Case o' The Week: Ninth is living in a "Material" World - Jimenez and Obstruction

Kozinski, his former clerk (now Judge) Ikuta, and Reinhardt deliver a good per curiam decision with new law in the Ninth Circuit regarding the proof of obstruction of justice enhancements. United States v. Jimenez, __ F.3d __, Slip. Op. 121 (9th Cir. Jan. 5, 2007), opinion available here.

Players: Notable victory by San Diego AFPD Kasha Pollreisz.

Facts: Jimenez testified at a marijuana importation trial and was convicted. Id. at 123. At sentencing, the district court “characterized defendant’s trial testimony as ‘so incredible, in light of all of the evidence, that it was clear to the court that [he] intended to obstruct or impede justice with [his] version of the facts. [His] testimony was not the result of any confusion, mistake or faulty memory, but an attempt to willfully obstruct justice.’” Id. The court imposed an upward adjustment under USSG § 3C1.1, for obstruction of justice. Id.

Issue(s): “We address whether a district judge must make a finding of materiality before he can enhance a defendant’s sentence for obstruction of justice based on perjury under U.S.S.G. § 3C1.1.” Id. at 123.

Held: “Post-Gaudin, the materiality of a false statement is one of the factual predicates of an obstruction enhancement, and we must remand where the district court failed to make a finding on this point.” Id. at 125 (emphasis added). [ed. notee: United States v. Gaudin, 515 U.S. 506 (1995) is the Supreme Court case that held that the materiality of a false statement must be decided by the trier of fact].

Of Note: This little opinion addresses divergent case law in the Ninth as to whether the materiality of a false statement is a purely legal question, or a question of fact that must be determined by a trier of fact. The Court blames this divergence on the intervening Supreme Court decision in Gaudin. While normally an en banc panel would have to resolve a circuit conflict in its own caselaw, this three-judge panel notes and employs “an exception to this rule when one of our opinions has been superceded by intervening Supreme Court authority.” Id. at 125. Query if this dodge is a new trend, in a Circuit quickly weary of frequent en banc service in the new fifteen judge panels.

How to Use: Any decision that stiffens the requirements for an obstruction finding is welcome. In a world where clients are interviewed by both Pretrial and Probation, and often submit declarations in support of suppression motions, obstruction is of concern even when there is no testimony at trial. This is particularly true after November 1, 2006 – the newly amended guideline now permits the adjustment for “obstructive conduct that occurs prior to the start of the investigation of the instant offense of conviction.” USSG § 3C1.1, Historical Notes, 2006 Amend.

What is a “material” false statement? The guideline's commentary defines material evidence as “evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination.” Id. comment. n. 6 (emphasis added).

For Further Reading: “Woodshedding a client” – that is, coaching a witness to provide questionable testimony or evidence – is a delicate subject in the defense community. For an interesting, and thought-provoking article on this practice, see “Ethics in the Woodshed,” by Walter Steele, Jr., available here.

Another author suggests that practical limitations often prevent the subornation of perjury: “My conclusion – based solely on experience – is that we [attorneys] do not do badly, and not necessarily because of our sterling moral fiber. Practicalities help to keep us from pushing too far. In the first place, you can get, well, caught.” Article available here.


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

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