United States v. Nagell , 911 F.3d 23 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1058
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL NAGELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Luke S. Rioux and Rioux, Donahue, Chmelecki & Peltier, LLC on
brief for appellant.
Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for appellee.
December 19, 2018
TORRUELLA, Circuit Judge. A jury convicted Defendant-
Appellant Michael Nagell ("Nagell"), a registered sex offender, of
knowingly failing to update his registration, in violation of
18 U.S.C. § 2250(a). At sentencing, the district court imposed a
two-level obstruction of justice enhancement pursuant to U.S.S.G.
§ 3C1.1, after finding that Nagell had committed perjury when he
testified at trial in his own defense. The district court then
sentenced him to thirty months' imprisonment, at the middle of his
Guidelines sentencing range ("GSR"). Nagell now challenges the
district court's finding of obstruction of justice and the
resulting sentencing enhancement. We affirm.
I. Background
In 2007, Nagell was convicted on two counts of coercion
and enticement of a minor, in violation of 18 U.S.C. § 2422(b),
and one count of traveling to engage in illicit sexual activity,
in violation of 18 U.S.C. § 2423(b). He was sentenced to sixty
months of incarceration, to be followed by eight years of
supervised release. As a mandatory condition of his release,
under the Sex Offender Registration and Notification Act
("SORNA"), Nagell became a registrant in the Maine Sex Offender
Registry (the "Registry") upon his release from prison.
Nagell was required to annually complete and return a
"verification form" to the Registry. With that form, he also
needed to include a current passport photo and pay a twenty-five
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dollar fee. Additionally, if he changed his domicile, residence,
employment, or school between verification cycles, Nagell had to
notify local law enforcement within twenty-four hours of that
change, and also file a "notice of change of information report"
with the Registry within five days.1 Nagell acknowledged all of
these requirements in writing during his initial registration as
a sex offender, and received numerous reminders from his probation
officers and case workers in the years that followed.
Between 2012 and May 2015, Nagell's supervised release
was twice revoked, and he received prison sentences for failing to
comply with the conditions of his release, followed by additional
periods of supervised release. During this period of time, Nagell
also filed several annual verification and change of information
reports with the Registry. Nagell's third period of supervised
release began in July 2015. As a condition of this third period
of supervised release, he was placed in the Pharos House, a federal
halfway house in Portland, Maine, which aims to facilitate the
reintegration of convicts into society.
1 There is a discrepancy in the record as to whether Nagell had
to file his notice of change of information report with the
Registry within three or five days after changing his domicile,
residence, employment, or school, but the testimony at trial was
that it was within five days and that issue is nevertheless
immaterial in this case.
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Following his placement at Pharos House, Nagell held
several jobs. Immediately after his arrival at Pharos House,
Nagell's case manager, Kimberly Hartley ("Kim Hartley"), helped
him apply to Single Source Staffing ("SSS"), a temporary employment
agency. SSS hired him. In September 2015, SSS placed Nagell at
Earle W. Noyes & Sons Moving Specialists, Inc. ("Noyes") and, in
October 2015, at Emery-Waterhouse Company ("Emery-Waterhouse").2
Between October 2015 and December 10, 2015, Nagell received
concurrent SSS assignments at both Emery-Waterhouse and Noyes. On
December 21, 2015, Nagell informed his probation officer that he
had been hired as a full-time employee by Noyes and that his prior
employment with SSS (and consequently with Emery-Waterhouse) had
ceased.3 From July 2015 to April 2016, the only Registry updates
regarding employment changes were filed on December 28, 2015 and
January 13, 2016, and listed Emery-Waterhouse as Nagell's
employer.
Nagell's residency information also changed during this
period. In September 2015, he moved out of Pharos House and back
into his pre-conviction residence in Bath, Maine. Although he
notified his probation officer of his change of address, he did
2 Between July 2015 and December 2015, Nagell was also employed
by Allstate Cleaners and by a moving company named Bunzl, though
not through SSS.
3 Nagell worked full-time at Noyes until late April 2016.
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not file the corresponding notice of change of information report
with the Registry. Consequently, in November 2015, the Registry
mailed Nagell's annual verification form to Pharos House. The
form was twice returned to the Registry as undeliverable, and
finally reached Nagell at his new address after the Bath Police
Department informed the Registry of Nagell's new residence.
On December 28 or 29, 2015, Nagell completed his annual
verification form, along with a notice of change of information
report updating his residence and employer information, at the
Bath Police Department.4 In the report, however, he identified
his employer as "Emery & Waterhouse," even though he had become a
full-time employee at Noyes on December 21, 2015, and had ended
his professional affiliation with Emery-Waterhouse and SSS earlier
in December 2015. The Registry received Nagell's forms on
January 4, 2016. Because Nagell did not provide a full physical
address for his listed employer, the Registry sent a letter back
to Nagell on January 4, 2016, requesting that he provide his
employer's address. In response, Nagell submitted a new notice
of change of information report, dated January 13, 2016, in which
he once again listed Emery-Waterhouse as his employer and included
4 It seems that Nagell signed the form on December 28th, but
completed other sections of the form on December 29th.
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its address. The Registry received that new form on January 20th.
Nagell did not update his employment information after that.
Nagell continued to work full-time at Noyes until late
April 2016. On April 27, 2016, Nagell's probation officer filed
a petition to revoke Nagell's supervised release for, inter alia,
failing to provide the Registry with his updated employment
information. The court issued an arrest warrant and, on May 3,
2016, Nagell was arrested. A one-count Information charged Nagell
with knowingly failing to update his sex offender registration
between December 2015 and April 2016, in violation of 18 U.S.C.
§ 2250(a).5 A two-day jury trial in the United States District
Court for the District of Maine followed.
The parties entered a stipulation as to the first two
elements of the crime, namely, that Nagell was a sex offender under
SORNA by reason of a conviction under federal law, and that as a
result of that conviction, he was required to register under SORNA.
The only contested issue that remained was whether Nagell knowingly
failed to update his employment information at the Registry between
December 2015 and April 2016, as required by SORNA.
5 18 U.S.C. § 2250(a) reads, in part:
Whoever . . . is required to register under the Sex
Offender Registration and Notification Act; . . .
knowingly fails to register or update a registration
as required by the Sex Offender Registration and
Notification Act shall be fined under this title or
imprisoned not more than 10 years, or both.
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At trial, the following five witnesses testified for the
government's case-in-chief: Nagell's Probation Officer, Kristin
Cook; SSS's Director of Recruiting, Jeremy Jackson; Noyes's Vice
President, William Noyes; Office Associate II at the Registry,
Sally Taylor; Bath Police Department Detective, Andrew Booth. The
defense's only witness was Nagell, who took the stand in his own
defense. Nagell's testimony led the prosecution to call Kim
Hartley as a rebuttal witness. The jury found Nagell guilty as
charged.
At sentencing, the government -- arguing that Nagell had
willfully obstructed the administration of justice by committing
perjury at trial -- asked for a two-level enhancement pursuant to
U.S.S.G. § 3C1.1. The government relied on two instances at trial
where witness testimony directly contradicted Nagell's statements
under oath.
The first instance involved Nagell's testimony
concerning his state of mind as to his failure to register. On
direct examination, Nagell claimed that Kim Hartley, his case
manager at Pharos House, had told him that she had updated his
information at the Registry. When asked why he did not report
Noyes as his current employer, Nagell responded, "Because when I
was at the halfway house Kim said everything was taken care of.
So she said she put my current jobs and current address on the
information, but the form never appeared." During cross
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examination, when the prosecutor asked Nagell whether he had sent
any notice of change of information report to the Registry updating
his employment information while at Pharos House, Nagell responded
that he didn't because "Kim said she took care of that. . . . I
asked her twice."
Kim Hartley's testimony as a rebuttal witness directly
contradicted Nagell's statements on the stand. The following
exchange is illustrative:
Q: As a general matter, when a resident of
Pharos House, somebody . . . who is part of
your caseload, obtains employment outside the
house, have you ever notified the sex offender
registry on their behalf?
A: Never.
Q: Have you ever told –- told one of the
residents that you would do that on their
behalf?
A: Never.
Q: With respect to Mr. Nagell specifically,
did you ever notify the sex offender registry
of changes in his employment on his behalf?
A: No.
Q: Did you ever tell him that you would do
that?
A: No.
On cross-examination, Kim Hartley testified that she had
met with Nagell thirty to forty times during his time at Pharos
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House, and could not recall that Nagell ever "spoke to [her] about
the issue of registration."
The second instance of contradictory testimony concerned
Nagell's alleged visit to the Bath Police Department on January 13,
2016. According to Detective Booth's testimony, the Bath Police
Department's practice was to create an internal record of any
contact with a member of the public, referred to as an "incident"
report. Detective Booth further testified that the Bath Police
Department had record of only two incident reports involving Nagell
between December 2015 and January 2016. The first one, dated
December 29, 2015, indicated that Nagell visited the police station
to complete his annual verification form and a notice of change of
information report with Detective Marc Brunelle ("Detective
Brunelle"), a sex offender specialist. 6 The second incident
report, dated January 7, 2016, pertained to the notice that the
Bath Police Department had issued to Nagell's neighborhood,
informing that a sex offender lived in the area.
According to Detective Booth, on December 28, 2015,
Nagell signed the verification form and notice of change of
information report mailed to him by the Registry, in which he
identified Emery-Waterhouse as his employer, despite the fact that
6 The form is dated December 28th but Detective Booth testified
that Nagell visited the station on December 29th.
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he no longer worked there. He failed to include the physical
address of his new employer. Detective Booth further testified
that, on December 29, 2015, Nagell met with Detective Brunelle at
the Bath Police Department regarding his registration forms.
Detective Brunelle verified Nagell's identity, took his
fingerprints, and filled out the lower half of the verification
form. He also scanned a copy of the forms for the Department's
records before mailing them to the Registry. All of this was
standard practice.
The Registry received Nagell's forms on January 4, 2016.
Because Nagell did not provide a complete physical address for his
listed employer, the Registry requested that Nagell provide his
employer's address information and enclosed a blank notice of
change of information report.
On January 13, 2016, Nagell filled out and signed the
notice of change of information report, providing Emery-
Waterhouse's complete address, even though he no longer worked
there. The form did not list Noyes as an employer. The Registry
received the updated form on January 20, 2016. Nagell did not
update his employment information after January 20, 2016.
During direct examination, Nagell claimed that he had
filled out the January 13 form at the Bath Police Department with
a police officer other than Detective Brunelle. Nagell claimed
that there was a second page to this report, and that on it "the
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detective wrote [']self-employed,['] put 27 Cobb Road on, and also
put Noyes, and I didn't have the address for Noyes." Nagell also
testified that he went home to get the address for Noyes and that
he called the Bath Police Department the next day to relay it to
the officer. But, Nagell explained, the officer who had helped
him the day before was out, so he communicated the address to the
woman who answered the call. This testimony, however, was
strongly contradicted by that of Detective Booth, who testified
that the Bath Police Department did not have any incident report
for Nagell's alleged visit to the Department on January 13th or a
scanned copy of the form. Pursuant to the Department's standard
practice, it would have had both of these things had Nagell gone
to the Department on January 13th.
According to the government, Nagell's testimony about
Kim Hartley's statements and his alleged, yet unrecorded,
January 13, 2016 visit to the Bath Police Department were clear
instances of perjury and constituted grounds to impose the
obstruction of justice enhancement. The government further argued
that the jury's rejection of Nagell's statements also supported a
finding of perjury. Nagell's defense counsel objected to the
sentencing enhancement, claiming that the differing testimonies
did not amount to perjury. Rather, defense counsel insisted they
merely reflected different recollections of events. Defense
counsel further argued against a finding of perjury by suggesting
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that Kim Hartley could not remember the content of every
conversation she had with Nagell and that, because one page of the
January 13, 2016 notice of change of information report made it to
the Registry, there was "some basis for [Nagell] to believe that
he had in fact submitted the full documentation to the [Registry]."
The sentencing judge, who also presided over the trial,
found that,
[T]he defendant committed perjury during the course
of that hearing on a material matter . . . in asserting
that his caseworker at Pharos House, Kim Hartley, had
told him that she would handle the registration for
him and that he assumed that his registration had been
updated. I believe Ms. Hartley testified that she
never promised that she would do that. I also find
that Mr. Nagell never hand delivered a registration
update form to the Bath Police Department and that he
relied on the Bath Police Department to deliver that
form to the State. I find that, based on the
testimony of Detective Booth, that testimony is
unbelievable and I find it to be perjurious.
Accordingly, the judge applied a two-level enhancement
pursuant to U.S.S.G. § 3C1.1,7 which increased Nagell's offense
7 Section 3C1.1 of the Sentencing Guidelines states as follows:
If (1) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation,
prosecution, or sentencing of the instant offence of
conviction, and (2) the obstructive conduct related
to (A) the defendant's offense of conviction and any
relevant conduct; or (B) a closely related offense,
increase the offense level by 2 levels.
U.S.S.G. § 3C1.1.
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level from fourteen, see U.S.S.G. § 2A3.5(a)(2), to sixteen.
This, in conjunction with Nagell's criminal history category of
III, yielded a GSR of twenty-seven to thirty-three months'
imprisonment. The district court thereafter sentenced Nagell to
thirty months in prison, to be followed by ten years of supervised
release.
Nagell now appeals, challenging the district court's
finding of perjury and the resulting sentencing enhancement. He
argues the district court clearly erred in holding that his
testimony contradicted the testimony of other witnesses, and
constituted a willful attempt at obstruction of justice.
II. Discussion
A. Standard of Review
We review preserved objections to the district court's
legal interpretation of the Sentencing Guidelines de novo, and
review for clear error the court's factual findings.
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
Clear error is a deferential standard, under which affirmance is
proper unless "upon whole-record-review, an inquiring court
'form[s] a strong, unyielding belief that a mistake has been
made.'" United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st
Cir. 2010) (alteration in original) (quoting Cumpiano v. Banco
Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)).
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B. Applicable Law
The government bears the burden of proving the facts
underlying its sentencing enhancement recommendation by a
preponderance of the evidence. United States v. Cannon, 589 F.3d
514, 517 (1st Cir. 2009) ("Where, as here, a defendant challenges
the factual predicate supporting the district court's application
of a sentencing enhancement, 'we ask only whether the court clearly
erred in finding that the government proved the disputed fact by
a preponderance of the evidence.'" (quoting United States v.
Luciano, 414 F.3d 174, 180 (1st Cir. 2005))).
Section 3C1.1 of the Guidelines calls for a two-level
enhancement "[i]f . . . the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction." U.S.S.G.
§ 3C1.1. Application Note 4 lists perjury among the sorts of
conduct this enhancement is intended to cover. U.S.S.G. § 3C1.1,
cmt. n.4(B). The Supreme Court has adopted the federal definition
of criminal perjury to serve as the meaning of perjury in this
context, defining it as "[giving] false testimony [under oath]
concerning a material matter with the willful intent to provide
false testimony, rather than as a result of confusion, mistake, or
faulty memory." United States v. Dunnigan, 507 U.S. 87, 94 (1993)
(citing 18 U.S.C. § 1621(1)).
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The sentencing enhancement for perjury, however, "is not
intended to punish a defendant for the exercise of [his]
constitutional right" to testify. U.S.S.G. § 3C1.1, cmt. n.2;
see also Dunnigan, 507 U.S. at 95 ("[N]ot every accused who
testifies at trial and is convicted will incur an enhanced sentence
under § 3C1.1 for committing perjury."). "The enhancement does
apply, however, if a defendant exercises his right to testify at
trial but commits perjury in the process." United States v.
Mercer, 834 F.3d 39, 48 (1st Cir. 2016) (citing U.S.S.G. § 3C1.1,
cmt. n.4).
The enhancement should not be applied mechanically
"merely because an evidentiary conflict exists or because the jury
rejects the defendant's explanation of the facts and finds him
guilty." United States v. Gobbi, 471 F.3d 302, 314 (1st Cir.
2006) (citing United States v. Akitoye, 923 F.2d 221, 228-29
(1st Cir. 1991)). Instead, in order to apply an obstruction of
justice enhancement for perjury, the sentencing judge has to make
"findings that 'encompass all the elements of perjury -- falsity,
materiality, and willfulness.'" Mercer, 834 F.3d at 49 (quoting
United States v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994)). "A
sentencing court, however, is not required to address each element
of perjury in a separate and clear finding." Id. (quoting Matiz,
14 F.3d at 84). A single finding of perjury is sufficient to
uphold the lower court's sentencing enhancement for obstruction of
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justice. United States v. D'Andrea, 107 F.3d 949, 959 (1st Cir.
1997).
A finding of falsity "[does] not require directly
contradictory testimony but may spring from a solid foundation of
circumstantial evidence". Akitoye, 923 F.2d at 229. "Where, as
here, the sentencing judge has presided over the trial, we must
allow him reasonable latitude for credibility assessments."
United States v. Shinderman, 515 F.3d 5, 19 (1st Cir. 2008).
Materiality is defined in the Guidelines as "evidence,
fact, statement, or information that, if believed, would tend to
influence or affect the issue under determination." U.S.S.G.
§ 3C1.1 cmt. n.6; see also Shinderman, 515 F.3d at 19. The
materiality of a false statement is inferable from the entirety of
the record and the issues at stake at trial. See Matiz, 14 F.3d
at 84 (finding a statement material because "if believed, the jury
would have acquitted [the defendant]").
Finally, the level of culpability required by the
obstruction of justice enhancement is willfulness. U.S.S.G.
§ 3C1.1, cmt. n.2; see also United States v. Reynoso, 336 F.3d 46,
50 (1st Cir. 2003) ("[F]alse testimony caused by mistake, confusion
or poor memory is not perjurious."). Sufficient materiality could
suggest the willfulness of the false statement. See Mercer,
834 F.3d at 49.
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C. Analysis
Nagell submits that the district court erred in applying
the two-level sentencing enhancement for obstruction of justice.
Specifically, he argues that his testimony did not directly
contradict that of the other witnesses and that it was ambiguous
at best. We disagree. The district judge's factual findings are
well-supported by the record, and his application of the sentencing
enhancement encompasses all three elements of perjury -- falsity,
materiality, and willfulness. See Dunnigan, 507 U.S. at 95-96;
Mercer, 834 F.3d at 49.
Nagell contends that the district court failed to
resolve testimonial ambiguities in his favor, under the principle
of lenity embodied in the Guidelines. See United States v. Clark,
84 F.3d 506, 509-10 (1st Cir. 1996). His reliance on Clark,
however, is misguided. Prior to their amendment in 1997, the
Guidelines provided that "[i]n applying [Section 3C1.1] in respect
to alleged false testimony or statements by the defendant, such
testimony or statements should be evaluated in a light most
favorable to the defendant." U.S.S.G. § 3C1.1, cmt. n.1 (Nov.
1995). This language was removed from the Guidelines in 1997.
United States v. McKeeve, 131 F.3d 1, 15 (1st Cir. 1997) (citing
U.S.S.G. App. C, amend. 566 (Nov. 1997)); see also United States
v. Greer, 285 F.3d 158, 182-83 (2d Cir. 2002) (remanding the case
for resentencing due to the district court's application of the
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old standard). As things currently stand, the district court has
the responsibility to make credibility determinations about
witnesses and make independent findings of fact based on a
preponderance of the evidence, as the district judge did here.
See Dunnigan, 507 U.S. at 95; Reynoso, 336 F.3d at 50 ("[T]he
district court is the primary arbiter of witness credibility under
U.S.S.G. § 3C1.1.").8
Nonetheless, even under the no-longer operative standard
set forth in the now repealed Guidelines committee note, the record
still provides clear support for the finding that Nagell committed
perjury. Both on direct and cross examination, Nagell plainly and
repeatedly stated that he did not think he needed to update his
employment information because "Kim said she took care of that."
This assertion prompted the government to introduce Kim Hartley,
who flatly denied ever having given such assurance to Nagell or
any other resident in the Pharos House. Nagell suggests that Kim
Hartley's testimony as a whole was ambiguous as to whether she may
8 Nagell also cites Gobbi, 471 F.3d at 314, in support of his
contention that "the sentencing court . . . must give the defendant
the benefit of any plausible doubt." However, this sentence in
Gobbi cites to and relies on a portion of Akitoye, 923 F.2d at
228-29, that expressly discusses the now defunct "light most
favorable" language in U.S.S.G. § 3C1.1 cmt. n.1 (1995). Because
this language was removed from the Guidelines in 1997, Gobbi's
instruction that the district court give the defendant the benefit
of any plausible doubt should not be followed here or in the
future.
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have given this impression to Nagell, but she consistently denied
the defense counsel's questions on the issue. The sentencing
court could have easily given more credit to Kim Hartley's
testimony and concluded that Nagell's statements were not the
result of confusion, mistake or faulty memory, but of his intent
to mislead the jury. See D'Andrea, 107 F.3d at 959.
Moreover, although a single finding of perjury would be
sufficient to affirm the sentencing enhancement, D'Andrea,
107 F.3d at 959, the district court's second finding of perjury is
also reasonably supported by the record. Nagell claimed in his
testimony that he visited the Bath Police Department twice, on
December 29, 2015 and January 13, 2016. During the second visit,
he allegedly filled out a change of information form with an
unidentified police officer who did not testify at trial, and the
second page of the form containing the required information
allegedly went missing. The Department's records corroborated the
first visit, but the second, crucial visit on January 13th cannot
be squared with Detective Booth's testimony regarding the
Department's standard practice. The sentencing judge could have
reasonably found the alleged visit to be "unbelievable" and
Nagell's statements on it perjurious. We therefore find no error
in this finding, let alone clear error.
Finally, Nagell challenges the materiality of the
statements that the judge found to be perjurious. As defense
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counsel argued during trial, however, Nagell's statements were
material to his defense strategy. Through his testimony, Nagell
attempted to negate having a mens rea of "knowingly," which was an
element of the crime. If the jury believed him, his statements
could have changed the outcome of the case, and so the statements
were material. U.S.S.G. § 3C1.1 cmt. n.6; Shinderman, 515 F.3d
at 19; Matiz, 14 F.3d at 84.
III. Conclusion
Because the district court neither committed clear error
in finding that Nagell perjured himself at trial, nor,
consequently, in imposing the two-level enhancement for
obstruction of justice, we affirm.
Affirmed.
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