An appeals court in Boston on Tuesday upheld the prison sentence of a man who was convicted of embezzling from a Maine boatyard and received an increased punishment for feigning incompetence in an attempt to avoid justice.

The three-judge panel, in a first-of-its kind ruling in the 1st Circuit Court of Appeals, found that a defendant’s attempt to obstruct the government’s prosecution during a case – in this case by exaggerating memory loss and cognitive decline caused by a stroke – was fair game for consideration by a judge during sentencing, and was grounds for more prison time.

Steven Nygren, 52, pleaded guilty in 2017 to embezzling more than $815,000 from the Brooklin Boat Yard during his employment as chief financial officer for a little more than a year starting in 2014. Nygren was sentenced to seven years in prison in 2018 after he pleaded guilty without the case going to trial, and is serving his time at a federal medical facility in Devens, Massachusetts.

Steven Nygren Photo courtesy of Hancock County Jail

But before Nygren changed his plea to guilty and entered into the sentencing phase of his case in 2017, he attempted to avoid prosecution by playing up the effects of a stroke that he had recently suffered, and that resulted in temporary loss of memory and cognitive function.

Nygren first raised the issue of how the stroke would affect his ability to stand trial at his initial appearance before a judge in August 2016, when he filed a motion for a competency evaluation, causing a 60-day delay of his arraignment.

At the arraignment, Nygren presented the findings of a neurologist he hired that showed Nygren suffered “profound deficits” because of his stroke several months earlier, and that he would improve over time. But prosecutors pointed out how the same expert hired by the defense found that Nygren flunked two tests administered to detect false or exaggerated responses to standard psychological and cognitive tests.

After another court delay, continued rehabilitation and another round of tests, this time conducted by Bureau of Prisons staff, Nygren was found to be competent. The examiner in the second battery of tests found Nygren’s exaggerations so extreme that his responses on memory tests would have been unbelievable and inconsistent even for people with severe traumatic brain injuries.

Nygren then changed his plea.

A probation officer in a pre-sentencing report recommended Nygren’s sentence be increased because of his “systemic, sustained and intentional under-performance” during the testing as a ploy to avoid responsibility, which amounted to obstruction of justice. But Nygren’s attorneys argued that Nygren’s attempts to fool the tests was not an obstruction and, instead of being penalized, Nygren should receive credit for pleading guilty and therefore taking responsibility for his crimes, minimizing whatever effect his malingering had on the administration of justice.

The appeals court rejected that argument, found the lower court did not err in its judgment and repudiated Nygren’s arguments.

A sentencing report that finds obstruction of justice paired with a reduction in sentence for accepting responsibility would be “hen’s-teeth rare,” the court wrote. “There are no hen’s teeth to be found here.”

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