Filed: Feb. 25, 2000
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 25 2000 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 99-4089 ELLISON M. WHITEHORSE, (D.C. No. 98-CR-423-C) (D. Utah) Defendant-Appellant. ORDER AND JUDGMENT* Before BALDOCK, HENRY, and LUCERO, Circuit Judges.** A federal grand jury indicted Defendant Ellison Whitehorse charging him with two counts of assault with a dangerous weapon within Navajo National Indian cou
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 25 2000 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 99-4089 ELLISON M. WHITEHORSE, (D.C. No. 98-CR-423-C) (D. Utah) Defendant-Appellant. ORDER AND JUDGMENT* Before BALDOCK, HENRY, and LUCERO, Circuit Judges.** A federal grand jury indicted Defendant Ellison Whitehorse charging him with two counts of assault with a dangerous weapon within Navajo National Indian coun..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4089
ELLISON M. WHITEHORSE, (D.C. No. 98-CR-423-C)
(D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**
A federal grand jury indicted Defendant Ellison Whitehorse charging him with two
counts of assault with a dangerous weapon within Navajo National Indian country in
violation of 18 U.S.C. §§ 113(a)(3), 1152(a), and with two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Defendant entered a
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
conditional plea of guilty to one count of assault with a dangerous weapon. See Fed. R.
Crim. P. 11(a)(2). The district court dismissed the remaining counts on the Government’s
motion. Pursuant to the plea agreement, the Government agreed to remain silent on the
issue of a sentencing enhancement for obstruction of justice. The district court
nevertheless applied a sentencing enhancement for obstruction of justice and sentenced
Defendant to forty-five months imprisonment. Defendant appeals the district court’s
application of the sentencing enhancement. We exercise jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742, and affirm.
I.
On June 15, 1995, on the Navajo Nation Indian reservation, Defendant assaulted
Gloria Agoodie with a metal pipe and a handgun. The presentence report recommended
the imposition of a two-level enhancement for obstruction of justice based on Agoodie’s
statements that Defendant attempted to influence her to not cooperate with the FBI. The
presentence report further indicated that Defendant asked Agoodie to help him leave the
country if he were indicted.
At the sentencing hearing, Defendant denied the information in the presentence
report concerning his attempts to influence Agoodie. Consequently, the court called
Agoodie to the stand. The court initially asked the Government to examine Agoodie.
Defendant, however, objected because the Government agreed to remain silent on the
issue of obstruction of justice as part of the plea agreement. The court, therefore,
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questioned Agoodie.
Agoodie testified that Defendant contacted her by telephone on two occasions and
told her to not cooperate with the FBI if they questioned her. She further testified that
Defendant told her if she did cooperate with the FBI, “you know what I’m going to do to
you.” On a third occasion, Defendant went to Agoodie’s house without invitation and
again instructed her not to cooperate with the FBI. Following the court’s questioning of
Agoodie, Defense counsel cross-examined her.
Defendant also testified at the sentencing hearing. He admitted that he had been in
contact with Agoodie, but denied that he was trying to dissuade her from cooperating with
the investigation. Instead, Defendant testified that he told Agoodie she could choose
whether to cooperate.
The court found Agoodie to be more credible than Defendant. Accordingly, the
court imposed a two-level enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of
justice.1
1
Section 3C1.1 provides,
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related offense, increase the offense level by 2
levels.
U.S.S.G. § 3C1.1.
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II.
Defendant argues the trial court improperly imposed the two-level sentencing
enhancement for obstruction of justice. Because the Government has the burden of
justifying an obstruction of justice enhancement by a preponderance of the evidence,
United States v. Keifer, 198, F.3d 798, 800 (10th Cir. 1999), Defendant argues the court
improperly assumed the prosecutor’s function by questioning Agoodie. We review the
district court’s legal interpretation of the sentencing guidelines de novo, and review its
findings of fact for clear error. United States v. Burridge, 191 F.3d 1297, 1301 (10th Cir.
1999). Further, we review the propriety of a judge’s examination of a witness for abuse
of discretion. United States v. Albers,
93 F.3d 1469, 1484 (10th Cir. 1996).
The court’s authority to question witnesses during trial is beyond dispute. Albers,
93 F.3d at 1485 (citing Fed. R. Evid. 614(b)). A trial judge cannot, however, become an
advocate for either side.
Id. at 1486. “A federal trial judge should not hesitate to ask
questions for the purpose of developing the facts; and it is no ground of complaint that the
facts so developed may hurt or help one side or the other.”
Id. at 1485-86 (quoting United
States v. Jones,
730 F.2d 593, 598 (10th Cir. 1984)). We believe the same rationale holds
true for a judge during a sentencing hearing.
Here, the court questioned Agoodie in an attempt to determine whether to apply
the obstruction of justice enhancement. Defendant had denied the facts in the presentence
report and the court questioned Agoodie in an attempt to resolve the dispute. We have
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carefully reviewed this line of questioning by the judge and conclude that she did not
abuse her discretion or commit error. The court did not act as an advocate or assume the
prosecution’s role, but rather sought to develop the facts.
III.
Defendant further argues the court improperly found Agoodie to be a credible
witness. As mentioned above, we review the district court’s factual determinations
concerning the obstruction of justice enhancement for clear error only. Burridge, 191
F.3d at 1301. Further, we “give due deference to the district court’s application of the
Guidelines to the facts and its ability to judge the credibility of the witness upon whose
testimony it relied.” United States v. Hankins,
127 F.3d 932, 934 (10th Cir. 1997).
Agoodie’s testimony at the sentencing hearing was consistent with the information
contained in the presentence report. The court observed the testimony of both Agoodie
and Defendant at the sentencing hearing and concluded Agoodie to be more credible.
Such a finding is not clearly erroneous. The record contained sufficient evidence to
support the imposition of the sentencing enhancement for obstruction of justice.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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