AMENDMENT 693

Amendment: Section 3C1.1 is amended by striking "during the course of" and inserting "with respect to".

The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 1 by inserting "In General.—" before "This adjustment"; by striking "during the course of" and inserting "with respect to"; and by inserting at the end the following:

"Obstructive conduct that occurred prior to the start of the investigation of the instant offense of conviction may be covered by this guideline if the conduct was purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction.".

The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 2 by inserting "Limitations on Applicability of Adjustment.—" before "This provision"; in Note 3 by inserting "Covered Conduct Generally.—" before "Obstructive"; in Note 5 by inserting "Examples of Conduct Ordinarily Not Covered.—" before "Some types"; in Note 6 by inserting "‘Material’ Evidence Defined.—" before "‘Material’ evidence"; in Note 7 by inserting "Inapplicability of Adjustment in Certain Circumstances.—" before "If the defendant"; in Note 8 by inserting "Grouping Under §3D1.2(c).—" before "If the defendant"; and in Note 9 by inserting "Accountability for §1B1.3(a)(1)(A) Conduct.—" before "Under this section".

The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 4 by inserting "Examples of Covered Conduct.—" before "The following"; in subdivision (b) by inserting ", including during the course of a civil proceeding if such perjury pertains to conduct that forms the basis of the offense of conviction" after "suborn perjury"; by striking the period at the end of subdivision (j) and inserting a semi-colon; and by adding at the end the following subdivision:

"(k) threatening the victim of the offense in an attempt to prevent the victim from reporting the conduct constituting the offense of conviction.".

Reason for Amendment: This amendment addresses a circuit conflict regarding the issue of whether pre-investigative conduct can form the basis of an adjustment under §3C1.1 (Obstructing or Impeding the Administration of Justice). The First, Second, Seventh, Tenth, and District of Columbia Circuits have held that pre-investigation conduct can be used to support an obstruction adjustment under §3C1.1. Compare United States v. McGovern, 329 F.3d 247, 252 (1st Cir. 2003)(holding that the submission of false run sheets to Medicare and Medicaid representatives qualified for the enhancement even though "the fact that there was no pending federal criminal investigation at the time of the obstruction did not disqualify a defendant from an enhancement when there was a ‘close connection between the obstructive conduct and the offense of conviction.’"(quoting United States v. Emery, 991 F.2d 907, 911(1st Cir. 1992))); United States v. Fiore, 381 F.3d 89, 94 (2nd Cir. 2004)(defendant’s perjury in an SEC civil investigation into defendant’s securities fraud constituted obstruction of justice of the criminal investigation of the same "precise conduct" for which defendant was criminally convicted, even though the perjury occurred before the criminal investigation commenced); United States v. Snyder, 189 F.3d 640, 649 (7th Cir. 1999)(holding the adjustment appropriate in case in which defendant made pre-investigation threat to victim and did not withdraw his threat after the investigation began, thus obstructing justice during the course of the investigation); United States v. Mills, 194 F.3d 1108, 1115 (10th Cir. 1999)(holding that destruction of tape that occurred before an investigation began warranted application of the enhancement because the defendant knew an investigation would be conducted and understood the importance of the tape to that investigation); and United States v. Barry, 938 F.2d 1327, 1333-34 (D.C. Cir. 1991)("Given the commentary and the case law interpreting §3C1.1, we conclude that the enhancement applies if the defendant attempted to obstruct justice in respect to the investigation or prosecution of the offense of conviction, even if the obstruction occurred before the police or prosecutors began investigating or prosecuting the specific offense of conviction."), with United States v. Baggett, 342 F.3d 536, 542 (6th Cir. 2003)(holding that the obstruction of justice enhancement could not be justified on the basis of the threats that the defendant made to the victim prior to the investigation, prosecution, or sentencing of the offense); United States v. Stolba, 357 F.3d 850, 852-53 (8th Cir. 2004)(holding that an obstruction adjustment is not available when destruction of documents occurred before an official investigation had commenced); United States v. DeGeorge, 380 F.3d 1203,1222 (9th Cir. 2004)(perjury during a civil trial as part of a scheme to defraud was not an obstruction of justice of a criminal investigation of the fraudulent scheme because the criminal investigation had not yet begun at the time the defendant perjured himself); see also United States v. Clayton, 172 F.3d 347, 355 (5th Cir. 1999)(holding that defendant’s threats to witnesses warrant the enhancement under §3C1.1, but stating in dicta that the guideline "specifically limits applicable conduct to that which occurs during an investigation. . . .").

The amendment, which adopts the majority view, permits application of the guideline to obstructive conduct that occurs prior to the start of the investigation of the instant offense of conviction by allowing the court to consider such conduct if it was purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction. The amendment also adds, as examples of covered conduct in Application Note 4, (A) perjury that occurs during the course of a civil proceeding if such perjury pertains to the conduct that forms the basis of the offense of conviction; and (B) conduct involving threats to the victim of the offense if those threats were intended to prevent the victim from reporting the conduct constituting the offense of conviction. Finally, the amendment changes language in §3C1.1(A) from "during the course of" to "with respect to."

Effective Date: The effective date of this amendment is November 1, 2006.