U.S. v. Buckley
| Decision Date | 04 December 1998 |
| Docket Number | No. 97 CR 615.,97 CR 615. |
| Citation | 31 F.Supp.2d 1053 |
| Parties | UNITED STATES of America, v. Mark Vincent BUCKLEY. |
| Court | U.S. District Court — Northern District of Illinois |
On December 19, 1997, the defendant, Mark Buckley, pled guilty to a one count indictment charging him with bank robbery in violation of 18 U.S.C. § 2113(a). In the presentence investigation report ("PSI"), the probation officer placed Mr. Buckley at level 27, Category IV on the Sentencing Table of the United States Sentencing Guidelines ("U.S.S.G."). The PSI included a two point obstruction of justice enhancement for perjury pursuant to U.S.S.G. § 3C1.1. Mr. Buckley objects to the obstruction of justice enhancement on the ground that his false testimony was not material and thus did not constitute perjury. For the reasons set forth below, I find that a two point enhancement for obstruction of justice is not warranted.
On August 30, 1997, Mr. Buckley was arrested by the Joliet Police Department in connection with the robbery of the First Midwest Bank in Joliet, Illinois. Mr. Buckley admitted to the robbery and provided both an oral and a written confession. In his confession, he stated that he was not on any drugs and had not used alcohol that day. Then, he described the events of the robbery. He stated that he entered the bank on August 30, 1997, carrying a brown briefcase and two bags and had a BB gun hidden in his pants. He placed the brown briefcase on the floor near a writing table and walked to the teller and gave her a note. The note said:
Bomb in bank lobby
A) No alarm! Or bomb will go off in bank!
B) I have a gun
C) Hand over the money! All the cash!
Just be yourself! & Be very careful & act natural!
Or you'll be the first to go!
I have nothing to lose — alarm or any tricks & everybody goes!
He then told the teller "No one will get hurt if you do as I say, or the bomb will go off, no alarms, let me get away." The teller put money in his black bag and he walked out of the bank, leaving the brown briefcase on the floor.
At Mr. Buckley's change of plea hearing, the government was asked to summarize its evidence. The government related the above confessed facts. After the government stated its evidence, Mr. Buckley admitted that the government's statement was true except for the BB gun. Mr. Buckley said that he did not have the BB gun on him when he went to the bank but had left it in the bathroom of the "Jewel." Mr. Buckley made this same statement in his version of the offense submitted to the Probation Office for his PSI. He explained that when he confessed to carrying the BB gun into the bank, his thoughts were muddled as the result of his alcohol and drug use earlier in the morning on the day of the robbery. As a result, his statement that he carried the BB gun into the bank was inaccurate.
In the PSI, the probation officer recommended that Mr. Buckley receive a two point enhancement under U.S.S.G. § 3C1.1 for perjuring himself during the plea hearing by denying, under oath, that he took the BB gun into the bank. Mr. Buckley objected to the two point enhancement claiming that he had not brought a BB gun into the bank and thus did not lie at the plea hearing.
On May 1, 1998, I held an evidentiary hearing and heard testimony from two witnesses. I found by a preponderance of the evidence that Mr. Buckley did take the BB gun into the bank and thus, had lied at his plea hearing.
U.S.S.G. § 3C1.1 provides that "[i]f 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." Examples of conduct which warrant enhancement for obstruction include "committing, suborning, or attempting to suborn perjury" and "providing materially false information to a probation officer in respect to a presentence or other investigation for the court." U.S.S.G. § 3C1.1, comment. (n. 3(b) & (h)). The government contends that Mr. Buckley perjured himself at his plea hearing when he said he did not bring the BB gun to the bank and that he provided materially false information to the probation officer by stating in his version of the events that he did not bring the BB gun to the bank and that he was under the influence of drugs when he made his confession.1
A person testifying under oath or affirmation commits perjury if he "gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or fault memory." United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). The Seventh Circuit, relying on Dunnigan, found that a person does not commit perjury unless his false testimony concerns a material matter. United States v. Parker, 25 F.3d 442, 448 (7th Cir.1994). "[T]he law is clear that perjury requires proof that the witness's false testimony concerned a material matter `designed to substantially affect the outcome of the case ....'" Id. (quoting Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111). "[A] `material' statement is one which, `if believed, would tend to influence or affect the issue under determination.'" Id. ; see also United States v. Gaddy, 909 F.2d 196, 199 (7th Cir.1990) (). The same materiality requirement applies to making a false statement to a probation officer.
At the evidentiary hearing, I found by a preponderance of the evidence that Mr. Buckley lied about the BB gun. I did not make a finding that Mr. Buckley lied about his drug use on the day of the robbery. After reviewing the record, and in particular Mr. Buckley's version of the events, I find that even if Mr. Buckley lied about his drug use, he made the statements to explain why his confession about the BB gun was inconsistent with his statement at the plea hearing.2 Thus, any alleged false statement about his drug use should be considered as part of his false statements about the BB gun.
The issue under determination in this case is Mr. Buckley's sentence. The government contends that Mr. Buckley's false testimony as to the drugs and the BB gun was material because it had the capacity to influence his sentence including whether he received a three point enhancement for possession of a dangerous weapon pursuant to U.S.S.G. § 2B3.1(b)(2)(E) and whether he deserved a downward departure based on his personal circumstances including substance abuse.
U.S.S.G. § 2B3.1(b)(2)(E) provides for a three point enhancement "if a dangerous weapon was brandished, displayed, or possessed" during the course of a robbery. U.S.S.G. § 1B1.1, comment. (n. 1(d)). Under this definition, both the fake bomb and the BB gun were dangerous weapons.
Mr. Buckley contends that he did not give false testimony as to any material matter concerning the enhancement for possession of a dangerous weapon. He argues that when he lied about the BB gun, he had admitted all the facts about the fake bomb and was going to receive a three point enhancement on that basis alone. Thus, even if the court had believed his lie about the BB gun his sentence would not have been affected.
The government responds that Mr. Buckley's false statement about the BB gun was material because the probation officer and the court were considering whether Mr. Buckley should get an enhancement for possessing a dangerous weapon. The probation officer recommended that Mr. Buckley get an enhancement for possession of the BB gun and for the fake bomb. Mr. Buckley initially contested the enhancement on the grounds that he did not possess a BB gun and that a fake bomb is not a dangerous weapon within the meaning of the sentencing guidelines. Consequently, the government argues, Mr. Buckley's lie about the BB gun was material because he was contesting the enhancement and if the court believed him, he would not have received the enhancement. It does not matter that he later conceded the enhancement since attempts to obstruct justice are punishable even where they are not ultimately successful. See United States v. Winston, 34 F.3d 574, 580 (7th Cir.1994).3
The problem with the government's argument is that at the time Mr. Buckley lied, he was going to receive the dangerous weapon enhancement for possessing the fake bomb despite his legal arguments to the contrary. After Mr. Buckley was arrested, he confessed to carrying a BB gun into the bank and to robbing the bank with the threat of a fake bomb and a gun. At Mr. Buckley's plea hearing, the government presented its facts of the case. Mr. Buckley agreed with the government's version of the facts except he denied carrying the BB gun into the bank. Mr. Buckley never recanted that he threatened the bank with a fake bomb...
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USA. v. Buckley
...Chief Judge. The defendant pleaded guilty to bank robbery, 18 U.S.C. sec. 2113(a), and was sentenced to 63 months in prison. 31 F. Supp. 2d 1053 (N.D. Ill. 1998). The government appeals the sentence, claiming that Buckley should have been given an obstruction of justice enhancement and deni......