tcdla - Voice For The Defense Online

If you were practicing criminal law in the United States courls before November 1, 1987 - the effec-tive date of the United States Sentencing Guidelines - you remember when the words "obstruction ofjustice" struck terror in the heart of a defense Ia~yer. h f q if not most of these cues, were prosecutedunder the provisions of Title 18 U.S.C. @ 1510 (Obstn~ction of criminal investigation) or 1512(Tampaing with a witness, victim, or an informant). Once the PBI opened a He, really bad things co~lldhappen to your client. A Westlaw search shows that there were 1,159 published opinions in obstructionEases p~osecuted befare we had Ute guidelines.Then along came the guidelines which contain 5 3Cl.l. It provides that the sentencing court nlayinc~ase a defendant's offense IevelE(A) The defendant willfully obstrncted or impeded, or attempted to obstruct or impede, thea&ninistralion of justice during the come of the investigation, prosecution, or sentencing ofthe instnnt offense of conviction, and (8) the ohhuctive conduct related the (i) the defendant'soffense of conviction and any relevant cond~rct; or (ii) a closely related offense ...FEDERALCORNERAnother Weshw sparch rwds that there have berm published opinions in 2,699 guideha wes inwhich the col~d 11s imposed m upwatd adjustment for ohtruction of justice. 100 of these mses weredecided by the United States Court of Appeds for the Ffih Circuit (the Coart).Recently, the Court has affirmed upwatd adjustn~ents for obstruction of justice in the following mses:The defendant ohtair~edafalse passport for the purpose of ewding authorities and transferred assets tobusiness entities controlled by him or his fdy members. UnitedStutes u. Martinez, 2001 WL 968120(5'h GI: (Teu.)).The defendant wmmitted perjury at trial. UnitcdSfflfes v. 1IfcCnu7eey, 253 E3d 815 (5" Cic 2001).The defendant wmmined perju~y at trid. UnitedStntes u. Odiorlio, 244 43d 339 85" Cir. 2001).The defendant threatened a codefendant and uged others to lie or leave town. OititedStafas u.Sh~~@f@r, 238 E3d 580 (5h Cic 2001).The defendant committed perjury at trid. ihitedS111tesu. Phil&, 210 E3d 345 (5thCir. 2000).The defendant provided a materidly false shtement to the FBI th;lt significantly obstructed the investigation.UnitedStntes u. Smith, 203 E3d 884 (5" CIC 2000).The defendant atten~pted to escape from jail by bribing a guard. United Stutes u. Ecbego&?n-Barrueto, 195 E3d 786 (5hCic 1999).The defenduntfdedto appearat her sentencing heaing. UnitenStnkna Lujun-Smcedn, 187 E3d451 (ShCir. 1999).The defendant fled Iron1 oiilce~s who, pursuant to a lawfi11 arrest, had exetcisd cootrol over him.UniredStates u. H&u, 182 E3d 361 (5Ih Ck. 1999).So what's the lesson? Communicate mith your client nbout dl of the bad things that can happen to himif he acts afool. Defendnntswho lie at trial are going to get hort. Defendants who try to hide alittle moneyare going to get hmt Defendants who try to beat the system - without regard to how they do it - ategoing to get lmrt. Maybe if they hear about obstnrc(ion of justice at the first interview they will be easier tompment.12 VOICE FOR THE DEFENSE WWW.ICDLA.COM OCTOBER 2001