Judges: Hamilton
Filed: Dec. 14, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-2243 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY BROWN, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 405-4 — Ronald A. Guzmán, Judge. _ ARGUED APRIL 4, 2016 — DECIDED DECEMBER 14, 2016 _ Before EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.* HAMILTON, Circuit Judge. Appellant Anthony Brown pled guilty
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-2243 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY BROWN, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 405-4 — Ronald A. Guzmán, Judge. _ ARGUED APRIL 4, 2016 — DECIDED DECEMBER 14, 2016 _ Before EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.* HAMILTON, Circuit Judge. Appellant Anthony Brown pled guilty t..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2243
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ANTHONY BROWN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 405‐4 — Ronald A. Guzmán, Judge.
____________________
ARGUED APRIL 4, 2016 — DECIDED DECEMBER 14, 2016
____________________
Before EASTERBROOK and HAMILTON, Circuit Judges, and
PEPPER, District Judge.*
HAMILTON, Circuit Judge. Appellant Anthony Brown pled
guilty to conspiring to distribute drugs. He appeals his sen‐
tence, challenging the application of a two‐level Sentencing
* Hon. Pamela Pepper of the Eastern District of Wisconsin, sitting by
designation.
2 No. 15‐2243
Guideline enhancement for obstruction of justice. The unu‐
sual process that led to this enhancement persuades us that
we should remand. The judge who sentenced Brown imposed
the enhancement based on Brown’s responses to three ques‐
tions in testimony in a hearing on a motion to suppress in an‐
other case against another defendant and before another
judge. The other defendant ultimately pled guilty and with‐
drew his motion to suppress. As a result, the judge who actu‐
ally heard Brown’s testimony never made findings about the
honesty of his testimony or the merits of the other defendant’s
motion to suppress. The judge who sentenced Brown im‐
posed the enhancement for obstruction of justice based on the
other judge’s interim impressions about earlier testimony
from police officers. That was not a sufficient factual founda‐
tion to support the obstruction of justice enhancement. We va‐
cate Brown’s sentence and remand for resentencing.
I. Facts and Procedural Background
Anthony Brown was arrested for selling heroin in a hand‐
to‐hand drug transaction on Chicago’s west side. He offered
to assist the police, telling the officers that he knew where a
man named “Jimmie” stored large amounts of drugs and that
he was supposed to meet Jimmie later that day. Brown gave a
description of Jimmie but did not provide his last name.
Brown rode with police officers in an unmarked police car to
Jimmie’s stash house. Brown then placed a monitored but un‐
recorded call from the police car using his personal cell
phone. When a person matching the description given by
Brown emerged from the house, police stopped him. They
found eight baggies with approximately 1000 capsules con‐
taining 135 grams of heroin. The police later identified him as
Jimmie Sessom.
No. 15‐2243 3
Sessom was charged with possessing 100 grams or more
of heroin with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). His case was assigned to Chief Judge Castillo. Ses‐
som moved to suppress the search and seizure of heroin. At
an evidentiary hearing on the motion to suppress before
Judge Castillo, Chicago police officers and an FBI agent testi‐
fied about the information Brown had given them and Ses‐
som’s stop and arrest. After hearing the testimony, Judge Cas‐
tillo told the attorneys he was inclined to deny Sessom’s mo‐
tion to suppress, and he shared with the attorneys his “pre‐
liminary conclusions” to the effect that he found credible the
police testimony about the information that Brown provided.
Judge Castillo made no definitive ruling, however, and left
open the possibility of hearing further evidence.
Sessom later moved to reopen the suppression hearing to
call Brown to testify. Since Brown’s own criminal case was still
pending, the parties in Sessom’s case expected Brown to assert
his Fifth Amendment privilege not to incriminate himself.
Sessom proposed to the court that Brown be asked just four
questions that he argued would not invade Brown’s Fifth
Amendment privilege. The questions were provided in briefs
to the court and to all parties. Judge Castillo granted the mo‐
tion, reopened the suppression hearing, and ordered Brown
to answer over his Fifth Amendment objection.
The questioning was conducted by Sessom’s counsel:
Q: Mr. Brown, on the evening of July 11, 2012 at ap‐
proximately 7:45, were you in a car with a Chi‐
cago Police Department officer around Taylor
and North Avenue in Chicago?
A: You said Taylor and North Avenue?
4 No. 15‐2243
Q: Yes.
A: No.
Q: On the evening of July 11th, 2012 at approxi‐
mately 7:45, did you identify an individual
walking out of an apartment building at 1239
North Taylor Avenue –
A: No.
Q. – as someone you knew as Jimmie?
A: No.
Q: On the evening of July 11th, 2012 at approxi‐
mately 7:45, did you place a phone call from a
CPD officer’s car to someone named Jimmie?
A: No.
Q: Do you recall what your phone number was in
July 2012?
A: I can’t remember.
After that hearing, Sessom pled guilty and withdrew his mo‐
tion to suppress. As a result, Judge Castillo never ruled on the
motion to suppress and did not make any findings on the
credibility of Brown’s answers.
Brown then pled guilty to the conspiracy charge against
him. Judge Guzmán sentenced Brown. The government ar‐
gued that Brown had obstructed justice by lying in his an‐
swers to those questions in Sessom’s suppression hearing.
Judge Guzmán then determined that Brown’s “no” answers
in the suppression hearing reflected Brown’s version of the
events and found that his version of events was not credible.
No. 15‐2243 5
Judge Guzmán then “agreed with” Judge Castillo’s prelimi‐
nary view that the officers who testified at Sessom’s suppres‐
sion hearing were credible.
Judge Guzmán was “convinced that [Brown’s] failure to
accurately testify constitutes an obstruction of justice.” He
found that the failure to testify accurately was intentional and
imposed the two‐level guideline increase for obstruction of
justice under U.S.S.G. § 3C1.1. The enhancement made the to‐
tal offense level 27. With criminal history Category III, the
guideline range became 87 to 108 months. Judge Guzmán im‐
posed a sentence of 60 months, below both the actual guide‐
line range and the range of 70 to 87 months that would have
applied without the obstruction enhancement.
On appeal Brown argues that Judge Guzmán did not make
appropriate findings to support application of the enhance‐
ment for obstruction of justice. In our view, while Judge Guz‐
mán made the findings required for the enhancement, he did
not have a sufficient factual basis for doing so since he based
those findings primarily on the interim impressions Judge
Castillo announced before he had even heard Brown’s testi‐
mony. We wonder whether a remand is likely to benefit
Brown, especially in light of the below‐guideline sentence and
the continued credit for acceptance of responsibility (which is
unusual but permissible when an obstruction enhancement
applies). Still, we cannot say on this record that the error was
harmless, so we remand for re‐sentencing.
II. Analysis
Judge Guzmán found that Brown committed perjury by
providing the three “no” answers in Sessom’s suppression
hearing. We review the district court’s factual findings for
6 No. 15‐2243
clear error. United States v. DeLeon, 603 F.3d 397, 402 (7th Cir.
2010), citing United States v. Powell, 576 F.3d 482, 498 (7th Cir.
2009). Those “factual findings will stand as long as they are
plausible in light of the record in its entirety.” Id. (internal
quotation marks and citation omitted). We review de novo
whether the factual findings of the district court adequately
support the imposition of the enhancement. See id., citing
United States v. Anderson, 580 F.3d 639, 648 (7th Cir. 2009).
When applying a § 3C1.1 enhancement for obstruction of
justice based on perjury, “the district court should indicate
that it has found all of the elements of perjury: falsity, willful‐
ness and materiality.” United States v. Turner, 203 F.3d 1010,
1020 (7th Cir. 2000), quoting United States v. Brimley, 148 F.3d
819, 823 (7th Cir. 1998). In such cases, “a district court must
review the evidence and make independent findings neces‐
sary to establish a willful impediment to or obstruction of jus‐
tice, or an attempt to do the same.…” United States v. Dunni‐
gan, 507 U.S. 87, 95 (1993). The district court “must also find
that a defendant testified untruthfully with the specific intent
to obstruct justice rather than as a result of confusion, mistake
or faulty memory.” United States v. Gage, 183 F.3d 711, 715 (7th
Cir. 1999), citing Dunnigan, 507 U.S. at 94, and United States v.
Ewing, 129 F.3d 430, 434 (7th Cir. 1997) (“Section 3C1.1 re‐
quires specific intent to obstruct justice.”). The prosecution
bears the burden “to prove by a preponderance of the evi‐
dence that the enhancement is warranted.” Ewing, 129 F.3d at
434, citing United States v. Hamm, 13 F.3d 1126, 1129–30 (7th
Cir. 1994).
We first address a legal issue about whether § 3C1.1 could
apply to Brown’s testimony in Sessom’s suppression hearing.
Section 3C1.1 provides:
No. 15‐2243 7
If (1) defendant willfully obstructed or im‐
peded, or attempted to obstruct or impede, the
administration of justice with respect to the in‐
vestigation, prosecution, or sentencing of the in‐
stant offense of conviction, and (2) the obstruc‐
tive conduct related to (A) the defendant’s of‐
fense of conviction and any relevant conduct; or
(B) a closely related offense, increase by 2 levels.
Could perjury by Brown in the Sessom suppression hearing
meet the requirements of § 3C1.1? We agree with the district
court that it could, at least with sufficient factual findings. The
second clause allows the enhancement to be applied for per‐
jury or other obstruction regarding a “closely related offense.”
We find no error in the district court’s decision to treat
Brown’s testimony in the Sessom suppression hearing as “re‐
lated to … a closely related offense,” even though the two men
were not charged jointly. See United States v. Messino, 382 F.3d
704, 708 (7th Cir. 2004) (affirming enhancement where de‐
fendant testified falsely during trial of co‐defendants); accord,
United States v. Mollner, 643 F.3d 713, 718 (10th Cir. 2011);
United States v. Savoca, 596 F.3d 154, 158 (2d Cir. 2010).
The first clause in § 3C1.1 requires that the perjury or other
obstruction have been “with respect to the investigation, pros‐
ecution, or sentencing of the instant offense of conviction.”
The “instant offense of conviction” for Brown was conspiracy
to possess heroin with intent to distribute it. A conspiracy re‐
quires a co‐conspirator, of course, and when Brown wanted
to cooperate, Sessom was the distributor he gave up to the po‐
lice. It is not unreasonable to treat perjury in a prosecution of
such a potential co‐conspirator as obstruction “with respect to
the investigation, prosecution, or sentencing” of Brown’s own
8 No. 15‐2243
offense of conviction. The close parsing of the precise word‐
ing of the Guideline provides another reminder, however,
about why a sentencing judge may not want to tie a final sen‐
tence too closely to such narrow guideline issues as the pre‐
cise scope of § 3C1.1 that may have only a tenuous relation‐
ship to the goals of sentencing under 18 U.S.C. § 3553(a). Per‐
haps the district judge here took that approach (keep in mind
that the sentence was below the guideline ranges both with
and without the obstruction enhancement), but he did not sig‐
nal clearly that he was doing so. In any event, there was no
legal obstacle to the obstruction enhancement here.
There was a factual obstacle, though. The district court
made the required findings, but did so without an adequate
basis in the evidence for finding willfulness and falsity. The
combination of relying on testimony before another judge and
the “no” answers to quite specific and multi‐part questions
undermined the usual grounds that would support those
findings. Recall the three key questions:
Q: Mr. Brown, on the evening of July 11, 2012 at ap‐
proximately 7:45, were you in a car with a Chicago
Police Department officer around Taylor and North
Avenue in Chicago?
Q: On the evening of July 11th, 2012 at approximately
7:45, did you identify an individual walking out of
an apartment building at 1239 North Taylor Avenue
… as someone you knew as Jimmie?
Q: On the evening of July 11th, 2012 at approximately
7:45, did you place a phone call from a CPD officer’s
car to someone named Jimmie?
No. 15‐2243 9
Brown answered each one “no.” Each question included mul‐
tiple factual elements. Because of concerns about his Fifth
Amendment privilege, there was no follow‐up. We recognize
that Brown may have had a strong incentive to lie about the
help he had given the police that led to Sessom’s arrest and
prosecution. But if Brown was mistaken or confused about
just one element of the multi‐part questions, his answers of
“no” could have been honest or at least not deliberately per‐
jurious. For example, there is evidence that Brown had not
known the address to which he was directing the officers, but
knew only how to get to the house. If he was mistaken about
the date or time or the cross‐streets, a “no” answer could have
been honest or at least not willfully false. These questions and
answers, without clarification, were too ambiguous to war‐
rant a determination that Brown gave willfully false answers.
Neither Brown’s attorney nor any other counsel was per‐
mitted to inquire further as to what parts of the questions
prompted the “no” answers. “The burden is on the questioner
to pin the witness down to the specific object of the ques‐
tioner’s inquiry.” Bronston v. United States, 409 U.S. 352, 360
(1973) (discussing federal perjury statute, 18 U.S.C. § 1621).
That did not occur in this case, for understandable reasons.
The Second Circuit has said that when a line of questioning
“is so vague as to be ‘fundamentally ambiguous,’ the answers
associated with the questions posed may be insufficient as a
matter of law to support the perjury conviction.” United States
v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986); see also United States
v. Landau, 737 F. Supp. 778, 784–85 (S.D.N.Y. 1990) (granting
motion to dismiss perjury indictment because questions were
ambiguous). Here the ambiguity stemmed from the combina‐
tion of multiple factual elements in each question and the lack
of follow‐up. Accordingly, Judge Guzmán could not rely on
10 No. 15‐2243
Brown’s “no” answers in the Sessom suppression hearing to
determine Brown’s “version of events.”
At Brown’s sentencing hearing, Judge Guzmán said:
On this record I find his version now of what oc‐
curred to be just not credible. It’s not credible.
The testimony by the officer, I agree with Judge
Castillo, was credible, was believable. That’s the
way things happen. That’s the way it’s done.
When Brown’s counsel noted the limited nature of the exami‐
nation in the Sessom suppression hearing and suggested that
the responses to the four government questions were not suf‐
ficient to find obstruction, the court responded:
You don’t think it’s clear from this record that
the officers’ testimony was that your client was
with him in the car, pointed out the apartment,
and pointed out the defendant when he came
out, and that he denied that when he testified?
After Brown’s counsel expressed further concern that the tes‐
timony was very limited in scope and that counsel was not
able to cross‐examine to clarify his testimony to bolster his
credibility, the court said that Brown’s motive was:
not a great mystery. I have many defendants
who come here, plead guilty, but still have one
foot in their other life. These are his relation‐
ships. These are the people he did business
with. These are the people who he fears. All of
these reasons would be cause for him to back off
and lie. It would be cause for him not to … want
to admit in open court in front of his peers, the
people he was doing business with, the people
No. 15‐2243 11
he depended upon, and the people he feared,
what he actually did against them. That hap‐
pens all the time. I don’t find that unusual.
The court later said:
I am convinced that his failure to accurately tes‐
tify constitutes an obstruction of justice. I think
it was intentional. I think it directly contradicted
the version of events as they actually occurred.
It was under oath. And I find that the two‐level
increase for obstruction of justice is appropriate
in this case. As a result of that I find that the ap‐
propriate adjusted total offense level in this case
is 27.…
On this record, we cannot agree. We assume that Judge
Guzmán could have relied on more definitive findings by
Judge Castillo that Brown had lied deliberately. We also as‐
sume that Judge Guzmán could have made his own findings
if Brown’s answers had been less ambiguous. But the fact that
Judge Castillo never made findings in the Sessom hearing and
never made findings about Brown’s credibility means that
Judge Castillo’s initial impressions about the hearing could
not be relied on in Brown’s case to support an enhancement
for perjury. We recognize that Brown may well have been ly‐
ing before Judge Castillo, but the very specific questions and
terse “no” answers in the transcript did not provide a “Brown
version” of events that Judge Guzmán could rely upon to find
perjury.
Brown’s sentence is VACATED and the case is
REMANDED for re‐sentencing.