United States v. Bova

United States Court of Appeals
For the First Circuit

No. 02-2276
No. 02-2311

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

ANTHONY BOVA,

Defendant, Appellant/Cross-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* U.S. District Judge]

Before

Boudin, Chief Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

Syrie D. Fried, Federal Defender Office, for defendant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for the
United States.

November 25, 2003

*
Of the Southern District of New York, sitting by designation.
 BOUDIN, Chief Judge. Anthony Bova, convicted in the

district court for lying in the course of court testimony in an

earlier matter, now appeals. He claims that his perjury grew out

of a violation of his right to counsel; the government cross

appeals on a sentencing issue. We describe briefly the background

events and prior proceedings, reserving further detail for

discussion of the two quite different claims on appeal.

Well before the events that gave rise to this case, Bova

was convicted in February 1993 in federal court in Nevada for a

conspiracy involving the possession of stolen credit cards, served

a term in prison, and was on supervised release in Massachusetts in

early 1995. On September 1, 1995, he was arrested for an asserted

supervised release violation (an alleged stabbing). While in

custody on that charge, he was accused of beating a fellow

prisoner, Paul Hurley, on November 6, 1995.

A district judge found the initial stabbing charge not

proven and Bova was set free on February 9, 1996, still on

supervised release. Three days later, on February 12, 1996, Bova

allegedly used a knife to assault one Walter Tauro in Somerville,

Massachusetts. Bova was then re-arrested for violating supervised

release conditions and brought before a magistrate judge on March

15, 1996, for a hearing on bail. Bova initially sought to

represent himself but was persuaded to accept appointed counsel and

the hearing was adjourned.

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 The following Monday, March 18, 1996, the hearing

resumed. Although Bova faced charges that could end his supervised

release, the sole question at the resumed hearing was whether Bova

should be released on bail or detained (as the government sought)

pending resolution of the new charges. Bova now sought to

represent himself with his new attorney acting as standby counsel;

the magistrate judge said that he would not approve this option and

that Bova must have counsel or simply represent himself. Saying

that he was better prepared than his counsel, Bova insisted upon

representing himself.

In the hearing, Bova cross-examined the government's

witness, Probation Officer John Perry, and then testified on his

own behalf, denying that he had assaulted either Hurley or Tauro.

The magistrate judge ended by finding probable cause to believe

that Bova had committed both assaults and detained him as a danger

to the community. Later, the district court found Bova responsible

for both assaults, as well as a third assault on a guard committed

on February 15, 1996, and sentenced him for violating his

supervised release conditions.1

1
In July and August 1999, Bova was given concurrent six-month
sentences in state court after pleading guilty to assaulting and
threatening to kill Tauro and entering an Alford plea to the charge
of assault and battery on Hurley. See North Carolina v. Alford,
400 U.S. 25 (1970).

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 On March 15, 2001, a federal grand jury indicted Bova for

two counts of perjury, 18 U.S.C. § 1623 (2000), and one of

obstruction of justice, 18 U.S.C. § 1503 (2000), based on his

testimony at the March 18, 1996, bail hearing. The perjury counts

were based on his denials under oath that he had assaulted Hurley

and Tauro; the obstruction charge related to the threatened effect

of these lies on the proceeding. After the district court declined

to suppress the perjurious statements, United States v. Bova, 170

F. Supp. 2d 96 (D. Mass. 2001), Bova entered a conditional plea of

guilty to all counts, reserving the right to appeal on the

suppression issue. He was thereafter sentenced to 30 months

imprisonment. This appeal by Bova followed; the government cross

appealed as to the sentence.

We begin with the suppression issue. Bova claims that he

was denied his right to counsel under the Sixth Amendment by the

magistrate judge; that this caused his false statements in the bail

hearing; and that the proper remedy is the suppression of those

false statements, thus effectively barring the case against him.

It is highly unlikely that Bova has a valid Sixth Amendment claim,

but it is even plainer that any supposed violation in the context

of this case would not warrant suppression.

Although Bova declines to elaborate on his theory of a

Sixth Amendment violation, we think it well to lay to rest any

suggestion that Bova had a right to represent himself and to enjoy

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the benefit of standby appointed counsel. See McKaskle v. Wiggins,

465 U.S. 168, 183 (1984). True, courts often appoint standby

counsel for a defendant who insists on self-representation–-partly

in the hope that proceedings will flow more smoothly--but no case

suggesting that the defendant has a constitutional right to

represent himself and enjoy appointed counsel has been called to

our attention.

One circuit has clearly stated that no right to standby

counsel exists. McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th

Cir. 1985), cert. denied, 474 U.S. 852 (1985). Language from an

earlier decision in this circuit points in the same direction. See

United States v. Betancourt-Arretuche, 933 F.2d 89, 95 (1st Cir.

1991), cert. denied, 502 U.S. 959 (1991). "Although appellate

courts have suggested that appointment of standby counsel is to be

preferred, it is not constitutionally required." 3 Lafave,

Criminal Procedure, § 11.5(f), at 589 (2d ed. 1999).

Bova's better argument, and seemingly the one he has in

mind, is a fact-specific claim that Bova was forced to represent

himself because the magistrate judge supposedly confronted Bova

with an unfair choice between self-representation and the

assistance of a counsel who had not been given adequate time to

prepare. In lengthy dialogue we have omitted (because we do not

plan to decide this "unfair choice" question), Bova and his

initially-appointed counsel said at the March 18, 1996, hearing

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that they had spoken together only for an hour before the court

session because counsel had not been able to meet with Bova over

the intervening weekend.

Why the magistrate judge did not volunteer that Bova and

his counsel could have more time to confer is a mystery; but

neither Bova nor his new counsel asked for additional time and the

magistrate judge certainly did not foreclose a request. This is

why we are skeptical that there is any Sixth Amendment claim,

although it is clear in retrospect (the vantage from which most

things are clear) that a postponement of the hearing to allow more

time would have been a good practical resolution.

Still, we will assume arguendo that the magistrate judge

did make some arguable mistake of constitutional dimension that

could be developed on a fuller record (say, by leading Bova to

believe that he had to represent himself or be content with

inadequately prepared counsel). Even so, on the present facts that

would not come close to licensing Bova to take the stand and

falsely deny under oath that he had committed two assaults.

The government says that even if there was a Sixth

Amendment violation (which it denies), that violation may have

"caused" Bova to represent himself but it did not "cause" him to

take the stand and tell clear-cut lies about his prior assaults.

Causation rhetoric is of some use in focusing upon the different

choices with which Bova was faced (whether to represent himself

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versus whether to lie). But it does not entirely resolve the legal

controversy in favor of the government, as it might if the supposed

constitutional violation followed the perjury rather than preceded

it.

"Causation" is one of the terms used in the law that is

notorious for multiple meanings. Yes, a supposed denial of

appointed counsel would not force Bova to lie; but it could

certainly be a "but for" cause of his perjury if we suppose–-not

without some basis–-that a competent lawyer who represented Bova in

the hearing would almost certainly have persuaded Bova not to take

the stand and compound his problems by denying the assaults. In

this sense a wrongful denial of counsel to an interrogated suspect

is said to have "caused" the confession that followed. Cf. Massiah

v. United States, 377 U.S. 201, 207 (1964).

The issue here is not one of "but for" causation but (as

with proximate cause) a policy choice as to the legal consequences

that judges want to impose upon a fault or flaw. The main policy

in this case is that courts very much do not want people to tell

deliberate lies on the witness stand and, in general, take the view

that defects in the steps that may bring witnesses to the stand are

not adequate reason for tolerating the lies and foregoing

punishment. A number of Supreme Court decisions reflect this

general policy.

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 Thus, in Dennis v. United States, 384 U.S. 855 (1966),

convictions for filing false non-Communist affidavits were

sustained, the Court holding that it did not matter whether the

underlying statute that required them violated the First Amendment.

Id. at 867; see also Bryson v. United States, 396 U.S. 64, 72

(1969). Similarly, in United States v. Mandujano, 425 U.S. 564,

576, 584 (1976), and United States v. Wong, 431 U.S. 174, 176-78

(1977), the respective failures to give a grand jury witness a

Miranda warning (in one case) or a warning as to the privilege

against self-incrimination (in the other) were held not to excuse

the subsequent perjury of the witness. Other cases are to the same

effect.2

Admittedly, evidence secured by the police in violation

of constitutional rights is often suppressed; the classic cases are

Mapp v. Ohio, 367 U.S. 643 (1961) (Fourth Amendment), Miranda v.

Arizona, 384 U.S. 436 (1966) (Fifth) and United States v. Massiah,

377 U.S. 201 (1964) (Sixth). But these cases do not immunize later

perjury by the defendant even if prompted by unlawfully obtained

evidence. Harris v. New York, 401 U.S. 222, 226 (1971) (Miranda

2
E.g., United States v. Olmeda, 839 F.2d 1433, 1437 (11th Cir.
1988) (Sixth Amendment violations in securing grand jury testimony
cannot be used to suppress perjurious testimony in a later perjury
prosecution); United States v. Winter, 348 F.2d 204, 208 (2d Cir.
1965), cert. denied, 460 U.S. 1011 (1983) (same). Cf. United
States v. Masters, 484 F.2d 1251, 1253-54 (10th Cir. 1973) (lack of
counsel at an evidentiary hearing part of a habeas corpus
proceeding does not excuse perjury.)

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violation "cannot be perverted into a license to use perjury by way

of a defense, free from the risk of confrontation with prior

inconsistent utterances"); United States v. Finucan, 708 F.2d 838,

845 (1st. Cir. 1983) (unlawful search and seizure cannot be used to

suppress the perjurious statement stemming from it). Bova's

remedy, if he thought that his right to counsel was being denied,

was to avoid perjury from the denial of bail.

Bova relies upon United States v. Doss, 545 F.2d 548 (6th

Cir. 1976), where the prosecutor summoned a target before the grand

jury and did not tell him that he was already the subject of two

indictments. Later the defendant was indicted for perjury for a

false response to a grand jury question relevant to the crimes for

which he had already been secretly indicted. Id. at 549. The

Sixth Circuit viewed this as tantamount to questioning an indicted

defendant about his charged offenses outside the presence of his

counsel and, describing this as a Sixth Amendment violation, barred

the perjury prosecution. Id. at 552.

The Sixth Circuit said in substance that the asserted

Sixth Amendment violation rendered the grand jury proceeding

"void", id. at 552, which is (at best) a conclusory epithet burying

a debatable policy judgment. Admittedly, Doss is not the only case

in which misconduct by the prosecutor has prompted a court to bar

a prosecution for the ensuing perjury. See Brown v. United States,

345 F.2d 549, 554-56 (9th Cir. 1957). Yet other courts, including

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this one, have been reluctant to excuse grand jury or other perjury

on the ground that it was prompted by misconduct of the

prosecutor.3 Here, of course, we are not concerned with any such

misconduct.

Perhaps in some extreme situation a prosecutor's

interference with the right to counsel might seem so egregious and

functionally related to the perjury as to provide an arguable case

for such a sanction. But rules designed to deprive the police or

the prosecutor of incentives to misbehave make little sense where

we are dealing with the putative error of a judicial officer who

has no such incentives. See United States v. Leon, 468 U.S. 897,

916-17 (1984). The naked perjury in this case provides no

encouragement to plough new ground.

We turn next to the government's cross appeal contesting

the district court's calculation of the sentence. The guidelines

provide that simple perjury has a base offense level of 12.

U.S.S.G. § 2J1.3(a) (2001).4 Although Bova had lied in the bail

3
E.g., United States v. Babb, 807 F.2d 272, 279 (1st Cir.
1986); United States v. Weiss, 752 F.2d 777, 785-86 (2d Cir. 1985),
cert. denied, 474 U.S. 944 (1985); United States v. Crocker, 568
F.2d 1049, 1053-55 (3d Cir. 1977); United States v. Williams, 874
F.2d 968, 973-75 (5th Cir. 1989).
4
The practice is to use the guidelines in effect at the time
of sentencing, not those in effect when the crime was committed, as
long as there are no ex post facto concerns. United States v.
Aymelek, 926 F.2d 64, 66 n.1 (1st Cir. 1991). Here, there are no
such concerns because the two versions of the sentencing guidelines
are identical for the provisions relevant in this appeal. We
therefore refer to the 2001 guidelines, the guidelines in effect at

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hearing as to two different prior assaults, counts are grouped–-and

only the higher offense level considered–-where the counts involve

"the same victim" and the same acts or transactions linked by a

common plan. U.S.S.G. § 3D1.2.

Here, the district court treated the two lies as directed

to a single "victim" (the United States) and part of a single

effort by Bova to get bail and avoid revocation of his supervised

release status; reduced the resulting combined offense level of 12

by 2 levels for acceptance of responsibility; and refused the

government's request for an upward departure. The resulting

offense level of 10, coupled with Bova's criminal history, produced

a guideline range of 23 to 30 months and the district court imposed

the 30 month maximum, to be served concurrently with a 30 month

sentence for obstruction of justice.

On this appeal, the government says that the district

court should have followed the probation officer's calculation and

applied the cross reference in the perjury guideline which provides

as follows:

(c) Cross Reference
(1) If the offense involved perjury, subornation of
perjury, or witness bribery in respect to a criminal
offense, apply § 2X3.1 (Accessory After the Fact) in
respect to that criminal offense, if the resulting offense
level is greater than that determined above.

U.S.S.G. § 2J1.3(c).

the time Bova was sentenced.

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 A rough translation of this language is that where the

cross reference applies, the perjurer is sentenced as if he were an

accessory after the fact to the substantive criminal offense or

offenses about which he has lied. See United States v. Suleiman,

208 F.3d 32, 38-39 (2d Cir. 2000). This makes sense where, for

example, the perjurer testifies at the trial of a confederate,

falsely asserting that the confederate did not commit the

underlying crime; but the cross reference's language is not limited

to such a case.

Here, application of the cross reference would have had

two dramatic effects on Bova's sentence. First, Bova's lies

related to two assaults, each fairly described as at least an

aggravated assault, and the guidelines treat such assaults as

having a base offense level of 15, subject to further specific

offense adjustments (e.g., for harm caused and weapons used) that

can boost the levels further. U.S.S.G. § 2A2.2. The probation

officer calculated that the adjusted level would be 20 for the

Tauro assault and 25 for the Hurley assault (which the government

corrects to 24).

Second, under the grouping rules for multiple counts,

assaults cannot be treated as closely related counts. U.S.S.G. §

3D1.2(d). This does not mean that the separate offense levels for

each are added together but it does mean that they are combined so

that the combined offense level is often higher than the single

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highest count, U.S.S.G. § 3D1.4; in this case the probation officer

computed a combined offense level of 26. Since an accessory after

the fact is sentenced at 6 levels less than the perpetrator,

U.S.S.G. § 2X3.1, this would give Bova an offense level of 20 or,

after acceptance of responsibility, 18, U.S.S.G. § 3E1.1.

This approach would have given Bova a much higher

guideline range and the government asserts that this approach was

dictated by the cross reference. The government concedes that

direct precedent is scarce but says that the cross reference

language–-"in respect to a criminal offense"–-is broad and applies

here because here the perjury was about the assaults. In truth,

phrases like "in respect to" or "in connection with" are highly

elastic and any sensible construction invites inquiry into what the

drafter was trying to accomplish. See United States v. Conley, 186

F.3d 7, 25 (1st Cir. 1999), cert. denied, 529 U.S. 1017 (2000).

The cross reference is based on the potential of the

perjury to derail or miscarry a judicial or similar proceeding

directed to another crime. Suleiman, 208 F.3d at 39. Where the

other crime is substantially more serious than generic (offense

level 12) perjury, the guideline drafters obviously thought that

the guideline sentence for that crime better reflected the gravity

of the perjury itself, subject to a discount to reflect the fact

that the perjurer was an accessory after the fact rather than a

perpetrator. This explains why the cross reference applies only to

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raise the offense level above 12 and also explains the 6 level

reduction from the cross-referenced crime's offense level.

This purpose is not a narrow one: it seemingly applies

wherever the perjury is directed to the investigation or trial of

a criminal offense even where common-law accessory doctrine would

normally not apply. Consider the case of perjury in a criminal

trial to inculpate an innocent third party rather than to exculpate

a confederate. Still, as the Second Circuit stated, "the purpose

of the 'in respect to' enhancement is to treat more severely

perjuries that risk an incomplete or an inaccurate investigation or

trial of a criminal offense." Suleiman, 208 F.3d at 39.

In this case, the perjury occurred in a bail hearing in

an overall proceeding designed to determine whether Bova's

supervised release should be revoked. The government has not

argued that such a bail hearing is, or is part of, a proceeding to

adjudicate a criminal offense; if it were, perjury at the hearing

would be "in respect to a criminal offense" and the cross reference

would arguably apply. But whether or not such an argument could be

made, it was not made in the district court nor is it pressed in

this court.

Rather, the government says in substance that the cross

reference applies simply because the perjury was about a criminal

offense, namely, the assaults. But it misses the point to make the

subject matter of the perjury, rather than its connection to the

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prosecution of a criminal offense, the decisive consideration. A

material lie about any subject in a criminal trial could sensibly

trigger the cross reference; a lie in a civil or other non-criminal

proceeding about a criminal act, at least if not a direct threat to

a criminal trial or investigation, deserves no more punishment than

a lie about a non-criminal act.

The government has a long and exceedingly complicated

discussion of the legislative history of the perjury guideline, an

associated obstruction of justice guideline, and a specific offense

characteristic in the perjury guideline providing for a fixed 3-

level increase if the perjury "resulted in substantial interference

with the administration of justice . . . ." U.S.S.G. § 2J1.3(b)(2).

The discussion is almost beyond summary and it is enough to say

that this winding and intricate history takes us nowhere solid.

As it happens, the specific offense characteristic just

mentioned–-essentially for obstructing justice–-comes much closer

to a suitable adjustment for Bova's lies. His lies had little

potential to interfere with prosecution of the crimes lied about

which is why their seriousness is not a suitable measure of Bova's

perjury; but they did have a capacity to obstruct the bail hearing

and so came pretty close to warranting an adjustment for

obstructing that proceeding.

Presumably such an enhancement was not sought because the

obstruction adjustment is more narrowly framed than the counterpart

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criminal offense of obstruction of justice. While the obstruction

statute applies to one who "endeavors" to obstruct court

proceedings, 18 U.S.C. § 1503(a)(2000), the specific offense

adjustment in the perjury guideline applies only to perjury that

"resulted" in a "substantial interference" with the proceeding,

U.S.S.G. § 2J1.3(b)(2). The government may have thought that lies

so quickly brushed aside by the magistrate judge had no such

effect.

The judgment and sentence of the district court are both

affirmed.

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