April 20, 2005
Seventh Circuit's View on Obstruction of Justice Enhancement After Booker
The Seventh Circuit issued an opinion in United States v. Miller (here) that deals, in a footnote, with the question whether a judge can impose the Obstruction of Justice enhancement based on the defendant's perjury at trial without a specific jury finding on that issue. The defendant denied in his testimony that he knew the bag he delivered contained Ecstasy, yet the jury convicted him of conspiracy and distribution. Although the court remanded the sentence to the district court, it paused to discuss the Obstruction enhancement:
To indicate our resolution of issues presented on the present appeal, however, we would note that the district court did not clearly err in finding that Miller perjured himself by testifying that he did not know that the bag he delivered to Detective Mahone contained Ecstasy, since it could have refused to credit Miller’s testimony in light of his admissions. Moreover, both the offenses of conspiracy and distribution incorporate a scienter element that Miller’s testimony was intended to negate, and the jury’s verdict directly establishes that it disbelieved his testimony, since it was required to find scienter in order to convict Miller. Under Booker, therefore, it could certainly be argued that there was no constitutional error in applying the enhancement for obstruction of justice because the jury by its verdict established that perjury had been committed. In any event, there was a statutory error since the district court, in applying the enhancement, erroneously believed that the Guideline was mandatory, not advisory. Although no objection was raised at trial, the government has conceded that the application of the assessment was error, whether constitutional or statutory. (But the context of the government concession indicated that it applied to the constitutional question).
The Seventh Circuit approach indicates that, at least when the jury's verdict implicitly rejects the defendant's denial of an element of the crime, then an Obstruction of Justice enhancement would be reasonable under Booker. That approach would require the trial court to interpret the scope of the jury's verdict, and seems to support, at least implicitly, the argument that the Obstruction/Perjury enhancement requires some jury finding, even if not an explicit one regarding perjury. (ph)
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