Sentencing Enhancement for Defendant Perjury at Trial (9/20/120

In United States v. Frase, 2012 U.S. App. LEXIS 19216 (3d Cir. 2012), here, a nonprecedential decision, the Third Circuit affirmed the defendant-appellee's convictions for "one count of conspiring to defraud the United States in violation of 18 U.S.C. § 371, nine counts of tax evasion in violation of 26 U.S.C. § 7201, and three counts of filing false tax returns in violation of 26 U.S.C. § 7206(1)."  The defendant appealed pro se (without benefit of an attorney).  I address only the defendant's claim that the district court had improperly applied a sentence enhancement for his perjury at trial.

The Court's analysis of that claim is:

Finally, Frase contends that the District Court erred at sentencing by applying a two-level enhancement under U.S.S.G. § 3C1.1 for perjury. "We review the factual findings underlying the District Court's perjury determination for clear error, while exercising plenary review over the District Court's conclusions of law." United States v. Miller, 527 F.3d 54, 75 (3d Cir. 2008). In United States v. Dunnigan, 507 U.S. 87 (1993), the Supreme Court instructed that sentencing courts applying the perjury enhancement must "make independent findings" for "each element of the alleged perjury." Id. at 94. The three elements are: (1) "false testimony," (2) "concerning a material matter," (3) "with . . . willful intent to provide false testimony." Id. 

Frase asserts that the District Court erred because it did not make the requisite findings of fact and because it applied the enhancement simply because the jury did not believe his testimony. A sentencing court's failure to make explicit findings, however, is not always fatal. For example, in United States v. Gricco, we instructed that "express findings" are not required if false testimony is obvious from the record. 277 F.3d 339, 362 (3d Cir. 2002) (citing United States v. Boggi, 74 F.3d 470, 479 (3d Cir. 1996)), overruled on other grounds, as stated in United States v. Cesare, 581 F.3d 206, 208 n.3 (3d Cir. 2009). After consideration of Frase's testimony, we conclude that the District Court did not err in applying the perjury enhancement. Frase's testimony that he did not know that he was liable for taxes was obviously false, as the District Court noted, in light of his extraordinary efforts over the years to conceal the funds to which he had access.

The Guideline referred to is:

§3C1.1.     Obstructing or Impeding the Administration of Justice 

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.

The Application Notes state:

2.      Limitations on Applicability of Adjustment.—This provision is not intended to punish a defendant for the exercise of a constitutional right.  A defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision.  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. 

For the complete Guideline, see here.