United States v. O'Brien
870 F.3d 11
| 1st Cir. | 2017Background
- Jane E. O'Brien, a registered securities broker and investment adviser, ran an 18-year fraud scheme, taking clients' funds (mostly elderly women) for personal use and making false/forged statements to conceal it.
- In 2013 she pled guilty in a 2012 case for defrauding one client (RC) and received 33 months; while awaiting that sentencing she was indicted for fraud against three other clients (PN, EG, KD) and later pled guilty to most counts in the second indictment.
- Recorded calls from jail show O'Brien telling a victim's attorney she wanted the victim "paid back" and suggesting the victim’s cooperation with the U.S. Attorney could affect repayment; she also arranged payments via her brother to some victims while incarcerated.
- The PSR recommended two two-level enhancements: obstruction of justice under U.S.S.G. § 3C1.1 (for attempting to influence a witness) and vulnerable-victim under U.S.S.G. § 3A1.1(b)(1) (victims were elderly, frail, had health problems, trusted O'Brien).
- The district court applied both enhancements and sentenced O'Brien to 45 months in the second case, to run consecutively to the earlier 33-month term (total 78 months), which was the bottom of the combined advisory Guidelines range.
- O'Brien appealed, arguing the obstruction enhancement was barred by res judicata/collateral estoppel and unsupported by willful intent; the vulnerable-victim enhancement was improper or duplicative with the securities-adviser enhancement; and the overall sentence was substantively unreasonable.
Issues
| Issue | O'Brien's Argument | Government's Argument | Held |
|---|---|---|---|
| Obstruction-of-justice enhancement under § 3C1.1 | Conversations with a victim's attorney do not show willful intent to obstruct; prior sentencing treatment precludes relitigation (res judicata/collateral estoppel) | Recorded statements and directed payments show attempt to influence a victim (via counsel) not to cooperate; enhancement was not previously decided | Affirmed: district court reasonably inferred willful attempt to influence a witness; no preclusion barred consideration |
| Whether statements to a victim's attorney can support § 3C1.1 | Attorney context negates obstructive intent; attorney required to warn that comments could be obstructive | Attempting to influence a witness indirectly (through counsel) fits § 3C1.1; no special protection for victim’s counsel | Affirmed: indirect communications through counsel may constitute obstruction; no requirement that counsel warn defendant |
| Vulnerable-victim enhancement under § 3A1.1(b)(1) | Victims were not unusually vulnerable (college-educated, chose to invest); enhancement double-counts with § 2B1.1(b)(19)(A) (investment-adviser enhancement) | Victims’ age, health, dependency, and close personal trust made them unusually susceptible; vulnerability and adviser-role enhancements address different concerns | Affirmed: victims were unusually vulnerable; enhancement is not impermissibly duplicative with the investment-adviser enhancement |
| Substantive reasonableness of bottom-Guidelines consecutive sentence | Sentence is excessive given circumstances | Sentence justified by serious, repeated fraud on vulnerable friends and deterrence; within Guidelines | Affirmed: sentence within properly calculated GSR and rests on a plausible sentencing rationale; not an abuse of discretion |
Key Cases Cited
- United States v. Aker, 181 F.3d 167 (1st Cir.) (district judge need not make detailed findings if record supports obstruction finding)
- United States v. Monell, 801 F.3d 34 (1st Cir.) (upholding § 3C1.1 where defendant attempted to persuade others to testify falsely)
- United States v. Pol-Flores, 644 F.3d 1 (1st Cir.) (upholding vulnerable-victim enhancement where victim’s age, widow status, and estate difficulties made her susceptible to fraud)
- United States v. Stella, 591 F.3d 23 (1st Cir.) (distinguishing enhancements that focus on defendant’s role from those focused on victim vulnerability)
- United States v. Jones, 778 F.3d 375 (1st Cir.) (sentencing court’s choice among competing reasonable inferences is reviewed for clear error)
- United States v. Ruiz-Huertas, 792 F.3d 223 (1st Cir.) (standard for reviewing substantive-reasonableness challenges to sentences)