When Malpractice Becomes a Crime & the Obstruction of Justice Enhancement After Booker

A lawyer realizes that he has failed to file suit within the statute of limitations.  What should the lawyer do?  An answer about what not to do is provided in United States v. Holmes (here), a recent decision of the Fifth Circuit. [The next two posts also review convictions of lawyers -- I guess it's Lawyer Crime Week in the circuit courts]  Lassiter Holmes was retained to represent a client in a med mal case, did nothing for two years, and on May 14, 1996, filed the lawsuit.  Unfortunately, the injury occurred on May 11, 1994, so he was outside the two-year statute of limitations.  After much wrangling during discovery (this is a med mal case, after all, so the tussle was quite intense), a check of the court file produced another copy of the complaint filed by Holmes with a notation that it was filed on May 7, 1996; attached to the filing was a badly torn envelope with the date "May 6, 1996" with Holmes' return address and it appeared that it could have been addressed to the Clerk of the Court, whose last name was "Gonzalez."  Defense counsel had the second complaint tested, and determined that the bond paper was produced in 1997 -- just a little bit after the "complaint" was supposed to have been filed.  Well, to make an overly long story short, the malpractice case settled with Holmes making a payment to both the insurance company for the defendants and to his client.  Defense counsel didn't rest there, filing a grievance with the state bar, which sanctioned Holmes by placing him on two years probation.  The FBI showed up next, and Holmes and Ms. Gonzalez, the court clerk, were indicted on mail fraud and conspiracy charges relating to the false document in the court files (Gonzalez died before trial).

The Fifth Circuit upheld the conviction, but remanded for resentencing (he received a 33-month term of imprisonment) because, inter alia, the district court gave a two-level enhancement for Obstruction of Justice when the judge determined Holmes perjured himself at trial, which the Fifth Circuit held violates Blakely (and Booker).  The court rejected the position adopted by the 11th Circuit in United States v. Rodriguez, 398 F.3d 1291, 1298 n.5, that when a jury convicts a defendant who denies he committed the crime it necessarily determines that the defendant committed perjury, thereby permitting the court to impose the two-level Obstruction enhancement.  The Fifth Circuit agreed that the jury rejected the "veracity of Holmes's story," but the enhancement could not be saved because there must be "more than a conclusion that the defendant's story of events is not credible . . ."  The court stated:

[T]here is more than ample evidence in the record to support the district court's thorough perjury findings.  Nevertheless, because the enhancement was imposed under mandatory guidelines and the jury was not specifically asked and instructed to find beyond a reasonable doubt whether Holmes had committed perjury based on the foregoing elements, there is Booker error. So although we harbor little doubt that, if so asked and instructed, the jury would have reached the same conclusion as the district court--i.e., that Holmes committed perjury--the requisite findings cannot be projected onto the jury's guilty verdict to cure the constitutional error.

The Fifth Circuit approach effectively eliminates the Obstruction enhancement, at least for defendant perjury at trial, unless the jury returns a verdict stating that the defendant committed perjury, a process that is similar to the Blakely counts added to indictments before Booker.  That brings back all the questions attendant to that approach, such as how the courts would conduct the proceedings, plus the problem that it would be highly prejudicial to a defendant to have a paragraph in the indictment stating "If the defendant testifies at trial, did he make a false statement of material fact . . . ."  That approach would have substantial Fifth Amendment problems, and holding a jury over to conduct a mini-trial on whether a defendant committed perjury, all for a two-level enhancement, seems to be less-than-economical.  (ph)