GARLAND E. BURRELL, Jr., Senior District Judge
Defendant objects to the Probation Officer's recommendation that he receive a two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1(c). Probation recommends this enhancement be applied based on perjured trial testimony. (PSR & 17.) Defendant argues the "accusation that [he] was not truthful on the stand... is... unfounded and unsubstantiated . . . ." (Def.'s Mot. Correction of Pre-Sentence Report ("Mot.") 24:1-5, ECF No. 134.)
The government rejoins that Defendant "has earned the two level increase . . . for obstruction of justice[,]" arguing in its sentencing memorandum and response to Defendant's motion to correct the PSR:
(Gov't Resp. to Def.'s Mot. to Correct PSR & Sentencing Mem. 13:15-14:16, ECF No. 145.)
The government is correct about Defendant's perjurious trial testimony and his sentencing antics. For example, in Defendant's filing docketed as number 147, he states: "[Pultorak] act[ed] in excess of his jurisdiction to seize property belonging to the defendant and others. If his concern had been defendant camping, he would have had him take his things. Defendant approached the officers because they were engaged in stealing his property . . . ." (Def.'s Reply to Gov't Resp. to Def.'s Mot. for Transcript & Ancillary Services 11:14-24, ECF No. 147.)
Further, in Defendant's Motion for Correction of Pre-Sentence Report, he states:
(Def.'s Mot. 3.)
These statements evince that Defendant willfully attempted to obstruct the administration of justice by obviously lying and concocting a false story that he was within his rights when he confronted Pultorak and Hardin during what he appears to characterize as an illegal investigation.
U.S.S.G. § 3C1.1 states, in relevant part:
Application Note 4 to this enhancement provides a non-exhaustive list of conduct to which it applies, which includes "committing . . . perjury[,]" and "providing materially false information to a judge."
"For perjury to be deemed obstruction, the . . . court must find that: `(1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent.'"
Probation recommends the obstruction of justice enhancement be applied on the following basis: "The defendant took the stand at trial and was not truthful. The defendant lied to the jury, indicating he was fully compliant with the officers' commands, and they (the officers) attacked him [without provocation]. Further, the defendant testified he acted out of self-defense." (PSR & 17.) The referenced statement that Defendant "indicat[ed at trial that] he was fully compliant with the officers' commands" does not accurately reflect Defendant's trial testimony.
Defendant testified at trial that when he entered the area of the campsite, he told Ranger Pultorak he returned to retrieve his property. He testified that Pultorak removed his handcuffs and twirled them on his finger to taunt him. Defendant further testified that Pultorak asked him if he had any weapons and directed him to turn around. Defendant testified that he said he was armed, but responded: "I'm not turning around now." Defendant also testified that after he informed Pultorak he was armed, Pultorak drew his weapon immediately and "gut shot" him. In essence, Defendant testified that was acting in self-defense and only fired his gun once he was shot.
The trial record establishes that Defendant gave willfully false testimony on the central issue in the case whether he drew and fired his pistol in self-defense. Contrary to Defendant's testimony, the trial record evinces that Ranger Pultorak and Officer Hardin were investigating reported stolen property located in the campsite when Pultorak heard rustling in the brush from an area where he did not expect a person to be. In response to that noise, Pultorak said: "Hello, police" twice. Defendant responded: "Yuh, it's me, you dealt with me earlier; I'm just coming to get my stuff." Pultorak asked Defendant, "Do you have any weapons?" Defendant said he was armed, and Pultorak told him to turn around. Defendant responded "I'm not turning around now," and Defendant exposed his pistol as Defendant assumed what was characterized as a "bladed stance"; Pultorak saw Defendant's right leg and foot move to Defendant's rear, and his right hand head to his waistband where his gun was holstered;
CHP Hardin testified that he heard Defendant say, "Hey this is my camp, this is my gear. Don't take my stuff." Hardin heard Pultorak ask, "Are you armed?" and Defendant pulled his jacket back, revealing a gun in a holster. Hardin further testified that Pultorak pulled out his handcuffs and Defendant said, "You're not putting those on me" and assumed a bladed stance, left hand out, right hand going toward his waist. Pultorak yelled at Defendant to "drop the gun, drop the gun," backing away. Defendant held his stance and pointed the gun. As soon as Defendant extended his gun, Hardin heard a shot.
In response, both Pultorak and Hardin returned fire. Defendant fired multiple rounds, striking Pultorak in the left shoulder and Hardin in a leg.
Pultorak's actions in attempting to detain Defendant during his and Hardin's investigation concerning the reported stolen property were lawful under the circumstances, given Defendant's conduct and demeanor and Pultorak's stated concerns during the trial that the two other men whom had been with Defendant earlier may also have been approaching the campsite.
Here, the trial record makes evident that Defendant failed to obey the lawful directives Pultorak gave him, and Defendant violently resisted being detained so Pultorak and Hardin could continue with their investigation; Defendant was not acting in self-defense. I disbelieve Defendant's trial testimony to the contrary. The falsity of Defendant's testimony is further evidenced by the statement Defendant gave to law enforcement investigators while he was in hospitalized for medical treatment.
Therefore, I find by a preponderance of the evidence that Defendant testified falsely at trial.
Further, I find by a preponderance of the evidence that Defendant's false testimony was material in that if believed it would have affected the jury's determination of his guilt, and that it was willful; his false testimony was not the "result of confusion, mistake, or faulty memory."
I also find by a preponderance of the evidence that Defendant has willfully continued to present his false version of events to me in an attempt to influence his sentencing, and that the false information is material. If believed, the false information would tend to affect Defendant's sentence.
For the stated reasons, a 2-level enhancement for obstruction of justice is applied.
This order shall be appended to any copy of the PSR made available to the Bureau of Prisons in accordance with Federal Rule of Criminal Procedure 32(i)(3)(c).