UNITED STATES of America, Appellant, v. Alan R. LANGE, Appellee.
No. 89-2588SI.
United States Court of Appeals, Eighth Circuit.
Decided Nov. 2, 1990.
708 F.2d 707
Submitted May 15, 1990.
The United States did not know, and there was no reason that the United States should have known, of the momentarily defective condition in the detachment of the ladder. When there is no notice of unsafe activities, there can be no finding of liability under the Illinois Structural Work Act. See Phillips, supra. The district court‘s finding that the United States willfully allowed the defective condition which caused the accident to occur is clearly erroneous because it does not apply to the defect in use which caused Savic‘s accident. From our review of the record, we are unable to ascertain any willfulness on the part of the United States in allowing the existence of the defective condition which caused Savic‘s injury. No act or omission of the United States was a proximate cause of Tomislav Savic‘s injuries, but clearly, the proximate cause of the accident was the detachment of the ladder by Savic himself, or his co-worker, with the government‘s inspectors nowhere near the scene.
III.
CONCLUSION
“This is [another] one of those relatively rare cases in which we are left with a ‘definite and firm conviction’ ... that the district judge erred in a finding of fact.” Louis Vuitton S.A. v. Lee, 875 F.2d 584, 589 (7th Cir.1989) (citations omitted). A finding is clearly erroneous when, although there may be some evidence to support it, “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). The district court judge, rather than relying upon the evidence in the trial record, relied on his own personal experience regarding the course of events which led to Tomislav Savic‘s fall and his subsequent injuries. We are of the opinion that the trial judge‘s interpretation of the evidence at trial fails to support the judge‘s findings dealing with the cause of the accident, while the true proximate cause of the accident was abundantly clear from the trial record. We hold that the United States is not liable under the Illinois Structural Work Act for the injuries Tomislav Savic received as a result of the fall from the ladder at Great Lakes Naval Base. The judgment against the United States is REVERSED.
Peter W. Berger, Des Moines, Iowa, for appellee.
Before McMILLIAN and ARNOLD, Circuit Judges, and HEANEY, Senior Circuit Judge.
ARNOLD, Circuit Judge.
On June 22, 1989, Alan R. Lange pleaded guilty to theft of government mail by a postal employee, in violation of
Lange was a mail handler with the United States Postal Service from May 1982 to December 1988. He dealt with express and certified mail one day a week. After cash was found to be missing from express and certified mail on the days Lange handled that mail, postal inspectors confronted Lange and found stolen cash and mail on his person. As part of an agreement with the government, Lange pleaded guilty to stealing $70 from an express letter. Lange also entered into a Stipulation of Facts in which the government claimed that Lange opened numerous other letters and stole a total of $645. Lange maintained in the Stipulation of Facts, and at the plea hearing, that he stole only $90 from three pieces of mail.
A Presentence Report, prepared by the United States Probation Office, concluded that Lange stole the $645 alleged by the government. In a filing attacking the findings in the Presentence Report, Lange repeated his claim that he took only $90. He made the same statement under oath at the time of his guilty plea. At sentencing, however, Lange confessed to the Court that he had lied about the extent of his thefts, and he admitted responsibility for the additional thefts which he had previously denied. Lange had lied earlier, he said, in order to minimize his sentence under the Sentencing Guidelines. Tr. 91-92.
The government requested that Lange be assessed an additional two points under the Sentencing Guidelines for obstruction of justice, pursuant to
We believe it was error for the District Court not to assess the additional points for obstruction of justice.
We do not hold that a two-level increase for obstruction of justice is automatically required anytime a defendant lies during an investigation or prosecution. Rather, the falsehood must be material. The Application Notes to
Lange relies on Application Note 1 to
This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant‘s denial of guilt is not a basis for application of this provision.
We read the phrase “denial of guilt” to refer to a defendant‘s constitutional right to put the government to its proof by pleading not guilty to the offense charged. A defendant who initially pleads not guilty and then changes his plea, admitting guilt under oath, may not be assessed the two-level enhancement on the theory that his false not-guilty plea was an obstruction of justice. Moreover, a defendant faced, as Lange was, with allegations of conduct outside the offense charged that would enhance his potential penalty under the Guidelines has a right to assert his Fifth Amendment right not to incriminate himself, or simply to stand mute. That is not what Lange did. He deliberately lied, both to the Probation Office and under oath in open court, knowing that the truth would adversely affect his status under the Guidelines. There is no constitutional right to lie.
The government also argues that the District Court erred in not enhancing the offense level for abuse of a position of public trust,
The District Court refused to apply the abuse-of-public-trust enhancement because
The question then remains whether the thefts committed by Lange were an abuse of a position of public trust. The Application Notes to
In sum, the District Court erred by not adding a two-level enhancement for obstruction of justice, pursuant to
HEANEY, Senior Circuit Judge, dissenting.
We should affirm the district court. The sentence imposed by the district court is consistent with the broad purposes of the Sentencing Reform Act and the Guidelines. It fully protects society and fulfills the stated goals of the Sentencing Commission. Furthermore, it shows a sensitivity on the part of the district judge which is entirely appropriate and should be encouraged. The government never should have appealed this case, and we certainly ought not to reverse it. If the majority opinion in this case is permitted to stand, this court will be sending a message to every district court judge in the circuit that when it comes to sentencing, you are to leave common sense at the door and apply the Guidelines in a totally mechanical way. Neither the Congress nor the Sentencing Commission intended that this should be the case.
Under the district court‘s application of the guidelines to this case, Lange had an offense level of 7 with a guideline range of 1-7 months imprisonment, for which the district court properly could substitute a sentence of probation and intermittent or community confinement. See
I. Obstruction of Justice
Neither the government nor the United States Probation Office believed Lange‘s stipulation during plea negotiations that he had stolen only $90 from express or certified mail. The government steadfastly maintained that the actual amount of Lange‘s thefts was $645, and agreed with the presentence investigation report‘s recommendation that Lange‘s offense level be increased one level based on a total loss to victims in this amount. The government and the probation office also agreed that Lange owed restitution of $645, despite Lange‘s assertion to the contrary. The government thus challenged the veracity of Lange‘s stipulation regarding the amount of his thefts throughout the plea agreement and presentence investigation process.
The government never suggested that Lange‘s apparent lies constituted an attempt to obstruct justice or merited a two-level enhancement, however, until Lange recanted them before sentencing. The government thus sought an enhancement for obstruction of justice only when, and because, Lange ceased the allegedly obstructive activity. Lange, in turn, will have his sentence enhanced from one of probation to one which must include imprisonment not because he misrepresented the amount of his thefts, a fact which the government recognized all along, but because he came forward with the truth before sentencing rather than adhering to his earlier story. Surely neither Congress nor the Sentencing Commission intended the enhancement for obstruction of justice to have such an effect.
The majority opinion demonstrates that Lange‘s misrepresentations technically fall within the definition of “wilfully obstructing or impeding proceedings” in guideline section 3C1.1. Application of the obstruction enhancement under the circumstances of this case, however, elevates form over substance.
Lange, a forty-one year old veteran with no prior criminal record, voluntarily admitted lying about the extent of his thefts and that he had done so in hope of receiving a shorter sentence. Moreover, he made this admission prior to sentencing, insuring that his lies would not have the effect he originally desired. It was only at this point in the proceedings, a point at which Lange‘s lies could no longer have any possible obstructive effect, that the government sought an increase in Lange‘s offense level for obstruction of justice.
The district court carefully considered these circumstances in determining that Lange‘s actions did not warrant the obstruction enhancement. The sentence imposed, which included a one-level increase to reflect the $645 theft, four years probation with two months of community confinement, fifty hours of community service, and payment of $645 in restitution, adequately reflects the seriousness of the offense, promotes respect for the law, provides just punishment, affords deterrence to criminal conduct, and protects the public from further crimes by Lange. See
As noted earlier, the majority‘s insistence on mechanical adherence to the letter of
Given these considerations, we should not lightly vacate the district court‘s reasoned and reasonable sentence. We should be especially reluctant to do so where, as here, a remand for resentencing will result in the incarceration of an individual with no prior criminal record primarily because he finally chose to admit the truth about his offense.
II. Abuse of Position of Public Trust
The district court also properly declined to enhance Lange‘s offense level for breach of a position of public trust. The majority correctly notes that neither the base offense level nor specific offense characteristic for theft take into account abuse of public trust. The majority errs, however, in concluding that Lange‘s status as a mail handler “contributed in some substantial way to facilitating” his thefts rather than merely providing him with “an opportunity that could as easily have been afforded to other persons.” See
Application Note 1 to section 3B1.3 illustrates the distinction between a position of trust which substantially facilitates a crime and one that merely provides an opportunity for crime with the example of “embezzlement by an ordinary bank teller,” to which the adjustment does not apply. The majority attempts to distinguish Lange‘s position from that of a bank teller by describing how his enhanced opportunity to steal from express and certified mail substantially facilitated his crime. A comparison of Lange‘s opportunities for theft with those available to the average bank teller, however, reveals no meaningful difference between the two positions.
A bank teller‘s position provides certain access to large amounts of cash on a daily basis. Monitoring of cash transactions by the bank and its customers limit somewhat the teller‘s opportunities for undetected theft. Lange‘s position as an express and certified mail handler provided him with occasional access to uncertain quantities of cash and valuables one day each week. Monitoring of the valuable contents of the mail by its senders and recipients limited Lange‘s opportunities for undetected theft. Thus, Lange‘s job as a mail handler merely provided an opportunity for crime that was also afforded to every other handler of express and certified mail, much as a bank teller‘s job provides an opportunity for crime that is also afforded to every other bank teller. Lange‘s access to express and certified mail no more “substantially facilitated” his thefts therefrom than a bank teller‘s access to bank deposits would substantially facilitate his embezzlement of those funds.
Lange‘s thefts from the mail differ in no meaningful way from embezzlement by an ordinary bank teller, and do not merit the enhancement for abuse of a position of public trust. Accordingly, I dissent.