Case o' The Week: Oh, What a Tangled Web We Weave, then Get Obstruction When We Deceive - Johnson and Obstruction Guideline Enhancement

Turns out that testifying and committing perjury,  while defending charges of perjury, false statements, and obstruction, can have sentencing consequences.

   United States v. Stephen Johnson, No. 14-10113 (9th Cir. Feb. 5, 2016), decision available here.

Players: Decision by District Judge Rosenthal, joined by Judges Kozinski and Tallman.

Facts: Johnson was a retired law enforcement officer. Id. at 5. [Ed. Note: Five of the eleven defendants in this case had law enforcement backgrounds! See article here.]

  Johnson lied while speaking with federal agents, then lied while testifying before the grand jury, and was ultimately indicted for false statements ( § 1001) and perjury before the grand jury ( § 1623). Id. At the trial on these charges, Johnson lied to the petit jury – in different ways than his grand jury lies. Id. at 7 (describing Johnson’s different explanations before the grand and petit juries). He was convicted. 

  At sentencing, the district court grouped the counts and added a two-level bump for obstruction of justice under U.S.S.G. § 3C1.1. Id. at *7. The district court did not make a finding that the trial testimony was willfully and materially false before imposing the two-level obstruction hit. See Castro-Ponce, 770 F.3d at 822. Johnson appealed the sentence.     

Issue(s): “The question is whether we should remand for the district court to decide whether the trial testimony was willfully and materially false, or whether we should instruct the district court that it cannot apply the enhancement as a matter of law. This in turn requires us to address Johnson’s arguments that the sentencing enhancement is precluded because his allegedly perjurious trial testimony was not a ‘significant further obstruction’ under Application Note 7 to U.S.S.G. § 3C1.1. Johnson claims that the trial testimony did not actually hinder or impede the government’s investigation or prosecution of the underlying obstruction offense and that enhancing the sentence for the underlying grand-jury perjury conviction based on the later trial perjury is impermissible double counting.” Id. at 4-5.

Held: “We vacate the sentence and remand for resentencing without the limiting instructions Johnson seeks . . . . Id. at 5. “Applying the obstruction enhancement to Johnson’s false trial testimony does not impermissibly penalize him twice for the same conduct if the district court finds that his trial testimony was false, willful, and material.” Id. at 5.

Of Note: You’ll search in vain for the government’s arguments on the obstruction enhancement in its answering brief. The government whiffed, those arguments aren’t there. Id. at 9 & n.1. So this is waiver by the Feds, and a win for Mr. Johnson, yes? No. The Ninth ordered additional briefing and then reaches (late) government arguments. Id. 

  Sauce for the goose, sauce for the gander: waiver was waived for the government in Johnson, so invoke footnote one when that defense argument didn’t quite make it into the appellate briefs.  

How to Use: It is a disappointing (albeit not terribly surprising) new rule that if one lies in a trial, about allegations of previously lying to agents or a grand jury, a hit with the obstruction guideline isn’t double-counting. Id. at 13. 

  However, note that Johnson here managed to lie in new and novel ways before the petit jury – different lies than those given to the grand jury and agents. If Johnson had simply repeated the identical lies before the grand and petit juries, would the obstruction of justice enhancement be available? That remains an unresolved question: the Ninth specifically dodges the issue in Johnson. See id. at 10 & n. 2. 

  For our clients who to lie more consistently and less creatively than Johnson, footnote two may help avoid a two offense-level hit at sentencing.

                                               

For Further Reading: In 2007, former vice-presidential aide “Scooter” Libby was convicted of perjury, false statements, and obstruction of justice. Do you know the difference between these different ways of lying? For a short and accessible explanation for the differences between these federal crimes of dishonesty, see Daniel Engber, How Many Ways Can you Say ‘Lie?’, available here.

 

Image of Pinocchio from http://i.telegraph.co.uk/multimedia/archive/02740/liar_2740802b.jpg

Steven Kalar, Federal Public Defender, Northern District of California

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Case o' The Week: Lying to Probation Not A Crime (in the Ninth), Horvath

O.K. -- a defendant shouldn't lie to a Probation Officer . . . but is it really a crime to do so? Not in the Ninth, when the lie is about information that must be reported as part of the PSR process and the government charges a "false statement" under 18 USC Section 1001. See United States v. Horvath, __ F.3d __, 2008 WL 943951 (9th Cir. April 9, 2008), Ord. Denying Rehearing En Banc, order available here.

Players: Judge Graber authors original decision, Rymer dissents. 

Judge Graber writes denial of rehearing order, joined by Wardlaw, Gould, and Paez.

Chief Judge Kozinski, and Judges Bea, O’Scannlain, Kleinfeld, Tallman, Bybee and Callahan dissent from denial of rehearing.

Facts: During a federal PSR interview, Horvath claimed that he had served with distinction in the Marine Corps. United States v. Horvath,  492 F.3d 1075, 1076 (9th Cir. 2007). Partly because of this service, the judge imposed a lenient sentence. Id. 

In fact, Horvath lied about his Marine service. When this was discovered (after sentencing) he was indicted for making a false statement to a probation officer under 18 USC § 1001. Id. at 1076-77. Horvath moved to dismiss the indictment for failing to state an offense; when that was denied, he entered a conditional plea. Id. at 1077. 

In July of ‘07, Judges Graber and Pregerson reversed, in the holding recounted below. Id. at 1076. A Ninth Circuit judge sought rehearing en banc.

Issue(s): “We must decide whether the exception in § 1001(b) for ‘statements . . . submitted by [a] party . . . to a judge’ encompasses a false statement submitted to the judge in a presentence report (“PSR”), when the defendant in a criminal proceeding made the false statement to the probation officer during the defendant’s presentence interview, rather than to the judge directly.” Id. at 1076 (emphasis added). 

Held: “We hold that when, but only when, the probation officer is required by law to include such a statement in the PSR and to submit the PSR to the judge, the statement falls within the exception in § 1001(b).” Id. 

Of Note: The votes of Judges Graber and Pregerson are interesting in Horvath. First, on criminal cases Judge Graber seems more frequently among the company of these en banc dissenters. See, e.g., United States v. Davenport, __ F.3d __, 2008 WL 732491 (9th Cir. Mar. 20, 2008) (Graber, J., dissenting), blog available here. 

And Judge Pregerson is deservedly proud of his distinguished service as a Marine (as are Judges Tashima, Hawkins, and Beezer). Horvathlied about receiving the purple heart commendation while in service; Judge Pregerson earned the real deal when he was shot and severely wounded on Okinawa. Judge Pregerson’s vote to reverse the conviction in Horvath is commendable – this particular lie by the defendant must have been particularly galling.  (Just a guess -- not a former clerk, inside-insight).

     The order denying rehearing en banc is worth a read, because it reveals a spectrum of views of Probation in the Ninth. For the majority (which includes Graber, Wardlaw, Gould and Paez), a P.O. who reports core information in a PSR is serving as the “eyes and ears” of the Court. If a lie to the Court isn’t a § 1001 “false statement,” neither is a lie to the P.O. Horvath, 2008 WL 943951, *2-*3. (Query whether Judges Pregerson’s, Wardlaw’s and Paez’s previous district court experiences provide special insight into the role of P.O.’s ?)

     By contrast, a conservative block of dissenters protest that P.O.’s actively evaluate information included in a PSR, and are not mere conduits of information to the sentencing court. Id. at *3. Only Judge Kleinfeld previously served as a district court judge in this block. (President W. Bush has not looked to district courts for his Ninth nominees).

How to Use: In his dissent, Judge Bea proclaims, “The majority’s holding encourages defendants to lie during the presentence investigation.” Id. at *8. True – for a truly stupid and foolish defendant. A lie to Probation could easily cost two “obstruction” levels. See USSC § 3C1.1. Such a lie could also jeopardize the three “acceptance” levels. See § 3E1.1 comment. n.1(a). Finally, such a lie could sour a § 3553(a) sentence in ways that would be undetectable (and essentially unreviewable). The dissent is unpersuasive: as any savvy district judge (and prudent defense attorney) knows, even if § 1001 is unavailable there are still plenty of hammers left with which to pound a defendant who lies to a Probation Officer.

For Further Reading: The dissenters rely heavily on a Probation Manual from “jnet” (a secure website not available outside of the judiciary). Id. at *6, citing http://jnet.ao.dcn.img/assets/5661/.  This is “Monograph 107,” Probation’s bible, and is a revealing read if you can talk a P.O. or AFPD into sharing a copy (it is also available at district court libraries). 

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

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