United States v. Walker

United States Court of Appeals
For the First Circuit
____________________

No. 00-1396
No. 00-1405

UNITED STATES

Appellee/Cross-Appellant,

v.

CHRISTOPHER R. WALKER

Defendant, Appellant/Cross-Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Lynch and Lipez, Circuit Judges.

____________________

Eric E. Menoyo, with whom David J. Van Dyke and Berman & Simmone,
P.A. were on brief, for defendant-appellant/cross-appellee.

F. Mark Terison, Senior Litigation Counsel, with whom Jay P.
McCloskey, U.S. Attorney, was on brief, for appellee/cross-appellant.

____________________
 December 19, 2000

____________________

-2-
 LYNCH, Circuit Judge. Christopher Walker embezzled from
an employee-benefit fund that never contained much more than
$500,000. Nevertheless, at sentencing the district court
calculated the relevant loss under U.S.S.G. § 2B1.1(b) as
$933,369. Walker challenges this seeming paradox. In addition,
Walker appeals the sentencing court's refusal to decrease the
base level of his offense for acceptance of responsibility and
its refusal to make a downward departure on several suggested
bases. The government cross-appeals, claiming that Walker's
sentence should have been enhanced for obstruction of justice.
We affirm the district court's sentence on all grounds.
I.
Walker was part owner of Beacon Motor Company, Inc.,
an automobile dealership in Bangor, Maine, and he had financial
control of its checking accounts during the relevant time
period. Faced with serious cash flow problems, Walker began to
"borrow" money from the dealership's profit sharing plan (the
"Plan") in 1995. During the next three years, he made eleven
withdrawals from the Plan, totaling $925,000. An additional
shortfall of $8,369 was discovered prior to sentencing. At
various times during the embezzlement, Walker returned money to
the Plan, leaving an actual shortfall of $468,663.
After Walker's embezzlement was discovered, he offered
to cooperate with prosecutors. In the course of these
discussions, he attributed much of the responsibility for the
embezzlement scheme to his partner in the automobile dealership,

-3-
James Gallant. The prosecutor advised Walker that he might
receive a downward departure for substantial assistance if he
provided information against Gallant that led to his
prosecution. No such case was ever made. Walker eventually
reached a plea agreement with the prosecutor under which he pled
guilty to one count of embezzlement under 18 U.S.C. § 664.
The presentence report found, among other things, that
(i) despite Walker's insistence to the contrary, Gallant had not
participated in the embezzlement scheme; (ii) Walker had not
been fully forthright in providing documentation of his crimes;
(iii) Walker had fabricated details of his actions at the
dealership; (iv) Walker had not accepted full responsibility for
his actions; and (v) Walker had misrepresented his finances.
The presentence officer did not recommend any adjustments to
Walker's base offense level or discretionary downward
departures.
The sentencing judge agreed, refusing to reduce the
offense level for acceptance of responsibility, and declining to
make any discretionary downward departures. In order to set the
offense level, the sentencing court then calculated the amount
of loss. The judge totaled the amounts of the eleven unlawful
withdrawals from the Plan and the missing $8,269 to arrive at a
loss amount of $933,369, increasing the offense level by 13.
See U.S.S.G. § 2B1.1(b)(1)(N). Two other enhancements not at
issue further increased the offense level to 21. The government
sought an additional enhancement for obstruction of justice

-4-
under U.S.S.G. § 3C1.1 on the basis of allegedly perjurious
testimony by Walker at the sentencing hearing, but the
sentencing judge declined to make such a finding. The court
sentenced Walker to 46 months in prison, the high end of the 37
to 46 month range provided by the Guidelines given his offense
level and criminal history.
II.
A. Calculation of Loss
Walker presents a simple argument: considering the
amount of money Walker returned to the plan, his total "theft"
was only $468,663, a loss which would enhance his offense level
by 11. See U.S.S.G. § 2B1.1(b)(1)(L). The court instead
calculated the loss by summing all eleven of Walker's unlawful
withdrawals, and hence Walker received no credit whatsoever in
the loss calculation for returning the money. This approach
resulted in a loss amount of $933,369, and an adjustment in the
offense level of 13. Despite the inherent appeal of Walker's
argument, however, the sentencing court followed the proper
approach for calculation of loss in cases of embezzlement.
We start with the standard of review. The government
argues that we should review the sentencing court's
determination of the loss amount for clear error, since the
court made a factual finding as to the amount of loss. Walker
does not, however, challenge the factual basis of the sentencing
court's loss calculation but rather the method by which the
calculation was made. The appropriate method for calculating

-5-
loss amounts under the Guidelines is a prototypical question of
legal interpretation, and we review de novo. See United States
v. Carrington, 96 F.3d 1, 6 (1st Cir. 1996) ("This court reviews
de novo the district court's interpretation of the loss
provisions of the Guidelines. Thereafter, it normally reviews
a district court's factual findings only for clear error."); cf.
United States v. Phaneuf, 91 F.3d 255, 261 (1st Cir. 1996)
(challenges to the factual basis of the district court's loss
determination reviewed for clear error).
U.S.S.G. § 2B1.1(b)(1) itself gives no guidance on the
appropriate method for calculating loss. The commentary to the
Guidelines provides little additional direction. It simply
defines "loss" as "the value of property taken, damaged, or
destroyed." U.S.S.G. § 2B1.1 cmt. n.2. This commentary
suggests that "loss" refers primarily to the value of what was
taken, not the harm ultimately suffered by the victim. With
this limited guidance, we turn to the crime at issue. Since the
crime of embezzlement does not include as an element an intent
to permanently deprive the victim of the funds, but rather a
temporary deprivation will do, we conclude that the loss
calculation for embezzlement properly uses the amount of each
deprivation.
Walker's crimes were complete at the time that he made
the unlawful withdrawals from the Plan. See United States v.
Cruz-Santiago, 12 F.3d 1, 3 (1st Cir. 1993) ("Embezzlement need
not involve an intent to deprive permanently."); see also United

-6-
States v. Hathcoat, 30 F.3d 913, 916 (7th Cir. 1994) (relevant
criminal action in embezzlement is fraudulent appropriation).
With each unlawful withdrawal, Walker created a significant risk
that the Plan would become unable to meet its obligations, and
Walker was guilty of an act of embezzlement regardless of any
intended or actual repayments. As each of these unlawful
withdrawals reflects a completed act of embezzlement, the
sentencing court properly calculated loss by summing the amounts
of the eleven withdrawals without regard for any repayments made
by Walker at other times. Otherwise, the logic of Walker's
argument leads to the untenable conclusion that had Walker
managed to repay fully the funds he had embezzled, the proper
amount of loss would be zero.
This conclusion is consistent with the interpretation of

similar loss provisions by other circuits. In United States v. Brach,

942 F.2d 141 (2d Cir. 1991), the court addressed a similar loss

provision in the fraud guideline.1 Id. at 143. The court concluded

that the loss calculation under the fraud guideline should be

determined in reference to the loss at the completion of the crime,

rendering the defendant's intention to repay and the actual harm

ultimately suffered by the victim irrelevant. See id.; see also United

States v. Cea, 925 F.2d 56, 57 (2d Cir. 1991) ("There is no suggestion

in the commentaries that loss was intended to be limited to the harm

1 The commentary to the fraud guideline cited in Brach, § 2F1.1
cmt. n.7, cross-references the guideline at issue here. See Brach, 942
F.2d at 143.

-7-
done by the defendant when, for some reason, the amount taken exceeded

the harm suffered by the victim."). Cf. Cruz-Santiago, 12 F.3d at 2-3

(relying on specific example in the commentary to decide loss

calculation under the robbery guideline to include the full value of a

stolen car despite its return unharmed).

Walker's reliance on the commentary provision that "in

certain cases, an offense may involve a series of transactions without

a corresponding increase in loss," is misplaced. U.S.S.G. § 2B1.1 cmt.

n.2. While certain embezzlement schemes may involve complex

transactions that move funds multiple times without changing the risk

of loss or adding a new risk of loss, this is not such a case. This

provision does not encompass the return and then subsequent re-

embezzlement of funds, since each subsequent embezzlement creates a new

risk of loss, and hence is properly accounted for through an additive

loss calculation.

A defendant's repayment of embezzled funds nonetheless may

serve to mitigate a defendant's punishment in other areas of

sentencing. Here, Judge Carter calculated a loss of $933,369 as a

result of Walker's embezzlement, yet only required restitution of

$505,081.82 from Walker. Moreover, as was noted at oral argument,

Walker was certainly entitled to seek a downward departure based upon

his return of money to the Plan. He did not do so, perhaps because he

returned the money only in an attempt to cover up his own wrongdoing.

In any event, the district court calculated the loss correctly, and we

affirm its decision.

B. Acceptance of Responsibility

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 The sentencing judge found that Walker was not eligible for

a reduction in offense level for acceptance of responsibility under

U.S.S.G. § 3E1.1(a). We review this decision with "great deference"

because the "sentencing judge is in a unique position to evaluate a

defendant's acceptance of responsbility." U.S.S.G. § 3E1.1 cmt. n.5.

Hence we will overturn a sentencing court's decision not to reduce the

offense level for acceptance of responsibility only when that decision

is clearly erroneous. United States v. Royer, 895 F.2d 28, 29 (1st

Cir. 1990).

Section 3E1.1(a) requires that the defendant "clearly

demonstrate" acceptance of responsibility. The commentary notes that

some appropriate considerations under this guideline include (i)

whether the defendant truthfully admits the underlying offense conduct

and related conduct, see U.S.S.G. § 3E1.1 cmt. n.1(a); (ii) whether the

defendant voluntarily surrenders promptly after the commission of the

offense, see id. cmt. n.1(d); (iii) whether the defendant provides

voluntary assistance in recovering the fruits and instrumentalities of

the offense, see id. cmt. n.1(e); and (iv) the timeliness of the

manifestation of acceptance, see id. cmt. n.1(h). The district court

must also consider the defendant's credibility and demeanor. See

Royer, 895 F.2d at 30. The record indicates that the sentencing judge

considered each of these factors and found the evidence insufficient to

demonstrate clearly Walker's acceptance of responsibility.

The commentary also notes that entry of a guilty plea

"combined with truthfully admitting the conduct comprising the offense

. . . will constitute significant evidence of acceptance of

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responsibility." U.S.S.G. § 3E1.1 cmt. n.3; see Royer, 895 F.2d at

29-30. However, the defendant who offers a guilty plea is not entitled

to the adjustment as a matter of right. See U.S.S.G. § 3E1.1 cmt. n.3.

Moreover, the benefit of offering a guilty plea may be outweighed by

conduct inconsistent with the acceptance of responsibility. See id.

The court specifically noted that, despite Walker's guilty plea, he had

engaged in conduct inconsistent with acceptance of responsibility.

Because on these facts the court had a plausible basis to

conclude that Walker had not completely accepted responsibility for his

criminal conduct, the sentencing court's refusal to reduce his offense

level was not clear error. See Royer, 895 F.2d at 30.

C. Discretionary Downward Departures

Walker asserts that he was entitled to a downward departure

under one of four theories: (i) his extraordinary rehabilitation; (ii)

his substantial assistance to the government; (iii) the fact that his

wrong-doing was a single, aberrant incident in an otherwise law-abiding

life; or (iv) because he did not profit from the embezzlement. If the

sentencing court refused to grant such a departure as an exercise of

its discretion -- that is, if it considered the departure and refused

-- we have no appellate jurisdiction. See United States v. Algarín-

DeJesãs, 211 F.3d 153, 157 (1st Cir. 2000). The record indicates that

the court considered a downward departure and found that no factors

were present that would support such a departure. We cannot disturb

this ruling.

D. Obstruction of Justice

The government appeals from the district court's decision not

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to give a sentence enhancement for obstruction of justice based on

allegedly false statements made by Walker during his testimony at

sentencing. At sentencing, Walker testified that he did not accept any

money from his friend John Arsenault, and that any money he returned to

the dealership was his own. The government then produced Arsenault as

a witness, and Arsenault rebutted the testimony. Contending on the

basis of this rebuttal that Walker had perjured himself at the

sentencing, the Government sought a two-point enhancement of Walker's

offense level under U.S.S.G. § 3C1.1 for obstruction of justice.

Walker, of course, had no specific notice the government would seek

this enhancement when he took the stand, although he had general notice

of the Guidelines. Significantly, Arsenault had made a prior statement

to Walker's defense counsel which supported Walker's testimony and was

materially at odds with Arsenault's later rebuttal testimony. Thus,

when Walker took the stand, he understood that Arsenault, if he

testified, would do so consistently with Walker's own testimony. Only

the government knew that was not so. The government also knew that

Arsenault had given a different version of the facts to defense

counsel, but the government did not alert Walker's counsel to

Arsenault's change in position.

U.S.S.G. § 3C1.1 increases the offense level by two points

if "the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during . . .

sentencing or the instant offense of conviction." Such obstructing

conduct includes "committing . . . perjury." Id. cmt. n.4(b). When a

court finds that the defendant has perjured himself, the Guidelines

-11-
mandate the enhancement. See United States v. Dunnigan, 507 U.S. 87,

98 (1993).

The sentencing court declined to decide the perjury question

or reach the question of the enhancement because the Government had

failed to give notice to Walker of Arsenault's rebuttal testimony, the

basis for the claimed enhancement. The sentencing court stated that it

would not impose the enhancement "when the government could have, with

a single sentence, made it clear to him that, if he took the stand and

testified falsely, that there was rebuttal testimony available which

would lay a predicate for the imposition of an enhancement for

obstruction of justice."

A district court must give the parties reasonable notice

before making either an upward or downward departure from the

Guideline's sentencing range. See Burns v. United States, 501 U.S. 129

(1991) (reviewing sua sponte departure by the district court). The

government relies on the reading of Burns given by this court in United

States v. Canada, 960 F.2d 263 (1st Cir. 1992). This court read Burns

to require special notice only for departures from the Guidelines

sentencing range rather than for all Guidelines adjustments, reasoning

that the delineation of adjustments in Sentencing Guidelines themselves

provides notice to defendants of possible grounds for adjustment, at

least where the facts relevant to the adjustment are known to the

defendant. Id. at 266-67. Thus in Canada we did not require prior

notice from the court for an enhancement based upon the defendant's

supervisory role. Id. at 268. See also United States v. Willis, 997

F.2d 407 (8th Cir. 1993) (not requiring trial judge to provide prior

-12-
notice before imposing enhancement for obstruction of justice).

This case is not controlled directly by either Burns or

Canada, but both have policy underpinnings which support the trial

judge's decision here. Both were concerned with adequate notice to

defendants of variations from Guideline ranges, Burns with departures

and Canada with enhancements and adjustments. Both are premised on

defendant's having adequate notice of the facts and the law.

Canada was a very different situation than this. In Canada

the court imposed a three-point enhancement for the role in the offense

based on the trial testimony that Canada was a manager. Neither the

presentence report nor the government had recommended such an

enhancement. The question was whether the trial judge was precluded

from considering an enhancement. Canada held that the court was not so

precluded because the Guidelines provided notice. Canada also said

that the facts suggested that Canada "had plenty of notice" that his

role could be at issue. Canada, 960 F.2d at 267 n. 4. Canada thus

concerned a constraint on the ability of the court to consider an

enhancement when there was no prior recommendation for such an

enhancement. Significantly, Canada suggests there might be limits on

the court notwithstanding, if it were not true that "the facts relevant

to the adjustment are already known to the defendant." Id. at 266.

By contrast, in this case the government rather than the

court raised the possible sentencing enhancement, and here the court

declined to consider the requested enhancement because it felt the

government had not played fair under the rules. That is a very

different issue. The government now argues that the court was

-13-
required, against its sense of fairness and the government's own

articulation of the rules, to entertain the enhancement.

The question here is not the legal point (of whether the law

compels notice) addressed by the dissent but rather the factual

question of whether notice was possible on the particular facts of this

case. The district court reasonably understood the question was not

one of legal obligation to give notice of its sentencing positions to

the defendant, but of whether on the facts of this case, the government

had sufficient knowledge to trigger an obligation.2 On appeal, the

government does not make the argument against a legal obligation the

dissent makes. Rather, the government argues that it was in no

position to give notice because it could not, in advance, know what

Walker would say, or that it would seek an obstruction enhancement.

The district court, familiar with the case, rejected that contention as

a factual matter, and instead determined that "on the circumstances of

this case" the situation permitted the government to give Walker

adequate notice. The government, after all, on learning that Walker

would testify, had Arsenault ready and available as a rebuttal. There

is adequate support for the trial court's factual conclusion, and hence

no basis for finding its ruling to be in clear error.

2 The government acknowledged at the sentencing hearing
that it was required, where possible, to give notice of its substantial
sentencing positions to defendants. The government explicitly agreed
to the court's statement that "if the[ ] basis for the two-point
increase for obstruction is known to the government before the time of
the sentencing hearing, [ ] it has an obligation to come forward and
make that claim so that the defendant can have an opportunity to resist
it."

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 Where the defendant perjures himself or suborns perjury at

the sentencing hearing, circumstances may not permit notice to the

defendant that the adjustment for obstruction of justice will be

sought. The government may be totally unaware in advance of the

content of that testimony, so as to render notions of notice

inapplicable, even where the government is prepared to rebut potential

false statements. See, e.g. United States v. Knight, 76 F.3d 86, 88-89

(5th Cir. 1996) (recognizing that "under certain circumstances

providing notice will be impossible, such as when a defendant obstructs

justice by lying at a sentencing hearing in an attempt to induce

leniency"). However, this is not that case.

What renders this case unique is that the government was

aware (1) that its rebuttal witness, Arsenault, had provided a

materially different statement to defense counsel, indeed one that

corroborated Walker's testimony; and (2) that unlike in Canada, here

the defendant did not know all of the facts relevant to the potential

enhancement. Cf. Canada, 960 F.2d at 266. The defendant did not know

that Arsenault would disagree with him; he thought that Arsenault would

support his testimony. Only the government knew the rebuttal witness's

statement would be to the contrary, and it decided to withhold that

information. Indeed, it may be that Walker's testimony was not in fact

false; then, advance knowledge of Arsenault's shift in position would

have been essential to allowing the defense to meet effectively the

government's evidence in the sentencing hearing. In light of these

particular circumstances and the government's acknowledgment that

notice, if possible, was required, we cannot say that the district

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court abused its discretion in declining to reach the question of

enhancement for obstruction of justice.

District courts have an independent duty to ensure the

fairness of criminal trials. United States v. Bosch, 584 F.2d 1113,

1124 (1st Cir. 1978). In order to effectively fulfill this duty,

district courts must have considerable latitude to make discretionary

judgments in governing the trial process, relying on immersion in the

factual particulars of the case to render appropriate judgments. These

judgments, such as in evidentiary rulings, often rest in the

complexities of the particular case, and therefore appellate courts

review them only for abuse of discretion. See, e.g. United States v.

Lachman, 48 F.3d 586, 590-91 (1st Cir. 1995) (discussing need for

discretion in evidentiary rulings). Unfair surprise in witness

testimony is one instance where the judicious management of the trial

process by the trial judge plays a critical role. Cf. Licciardi v. TIG

Ins. Group, 140 F.3d 357 (1st Cir. 1998) (rejecting trial court's

refusal to exclude expert witness testimony where testimony was

directly contradictory to expert's prior report). In this case, the

district court judge declined to reach the question of the obstruction

enhancement because of the particular circumstances under which it

arose.

Here, not only was the government fully anticipating the

scenario that played out at the sentencing hearing, it was aware that

the defense counsel was relying on an admittedly false statement by

Arsenault in presenting Walker's testimony. While as a general matter

the government is not required to disclose the names of witnesses who

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will testify unfavorably to the defendant, nor to disclose the content

of their testimony, see Weatherford v. Bursey, 429 U.S. 545, 559-60

(1977), under these particular circumstances, we will not reverse the

trial court's determination that the government should have given

Walker notice of the rebuttal testimony they possessed. These

particular facts present precisely the sort of circumstance where the

discretionary judgment of the trial judge is essential to preserving

the fairness of the judicial process, and we would not undertake to

disturb that judgment absent an abuse of discretion. As the district

court did not abuse its discretion in declining to reach the question

of obstruction of justice here, in light of the circumstances of this

case, we affirm the district court's sentence at the current offense

level.

III.

We affirm the district court's sentencing decision in all

respects.

Dissent follows.

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 TORRUELLA, Chief Judge (Dissenting in part). Although I

agree with the majority on the bulk of the opinion, I am troubled by

their apparent willingness to open the door to perjured testimony

during sentencing. I would find that the district court erred in not

entertaining the possibility that Walker committed perjury during the

sentencing hearing.

The majority premises its holding on the "independent duty"

of the district court "to ensure the fairness of criminal trials."

United States v. Bosch, 584 F.2d 1113, 1124 (1st Cir. 1978). Thus,

according to the majority, the district court "declined to consider the

request enhancement because it felt the Government had not played

fair," and that to find otherwise would require the district court to

rule against its sense of fairness. The majority thus considered

whether the district court abused its discretion in making such a

ruling, and concluded that it did not.

I would first contest this standard of review. The district

court did not make its ruling based on an innate conception of

fairness, but rather upon "the belief that the law requires that there

be adequate notice given, where the circumstances permit, to a

defendant to meet any substantial portion of the government['s case]

which may yield a substantially adverse result to him in the sentencing

process" (emphasis added). In fact, the district court expressly

feared "that the Court of Appeals would not countenance the imposition

of the enhancement" without such notice, a fear ironically realized

only because the majority mistakenly understands the district court as

exercising discretion. The real issue here is whether such notice was

-18-
legally required. As this is a question of law, we review the district

court's decision de novo. See United States v. Luna-Díaz, 222 F.3d 1,

2 (1st Cir. 2000).1

Burns v. United States, 501 U.S. 129 (1991), held that a

district court must give the parties reasonable notice before making

either an upward or downward departure. Id. at 138-39. However, in

United States v. Canada, 960 F.2d 263 (1st Cir. 1992), we read Burns as

not requiring special notice where "a court decides that an upward

adjustment is warranted based on offense or offender characteristics

delineated within the Sentencing Guidelines themselves, at least where

the facts relevant to the adjustment are already known to the

defendant." Id. at 266. Adjustments based on characteristics outlined

in the Guidelines differ from sua sponte departures because the

defendant can anticipate the possibility of a Guideline-related

enhancement; "the [G]uidelines themselves provide notice to the

defendant." Id. at 267. Thus in Canada we did not require notice of

an enhancement based on the defendant's supervisory role. Id. at 268.

Similarly, in United States v. Willis, 997 F.2d 407 (8th Cir. 1993),

the Eighth Circuit did not require prior notice to impose an

enhancement for obstruction. Id. at 417.

1 Even were we to review this for abuse of discretion, I would
note that the district court lacks any discretion not to enhance a
defendant's sentence when he commits perjury. See United States v.
Dunnigan, 507 U.S. 87, 98 (1993). As a result, the district court's
refusal to entertain the enhancement in the absence of affirmative
Government misconduct or actual unfairness to Walker would, in my mind,
constitute an abuse of discretion.

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 This case differs slightly from Canada and Willis in that

Walker does not claim that he lacked notice of the obstruction section

of the Guidelines, but that he lacked notice of Arsenault's unfavorable

testimony. I am not convinced that this distinction saves Walker.

Except in the limited fashion provided by Fed. R. Crim. P. 16(a)(1)(E)

(providing for disclosure of expert witness testimony), the Government

is in no way required to inform a defendant of the witnesses it intends

to use against him. See Fed. R. Crim. P. 16(a)(2) ("Nor does the rule

authorize the discovery or inspection of statements made by government

witnesses. . . ."); Weatherford v. Bursey, 429 U.S. 545, 559 (A

defendant has "no general constitutional right to discovery."). These

rules have equal force in sentencing hearings, see Fed. R. Crim. P. 1,

and I am unaware of any exception in this respect, statutory or

otherwise. The majority not only creates such an exception, but goes

further in placing a burden on the Government of forecasting that a

defendant will take the stand and perjure himself, as well as informing

him or her that it has information to contradict the testimony in

question.

The majority suggests that the Government has essentially

waived its claim here with the admission that it "has an obligation to

come forward" if "the basis for the . . . obstruction [enhancement] is

known before sentencing." I understand this admission as agreeing that

if Walker had committed perjury during trial or pre-sentencing, the

Government would have to provide notice prior to seeking an

enhancement. Here, however, the Government only anticipated that

Walker would commit perjury; they can hardly be required to provide

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notice that they will seek an enhancement on facts that might not occur

(such as where Walker chose to tell the truth or to not testify at

all).2

In the present case, the Sentencing Guidelines put Walker on

notice that perjury during the sentencing hearing could lead to an

obstruction enhancement. The fact that Walker's ignorance as to the

content of Arsenault's testimony may have "lulled [him] into a false

sense of security," and encouraged him to commit perjury, is

irrelevant. Cf. Weatherford, 429 U.S. at 559-60 (although defendant

had been lulled into false security by lack of notice of unfavorable

testimony, because he had no constitutional right to plea-bargain, he

could not complain that his lack of notice had encouraged him not to

make a deal). Because there is no constitutional right to commit

perjury, Nix v. Whiteside, 425 U.S. 157, 173 (1986), I cannot conclude

that Walker should have felt entitled to perjure himself simply because

he was unaware that his testimony could, and would, be refuted. As the

Fifth Circuit noted in United States v. Knight, "under certain

circumstances providing notice will be impossible, such as when a

defendant obstructs justice by lying at a sentencing hearing in an

attempt to induce leniency." 76 F.3d 86, 88-89 (5th Cir. 1996). Such

are the facts here, and, although giving notice of Arsenault's

2 I have no quarrel with the majority's claim that "notice was
possible on the particular facts of this case." My disagreement is
with the relevance of this fact, given that (i) the district court
based its conclusion on a finding of law, rather than one of fact; (ii)
I find no waiver of the Government's argument; and (iii) the district
court's discretion, to the extent it was exercised, is severely limited
in the context of perjured testimony.

-21-
testimony to Walker was not impossible, it was unnecessary given

Walker's notice of the punishment for perjury under the Sentencing

Guidelines.

The majority seeks to distinguish Canada by suggesting that

Walker somehow lacked knowledge of "all of the facts relevant to the

potential enhancement." It is true that Walker did not know Arsenault

would testify against him, and in fact believed that Arsenault would

corroborate his story. However, the only "fact" relevant to the

enhancement, in the Canada sense, is whether Walker knew that his

testimony was false. In other words, if Walker knowingly lied under

oath, he committed perjury, which must be punished by an enhanced

sentence under Dunnigan. Whether the perjury is discovered or not,

whether the defendant is aware that it may be discovered, or even

whether the defendant is misled into believing that it will not be

discovered (as may be the case here) is entirely irrelevant to the

basis for the enhancement, which was the concern in Canada.3

3 It is of course possible that because Walker thought
Arsenault would agree with his testimony, he came to believe the
perjured testimony himself. This scenario, however, would not change
the fairness of the sentencing hearing, but would merely mean that
Walker lied unconsciously, or unknowingly. By remanding to the
sentencing court for a finding of perjury (or no perjury) we would
leave the court open to make such a determination.

The majority makes a good point in noting that defense counsel may
have relied on an admittedly false statement by Arsenault in presenting
Walker's testimony. First, I note that the district court did not view
such a misrepresentation to the defense as actionable, commenting that
"as regrettable as it may be, lying to a lawyer is not a new offense."
Second, although Arsenault's misrepresentation to the defense might
shield the attorney from a charge of suborning perjury, it should not
immunize Walker from his decision to commit perjury. I might feel

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 Perjury is serious business, and is accordingly a federal

crime punishable by up to five years in prison, 18 U.S.C. § 1621, or by

a two-level enhancement in sentencing, U.S.S.G. § 3C1.1 cmt. n.4(b).

Unlike the majority, I am unwilling to countenance it in this case, and

I feel that the district court only did so in error.

Although the sentencing judge suggested that a finding of

perjury would be forthcoming, he did not make an explicit finding to

that effect. "The proper resolution, in these circumstances, is to

vacate the sentence and remand to the district court 'to make findings

to support all the elements of a perjury violation,' or to articulate

clearly the elements it believes not to have been satisfied." United

States v. Tracy, 989 F.2d 1279, 1290 (1st Cir. 1993) (quoting Dunnigan,

507 U.S. at 98). Accordingly, I would remand for further findings on

this issue.

differently if the Government had in some way coerced Walker into
testifying on his own behalf, or coerced counsel into calling Walker.
On these facts, however, no such coercion occurred.

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