United States v. Hawthorne

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 21 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 01-3357
STEVEN JEROME HAWTHORNE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 00-CR-20116-01-KHV)

Benjamin N. Casad, of Strong & Casad, Kansas City, Kansas, for Defendant-
Appellant.

Leon J. Patton, Assistant United States Attorney (Eric F. Melgren, United States
Attorney, with him on the brief), Kansas City, Kansas, for Plaintiff-Appellee.

Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.

HARTZ , Circuit Judge.
 An August 17, 2000, indictment charged Defendant, Steven Hawthorne,

with possession with intent to distribute crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1), and with possession of a firearm after a felony conviction, in

violation of 21 U.S.C. § 922(g). He filed a motion to suppress certain

incriminating statements that he had made to law enforcement officers,

contending that his confession was not voluntary. Following an evidentiary

hearing, the district court denied the motion. Defendant then entered an

unconditional guilty plea.

Finding that Defendant had committed perjury during the suppression

hearing, the district court enhanced his sentence for obstruction of justice under

United States Sentencing Guideline (U.S.S.G.) § 3C1.1, and declined to reduce

his sentence for acceptance of responsibility under U.S.S.G. § 3E1.1. Defendant

challenges the enhancement under § 3C1.1, claiming that (1) the district court

failed to make factual findings adequate to support the enhancement; (2) his

testimony during the suppression hearing was not perjurious; and (3)

enhancements under § 3C1.1 should not be imposed for perjury committed during

suppression hearings. He also appears to challenge the district court’s failure to

reduce his sentence in accordance with U.S.S.G. § 3E1.1. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

-2-
Background

The Kansas City, Kansas Police Department (KCKPD) learned that

Defendant was selling crack cocaine from a house in Kansas City. On the

evening of July 19, 2000, KCKPD officers conducted a search of the house, with

federal agents providing assistance. After finding two handguns, marijuana,

cocaine residue, and drug paraphernalia in the house, the officers arrested

Defendant at about 7:00 or 8:00 p.m. A search of his pockets yielded marijuana

and a small quantity of crack cocaine.

The officers took Defendant to the county jail. At about 10:45 a.m. on

July 20, FBI Special Agent Gary Violanti and KCKPD Officer Jose Viera began

to question Defendant. What happened during the interrogation was a matter of

dispute at the suppression hearing. Defendant contended that his “statements

were not voluntarily and willfully made.” ROA, Vol. 2 at 43. He alleged that the

officers’ primary purpose in interrogating him was to collect information for an

investigation about another, more significant drug dealer, Cecil Brooks.

Defendant made the following factual representations in his testimony: (1) he

told the officers that he wanted a lawyer; (2) the officers said they would get a

lawyer for him; (3) he was intoxicated at the time of his interrogation, having

smoked marijuana and crack an hour before his arrest; (4) the officers’ body

language showed that they knew he was tired and not functioning well; (5) the

-3-
officers threatened him by saying that he would face 15 to 20 years in prison if he

lied to them about Cecil Brooks; (6) the officers told him he could go home if he

provided truthful answers to their questions about Brooks; and (7) he had learned

much of the information that he gave the officers regarding Brooks from reading

the newspaper.

Of particular significance was Defendant’s claim that he wanted a lawyer.

If a suspect in the course of custodial interrogation requests a lawyer, all

questioning must cease until a lawyer is obtained or the suspect spontaneously

reinitiates the conversation. Davis v. United States, 512 U.S. 452, 458 (1994).

But the request for a lawyer must be unambiguous. If a suspect makes an

ambiguous statement about wanting a lawyer, the interrogating officers have no

duty to stop the questioning or even to seek clarification from the suspect about

his interest in seeing a lawyer. Id. at 459, 461-62.

According to the officers, at the start of the interview they handed

Defendant a form entitled “Interrogation Advice of Rights and Waiver of Rights,”

which listed the Miranda rights. They asked Defendant to read the form aloud.

When Defendant reached the portion of the form which states, “You have the

right to talk to a lawyer for advice before we ask you any questions and to have a

lawyer with you during questioning,” he declared, “I may want a lawyer.” ROA,

Vol. 2 at 8, 22-23, 34. He then continued to read from the form. After he

-4-
finished reading it, he said, “I don’t want a lawyer, I’ll sign the form.” Id. at 9,

23-24. He signed the Miranda rights waiver and proceeded to make incriminating

statements to the two officers. Agent Violanti testified that once Defendant had

executed the waiver, he never expressed a desire to stop talking to the

investigators, and he never requested a lawyer.

In addition, the officers denied that they had engaged in any coercive

conduct to induce Defendant to waive his Miranda rights. While the officers

acknowledged that one of the reasons they questioned Defendant was to acquire

information about Brooks, they disputed Defendant’s contention that they

promised to release him if he provided such information. They also said that

Defendant seemed to be mentally alert at the time he signed the rights waiver.

At the conclusion of the suppression hearing, the district court declared that

it found “by a preponderance of the evidence that the statements which the

defendant gave were free and voluntary.” Id. at 47. The court first observed that

Defendant had “prior experience within the criminal justice system” and that the

record failed to show that Defendant possessed any intellectual deficiencies which

would interfere with his comprehension of his rights. Id. It then made the

following comments concerning the evidence about the interrogation:

[T]here’s no evidence of any threats or coercion. Apparently,
this interview had progressed only five minutes between the time the
defendant was called out and the time he signed the form waiving his
rights. The court does find that the officers’ testimony is credible

-5-
 when they say that during the course of the examination, Mr.
Hawthorne stated that he might want an attorney. But by the time he
finished reading the waiver of rights form, he had elected not to
proceed—not to request an attorney and to proceed without counsel.

While the evidence suggests that Mr. Hawthorne may have
consumed drugs or alcohol at 8 o’clock, 7 or 8 o’clock in the evening
of the prior day, there’s no credible evidence that anything about the
drug use rendered him mentally incompetent at the time he made the
statements to the officers the following day, and I don’t accept the
proposition that he was intoxicated in any legally meaningful sense
of that word.

Also, I don’t find credible his testimony that he did ask for a
lawyer during the reading of his rights form. Therefore, the motion
to suppress is overruled.

Id. at 47-48.

After the district court denied Defendant’s motion to suppress, he entered a

guilty plea. At the sentencing hearing on September 17, 2001, the Government

alleged that Defendant had committed perjury during the suppression hearing and

requested that the district court impose a two-level enhancement for obstructing

justice, under U.S.S.G. § 3C1.1, and that the district court not allow a sentence

reduction for acceptance of responsibility, under U.S.S.G. § 3E1.1.

The Government argued that Defendant had perjured himself with respect

to two subjects. The first was Defendant’s assertion that he had requested an

attorney at the outset of his interrogation. The Government explained as follows:

[T]his court had a hearing on the defendant’s motion to
suppress his statements, and it was based upon his claims that he had
been questioned in violation of his right to an attorney. In fact, . . .

-6-
 Gary Violanti who testified here this day testified that although he
had at one point stated that he might want an attorney, that after he
read all of his rights, he said that he would go ahead and consent.

....

This court denied and overruled his motion because
Mr. Hawthorne did not tell the truth. . . .

ROA, Vol. III at 53-54. The second subject was the conduct of Cecil Brooks.

The district court ruled on the Government’s request at the continuation of

the sentencing hearing on October 22. It agreed that a sentence enhancement was

appropriate for the first lying but not the second. It said:

The court also finds that an obstruction—the adjustment for
obstruction of justice is warranted in this case. I agree with defense
counsel that the testimony of, regarding Mr. Brooks is probably not
particularly material here, although I believe that the defendant lied
about it. But I don’t think it would warrant an enhancement for
obstruction because I don’t think it’s sufficiently related to the crime
of conviction.

I do think, though, that, Mr. Hawthorne, that you lied in your
testimony at the suppression hearing about the voluntariness of the
statements that you made to the officers, and I don’t believe that to
hold you accountable for an obstruction of justice is in any way
punishing you for exercising your constitutional rights to bring these
matters to the court’s attention.

No. 1, there’s other ways to bring the court’s attention without
going to court and testifying falsely under oath, and nobody has a
constitutional right to testify falsely. You know, when somebody
files a motion to suppress a statement, the court takes that very
seriously. You have a hearing, and the only thing that we really have
to go on when we’re setting those kinds of hearings and taking, and
undertaking that kind of inquiry is the claim that the defendant is
making as to the voluntariness of the statement which is made. And

-7-
 so when people lie about that, then it puts the government and the
court to a lot of effort and time for no legitimate purpose. And I
don’t have any hesitation at all in concluding that your testimony was
willfully false and that a two-level adjustment for obstruction is
warranted in this case.

Supp. ROA at 2-3.

The district court applied U.S.S.G. § 3C1.1 to impose a two-level

sentencing enhancement for obstructing justice. The district court also denied

Defendant’s motion for a downward departure for acceptance of responsibility,

under U.S.S.G. § 3E1.1. Defendant challenges these sentencing decisions in his

appeal.

Discussion

Before turning to the merits, we note that both parties devoted substantial

portions of their briefs to whether the district court improperly denied

Defendant’s motion to suppress. As Defendant’s attorney made clear at oral

argument, however, he does not seek reversal of the district court’s denial of the

suppression motion. He acknowledges that Defendant entered an unconditional

guilty plea, and “entry of an unconditional guilty plea results in the waiver of all

nonjurisdictional defenses.” United States v. Robertson, 45 F.3d 1423, 1434

(10th Cir. 1995).

We therefore need address only issues relating to Defendant’s sentence. In

considering challenges to sentencing enhancements under § 3C1.1, “[w]e review

-8-
the district court's factual findings as to the obstruction of justice under the

clearly erroneous standard, and review de novo the district court's legal

interpretation of the Sentencing Guidelines.” United States v. Hawley, 93 F.3d

682, 686-687 (10th Cir. 1996). Similarly, “[w]e review for clear error the district

court's refusal to grant a reduction in offense level for acceptance of

responsibility.” Id. at 689.

1. Sentencing enhancement under § 3C1.1

U.S.S.G. § 3C1.1 states:

If (A) the defendant willingly obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during
the course of the investigation, prosecution, or sentencing of the
instant offense of conviction, and (B) the obstructive conduct related
to (i) the defendant’s offense of conviction and any relevant conduct;
or (ii) a closely related offense, increase the offense level by 2 levels.

The commentary to § 3C1.1 provides “a non-exhaustive list of examples of the

types of conduct to which this adjustment applies.” U.S.S.G. § 3C1.1, cmt. (n.4).

The list includes “committing, suborning, or attempting to suborn perjury.” Id.

cmt. (n.4(b)).

The United States Supreme Court addressed the imposition of § 3C1.1

enhancements for perjury in United States v. Dunnigan, 507 U.S. 87, 94 (1993).

The Court stated that in the context of § 3C1.1, perjury takes place 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

-9-
a result of confusion, mistake, or faulty memory.” Id. at 94 (citing the definition

of perjury set forth in the federal perjury statute, 18 U.S.C. § 1621). The opinion

stressed that “not every accused who testifies at trial and is convicted will incur

an enhanced sentence under § 3C1.1 for committing perjury.” Id. at 95. For

example, when a defendant testifies about “matters such as lack of capacity,

insanity, duress, or self-defense . . . [h]er testimony may be truthful, but the jury

may nonetheless find the testimony insufficient to excuse criminal liability or

prove lack of intent.” Id. Therefore, “if 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 we have set out.” Id.

Defendant attacks the enhancement on three grounds: (1) the district

court’s findings were inadequate; (2) he did not commit perjury; and (3) perjury at

a suppression hearing is an improper ground for enhancement. We discuss each

in turn.

a. Adequacy of the court’s findings

We first address Defendant’s challenge to the adequacy of the district

court’s findings regarding his perjury. Dunnigan provides some guidance

regarding the type of factual findings that district courts must make in order to

-10-
enhance sentences under § 3C1.1. The opinion states that while “it is preferable

for a district court to address each element of the alleged perjury in a separate and

clear finding,” it “is 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.” Id. at 95.

The Tenth Circuit’s standards are stricter than those expressed in

Dunnigan. We require that a district court be explicit about which representations

by the defendant constitute perjury. In United States v. Massey, 48 F.3d 1560,

1573 (10th Cir. 1995), we observed that “although Dunnigan did not require

sentencing judges specifically to identify the perjurious statement, it has long

been a requirement in the Tenth Circuit that the perjurious statement be

identified, at least in substance.” The Massey court clarified that it did “not mean

to imply that the district court must recite the perjurious testimony verbatim,” but

rather that the district court could “generally identify the testimony at issue . . . so

that when we review the transcript we can evaluate the Dunnigan findings of the

elements of perjury against an identified line of questions and answers without

having simply to speculate on what the district court might have believed was the

perjurious testimony.” Id. at 1574.

Although greater specificity by the district court would have been helpful,

and is strongly recommended for the future, we hold that, in context, the court’s

-11-
findings here were adequate to satisfy Dunnigan and Massey. We begin with

consideration of the Dunnigan requirements. The district court found all three

elements of the offense of perjury: (1) a false statement under oath, (2)

concerning a material matter, (3) with the willful intent to provide false

testimony. See Dunnigan, 507 U.S. at 94. A finding on the first element (making

a false statement) is encompassed by the court’s remark: “I do think . . . Mr.

Hawthorne, that you lied in your testimony at the suppression hearing about the

voluntariness of the statements that you made to the officers.” Supp. ROA at 2.

The third element (willful intent) was clearly found when the court stated at the

sentencing hearing that “I don’t have any hesitation at all in concluding that your

testimony was willfully false.” Id. at 3.

As for the second element (materiality), the district court implicitly found

that Defendant’s testimony about the voluntariness of his confession was material.

The court declined to impose an enhancement for Defendant’s statements about

Brooks, noting that “the testimony . . . regarding Mr. Brooks is probably not

particularly material here, although I believe that the defendant lied about it.” Id.

at 2. In contrast, shortly thereafter the district court declared that Defendant’s

testimony concerning the voluntariness of his statements did warrant a sentencing

enhancement. The court’s distinction between the two areas of testimony

establishes that it found the testimony about voluntariness to be material.

-12-
 The more difficult question is whether the court complied with Massey by

adequately identifying which of Defendant’s statements were perjurious. At the

sentencing hearing the court observed only that Defendant “lied in [his] testimony

at the suppression hearing about the voluntariness of the statements that [he]

made to the officers.” Id. Given that the central issue for resolution at the

suppression hearing was whether Defendant’s confession was voluntary, this

comment could have been referring to almost any part of Defendant’s testimony.

In context, however, it is clear that the court’s comment was referring to

only one part of that testimony. As Defendant’s brief accurately states, “The

prosecution [at the sentencing hearing] represented the defendant’s arguments

concerning voluntariness of the waiver as if the only issue was whether or not his

request for an attorney had been equivocal or unequivocal.” Aplt. Br. at 23. The

Government sought an enhancement because of Defendant’s perjury concerning

(1) whether Defendant had requested an attorney and (2) the possible drug dealing

of Cecil Brooks. When the court ruled that Defendant had lied on both matters

but only the testimony on “voluntariness” warranted an enhancement, it was

surely using the word “voluntariness” to refer to the testimony about requesting

an attorney.

This conclusion is reinforced by an examination of what the court said at

the suppression hearing. In explaining its ruling at that hearing, the district court

-13-
addressed the three bases of Defendant’s claim that his confession was

involuntary. First, the district court rejected Defendant’s claim that the officers

had used threats to induce him to waive his Miranda rights. The court said,

“[T]here’s no evidence of any threats or coercion.” ROA, Vol. 2 at 47-48.

Second, with regard to Defendant’s claim that he was mentally incompetent

to waive his rights, the district court stated, “I don’t accept the proposition that he

was intoxicated in any legally meaningful sense of that word.” Id. at 48.

Although the court commented that there was “no credible evidence” that

Defendant had been incapacitated by drugs, we do not take this comment as a

reflection on Defendant’s veracity. On the contrary, the court believed, or at least

assumed, that Defendant had consumed drugs or alcohol shortly before his arrest.

The court’s focus was apparently on the absence of any significant impairment by

the time of the interrogation.

Finally, in rejecting Defendant’s claim that he had requested a lawyer, the

district court said that it did not “find credible his testimony that he did ask for a

lawyer during the reading of his rights form.” Id. The court did find credible the

officers’ testimony that Defendant had said only that he might want a lawyer. As

stated in Defendant’s opening brief, “The Court found that the request had been

equivocal and that the defendant had lied when he testified that his request had

been unequivocal.” Aplt. Br. at 23.

-14-
 Thus, we conclude that the district court’s reference at sentencing to lying

by Defendant “about the voluntariness of [his] statements” must relate to

Defendant’s testimony that he had asked for a lawyer. Accordingly, we hold that

the specificity requirement of Massey was satisfied. We emphasize again,

however, that it would have been preferable if the court had been more precise.

b. Whether Defendant committed perjury

Defendant next argues that his testimony was not in fact perjurious. He

characterizes his testimony as “a good faith attempt to explain his interpretation

of the circumstances under which he signed a waiver of rights.” Aplt. Br. at 18.

In our view, however, the evidence could easily support the district court’s

determination that Defendant’s testimony was “willfully false.” Defendant’s

specific words regarding his interest in having an attorney were clearly at issue at

the suppression hearing. Agent Violanti and Officer Viera each testified that

Defendant had paused in the reading of the rights form to state “I may want a

lawyer.” (emphasis added.) ROA, Vol. 2 at 8, 15, 23. Then, when Defendant

testified, he denied that he had qualified his request for a lawyer with the word

“may”:

Q: Did you make any statements regarding wanting to talk to a
lawyer when they were using the Miranda—

A: Yes, I told them that I wanted to speak with a lawyer.

Q: Did you use the word may or—

-15-
 A: I told them I wanted a lawyer.

Q. What was their response to that?

A. They told me that they was going to get me a lawyer . . . .

Id. at 34. As previously noted, the difference between saying “I want a lawyer”

and “I may want a lawyer” is crucial. See Davis, 512 U.S. at 458-62. The district

court could properly find that Defendant’s insistence that he did not qualify his

interest in seeing a lawyer was not just a “good faith attempt” to explain what had

happened.

c. Enhancement for perjury at suppression hearing

Defendant’s final challenge to the enhancement for obstruction of justice is

his contention that it is not appropriate to enhance a defendant’s sentence for

perjury committed at a suppression hearing. He argues that defendants should be

able to contest the voluntariness of confessions without risking sentencing

enhancements for perjury if their motions to suppress fail.

We reject Defendant’s contention. We affirmed an obstruction

enhancement for perjury at a suppression hearing in United States v. Alexander,

292 F.3d 1226 (10th Cir. 2002). To be sure, in Alexander we emphasized that the

defendant’s false allegations had led to an otherwise unnecessary evidentiary

hearing, thereby wasting the scarce resources of both the prosecutor and the court.

But the same could be said in the vast majority of cases in which perjury has been

-16-
committed at a suppression hearing. In any event, we see no need to make an

individualized assessment in each case of whether the perjury was the cause for

an unnecessary evidentiary hearing. The commentary to § 3C1.1 lists perjury as

an example of conduct justifying an enhancement for obstruction of justice. The

commentary does not specify that the perjury must be at trial. On the contrary,

§ 3C1.1 explicitly applies to obstructions of justice taking place “during the

course of the investigation, prosecution, or sentencing.”

Indeed, in Alexander we observed that the contrast between perjury at trial

and perjury at a suppression hearing, for purposes of § 3C1.1, may represent “a

distinction without a difference.” 292 F.3d at 1236. Certainly, there is no reason

for courts to be more solicitous of perjury at a suppression hearing than perjury at

trial. Perjury obstructs justice in any judicial proceeding, and to the extent that

sanctions for perjury deter the practice, so much the better. As the Supreme Court

stated in Dunnigan, “Respondent cannot contend that increasing her sentence

because of her perjury interferes with her right to testify, for we have held on a

number of occasions that a defendant’s right to testify does not include a right to

commit perjury.” 507 U.S. at 96. The other circuits to have faced the issue have

permitted enhancements under § 3C1.1 for perjury at suppression hearings. See,

e.g., United States v. Matos, 907 F.2d 274, 276 (2d Cir. 1990); United States v.

Akinkoye, 185 F.3d 192, 205 (4th Cir. 1999); United States v. Reed, 26 F.3d 523,

-17-
531 (5th Cir. 1994); United States v. Charles, 138 F.3d 257, 266 (6th Cir. 1998);

United States v. Reddrick, 90 F.3d 1276, 1283 (7th Cir. 1996); United States v.

Gleason, 25 F.3d 605, 608 (8th Cir. 1994); United States v. Sherwood, 98 F.3d

402, 415 (9th Cir. 1996); United States v. Wilson, 240 F.3d 39, 46 (D.C. Cir.

2001). We now hold that § 3C1.1 extends to perjury at suppression hearings.

We therefore conclude that the district court properly enhanced Defendant’s

sentence under U.S.S.G. § 3C1.1, based on its finding that he committed perjury

at the suppression hearing.

2. Denial of sentencing reduction under § 3E1.1

We can summarily dispose of Defendant’s apparent challenge to the district

court’s decision to deny him a sentencing reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1. This guideline instructs district courts that

“[i]f the defendant clearly demonstrates acceptance of responsibility for his

offense, decrease the offense level by 2 levels.” U.S.S.G. § 3E1.1(a). The

commentary states, however, that “[c]onduct resulting in an enhancement under

§ 3C1.1 . . . ordinarily indicates that the defendant has not accepted responsibility

for his criminal conduct.” U.S.S.G. § 3E1.1, cmt. (n.4). Although “[t]he

Guidelines do envision extraordinary cases where a defendant could receive an

adjustment for acceptance of responsibility despite also receiving an enhancement

for obstruction of justice,” United States v. Proffit, 304 F.3d 1001, 1009 (10th

-18-
Cir. 2002), Defendant has pointed to no such extraordinary circumstances here.

We thus conclude that the district court did not err in denying Defendant a

sentencing reduction under § 3E1.1.

Conclusion

We AFFIRM the sentence below.

-19-
United States v. Hawthorne, No. 01-3357

HENRY, Circuit Judge, concurring in part and concurring on other grounds in
part:

I concur that perjury at a suppression hearing is covered by U.S.S.G. §

3C1.1. I also concur that we strongly prefer specific findings by the district court

when it enhances a sentence. As the majority opinion clearly states, the purpose

of this court’s holding in United States v. Massey, 48 F.3d 1560 (10th Cir. 1995),

is to make it possible for an appellate court to review district court decisions

without having to, in essence, “fill in the blanks.” As the Massey court put it, the

district court in that case

failed to identify or describe the statement that it
concluded was perjurious as required by well-
established Tenth Circuit law. Accordingly, we would
have no way of reviewing the district court’s findings on
the elements of perjury even if it had made such
findings. Thus, we must remand for the required
additional findings.

Id. at 1573.

This is precisely the problem here. If we are to affirm the district court’s

finding, we must infer what the district court meant when it said that Mr.

Hawthorne “lied in [his] testimony at the suppression hearing about the

voluntariness of the statements that [he] made to the officers,” Opinion at 8.

After searching the record to determine the court’s meaning, I was able to find

two bases on which the district court might have found that Mr. Hawthorne had
lied. Neither relies on the difference between “I may want a lawyer” and “I told

them I wanted a lawyer,” which, as I explain below, is not a sufficient basis for

finding perjury.

Mr. Hawthorne testified at the suppression hearing that the officers

promised to get him a lawyer. Id. at 3. This is a factual assertion, relevant to the

“voluntariness” of Mr. Hawthorne’s statements to the officers, that the district

court might reasonably have considered perjurious. The only record evidence

relevant to the judge’s thinking on this issue is her comment to Mr. Hawthorne’s

attorney that, even if the officers did make such a promise to provide a lawyer,

Mr. Hawthorne’s decision to answer questions constituted a waiver of his rights.

Rec. vol. 2, at 45. This provides no indication that the judge actually believed the

testimony–only that Mr. Hawthorne would not be helped even if the judge did

believe it.

More broadly, I think the district court might well have believed that the

entirety of the conversation, including the defendant’s post-Miranda words and

actions, indicated clearly that he did not demand a lawyer. I think the court thus

determined that Mr. Hawthorne’s statements at the suppression hearing were in

direct conflict with his statements at the interrogation, and that these statements

combined to be material and intentional misrepresentations.

-2-
 The majority opinion instead finds the “lie” in the difference between the

statements “I may want a lawyer” (during the interrogation) and “I told them I

wanted a lawyer.” Opinion at 16. Therefore, as I understand the majority

opinion, it holds that a single finding by the judge that the defendant equivocated

during the interrogation and then described his request in unequivocal terms at the

suppression hearing is sufficient to support a finding of perjury.

I have some concern whether this statement is sufficient to constitute

perjury, which is defined by statute as “willfully subscrib[ing] as true any

material matter which [the declarant] does not believe to be true.” 18 U.S.C. §

1621(2). It seems entirely plausible to me, however, that a non-lawyer, unfamiliar

with the dictates of Davis v. United States, 512 U.S. 452 (1994), could believe

that he was not lying when testifying “I told them I wanted a lawyer” in these

circumstances.

The majority opinion asserts that “when Defendant testified, he denied that

he had qualified his request for a lawyer with the word ‘may.’” Opinion at 16. In

fact, Mr. Hawthorne’s testimony does not explicitly deny that he said, “I may

want a lawyer.” The lawyer’s question began, “Did you use the word may or—.”

Id. Mr. Hawthorne interrupted and said, “I told them I wanted a lawyer.” Id. I

think it is reasonable to conclude that Mr. Hawthorne was emphasizing what he

thought he had asked for, not that he was denying ever using the word “may.” By

-3-
analogy, “I would like a lawyer” is not, strictly speaking, a request for a lawyer.

The conditional phrasing, however, is commonly used not to mean, “I would like

a lawyer under the following conditions,” but simply, “I want a lawyer.”

Similarly, “I may be having a heart attack” is rather close to saying “I am having

a heart attack.” In any case, these shades of difference are insufficient in my

mind to constitute perjury.

The Guidelines offer the following explicit exhortation: “In applying this

provision in respect to alleged false testimony or statements by the defendant, the

court should be cognizant that inaccurate testimony or statements sometimes may

result from confusion, mistake, or faulty memory and, thus, not all inaccurate

testimony or statements necessarily reflect a willful attempt to obstruct justice.”

U.S.S.G. § 3C1.1, cmt. 2. In my view, a non-lawyer could testify as Mr.

Hawthorne did from confusion, mistake, or faulty memory. Hence, to affirm a

perjury finding on so slim a reed runs the risk of increasing the sentence of a

defendant who testifies to what he believes to be the truth. Given that § 3C1.1 is

“not intended to punish a defendant for the exercise of a constitutional right,” id.,

this result is very troubling.

Therefore, as this case is close as to whether the court indicated with

sufficient specificity Mr. Hawthorne’s perjurious statement or statements, I

believe that we should have affirmed on the most non-controversial grounds

-4-
possible. In my view, the examples that I described above provide a much

clearer–and less Constitutionally problematic–basis for affirming the district

court’s finding.

-5-