My Lawyer Did Not Advise Me of the Consequences of My Perjuring Myself in My Defense

Clecker v. United States (11th Cir. 2011) (Unpublished) is a good reminder of the dangers of a defendant testifying in a criminal case. Cleckler was charged with "conspiracy to defraud the United States, in violation of 18 U.S.C. §§ 2(b) and 371 (Count 1), and corrupt or forcible interference with the administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a) and 18 U.S.C. § 2 (Count 2)." The Government presented a number of witnesses and, apparently, Cleckler's counsel advised him that he had the right not take the stand but, given the evidence, he was at high risk if he did not. If he took the stand, the jury verdict would almost certainly turn on his credibility. The jury convicted, apparently because the jury did not find Cleckler credible. At sentencing, the judge found that Clecker perjured himself and imposed the two level obstruction of justice enhancement U.S.S.G. § 3C1.1.

Cleckler sought in a Section 2555 proceeding to vacate the sentence based on ineffective assistance of counsel -- to wit, that his trial attorney had not warned or properly warned Cleckler about the potential consequences of lying as respects exposure to the sentencing enhancement for obstruction. The district court dismissed the claim but issued a certificate of appealability on the issue of "[w]whether the district court erred by denying Cleckler's claim that his attorney failed to advise him of the consequences of testifying on his own behalf at trial." On appeal, the Eleventh Circuit affirmed in an unpublished opinion. While the opinion itself may not be worthy of publication, the circumstances are worthy of practitioners' attention.  A good, quick read.

It is not uncommon in the relatively few criminal cases that actually go to trial that, at the end of the government's evidence, the defense counsel believes that the evidence, as presented, is likely to result in conviction unless a defense is mounted. Moreover, as is often the case in criminal tax cases where willfulness or some similar mens rea element is at play, the best defense would be from the mouth of the defendant that he or she did not have the required state of mind. After all, he or she is the best witness as to his or her state of mind. If he or she does not testify, a jury might well make infer something negative, even guilt, from that, even though the judge will instruct the jury that the government must prove the crime without any inferences from the defendant's failure to testify. If defense counsel makes the judgment that defendant is likely to go down if he or she does not testify, the defendant may reasonably conclude that he or she has nothing to lose by testifying. Defense counsel will caution the defendant that, indeed, he or she may have something to lose by testifying. First, defense counsel may caution that there is still some possibility of a not guilty verdict which might be disappear if the defendant testifies and the jury doesn't believe or like him or her. Second, if the defendant chooses to lie (about which defense counsel will caution him or he not to), the defendant will have committed perjury, an independent criminal offense. Third, if the defendant chooses to lie, the defendant can be awarded the obstruction of justice sentencing enhancement which is precisely what happened in Cleckler. As a result of these risks, I dare say that in most white collar crime cases, the defendant -- at least the guilty defendant -- is well advised not to testify. And, of course, even the innocent defendant may be well advised not to testify where the facts are such that the government could through cross examination obscure the defendant's innocence. That is not the way it should be, but that is the way it is -- at least in enough cases to make the decision as to whether the defendant will testify a critical one.

There is a cautionary tale here.  The better part of wisdom in a white collar crimes cases (of which tax crimes are a subset) is to put that advice in writing and have the defendant acknowledge the receipt and understanding of the advice.  Cleckler's counsel did take some precautionary measures of this genre, but that did not prevent Cleckler from alleging otherwise.