CA2: Inadequate findings made to support obstruction USSG enhancement for suppression hearing testimony

The District Court enhanced defendant’s sentence by two levels under the U.S.S.G. for perjury at the suppression hearing. The District Court merely adopted the PSR’s statement without making sufficient findings of false testimony. It could have been misremembering. Merely crediting one version over another doesn’t involve perjury. United States v. Thompson, 2015 U.S. App. LEXIS 21314 (2d Cir. Dec. 9, 2015):

Contrary to the government’s suggestion, we have made clear that a district court cannot satisfy Dunnigan simply by adopting a PSR’s “conclusory statements” that the defendant committed perjury. United States v. Ben-Shimon, 249 F.3d 98, 103-04 (2d Cir. 2001) (per curiam). Instead, we have allowed a district court to rely on the PSR to impose an obstruction-of-justice enhancement only if the PSR “sets forth reasonably detailed findings in support of its conclusions.” United States v. Johns, 324 F.3d 94, 98 (2d Cir. 2003).

Here, it is undisputed that the district court did not make a finding of specific intent to obstruct justice. The district court did adopt the PSR, but the district court’s clear adoption of the PSR does not satisfy Dunnigan because the PSR itself does not “set[] forth reasonably detailed findings in support of its conclusions.” Id. The PSR merely points to the district court’s suppression ruling and the district court’s conclusion that Thompson’s “conflicting testimony on [the] central issue could not be credited.” Thompson PSR ¶ 25.

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But the government overlooks a more recent case, United States v. Agudelo, in which the defendant submitted an affidavit stating: “[A]t one point, I told the agents that I wanted to speak to a lawyer but they did not cease their questioning. Instead, they told me, in substance, that I would be able to see a lawyer at a later point in time.” 414 F.3d at 349. The district court credited the agents’ testimony that Agudelo made no such request, and it therefore imposed the obstruction-of-justice enhancement. Id. We reversed, agreeing with Agudelo’s argument “that merely because the court credited the testimony of the law enforcement agents that he did not ask to see a lawyer does not necessarily mean he gave knowingly false testimony in his affidavit.” Id. We further noted that “[s]uch a per se rule would contravene Dunnigan … because it would leave no room for consideration of possible mistake, confusion, or honest belief.” Id.

Distinguishing the two cases, Agudelo observes that “Lincecum’s three detailed statements reeked of fabrication because he could not have simply misremembered so much detail. On the other hand, Agudelo’s two sentences averring that he had asked for a lawyer were far more vague.” Id. at 350. In addition, on cross-examination, another agent appeared to support Agudelo’s statement that the officers had told him he would be able to see a lawyer at a later point in time. Id. “Thus,” we concluded, “rather than willfully fabricating the affidavit in order to obstruct justice, Agudelo may well have simply misunderstood the agent’s comments or misremembered the chronology of the conversation.” Id.

Here, the PSR’s barebones reference to the suppression ruling effectively adopts the per se rule we rejected in Agudelo, i.e., that any time a court credits officer testimony over that of a defendant, the defendant must have given knowingly false testimony. We reject that rule again here. Instead, if a defendant objects to an obstruction-of-justice enhancement based on perjurious testimony, district courts must make a finding of specific intent to commit perjury, which occurs when “[a] witness testifying under oath or affirmation … gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” Dunnigan, 507 U.S. at 94. To the extent the district court relies on the PSR for such a finding, the PSR must “set[] forth reasonably detailed findings in support of its conclusions” that are consistent with Dunnigan’s requirements. Johns, 324 F.3d at 98.