U.S. v. Thompson

• Decision Date: 08 May 1992
• Docket Number: No. 91-3091,91-3091
• Citation: 962 F.2d 1069
• Parties: , 60 USLW 2747 UNITED STATES of America v. Don A. THOMPSON (a/k/a John F. Shellington), Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1069

962 F.2d 1069

295 U.S.App.D.C. 277, 60 USLW 2747

UNITED STATES of America v. Don A. THOMPSON (a/k/a John F. Shellington), Appellant.

No. 91-3091.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 19, 1992.

Decided May 8, 1992.

Appeal from the United States District Court for the District of Columbia (Cr. No. 90-00432-01).

David Carey Wall (appointed by the Court), for appellant.

Albert A. Herring, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, and Bruce E. Yannett, Asst. U.S. Attys., were on the brief, for appellee.

Before WALD, WILLIAMS, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Dissent by Circuit Judge WALD.

D.H. GINSBURG, Circuit Judge:

After the appellant had been convicted of various drug offenses, the trial judge enhanced his sentence on the ground that he had testified falsely at trial. The appellant contends that his trial testimony was "simply a denial of guilt" and thus should not be treated as perjury for the purpose of enhancing his sentence. We conclude that the district judge's decision to enhance the appellant's sentence was not improper.

I. BACKGROUND

Officer Mark Stone watched appellant Don Thompson through high-powered (7x50) binoculars for three hours, during which time Thompson engaged in what appeared to be eight separate drug transactions. Officer Stone radioed for assistance in order to arrest Thompson and several officers came to the scene, which was an alley. When Thompson spotted them, he tossed the brown paper bag he had been holding into some nearby bushes and tried to leave.

After the officers arrested Thompson, they retrieved the bag and found in it sixty-four ziplock bags each containing cocaine base. A search of Thompson's person turned up $297 in cash. Thompson was charged with possession of cocaine base with intent to distribute and with distribution of cocaine base, both within 1000 feet of a public school. See 21 U.S.C. §§ 841(a)(1), (b)(1), 845a(a).

At trial one of the arresting officers testified that Thompson was the only person in the alley who matched the detailed body and clothing description that Officer Stone had given them. Subsequent to the arrest, Stone himself identified Thompson as the man he had observed selling drugs. At trial, Officer Stone again identified Thompson as the vendor.

Thompson's defense was mistaken identity. He testified that he had been playing chess in a courtyard leading to the alley where the drug sales had occurred but had not been in the alley and certainly had not been selling drugs. His sister and four other witnesses also testified in his defense at trial, each corroborating some part of Thompson's testimony. (For example, his sister said that she had given him $250 just two days before the arrest; one friend said he had been playing chess with Thompson during the time of the drug sales, another that the bag Thompson discarded was the one in which she had brought him a beverage from a nearby store.)

The jury found Thompson guilty on all counts. The Probation Office recommended that the court enhance Thompson's sentence two offense levels for obstructing justice by giving perjured testimony and suborning the perjury of others. Section 3C1.1 of the Sentencing Guidelines (Nov. 1, 1990) instructs a trial judge 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....

According to Application Note 3(b), "committing, suborning, [and] attempting to suborn perjury" are among the types of conduct that warrant an enhancement for obstruction of justice.

After hearing argument on the enhancement issue, Judge Lamberth determined that although he did not believe the testimony of Thompson's sister, he could not conclude that Thompson had suborned her to commit perjury. On the other hand, the judge determined not only that Thompson "did testify untruthfully" but "that he has, in fact, obstructed justice" thereby. Accordingly, he enhanced Thompson's sentence by two offense levels.

II. ANALYSIS

On appeal, Thompson "submit[s] that [his] testimony was simply a denial of guilt" and seeks refuge in Application Note 1 for Guideline § 3C1.1, which cautions:

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, the defendant's testimony and statements should be evaluated in a light most favorable to the defendant.

Citing cases in each of which an enhancement was imposed after the defendant's testimony was deemed by the trial judge to have been "inherently implausible," "replete with internal contradictions," or a "fairy tale," United States v. Matos, 907 F.2d 274, 276 (2d Cir.1990); United States v. Wallace, 904 F.2d 603, 605 (11th Cir.1990); United States v. Akitoye, 923 F.2d 221, 229 (1st Cir.1991), Thompson argues in essence that a sentence can be enhanced for perjury only if the defendant's testimony is utterly preposterous. Because his testimony "told a plausible version of events," Thompson asserts, "the [district] court should not have had a firm conviction that [he] lied."

We disagree with Thompson's reading of the Guidelines. On its face, § 3C1.1 does not require that a defendant's false testimony be implausible or particularly flagrant. Rather, the sentencing judge need find only that the defendant willfully committed, suborned, or attempted to suborn perjury in order to obstruct justice. The 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, see United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989)--but it does not require proof of something more than ordinary perjury. To limit enhancements only to cases of internally contradictory testimony or flagrant lying--or to permit enhancements only when no reasonable trier of fact could have found other than that the defendant lied--would be merely to reward the polished prevaricator while punishing those less practiced in the art of deception. We do not think that the Guidelines contemplate this distinction between different degrees of willful lying.

Thus, the sentencing court must determine whether the defendant testified (1) falsely, (2) as to a material fact, and (3) willfully in order to obstruct justice, not merely inaccurately as the result of confusion or a faulty memory. See 18 U.S.C. § 1621; see also United States v. Jordan, 890 F.2d 968 (7th Cir.1989) (false statement about drug use during sentencing stage of criminal proceeding considered material); United States v. Lofton, 905 F.2d 1315, 1317 (9th Cir.1990) (" 'willfully' requires that the defendant consciously act with the purpose of obstructing justice"); United States v. Christman, 894 F.2d 339 (9th Cir.1990) (same). When the jury has answered the first question by finding beyond a reasonable doubt that the defendant lied, and could not have convicted otherwise, it might be anomalous for the judge to sentence the defendant upon the basis of the jury verdict and yet refuse to enhance the sentence for perjury merely because the judge entertains a doubt that the defendant lied. Cf. FED.R.CRIM.P. 29(a) (court shall direct acquittal "if the evidence is insufficient to sustain a conviction"). We do not express an opinion, however, as to whether it would be an error; after all, the judge's decision to let the case go to the jury says only that a reasonable jury could find guilt beyond a reasonable doubt, not that a reasonable judge would necessarily agree.

In the case before us, Thompson's story, if believed, would have been a complete bar to conviction. Although not wildly implausible, the jury did not in fact believe that story; they concluded beyond a reasonable doubt that Thompson was lying. Judge Lamberth unequivocally stated at the sentencing hearing that he found Thompson's testimony untruthful and an obstruction of justice.

Mindful of the deference that we owe the findings of the sentencing court, see 18 U.S.C. § 3742(e) (in reviewing a sentence, "[t]he court of appeals shall ... accept the findings of fact of the district court unless they are clearly erroneous"), we conclude that it was not error to enhance Thompson's sentence by two offense levels for obstruction of justice. Accordingly, the sentence imposed by the district court is

Affirmed.

WALD, Circuit Judge, dissenting:

This case puts in issue the proper application of § 3C1.1 of the United States Sentencing Guidelines to alleged false testimony by a defendant at trial. The Guideline reads:

§ 3C1.1 Obstructing or Impeding the Administration of Justice

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, increase the offense level by 2 levels.

My colleagues agree that the sentencing judge cannot rely solely upon the jury's verdict to enhance a sentence under § 3C1.1; she must make a specific finding herself that the defendant's statements under oath were false as to a material fact and were willful attempts to obstruct justice. Majority opinion ("Maj. op.") at 1071-72. See, e.g., United States v. Lozoya-Morales, 931 F.2d 1216, 1218-19 (7th Cir.1991); United States v. Husky, 924 F.2d 223, 224-25 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 111, 116 L.Ed.2d 81 (1991); United States v. Martinez, 922 F.2d 914, 926 (1st Cir.1991); United States v. Beaulieu, 900 F.2d 1537, 1540-41 (10th Cir.), ...