Submitted: October 28, 2015
Appeal from a judgment of conviction and sentence of 168 months' imprisonment and 5 years' supervised release entered on June 25, 2014, against Defendant-Appellant Michael Thompson, and appeal from a judgment of conviction and sentence of 144 months' imprisonment and 5 years' supervised release, entered on June 27, 2014, and amended on July 29, 2014, against co- Defendant-Appellant Tylon Vaughn, both by the United States District Court for the District of Connecticut (Burns, S.J.), following a jury trial. With respect to Thompson only, we hold that the district court failed to make the requisite finding of specific intent to obstruct justice before imposing an obstruction-of- justice sentencing enhancement. For this reason, and for the reasons stated in the accompanying summary order issued herewith, we AFFIRM in part and VACATE in part, and we REMAND only Thompson's case for further proceedings consistent with this opinion.
Marc H. Silverman (S. Dave Vatti and Sandra S. Glover, on the brief), Assistant United States Attorneys, for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT.
Jonathan J. Einhorn, New Haven, CT, for Defendant-Appellant Michael Thompson.
Sebastian O. DeSantis, New London, CT, for Defendant-Appellant Tylon Vaughn.
Before: Katzmann, Chief Judge, Pooler and Chin, Circuit Judges.
Defendant-Appellant Michael Thompson appeals his sentence following a jury trial and judgment of conviction. In this opinion, we address only Thompson's objection to the decision of the United States District Court for the District of Connecticut (Burns, S.J.) to impose a two-level sentencing enhancement for obstruction of justice based on a recommendation in Thompson's presentence report ("PSR"). Thompson contends that the district court erred by not making a finding of specific intent to obstruct justice. We agree.
On May 22, 2012, members of a Drug Enforcement Agency task force went to Thompson's apartment with an arrest warrant. After placing Thompson in handcuffs and conducting a protective sweep of the apartment, the officers asked if Thompson would consent to a search of the apartment. Thompson eventually consented, but he later moved to suppress two digital scales and $2, 000 in cash obtained from the apartment, arguing that his consent was coerced because the officers threatened to arrest his sister and girlfriend unless he consented. The district court held an evidentiary hearing on June 25, 2013, and it denied Thompson's motion in a written order on September 17, 2013.
In finding that Thompson's consent was voluntary, the district court's suppression order focuses on the exact words that Officer David Rivera said to Thompson and the timing of these words in relation to Thompson's consent. The district court concluded that Rivera informed Thompson that he was seeking a warrant and that everyone in the apartment could be arrested if evidence of contraband was found. According to the district court, "Rivera chose his words with care and the difference between what he said and what he did not say is significant and dispositive." United States v. Thompson, No. 3:12CR97(EBB), 2013 U.S. Dist. LEXIS 132541, at *17 (D. Conn. Sept. 17, 2013) (citing United States v. Guzman, 724 F.Supp.2d 434, 443 (S.D.N.Y. 2010); United States v. Perez, 198 F.Supp.2d 406, 414–15 (S.D.N.Y. 2002)).
In reaching this conclusion, the district court stated that it found credible the testimony of Rivera and Officer Steven Silk and it found not credible Thompson's testimony.  Specifically, the district court took issue with the following exchange between Thompson and his counsel during direct examination at the hearing. Thompson testified, "[The officers] got on the phone, they threatened me with – they said if they search the house and they found anything, they was going to take my sister and my girlfriend at the time to jail." App. 69–70. Thompson's attorney then rephrased his statement, "So they told you they would be taking your sister and your girlfriend to jail unless you agreed to a voluntary search, is that your testimony." App. 70. Thompson replied, "Yes." Id. The district court observed:
Significantly, Thompson did not say that Rivera told him that the women would be arrested if he refused to give his consent. It was only in response to his attorney'[s] next question, which was leading and mischaracterized what Thompson had just said, that Thompson agreed that Rivera ...