UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-20106
UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
FREDRICK COMO
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(May 12, 1995)
Before KING, GARWOOD, and BENAVIDES, Circuit Judges.
BENAVIDES, CIRCUIT JUDGE:
Fredrick Como appeals his conviction and sentence for
possession of a firearm by a convicted felon. 18 U.S.C. § 922(g).
He contends that the district court erred by failing to suppress
certain evidence and by increasing his offense level for
obstructing justice. Finding the district court properly declined
to suppress the evidence and enhanced his sentence, we AFFIRM.
I. FACTS AND PROCEDURAL HISTORY
On February 2, 1992, a Harris County Sheriff's Deputy, Ray
Dupont, stopped Como's vehicle after he almost struck Dupont's car
while making a U-turn through an intersection. Dupont arrested
Como, the sole occupant of the vehicle, for reckless driving,
handcuffed him, and placed him in the patrol car. Como repeatedly
told Dupont that he was assisting the Houston Police Department
(HPD) in a homicide investigation and should be released. After
calling a towing service to transport Como's vehicle, Dupont
inventoried its contents. During the inventory search Dupont took
the keys from the ignition and opened the trunk, at which time he
observed the outline of guns through a plastic bag. Dupont found
two loaded guns, ammunition, and two ski masks inside the bag.
Como told Dupont that the guns were part of the homicide
investigation. Como stated that he witnessed two suspects hide the
guns, so he retrieved them and was on his way to call a sergeant
with the Houston Police Department who was in charge of the
investigation. At the station, Dupont learned that Como was a
convicted felon and confirmed that Como had been assisting Sergeant
Burmester in a homicide investigation. Como was released at that
time, but later charged in an indictment with the present offense.
Prior to trial, Como moved to suppress the guns seized from
the car and the oral statement he made to Deputy Dupont. The
district court held a hearing on the motion to suppress, and Como
testified that he did not make a U-turn or commit any other traffic
violation. He also denied he told Dupont that he was assisting in
a homicide investigation. Thereafter, the court denied the motion,
adopting Dupont's testimony. Como did not testify at trial or
present any witnesses. At sentencing, the district court enhanced
Como's offense level for obstruction of justice under U.S.S.G.
§3C1.1 based on its finding that Como testified untruthfully at the
suppression hearing. Como appeals his conviction based on the
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denial of his motion to suppress evidence and his 96-month sentence
based on the offense level enhancement for obstruction of justice.
II. OBSTRUCTION OF JUSTICE ENHANCEMENT CLAIM
Como argues that the district court erred in enhancing his
offense level for obstruction of justice without sufficient factual
findings relative to his "untruthful" testimony at the suppression
hearing. U.S.S.G. §3C1.1 provides for an enhancement "[i]f the
defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the investigation,
prosecution, or sentencing of the instant offense." Though the
court may not penalize a defendant for denying his guilt as an
exercise of his constitutional rights, a sentence may be enhanced
if the defendant commits perjury. United States v. Laury, 985 F.2d
1293, 1308 (5th Cir. 1993). A defendant testifying under oath
commits perjury if he "gives false testimony concerning a material
matter with the willful intent to provide false testimony." United
States v. Dunnigan, __ U.S. __, 113 S.Ct. 1111, 1116 (1993). We
review a district court's finding of obstructive conduct for clear
error. Laury, 985 F.2d at 1308.
If the defendant objects to a sentence enhancement for
obstruction of justice based on his testimony, the district court
must review the evidence and make independent findings necessary to
establish a willful obstruction of justice, or an attempt to do so,
under the perjury definition. Dunnigan, 113 S.Ct. at 1117. A
separate and clear finding on each element of the alleged perjury,
although preferable, is not required. Laury, 985 F.2d at 1308.
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Specifically, Como contends that the district court failed to
address the materiality of his falsehoods. "Material," as defined
in the commentary to the sentencing guidelines, "means evidence,
fact, statement, or information that, if believed, would tend to
influence or affect the issue under determination." U.S.S.G.
§3C1.1 comment. (n.5). At Como's sentencing hearing, the district
court made the following findings regarding Como's alleged perjury,
stating:
Of course, I presided over the suppression hearing and
the trial. I'm familiar with the statements made and the
position taken, although or albeit through cross-
examination during the trial. And I do not believe that
Mr. Como was totally candid and truthful at the
suppression hearing as established by other testimony and
evidence presented.
In Dunnigan, Supreme Court approved the following findings
made by the district court:
The court finds that the defendant was untruthful at
trial with respect to material matters in this case.
[B]y virtue of her failure to give truthful testimony on
material matters that were designed to substantially
affect the outcome of the case, the court concludes that
the false testimony at trial warrants an upward
adjustment by two levels.
Dunnigan, 113 S.Ct. at 1117 (emphasis and brackets in opinion).
The Supreme Court concluded that there was support in the record
for those findings because numerous witnesses contradicted the
defendant regarding so many facts on which she could not have been
mistaken. Id.1
1
We have affirmed an obstruction of justice assessment
based on the following findings by a district court:
Obviously if the jury's verdict means anything, then
[the defendant] did commit perjury when he testified,
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Como argues that his testimony at the suppression hearing was
not material because it did not relate to the primary issue raised
in his motion to suppress; i.e., the lack of inventory procedures
in the Harris County Sheriff's Office. This argument, however,
ignores counsel's argument at the suppression hearing regarding the
reasonableness of the arrest for a traffic stop. Contradicting
Deputy Dupont's testimony regarding the U-turn, Como testified that
he drove straight through the light went it became green. Como
testified that Dupont gave no reason for stopping him, and he was
not aware of any traffic violation that he may have committed.
The court below did not expressly find that Como's falsehoods
were material. This Court, however, has upheld an implicit finding
of materiality when it determined that the false testimony "was
obviously `material' in that it was clearly `designed to
substantially affect the outcome of the case.'" United States v.
Cabral-Castillo, 35 F.3d 182, 187 (5th Cir. 1994), cert. denied, __
U.S. __, 115 S.Ct. 1157 (1995).
The government contends that the court's finding that the
false statements were material may be inferred from the context of
and I believe the jury's verdict means exactly what it
found. . . . [I]f the jury had been convinced that
[the defendant] had obtained the money as he indicated,
it may have affected the determination of guilt.
Statements made by the defendant were made in an effort
to obstruct or impede the administration of justice
during prosecution.
Laury, 985 F.2d at 1309; see also United States v. Storm, 36 F.3d
1289, 1295-96 (5th Cir. 1994) (district court found that
defendant had committed perjury during investigation and
prosecution of his offense about material fact), cert. denied, 63
USLW 3771 (U.S. April 24, 1995) (No. 94-7737).
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the exchange among the attorneys and the judge at the sentencing
hearing. We agree.
During the sentencing hearing, the court referenced the
government's motion for upward departure which was based on the
arguments that Como's criminal history category score did not
accurately reflect his criminal history and that Como had
obstructed justice by perjuring himself during the suppression
hearing. The court stated that it could upwardly depart from the
guideline range or make a finding of obstruction of justice, which
would increase the guideline range. The court then invited any
further arguments or comments regarding the motion.
In regard to the issue at bar, the government argued that:
[Como] completely disregarded his oath on the stand at
the suppression hearing and took one position that the
guns were planted on him, that he wasn't properly stopped
by the police officers, and at the trial, his attorney
took a completely different position with respect to the
case; that being that Mr. Como was working as a police
informant and that he had placed willingly and
voluntarily those guns in the back of his -- in the trunk
of his car to further an HPD homicide investigation.
In response, defense counsel argued as follows:
First of all, the defense that was put on was really
through cross-examining the Government's witnesses. It
was through asking them questions about what they did and
what Mr. Como was doing. Mr. Como did not testify during
the course of the trial.
He did testify at the suppression hearing. And at
the suppression hearing, Mr. Como's testimony was really
-- my intent to use his testimony was focused towards the
circumstances surrounding his stop. The Court might
recall that it was the Government that started
questioning him about the guns and how -- and what he may
have said to the Harris County Sheriff's deputy.
Now, that wasn't something that I was using Mr. Como
to give evidence to the Court . . . about that. What I
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was focusing on was the circumstances of his stop, and I
wasn't trying to seek suppression of those statements
based on his denial. It would be -- it would completely
eviscerate his attempt to suppress statements if he
denied that he had ever made them.
The question is whether these -- this was even
material to the proceeding also, Your Honor, because at
the time of the suppression hearing what I focused on was
whether the Harris County Sheriff's Department had valid
inventory procedures, which would have nothing to do
whatsoever with whether or not Mr. Como told the deputy
what the deputy said he was told.
And so I don't know how what Mr. Como said might have
tended to have influenced the outcome of the suppression
hearing or of the trial, given the arguments that were
raised at the suppression hearing and at the trial, and
the fact that he did not testify.
(emphasis added).
Defense counsel then specifically mentioned that "[t]he
Guideline commentary itself makes clear under . . . Note 3(f) that
he must provide materially false information."2 The government
replied that Como misrepresented the circumstances surrounding the
traffic stop "[w]hich did impact the suppression hearing because if
the stop had been unlawful as Mr. Como claimed, the guns would have
been suppressed, and that would have a material bearing on the
case."
At that point during the sentencing hearing, the court
articulated the previously quoted findings:
Of course, I presided over the suppression hearing and
the trial. I'm familiar with the statements made and the
position taken, although or albeit through cross-
examination during the trial. And I do not believe that
Mr. Como was totally candid and truthful at the
2
U.S.S.G. §3C1.1, comment. (n.3(f)) lists that providing
materially false information to a judge or magistrate is an
example of the types of conduct to which the enhancement applies.
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suppression hearing as established by other testimony and
evidence presented.
Both the government and defense counsel made arguments
regarding the materiality of Como's testimony. Although the court
made no explicit finding of materiality, viewed in the context of
the attorneys' argument, it is apparent that the court found the
testimony material. Moreover, the record indicates that Como's
false testimony at the suppression hearing was "material" as
defined in the guideline commentary, and thus, it is sufficient to
uphold an implicit finding of materiality by the district court.
Cabral-Castillo, 35 F.3d at 187.
III. FOURTH AMENDMENT CLAIM
Como contests the denial of his motion to suppress on the
basis that the Harris County Sheriff's Department provides no
"single familiar standard" to guide its officers in conducting
inventory searches of impounded vehicles, but instead gives its
officers complete discretion to determine when and how to conduct
such searches.
"In reviewing the district court's ruling on a motion to
suppress based on live testimony at a suppression hearing, we must
accept the district court's factual findings unless they are
clearly erroneous or influenced by an incorrect view of the law."
United States v. Gallo, 927 F.2d 815, 819 (5th Cir. 1991).
"However, we must apply a de novo standard of review to determine
whether this was a valid inventory search." Id.
"An inventory search is valid, provided it is conducted under
an established police department inventory policy." United States
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v. Seals, 987 F.2d 1102, 1107 (5th Cir.), cert. denied __, U.S. __,
114 S.Ct. 155 (1993). "When the police acquire temporary custody
of a vehicle, a warrantless search of the vehicle does not offend
Fourth Amendment principles so long as the search is made pursuant
to `standard police procedures' and for the purpose of `protecting
the car and its contents.'" Id. (internal quotation marks and
citation omitted). "Police may lawfully conduct such searches
while the vehicle is still on the highway awaiting towing." United
States v. Prescott, 599 F.2d 103, 105 (5th Cir. 1979). And,
"[p]olice officers may open closed containers found within locked
trunks while conducting routine inventory searches of impounded
vehicles." United States v. Judge, 846 F.2d 274, 276 (5th Cir.
1988).
The exercise of police discretion does not violate the Fourth
Amendment "so long as that discretion is exercised according to
standard criteria and on the basis of something other than
suspicion of evidence of criminal activity." Colorado v. Bertine,
479 U.S. 367, 375, 107 S.Ct. 738, 743 (1987). "A police officer
may be allowed sufficient latitude to determine whether a
particular container should or should not be opened in light of the
nature of the search and characteristics of the container itself."
Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635 (1990).
Allowing an officer to exercise his judgment based on concerns
related to the objectives of an inventory search does not violate
the Fourth Amendment. Id. "If there is no showing of bad faith or
for the sole purpose of investigation, evidence discovered during
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an inventory search is admissible." Gallo, 927 F.2d at 819 (citing
Colorado v. Bertine, supra).3
Deputy Dupont testified that it is his Department's
established procedure to inventory a vehicle, for the purpose of
"safekeeping", whenever a vehicle is separated from its driver; and
that Department procedures give the officers discretion to decide
whether a locked container should be opened or whether to search
the locked trunk of the vehicle. Dupont testified that, after he
had called for a towing service, he followed these procedures in
conducting the inventory search of Como's vehicle; and that he was
not looking for evidence when he conducted the inventory, but was
instead attempting to locate, record, and secure personal
valuables.
To support his contention that the Department allows its
officers too much discretion while conducting an inventory search
of an impounded vehicle, Como points to the lack of evidence of a
written policy or procedure. There is, however, no requirement
that the prosecution submit evidence of written procedures for
inventory searches; testimony regarding reliance on standardized
procedures is sufficient. United States v. Skillern, 947 F.2d
1268, 1275 (5th Cir. 1991), cert. denied, 503 U.S. 949, 112 S.Ct.
1509 (1992); United States v. Andrews, 22 F.3d 1328, 1336 (5th
Cir.), cert. denied, __ U.S. __, 115 S.Ct. 346 (1994).
3
Como does not allege bad faith on the part of Deputy
Dupont.
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Como further argues that this Court's recent decision in
Andrews, 22 F.3d 1328, is not dispositive of his claim. Como's
argument fails. In Andrews, we explained that the Supreme Court's
decisions in Wells and Bertine, supra, did not "require[ ] a law
enforcement agency's inventory policy to address specifically the
steps that an officer should take upon encountering a closed
container." Andrews, 22 F.3d at 1336. Thus, contrary to Como's
argument, the inventory policy need not dictate when the officer
may open a locked trunk. "The requirement to be distilled from the
line of cases culminating in Wells is that inventory policies must
be adopted which sufficiently limit the discretion of law
enforcement officers to prevent inventory searches from becoming
evidentiary searches." Id. (citation omitted). Dupont testified
that the Department's established procedure is to inventory a
vehicle anytime it is separated from its driver for the purpose of
"safekeeping." Accordingly, because the Andrews requirement is met
by the inventory search policy of the Harris County Sheriff's
Department (i.e., because the policy behind the search is
safekeeping, rather than simply searching for evidence), Como has
not shown that Dupont violated the Fourth Amendment by searching
his locked trunk.4 The district court properly denied the motion
to suppress.
CONCLUSION
4
We note additionally that, upon opening the locked trunk,
Dupont "could see the outline of the guns through the bag."
Thus, Dupont found the guns without opening any closed
containers.
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For the above stated reasons, the judgment of the district
court is AFFIRMED.
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