BLOG BULLETS:

• The Supreme Court has rejected arguments that the obstruction of justice guideline is an unconstitutional infringement on a defendant’s constitutional right to testify in his own defense.
• But the Court has required specific findings of all the elements of perjury, including a willful intent to provide false testimony, and recognized that testimony may be inaccurate for a multitude of other reasons.
• A recent Ninth Circuit decision has reaffirmed Ninth Circuit case law emphasizing that the obstruction of justice adjustment requires explicit findings of the elements of perjury and strong proof of those elements.

NOW THE BLOG:

A summary of a nice Ninth Circuit opinion came across my desk (all right, came across my computer screen) a few months back, and it triggered some thoughts about a guidelines issue that I’ve always found troubling. That’s the question of whether and when a defendant can be given an obstruction of justice enhancement when he testified at trial and allegedly perjured himself. It’s troubling because of the inevitable chilling effect it will have on a defendant’s exercise of his constitutional right to testify.

My first foray into this area, back when the guidelines were still in their infancy with lots of undecided issues to be litigated, was making an argument that an obstruction of justice adjustment could never be based on a defendant’s alleged perjury at trial. In support of this argument, I pointed to reasoning in the pre-guidelines case of United States v. Grayson, 438 U.S. 41 (1978). In that case, the Supreme Court held a court could impose a higher sentence based on a defendant’s perjury at trial, even though it might chill a defendant’s exercise of his constitutional right to testify in his own defense. See id. at 54-55. But the Court qualified that holding with several caveats, as follows:

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. Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant’s testimony on the stand, determine – with a consciousness of the frailty of human judgment – whether that testimony contained willful and material falsehoods, and, if so, assess in light of all other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society.

Id. at 55.

The implicit rejection of “requir[ing] a sentencing judge to enhance in some wooden or reflex fashion” triggers an immediate reaction that “wooden or reflex” is precisely what the guidelines are (or at least were before Booker). I and others argued that the obstruction of justice enhancement therefore couldn’t be applied to alleged perjury. The argument didn’t work in most published opinions (though it may have made some district judges hesitate to apply the enhancement in individual sentencings), but it did succeed in the Fourth Circuit case ofUnited States v. Dunnigan, 944 F.2d 178 (4th Cir. 1991). See id.at 183-85 (expressing concern about chilling effect on defendants’ right to testify and distinguishing Grayson in part because “[t]he guidelines supply precisely the ‘wooden or reflex’ enhancement disclaimed by the Court”).

Dunnigan as a court of appeals opinion didn’t last long, however. It quickly became Dunnigan the Supreme Court opinion, when the Supreme Court granted certiorari and reversed – in United States v. Dunnigan, 507 U.S. 87 (1993). The Supreme Court held the chilling effect on a defendant’s right to testify lacked weight because “a defendant’s right to testify does not include a right to commit perjury,” id. at 96, and “the risk of incorrect findings of perjury . . . is inherent in a system which insists on the value of testimony under oath,” id. at 97. And “[n]either d[id] [the Court’s] cautionary remark that the enhancement in Graysonneed not be imposed ‘in some wooden or reflex fashion’ compel invalidation of § 3C1.1,” because “the elements of perjury must be found by the district court with . . . specificity . . . , so the enhancement is far from automatic.” Id. at 98.

Still, the Dunnigan opinion carried its own set of caveats. To begin, the Court did emphasize, as just set forth, that the district court must specifically find the elements of perjury before it can apply the enhancement. Those elements, as set forth earlier in the opinion, are “[(1)] giv[ing] false testimony [(2)] concerning a material matter [(3)] with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.” Id. at 94. As put by the Ninth Circuit in discussing the last of these elements – in both pre- and post-Dunnigan opinions – “the defendant [must] ‘consciously act with the purpose of obstructing justice,’” United States v. Lofton, 905 F.2d 1315, 1316-17 (9th Cir. 1990) (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990) (emphasis in original)). See also United States v. Manning, 704 F.3d 584, 585 (9th Cir. 2012) (quoting Lofton).

The Supreme Court also gave some examples of why testimony might not be perjury warranting the obstruction of justice enhancement.

[A]n accused may give inaccurate testimony due to confusion, mistake, or faulty memory. In other instances, an accused may testify to matters such as lack of capacity, insanity, duress, or self-defense. Her testimony may be truthful, but the jury may nonetheless find the testimony insufficient to excuse criminal liability or prove lack of intent.

Dunnigan, 507 U.S. at 95. This mirrors what the commentary to the actual guideline suggests:

In applying this provision to alleged false testimony or statements by the defendant, the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.

U.S.S.G. § 3C1.1, comment. (n.2).

This opens up a number of arguments that we need to make when the government tries to base an obstruction of justice adjustment on our client’s alleged perjury. First and foremost, we ought to argue whenever possible that our client’s inaccurate testimony wasn’t willful and conscious fabrication, but the product of, in the words of Dunnigan, “confusion, mistake, or faulty memory.” For a client with a serious drug problem who was in the throes of a drug binge or a client with mental problems, this is not only plausible, but perhaps even likely. Even for an ordinary person without drug problems or mental problems, there’s a natural tendency to convince oneself months or years after the fact – in the guise of wishful, but honest, thinking – that it really couldn’t have happened that way or you really couldn’t have done that. The human mind is unfortunately a very malleable organ, especially for the relatively weak-willed people who give in to criminal impulses.

Second, now that we have Booker, we need to grab onto and use the various caveats from the Grayson opinion. Initially, the obstruction of justice guideline, even more than others, shouldn’t – indeed, can’t – be applied in a “wooden or reflex fashion,” but needs to be applied with flexibility. Secondly, courts need to keep in mind “the frailty of human judgment.” Finally, the court needs to consider whether and to what extent the alleged perjury really carries “meaning . . . with respect to [the defendant’s] prospects for rehabilitation and restoration to a useful place in society.”

Oh, yes – the new opinion that triggered me sharing these thoughts. It’s United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014). It does several things. First, it reiterates the three elements of perjury which a district court must find before imposing the obstruction of justice enhancement. See id. at 822. Second, it establishes a requirement that the district court make “explicit findings” of the three elements and expressly declines “to adopt a more forgiving standard.” Id. at 823. Third, it recognizes that “[o]bstruction of justice is a serious charge, and requires serious proof,” id., with the implication that there should be caution in finding it. See also United States v. Shannon, 137 F.3d 1112, 1119 n.3 (9th Cir. 1998) (stating that “[o]bstruction of justice resting on perjury should require a high degree of proof” and that “[m]ere dispute or disagreement as to a defendant’s perception of facts, without more, should not give rise to a charge of perjury in the context of sentencing”).

So there’s some ammunition to fight the obstruction of justice enhancement. It may be hard to get acceptance of responsibility after a trial (but see the post, “Acceptance of Responsibility With a Trial: You Can Get It if You Really Want It,” in the September 2012 link at the right), but obstruction of justice is far from a foregone conclusion.