USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1900
UNITED STATES OF AMERICA,
Appellee,
v.
JONATHAN FELDMAN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
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Before
Selya, Stahl and Lynch,
Circuit Judges.
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Annemarie Hassett, Federal Defender Office, for appellant.
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Diane Cabo Freniere, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief, for
the United States.
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April 26, 1996
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SELYA, Circuit Judge. Defendant-appellant Jonathan
SELYA, Circuit Judge.
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Feldman pleaded guilty to a twelve-count indictment charging him
with fraud and interstate transportation of stolen property. See
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18 U.S.C. 1341, 1343, 2314; 42 U.S.C. 408(a)(7)(B). The
district court convened a disposition hearing on August 3, 1995.
Using the version of the guidelines that was in effect on that
date, see United States v. Harotunian, 920 F.2d 1040, 1041-42
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(1st Cir. 1990), the court computed the guideline sentencing
range (GSR) at 30-37 months and imposed a 33-month incarcerative
sentence. Feldman now challenges the court's determination of
the GSR and, ultimately, the sentence imposed. We affirm.
I. OVERVIEW
I. OVERVIEW
We draw an overview of the facts necessary to shed
light on this appeal from the Presentence Investigation Report
(PSI Report) and the transcript of the disposition hearing. See
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United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
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The defendant worked for Norman and Eleanor Rabb as a
home attendant from May to October of 1993, assisting them with
their personal care. The Rabbs were octogenarians. In addition,
Mr. Rabb was in failing health and afflicted by a deteriorating
mental condition. The couple could not handle their personal
finances and a long-time retainer, herself seventy-eight years
old, wrote checks to pay their household expenses.
During the course of his employment, the defendant
became privy to the Rabbs' finances. Having obtained Mr. Rabb's
social security number and the account numbers for a Fidelity
2
Investments trust account and a Bank of Boston checking account,
he set out to defraud the Rabbs upon leaving their employ. His
modus operandi involved siphoning funds from both the trust and
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checking accounts by impersonating Mr. Rabb, forging negotiable
instruments, and similar artifices. To cover his tracks, he
submitted to the postal service change of address forms directing
that all the Rabbs' business mail be forwarded to the address of
his own dwelling. The defendant then retained the mail that
would have revealed his skulduggery (such as the monthly trust
account statements) and forwarded the remainder to the Rabbs to
quell any suspicions. All told, the defendant pilfered
$139,972.00 from the trust account and $59,423.68 from the
checking account before his shenanigans were discovered.
II. DISCUSSION
II. DISCUSSION
The defendant challenges two rulings made by the
district court in constructing the GSR. We address these rulings
seriatim.
A. Obstruction of Justice.
A. Obstruction of Justice.
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Invoking U.S.S.G. 3C1.1,1 the district court
increased the defendant's offense level for obstruction of
justice. In requesting the two-level enhancement the government
argued that the defendant burned bank statements and checks
belonging to the Rabbs in his fireplace on October 13, 1994,
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1This guideline directs a two-level increase "[i]f the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant
offense." U.S.S.G. 3C1.1 (Nov. 1994).
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after learning that the Federal Bureau of Investigation (FBI) had
launched an investigation. The defendant admitted that he had
destroyed documents after learning of the investigation. He
nonetheless objected to the upward adjustment on the basis that
he had not burned financial data but had only burned drafts of a
will and letters of apology that he had written (though not
mailed) to the Rabbs. The district court did not choose between
these versions but stated in effect that, on either version, the
enhancement applied.
1. Adequacy of Findings. The defendant asserts that
1. Adequacy of Findings.
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the district court erred in leaving unresolved the factual
controversy concerning what the flames consumed. We review a
sentencing court's factual findings under section 3C1.1 for clear
error, see United States v. Aymelek, 926 F.2d 64, 68 (1st Cir.
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1991), but we afford plenary review to essentially legal
determinations (such as whether section 3C1.1 includes a
defendant's allegedly obstructive conduct within its scope), see
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United States v. Emery, 991 F.2d 907, 910 (1st Cir. 1993).
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When a defendant alleges that a PSI Report contains a
factual inaccuracy, the district court ordinarily must either
make a finding, up or down, as to the allegation, or else
determine that no finding is necessary because the controverted
matter will not be taken into consideration in connection with,
or will not affect, the sentencing decision. See Fed. R. Crim.
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P. 32(c)(1); see also U.S.S.G. 6A1.3 (Nov. 1994). Thus, the
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sentencing court need not resolve factual conflicts when doing so
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will serve no useful purpose. See United States v. Fuentes-
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Vazquez, 52 F.3d 394, 397 (1st Cir. 1995); see also United States
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v. Sepulveda, 15 F.3d 1161, 1199-1200 (1st Cir. 1993), cert.
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denied, 114 S. Ct. 2714 (1994). The instant case exemplifies the
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point: the judge was not obliged to choose between the two
conflicting accounts if under either version the documents
constituted material evidence. We explain briefly.
Given that the defendant knew of the ongoing FBI probe
and nonetheless intentionally incinerated documents, the only
question that remained was whether the documents in the pyre were
material to the investigation. See United States v. St. Cyr, 977
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F.2d 698, 705 (1st Cir. 1992) (explaining that a defendant's
actions must impede the government's investigation in some
material way to trigger an obstruction enhancement). The bank
records that the government described plainly met the test for
materiality. In the alternative, the government argued that even
if the defendant had been toasting letters of apology, those
letters would also be material and, hence, the defendant would
still be guilty of an obstruction of justice within the
contemplation of section 3C1.1. The record indicates that the
lower court accepted this reasoning. The court stated:
[T]he defendant burned certain material after
he knew about the investigation that was in
progress and that he did so in this Court's
mind with an idea of preventing the
Government from obtaining relevant material
evidence.
Three principles guide our review of this
determination. First, the test for materiality under the
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obstruction-of-justice guideline is not stringent. See United
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States v. Ovalle-Marquez, 36 F.3d 212, 226 (1st Cir. 1994), cert.
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denied, 115 S. Ct. 947, 1322 (1995); St. Cyr, 977 F.2d at 705.
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Second, a sentencing judge's finding of materiality is reviewed
only for clear error. See United States v. Biyaga, 9 F.3d 204,
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205 (1st Cir. 1993); United States v. Pineda, 981 F.2d 569, 574-
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75 (1st Cir. 1992). Third, the Sentencing Commission defines
"material" evidence in this context as evidence that "would tend
to influence or affect the issue under determination." U.S.S.G.
3C1.1, comment. (n.5) (Nov. 1994); see also United States v.
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Kelley, 76 F.3d 436, 441 (1st Cir. 1996).
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These three principles counsel rejection of the
defendant's assignment of error. The papers that the defendant
burned were material if they could have influenced or affected
the official investigation into his fraud. If those papers
included the Rabbs' bank statements and checks (which the
defendant had intercepted and which were never located), they
were obviously material.2 If, however, the papers included the
defendant's written apologia to the Rabbs, then they were also
material. A letter of apology to the victims of a crime, even in
draft form, is tantamount to a confession of guilt. Had this
voluntary confession, in the defendant's handwriting, been
uncovered in his home on that October afternoon, it would have
had the potential to influence the investigation of the fraud.
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2The defendant claims somewhat unconvincingly that he "lost"
all the bank records and checks belonging to the Rabbs.
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In this case, all roads lead to Rome. Regardless of
which version of events the sentencing court believed, both
entailed the destruction of material evidence in the face of a
known investigation. Thus, we descry no clear error in the
sentencing court's determination that the defendant's burning of
evidence whether bank records or letters of apology warranted
an upward adjustment under section 3C1.1. By the same token, the
district court did not err in declining to spin the web more
finely by making a particularized finding as to the exact nature
of the documents that were burned.
This conclusion likewise stills the defendant's cry
that the district court abused its discretion when it failed to
hold an evidentiary hearing to resolve the factual dispute
concerning the nature of the burned documents. Because the
defendant destroyed evidence material to the investigation on
either version of the facts, the evidentiary hearing that he
demanded would have amounted to an empty charade. A district
court need not indeed, should not hold an evidentiary hearing
when nothing will turn on it.3
2. Fifth Amendment. The defendant's backup argument
2. Fifth Amendment.
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3The defendant also contends that the district court erred
in failing to make a factual finding that the defendant acted
willfully and with specific intent to avoid responsibility for
the fraud. This contention misperceives the record. Judge
Gorton did make an explicit finding of specific intent, noting
that the defendant's act of burning documents occurred "after he
knew about the investigation that was in progress" and that the
defendant had in mind "an idea of preventing the Government from
obtaining relevant material evidence." We require no greater
precision from a sentencing court. See United States v.
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Gonzales, 12 F.3d 298, 299-300 (1st Cir. 1993).
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on obstruction of justice involves a strained interpretation of
the constitutional right against compelled self-incrimination.
He posits that the papers he burned were personal papers
letters of apology not prepared in the course of committing the
offense, and he asseverates that it was his constitutional right
to incinerate these personal papers in order to avoid
incriminating himself. This argument misconstrues the
protections that the Fifth Amendment offers.
The law is clear that, though the Fifth Amendment
protects against the compelled preparation of incriminating
documents as well as the compelled production of private
documents when the act of production itself is incriminating, the
Amendment does not act as a general bar to the production of
private information voluntarily prepared. See United States v.
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Doe, 465 U.S. 605, 610-11 (1984); Fisher v. United States, 425
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U.S. 391, 400-01 (1976). Once an individual chooses voluntarily
to prepare a written account, the act of preparation serves as an
effective waiver of the Fifth Amendment's protections. See Doe,
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465 U.S. at 610-11. In other words, just as a defendant cannot
begin to testify at trial and then change his mind, a suspect
cannot create a testimonial communication embodying incriminating
admissions and then choose to destroy it when he knows that it
has become relevant to an ongoing criminal investigation.
In this instance, the defendant concedes that he
voluntarily prepared letters of apology, but he claims a
privilege on the basis that the letters were private papers
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unrelated to the commission of the crime. This point does not
aid the defendant's quest.
The Fifth Amendment does not deal with the privacy of
the contents of documents, but, rather, with the voluntariness of
their preparation and production. See Fisher, 425 U.S. at 401.
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This court has stated that if the privilege against self-
incrimination applies at all to the contents of private papers,
it does so "only in rare situations, where compelled disclosure
would break the heart of our sense of privacy." In re Grand Jury
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Subpoena, 973 F.2d 45, 51 (1st Cir. 1992) (citations and internal
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quotation marks omitted). The defendant's letters, as he
describes them, do not fit this mold.
The appellant goes one step further when he suggests
that the privilege against self-incrimination includes the right
to destroy voluntarily prepared documents. Otherwise, he
maintains, any time a defendant authors personal notes that might
aid an investigation, and later decides to eradicate them, the
fact of destruction could be used to enhance his punishment.
This may be so but the contention that such a rule violates the
privilege against self-inculpation distorts the contours of the
Fifth Amendment. There is simply no constitutional right to
destroy evidence.
The Supreme Court made the point bluntly in Segura v.
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United States, 468 U.S. 796 (1984). There the Court stated that
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the very idea of such a right "defies both logic and common
sense." Id. at 816; accord United States v. Corral-Corral, 899
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F.2d 927, 930 (10th Cir. 1990); Hancock v. Nelson, 363 F.2d 249,
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254 (1st Cir. 1966), cert. denied, 386 U.S. 984 (1967). Though a
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person ordinarily may refuse to prepare or produce any evidence
that is self-incriminating, see, e.g., Andresen v. Maryland, 427
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U.S. 463, 475 (1976), that privilege in no way suggests that the
person may take affirmative action to destroy evidence even
evidence that he himself has created once he is aware that
authorities are searching for it (or something like it). That
act of affirmative misconduct, undertaken with the intent of
hindering an extant investigation, is the paradigmatic example of
an obstruction of justice. See U.S.S.G. 3C1.1, comment.
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(n.3(d)) (Nov. 1994).
Nor do the sentencing guidelines provide a special
layer of swaddling. To be sure, the Sentencing Commission wrote
that the enhancement for obstruction of justice "is not intended
to punish a defendant for the exercise of a constitutional
right." U.S.S.G. 3C1.1, comment. (n.1) (Nov. 1994). This
reminder of Fifth Amendment safeguards simply means that the
enhancement should not apply to a defendant who does no more than
stand upon his rights, say, by maintaining his silence or
refusing voluntarily to disclose evidence of his guilt. See
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Thomas W. Hutchison & David Yellen, Federal Sentencing Law and
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Practice 3C1.1 author's comment 4 (1994). Affirmative
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misconduct, however, is the intended target of the obstruction-
of-justice enhancement, and, as such, increasing a defendant's
sentence for affirmative misconduct does not trespass upon
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protected terrain.
In sum, the defendant's act of burning incriminating
documents was not shielded by the Fifth Amendment even if those
documents comprised personal papers that he himself created.
Hence, the sentencing court did not err when it applied the
section 3C1.1 enhancement in this case.4
B. Vulnerable Victims.
B. Vulnerable Victims.
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Feldman's second assignment of error calumnizes the
district court's imposition of a two-level upward adjustment
attributable to the Rabbs' status as vulnerable victims.5
1. Generic Traits. The defendant's first sally
1. Generic Traits.
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which contends that the sentencing court applied the wrong legal
standard because it based the enhancement on the Rabbs'
membership in a generic class of elderly persons rather than on
some individualized vulnerability that they might have possessed
need not occupy us for long. We are in general agreement with
the defendant's premise: in determining the propriety of an
upward adjustment for vulnerability, the sentencing court's
sights must be trained on the victim's individual
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4At oral argument defense counsel suggested that the Fifth
Amendment applied here because the letters were preliminary
drafts rather than finished products. We do not consider that
argument. It was not made below, it was not made in the briefs,
and it was not developed at any time. It is, therefore, triply
waived.
5The guidelines provide for a two-level upward adjustment
when an offender "knew or should have known that a victim of the
offense was unusually vulnerable due to age, physical or mental
condition, or that a victim was otherwise particularly
susceptible to the criminal conduct." U.S.S.G. 3A1.1 (Nov.
1994).
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characteristics. Thus, in order to warrant a finding of unusual
vulnerability, there must be some evidence, above and beyond mere
membership in a large class, that the victim possessed a special
weakness that the defendant exploited. See United States v.
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Smith, 930 F.2d 1450, 1455 (10th Cir.) (holding that advanced
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age, without more, does not render a victim unusually
vulnerable), cert. denied, 502 U.S. 879 (1991); see also United
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States v. Rowe, 999 F.2d 14, 17 (1st Cir. 1993) (cautioning that
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courts cannot predicate a finding of unusual vulnerability on
generalizations about large classes to which the victim belongs).
Contrary to the defendant's importuning, the record
reflects that the district court apprehended and applied the
standard enunciated above. This conclusion is buttressed in two
separate ways. First, at the sentencing hearing Judge Gorton
explicitly found (a) that "the defendant knew that the victim,
Norman Rabb, was elderly and that his mental faculties were
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failing" (emphasis supplied), and (b) that the defendant
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proceeded to exploit this condition. Second, the judge expressly
adopted the factual findings contained in the PSI Report a
document that made clear, inter alia, that Mr. Rabb was
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physically debilitated and that the Rabbs were unable to handle
their personal finances. We have accepted such findings as long
as the purport and intent of the sentencing court is clear. See
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United States v. Savoie, 985 F.2d 612, 620 (1st Cir. 1993).
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These adopted findings qualify under that test.
To say more would be supererogatory. The record simply
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does not bear out the claim that the sentencing court applied the
enhancement only because the Rabbs were octogenarians or shared
certain generic aspects of a class of elderly persons.
2. Targeting. The defendant also contends that the
2. Targeting.
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sentencing court erred in applying section 3A1.1 because the
government did not show that he targeted the Rabbs due to their
particular vulnerability to the planned fraud. This argument
prescinds from the Sentencing Commission's advisory (now revoked,
but in effect on the date of Feldman's sentencing) that the
adjustment here in question "applies to offenses where an
unusually vulnerable victim is made a target of criminal activity
by the defendant." U.S.S.G. 3A1.1, comment. (n.1) (Nov. 1994).
The defendant maintains that, unless we are prepared to disregard
Rowe's interpretation of the "target" language, the government
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must demonstrate that the offender selected his victims because
of some "special susceptibility." Rowe, 999 F.2d at 17.
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A backward glance helps to place this asseveration into
perspective. Application Note 1, in its pre-1995 form, proved to
be controversial. In particular, the "target" language split the
circuits on the issue of whether the government had to prove that
the defendant was motivated by the victim's special vulnerability
in order to lay a foundation for the upward adjustment, see,
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e.g., United States v. Smith, 39 F.3d 119, 124 (6th Cir. 1994);
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United States v. Cree, 915 F.2d 352, 354 (8th Cir. 1990), or
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whether the government merely had to show that the defendant
targeted his victim with the knowledge (actual or constructive)
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that the victim was unusually vulnerable, see, e.g., United
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States v. O'Brien, 50 F.3d 751, 754-55 (9th Cir. 1995). Dictum
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in Rowe tended to edge this court toward the former view. See
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Rowe, 999 F.2d at 17.
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We need not probe the point more deeply. For purposes
of the case at hand, the dispute is academic; either way, the
proof suffices. As for future cases, the Sentencing Commission
has removed all reasonable doubt by amending the commentary to
section 3A1.1. In an effort to resolve "some inconsistency in
the application of 3A1.1 regarding whether this adjustment
required proof that the defendant had `targeted the victim on
account of the victim's vulnerability,'" U.S.S.G. App. C., Amend.
521, at 430 (Nov. 1995), the Commission deleted the "target"
language. The revised note merely states that the vulnerable
victim provision "applies to offenses involving an unusually
vulnerable victim in which the defendant knows or should have
known of the victim's unusual vulnerability." U.S.S.G. 3A1.1,
comment. (n.2) (Nov. 1995). In future cases this provision, not
our statements in Rowe, will govern.
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Applying Rowe generously, i.e., assuming arguendo,
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favorably to Feldman, that targeting was an essential element of
the government's proof, the defendant's argument founders. Rowe
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merely requires that a special susceptibility have been a factor
in the offender's process of selecting his prey. See id. at 16-
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17 & n.3. This means that the government did not need to prove
here that the defendant set out to defraud elderly, infirm
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people, and targeted the Rabbs because they fit the bill. It
also means that the government did not need to prove that the
Rabbs' infirmities were the sole reason that the defendant zeroed
in on them. Even under the Rowe regime, expansively construed,
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the government had to show only that the defendant selected the
Rabbs as his victims in part because they were elderly and
infirm. See Cree, 915 F.2d at 354 (explaining that "enhancing a
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defendant's sentence based on victim vulnerability is justified
only when a defendant's actions in some way exploited or took
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advantage of that vulnerability") (emphasis supplied).
The record in this case contains more than enough
evidence to justify a finding that the defendant targeted the
Rabbs because of their vulnerability. After all, he entered the
Rabbs' employ only because of their infirmity and, in his
capacity as a home care assistant, he gained copious knowledge of
their afflictions. Knowing of their diminished capacity, he
obtained information necessary to carry out his plot. Given
these and other facts, we believe that the record establishes a
nexus between victims' susceptibility and victimizer's
criminality adequate to establish targeting. See United States
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v. Pavao, 948 F.2d 74, 78 (1st Cir. 1991). Thus, the district
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court's finding that the defendant targeted his victims on
account of their age and infirmity warrants our approbation.
We need go no further. Here, the defendant selected
his victims because he had been their personal caretaker and had
discovered their vulnerabilities at first hand. The victims were
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elderly, in failing health, and no longer in control of their
finances. The defendant enacted his scheme with full knowledge
that these vulnerabilities would make his crime easier to
accomplish. Consequently, the district court did not clearly err
in determining that the Rabbs were vulnerable victims within the
scope of U.S.S.G. 3A1.1, and that the defendant had targeted
them on that basis.
Affirmed.
Affirmed.
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