1.1 obstruction enhancement for deliberate underperformance on objective testing; also recommended denial of acceptance-of-responsibility credit under USSG §3E1.1.
- At sentencing the district court found by a preponderance that Nygren feigned incompetency to skew the process, applied the §3C1.1 enhancement, denied the §3E1.1 reduction, and imposed concurrent terms (95 months on fraud counts) plus restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether feigned incompetency can support a USSG §3C1.1 obstruction enhancement | Government: feigned incompetency is obstructive conduct that can delay or impede proceedings and mislead courts/evaluators | Nygren: feigning incompetency is not covered or materially related; enhancement requires materiality, relation to relevant conduct, or significant obstruction | Court: Yes. Feigned incompetency may support §3C1.1; it is the sort of obstructive conduct the commentary contemplates and need not significantly impede the prosecution to trigger enhancement |
| Whether district court clearly erred in finding Nygren feigned incompetency | Government: expert testimony and objective malingering tests support finding | Nygren: stroke and rehabilitation explain deficits; tests/results insufficient or inconsistent | Court: No clear error. Credibility to district court; objective test results and expert testimony supported finding of malingering |
| Whether materiality is required for feigned incompetency-based enhancement | Government: materiality generally satisfied because competency is always material to tryability | Nygren: false statements must be materially related to the proceeding to trigger enhancement | Court: Materiality not required beyond examples that expressly demand it; if applied, materiality would be met here because competency is inherently material |
| Whether acceptance-of-responsibility credit under §3E1.1 should apply despite obstruction enhancement | Nygren: he accepted responsibility and should get reduction | Government: obstruction enhancement and other conduct (letter shifting blame) show no clear acceptance | Court: No. Obstruction enhancement precludes acceptance credit in ordinary cases; district court did not clearly err in denying the reduction |
Key Cases Cited
- Greer v. United States, 158 F.3d 228 (5th Cir. 1998) (feigned incompetency can mislead evaluators and courts and support obstruction enhancement)
- Dunnigan v. United States, 507 U.S. 87 (1993) (defendant who unlawfully attempts to avoid responsibility is less deserving of leniency)
- Quirion v. United States, 714 F.3d 77 (1st Cir. 2013) (preponderance standard and clear-error review for sentencing factfinding)
- Batista v. United States, 483 F.3d 193 (3d Cir. 2007) (affirming feigned incompetency finding and enhancement where defendant manipulated evaluations)
- Bonnett v. United States, 872 F.3d 1045 (9th Cir. 2017) (per curiam) (feigned incompetency may warrant obstruction enhancement)
- Wilbourn v. United States, 778 F.3d 682 (7th Cir. 2015) (attempt, not success, suffices for obstruction enhancement)