{"id":1634,"date":"2008-05-11T05:52:51","date_gmt":"2007-12-27T08:41:00","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-12-27T08:41:00","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1634","title":{"rendered":"Obstruction enhancement did not automatically follow fact court did not find defendant’s version credible"},"content":{"rendered":"

District court denied a two level enhancement under U.S.S.G. \u00a7 3C1.1<\/a> for defendant’s testimony at suppression hearing that contradicted three officers’ testimony. United States v. Fleming<\/a>, 2007 U.S. Dist. LEXIS 93680 (N.D. Ind. December 19, 2007) (free on Pacer):<\/p>\n

In this case, the court found that the testimony of the Government witnesses at the suppression hearing was more worthy of credence than Fleming’s testimony. Despite the court’s ruling, it does not automatically follow that Fleming intentionally and knowingly gave false testimony. The court’s ruling at the suppression hearing was that the resolution of a credibility issue between the Defendant and the Government supported the Government’s position. The court did not find that Fleming obstructed justice by knowingly presenting false testimony. While the issue concerning the existence or nonexistence of a search warrant was clearly material, it is possible that Fleming was confused and\/or mistaken at the time of the search of his residence. Whether his testimony was knowingly false, or whether he was simply confused, frightened, and\/or mistaken at the time the officers appeared at his residence, is not an issue on which the court made a finding during the suppression hearing. Based on the court’s recollection of the testimony and Fleming’s demeanor, as well as the court’s review of the transcript from that hearing, the court finds that the elements of perjury were not established by a preponderance of the evidence. Put another way, the evidence and testimony presented at the suppression hearing was insufficient to establish that Fleming’s recitation of the events on the day of the search was knowingly false or intentionally calculated to mislead the court. Therefore, the court concludes that a two-level enhancement pursuant to U.S.S.G. \u00a7 3C1.1 is not warranted in this case.<\/p><\/blockquote>\n

Trial court’s credibility determination on consent was based on the fact that defendant testified to the grand jury the search was consensual, contrary to at the hearing. United States v. Billman<\/a>, 257 Fed. Appx. 904, 2007 FED App. 0851N (6th Cir. 2007)* (unpublished).<\/p>\n

Petitioner’s IAC claim fails. Defense counsel did not challenge the alleged warrantless search because there was a warrant. Winston v. United States, 2007 U.S. Dist. LEXIS 93503 (W.D. Mo. December 20, 2007)* (apparently the product of a jail house lawyer; I had a CJA appeal once where the jailhouse lawyer slipped an issue by the district court that was not even litigated).<\/p>\n","protected":false},"excerpt":{"rendered":"

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