United States v. Edward X. Mondello

Edward X. Mondello appeals his sentence imposed under the United States Sentencing Guidelines (U.S.S.G.), and the denial of his motion to suppress evidence. He claims (1) the district court applied the Guidelines incorrectly, (2) the Guidelines are contrary to the Sentencing Reform Act of 1984 (codified as amended), 18 U.S.C. § 3551 et seq. (1988), and 28 U.S.C. § 991 et seq. (1988), (3) the Guidelines are unconstitutional in several respects, and (4) the warrant authorizing the search of his luggage was issued on the basis of information obtained during his illegal detention, requiring suppression of the evidence found inside. We affirm.

I

Based on evidence from an informant, customs agents believed Mondello was transporting drugs between San Diego, Ft. Lauderdale, and Boston. Mondello was about to fly out of San Diego one night when an agent rapped on the window of his privately chartered plane and asked to board it for inspection. The door was opened, and the agent entered. He asked Mondello if he could search his bags, but Mondello told him to get a warrant first. The agent replied he would try to obtain a warrant, but told Mondello to wait for a moment while he took the…

I respectfully dissent.

I concur in the court’s opinion except for part II, which approves a two-point sentencing enhancement for obstruction of justice. The enhancement is approved on the ground that

These factors do not justify the enhancement, either separately or in combination.

A. The Three Week Hiatus Between Mon-dello ’s Original Detention and His Arrest

Reliance on United States v. Stroud, 893 F.2d 504 (2d Cir.1990), is misplaced. There the Second Circuit suggested that because “the word ‘willfully,’ as used in section 3C1.1, requires that the defendant consciously act with the purpose of obstructing justice,” obstruction could be found where there is “a deliberate pre- or post-ar *1472 rest attempt to frustrate or impede an ongoing criminal investigation, as in the case of an individual who flees while being sought for questioning some time after the commission of a crime.” See id. at 507 (emphasis in original).

A careful reading of the Guidelines, however, reveals that obstruction of justice should not be found simply because a suspect refuses to surrender himself to law enforcement officials. The Guidelines deal explicitly with this issue, not by penalizing a…

927 F.2d 1463 UNITED STATES of America, Plaintiff-Appellee, v. Edward X. MONDELLO, Defendant-Appellant. No. 90-50121. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 4, 1990. Decided March 7, 1991. Carolyn Chapman, San Diego, Cal., Robert M. Leen, Seattle, Wash., for defendant-appellant. John R. Kraemer, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before BEEZER and TROTT, Circuit Judges, and CROCKER, District Judge. * TROTT, Circuit Judge: 1 Edward X. Mondello appeals his sentence imposed under the United States Sentencing Guidelines (U.S.S.G.), and the denial of his motion to suppress evidence. He claims (1) the district court applied the Guidelines incorrectly, (2) the Guidelines are contrary to the Sentencing Reform Act of 1984 (codified as amended), 18 U.S.C. Sec. 3551 et seq. (1988), and 28 U.S.C. Sec. 991 et seq. (1988), (3) the Guidelines are unconstitutional in several respects, and (4) the warrant authorizing the search of his luggage was issued on the basis of information obtained during his illegal detention, requiring suppression of the evidence…