US v. Castro-Ponce, No. 13-10377 (Gould with
Reinhardt and Berzon).
The 9th makes clear
that before a court finds that an upward adjustment for obstruction of justice
based on false testimony is appropriate, the court must explicitly find that
(1) the testimony was false; (2) the testimony was material; and (3) the
testimony was willful and intentional.
In this case, the defendant was charged with conspiracy and other drug
trafficking offenses. He testified as to
four incidents, offering explanations that explained why he was at certain
spots. The court imposed a 240-month sentence based on the obstruction
adjustment, but expressly found only that the testimony was false. Given the severity of such an adjustment, and
the chilling effect on testimony, the court must also explicitly find the two
other elements in the section: materiality and intentional willfulness. The 9th follows the approach of the Sixth and
Tenth Circuits. Here, the sentence was
vacated and remanded for such findings.
The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/10/24/13-10377.pdf
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