14-2267 (L)
United States v. Thompson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term, 2015
(Submitted: October 28, 2015 Decided: December 9, 2015)
Docket No. 14‐2267‐cr(L), 14‐2599‐cr(Con.)
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UNITED STATES OF AMERICA,
Appellee,
—v.—
MICHAEL THOMPSON and TYLON VAUGHN, a/k/a Bucky B,
Defendants‐Appellants,
CHRISTOPHER MORLEY, a/k/a White Boy Chris, GREGORY ACCETURA, a/k/a Leg,
BERNARD BYRD, a/k/a BB, a/k/a Chip, JASON DAURIA, MICHAEL DELUCA, CHRISTEN
EDWARDS, WILLIAM FITZGERALD, a/k/a Quay, JESSIE HOPKINS, a/k/a Wes, KAI
JACKSON, a/k/a Killer Kai, RICHIE JONES, a/k/a Slick, BRITT MARTIN, a/k/a Big Baby,
ANDREW MELILLO, MICHAEL MELILLO, ANTHONY MICARELLI, ROBERT MORRIS,
JOSEPH RAO, MARQUIS WINFREY, a/k/a Quisy, ANTWAIN YOPP, a/k/a Skeletor,
ROBERT MELILLO, JR., a/k/a Mike,
Defendants.
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B e f o r e:
KATZMANN, Chief Judge, POOLER and CHIN, Circuit Judges.
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Appeal from a judgment of conviction and sentence of 168 months’
imprisonment and 5 years’ supervised release entered on June 25, 2014, against
Defendant‐Appellant Michael Thompson, and appeal from a judgment of
conviction and sentence of 144 months’ imprisonment and 5 years’ supervised
release, entered on June 27, 2014, and amended on July 29, 2014, against co‐
Defendant‐Appellant Tylon Vaughn, both by the United States District Court for
the District of Connecticut (Burns, S.J.), following a jury trial. With respect to
Thompson only, we hold that the district court failed to make the requisite
finding of specific intent to obstruct justice before imposing an obstruction‐of‐
justice sentencing enhancement. For this reason, and for the reasons stated in the
accompanying summary order issued herewith, we AFFIRM in part and
VACATE in part, and we REMAND only Thompson’s case for further
proceedings consistent with this opinion.
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MARC H. SILVERMAN (S. Dave Vatti and Sandra S. Glover, on the brief),
Assistant United States Attorneys, for Deirdre M. Daly, United
States Attorney for the District of Connecticut, New Haven,
CT.
JONATHAN J. EINHORN, New Haven, CT, for Defendant‐Appellant
Michael Thompson.
Sebastian O. DeSantis, New London, CT, for Defendant‐Appellant
Tylon Vaughn.
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2
PER CURIAM:
Defendant‐Appellant Michael Thompson appeals his sentence following a
jury trial and judgment of conviction. In this opinion, we address only
Thompson’s objection to the decision of the United States District Court for the
District of Connecticut (Burns, S.J.) to impose a two‐level sentencing enhancement
for obstruction of justice based on a recommendation in Thompson’s presentence
report (“PSR”).1 Thompson contends that the district court erred by not making a
finding of specific intent to obstruct justice. We agree.
BACKGROUND
On May 22, 2012, members of a Drug Enforcement Agency task force went
to Thompson’s apartment with an arrest warrant. After placing Thompson in
handcuffs and conducting a protective sweep of the apartment, the officers asked
if Thompson would consent to a search of the apartment. Thompson eventually
consented, but he later moved to suppress two digital scales and $2,000 in cash
obtained from the apartment, arguing that his consent was coerced because the
1
We address in an accompanying summary order the remainder of
Thompson’s and co‐Defendant‐Appellant Tylon Vaughn’s arguments on appeal.
3
officers threatened to arrest his sister and girlfriend unless he consented. The
district court held an evidentiary hearing on June 25, 2013, and it denied
Thompson’s motion in a written order on September 17, 2013.
In finding that Thompson’s consent was voluntary, the district court’s
suppression order focuses on the exact words that Officer David Rivera said to
Thompson and the timing of these words in relation to Thompson’s consent. The
district court concluded that Rivera informed Thompson that he was seeking a
warrant and that everyone in the apartment could be arrested if evidence of
contraband was found. According to the district court, “Rivera chose his words
with care and the difference between what he said and what he did not say is
significant and dispositive.” United States v. Thompson, No. 3:12CR97(EBB), 2013
U.S. Dist. LEXIS 132541, at *17 (D. Conn. Sept. 17, 2013) (citing United States v.
Guzman, 724 F. Supp. 2d 434, 443 (S.D.N.Y. 2010); United States v. Perez, 198 F.
Supp. 2d 406, 414–15 (S.D.N.Y. 2002)).
In reaching this conclusion, the district court stated that it found credible
the testimony of Rivera and Officer Steven Silk and it found not credible
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Thompson’s testimony. 2 Specifically, the district court took issue with the
following exchange between Thompson and his counsel during direct
examination at the hearing. Thompson testified, “[The officers] got on the phone,
they threatened me with – they said if they search the house and they found
anything, they was going to take my sister and my girlfriend at the time to jail.”
App. 69–70. Thompson’s attorney then rephrased his statement, “So they told you
they would be taking your sister and your girlfriend to jail unless you agreed to a
voluntary search, is that your testimony.” App. 70. Thompson replied, “Yes.” Id.
The district court observed:
Significantly, Thompson did not say that Rivera told him that the
women would be arrested if he refused to give his consent. It was
only in response to his attorney’[s] next question, which was leading
and mischaracterized what Thompson had just said, that Thompson
agreed that Rivera threatened to arrest his sister and girlfriend if he
refused to consent to a search.
Thompson, 2013 U.S. Dist. LEXIS 132541, at *10.
2 The district court’s order also notes that Thompson’s initial suppression
motion “asserted that his consent to search was not voluntary because he was of
an exhausted mental state and incapable of fully understanding the request by
law enforcement to search his premises.” Thompson, 2013 U.S. Dist. LEXIS 132541,
at *2‐3 n.1 (citation and quotation marks omitted). The district court did not rely
on this change of theory as a basis for not crediting Thompson’s testimony.
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In comparison, Rivera testified, “I explained to [Thompson] that we were
waiting to apply for a search warrant, and if anything was located, anybody in the
apartment would be – that was all at the same time.” App. 129. He then agreed
with Thompson’s attorney that he said something to the effect of, “Just so you
know, we’re waiting for a search warrant and of course if anything illicit is found
here, anyone in the apartment is subject to arrest,” id., and that this statement was
made about 25 minutes after Thompson initially refused consent and about 5
minutes before Thompson gave consent, App. 127–129.
Silk agreed with Thompson’s attorney that he heard Rivera say something
to the effect of, “If we ever get a search warrant and we find something illicit or
illegal here, anyone in the apartment is going to go to jail.” App. 139. On redirect,
the government asked Silk the following question:
To clarify the discussion you had with Attorney Einhorn about
words to that effect, did Officer Rivera state, if a search warrant is
obtained, contraband is found, everyone in the apartment will be
arrested? Or did he state something along the lines of, if a search
warrant is obtained, contraband is found, everyone in the apartment
could be arrested?
App. 140. Silk replied, “Yes, second portion, could be arrested.” Id.
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A jury later convicted Thompson of one count of conspiracy to distribute
and to possess with intent to distribute 5 kilograms or more of cocaine, 280 grams
or more of cocaine base, and an indeterminate quantity of oxycodone, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(iii), 841(b)(1)(C), and 846.
Thompson’s PSR recommended a two‐level enhancement for obstruction of
justice based on the June 25, 2013 suppression hearing, noting: “The Court
expressly characterized Mr. Thompson’s testimony as equivocal, inconsistent, and
contradictory. The Court concluded that his conflicting testimony on this central
issue could not be credited.” Thompson PSR ¶ 25.
Thompson objected to the enhancement in his sentencing memorandum,
contending that he “made [the disputed] statements believing that they were true
and they reflect his state of mind at the time; they were not meant to be willfully
false or misleading.” Gov’t App. 94. Thompson again objected to the
enhancement at sentencing, but the district court did not address the
enhancement or Thompson’s objections. The district court merely stated, “Okay, I
think the PSR accurately has calculated the guideline range.” App. 1018. The
district court also noted that it had read the parties’ sentencing submissions
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“several times,” App. 1034, and that it would adopt the PSR’s guidelines
calculations, App. 1021.
DISCUSSION
The U.S. Sentencing Guidelines provide for a two‐level sentencing
enhancement for obstruction of justice, which includes perjury committed during
a suppression hearing. See U.S. Sentencing Guidelines Manual § 3C1.1 (U.S.
Sentencing Comm’n 2015); United States v. Giraldo, 80 F.3d 667, 680 (2d Cir. 1996),
overruled on other grounds by Muscarello v. United States, 524 U.S. 125 (1998).
“[I]f 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 [the Supreme Court has]
set out.” United States v. Dunnigan, 507 U.S. 87, 95 (1993); see also United States v.
Norman, 776 F.3d 67, 84 (2d Cir. 2015) (applying Dunnigan). That is, “to impose an
obstruction‐of‐justice adjustment, the court must make a finding of specific
intent.” Giraldo, 80 F.3d at 680. Although “it is preferable for a district court to
address each element of the alleged perjury in a separate and clear finding,” it “is
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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.”
Dunnigan, 507 U.S. at 95.
If the obstruction‐of‐justice enhancement is based on perjurious testimony,
courts must apply the federal criminal perjury statute, 18 U.S.C. § 1621, which is
violated if “[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.”
Dunnigan, 507 U.S. at 94. Thus, “before applying an obstruction enhancement
based on perjury, the sentencing court must find by a preponderance of the
evidence ‘that the defendant 1) willfully 2) and materially 3) committed perjury,
which is (a) the intentional (b) giving of false testimony (c) as to a material
matter.’” United States v. Agudelo, 414 F.3d 345, 349 (2d Cir. 2005) (quoting United
States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997)). “In other words, ‘before
imposing the adjustment, the district court must find that the defendant
consciously acted with the purpose of obstructing justice.’” Id. (alterations
omitted) (quoting United States v. Lincecum, 220 F.3d 77, 80 (2d Cir. 2000)).
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Contrary to the government’s suggestion, we have made clear that a district
court cannot satisfy Dunnigan simply by adopting a PSR’s “conclusory
statements” that the defendant committed perjury. United States v. Ben‐Shimon,
249 F.3d 98, 103–04 (2d Cir. 2001) (per curiam). Instead, we have allowed a district
court to rely on the PSR to impose an obstruction‐of‐justice enhancement only if
the PSR “sets forth reasonably detailed findings in support of its conclusions.”
United States v. Johns, 324 F.3d 94, 98 (2d Cir. 2003).
Here, it is undisputed that the district court did not make a finding of
specific intent to obstruct justice. The district court did adopt the PSR, but the
district court’s clear adoption of the PSR does not satisfy Dunnigan because the
PSR itself does not “set[] forth reasonably detailed findings in support of its
conclusions.” Id. The PSR merely points to the district court’s suppression ruling
and the district court’s conclusion that Thompson’s “conflicting testimony on
[the] central issue could not be credited.” Thompson PSR ¶ 25.
The government contends that the PSR’s reference to the suppression
ruling in this manner is sufficient to satisfy Dunnigan in light of our previous
holding in United States v. Lincecum. In that case, the defendant moved to suppress
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statements made to law enforcement officers at the time of his arrest and
submitted an affidavit describing in detail three requests to speak with an
attorney that allegedly went unheeded. Lincecum, 220 F.3d at 78–79. At a
suppression hearing, the agents testified that he never made such a request and
they produced a waiver‐of‐rights form that he had signed. Id. at 79. The district
court concluded that the affidavit was “so detailed that [the district court was]
persuaded by clear and convincing evidence that Mr. Lincecum when he signed it
had to have known it was false.” Id. We affirmed, observing that “[w]here the
district court finds that the defendant ‘has clearly lied’ in a statement made ‘under
oath,’ the ‘court need do nothing more to satisfy Dunnigan than point to the
obvious lie and find that the defendant knowingly made a false statement on a
material matter.’” Id. at 80 (quoting United States v. Williams, 79 F.3d 334, 337–38
(2d Cir. 1996)).
But the government overlooks a more recent case, United States v. Agudelo,
in which the defendant submitted an affidavit stating: “[A]t one point, I told the
agents that I wanted to speak to a lawyer but they did not cease their questioning.
Instead, they told me, in substance, that I would be able to see a lawyer at a later
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point in time.” 414 F.3d at 349. The district court credited the agents’ testimony
that Agudelo made no such request, and it therefore imposed the obstruction‐of‐
justice enhancement. Id. We reversed, agreeing with Agudelo’s argument “that
merely because the court credited the testimony of the law enforcement agents
that he did not ask to see a lawyer does not necessarily mean he gave knowingly
false testimony in his affidavit.” Id. We further noted that “[s]uch a per se rule
would contravene Dunnigan . . . because it would leave no room for consideration
of possible mistake, confusion, or honest belief.” Id.
Distinguishing the two cases, Agudelo observes that “Lincecum’s three
detailed statements reeked of fabrication because he could not have simply
misremembered so much detail. On the other hand, Agudelo’s two sentences
averring that he had asked for a lawyer were far more vague.” Id. at 350. In
addition, on cross‐examination, another agent appeared to support Agudelo’s
statement that the officers had told him he would be able to see a lawyer at a later
point in time. Id. “Thus,” we concluded, “rather than willfully fabricating the
affidavit in order to obstruct justice, Agudelo may well have simply
12
misunderstood the agent’s comments or misremembered the chronology of the
conversation.” Id.
Here, the PSR’s barebones reference to the suppression ruling effectively
adopts the per se rule we rejected in Agudelo, i.e., that any time a court credits
officer testimony over that of a defendant, the defendant must have given
knowingly false testimony. We reject that rule again here. Instead, if a defendant
objects to an obstruction‐of‐justice enhancement based on perjurious testimony,
district courts must make a finding of specific intent to commit perjury, which
occurs 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.”
Dunnigan, 507 U.S. at 94. To the extent the district court relies on the PSR for such
a finding, the PSR must “set[] forth reasonably detailed findings in support of its
conclusions” that are consistent with Dunnigan’s requirements. Johns, 324 F.3d at
98.
Finally, the government argues that any error regarding the obstruction‐of‐
justice enhancement is harmless because the district court would have applied the
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same sentence regardless of the enhancement. The government relies principally
on the district court’s statement at sentencing that it would have imposed the
same sentence even if Thompson had received a two‐level downward variance
that the government had requested per Department of Justice policy in similar
narcotics prosecutions. The suggestion is that the two‐level downward departure
would have cancelled out the two‐level enhancement for obstruction of justice.
But because of other errors we identify in the summary order accompanying this
opinion, we cannot conclude that “the record indicates clearly that the district
court would have imposed the same sentence in any event.” United States v.
Mandell, 752 F.3d 544, 553 (2d Cir. 2014) (per curiam) (quoting United States v. Jass,
569 F.3d 47, 68 (2d Cir. 2009)). A remand for Thompson’s resentencing is therefore
appropriate.
CONCLUSION
For the reasons stated herein and in the accompanying summary order, the
judgment of the district court is AFFIRMED in part and VACATED in part, and
Thompson’s case is REMANDED for further proceedings consistent with this
opinion.
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