USA. v. Gage

• Citation: 183 F.3d 711
• Decision Date: 08 July 1999
• Docket Number: No. 98-3679,98-3679
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EMERY LEE GAGE, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 711

183 F.3d 711 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EMERY LEE GAGE, Defendant-Appellant.

No. 98-3679

United States Court of Appeals, Seventh Circuit

Argued February 26, 1999

Decided July 8, 1999

Appeal from the United States District Court for the Central District of Illinois. No. 98 CR 10024--Joe B. McDade, Chief Judge. [Copyrighted Material Omitted] Before POSNER, Chief Judge, and CUDAHY and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

On March 6, 1998, Emery Lee Gage used a written note containing a demand for money to rob Bank One, a federally-insured financial institution in Peoria, Illinois. He later confessed to the robbery, claiming that the note simply said "put the money in the bag." The government contended that it could prove that the note included the words "I have a gun." The district court's resolution of this dispute about what the note said led to this appeal, in which Gage challenges the court's application of the Sentencing Guidelines in two instances. We affirm as to one, but reverse as to the other and therefore remand the case to the district court for re-sentencing.

After the FBI arrested and interrogated Gage on March 18, 1998, he confessed to the robbery in a hand-written statement, which described the events of March 6. By Gage's account, on the afternoon of the robbery, he was coming down from a cocaine high and asked a friend for a ride to a bank so that he could withdraw money from an ATM. When they got to the bank, Gage picked up an old envelope from the floor of the car, scrawled "put the money in the bag" on the face of the envelope and walked inside. He handed the note to the teller, grabbed the bag which had been filled with about $1566 and walked out. Gage then bought and used more cocaine and went to a bar to drink. Gage wrote that he was wearing a hat and sunglasses but that he could not remember what his shirt looked like. He specifically denied carrying a gun during the robbery. His hand- written confession also included expressions of regret and remorse for his actions and a claim that his drug addiction made him commit the robbery. Gage pleaded not guilty to violating 18 U.S.C. sec. 2113(a)(1).

Gage later changed his mind, deciding to plead guilty. At the change of plea hearing on May 20, 1998, the district court asked Gage to explain the factual basis for his plea of guilt. Gage retold substantially the same story he penned for the FBI. At the conclusion of Gage's colloquy, the court asked Gage to repeat what he had written on the note. Gage stuck with his story: the note said only "put the money in the bag," he recited. He further denied that he had indicated in any way that he was carrying a weapon.

The government then provided its own factual version of the guilty plea, claiming that it could prove beyond a reasonable doubt that the note included the phrase "I have a gun." The government relied on an FBI interview with the bank teller, Khristie Lee Stanton, conducted on March 23, 1998, some two weeks after the robbery.¹ Stanton told the FBI that she was very upset and did "not remember specifically what was on the note;" it "may have said something to the effect that 'I have a gun' and possibly, 'Put money in the bag.'" In light of this evidence, the court asked Gage if the government's version, particularly regarding the note's content, was accurate. Gage stayed the course he had set, again disputing that the note included "I have a gun." Satisfied that the plea had a basis in fact (without, at that time, picking between the two versions), the court referred Gage to the probation office for a presentence investigation and set the matter for sentencing.

The presentence report (PSR) made three recommendations relating to the dispute over the content of the stickup note. First, it recommended that Gage receive a two-level enhancement under U.S.S.G. sec. 2B3.1(b)(2)(F) because the note--which, the PSR concluded, had indicated that Gage had a gun--constituted a threat of death. Second, it recommended that the district court increase Gage's offense level an additional two points under sec. 3C1.1 for obstruction of justice because Gage had denied that the note indicated that he was carrying a gun. Finally, the PSR recommended that Gage be denied any offense-level reduction for acceptance of responsibility pursuant to sec. 3E1.1. Gage objected to each of these recommendations, arguing that, given the consistency of his story and the shakiness of Stanton's recollection, the court should find that the note did not mention a gun.

At the sentencing hearing on October 16, 1998, the district court considered Gage's objections to each of the PSR recommendations. The ultimate issue--as Gage, the government and the court each acknowledged--was whether the note included a reference to a gun. Bank teller Stanton testified for the government. She now claimed that she was "almost one hundred per cent sure" that the note said "I have a gun." She testified that she thereafter went numb with fear. This was apparently enough for the district court. It found that:

the government has proved by a preponderance of the evidence that the defendant did tender to the teller at the bank a note which contained the statement that he had a gun. I'm persuaded that this was on the note for two reasons. One, there certainly is evidence that the defendant was under the influence of drugs at the time of this robbery. And by his own admission he was pretty far zonked out, and I doubt very much if he could remember accurately everything that happened or what he did. I'm also persuaded that Miss Stanton . . . was positive about the fact that the note said "I have a gun" . . . .

Sent. Tr. at 25. The parties then continued to argue about the application of the contested guidelines following this finding of fact.² Gage focused on the obstruction of justice guideline, sec. 3C1.1, arguing that whether or not the note indicated that he had a gun was immaterial because he did not have the culpable state of mind necessary for the court to impose the enhancement. In response to this argument, the district court made the following observations:

And I think there's reason to believe [Gage] did not testify truthfully when he said "I did not mention a gun in that note," because if he didn't remember he should have said truthfully to this court, I don't really know what that said. I was high. But he didn't say that. He said it did not contain information about a gun. I don't think that was truthful. And why [sic] I grant you he might not have said that to obstruct justice, but he still did not truthfully testify, if I'm right in my belief that he didn't really know and remember what he put on that note. He should have truthfully told the Court that.

Sent. Tr. at 38. The district court later commented on Gage's denial of writing "I have a gun" on the note: "That wasn't a conscious lie. The lie was at the plea hearing when he acted as if he knew. When he told me, I did not put anything on the about the--anything on the note about the gun." Sent. Tr. at 40. And in conclusion the district court stated: "I don't think the defendant's been truthful. And I think he wilfully misrepresented to the Court what was in that note, because I don't think he really knows what was in that note, but stated as if he did." Sent. Tr. at 51. Accordingly, the court denied all three of Gage's objections to the PSR and sentenced him to 92 months in prison. Gage appeals.

Gage first argues that the district court erred by increasing his offense level by two points pursuant to sec. 3C1.1. A court can enhance a defendant's offense level under sec. 3C1.1 "if the defendant willfully obstructed or impeded . . . the administration of justice during the course of the investigation, prosecution, or sentencing. . . ." Perjury can be the basis for a sec. 3C1.1 increase, see, e.g., United States v. Hach, 162 F.3d 937, 949 (7th Cir.), cert. denied, 119 S.Ct. 1586, 143 L.Ed.2d 680 (1999), but not every instance of false testimony under oath warrants the enhancement. See United States v. Dunnigan, 507 U.S. 87, 94-95 (1993); see also U.S.S.G. sec. 3C1.1 comment. (n.2). In cases of alleged perjury, the district court "must review the evidence and make independent findings necessary to establish a willful impediment to, or obstruction of, justice, or an attempt to do the same . . . ." Dunnigan, 507 U.S. at 95. The court must also find that a defendant testified untruthfully with the specific intent to obstruct justice rather than as a result of confusion, mistake or faulty memory. See id. at 94; United States v. Ewing, 129 F.3d 430, 434 (7th Cir. 1997) ("Section 3C1.1 requires specific intent to obstruct justice.") (emphasis added); see also U.S.S.G. sec. 3C1.1 comment. (n.2).

Gage argues here, as he did below, that the district court failed to follow the Dunnigan directives. Specifically, Gage contends that the district court made no findings regarding his intent to obstruct justice. As required by Dunnigan, we review de novo whether the district court made the appropriate findings with respect to Gage's alleged obstruction. See United States v. Bonilla-Comacho, 121 F.3d 287, 293 (7th Cir. 1997). As to the district court's conclusion that Gage committed perjury, we review the factual findings underlying this determination for clear error. See, e.g., United States v. Webster, 125 F.3d 1024, 1037 (7th Cir. 1997), cert. denied, 118 S.Ct. 698 (1998).

The district court was clear that it did not base its application of sec. 3C1.1 on the substance of the dispute about the content of the note. Although the court did not believe Gage's story that the note said only "put the money in the bag"--it believed the teller's story--it did not think that Gage had intentionally lied about what the note said. Rather, the court found that Gage's account of events had been untruthful because, on account of his impaired state (...