United States v. June Wolverine

America, UNITED STATES

Plaintiff-Appellee, WOLVERINE, Defendant-

June Lee

Appellant.

No. 13-30092. Appeals,

United States Court of

Ninth Circuit.

Argued May Submitted 22, 2014. Aug.

Filed 113(a)(3). challenges She also her con- imprison-

current sentences of 78 months years ment followed 3 of supervised release.

First, Wolverine contends that her using impermissi conviction was obtained ble character evidence because the district improperly testimony court admitted re garding an incident nine months earlier victim, where she stabbed the same her boyfriend, Tatsey, in Nate the chest. Wol alleges verine that evidence of this incident was too charged dissimilar from the con duct be under Federal Rule admissible 404(b) prejudi of Evidence and was more probative. cial than review the We district court’s admission of character evidence for Weldon, U.S., Ryan George Assistant abuse of discretion. United States v. Attorney, USGF-Office of the U.S. Great (9th Cir.1994). Mayans, 17 Falls, 1181 MT, Johnson, U.S., Leif Assistant USBI-Offiee of the Bill- Attorney, “When the Government offers evidence MT, ings, for Plaintiff-Appellee. prior subsequent crimes or bad acts case-in-chief, part as of its it the bur Arvanetes,

Evangelo Assistant Federal establishing den of first relevance of the Defender, Public FDMT-Federal Defend- prove evidence to a fact within one of the Montana, MT, Falls, ers of Great for De- exceptions general exclusionary rule fendant-Appellant. 404(b).”

of Rule United States Hernan dez-Miranda, 1108 Cir.1979); see also United States v. Rome (9th Cir.2002). ro, If proper purpose, offered for a (1) may admit if it the evidence O’SCANNLAIN, BERZON, Before: (2) material; charged is similar to the TALLMAN, Judges. Circuit (3) conduct; has a sufficient to sup basis port finding that the defendant commit * MEMORANDUM (4) act; ted other is not too remote Arambula-Ruiz, in time. United States v. Defendant-Appellant Lee June Wolver- (9th Cir.1993). challenges jury ine her convictions under probative outweigh any value must also 1153(a) (offense 18 U.S.C. committed Romero, 688; prejudice. 282 F.3d at see country) within Indian resulting assault also Fed.R.Evid. 403. bodily injury in serious in violátion of 18 113(a)(6) Here, prior stabbing U.S.C. and assault with a dan- all satisfies gerous weapon in violation of 18 prerequisites. U.S.C. these At trial Wolverine * disposition appropriate publica- This is not Ninth Circuit Rule 36-3. precedent except provided tion and is not as present testimony third-parties, had brandished

represented she ha- herself, previously intend had during stabbing, but did not protect knife to accidental- Tatsey and had done so Tatsey’s to stab behest rassed Wolverine stabbing, and Wolverine’s ly. prior So beyond harmless reason- cumulative and statements about contemporaneous doubt. able intent. stabbing, were relevant to show Bowman, 720 F.2d v. See United States Third, contends that Wolverine Cir.1983) (9th (admitting a de- mo erroneously denied her district court prior conviction for assault fendant’s insufficient evi acquittal for due to tions in a claimed self-defense

where defendant presented suffi The Government dence. context). prior factual stab- different jury to to a rational cient evidence allow nearly identical to bing was also Tatsey in did not stab find that Wolverine of the save for the extent charged conduct Nevils, v. States self-defense. See United the same injury Tatsey; it involved (en (9th Cir.2010) 1158, 1163-64 598 F.3d act of violence. Unit- actors and the same banc) (citing Virginia, v. 443 U.S. Jackson (9th Sinn, 415, 416 v. 622 F.2d ed States 61 L.Ed.2d 560 Cir.1980) prior admission of (upholding (1979)). Tatsey Following stabbing, offense prior act where the bad evidence neigh and several told law enforcement facts). Moreover, nearly involved identical him in the stabbed bors that Wolverine limit- mitigated by was any prejudice lying down and then while he was chest by the dis- jury provided instruction ing in buttocks while he was stabbed him the Montgomery, trict court. States v. United Tatsey later trying escape. Although Cir.1998) (9th (noting differently, jury a reasonable testified limiting instruction is appropriate that an testimony courtroom could have found his admission). in favor of weighing factor similarly testified not credible. Wolverine Second, Wolverine contends story that she acted self-defense—a her constitution the district court violated by recording an audio was contradicted complete by defense right present al FBI that admitted to the which Wolverine to testi restricting daughter’s attempt her Tatsey in the buttocks as he she stabbed his fy Tatsey previously had enlisted away thought she he running was because Wolverine in retaliation sisters to assault his “little wom going was next door where abuse to tribal law en reporting past jury, A assisted an” lived. reasonable occurred,1 it But even if error forcement. pre that the version of events evidence beyond harmless a reasonable doubt. was on the stand was sented Wolverine Stever, See United States impossible, could—and did—re physically Cir.2010). present 755-57 ject argument. her self-defense Tatsey ample undisputed ed evidence Fourth, properly im- the district court and a violent and nasty both a drunk justice posed a two-level obstruction explained that partner. abusive And she review the district enhancement. We against Tatsey press charges did not she Sentencing of the interpretation court’s hap would nothing she believed because findings de novo and its factual Thus the exclusion Guidelines to him if she did. pen law enforcement officers. Because scribed to We are doubtful jury trial testi- essentially did not believe Wolverine's case turned on erred. Wolverine's self-defense, tan- mony the additional jury about of events the believed—the which version proffered not have Tatsey presented gential evidence would version Wolverine and previously de- mattered. they had trial or the version Smith, for clear error. United States v. where a defendant “provide[s] a materially (9th Cir.2013). 1120, 1123 false statement to a law enforcement offi- cer that significantly obstructed or imped- justice The obstruction of enhancement ed the investigation prosecution applies “the defendant willfully obstruct of the instant offense.” Id. 3C1.1 cmt. or impeded, attempted ed to obstruct or (G). 4(B), n. But the list also identifies a impede, the administration of with relevant situation where the enhancement respect prosecution to the” of the offense “ordinarily” may not warrant application of of conviction. Sentencing Guidelines adjustment: where the defendant Manual 3C1.1. We have held that statements, oath, “mak[es] false not under plain language guidelines only re officers, to law enforcement Appli- unless quires a defendant’s conduct to have “the k(G) cation Note above applies.” Id. potential obstructing the investigation, 5(B) added). 3C1.1 cmt. n. (emphasis prosecution, or sentencing of the instant offense.” United States v. Draper, 996 argues that because the (9th 982, Cir.1993). F.2d 984-86 But re judge district did explicitly not decide gardless of how guidelines clear the may whether she lied on the stand at trial or face, always be their we consider the whether she agent lied to the FBI in her accompanying commentary. at Id. statement, recorded he proce committed And such commentary is generally authori dural by error applying the enhancement. tative unless it is inconsistent with the argument Her hangs on the assertion that guidelines. Lambert, United States v. 498 (9th only she Cir.2007) (disre lied to the FBI agent, applica garding tion of the commentary the enhancement was error degree to the it is because inconsistent with the plain language judge of district did not find that her lie guidelines); States, Stinson v. United obstructed or impeded the investigation cf. 508 U.S. 123 and would have clearly erred had he so (1993) L.Ed.2d (noting that commen found. Wolverine is mistaken.

tary to the sentencing guidelines usually is The judge district to required authoritative). specific make a finding as to which exam-

The commentary to Sentencing U.S. ple in the commentary ap- non-exhaustive Guidelines 3C1.1 states that “[obstruc- plied. To hold otherwise would make the tive vary nature, conduct can widely in non-exhaustive list exhaustive and would degree planning, of and seriousness .... ignore commentary’s acknowledgment, subject [and that is not precise it] to defi- in found its admission that obstructive con- nition.” Sentencing Guidelines Man- precise definition, has no duct that result, ual 3C1.1 cmt. n. 3. As a judge has some discretion in deciding what commentary provides “a non-exhaustive is and what is not obstructive conduct. list of examples” to “assist the court in otherwise, Even assuming degree determining whether application of this en- 4(G) that Application Note can be read to hancement is in a particular warranted preclude application of the obstruction en- 4; case.” Id. 3C1.1 cmt. nn. 3 & see hancement where a defendant Draper, also lies to an 996 F.2d at 984. This list agent FBI actually clarifies that but does not applies enhancement obstruct “commit[s], suborn[s], where a impede defendant or the investigation, portion that attempts] or perjury” to suborn commentary and the is inconsistent with the judge findings. The district these made not be followed.2 itself and need

guideline at trial: 971; stated Lambert, see also See (“[F]or purposes persons at 986 two Draper, [Wolverine I either have in it is irrele lied under oath adjustment, Tatsey] who have the obstruction court, or, telling a different and actually by is obstructed justice this vant whether have agent, re an FBI conflicting to version to It would be bizarre impeded.”). in of his plain agent FBI the course where lied to an actual obstruction quire Either of and duties. requires capacities enhancement guideline of the text this cited a crime. And when precedent which could be attempt. mere unfortunate point this be with the unhelpful on is faced [c]ourt the dissent is recog- Applica and, indeed, reality whether distasteful it does not address cause of. 4(G) deliberately with the false statements nizing is inconsistent that tion Note See, affect a case States Sola made that e.g., United have been Guideline. no-Godines, [c]ourt, to fail impossible Cir. it is 963-65 before activity 1997). Furthermore, the dis sort of adopt recognize to to integri- compromises to convert the fundamentally would be argument sent’s turn, it in judicial system. And guideline. ty Note into a of our Application re- indirectly, compromises the at least support an obstruction In order fact, be trier of sponsibility of the enhancement, court must a district testimony, that is with with presented (1) engaged the defendant only find evidence, tainted inten- is not con engage obstructive attempted into the get that tional misstatements (2) ma duct; the obstructive conduct representations under the trial record (3) terial; had ‘willful defendant and “[the] truth. they are the in [engage conduct].” to obstructive intent’ are be obvious to all who As I trust will Jimenez-Orbega, States v. See United here, concern to grave is a matter of this (9th Cir.2007) (per cu because, if say I And [c]ourt. this riam). cannot be process of this integrity the assured, if cannot be and the [c]ourt judge’s the trial comments Viewing integrity process of the assured that the sentencing, we at trial and at the record maintained, collectively, we all will be properly are satisfied Moreover, "if application 5 states that note argue Wolverine’s to 2. The dissent seems separate a count akin to that described convicted of conduct is more the defendant is 5(B), generally ex- application which [generally note as not cov- excluded [ ] conduct statements, "false enhancement],” cludes from enhancement by the exclusion ered the oath, officers.” under to law enforcement applies. U.S. Sen- void and the enhancement § Sentencing 3C1.1 Guidelines Manual cmt. n. 5. tencing Manual 3C1.1 Guidelines 5(B). an provision contains cmt. n. But that Here, Judge noted that either Sam Haddon general indicating the clause "unless” act, agent, lying FBI lying under oath or to an apply false state- where the exclusion does not gov- the a and he instructed could be crime impeded the investi- were material and ments investigate provide a "full and to ernment to 4(G) & gation. 3C1.1 cmt. nn. See id. appears report.” This to have written and 5(B). "Impeded” “to interfere is defined as attempt and ensure to cover his bases been an of; progress get way the with or in the consequences for would face that Wolverine block; Webster's up; detract from.” hold Haddon, jurist experienced Judge an what Dictionary 1132 New International Third longtime lawyer, declared was trial and definition, (1993). a lie can Based on this testimony and ... contrast in most “blatant investigation without de- certainly impede an story” he had ever seen. earlier railing "halting” it as the dissent insists. it or who endeavor to information, administer the funda- heard statements from Wol- mentally fair system of judgment, have counsel, verine and her ultimately and im- responsibilities our compromised. As I posed upper-range sentence based on said, I cannot sort or resolve out history Wolverine’s and characteristics. issue, but there are other means Specifically, the court noted the serious- which appropriate steps can be taken. ness of the crime and the need to protect public, stating that Wolverine is “dan- Later, during sentencing, judge ref- gerous” capable inflicting “poten- and, erenced colloquy his earlier after us- tially fatal harm.” The district court suffi- ing the word “perjury,” he found “ample ciently factors, considered required justification” evidence and apply imposed a sentence that was not sub- justice obstruction of enhancement to Wol- stantively unreasonable. verine. We conclude together, that taken these statements on the record constitute AFFIRMED. finding sufficient that Wolverine inten- tionally engaged obstructive conduct Judge BERZON’s Dissent. making material misstatements of fact. I concur in majority disposition ex- Although the district court could have cept regard with to the two-level obstruc- artfully more stated the bases for its con- tion enhancement. clusions, Jimenez-Ortega, see 472 F.3d at findings its and observations were To recap: That applies enhancement support sufficient to the enhancement. “the defendant willfully obstructed or im- attempted peded, to obstruct or impede, Fifth, alleges justice” the administration of respect with district court procedural committed “both prosecution of the offense of convic- and substantive during error” sentencing tion. U.S.S.G. 3C1.1. The enhancement by failing adequately explain its reasons applies where a perju- defendant commits giving Wolverine within-range but ry oath, while under but does not cover high-end procedural sentence. As to the statements, oath, “false not under to law argument, error because Wolverine did not officers,” enforcement except where a de- object during sentencing, we review for “provide[s] fendant materially a false plain Waknine, error. United v. States statement to a law enforcement officer (9th 546, Cir.2008). 543 F.3d 551 As to the significantly impeded obstructed or argument, substantive error “whether ob official investigation prosecution the or of jected to or not at sentencing ... [we] instant the offense.” Id. at 3C1.1 cmt. for review[ ] abuse of discretion.” United 5(b). 4(b), (g), nn. We have applied this (9th 864, v. Autery, States 555 F.3d 871 See, commentary as e.g., written. United Cir.2009). During sentencing, the district Solano-Godines, v. 957, States court must consider the 18 U.S.C. (9th Cir.1997). Every 965 other circuit 3553(a) factors, but is not required it See, done the same. e.g., United _ “tick off’ each factor. United States v. Selvie, (7th 679, v. States 684 (9th Cir.2008). Carty, 520 F.3d 991-92 Cir.2012); Williams, United v. States 79 is, however, The district court required to (2nd Cir.1996). F.3d 338 sufficiently explain its reasons for the sen tence, within-guidelines but a sentence “or The district specified court never which dinarily needs little explanation.” Id. at the two of versions of obstruction occurred 992. Contrary contentions, here, to Wolverine’s and did not findings make the re- judge the district pertinent the reviewed before quired imposition of this enhance- 652 The advi- offense.” the instant cution of v. Jimenez- States See United

ment. that, such Cir.2007) absent (9th make clear sory notes 1102, 1103 Ortega, 472 statements, not '“making false findings, Dunnigan, 507 (citing United States oath, to law enforcement officers” under L.Ed.2d 122 for the en- ordinarily qualify not Instead, does (1993)). day the final of on nn. cmt. 3C1.1 hancement. U.S.S.G. stated, have two trial, “I either the court 5(B). 4(G), Tatsey] who have and persons [Wolverine court, or, by telling under oath lied the recognized never The district court to an conflicting version and different a re- impediment” obstruction or “significant agent FBI have lied to an agent, FBI finding pertinent no and made quirement capacities course of his official the for fur- would remand Although I to it. a crime.” could be Either of which record, duties. a current such findings, on the ther reiterated, simply “the facts The finding problematical. would be drawing the without be reconciled cannot FBI incul- statement Wolverine’s the other or that one version conclusion stabbing. second The her as to the pated true,” factually specifically but ... not than halt- went rather prosecution forward falsity truth or of resolve “the declined at acknowledged ing. government by” Wolverine. given two versions the investigators be- the argument oral Later, the district court described sentencing, version of events lieved the stated, day be- concluded from FBI interview the Tatsey “I in his simply have them, it fore, told that there is certain- what Wolverine entirety of the record not for- justification put for the theory government ly ample evidence and was Shriver, Court, sentencing, to States v. purposes at trial. United ward Cf. Cir.1992) (collect- justice.” points obstruction add cases). make district court there is scant evidence ing time did the So At neither statement, lie, state- a of Wolverine’s record that finding as to which impeded official actually a lie. “obstructed ments “signifi- did so investigation,” less much lie “could be possible if either Even finding any there cantly.” Nor is crime,”1 material lie—is a lie—even a to'the statement inculpatory Wolverine’s when the under the Guidelines sufficient impede attempt an to obstruct FBI was Lying officer.2 a law enforcement is to lie obstructing or by significantly course of his agent FBI in the “to an investigation; impeding only the duties” is capacities and the material lie was court assumed that justice en- for an obstruction basis sufficient, perjury. itas is for was both if the statement false hancement “the Jimenez-Ortega that held in or We “significantly obstructed “material” and materiality of a statement one prose- false investigation impeded the Swick, In the de- the two occasions. possibility, as one of I do not further consider 1. testimony contradictory had not gave material point is irrelevant. fendant oath, occasions, a See J. in of such a crime. been convicted while under two both Case, No. 1. Docket perjury. Criminal had to be least one them thus at Here, earlier statement made Wolverine’s in contrast to that in The situation here is 2. oath, agent while not under to the FBI Swick, F.3d 784 v. United States requirements, dis- meet thus had to additional Cir.2003), government relies upon which below, support imposition cussed sentencing enhancement is argue enhancement. must have lied on appropriate if Wolverine the factual predicates of an obstruction ration, corporation; Century a 20th enhancement,” purely and not “a legal Entertainment, LLC, Fox Home a question ... appeals that the court of liability c[an] company, limited Defen decide in the first instance.” 472 F.3d at dants-Appellees. Jimenez-Ortega

1103. directed when Petrella, individual, Paula an a district court necessary fails to make the Plaintiff-Appellee, factual findings support imposition of enhancement, government and the v. argued harmless, the error was Metro-Goldwyn-Mayer, Inc., corpora a “we must remand” to the district court tion; Metro-Goldwyn-Mayer Studios, rather than judgment substitute our in its Inc., corporation; Metro-Goldwyn- a place. Id. at 1103-04 & n. 2. The same Mayer Entertainment, Home LLC, a reasoning applies to the failure to deter- liability limited company; Metro- mine “significantly whether the obstructed Goldwyn-Mayer Home Entertainment impeded” requirement is met.3 We Corporation, Distribution corpora a thus must remand for a proper determina- tion; Corporation, United Artists a tion, applying the correct Guidelines stan- corporation; Century 20th Fox Home dards, as to the obstruction of en- Entertainment, LLC, a limited liabili hancement. ty company, Defendants-Appellants. I respectfully dissent. 10-55834, Nos. 10-55853.

United Appeals, States Court of Ninth Circuit. Aug. PETRELLA, individual,

Paula an

Plaintiff-Appellant,

METRO-GOLDWYN-MAYER, INC., a

corporation; Metro-Goldwyn-Mayer

Studios, Inc., corporation; Metro-

Goldwyn-Mayer Home Entertain

ment, LLC, liability compa a limited

ny; Metro-Goldwyn-Mayer Home En Corporation,

tertainment Distribution corporation; Corpo United Artists majority suggests States, 3. The Application note written. See also Stinson v. United 4(G) guideline is "inconsistent with the it- 113 S.Ct. 123 L.Ed.2d 598 Maj. party argued, self." at 8. No has so (1993); States, Ehlert v. United 402 U.S. court, court, every including this that has (1971). 28 L.Ed.2d 625 applied commentary applied it as

Case Details

Case Name: United States v. June Wolverine

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 22, 2014

Citation: 584 F. App'x 646

Docket Number: 13-30092

Court Abbreviation: 9th Cir.