dissenting:
Carrie Littleton testified falsely at a suppression hearing before the district court that her son called her at work at 3:15 p.m. on July 21, 1992, and requested her to come to the police station and obtain a lawyer for him and that she arrived at the police station at 3:45 p.m. for that purpose. By giving this testimony, Littleton intended to corroborate her son’s position that diming detention he had requested a lawyer and therefore his statements, incriminating him in a murder, were taken in violation of his Sixth Amendment right to counsel. Littleton’s testimony was intended to support her son’s position.
While it is true that at the suppression hearing the Assistant United States Attorney downplayed the effect of Littleton’s testimony by stating that “[Littleton] is in no position to exercise any ... right on behalf of her son,” the fact remains that even though exercising a right to counsel belonged to Littleton’s son and not to Littleton, her testimony was material because it tended to corroborate her son’s position that he asked for counsel. The question whether Littleton’s son asked for counsel was a critical issue at the suppression hearing at which Littleton testified. Whether the testimony actually influenced the court in deciding the motion to suppress is irrelevant so long as it was intended to influence the court. Cf. Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 1546, 99 L.Ed.2d 839 (1988)) (recognizing test for materiality as whether misrepresentation “has a natural tendency to influence, or was capable of influencing” the court) (citation omitted).
Because Littleton’s testimony at the suppression hearing was false, was intended to corroborate her son’s legal position at the hearing, and was intended to influence the court to grant the motion to suppress, Little-ton was properly convicted of perjury. In addition, she was also properly convicted for obstruction of justice because her perjury was intended to obstruct the court’s effort to reach the truth at the hearing. I cannot imagine a scenario that would accommodate Mrs. Littleton’s making up facts about a telephone conversation and a visit to the police station for the purpose of obtaining counsel if it were not intended to help her son and frustrate the prosecution’s efforts. Because this conduct violated the statutes under which she was convicted, I would affirm her convictions.
Accordingly, I dissent.