U.S. v. Dunnigan

• Decision Date: 15 November 1991
• Docket Number: No. 90-5668,90-5668
• Citation: 950 F.2d 149
• Parties: UNITED STATES of America, Plaintiff Appellee, v. Sharon DUNNIGAN, Defendant Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 149

950 F.2d 149

UNITED STATES of America, Plaintiff Appellee, v. Sharon DUNNIGAN, Defendant Appellant.

No. 90-5668.

United States Court of Appeals Fourth Circuit.

Nov. 15, 1991.

Nov. 27, 1991.

Brent E. Beveridge, Morgantown, W.Va., argued for defendant-appellant.

Michael M. Fisher, Asst. U.S. Atty., argued (Michael W. Carey, U.S. Atty., Hunter P. Smith, Asst. U.S. Atty., on brief), Charleston, W.Va., for plaintiff-appellee.

Prior Report: 944 F.2d 178.

In Banc.

CORRECTED ORDER

The appellee filed a petition for rehearing with suggestion for rehearing in banc. A member of the Court requested a poll on the suggestion for rehearing in banc. The poll failed by an evenly-divided vote. Circuit Judges Widener, Wilkinson, Wilkins, Niemeyer, Hamilton, and Luttig voted to rehear the case in banc, and Circuit Judges Ervin, Russell, Phillips, Murnaghan, Sprouse, and Hall voted against rehearing in banc.

The original judicial panel voted to deny the petition for rehearing.

The Court denies the petition for rehearing and suggestion for rehearing in banc.

Entered at the direction of Circuit Judge Hall, with the concurrence of Circuit Judge Phillips and Judge Williams, U.S. District Judge, sitting by designation. Circuit Judge Wilkins reserves the right to file a dissenting opinion to the denial of the suggestion for rehearing in banc.

WILKINS, Circuit Judge, dissenting:

The panel opinion holds that a sentencing enhancement for obstruction of justice based upon a defendant's perjury at trial, see United States Sentencing Commission, Guidelines Manual, § 3C1.1 (Nov.1989), constitutes an intolerable burden on a defendant's right to testify. ¹ United States v. Dunnigan, 944 F.2d 178 (4th Cir.1991). The panel reasons that the potential for an obstruction enhancement would impermissibly chill a defendant's right to testify and that section 3C1.1, as an automatic enhancement for which meaningful appellate review is unavailable, is antithetic to the sentencing enhancement for untruthfulness held permissible by the Supreme Court in United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). Id. All other circuits that have addressed this issue have upheld the constitutionality of section 3C1.1 "based on the premise that a defendant's right to testify in his own behalf is not a license to commit perjury." Id. at 183; see, e.g., United States v. Batista-Polanco, 927 F.2d 14 (1st Cir.1991); United States v. Matos, 907 F.2d 274 (2d Cir.1990); United States v. Acosta-Cazares, 878 F.2d 945 (6th Cir.), cert. denied, 493 U.S. 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989); United States v. Fiala, 929 F.2d 285 (7th Cir.1991) (dicta); United States v. Wagner, 884 F.2d 1090 (8th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); United States v. Barbosa, 906 F.2d 1366 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 394, 112 L.Ed.2d 403 (1990); United States v. Keys, 899 F.2d 983 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 160, 112 L.Ed.2d 125 (1990); United States v. Wallace, 904 F.2d 603 (11th Cir.1990) (per curiam). Because I believe that the rationale of the panel is wrong, and because the panel opinion creates a split in the circuits, ² I respectfully dissent.

I.

A.

In the pre-guidelines case United States v. Grayson, the Supreme Court addressed whether the district court erred in considering at sentencing that the defendant had testified falsely during his trial. 438 U.S. 41, 98 S.Ct. 2610. Grayson argued that the sentencing enhancement violated his right to due process because it "constitute[d] punishment for the crime of perjury for which he ha[d] not been indicted, tried, or convicted." Id. at 52, 98 S.Ct. at 2616. Additionally, Grayson contended "that permitting consideration of perjury [in fashioning an appropriate sentence] will 'chill' defendants from exercising their right to testify on their own behalf." Id.

The Court rejected both arguments. Id. at 53-55, 98 S.Ct. at 2617-18. The Court concluded that a defendant's right to testify is "the right to testify truthfully in accordance with the oath," and stated:

Assuming, arguendo, that the sentencing judge's consideration of defendants' untruthfulness in testifying has any chilling effect on a defendant's decision to testify falsely, that effect is entirely permissible. There is no protected right to commit perjury.

Id. at 54, 98 S.Ct. at 2617. The Court also discussed the corollary argument that the consideration of perjury at sentencing will inhibit a defendant's right to testify truthfully. This argument, the Court found, was "entirely frivolous." Id. at 55, 98 S.Ct. at 2618. Thus, the Court directly repudiated the rationale, upon which the panel relies, that consideration of a defendant's false trial testimony in fashioning a sentence is an undue burden on a defendant's right to testify.

B.

The panel attempts to avoid the result mandated by Grayson by concluding that the justification underlying the Grayson decision is not present under guideline sentencing. Additionally, the panel endeavors to distinguish Grayson by maintaining that the section 3C1.1 enhancement is the type of automatic enhancement rejected by the Court in Grayson. These efforts cannot withstand scrutiny.

The panel reasons that the stated justification underlying the Grayson decision--that consideration of a defendant's untruthfulness may provide the sentencing court guidance as to a defendant's "need for rehabilitation and society's need for protection," id. at 53, 98 S.Ct. at 2617--is not present in the guidelines, which "deem a denial of guilt on the stand 'obstruction of justice.' " Dunnigan, 944 F.2d at 184. This rationale is incorrect. In promulgating the sentencing guidelines, the Sentencing Commission sought to "further the basic purposes of criminal punishment, i.e., deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender." U.S.S.G. Ch. 1, Pt.A(2), intro. comment. Perjured testimony by a defendant is an equally appropriate consideration in sentencing under the philosophies of sentencing recognized in Grayson and the sentencing guidelines.

Next, the Dunnigan panel characterizes the obstruction guideline as supplying "precisely the 'wooden or reflex' enhancement disclaimed by the [Grayson ] Court." Dunnigan, 944 F.2d at 184 (quoting Grayson, 438 U.S. at 55, 98 S.Ct. at 2618). The panel posits that a defendant knows that he is "less likely to be acquitted if he remains silent, despite his right to do so and even in the face of instructions to the jury to draw no adverse inference from his silence." Id. at 183. Additionally, the panel submits that a defendant who wishes to testify on his own behalf must weigh the potential consequences of remaining silent against the possibility that otherwise inadmissible evidence will be introduced to impeach his credibility if he chooses to testify. Id. The panel concludes that if an "automatic" enhancement for obstruction of justice is imposed when a defendant testifies and is nevertheless convicted, the burden would be too great and "the defendant may not think testifying worth the risk." Id. at 184.

This reasoning illustrates a misconception on the part of the panel as to the nature and proper application of section 3C1.1. The obstruction enhancement is not designed "to punish a defendant for the exercise of a constitutional right." U.S.S.G. § 3C1.1, comment. (n.1). Nor is it designed to apply automatically in the case of a defendant who testifies in his own defense but is nevertheless convicted.

Section 3C1.1 provides If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. This guideline is not to be applied indiscriminately to every defendant who testifies and is ultimately convicted. A defendant may testify to matters not directly related to factual guilt or innocence. For example, a defendant may present evidence attempting to establish excuse--self-defense, duress, mistake of law or fact--that even if true may not legally exculpate him or prevent a jury from finding him guilty. Only when a district court, viewing the testimony in the light most favorable to the defendant, determines that the testimony was false and constituted a willful obstruction of justice, should the district court impose the section 3C1.1 enhancement. U.S.S.G. § 3C1.1, 3C1.1, comment. (nn. 3(c), 2).

The panel attempts to support its assertion that the enhancement is automatic by contending that effective redress at the appellate level for improper application of the guideline is unavailable. Whether a defendant's testimony at trial was untruthful is reviewed under a clearly erroneous standard. See United States v. Batista-Polanco, 927 F.2d 14, 22 (1st Cir.1991); United States v. Matos, 907 F.2d 274, 276 (2d Cir.1990); United States v. O'Meara, 895 F.2d 1216, 1220 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990); United States v. Wallace, 904 F.2d 603, 605 (11th Cir.1990). The panel writes:

[I]n light of the jury's verdict of guilt, the district court's finding will never be "clearly erroneous" where the verdict is sustainable; if the verdict cannot be supported, the sentencing finding will of course be moot.

Dunnigan, 944 F.2d at 185.

This argument fails for two reasons. First, it assumes that appellate courts are disinclined to engage in a thorough review of the challenged factual determinations as mandated by law. See 18 U.S.C.A. § 3742(e) (West Supp.1991). In practice, courts have uniformly rejected the mechanistic application of section 3C1.1 envisioned by the panel, evinced a willingness to undertake review of challenged factual determinations, and carefully considered the factual support for the findings of the district court, even when that...