UNITED STATES of America, Plaintiff-Appellee v. Elfred William PETRUK, Defendant-Appellant
No. 15-2547
United States Court of Appeals, Eighth Circuit.
September 9, 2016
835 F.3d 974
Counsel who represented the appellee was Thomas More Hollenhorst, AUSA, of Minneapolis, MN.
Before LOKEN, MURPHY, and BENTON, Circuit Judges.
LOKEN, Circuit Judge.
In June 2012, Elfred Petruk stole Travis Behning‘s pickup truck. After Behning tracked Petruk down in a different vehicle, the two had an altercation, and Petruk assaulted Behning with a hammer. A jury convicted Petruk of one count of carjacking in violation of
I. The Section 2J1.2(b)(3)(C) Enhancement.
In December 2012, Petruk was in jail facing state court charges arising out of his altercation with Behning. He attempted to solicit his former girlfriend, Sara Jean Peterson, to help him secure false alibi witnesses. This was the basis for the first obstruction count. We reversed that conviction because Petruk did not attempt to obstruct a federal “official proceeding,” as
In June 2013, Petruk was charged with the federal carjacking offense. In October, while incarcerated, he mailed a letter to Peterson, asking her to find a person to play the part of “Sam,” a fictitious person who would speak with Petruk in a recorded prison telephone call and falsely confess to the carjacking. The letter included a detailed script for a conversation between Petruk and Sam. Petruk wrote that he would call Peterson in the future and that “the code words to tell me your ready on your end is I am at the store call me back in 15 minute‘s.” He used the name of a fellow inmate on the envelope to conceal his authorship. One week later, Petruk wrote a second letter providing a longer and more detailed script. He wrote to Peterson, “We pull this off, I am home free with any jury ... if anyone ever come at you about this sam, you only got to say you‘ve met him twice.”
Petruk called Peterson on November 3 and asked her in the recorded call if she was “gonna go to the store?” Peterson responded, “I‘m not goin’ to the store tonight.” Peterson turned the letters over to an ATF agent that month and testified for the government at trial. Though a longtime friend of Petruk, she testified that she made no attempt to execute his “ridiculous” plan to recruit a person to play a fictional character, Sam, who would provide a false confession to the assault of Behning in a phone conversation that jail officials would overhear and record.
At resentencing, the district court imposed a two-level enhancement under
The district court carefully explained why it found (or concluded) that Petruk‘s obstruction offense was “extensive in scope, planning, or preparation” within the meaning of
Mr. Petruk, in an effort to, frankly, subvert justice following a rather brutal assault of his victim concocted a rather elaborate plan to manufacture evidence of a false confession. I would agree it was an ill-fated strategy, but it was nonetheless fairly complicated. He enlisted the support of a friend to record a statement from a fictitious person
named Sam to falsely confess to the carjacking offense on the prison phone, hoping that authorities would hear the confession while monitoring the prison phone system. He drafted multiple scripts of this confession. This took several days, involved multiple phone calls and mailed correspondence. He even raised a concern in his second letter with a revised script for Sam that whoever played Sam would have to act like he wasn‘t reading from a script. And he even thought to write a different inmate‘s name on the return address of the mailed correspondence so as to not connect it to him. I would agree it was poorly conceived, I would agree it was ill-fated, but that‘s not the question. The question is whether it was extensive in scope, planning, or preparation under this enhancement, and the Court finds that it was and that the enhancement is appropriate.
There is no commentary from the Sentencing Commission and a dearth of caselaw interpreting the operative term in
II. The § 3E1.1 Reduction.
Section 3E1.1 provides for a two-level reduction if the defendant “clearly demonstrates acceptance of responsibility for his offense.” Petruk argues the district court erred in denying the reduction because he “clearly demonstrated that he accept[ed] responsibility for his attempt to obstruct an official proceeding.” “[A] determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.”
Petruk was “not the rare defendant who goes to trial to assert and preserve issues that do not relate to factual guilt.” United States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015) (quotations omitted). He argued to the district court that he went to trial primarily to challenge (successfully) the government‘s interpretation of the federal carjacking statute. The district court rejected this contention, finding that his “reason for going to trial was not solely to preserve some legal issue, at least that wasn‘t articulated to the Court.” The court explained:
There is simply no evidence, pretrial, of any clear acceptance of responsibility .... He could have pled guilty to [the obstruction] offense; but at a minimum, he could have acted in a way which didn‘t put the Government to proof of the facts of this offense by stipulating to those facts, by not cross-examining witnesses. That‘s not what happened here. The Government had to prove the facts of this offense. And again, [the obstruction] offense was not one that the Defense was seeking to preserve a legal defense about. And finally, there is no evidence pretrial, as there was in Spurlock, of any remorse or acceptance of the wrongful conduct.
On appeal, Petruk argues that he nevertheless clearly accepted responsibility in a post-conviction letter to the district court, which acknowledged guilt. However, the acceptance-of-responsibility “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”
“A district court‘s factual determination about whether the defendant accepted responsibility is entitled to great deference, and we will reverse it only if it is so clearly erroneous as to be without foundation.” Spurlock, 495 F.3d at 1014. Here, there was no clear error.
The judgment of the district court is affirmed.
LOKEN
CIRCUIT JUDGE