Case o' The Week: Lies, Damn Lies, and Obstruction -- Manning, Obstruction of Justice, and Recantations
Can obstruction apply to lies on a previous case, when a defendant recants, and when the lies thus have no impact on the prosecution or sentence?
Yes, yes, and yes again.
United States v. Manning, 2012 WL 5871715 (9th Cir. Nov. 21, 2012), decision available here.
Players: Per curiam decision by CJ Kozinksi, and Judges Tallman and Ikuta.
Facts: Manning was allowed to self-surrender on a child-porn sentence. Id. at *1. His Pretrial officer got a tip that Manning had guns, in violation of his release terms. Id. When confronted, Manning denied having the guns – then later admitted that he had them and had returned them. Id. The Pretrial Officer advised Manning to call his lawyer. Id. Manning did not show up to the bail revocation hearing, was later arrested in Mexico and returned to the U.S., and ultimately pleaded guilty to felon-in-possession of a gun. Id. At the § 922 (gun) sentencing, Manning was hit with a two-level obstruction enhancement under USSG § 3C1.1. Id. The court gave four reasons for the obstruction hit: Manning’s “willful failure to appear as ordered for a judicial proceeding; his giving false statements to officials of the Court about firearms; his reacquisition of one of the firearms; and his flight to Mexico.” Id.
Issue(s): 1. Obstruction on prior case: “Manning argues that his evasive acts don’t qualify under section 3C1.1 because they were designed to obstruct justice in his child pornography case, not his subsequent felon-in-possession case, which is the ‘instant offense of conviction’ and subject of this appeal.” Id.
2. Materiality of obstruction after recantation: “Providing materially false information to a pretrial services officer, whose job it is to conduct investigations for the court, constitutes obstruction of justice for purposes of section 3C1.1, without a specific showing that the falsehood actually obstructed justice. A ‘material’ statement is one that, if believed, would tend to influence or affect the issue under determination. Manning twice tried to mislead [the Pretrial Officer] by telling him he'd returned the guns to his brother as soon as he began pretrial release. Relying on . . . Yell, 18 F.3d 581 (8th Cir.1994), Manning argues that his subsequent confession rendered these false statements immaterial.” Id. at *2 (internal quotations and citations omitted).
Held: 1. Obstruction on prior case: “Manning's gun possession both violated the terms of his pretrial release and inculpated him as a felon in possession. At the time he willfully took evasive actions, the investigation of his gun possession was already underway, as that was the basis for his scheduled hearing. Therefore, Manning's conduct was obstructive “with respect to the investigation, prosecution, or sentencing” of his felon-in- possession conviction for purposes of section 3C1.1. It is immaterial that he intended to obstruct only the child pornography case.” Id.
2. Materiality of obstruction after recantation: “The Eighth Circuit is mistaken. Section 3C1.1 applies not only where a defendant obstructs justice with respect to his prosecution or sentencing, but also where he obstructs “the investigation . . . of the instant offense of conviction” . . . It doesn't matter whether he fooled the district court; it suffices that he fooled a Pretrial Services officer, or tried to. He need not actually have obstructed the investigation; it suffices that he “attempted” to do so. A false statement that, if believed, would tend to influence or affect” the investigation, . . . is material even if the defendant later comes clean. Id. at *2 (internal quotations and citations omitted).
Of Note: Circuit split -- and the panel flatly dubs the 8th wrong. The issue is the “materiality” of obstruction if a recantation corrects the error before damage is done. In Manning, the Ninth holds that the cure is irrelevant; a mere “attempt” to obstruct is enough to trigger the enhancement. Id. Your recanting client may earn his rewards in heaven -- but he’ll still get nailed with obstruction in the Ninth.
How to Use: Try to fool Pretrial, earn an obstruction bump at sentencing. A sobering rule, when one embarks on a bail interview with a client you’ve known for 15 minutes. Manning’s holding is a good topic for your harried prep session before the Pretrial interview – and a reminder why counsel must attend these interviews.
For Further Reading: Apprendi applies to mand-mins: Harris got it wrong. That’s the pitch in Alleyne, the biggest SCOTUS case of the term (we hope). Alleyne will be argued 1/14/13 – you can find the cert. petition here.
Image of Pinocchio from http://entirelysubjective.com/many-misleading-faces-of-truth/
Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org