USA v. Michael Schwartz
Filing
OPINION filed: The district court correctly applied the two-level enhancement whether based on perjury or destruction of evidence, and reasonably sentenced defendant accordingly, We AFFIRM, decision not for publication. Ralph B. Guy, Jr. (authoring), John M. Rogers, and Raymond M. Kethledge, Circuit Judges.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0359n.06
Case No. 16-1895
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA,
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Plaintiff-Appellee,
v.
MICHAEL SCHWARTZ,
Defendant-Appellant.
Jun 21, 2017
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
__________________________________/
Before: GUY, ROGERS, and KETHLEDGE, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Defendant, Michael Schwartz, appeals his
conviction and sentence for four counts related to child pornography. We affirm.
I.
Defendant married Amy Bradley and moved in with her and her adolescent
children. Soon after, defendant drilled small holes in the wall between a storage space
and Bradley’s 12-year-old daughter’s bedroom. Using a smartphone or tablet computer,
defendant recorded Bradley’s daughter in various states of undress.
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Bradley discovered a video of her daughter on defendant’s tablet and confronted
him at his workplace, Lowe’s, demanding he return keys to her home and telling him he
would go to prison. Defendant followed Bradley out of his workplace, and in the parking
lot yelled that he didn’t put the holes in her daughter’s wall – a fact Bradley had not
mentioned. Bradley brought the tablet to the police but had trouble locating the video in
question, as defendant had attempted to delete it remotely. Officers obtained search
warrants for defendant’s tablet and online accounts, and found numerous images of real
and simulated child pornography.
After Bradley confronted defendant, he contacted his pastor, Daniel Parker, and
requested a meeting. Unbeknownst to defendant, Bradley had already told Parker’s wife
about the video, who informed Parker of its content. Parker thought defendant seemed
“erratic” and “in a place of harm,” so he met defendant at a diner, “an open ground public
place.” Parker immediately informed defendant that he was a mandatory reporter and
would “have to share information if there’s harm to others or themselves.” Defendant
told Parker that he kept a video he “felt very bad about having” for a couple days, then
deleted it, but Bradley somehow discovered it. Parker asked defendant if he ever touched
his stepdaughter, and he replied, “I don’t touch, I just look.”
Defendant subsequently left the state, but soon contacted his local police
department to ask “what kind of trouble” he could be in. Acting on information from
local authorities, federal agents arrested defendant in South Carolina. The government
charged him with one count of sexual exploitation of a child and attempted sexual
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exploitation of a child (18 U.S.C. § 2251(a) and (e)), and three counts of possession of
child pornography (18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), 2256(8)(A)).
Prior to trial, the government moved for a ruling on the admissibility of Parker’s
testimony, anticipating defendant would invoke the clergy-communicant privilege. The
district court instructed defendant to file a response should he wish to do so, but
defendant did not contest the admissibility of Parker’s testimony. The district court
admitted Parker’s testimony, finding the privilege inapplicable since defendant had no
expectation of confidentiality.
Defendant likewise did not object to admission of
Bradley’s testimony. After a brief deliberation, the jury found defendant guilty on all
counts.
At sentencing, defendant objected to a two-level enhancement for obstruction of
justice based on perjury and/or destruction of evidence. See U.S.S.G. § 3C1.1. The
district judge overruled the objection. He stated that he would “wade into the nature of
the testimony offered,” and found that “this jury did exactly what the judge did in
listening to the testimony: found the defendant’s testimony less than credible.” The
district judge further ruled that, after “spen[ding] quite a bit of time going through this,”
he “believe[d] that this defendant was not truthful in this courtroom,” and that his
testimony was “perjurious.”
The court applied the obstruction enhancement and
sentenced defendant to 240 months of imprisonment. Defendant appeals, renewing his
objection to the obstruction-of-justice enhancement and newly challenging the
admissibility of testimony from Parker and Bradley.
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II.
We review defendant’s forfeited evidentiary arguments for plain error. FED. R.
CRIM. P. 52(b). Plain error exists where defendant demonstrates “(1) error (2) that was
obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness,
integrity, or public reputation of the judicial proceedings.” United States v. Vonner,
516 F.3d 382, 386 (6th Cir. 2008) (quotation marks omitted).
We review the imposition of an obstruction-of-justice enhancement under a threepart approach, reviewing the district court’s finding of facts for clear error, its conclusion
that the facts constitute obstruction of justice de novo, and the application of the
enhancement itself de novo. United States v. Chance, 306 F.3d 356, 389 (6th Cir. 2002).
III.
a. Parker’s Testimony
Defendant argues that the district court should not have admitted Parker’s
testimony as it involved a confidential communication between a congregant and a
member of the clergy acting as such. See In re Grand Jury Investigation, 918 F.2d 374,
384 (3d Cir. 1990) (extending privilege to “communications made (1) to a clergyperson
(2) in his or her spiritual and professional capacity (3) with a reasonable expectation of
confidentiality”) (footnote omitted).
We have neither recognized nor rejected the clergy-communicant privilege.
Sampson v. Sisters of Mercy of Willard, Ohio, No. 3:12cv824, 2016 WL 362357, at *2
(N.D. Ohio Jan. 29, 2016). This case does not require us to address the status of the
privilege, given the circumstances of defendant’s communication with Parker.
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Regardless of whether a clergy-communicant privilege is available in this circuit,
defendant had no “reasonable expectation of confidentiality” in his statements to Parker
in a public place after Parker stated he was a mandatory reporter. In re Grand Jury
Investigation, 918 F.2d at 384-85; see also 56 F.R.D. 183, 247 (“A communication is
‘confidential’ if made privately and not intended for further disclosure except to other
persons present in furtherance of the purpose of the communication.”) Defendant has
failed to establish the predicate for an assertion of the clergy-communicant privilege.
The district court did not plainly err in admitting Parker’s testimony, or in later
considering it at sentencing.
b. Bradley’s Testimony
Defendant also contends that the district court erred in admitting his ex-wife’s
testimony regarding statements he made during their marriage. We recognize the marital
communications privilege, which “excludes confidential communications made by one
spouse to the other during the marriage.” United States v. Porter, 986 F.2d 1014, 1018
(6th Cir. 1993). The privilege may be asserted by either spouse, even after divorce, and
applies to “utterances or expressions intended by one spouse to convey a message to the
other” made in confidence during a marriage recognized as valid by state law. Id.
(citation omitted).
Defendant yelled an inculpatory statement to Bradley in his workplace parking lot,
which was not an area where communications are reasonably thought confidential.
Defendant’s choice to yell the statement in an area where people are regularly present
significantly diminishes any expectation of confidentiality.
His statement is thus
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excepted from the marital communications privilege.
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See United States v. Klayer,
707 F.2d 892, 894 (6th Cir. 1983). The district court did not plainly err in admitting
Bradley’s testimony.
c. Sentencing
Defendant lastly challenges the reasonableness of his sentence in light of the
district court’s imposition of a two-level enhancement for obstruction of justice.
Although the government argued both perjury and destruction of evidence as bases for
enhancement, the district court discussed only the former in applying it.
i. Perjury
To enhance based on perjury, the district court must find that defendant “testified
falsely ‘concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.’” Chance, 306 F.3d at
390 (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)). The district court
should address each element of perjury “in a separate and clear finding,” but may apply
the enhancement if it “makes a finding of an obstruction of, or impediment to, justice that
encompasses all of the factual predicates for a finding of perjury.” Dunnigan, 507 U.S. at
95.
In Dunnigan, the district court applied a § 3C1.1 enhancement for perjury where
“the defendant was untruthful at trial with respect to material matters,” where the failure
to give truthful testimony was “designed to substantially affect the outcome of the case.”
Id. The Supreme Court affirmed the district court’s finding of perjury on the basis that
“numerous witnesses . . . contradicted” defendant’s testimony. Id.
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The district court below made an explicit finding that defendant’s testimony was
perjurious. It discussed the wide gap between his testimony and that of “everyone else
that was involved in this matter,” and found that it was “not even a close question” that
defendant was untruthful. Under Dunnigan and Chance, this was enough to find perjury
and thus obstruction of justice.
See Chance, 306 F.3d at 390 (where testimony is
“pervasively perjurious,” a district court is “not required to cite the perjury line-by-line if
its findings encompass the factual predicates for finding perjury”).
ii. Destruction of Evidence
Obstruction of justice includes “destroying or concealing or directing or procuring
another person to destroy or conceal evidence that is material to an official investigation
or judicial proceeding . . . or attempting to do so.” U.S.S.G. § 3C1.1, cmt. n.4(D) (2014).
The destruction must occur “upon learning that an official investigation has commenced
or is about to commence.” Id.
The record shows that defendant contacted Google to delete his account two days
after Bradley told him he would go to prison, and after he met with Parker, who stated
that he was a mandatory reporter. Moreover, defendant called the police to ask what type
of trouble he could be in. Based on this evidence, the district court could conclude that
defendant was aware that an official investigation had commenced or was about to
commence, and intentionally attempted to destroy evidence material to it by deleting the
Google account associated with his storage and transfer of child pornography.
The district court correctly applied the two-level enhancement whether based on
perjury or destruction of evidence, and reasonably sentenced defendant accordingly.
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AFFIRMED.
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