*1 Razza, addition, Fessel, In Tourney correctly Robin D. Jordan the district court LLP, York, NY, New appellant’s quantum Sullivan & Cromwell determined that me- Leuba, Sullivan & unjust Thomas Russell Crom- ruit and enrichment claims were LLP, DC, Washington, Appellee. for well by judicata. barred the doctrine of res Girard, 1366, v. See Schattner 668 F.2d GINSBURG, HENDERSON, Before (D.C.Cir.1982). TATEL, Judge. Circuit 36, Pursuant D.C. Circuit Rule disposition will not published. be The
JUDGMENT Clerk is directed to withhold issuance of PER CURIAM. days the mandate herein until seven after appeal This was considered on the rec- any timely resolution of petition for re- ord from the States District United Court hearing petition rehearing en banc. for the District of and on the Columbia 41(b); R.App. See Fed. P. D.C.Cir. Rule parties. briefs filed See Fed. 41. 34(a)(2); P. It R.App. D.C.Cir. Rule 34®. ORDERED AND ADJUDGED 27, 2008,
district court’s of March order be correctly
affirmed. determined appellant’s Federal Arbitration Act
(FAA) untimely claims were under that § statute. See 9 12. Contrary U.S.C. America, Appellee UNITED of STATES assertion, appellant’s the New York stat- v. ute of applicable. limitations was not To sure, BROCKENBORRUGH, case, Nelson be in another FAA this circuit Appellant. interpreted a provision choice of law limitations, a statute of cover where the No. 08-3016. statute of limitations was substantive and jurisdictional Appeals, under the state law United States of named Court provision. the choice of law See Ekstrom District of Columbia Circuit. Health, Inc., 1391, v. Value 9, Argued April 2009. (D.C.Cir.1995). case, however, In this 7, Aug. Decided New York provides law that a statute of jurisdictional limitations is not and not Windy
substantive. Ridge Farm v. Asses- Shandaken,
sor
Town
11 N.Y.3d
864 N.Y.S.2d
(2008); Tanges see Heidelberg also America, Inc., 48, 54-55,
North 93 N.Y.2d (1999)
687 N.Y.S.2d
(“In York, New Statutes of Limitation are
generally procedural considered because
they pertaining are ‘viewed as to the reme- ”) (citation
dy rather than right.’ omit-
ted). Accordingly, the New York statute
of limitations incorporated was not into the
parties’ provision. choice of law
I. A. Brockenborrugh’s appeal relies Because regard- argument measure on an large sufficiency present- evidence ing the trial, must recount that evidence ed at we Roy detail. James died on some When 13, 2004, October he left to his heirs multiunit residential located at N.W., Washington, 1133 6th Street D.C. Although the condition of the de- death, Roy’s location a teriorated after its city’s convention cen- block from the new ter attracted the interest of a number argued Richard K. Gilbert cause Named as the executor of her developers. briefs, appellant. filed the *5 estate, to father’s Katrina Robinson had Pan, Y. Assistant U.S. Attor- Florence prop- decide to do with the rundown what cause, On ney, argued appellee. the erty. Broekenborrugh first met Robinson Jeffrey Taylor, A. U.S. At- the brief were April in visiting property while the McLeese, III, Roy Eliza- torney, and W. Robinson, a According Broekenborrugh, to Trosman, Heffernan, A. beth and Patricia police retired officer who worked as a Attorneys. Assistant U.S. (CSO) Security Officer at the D.C. Court SENTELLE, Judge, and Before: Chief Court, realtor, and his Denise Superior GRIFFITH, Judges. Circuit ROGERS and McLeod, were at the site and asked her During buying property. about the Opinion by for the Court filed Circuit conversation, McLeod told Robinson she Judge GRIFFITH. employee government, was an of the D.C. Opinion concurring part in and Broekenborrugh introduced as a U.S. Mar- dissenting part Judge filed Circuit shal, said, watching “[W]e and have been ROGERS. your get- because we have been property, ting complaints ... about several GRIFFITH, Judge: Circuit things going ... on there.” Trial Tr. 189- jury Broekenborrugh A found Nelson (Oct. 2007). 23, Broekenborrugh told guilty conspiracy of wire fraud and com- “working that he with” the Robinson was fraud, mit wire and the district court sen- (Oct. Marshals, 24, 2007), Trial Tr. 44 U.S. prison. him to On tenced 46 months gold-plated badge, showed her stat- Broekenborrugh contends that the appeal, that he was a officer. ed retired produced at trial was insufficient evidence Robinson told them that once she was that a num- his convictions and executor, officially appointed she would rulings court’s were ber of the district family then decide consult with her sufficiently prejudicial erroneous and exchanged whether to sell. The three argues warrant a new trial. He also numbers, Brock- phone and Robinson told three errors in the district made her enborrugh and McLeod to contact law- For the reasons calculating his sentence. Scull, they if remained interest- yer, David below, reject arguments these set forth we property. On June buying ed affirm convictions told him McLeod called Scull. She and sentence. Marshal Brockenborrugh “U.S. want- called to property, where he found buy property” ed to and could assist Brockenborrugh and McLeod. Brocken- solving problem by squatters created borrugh wearing was his CSO uniform and into who had moved its abandoned units. may also have been wearing his CSO secu- (Oct. 2007). Trial Tr. 131 McLeod also rity badge. According James, to Officer advised that she “monitoring Scull the two they claimed “authority” had over every aspect” property. Id. at 132. property and complained squat- ters needed to be removed. Trial Tr. 33- 8, 2005, September On McLeod filed (Oct. 2007). Brockenborrugh does with the District of Columbia Recorder of deny he was at but claims Deeds a fraudulent deed that purported to McLeod talked to police. convey from Roy James Two investigators from the fire depart- $10,000. her for Because the deed re- ment responded also at the scene. Be- price, flected a nominal sale the District squatters cause the poaching been required $7610, payment additional electricity and creating hazard, a fire they which included a transfer tax and record- declared the property uninhabitable and ing fee based on the assessed value of the ordered squatters to leave. Later that people Two other helped day, bystander called Robinson to report Cynthia McLeod file the deed. Russell that McLeod was hanging around the Roy’s “witnessed” signature James property saying she was the course, new owner. (though, Roy post- did not The caller deed). passed then phone humously sign the LaShawn Lewis McLeod, who told Robinson get- she “was notarized the deed return for $250. *6 (Both ting squatters] [the out” pleaded and would “con- guilty charges related to actions.) (Oct. tact her later, 23, later.” Trial these A Tr. 202 week Brockenbo- 2007). $8804, Wondering why rrugh wrote McLeod a check McLeod at was the property, Robinson approximately one half called her pur- lawyer, of the total Scull. Scull ran line, search, his own price, chase and noted on the memo title dis- covered the fraudulent my “For half of 1133 6th deed App. assigning St NW.” at the McLeod, trial, and, 49. At with the encour- testified he agement Robinson, of “just wrote the check because he called the FBI. wanted to make sure that was [he] included 19, 2005, Robinson, On October wearing thought what legal [he] was a transaction.” wire, an FBI met with Brockenborrugh, (Oct. 2007). Trial Tr. 88-89 He had McLeod, Silbert, Carter, and Nathan who McLeod, asked much do I “[H]ow owe alleged is to be person the that would you?,” at id. and responded, she any purchase finance of the property. “[R]ight now I don’t know what the total During their Robinson, conversation with price going be, but for now I have had members of group the representa- made pay the water and tax ... bill [s]o this tions that implied the was worth- is,” price is what at id. 155-56. less, and Brockenborrugh respon- claimed subsequently agreed McLeod to sell the sibility for the removal of the squatters. property to developer Kenneth Silbert for officer, As a retired he said that he $300,000. lawyer When Silbert’s conduct- had asked a few current officers whom he search, aed title he uncovered the fraudu- keép eye knew to on the property. lent deed. Silbert instructed him not to protection, boasted, This increased he tell Robinson. prevented squatters from reentering 6, 2005, Metropolitan On October neighbors’ Police ended the complaints about Department property’s Officer Israel James was condition. Brockenborrugh property. The document was ments of the squatters had seen that one of the
added said, and the val- respects, “[0]h in several at the courthouse fraudulent him at 105. Rob- App. a real marshal.” was you’re property’s improvements ue of you think interjected, “Oh he didn’t (inhabitable) inson [sic],” id. at listed “$0.00 it,” believe at 106. “He didn’t Id. were?” later faxed a revised con- McLeod 50-51. Brockenborrugh. Id. Brocken- confirmed assuring Roy along tract with a letter correct that he did not borrugh testified by a issues revealed heirs that comment “didn’t occupant because the outstanding property tax- title search were Trial Tr. 174 really phase [sie][him].” Obviously, the letter and water bills. es (Oct. 2007). not mention the fraudulent deed. did McLeod, and Carter Brockenborrugh, meeting FBI a second The convened faced a num- told she also Robinson an undercov- group, during with the which by retaining property. ber of risks Roy, agent posed as “James Jr.” Also er example, they warned her For Robinson, another undercov- present were building. down the squatters might burn Carter, McLeod, and Silbert. agent, er was Brockenborrugh said the situation explained McLeod pass- that each “really, really serious” and because, meeting as “a could not make the the roulette ing day “spinning was like [sic],” “assigned was to a U.S. he Marshall told App. at 117. McLeod Robin- wheel.” judge” day. R. Material Tab 3. The could sue her be- squatters son that the Jr., Roy, agent posing as James stated building contained asbestos cause $200,000 for the that he wanted them ill. She also warned making parties eventually agreed pur- to a “wrong- file a city Robinson that the could $165,000. point, At that price chase a fine on the housing” ful suit and assess Brockenborrugh joined meeting via yet done so because property but had not McLeod told him that speakerphone. Brockenborrugh’s influence. Id. 118— $165,000 asked, Roy” “James wanted 19. go with that?” Id. at we forward “[C]an family Robinson said that her wanted replied, go “I’ll $825,000 reject- *7 McLeod the that.” Id. argued that price ed that out of hand. She nothing and building the itself was worth $99,000
that the land was worth B. $130,000. group The offered Robinson 22, 2007, March By an indictment filed $130,000 her with a con- presented and grand jury charged Brockenborrugh for more informa- tract. Robinson asked (1) crimes: wire and McLeod with five for Brock- buyers except tion about all the (2) 1343; § fraud in violation of 18 U.S.C. enborrugh. stated that she “[knew] She at 137. in conspiracy about Mr. U.S. Marshall Id. to commit wire fraud viola- [sic].” (3) urged 1349; Robinson to act first-degree § tion of 18 U.S.C. check quickly, adding that the §§ would of 22- fraud violation D.C.Code long as he was “still on so (4) 3221(a), -1805; forgery violation of If he did not “do his the mix.” Id. at 143. (5) 22-3241, -1805; §§ ut- D.C.Code at 144. part,” they stop. Id. would tering forged instrument violation of 22-3241, §§ -1805. McLeod later, D.C.Code days McLeod faxed to Robin- Two shortly guilty to each count before pleaded to be an purported son a document that jury The trial and did not take the stand. “Property De- official District of Columbia of wire fraud tail,” Brockenborrugh guilty found which contained fictitious assess-
733 fraud, resulting but stand. offense conspiracy to commit wire The level was him charges. of the other into a acquitted sentencing range which translated Sentencing 46 to 57 months under the trial, made three the district court At Guidelines because The first appeal. relevant to this rulings prior history. no criminal The district attorney, whether concerned Robinson’s court sentenced to 46 Scull, testify could about statements imprisonment months’ two followed during made to him their June McLeod years supervised release. 2005, telephone conversation. The district testimony under Feder- court admitted II. 801(d), provides al Rule of Evidence which hearsay exemption against to the rule appeal, Brockenborrugh On renews his made in co-conspirator for statements of a challenges to district court’s trial and Second, conspiracy. furtherance rulings sentencing argues and also govern- court ruled that the district insufficient jury there was evidence for a question Brockenborrugh ment could engaged he in any conclude fraudulent McLeod, relationship his sexual about jurisdiction have conduct. We to consider prejudicial value of the arguments § these under 28 1291 U.S.C. probative outweigh would not its § and 18 U.S.C. 3742. third, And court re- worth. the district begin with the argument We jury for a Brockenborrugh’s request fused there insufficient was evidence to on find- multiple conspiracies, instruction Brockenborrugh’s convictions. Our review supported by it not the evidence. ing was challenges of such is narrow. We must sentencing, parties agreed At light view the evidence favor most Sentencing 2B1.1 of the section Federal government able “accept to the Guidelines, governs which involv- offenses jury’s verdict if guilty we conclude fraud, applied ing and that Brockenbo- ‘any rational trier of fact could have found 7. See rrugh’s base offense level U.S. beyond elements of the essential crime Sentencing § 2B1.1 Guidelines Manual ” United States doubt.’ reasonable (2007) parties U.S.S.G.]. [hereinafter Branham, (D.C.Cir. F.3d 1273 however, disagreed, over how much the 2008) Arrington, (quoting United States v. increase should (D.C.Cir.2002)). Brocken section, sentence under that which ties a dispute borrugh does that the evidence total defendant’s offense level attempts established two to fraudulently responsible, of loss for which amount he is obtain the located at 6th 2Bl.l(b). § see id. The district court *8 the filing Street N.W.: deed forged that conduct Brockenborrugh’s concluded and the to Roy effort cause the heirs to $200,000 involved intended loss between sell the for an property unreasonably low $400,000, and and thus a warranted price. dispute Nor does he a there was twelve-level increase. Over Brockenbo- get unlawfully. the conspiracy property to objection, rrugh’s the district court also Rather, Brockenborrugh argues that the (1) two applied enhancements: a two-level prove knowingly evidence that did he enhancement abuse of trust because sought Roy to the partici defraud heirs or Brockenborrugh falsely represented that pated conspiracy to To a do the same. a significantly he was U.S. Marshal to (2) fraud, offense; knowing commit wire he must have his and another two- facilitate jus- ly willingly entered into a to level enhancement for obstruction scheme on Brockenborrugh conspiracy, tice because lied the defraud. be convicted of he To forged deed, there is no that agreement into an with evidence must entered have Likewise, to the intent commit wire creation. another with he advised or aided its States v. Alston- fraud. See United person first-degree a commits fraud under (D.C.Cir.2006). Graves, actually defrauds D.C. law if he another view, In the evidence thereby causing person that lose his thought attempt that he “the showed 22-3221(a). § property. Id. The scheme purchase Sixth Street from the ed of 1133 get ultimately was unsuc- property in the same manner progressing heirs was cessful. was That there insufficient evi- a transaction.” Br. of lawful real estate Brockenborrugh dence to convict of these Appellant crimes under D.C. law does not absolve There is disagree. ample
We evidence him of with forged his involvement jury from which the could the record deed counts. under the federal that reasonably Brockenborrugh infer was Brockenborrugh’s knowing participation a the unlawful knowing participant reasonably in the can also in- fraud be begin the property. scheme to obtain To ferred in the attempt from his role second with, jury conclude Brock- could from to secure property Roy from the heirs. forged connection to the deed enborrugh’s Brockenborrugh The evidence shows that a knowingly that entered he scheme falsely represented Robinson that he Roy McLeod to defraud the heirs. This Marshal, was a and Robinson U.S. testified in the inference finds check Brock- led her to believe enborrugh learning McLeod after wrote he influence over had officers she “purchased” See who protecting property were on his App. Although argued at 49. defense behalf. also suggested to did not think this Robinson if was property not sold was final payment, jury could have cease, protection to his group, police would reasonably found that Brockenborrugh ruined, would be and the thought it was and that he knew the estate These would be liable. actions were being obtained by fraud. plot vital to the to convince Robinson Brockenborrugh argues jury’s that the price, the property sell at a deflated and a fraud, counts verdict on the D.C. for- jury reasonably infer from could them that gery, uttering forged a instrument Brockenborrugh knowingly a entered into shows “acquitted that he was of all counts co-conspirators scheme with his to defraud directly relating forged to the Br. deed.” Roy heirs. of Appellant just at 9. Not so. As we explained, implicate the federal counts also jury’s
the forged deed. The verdict on the III. way D.C. in no counts undermines this Brockenborrugh challenges trial three law, person conclusion. Under D.C. (1) rulings: attorney the decision to allow forgery uttering commits the offense of to testify Scull about statements McLeod “if that makes ... person or utters (2) 2005; made him in June the decision forged instrument written with the intent *9 to allow government cross-examine § ... another.” 22- defraud D.C.Code him 3241(b). relationship about his sexual advises, aids, Anyone incites, who McLeod; (3) give jury refusal to and a uttering or forgery abets is as a liable regarding instruction of mul- § 22-1805. existence principal. Id. Brockenbo- rrugh’s tiple conspiracies. does not fall We consider each in conduct either within provision. not make turn. He did or utter the
735 however, A. government, The argues that the plain error standard of applies review be- objection counsel, Over the of defense cause defense counsel did not renew the testify the district court allowed Scull to objection or move to strike Scull’s testimo- during about statements McLeod made ny after the district court ruled on the phone their June 2005 conversation. Ac- scope of conspiracy.1 Scull, Because we find cording to McLeod said that “U.S. that the district court committed Brockenborrugh” buy Marshal wanted to no er- ror-clear, plain, and could assist with the or otherwise—in admit- (Oct. 18, squatter problem. Trial Tr. 131 ting we need not decide 2007). provisionally The district court ad- which standard best fits these facts. testimony subject mitted this to proof of a previously We have explained conspiracy under Federal Rule of Evi- admitting when testimony under Rule 801(d)(2)(E), dence provides which that a 801(d)(2)(E), “the district court must find if hearsay statement is not it is offered by preponderance a of the evidence that a against party “by and is made a cocon- conspiracy existed and that the defendant spirator party during [that] course and declarant were members of that con and in furtherance conspiracy.” spiracy.” Gewin, United States v. 471 question appeal The on is whether the 197, (D.C.Cir.2006). F.3d Admission, correctly district court found that Brock- however, is not contingent upon the find enborrugh and McLeod engaged were in a ing of an unlawful combination. Rather conspiracy at the time McLeod made the that, we have held despite its use of the statements to Scull. At the close of the 801(d)(2)(E) word “conspiracy,” Rule al case, government’s the prosecutor argued lows for admission of statements indi conspiracy, that a as that term is used acting viduals in furtherance of a lawful 801(d)(2)(E), Rule could be inferred ear- as joint Gewin, enterprise. See 471 F.3d at ly April as 2005 or at by Septem- the latest 201-02; Weisz, United States v. 2005, 718 F.2d ber when Brockenborrugh wrote the 413, (D.C.Cir.1983) (stating check to McLeod. The district court rule, which found there was derives from “overwhelming agency part evi- law, dence of a relationship business nership between “embodies the longstanding Ms. McLeod and Mr. Brockenborrugh” in doctrine when two or more individuals (Oct. 2005, April 25, 2007), Trial Tr. 48 acting are in concert toward a common “overwhelming evidence that there was a goal, the out-of-court statements of one are conspiracy to commit wire fraud” in Sep- ... against others, admissible if made tember id. in furtherance of the goal”). common Cit argues that although the district court may Gewin, ing the district court found “over have ruled on the existence of a conspiracy whelming evidence” that Brockenborrugh in April September, it failed to find a and McLeod engaged were in a “business conspiracy in June. relationship” early as April 2005. Trial (Oct. 2007). Tr. 48 Our review of the typically
We review the admis 801(d)(2)(E) supports record sion of conclusion and evidence under Rule reveals ample for clear error. See evidence that United States v. this relationship Ga con (D.C.Cir.1996). tling, tinued such that in June pair party challenge 1. When a by failing forfeits a more substantial burden on criminal defen- below, general review, plain raise it rule dants than does clear error and is 52(b). applies. error review intended to ensure that forfeited-but-obvious See Fed.R.Crim.P. plain imposes error standard of review miscarriage justice. do not effect a errors *10 736 acknowledge its existence between rrugh joint enterprise in a lawful
engaged example, early For 2004 or 2005. He also property. the 2002 and late acquire McLeod, at Broekenborrugh testified concealing relationship the admitted Scull, with of her conversation the time by the FBI. See id. interviewed when first agent for his his real estate acting as trial, the court At the close of at 133-39. Id. purchase attempted to consider the jury instructed statements Scull McLeod’s at 78-81. of Brockenbo- relationship proof sexual Broekenborrugh” was Marshal that “U.S. character but as evidence rrugh’s bad buying were interested relationship with of the true nature his enterprise and furtherance of this made in Brockenborrugh’s credibili- McLeod and of admitted. properly failure to describe the full ty based on his during his di- relationship extent of that B. testimony. rect argues Broekenborrugh also allowing court erred district court acted well that the district The him to cross-examine about government permitting its discretion within McLeod. We relationship with his sexual Cross-examination of cross-examination. for abuse of discretion. ruling review this on the permissible criminal defendant Fonseca, 435 F.3d See United States subject matter of the defendant’s direct (D.C.Cir.2006). 369, 373 affecting and matters credibil examination 611(b); from both hearing arguments After see also ity. See Fed.R.Evid. sides, the district court determined F.2d Raper, United States v. was needed to show cross-examination (D.C.Cir.1982). Brockenborrugh’s testi Brockenborrugh’s relation- “closeness” of suggested that mony on direct examination ... impeach- McLeod and “for ship with nothing McLeod had more than he and Brocken- purposes [on ment cast doubt relationship. government business The (Oct. credibility.” Trial Tr. 57 borrugh’s] further was therefore entitled to elicit tes 2007). any The court concluded that - nature of the timony to show the true questions prejudice might result from relationship. Broekenborrugh argues that relationship the sexual would asked about subject on this should cross-examination value of outweighed by probative be under Federal Rule prohibited have been Brockenbo- given. When 403, which allows for the ex of Evidence stand, defense rrugh took the witness “probative if its value is clusion of evidence him to tell the court and the counsel asked by danger of substantially outweighed jury “basically” relationship issues, prejudice, unfair confusion of the or Broekenborrugh an- McLeod. Id. jury, considerations misleading half “did taxes” for swered McLeod time, delay, waste of or needless of undue courthouse, in the “did real es- the CSOs The presentation of cumulative evidence.” tate,” manager. and was his Id. “ court, however, ‘is in the best district at 68-69. He did not mention the sexual subjective position perform balanc [the] relationship. component of the On cross- ing’ required under Rule 403.” United examination, prosecutor first asked Johnson, 519 F.3d States v. fin- Broekenborrugh if he had a chance to (D.C.Cir.2008) (quoting United States v. relationship, ish his answer about the (D.C.Cir. Cassell, 788, 795-96 that he had. Broekenborrugh responded 2002)) (alteration original). Upon re ques- prosecutor pressed further view, no abuse of discretion we see relationship him sexual tioned about his by the district court. The did balance struck Only with McLeod. then Broekenbo-
737
multiple conspiracies,
long
evidence was sub-
as
value of the
as there is a
probative
central issue in
spoke
objective.”
as it
to the
single
stantial
at 1364.
Id.
Whether a
Brockenborrugh
case: whether
was a
the
course of conduct
be
should
classified as a
the
knowing participant
fraudulent
single conspiracy or
into multiple
divided
or an
real estate investor
innocent
scheme
conspiracies depends on whether
par
the
thievery.
only
The
caught up in McLeod’s
ticipants
goal,
shared a common
were de
effect
Brockenbo-
prejudicial
identified
another,
pendent upon one
and were in
rrugh
inference “that a
possible
is the
volved together
carrying
out at least
who
his wife cannot be
person
‘cheats’ on
parts
plan.
some
of the
See United States
trusted,”
Any
Br.
at 33.
Appellant
such
Mathis,
(D.C.Cir.
18,
v.
216
23-24
F.3d
mitigated by
effect was
the district court’s 2000);
514
Hemphill,
F.3d at 1364
cf.
disregard
to
jury
instruction to the
(“The mere fact
the conspirators
relationship as
of bad character.
evidence
ways
[carry
found different
out their
Miller,
756,
U.S.
Greer v.
483
766 n.
Cf.
does not
the conspiracy
crime]
break
into
(1987) (“We
S.Ct.
C. may have tried to achieve their goal in ways, different their actions demonstrate Brockenborrugh’s final conten pursuit objective: of a sole the fraudulent regarding trial is that the district tion his acquisition of Roy property. McLeod refusing jury erred in to instruct the court filed a forged attempt deed in an secure sup to consider whether evidence title, multiple ported conspira existence of reimbursed half determined cies. district court buy claimed cost to the property. such instruction warranted. failed, McLeod, When that Brockenbo- United, de review this decision novo. We rrugh, sought fraudulently and others Dickerson, v. F.3d 641 n. States 3 obtain the from Robinson and the (D.C.Cir.1999). If supports the record Roy other participants heirs. The all multiple conspiracies, jury existence of worked goal, toward a common and al- must be consider instructed to them. though may not have par- Hemphill, United States F.3d ticipated every step conspiracy, it (D.C.Cir.2008). Brockenborrugh ar significantly is clear that he was involved jury gues could have found several Accordingly, from start to finish. we hold conspiracies to obtain the and that the evidence a single establishes con- that he was some of involved them. spiracy. The district did not err in instruction, according This to Brockenbo refusing give jury rrugh, the jury would have allowed to dis requested instruction. tinguish activities legitimate his from the fraudulent ones of McLeod others. IV. example, Brockenborrugh argues For appeals also from forged the creation of deed and its sentence, arguing his the district court sep from were two concealment Robinson made three erroneous factual find that he conspiracies, arate was not ings sentencing calculating range. single conspiracy involved in either. But a When error applying the clear standard of “pursue multiple can with differ schemes review, operandi dividing modi into we that the trial judge ent without are mindful *12 738 According to obtain the tempt “to evaluate opportunity unique
has a
amount of loss is
Brockenborrugh,
weigh
to
to
credibility of witnesses
Labs.,
$135,000,
calls for a ten
Inc. v. Ives
which
Inwood
at most
evidence.”
855,
Inc.,
844,
Labs.,
102 S.Ct.
increase.
456 U.S.
than a twelve-level
rather
(1982);
also Har-
2182, L.Ed.2d 606
see
72
calculation
The district court’s loss
ry
Linda A.
T. Edwards
Elliot,
Federal
&
finding that we review for clear
is a factual
Appellate
Review:
of
Courts
Standards
Leonzo,
v.
50 F.3d
error. United States
Decisions
of District
Court
Review
Court
(D.C.Cir.1995).2
Brockenbo
1088
(2007) (explaining
Agency
21
Actions
it
flawed because
rrugh’s argument
standard). Accordingly,
clearly erroneous
property
overlooks the effort to obtain
affirm
“left with the
unless we are
we
Had Brocken
using the fraudulent deed.
that a mistake
firm conviction
definite and
succeeded, the con
borrugh and McLeod
States v.
committed.” United
has been
for
would have sold the
spirators
Co.,
364, 395, 68
333 U.S.
Gypsum
U.S.
$300,000
by
involvement
its
any
without
(1948).
525,
Because this
into
that
fact,
question findings
again
of
we
review district court erred in
of-
increasing his
3742(e)
§
error.
for clear
See 18 U.S.C.
justice.
fense level
obstruction
for
Sec-
(2006);
Henry,
see
also United States
tion
the Sentencing
3C1.1 of
Guidelines
(D.C.Cir.2009).
644-45
provides:
Brockenborrugh
is
There
evidence that
(A)
If
the defendant willfully obstruct-
out
a
For
held himself
as U.S. Marshal.
impeded,
ed or
or attempted to ob-
Robinson
example, Brockenborrugh told
impede,
struct or
administration
property’s
seeing
squatters,
that one
justice
respect
investiga-
to the
courthouse, said,
you’re
him the
a
at
“[0]h
tion, prosecution, or
sentencing of
App.
real marshal.”
at 105. Brockenbo
(B)
conviction,
instant offense of
and
him,
did not
instead
rrugh
correct
but
the obstructive conduct
...
related to
the characterization and stated
adopted
the defendant’s offense of conviction
squatter
previously
had not
be
conduct[,]
and
relevant
any
increase
position.
that he held such a
See id.
lieved
2by
the offense level
levels.
conversation,
During
same
commentary
guideline
to this
provides
Robinson
conspirators presented
when the
list
may
nonexhaustive
of conduct that
contract
buy
property,
with a
to
she
justice, including
constitute obstruction of
additional
about the
requested
information
perjury, destroying or concealing material
buyers but told
she
Brockenborrugh that
evidence,
providing materially
false
already knew about “Mr.
Marshall
U.S.
law
signifi-
statement
to
enforcement to
Id. at
Again,
136-37.
Brockenbo
[sic].”
cantly
investigation.
obstruct
official
made no effort
her mis
rrugh
to correct
3C1.1,
§
commentary
See id.
cmt. n. 4. The
impression.
taken
clear, moreover,
makes
that “the conduct
is also
There
evidence that Brockenbo-
adjustment
applies
which
not
th[e]
rrugh
misrepresentations
used these
to fa-
3C1.1,
subject
precise
§
definition.” Id.
required
the offense. The
cilitate
scheme
cmt. n. 3.
convincing
Robinson that the
was
The district court applied
adjust-
little or
her
nothing
only
worth
and that
ment because
lied on
option
conspir-
was to sell it
realistic
stand, finding
very obviously
that “[h]e
a price
ators for
she would not realize was
close,
extremely
denied his
not to
inti-
say
its true
well below
value.
with,
McLeod,”
relationship
mate
Ms.
used his fictitious status as a
Marshal
U.S.
“falsely denied that he
ten-
evicted the
this end. For
after tell-
example,
toward
ants,” and
that he
Ms.
“denied
threatened
ing
squatter recognized
that the
Robinson
marshal,”
...
a “real
Robinson
he could influence
him as
only
squatters
police
that the
reason
to withdraw their extra attention
claimed
protection
reentered the
was his
for
property.”
had not
Trial
protec-
the level of
2008).
regarding
to Robinson
(Feb. 14,
Brockenbo-
24-25
Tr.
give
would
on the
tion the
lying
dispute
not
rrugh does
the district
adjust-
spare explanation,
In a
applying this
grounds for
stand is
Brockenborrugh lied about
only that
that his testimo-
said
he claims
ment.
Instead
challenge
police’s
“extra
truthful,
is another
his threat
withdraw
ny
which
findings
property.”
for the
protection
factual
court’s
attention
to the district
2008).
error,
(Feb. 14,
U.S.C.
read this
clear
Tr.
We
Trial
we review
3742(e).
Brock-
referring
§
explanation
extra atten-
threat to remove
enborrugh’s
testimony about
to remove all
to his threat
tion but also
*14
police
protect
the
to
ability to influence
his
Because
property.
from the
protection
support for
ample
property provides
the
testimony about this lat-
Brockenborrugh’s
that he lied.
decision
district court’s
the
untruthful,
that
we conclude
ter threat was
meeting, Brocken
group
During the first
err
the
court did
district
stop
police
to have the
borrugh threatened
Brockenborrugh’s trial testi-
deciding that
property,
to the
attention
paying extra
Rob-
mony
what he had told
contradicted
effect,
meant,
police
the
which
an enhancement for
inson and warranted
protec
property without
leave the
would
justice.
of
obstruction
Robinson his
squatters. He told
tion from
colleague argues that the
dissenting
Our
“the
in the sale was
involvement
group’s
not base its
district court did
doing
why
police [we]re
the
only reason
justice
Brockenborrugh’s
on
obstruction of
squatters out of
keep
to
anything”
(wire
all
transcript).
at trial about his threat to withdraw
at
lie
building. App.
police
property.
from the
acknowledging
police protection
Although
Rather,
property,
according
reading,
all
to her
the dis-
duty
protect
general
added,
cynically
mistakenly relied on nonexis-
“[Y]ou trict court
are,”
that with
police
implying
how
contradiction what
know
tent
police would do
participation
police
his
of extra
at-
out
said about withdrawal
property.
protect
at all to
to read
nothing
for the
Were we
tention
trial,
Id.-,
At
also id. at 143^14.
explanation
see
as referenc-
the district court’s
he threatened
Brockenborrugh admitted
police
of extra
ing only the withdrawal
attention would cease
police
that extra
attention,
dissent.
agree
we would
with the
his
stop dealing
were Robinson
trial that he
Brockenborrugh admitted at
denied, however, threatening
group. He
police
threatened to withdraw the extra
alto
protection
would cease
police
present-
evidence
given
attention. But
merely meant
gether. He stated that he
discrep-
“crystal
at trial and the
clear”
ed
by there on
police
going
“wouldn’t be
testimony
ancy
between
job
go by
there
[It]
behalf.
their
[his]
statements, Trial Tr. 25
and his recorded
any
property,
proper
check on that
(Feb.
2008),
apparent
it is
(Oct. 25, 2007); see also
ty.” Trial Tr. 187
on a
district court based its conclusion
(“Q:
suggest
meant to
[Y]ou
id. at 187-88
Brockenborrugh lied at trial
finding that
you pulled
that if
out of
to Ms. Robinson
having made a threat
he denied
when
deal,
away,
police
go
...
... will
police protection
minimal
withdraw even
they
A: I didn’t mean that
would
right?
reading property. This
for Robinson’s
I
go away just because was out
explanation is bolstered
the district court’s
deal”).
government argued
by the fact that the
for an en-
sentencing
its
memorandum
court concluded that Brock-
The district
hancement not because
at trial about what he said
enborrugh lied
attention,
police
rrugh’s
lied about the extra
but
lie in
testimony
about his re-
“threaten[ing]
because he lied about
lationship
Ms.
with McLeod. Viewing the
that he
Robinson
could cause the with-
subject
on this
in the light
property”
drawal of
attention to her
most favorable to Brockenborrugh,
altogether. Government’s Mem. Aid of district court could have concluded that
Sentencing at 7. The district court en- Brockenborrugh
truthfully
testified
about
hanced
Brockenborrugh’s sentence
the relationship;
deny
he did not
its exis-
government’s request,
strongly sug-
which
tence and the first
time he was asked
gests
govern-
that it relied on the lie the
about the sexual nature of the relation-
ment identified about the threatened with-
cross-examination,
ship on
he answered
all police protection.
drawal of
honestly. But
it is also
reasonable
conclude that he lied about the relation-
reject
suggestion
We
the dissent’s
ship. Brockenborrugh was on notice that
we reach this conclusion through imper-
his relationship with McLeod was rele-
appellate factfinding.
missible
See Dis-
vant because he put the relationship at
senting Op. at 745 (“[F]actfinding is the
defense,
issue.
all,
His central
after
courts,
responsibility
basic
of district
rath-
*15
that he
anwas
innocent
courts,
investor deceived
appellate
er than
and ...
the Court
McLeod,
by
realtor,
his
join
unwitting-
Appeals
of
should not ...
in the
resolve[ ]
ly in an unlawful business
first instance
factual
transaction.
dispute
[a]
which had
And before Brockenborrugh
not
took
by
been considered
District
stand,
Case,
the district court
(quoting
argument
Court.”
In re
heard
Sealed
552
(D.C.Cir.2009) (alterations
between
F.3d
counsel
in Brockenborrugh’s
845
presence
original))).
contrary,
To the
on whether
we have ex-
he could be cross-
plained why
examined
factfinding
the district court’s
about his sexual relationship
and conclusion are not clearly erroneous. with McLeod.
It
is fair to infer that
We have found no
way Brockenborrugh
facts and have in no
intentionally
was
con-
usurped the district court’s factfinding
cealing the true nature of his relationship
have, instead,
it,
function. We
respected
when he testified that
prior
his
descrip-
merely
tion,
described the relevant context
which made no mention of the ro-
to show the
mance,
district court’s decision is best
was complete.3 ‘Where there are
understood
increasing
Brockenbo-
permissible
two
evidence,
views of the
rrugh’s sentence because he lied at trial
the factfinder’s choice between them can-
about his threat to
police protec-
withdraw
be
erroneous.” Anderson v.
tion from
dissent,
read- Bessemer City,
564, 574,
470 U.S.
105
ing the
explanation
district court’s
in a
(1985).
S.Ct.
The district court’s decision in assessments of the credibility of a wit- dependently supported by Brockenbo- Dissenting Op. ness.” at 743. Yet that is 3. The dissent half-year makes much the fact of affair was a "basic” element of their merely was asked to de- relationship, and it seems reasonable that he "basically” relationship scribe his with despite would have mentioned it as such (Oct. 25, 2007); McLeod. See Trial Tr. 68-69 view “boyfriend that he was not McLeod's Dissenting Op. see also at 747-49. But (Oct. 25, 2007). anything," Trial Tr. 134 Brockenborrugh and McLeod's two-and-a- in- should be Brockenborrugh’s sentence to do. upon called exactly what we are Cf. U.S., justice upon of for obstruction Union creased Corp.
Bose
Consumers
of
485, 499-501, 104
at trial
Inc.,
perjury
S.Ct.
committed
466 U.S.
he had
(“The
(1984)
‘clearly
(1)
same
squat-
L.Ed.2d 502
he had evicted the
by denying:
findings
applies
erroneous’ standard
the real
occupying
ters
documentary
as to those
(2)
evidence
based on
object
conspiracy,
he had
testimony,
but
entirely on oral
based
that he would
threatened the executor
in the former
has lesser force
presumption
protec-
extra attention and
withdraw the
(citations
in the latter.”
than
situation
local
that his connections with
tion
omitted)).
viewing Brockenbo
Upon
(3)
he
property,
obtained for the
had
stand and
on the witness
rrugh’s demeanor
his co-
relationship
an intimate
at
presented
all of the evidence
hearing
defendant,
McLeod. These were
Denise
trial,
court determined
the district
district
only findings made
sexual rela
Brockenborrugh lied about his
jus-
determining
an obstruction
clear error re
tionship with McLeod. On
appropriate.
tice enhancement was
view,
not comb
judges should
appellate
the first
court does not address
This
seeking
identify
through the record
it in
no
finding and there is
from the
factual inferences to draw
best
sup-
This court’s efforts to find
record.
testimony. “The
transcript of a witness’s
valiant,
findings are
port for the other two
judge’s major role is the determina
trial
directly contradicted
findings
those
are
but
fact,
in fulfill
experience
tion of
and with
testimony that shows Brockenbo-
by trial
Bessemer
ing
expertise.”
that role comes
the threat and
rrugh
making
admitted
743
sentencing
findings
priate
of a
court’s factual
remedy.
Saro,
See United States v.
283,
(D.C.Cir.1994).
for clear error. See also
States v.
United
24 F.3d
287-88
1361,
(D.C.Cir.2008);
Day, 524 F.3d
background
The
to the district court’s
Edwards,
677,
States v.
United
imposition of the
justice
obstruction of
en-
(D.C.Cir.2007). Accordingly,
this hancement is as
any
follows. Without
ci-
determining
court’s role is limited to
record,
tations to the
government’s
whether “the district court’s account of the
sentencing memorandum asserted that
plausible
light
evidence is
of the record Brockenborrugh had
perjury
committed
at
entirety.”
viewed
its
Anderson v. Bes
trial
falsely denying that he: “evicted
564, 573-74, 105
City,
semer
470 U.S.
S.Ct.
tenants,”
“displayed a U.S. Marshals
(1985).
1504,
745 acknowledges The court that the district should not .... in the in resolve[ ] first clearly finding erred that Brock- stance factual dispute [a] which had not threatening denied to withdraw enborrugh been considered the District Court.” police Op. the extra attention. at 740. To Case, 841, In re Sealed 552 F.3d 845 save the district court’s factual (D.C.Cir.2009) (quoting Pullman-Stan erroneous, being from the court Swint, 273, 291-92, dard v. 456 U.S. 102 component a second to the dis- discovers (1982)) (altera S.Ct. L.Ed.2d 66 finding, effectively trict court’s actual mak- Thus, in original). tions where the record ing findings concluding its own of fact and susceptible evidence is of more than one implicitly that the district court must have interpretation reasonable and the district findings made those as well. The court court fails to findings make on a material that at pre-trial meeting finds his with Ms. issue or findings where its are unclear or “Brockenborrugh Robinson threatened to remand, incomplete, not affirmance based police stop paying have the extra attention factfinding court, on de novo by this is the meant, effect, property, to the which proper 848; course. See id. at United police leave the property would Henry, States v. 649-50 protection squatters,” Op. without from at (D.C.Cir.2009). Notwithstanding what the falsely making but that he denied this found, district court could have this court during testimony, threat trial id. As must be able to “conclude with confidence” support finding by this unarticulated from the record that the district court court, the district the court finds that “[a]l- actually made and findings relied on which though acknowledging that police imposition would in general duty protect all property, creased sentence. United States added, Brockenborrugh cynically ‘[Y]ou McCoy, 242 411 (D.C.Cir.2001); F.3d are,’ police implying know how that with- Case, see also Sealed at F.3d participation out his the police would do This restraint makes sense: the court all nothing protect property.” at owes deference to the district court’s find 143). (quoting Id. Appx. pro- The court ings, not to the findings it could have ceeds to find that when testifying trial Askew, made. See United States v. “denied, however, threat- 1119, 1142 (D.C.Cir.2008). F.3d n. 4 ening police protection would cease id., altogether,” as a result of the with- Instead, the court concludes that al- drawal of the extra protection, id. though actually the district court found Brockenborrugh falsely
“[FJactfinding responsibility is the basic denied threat- courts, of district appellate ening rather than to withdraw the “extra attention and courts, and ... Appeals protection,” Court of implicitly district court tour, keep eye during midnight any on it having using intention of them or evening day on the tour and the tour. somebody selling to swindle into me their Q: you saying And do remember to Ms. properly. I asked them to do it for me as a Robinson, hey you know how the are friends, [sic] favorite to take—I have a lot of though. anymore, hey you If I'm not in this elderly say, you friends that can have the *19 know, they go by anymore? will not there police by? say, you go by come And I can else, somebody A: she sold it to If somebody's property and check on for me? why they going mean wouldn’t be there —I (Oct. 25, 2007) (emphasis Trial Tr. 187 add- my job go by on That is their behalf. ed); (“I that, you see also id. at 188 said property, any and check there on that know, eventually, property when the is sold or
property. they It is not—it is are no not— whatever, they going just go by are not longer doing asked him to do me a favor —I basis.”). and check on the daily I had never check on that one location on a Second, gov- in the support the court finds Brockenborrugh falsely denied that found in mem- sentencing assertion its of extra ernment’s of the withdrawal that the result falsely de- mean, orandum that reality, in the with- would attention “ threatening that he could ‘cause the nied protection prop- for the police of all drawal prop- to her police withdrawal of attention to convert the actual erty. The effect is (quoting at 741 erty’ altogether.” Op. Brockenborrugh denied with- finding that added). 7) (emphasis Mem. Gov’t’s Sent. protection” attention and drawing “extra government’s pre-sentencing view withdrawing But the finding a that he denied into that is not the one protec- of the evidence all] attention and [therefore “extra “context,” district court. court now ascribes to the Op. amount of at tion.” No Rather, the court concludes the dis- court did not disguise can that the district found that Brockenbo- Notwithstanding implicitly trict court finding. make falsely withdrawing denied that engaging rrugh that it in de protest court’s is not id., extra attention would result the loss of factfinding, see the court’s hold- novo government’s police protection. all that the district court did not ing claim that Brockenborrugh perjured pre-sentencing finding err ” “police attention respect threatened to withdraw on the witness stand with himself property support from the does not to the threat he made to Ms. Robinson finding factfinding. conclusion that the district court’s only on its own de novo relies of a threat to withdraw “extra attention requisite claims to derive the The court clearly implied finding protection” reading of the district confidence its a threat to withdraw extra attention that finding actual from two sources. court’s protection. would result the loss of all First, interpreta- the court states that its strayed by court has finding “crys- court’s is How far afield the tion of the district clear,” discovering implicit component of the borrowing phrase tal that the finding factual is evident describing court used in its confi- district court’s district were, that it is neither what the district findings given dence in as the court 744; parties at court it found nor what the acknowledges, supra Op. see at stated Critically argued. Rewriting the district court’s riddled with clear error. findings appellate cannot and does not hold that its to match the court’s the court evidence, reading finding much less of view of a the evidence would contrary court’s Brockenborrugh’s testimony, trial is the runs to this re- fact- peated recognition one that the district court could rea- that such de novo sonably adopted. proper have In both his record- is inconsistent with its role. 649-50; Burke, testimony Henry, ed and in his trial See 557 F.3d at statement Askew, 869; Brockenborrugh drew a distinction be- F.2d at 529 F.3d at n. 4. police pro- “spare explana- tween the “extra” attention and Given the district court’s tion,” finding, at police provide Op. perjury tection he asked the its accept straight forward general the Robinson and the must protection finding meaning what the district court attention would stated, provide. Supra reflecting notes 2 & 3. As the distinction Brocken- otherwise result, hardly borrugh testimony it that in drew in his between obvious im- with- general police protection, recorded statement “extra” and out recourse to additional words or to an plied protection without the extra any would be without obscure tension between Robinson all, that he denied trial and his recorded statement protection imply- but testimony. appeal. first discovered this court on ing this “threat” his trial *20 find- to the FBI rrugh’s “significantly the district court’s factual denial Because erroneous, impeded the obstructed or official investi- clearly threat ing about [case],” gation of prosecution or required unless the district a remand § cmt. 4(g), gov- U.S.S.G. 3C1.1 n. and the support in of finding factual court’s third points ernment to no record evidence of sentence for obstruction the increased support finding. such a clearly not erroneous. justice is Still, accepting while that two district Relationship. Intimate C. subsidiary findings district court’s were that found his trial court erroneous, clearly the court concludes that Brockenborrugh “very obviously denied the district court did not clearly err close, extremely say not to intimate his finding Brockenborrugh falsely denied with, Trial relationship Ms. McLeod.” Tr. relationship his intimate with Ms. McLeod 2008). (Feb. 14, noted, finding As this of an the absence actual denial him. by by grounds, identified rested on It reasons that the district court could court, Brockenborrugh pre- district properly by trying pre- conclude her”; barely “that “that he knew tended tend did not that he have an intimate lived”; not know he did where she McLeod, with relationship Brockenbo- they personal did not have a relation- “that rrugh constructively denied the relation- at 741. ship.” appears Id. This ship. at 741-42. The Op. record demon- subsidiary the first two find- accept that examination, strates otherwise. On direct at 741- Op. erroneous. ings were Brockenborrugh way did not suggest one concedes, First, government as the 42. any or the other nature or extent of did not Brockenborrugh pretended that he personal relationship with Ms. af- McLeod during a Ms. McLeod lived know where her in ter he first met and on cross FBI, during interview with the pretrial readily he examination admitted that he Second, testimony at trial. the court his relationship had an intimate be- with her adopt government’s rightly declines ginning in mid or late 2002 ending that in business suggestion describing his or January December 2004 2005. relationship with Ms. McLeod on direct Brockenborrugh’s taking Prior to Brockenborrugh “pretended examination stand, witness the district court ruled barely suggestion that he knew her.” This prosecutor impeach that the could tes- Brock- appears also to have been based on timony by inquiring on cross examination pretrial with the enborrugh’s interview relationship about his intimate with Ms. FBI, testimony. than his trial Such rather Op. at Following McLeod. See 736. investigators, whether false statements ruling, Brockenborrugh’s counsel called not, cannot or the obstruction him as a witness and asked him to describe justice district enhancement because the “basically relationship” Ms. [his] answered, no Brockenbo- court made McLeod.4 about, probably say, counsel asked McLeod did I would Defense percent people he knew the co-defendant Denise of the CSOs and whether around “Yes, do,” know, responded Upon, you and after he I taxes. McLeod the courthouse's court, being counsel asked him to "tell to her defense introduced as far as taxes went, basically jury, prosecutor told she at and the she did real estate. So your relationship McLeod.” point, buying with Ms. Denise I was interested —I buy answered: I told her that wanted to a four unit Well, building. apartment basically my relationship with Ms. (Oct. 25, 2007) (emphasis basically. Trial Tr. 68-69 add- started in 1999 I was McLeod ed). Brockenborrugh Superi- ques- then answered to her her husband introduced Court, building apartment because she did taxes. Ms. tions about the four-unit *21 On cross-exami- “[w]ell, Ms. the Robinson basically my relationship with nation, Brockenborrugh testified that he basically,” swpra in 1999 McLeod started answering thought he had finished met explaining how he had note before by describing “basical- question counsel’s six to work with her and come relationship Ms. ly” how his with McLeod took charged conspiracy years before begun.5 prosecutor had then When years they before had an and three place actually a “much asked if he had had more neither relationship. His answer intimate personal relationship,” he admitted he relationship intimate to their referred had, later on.” stating Supra “[t]hat early 2005 nor to relevant de- 2002-04 or explained note 5. He that he had not men- extent of their business tails about relationship the intimate in answer- tioned interactions, as how often he such ing question his counsel’s because “[he] McLeod, with Ms. property purchased cf. having relationship wasn’t a[n intimate] (Oct. 25, 2007), and how she Trial Tr. 156 id., '99,” with her and that he had not [in] attempts to obtain had assisted his question understood the to address their Robinson. His coun- property from Ms. relationship pro- after that time. He then imply following questions sel’s did ceeded to describe the intimate relation- by explaining how he had met Ms. McLeod ship response questions to further on ques- failed to answer the he had cross-examination. put tion to him. Rather defense counsel result, McLeod’s proceeded inquire about Ms. As a the district court’s rental that on the witness stand management close, extremely turning “very obviously his attention to denied his properties before manager you begin personal relationship with work as a a and McLeod's him before counsel directed his attention her? attempted purchase Maybe A. the middle or end of 2002. to his issue in this case. There was—but I was not involved in boyfriend anything. a—I was not her cross-examination, prosecutor 5. On asked Q. having you But were sexual relations personal relation- about his with her? ship with McLeod: Yes, A. did. I Q. you Now asked on [defense counsel] Q. Okay. And so when [defense counsel] morning what direct examination this you asked on direct examination about your relationship was with Ms. your relationship with Ms. McLeod and get you Did a chance fin- McLeod. you began said in '99 I met her and I a ish that answer? relationship, you business left out A. I think I finished it. Q. part? you other met her in 1999? You said part? A. A. out the other In '99—I Yes Left Q. having you began relationship rela- a with her And and she business wasn’t tionship? '99. [in] Q. Okay. you A. So did not understand Mr. Yes. Q. you, fact, question direct Did have a much more Rosen's on to mean what your relationship personal relationship been with Ms. with Ms. McLeod? has A. That was later on. McLeodsince 1999? Right. A. I did not understand that. Q. you begin personal When did more Q. relationship skipped part your with Ms. McLeod? You over rela- Well, tionship di- with Ms. McLeod? A. it had to be after she was me, my rela- vorced. A. It was not asked what was Q. Well, my relationship approximately year you tionship, personal what do you began a her at that time. believe? If business rela- added). (emphasis tionship with her in when did Id. at 133-38
749 say relationship, not to intimate with Ms. the district court sustained the defense (Feb. 14, 2008), McLeod,” Trial Tr. is objection prosecutor when the referred to clearly erroneous. No matter how dili- “affair,” relationship their as an Trial Tr. testimony, one searches his trial he gently (Oct. 2007). having relationship; in- never denied Second, far from demonstrating that the it. Yet the court finds stead he admitted district court’s finding clearly was not er- error, reasoning that because no clear roneous, reasoning the court’s explains Brockenborrugh was “on notice” that his only why the district court could have relationship intimate with Ms. McLeod “relevant,” Brockenborrugh fair found that purposefully was is to infer that “[i]t intentionally was conceal- did not mention the relationship intimate ing relationship the true nature of his until question he was asked a that re- prior description when he testified that his him quired to do so. was examination], direct which made no [on notice,” Op. “on that he could be romance, complete.” mention of the was impeached on cross examination about his Op. approach at 741. The court’s McLeod, relationship intimate with Ms. see flawed. Op. (quoting court, at 736 the district Trial First, Brockenborrugh’s answer on di- (Oct. 25, 2007)), Tr. 57 not that he was suggest rect anything examination did expected or obligated divulge somehow jury to the about the full extent of his it on direct examination. assuming Even any personal relationship or business with better defense strategy would have been to Ms. McLeod after 1999. Nor could his relationship disclose the intimate on direct statement on cross examination that he examination, and avoid the almost certain thought answering he had finished defense possibility subject would be raised dur- question. transcript counsel’s of his ing cross-examination and pros- afford the testimony finding trial would not opportunity ecutor an question whether jury that as a result of these answers the he fully responsive had been less than thinking denying was led into he hav- question, his counsel’s this is not the same ing an intimate with relationship Ms. Brockenborrugh denying he and Ms. government’s unhelp- McLeod. The brief McLeod had an intimate relationship. fully ques- characterizes defense counsel’s assuming And that the even district court “opened-end” tion as an invitation to “tell concluded that intended jury relationship about his to conceal the true nature of the relation- McLeod,” omitting “basically.” the word ship, the trial transcript shows that he did 59; Appellee’s supra Br. see note 5. The not do what the district court found he did: brief also overlooks that Brockenborrugh’s deny he did not during his trial response expressly description limited his the existence of his intimate relationship to the relationship’s starting point. More- with Ms. McLeod. Because the district over, pointed by gov- no evidence court’s that he did is without basis express ernment rebuts the limitation record, in the it is erroneous. question defense counsel’s and in Brocken- borrugh’s by showing answer that he con-
sidered his intimate relations with Ms. Hi Hí Hí early McLeod 2002-04 or 2005 to a be legal system In our different roles are part fundamental of their relationship. courts, assigned to trial appellate Rather, admitting they while had sex dur- time, it behooves this court not to blur the lines. ing that he testified he was “not her boyfriend anything,” supra note and The district found increased because he be sentence should AIRLINES, INC. ALASKA falsely denying he himself
perjured al., et Petitioners threatened to with- squatters, evicted protection, police attention draw extra *23 relationship with Ms. had an intimate OF DEPARTMENT STATES UNITED ten- evicting His denial McLeod. TRANSPORTATION, Respondent threat- and he admitted ants was not false the extra atten- ening to withdraw Angeles al., City et Intervenors. of Los having an intimate protection tion 07-1209, 07-1223, 07-1273, 07-1276. Nos. McLeod. To over- relationship with Ms. admissions, the court infers those come Appeals, States Court United court did not findings that the district of Columbia Circuit. District narrowed make. Our review is Dec. Argued 2008. court’s fac- deference owed to the district cannot affirm findings, tual but this court Aug. Decided of a of a false denial on the basis could, not, but did
that the district court it affirm on the basis of
make. Nor can simply actually that is not false permissi- court could
because the district har-
bly have found that keep information
bored intention jury directly until he was asked
from the
about it. the district court would Whether
have so found is for the district court to
decide, not for this court to infer.6 Ac-
cordingly, none of the three factu- because findings supporting up-
al the two-level
ward enhancement of justice
sentence for obstruction of under § 3C1.1 survive clear error re-
U.S.S.G.
view, I would remand the case for resen-
tencing; I concur. otherwise tice, same, Supreme attempt or an to do the
6. The
Court instructed in United
under
87, 96,
Dunnigan,
perjury definition we have set out. See
States v.
507 U.S.
113 S.Ct.
1989);
(1993),
(Nov.
§