UNITED STATES v. HAWTHORNE
FILED
United States Court of Appeals
Tenth Circuit
JAN 21 2003
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-3357
STEVEN JEROME HAWTHORNE,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 00-CR-20116-01-KHV)
Benjamin N. Casad, of Strong & Casad, Kansas City, Kansas, for Defendant-
Appellant.
Leon J. Patton, Assistant United States Attorney (Eric F. Melgren, United
States Attorney, with him on the brief), Kansas City, Kansas, for Plaintiff-
Appellee.
Before HENRY, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
HARTZ, Circuit Judge.
An August 17, 2000, indictment charged Defendant, Steven Hawthorne,
with possession with intent to distribute crack cocaine, in violation of 21
U.S.C. 841(a)(1), and with possession of a firearm after a felony conviction,
in violation of 21 U.S.C. 922(g). He filed a motion to suppress certain
incriminating statements that he had made to law enforcement officers,
contending that his confession was not voluntary. Following an evidentiary
hearing, the district court denied the motion. Defendant then entered an
unconditional guilty plea.
Finding that Defendant had committed perjury during the suppression
hearing, the district court enhanced his sentence for obstruction of justice
under United States Sentencing Guideline (U.S.S.G.) 3C1.1, and declined to
reduce his sentence for acceptance of responsibility under U.S.S.G. 3E1.1.
Defendant challenges the enhancement under 3C1.1, claiming that (1) the
district court failed to make factual findings adequate to support the
enhancement; (2) his testimony during the suppression hearing was not
perjurious; and (3) enhancements under 3C1.1 should not be imposed for
perjury committed during suppression hearings. He also appears to challenge
the district court's failure to reduce his sentence in accordance with U.S.S.G.
3E1.1. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.
Background
The Kansas City, Kansas Police Department (KCKPD) learned that
Defendant was selling crack cocaine from a house in Kansas City. On the
evening of July 19, 2000, KCKPD officers conducted a search of the house,
with federal agents providing assistance. After finding two handguns,
marijuana, cocaine residue, and drug paraphernalia in the house, the officers
arrested Defendant at about 7:00 or 8:00 p.m. A search of his pockets yielded
marijuana and a small quantity of crack cocaine.
The officers took Defendant to the county jail. At about 10:45 a.m. on
July 20, FBI Special Agent Gary Violanti and KCKPD Officer Jose Viera began
to question Defendant. What happened during the interrogation was a matter of
dispute at the suppression hearing. Defendant contended that his "statements
were not voluntarily and willfully made." ROA, Vol. 2 at 43. He alleged that
the officers' primary purpose in interrogating him was to collect information
for an investigation about another, more significant drug dealer, Cecil Brooks.
Defendant made the following factual representations in his testimony: (1) he
told the officers that he wanted a lawyer; (2) the officers said they would get a
lawyer for him; (3) he was intoxicated at the time of his interrogation, having
smoked marijuana and crack an hour before his arrest; (4) the officers' body
language showed that they knew he was tired and not functioning well; (5) the
officers threatened him by saying that he would face 15 to 20 years in prison if
he lied to them about Cecil Brooks; (6) the officers told him he could go home
if he provided truthful answers to their questions about Brooks; and (7) he had
learned much of the information that he gave the officers regarding Brooks
from reading the newspaper.
Of particular significance was Defendant's claim that he wanted a lawyer.
If a suspect in the course of custodial interrogation requests a lawyer, all
questioning must cease until a lawyer is obtained or the suspect spontaneously
reinitiates the conversation. Davis v. United States, 512 U.S. 452, 458
(1994). But the request for a lawyer must be unambiguous. If a suspect makes
an ambiguous statement about wanting a lawyer, the interrogating officers have
no duty to stop the questioning or even to seek clarification from the suspect
about his interest in seeing a lawyer. Id. at 459, 461-62.
According to the officers, at the start of the interview they handed
Defendant a form entitled "Interrogation Advice of Rights and Waiver of
Rights," which listed the Miranda rights. They asked Defendant to read the
form aloud. When Defendant reached the portion of the form which states,
"You have the right to talk to a lawyer for advice before we ask you any
questions and to have a lawyer with you during questioning," he declared, "I
may want a lawyer." ROA, Vol. 2 at 8, 22-23, 34. He then continued to read
from the form. After he finished reading it, he said, "I don't want a lawyer, I'll
sign the form." Id. at 9, 23-24. He signed the Miranda rights waiver and
proceeded to make incriminating statements to the two officers. Agent
Violanti testified that once Defendant had executed the waiver, he never
expressed a desire to stop talking to the investigators, and he never requested a
lawyer.
In addition, the officers denied that they had engaged in any coercive
conduct to induce Defendant to waive his Miranda rights. While the officers
acknowledged that one of the reasons they questioned Defendant was to acquire
information about Brooks, they disputed Defendant's contention that they
promised to release him if he provided such information. They also said that
Defendant seemed to be mentally alert at the time he signed the rights waiver.
At the conclusion of the suppression hearing, the district court declared
that it found "by a preponderance of the evidence that the statements which the
defendant gave were free and voluntary." Id. at 47. The court first observed
that Defendant had "prior experience within the criminal justice system" and
that the record failed to show that Defendant possessed any intellectual
deficiencies which would interfere with his comprehension of his rights. Id. It
then made the following comments concerning the evidence about the
interrogation:
[T]here's no evidence of any threats or coercion.
Apparently, this interview had progressed only five minutes
between the time the defendant was called out and the time he
signed the form waiving his rights. The court does find that the
officers' testimony is credible when they say that during the
course of the examination, Mr. Hawthorne stated that he might
want an attorney. But by the time he finished reading the waiver of
rights form, he had elected not to proceed-not to request an
attorney and to proceed without counsel.
While the evidence suggests that Mr. Hawthorne may have
consumed drugs or alcohol at 8 o'clock, 7 or 8 o'clock in the
evening of the prior day, there's no credible evidence that anything
about the drug use rendered him mentally incompetent at the time
he made the statements to the officers the following day, and I
don't accept the proposition that he was intoxicated in any legally
meaningful sense of that word.
Also, I don't find credible his testimony that he did ask for a
lawyer during the reading of his rights form. Therefore, the
motion to suppress is overruled.
Id. at 47-48.
After the district court denied Defendant's motion to suppress, he
entered a guilty plea. At the sentencing hearing on September 17, 2001, the
Government alleged that Defendant had committed perjury during the
suppression hearing and requested that the district court impose a two-level
enhancement for obstructing justice, under U.S.S.G. 3C1.1, and that the
district court not allow a sentence reduction for acceptance of responsibility,
under U.S.S.G. 3E1.1.
The Government argued that Defendant had perjured himself with respect
to two subjects. The first was Defendant's assertion that he had requested an
attorney at the outset of his interrogation. The Government explained as
follows:
[T]his court had a hearing on the defendant's motion to
suppress his statements, and it was based upon his claims that he
had been questioned in violation of his right to an attorney. In fact,
. . . Gary Violanti who testified here this day testified that although
he had at one point stated that he might want an attorney, that after
he read all of his rights, he said that he would go ahead and
consent.
. . . .
This court denied and overruled his motion because
Mr. Hawthorne did not tell the truth. . . .
ROA, Vol. III at 53-54. The second subject was the conduct of Cecil Brooks.
The district court ruled on the Government's request at the continuation
of the sentencing hearing on October 22. It agreed that a sentence
enhancement was appropriate for the first lying but not the second. It said:
The court also finds that an obstruction-the adjustment for
obstruction of justice is warranted in this case. I agree with
defense counsel that the testimony of, regarding Mr. Brooks is
probably not particularly material here, although I believe that the
defendant lied about it. But I don't think it would warrant an
enhancement for obstruction because I don't think it's sufficiently
related to the crime of conviction.
I do think, though, that, Mr. Hawthorne, that you lied in your
testimony at the suppression hearing about the voluntariness of the
statements that you made to the officers, and I don't believe that to
hold you accountable for an obstruction of justice is in any way
punishing you for exercising your constitutional rights to bring
these matters to the court's attention.
No. 1, there's other ways to bring the court's attention
without going to court and testifying falsely under oath, and
nobody has a constitutional right to testify falsely. You know,
when somebody files a motion to suppress a statement, the court
takes that very seriously. You have a hearing, and the only thing
that we really have to go on when we're setting those kinds of
hearings and taking, and undertaking that kind of inquiry is the
claim that the defendant is making as to the voluntariness of the
statement which is made. And so when people lie about that, then
it puts the government and the court to a lot of effort and time for
no legitimate purpose. And I don't have any hesitation at all in
concluding that your testimony was willfully false and that a two-
level adjustment for obstruction is warranted in this case.
Supp. ROA at 2-3.
The district court applied U.S.S.G. 3C1.1 to impose a two-level
sentencing enhancement for obstructing justice. The district court also denied
Defendant's motion for a downward departure for acceptance of responsibility,
under U.S.S.G. 3E1.1. Defendant challenges these sentencing decisions in
his appeal.
Discussion
Before turning to the merits, we note that both parties devoted
substantial portions of their briefs to whether the district court improperly
denied Defendant's motion to suppress. As Defendant's attorney made clear at
oral argument, however, he does not seek reversal of the district court's denial
of the suppression motion. He acknowledges that Defendant entered an
unconditional guilty plea, and "entry of an unconditional guilty plea results in
the waiver of all nonjurisdictional defenses." United States v. Robertson, 45
F.3d 1423, 1434 (10th Cir. 1995).
We therefore need address only issues relating to Defendant's sentence.
In considering challenges to sentencing enhancements under 3C1.1, "[w]e
review the district court's factual findings as to the obstruction of justice under
the clearly erroneous standard, and review de novo the district court's legal
interpretation of the Sentencing Guidelines." United States v. Hawley, 93
F.3d 682, 686-687 (10th Cir. 1996). Similarly, "[w]e review for clear error
the district court's refusal to grant a reduction in offense level for acceptance
of responsibility." Id. at 689.
1. Sentencing enhancement under 3C1.1
U.S.S.G. 3C1.1 states:
If (A) the defendant willingly obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the course of the investigation, prosecution, or sentencing
of the instant offense of conviction, and (B) the obstructive
conduct related to (i) the defendant's offense of conviction and any
relevant conduct; or (ii) a closely related offense, increase the
offense level by 2 levels.
The commentary to 3C1.1 provides "a non-exhaustive list of examples of the
types of conduct to which this adjustment applies." U.S.S.G. 3C1.1, cmt.
(n.4). The list includes "committing, suborning, or attempting to suborn
perjury." Id. cmt. (n.4(b)).
The United States Supreme Court addressed the imposition of 3C1.1
enhancements for perjury in United States v. Dunnigan, 507 U.S. 87, 94
(1993). The Court stated that in the context of 3C1.1, perjury takes place
when "[a] witness testifying under oath or affirmation . . . gives false testimony
concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory." Id. at 94
(citing the definition of perjury set forth in the federal perjury statute, 18
U.S.C. 1621). The opinion stressed that "not every accused who testifies at
trial and is convicted will incur an enhanced sentence under 3C1.1 for
committing perjury." Id. at 95. For example, when a defendant testifies about
"matters such as lack of capacity, insanity, duress, or self-defense . . . [h]er
testimony may be truthful, but the jury may nonetheless find the testimony
insufficient to excuse criminal liability or prove lack of intent." Id.
Therefore, "if a defendant objects to a sentence enhancement resulting from
her trial testimony, a district court must review the evidence and make
independent findings necessary to establish a willful impediment to or
obstruction of justice, or an attempt to do the same, under the perjury
definition we have set out." Id.
Defendant attacks the enhancement on three grounds: (1) the district
court's findings were inadequate; (2) he did not commit perjury; and (3) perjury
at a suppression hearing is an improper ground for enhancement. We discuss
each in turn.
a. Adequacy of the court's findings
We first address Defendant's challenge to the adequacy of the district
court's findings regarding his perjury. Dunnigan provides some guidance
regarding the type of factual findings that district courts must make in order to
enhance sentences under 3C1.1. The opinion states that while "it is
preferable for a district court to address each element of the alleged perjury in
a separate and clear finding," it "is sufficient . . . if . . . the court makes a
finding of an obstruction of, or impediment to, justice that encompasses all of
the factual predicates for a finding of perjury." Id. at 95.
The Tenth Circuit's standards are stricter than those expressed in
Dunnigan. We require that a district court be explicit about which
representations by the defendant constitute perjury. In United States v.
Massey, 48 F.3d 1560, 1573 (10th Cir. 1995), we observed that "although
Dunnigan did not require sentencing judges specifically to identify the
perjurious statement, it has long been a requirement in the Tenth Circuit that
the perjurious statement be identified, at least in substance." The Massey
court clarified that it did "not mean to imply that the district court must recite
the perjurious testimony verbatim," but rather that the district court could
"generally identify the testimony at issue . . . so that when we review the
transcript we can evaluate the Dunnigan findings of the elements of perjury
against an identified line of questions and answers without having simply to
speculate on what the district court might have believed was the perjurious
testimony." Id. at 1574.
Although greater specificity by the district court would have been
helpful, and is strongly recommended for the future, we hold that, in context,
the court's findings here were adequate to satisfy Dunnigan and Massey. We
begin with consideration of the Dunnigan requirements. The district court
found all three elements of the offense of perjury: (1) a false statement under
oath, (2) concerning a material matter, (3) with the willful intent to provide
false testimony. See Dunnigan, 507 U.S. at 94. A finding on the first element
(making a false statement) is encompassed by the court's remark: "I do think . .
. Mr. Hawthorne, that you lied in your testimony at the suppression hearing
about the voluntariness of the statements that you made to the officers." Supp.
ROA at 2. The third element (willful intent) was clearly found when the court
stated at the sentencing hearing that "I don't have any hesitation at all in
concluding that your testimony was willfully false." Id. at 3.
As for the second element (materiality), the district court implicitly
found that Defendant's testimony about the voluntariness of his confession was
material. The court declined to impose an enhancement for Defendant's
statements about Brooks, noting that "the testimony . . . regarding Mr. Brooks
is probably not particularly material here, although I believe that the defendant
lied about it." Id. at 2. In contrast, shortly thereafter the district court
declared that Defendant's testimony concerning the voluntariness of his
statements did warrant a sentencing enhancement. The court's distinction
between the two areas of testimony establishes that it found the testimony
about voluntariness to be material.
The more difficult question is whether the court complied with Massey
by adequately identifying which of Defendant's statements were perjurious. At
the sentencing hearing the court observed only that Defendant "lied in [his]
testimony at the suppression hearing about the voluntariness of the statements
that [he] made to the officers." Id. Given that the central issue for resolution
at the suppression hearing was whether Defendant's confession was voluntary,
this comment could have been referring to almost any part of Defendant's
testimony.
In context, however, it is clear that the court's comment was referring to
only one part of that testimony. As Defendant's brief accurately states, "The
prosecution [at the sentencing hearing] represented the defendant's arguments
concerning voluntariness of the waiver as if the only issue was whether or not
his request for an attorney had been equivocal or unequivocal." Aplt. Br. at 23.
The Government sought an enhancement because of Defendant's perjury
concerning (1) whether Defendant had requested an attorney and (2) the
possible drug dealing of Cecil Brooks. When the court ruled that Defendant
had lied on both matters but only the testimony on "voluntariness" warranted an
enhancement, it was surely using the word "voluntariness" to refer to the
testimony about requesting an attorney.
This conclusion is reinforced by an examination of what the court said at
the suppression hearing. In explaining its ruling at that hearing, the district
court addressed the three bases of Defendant's claim that his confession was
involuntary. First, the district court rejected Defendant's claim that the
officers had used threats to induce him to waive his Miranda rights. The court
said, "[T]here's no evidence of any threats or coercion." ROA, Vol. 2 at 47-48.
Second, with regard to Defendant's claim that he was mentally
incompetent to waive his rights, the district court stated, "I don't accept the
proposition that he was intoxicated in any legally meaningful sense of that
word." Id. at 48. Although the court commented that there was "no credible
evidence" that Defendant had been incapacitated by drugs, we do not take this
comment as a reflection on Defendant's veracity. On the contrary, the court
believed, or at least assumed, that Defendant had consumed drugs or alcohol
shortly before his arrest. The court's focus was apparently on the absence of
any significant impairment by the time of the interrogation.
Finally, in rejecting Defendant's claim that he had requested a lawyer, the
district court said that it did not "find credible his testimony that he did ask for
a lawyer during the reading of his rights form." Id. The court did find credible
the officers' testimony that Defendant had said only that he might want a
lawyer. As stated in Defendant's opening brief, "The Court found that the
request had been equivocal and that the defendant had lied when he testified
that his request had been unequivocal." Aplt. Br. at 23.
Thus, we conclude that the district court's reference at sentencing to
lying by Defendant "about the voluntariness of [his] statements" must relate to
Defendant's testimony that he had asked for a lawyer. Accordingly, we hold
that the specificity requirement of Massey was satisfied. We emphasize again,
however, that it would have been preferable if the court had been more precise.
b. Whether Defendant committed perjury
Defendant next argues that his testimony was not in fact perjurious. He
characterizes his testimony as "a good faith attempt to explain his
interpretation of the circumstances under which he signed a waiver of rights."
Aplt. Br. at 18. In our view, however, the evidence could easily support the
district court's determination that Defendant's testimony was "willfully false."
Defendant's specific words regarding his interest in having an attorney were
clearly at issue at the suppression hearing. Agent Violanti and Officer Viera
each testified that Defendant had paused in the reading of the rights form to
state "I may want a lawyer." (emphasis added.) ROA, Vol. 2 at 8, 15, 23. Then,
when Defendant testified, he denied that he had qualified his request for a
lawyer with the word "may":
Q: Did you make any statements regarding wanting to talk to a
lawyer when they were using the Miranda-
A: Yes, I told them that I wanted to speak with a lawyer.
Q: Did you use the word may or-
A: I told them I wanted a lawyer.
Q. What was their response to that?
A. They told me that they was going to get me a lawyer . . . .
Id. at 34. As previously noted, the difference between saying "I want a lawyer"
and "I may want a lawyer" is crucial. See Davis, 512 U.S. at 458-62. The
district court could properly find that Defendant's insistence that he did not
qualify his interest in seeing a lawyer was not just a "good faith attempt" to
explain what had happened.
c. Enhancement for perjury at suppression hearing
Defendant's final challenge to the enhancement for obstruction of justice
is his contention that it is not appropriate to enhance a defendant's sentence
for perjury committed at a suppression hearing. He argues that defendants
should be able to contest the voluntariness of confessions without risking
sentencing enhancements for perjury if their motions to suppress fail.
We reject Defendant's contention. We affirmed an obstruction
enhancement for perjury at a suppression hearing in United States v.
Alexander, 292 F.3d 1226 (10th Cir. 2002). To be sure, in Alexander we
emphasized that the defendant's false allegations had led to an otherwise
unnecessary evidentiary hearing, thereby wasting the scarce resources of both
the prosecutor and the court. But the same could be said in the vast majority of
cases in which perjury has been committed at a suppression hearing. In any
event, we see no need to make an individualized assessment in each case of
whether the perjury was the cause for an unnecessary evidentiary hearing. The
commentary to 3C1.1 lists perjury as an example of conduct justifying an
enhancement for obstruction of justice. The commentary does not specify that
the perjury must be at trial. On the contrary, 3C1.1 explicitly applies to
obstructions of justice taking place "during the course of the investigation,
prosecution, or sentencing."
Indeed, in Alexander we observed that the contrast between perjury at
trial and perjury at a suppression hearing, for purposes of 3C1.1, may
represent "a distinction without a difference." 292 F.3d at 1236. Certainly,
there is no reason for courts to be more solicitous of perjury at a suppression
hearing than perjury at trial. Perjury obstructs justice in any judicial
proceeding, and to the extent that sanctions for perjury deter the practice, so
much the better. As the Supreme Court stated in Dunnigan, "Respondent
cannot contend that increasing her sentence because of her perjury interferes
with her right to testify, for we have held on a number of occasions that a
defendant's right to testify does not include a right to commit perjury." 507
U.S. at 96. The other circuits to have faced the issue have permitted
enhancements under 3C1.1 for perjury at suppression hearings. See, e.g.,
United States v. Matos, 907 F.2d 274, 276 (2d Cir. 1990); United States v.
Akinkoye, 185 F.3d 192, 205 (4th Cir. 1999); United States v. Reed, 26 F.3d
523, 531 (5th Cir. 1994); United States v. Charles, 138 F.3d 257, 266 (6th
Cir. 1998); United States v. Reddrick, 90 F.3d 1276, 1283 (7th Cir. 1996);
United States v. Gleason, 25 F.3d 605, 608 (8th Cir. 1994); United States v.
Sherwood, 98 F.3d 402, 415 (9th Cir. 1996); United States v. Wilson, 240
F.3d 39, 46 (D.C. Cir. 2001). We now hold that 3C1.1 extends to perjury at
suppression hearings.
We therefore conclude that the district court properly enhanced
Defendant's sentence under U.S.S.G. 3C1.1, based on its finding that he
committed perjury at the suppression hearing.
2. Denial of sentencing reduction under 3E1.1
We can summarily dispose of Defendant's apparent challenge to the
district court's decision to deny him a sentencing reduction for acceptance of
responsibility under U.S.S.G. 3E1.1. This guideline instructs district courts
that "[i]f the defendant clearly demonstrates acceptance of responsibility for
his offense, decrease the offense level by 2 levels." U.S.S.G. 3E1.1(a). The
commentary states, however, that "[c]onduct resulting in an enhancement under
3C1.1 . . . ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct." U.S.S.G. 3E1.1, cmt. (n.4).
Although "[t]he Guidelines do envision extraordinary cases where a defendant
could receive an adjustment for acceptance of responsibility despite also
receiving an enhancement for obstruction of justice," United States v. Proffit,
304 F.3d 1001, 1009 (10th Cir. 2002), Defendant has pointed to no such
extraordinary circumstances here. We thus conclude that the district court did
not err in denying Defendant a sentencing reduction under 3E1.1.
Conclusion
We AFFIRM the sentence below.
United States v. Hawthorne, No. 01-3357
HENRY, Circuit Judge, concurring in part and concurring on other grounds in
part:
I concur that perjury at a suppression hearing is covered by U.S.S.G.
3C1.1. I also concur that we strongly prefer specific findings by the district
court when it enhances a sentence. As the majority opinion clearly states, the
purpose of this court's holding in United States v. Massey, 48 F.3d 1560 (10th
Cir. 1995), is to make it possible for an appellate court to review district court
decisions without having to, in essence, "fill in the blanks." As the Massey
court put it, the district court in that case
failed to identify or describe the statement that it
concluded was perjurious as required by well-
established Tenth Circuit law. Accordingly, we would
have no way of reviewing the district court's findings
on the elements of perjury even if it had made such
findings. Thus, we must remand for the required
additional findings.
Id. at 1573.
This is precisely the problem here. If we are to affirm the district
court's finding, we must infer what the district court meant when it said that
Mr. Hawthorne "lied in [his] testimony at the suppression hearing about the
voluntariness of the statements that [he] made to the officers," Opinion at 8.
After searching the record to determine the court's meaning, I was able to find
two bases on which the district court might have found that Mr. Hawthorne had
lied. Neither relies on the difference between "I may want a lawyer" and "I told
them I wanted a lawyer," which, as I explain below, is not a sufficient basis for
finding perjury.
Mr. Hawthorne testified at the suppression hearing that the officers
promised to get him a lawyer. Id. at 3. This is a factual assertion, relevant to
the "voluntariness" of Mr. Hawthorne's statements to the officers, that the
district court might reasonably have considered perjurious. The only record
evidence relevant to the judge's thinking on this issue is her comment to Mr.
Hawthorne's attorney that, even if the officers did make such a promise to
provide a lawyer, Mr. Hawthorne's decision to answer questions constituted a
waiver of his rights. Rec. vol. 2, at 45. This provides no indication that the
judge actually believed the testimonyÄonly that Mr. Hawthorne would not be
helped even if the judge did believe it.
More broadly, I think the district court might well have believed that the
entirety of the conversation, including the defendant's post-Miranda words and
actions, indicated clearly that he did not demand a lawyer. I think the court
thus determined that Mr. Hawthorne's statements at the suppression hearing
were in direct conflict with his statements at the interrogation, and that these
statements combined to be material and intentional misrepresentations.
The majority opinion instead finds the "lie" in the difference between the
statements "I may want a lawyer" (during the interrogation) and "I told them I
wanted a lawyer." Opinion at 16. Therefore, as I understand the majority
opinion, it holds that a single finding by the judge that the defendant
equivocated during the interrogation and then described his request in
unequivocal terms at the suppression hearing is sufficient to support a finding
of perjury.
I have some concern whether this statement is sufficient to constitute
perjury, which is defined by statute as "willfully subscrib[ing] as true any
material matter which [the declarant] does not believe to be true." 18 U.S.C.
1621(2). It seems entirely plausible to me, however, that a non-lawyer,
unfamiliar with the dictates of Davis v. United States, 512 U.S. 452 (1994),
could believe that he was not lying when testifying "I told them I wanted a
lawyer" in these circumstances.
The majority opinion asserts that "when Defendant testified, he denied
that he had qualified his request for a lawyer with the word `may.'" Opinion at
16. In fact, Mr. Hawthorne's testimony does not explicitly deny that he said, "I
may want a lawyer." The lawyer's question began, "Did you use the word may
or-." Id. Mr. Hawthorne interrupted and said, "I told them I wanted a lawyer."
Id. I think it is reasonable to conclude that Mr. Hawthorne was emphasizing
what he thought he had asked for, not that he was denying ever using the word
"may." By analogy, "I would like a lawyer" is not, strictly speaking, a request
for a lawyer. The conditional phrasing, however, is commonly used not to
mean, "I would like a lawyer under the following conditions," but simply, "I
want a lawyer." Similarly, "I may be having a heart attack" is rather close to
saying "I am having a heart attack." In any case, these shades of difference are
insufficient in my mind to constitute perjury.
The Guidelines offer the following explicit exhortation: "In applying this
provision in respect to alleged false testimony or statements by the defendant,
the court should be cognizant that inaccurate testimony or statements
sometimes may result from confusion, mistake, or faulty memory and, thus, not
all inaccurate testimony or statements necessarily reflect a willful attempt to
obstruct justice." U.S.S.G. 3C1.1, cmt. 2. In my view, a non-lawyer could
testify as Mr. Hawthorne did from confusion, mistake, or faulty memory.
Hence, to affirm a perjury finding on so slim a reed runs the risk of increasing
the sentence of a defendant who testifies to what he believes to be the truth.
Given that 3C1.1 is "not intended to punish a defendant for the exercise of a
constitutional right," id., this result is very troubling.
Therefore, as this case is close as to whether the court indicated with
sufficient specificity Mr. Hawthorne's perjurious statement or statements, I
believe that we should have affirmed on the most non-controversial grounds
possible. In my view, the examples that I described above provide a much
clearerÄand less Constitutionally problematicÄbasis for affirming the district
court's finding.