United States v. Elliot Hawkins , 51 F. App'x 192 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1524
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Elliot John Hawkins, *
* [UNPUBLISHED]
Defendant-Appellant. *
___________
Submitted: October 7, 2002
Filed: November 21, 2002
___________
Before MCMILLIAN, LAY, and RILEY, Circuit Judges.
___________
PER CURIAM.
Elliot John Hawkins pled guilty of violating 18 U.S.C. § 472 for the
possession, with intent to pass, of counterfeited United States currency in the amount
approximating $12,000. Three other co-defendants were indicted in related cases.
During Hawkins’ sentencing hearing, the Government alleged Hawkins had
obstructed justice by threatening potential Government witnesses, including two of
his co-defendants. The district court,1 pursuant to United States Sentencing
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
Guidelines § 3C1.1, found that the Government had shown by a preponderance of the
evidence that Hawkins had obstructed justice and, therefore, assessed a 2-level
sentence enhancement. He was sentenced to fifteen months imprisonment, followed
by two years of supervised release. Hawkins appeals, urging that the district court
should not have assessed the 2-level enhancement and, in fact, should have granted
him a 2-level reduction for acceptance of responsibility. We review the district
court’s findings of fact for clear error. 18 U.S.C. § 3742(e). See also United States
v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993) (A district court’s findings as to the
credibility of a witness are “virtually unreviewable on appeal.”).
During Hawkins’ sentencing hearing, the evidence revealed Hawkins learned
in early 2000 that the Secret Service was investigating his case and had been in
contact with his co-conspirators.2 An acquaintance of Mr. Hawkins, Schuyler Tafoya,
testified that shortly after learning of the investigation, Hawkins began talking to him
about his co-conspirators’ conversations with the Secret Service. Tafoya testified that
at one point in their conversations, Hawkins told him someone should “kill that . . .
snitch Worley.” Tafoya also testified that Hawkins knew Tafoya to be a drug dealer
with connections in Kansas City. The following year, after co-defendant Fischer had
been indicted, Hawkins again spoke with Tafoya. Tafoya testified that during this
conversation, Hawkins implied that he would like Tafoya to arrange to have Fischer
killed. Tafoya claimed Hawkins offered to give Tafoya an eight-unit apartment
building in Omaha and to help him attain his used car dealer’s license. Tafoya
testified he agreed to think about the offer but was arrested later that month on federal
drug charges. The Government offered the testimony of co-defendant, Kevin Jasa,
as corroboration. Jasa testified that he met Tafoya in jail and Tafoya told him of
Hawkins’ attempts to have Fischer killed. Josh Fischer also testified that on several
occasions Hawkins told him it would be better if Jasa were dead and that neither he
2
Hawkins’ co-conspirators included Kevin Jasa, Joshua Fischer, and James
Worley.
-2-
nor Fischer would be in trouble if Jasa could not testify against them. Hawkins has
admitted talking to Tafoya about managing an eight-plex apartment building, but he
denies any intention to threaten anyone.3
Hawkins argues the testimony given shows his statements were at best
ambiguous. He argues his statements were just his way of “blowing off steam.” The
Government responds by asserting that it takes very little for something to constitute
an attempt to obstruct justice. See United States v. Capps, 952 F.2d 1026, 1028-29
(8th Cir. 1991) (finding that a defendant’s comments that a snitch should have his
“ass kicked” by a biker, combined with talking to the biker about the snitch were
sufficient to form obstruction of justice). Hawkins also urges that none of his
“threats” were direct or intended to reach the potential witness. Despite this urging,
the district court found by a preponderance of the evidence that Hawkins had
obstructed justice sufficient to meet U.S.S.G. § 3C1.1.
After reviewing the record before us, the briefs submitted to this court on
appeal, and the decision of the district court, we conclude that the district court did
not commit clear error in assessing a 2-level enhancement for obstruction of justice.
Furthermore, the Guidelines are clear that, absent extraordinary circumstances, if a
defendant is given the obstruction of justice enhancement under U.S.S.G. § 3C1.1,
he is not eligible for the 2-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. We see no evidence that Hawkins’ situation was so extraordinary
that he was deserving of a 2-level reduction despite his enhancement for obstruction
3
Application note 4 of U.S.S.G. § 3C1.1 provides a non-exhaustive list of the
types of conduct that fall into the category of obstruction of justice. This list includes
“(a) threatening, intimidating, or otherwise unlawfully influencing a co-defendant,
witness, or juror, directly or indirectly, or attempting to do so . . . .” This court has
found that any statements the Government uses in alleging that a threat was made
must not be ambiguous. United States v. Emmert, 9 F.3d 699, 704-05 (8th Cir. 1993).
-3-
of justice. Accordingly, it was also not clear error for the district court to deny
Hawkins’ request for a 2-level reduction. The judgment, conviction, and sentence of
the district court are affirmed.
AFFIRMED.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
4