US v. Shonubi

• Decision Date: 09 October 1992
• Docket Number: No. CR 92-0007.,CR 92-0007.
• Citation: US v. Shonubi, 802 F. Supp. 859 (E.D. N.Y. 1992)
• Parties: UNITED STATES of America v. Charles SHONUBI, Defendant.
• Court: U.S. District Court — Eastern District of New York

802 F. Supp. 859

UNITED STATES of America v.Charles SHONUBI, Defendant.

No. CR 92-0007.

United States District Court, E.D. New York.

October 9, 1992.

Andrew J. Maloney, U.S. Atty., Brooklyn, N.Y., by Karen Popp, for U.S.

Wayne Wiseman, Brooklyn, N.Y., for defendant.

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

Found guilty of importation and possession of heroin with the intent to distribute it, defendant objects to Probation's Guideline calculation penalizing him for committing perjury at his jury trial.For reasons stated below his contention must be sustained even though he repeatedly told material untruths.

I.FACTS

Defendant is 35 years old and a citizen of Nigeria.His wife and infant child live with him in the United States.On December 10, 1991he was detained by United States Customs officials at John F. Kennedy Airport upon arriving on a flight from Holland.He consented to an x-ray examination that revealed foreign bodies in his digestive tract.Following his arrest, he passed 103 balloons containing a total of 427.4 grams of heroin.Defendant refused the government's pretrial offer of a plea agreement that probably would have resulted in a sentence of about 30 months imprisonment.

At trial, the government proved that defendant used two passports to travel between the United States and Nigeria eight times during 1990 and 1991.Employed during these years as a toll collector at the George Washington Bridge, he was fired for unexcused absences caused by his frequent travel.His $12,000 annual salary would not have covered the cost of his trips.

His testimony in his own defense that he travelled between Nigeria and the United States only four times and that the trips did not involve drugs was clearly untrue.The jury rejected it when they found him guilty.

Probation used the 427.4 grams found on the last trip and the fact that he had made seven other trips to estimate that defendant had imported a total of at least 3419.2 grams of heroin.Based on his crimes and this quantity of heroin, the Guidelines dictate a base offense level of 34.A two-level increase was recommended for obstruction of justice because of defendant's lies at trial.SeeGuideline§ 3C1.1.Defendant has no criminal history.Using Probation's calculation, the Guidelines dictate a sentence of 188 to 235 months.

II.OBSTRUCTION OF JUSTICE ENHANCEMENT

A.Law

Guidelines§ 3C1.1 directs: "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."The commentary to the Guidelines points to the instance of a defendant"committing ... perjury" as an example of the type of conduct to which the enhancement applies.Guidelines§ 3C1.1 comment 3.

The Court of Appeals for the Second Circuit has held that false trial testimony is an "appropriate" basis for a § 3C1.1 enhancement if the defendant's testimony relates to an essential element of the crime for which the jury ultimately convicts him.United States v. Bonds,933 F.2d 152, 155(2d Cir.1991);see alsoUnited States v. Matos,907 F.2d 274, 275-76(2d Cir.1990)("there is no constitutional bar to an enhanced sentence" under § 3C1.1 for false testimony of defendant at trial).

The question whether uniform application of a § 3C1.1 enhancement for false testimony violates a defendant's constitutional rights is troubling.The Fourth Circuit, while noting that consideration of a defendant's lies on the stand was constitutionally permissible in the highly discretionary pre-Guidelines era, seeUnited States v. Grayson,438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582(1978), has ruled that the "rigidity" of Guideline§ 3C1.1 renders the enhancement "an intolerable burden on the defendant's right to testify in his own behalf."United States v. Dunnigan,944 F.2d 178, 185(4th Cir.1991), cert. granted,___ U.S. ___, 112 S.Ct. 2272, 119 L.Ed.2d 199(1992).

The Second Circuit avoided the constitutional issue and justified its finding that application of § 3C1.1 to trial testimony does not violate a defendant's constitutional rights by relying on the Supreme Court's pre-Guidelines holding, in United States v. Grayson,438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582(1978), that a defendantmay, but need not be, penalized at sentencing for making false statements at trial.United States v. Bonds,933 F.2d 152, 155 n. 2(2d Cir.1991).The Court in Grayson, mindful of the pressures inherent in a rigid rule such as the one now contained in § 3C1.1, was also careful to limit its holding.It stated, "Nothing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false."Grayson,438 U.S. at 55, 98 S.Ct. at 2618.

The Second Circuit has made clear that § 3C1.1 should not operate to relieve the sentencing court of its duty independently to evaluate the defendant's conduct.An adverse jury verdict alone would be an insufficient basis for a § 3C1.1 enhancement.SeeUnited States v. Cunavelis,969 F.2d 1419, 1423(2d Cir.1992)(judge could not rely solely on his pretrial finding that defendant had lied at suppression hearing).

The Guideline commentary states that "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."Guideline§ 3C1.1 comment 1.The Second Circuit has treated this comment as imposing a higher burden of proof with respect to perjury by the defendant than the ordinary preponderance standard at sentencing.SeeUnited States v. Matos,907 F.2d 274, 276(2d Cir.1990)(judge must resolve in favor of defendant all conflicts about which judge, after weighing evidence, has no "firm conviction").

In deciding whether a defendant who lied on the stand qualifies for a § 3C1.1 enhancement, the sentencing judge must make the independent factual inquiry that responsible exercise of discretion demands.The trial court must be sensitive to pressures, both psychological and legal, that may have operated upon the particular defendant.

The need to utilize § 3C1.1 enhancements to discourage perjurious testimony by a defendant is mitigated by two factors.First is the danger of punishing the exercise of constitutionally guaranteed choices not relevant in sentencing.This danger is heightened where, as here, the defendant faces a much greater sentence than he ordinarily would for a single importation of a relatively small quantity of narcotics (due to the operation of the Guidelines with respect to defendant's seven other trips).SeeUnited States v. Wise,976 F.2d 393(8th Cir.1992)(en banc)("In certain instances a sentence may so overwhelm or be so disproportionate to the punishment than would otherwise be imposed absent the sentencing factors mandated by the Guidelines that due process concerns must be addressed.").Second is the availability to the government of other means for deterring and punishing false testimony.See18 U.S.C. § 1621(crime of perjury).

Where the defendant arguably testifies to what he could not at the moment bring himself to disbelieve, an obstruction of justice enhancement for perjury is not warranted.There may be cases in which the defendant clearly tells untruths on the stand yet is so agitated by the effect of his being caught and by the long prison term he faces, that he appears to be in a kind of sustained shock, having convinced himself of his innocence.SeeIrwin A. Horowitz & Thomas E. Willging, The Psychology of Law 150-51 (1984)("being participant, victim, or witness in a crime is ... highly stressful");Lewis Carroll, Alice in Wonderland & Through the Looking-Glass 168 (MacMillanCo. ed. 1930)(King of Hearts said, "Give your evidence, and don't be nervous, or I'll have you executed.").If he does not believe he is telling an untruth as he testifies he is not guilty of perjury.See18 U.S.C. § 1621(mens rea for crime of perjury is "willfully").

Criminal defendants, subject as they are to the stress of a jury trial and the weight of potential punishment, do not always behave like the cold calculating liar hypothesized by Guideline§ 3C1.1.They are people subject to human foibles and the weaknesses of the human mind.SeeKrist v. Eli Lilly & Co.,897 F.2d 293, 297(7th Cir.1990)("The only warrant for our recollections is certitude, and certitude is not a reliable test of certainty.");James Marshall, "Evidence, Psychology, and the Trial: Some Challenges to the Law,"63 Colum.L.Rev. 197, 197(1963)("For the law, the basic problem of ascertaining truth does not arise so much from the villainy of perjurers and suborners of perjury as from the unreliability of personal observation.").In the language the Court of Appeals for this circuit in Matos, the sentencing court is not likely in such cases to be left with the "firm conviction" that the defendant had the necessary mens rea to commit perjury at his trial.United States v. Matos,907 F.2d 274, 276(2d Cir.1990).

No rigid formula devised by a distant Sentencing Commission on the basis of statistics can fully account for this human frailty of the mind and psyche.The generalized rule must bow to the uniqueness of the individual in sentencing.Because even criminals are humans entitled to be treated with dignity, human judges rather than computers must sentence them.

Even if the court is satisfied that the defendant deliberately perjured himself, the two-point enhancement for perjury might not be appropriate.Use of a § 3C1.1 enhancement every time a jury convicts a defendant who maintains his innocence on the stand remains a troubling prospect.The obstruction penalty could become "the commonplace punishment for a convicted defendant who has had the audacity to deny the charges against him."United States v....