United States v. Ronald Collis

Majority - Boggs, Circuit Judge

1. Yes, submitting a forged letter to a district court in support of leniency constitutes obstruction of justice, regardless of whether it actually influenced the sentencing, so long as it had the natural and probable effect of impeding justice. The court reasoned that the indictment for obstruction of justice was sufficient because it tracked the language of 18 U.S.C. § 1503 and included the 'nexus' requirement articulated in United States v. Aguilar. This 'nexus' requires that the act have a 'natural and probable effect' of interfering with the due administration of justice, even if unsuccessful. The forged letter, by falsely portraying Collis in a favorable light regarding his employment, community service, and rehabilitation, clearly had the natural and probable effect of influencing the sentencing judge. The court rejected Collis's argument that actual impact on the sentence was required, citing United States v. Thomas and distinguishing United States v. Essex, finding the case more analogous to United States v. Barber, which upheld an obstruction charge for forged letters sent to a sentencing judge. 2. No, the district court did not err in finding the attorney-client privilege waived. The court found that Collis waived the privilege by voluntarily disclosing the substance of his communications with attorney Lippman to two government agents. The scope of the waiver extended to Lippman's testimony, which largely mirrored the information Collis had already divulged to the agents concerning Lippman's advice to get a letter, Collis's drafting of it, Lippman's suggested revisions, and Collis's return of the final version. Testimony about how Lippman received the letter was also not covered by privilege as it involved no legal advice, and even if it were, Collis's statements about how he assumed the letter reached Lippman constituted a waiver. 3. No, the district court did not err in applying the crime/fraud exception to the attorney-client privilege. The court applied the two-part test from In re Antitrust Grand Jury, requiring a prima facie showing that a sufficiently serious crime or fraud occurred (meaning a prudent person would have a reasonable basis to suspect perpetration) and a relationship between the communication at issue and the prima facie violation. The evidence — including the undisputed forgery, Collis's motive, his drafting of the original letter, and the testimony of Schwanitz and Lippman — provided a reasonable basis to suspect Collis was responsible for the fraudulent letter. The communication (advice on obtaining and preparing the letter) was clearly related to the objective of committing a fraud (submitting a forged letter to gain leniency), regardless of whether the fraud actually succeeded. 4. No, the district court did not err in enhancing Collis's sentence under U.S.S.G. § 2J1.2(b)(2) for 'substantial interference with the administration of justice.' The court rejected Collis's narrow interpretation of 'false evidence' in the commentary, explaining that sentencing courts receive information as 'evidence' for sentencing purposes even if it does not meet formal Federal Rules of Evidence standards. The forged letter was clearly relevant to sentencing and constituted 'false evidence' in this context. The court also rejected the argument that lack of actual sentencing impact negated the enhancement, noting Judge Zatkoff was not bound by guideline ranges, sentenced below the PSR recommendation, and that the forged letter was a significant mitigating item relied upon by defense counsel.