U.S. v. Montague

• Decision Date: 20 December 1994
• Docket Number: No. 93-3191,93-3191
• Parties: , 63 USLW 2367 UNITED STATES of America, Appellee, v. Vernon A. MONTAGUE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1251

40 F.3d 1251

309 U.S.App.D.C. 220, 63 USLW 2367

UNITED STATES of America, Appellee, v. Vernon A. MONTAGUE, Appellant.

No. 93-3191.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 20, 1994.

Decided Nov. 18, 1994.

As Amended Dec. 20, 1994.

Ethan M. Posner, appointed by the Court, Washington, DC, argued the cause for appellant. With him on the briefs was Bruce A. Baird, Washington, DC.

Miriam M. Smolen, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With her on the brief were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Asst. U.S. Atty., Washington, DC.

Before: EDWARDS, Chief Judge, GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Chief Judge:

Appellant, Vernon Montague, was tried before a jury and convicted of possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d) (1988) and aiding and abetting the possession of an unregistered firearm in violation of 18 U.S.C. Sec. 2 (1988). During trial, appellant testified that he neither owned nor possessed the gun that was retrieved from a car in which he was a passenger on the night of his arrest. Montague's story contradicted the testimony of an arresting officer, who claimed that the gun was leaning against appellant's left leg and within the touch of his left hand.

At sentencing, the prosecution sought a two-level enhancement on the ground that Montague had given perjured testimony. The trial judge granted this request, finding by a preponderance of the evidence that appellant had testified falsely at trial. The United States Sentencing Guidelines ("Guidelines") mandate that, in applying the perjury enhancement, judges should evaluate the defendant's testimony "in a light most favorable to the defendant." U.S.S.G. Sec. 3C1.1 application note 1. Because the Guidelines require a higher standard of proof than a preponderance of the evidence, we vacate appellant's sentence enhancement and remand the case to allow the trial judge to reconsider.

I. BACKGROUND

On January 5, 1993, Metropolitan police officers approached a parked car in which Appellant Vernon Montague and his half brother Vernon Armstead were sitting. During the ensuing conversation between the officers and Armstead, one officer moved around toward the passenger side of Armstead's car, and discovered a shotgun in the car. The officers arrested both Montague and Armstead for possession of an unregistered firearm. Armstead pleaded guilty to this offense. Montague, however, went to trial. At trial, Officer McGee (one of the arresting officers) and Montague presented conflicting testimony as to whether Montague had his hand on the shotgun, a fact probative of constructive possession.

Officer McGee testified that he observed Montague sitting in the passenger seat and that he saw a gun leaning against appellant's left leg, with appellant's left hand resting on the gun. Officer McGee said that, upon seeing the gun, he opened the car door, warned the other officers that appellant had a gun, and then grabbed appellant and put him on the ground. Another one of the arresting policemen, Officer Garrett, retrieved the shotgun from the car.

The appellant presented a different story. He testified that, on the night in question, he and his brother went out to purchase drugs for their personal use, and Armstead brought along a gun. Appellant claimed to have nothing to do with the gun, although he apparently was aware that his brother wedged the gun, out of view, between the two front seats. Montague testified that the gun never rested between his legs and that he never rested his hand on the weapon. Montague also testified that, when the police first confronted him, Officer McGee opened the passenger-side door and told him to step out of the car. Montague said that Officer McGee did not search the car and find the gun until after appellant had been "patted down" outside the vehicle; then, according to appellant, Officer McGee warned the other officers about the gun and arrested Montague.

At the close of trial, on July 29, 1993, the jury found Montague guilty of possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d) (1988) and aiding and abetting in violation of 18 U.S.C. Sec. 2 (1988). Three months later, at his sentencing hearing, the Government requested a two-level enhancement for perjurious testimony under section 3C1.1 of the Guidelines. The defense counsel objected to the enhancement on the ground that the testimony given by Officer McGee and Montague was sufficiently close that one could not say with firm conviction that appellant had perjured himself.

The District Court Judge independently evaluated the evidence under a preponderance-of-the-evidence standard and found appellant's testimony to be false. The District Court enhanced appellant's sentence, adding two points to the offense level for perjury. Appellant now challenges the sentence enhancement.

II. DISCUSSION

A. Standard of Review

In reviewing challenges to a district court's application of the Guidelines, we have observed that "Congress crafted a trichotomy: purely legal questions are reviewed de novo; factual findings are to be affirmed unless 'clearly erroneous'; and we are to give 'due deference' to the district court's application of the guidelines to the facts." United States v. Kim, 23 F.3d 513, 517 (D.C.Cir.1994). In this case, we face a legal question, i.e., the standard of proof to be used by the trial court in evaluating a defendant's testimony on an application for a perjury enhancement under the Sentencing Guidelines.

B. Sentencing Guidelines

Section 3C1.1 of the Guidelines directs district court judges to increase the offense level by two if

the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense....

U.S.S.G. Sec. 3C1.1. The Application Notes to this section provide a nonexhaustive list of the types of conduct that warrant an enhancement for obstruction of justice, including "committing, suborning, or attempting to suborn perjury." U.S.S.G. Sec. 3C1.1 application note 3(b). The Application Notes also caution district court judges regarding their evaluation of a defendant's testimony:

This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury) ... is not a basis for application of this provision. In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant.

U.S.S.G. Sec. 3C1.1 application note 1.

In this case, we must decide the applicable standard of proof under section 3C1.1, giving due weight to the Application Note directing trial judges to evaluate the testimony "in a light most favorable to the defendant." In our view, the enunciated standard exceeds a "preponderance of the evidence." The exact standard intended by the Sentencing Commission is difficult to discern, but we think that it is something akin to "clear-and-convincing" evidence.

C. Preponderance-of-the-Evidence Standard

The Government contends that the District Court properly used the preponderance-of-the-evidence standard of proof in assessing Montague's testimony. Courts have long used the preponderance-of-the-evidence standard for sentencing decisions on the theory that decisions made at the sentencing stage do not as deeply implicate defendants' rights as do decisions made regarding guilt or innocence. See McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 2418-19, 91 L.Ed.2d 67 (1985) (finding sentencing courts' use of a preponderance standard satisfies due process); see also U.S.S.G. Sec. 6A1.3 commentary (incorporating the use of the preponderance-of-the-evidence standard in sentencing determinations). Appellant does not dispute that the preponderance-of-the-evidence standard usually applies to sentencing determinations, but argues that the District Court should have used a higher standard in evaluating appellant's testimony.

We recently had occasion to determine what kind of perjury constitutes obstruction of justice and, in so doing, commented on the standard of proof district courts should use in evaluating defendant testimony. Another panel of the court found that "[t]he admonition in Application Note 1 to evaluate the defendant's testimony 'in a light most favorable to the defendant' apparently raises the standard of proof--above the 'preponderance of the evidence' standard that applies to most other sentencing determinations." United States v. Thompson, 962 F.2d 1069, 1071 (D.C.Cir.1992), cert. denied, --- U.S. ---- - ----, 113 S.Ct. 1418-19, 122 L.Ed.2d 788 (1993). We share this view. We have never seen the preponderance-of-the-evidence standard defined along the lines indicated in Application Note 1 to Guidelines section 3C1.1. And we cannot imagine why the Sentencing Commission would have written the Application Note as it did had it intended nothing more than the usual standard of proof. The preponderance-of-the-evidence standard generally puts evidence on an evenly balanced scale. See MCCORMICK ON EVIDENCE Sec. 339 (John W. Strong ed., 4th ed. 1992) (suggesting that proof by a preponderance means the greater weight of the evidence); JONES ON EVIDENCE: CIVIL AND CRIMINAL Sec. 3:9 (Clifford S. Fishman ed., 7th ed. 1992). Viewing the evidence "in a light most favorable to the defendant," however, means putting a thumb on the scale, or resolving all doubts, in favor of the defendant. See Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 103 S.Ct. 683, 691, 74 L.Ed.2d 548 (1982) (stating that a "preponderance-of-the-evidence standard allows both parties to 'share the...