UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY BROWN, Defendant-Appellant.
No. 15-2243
United States Court of Appeals For the Seventh Circuit
Argued April 4, 2016 — Decided December 14, 2016
Before EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 405-4 — Ronald A. Guzmán, Judge.
I. Facts and Procedural Background
Anthony Brown was arrested for selling heroin in a hand-to-hand drug transaction on Chicago‘s west side. He offered to assist the police, telling the officers that he knew where a man named “Jimmie” stored large amounts of drugs and that he was supposed to meet Jimmie later that day. Brown gave a description of Jimmie but did not provide his last name. Brown rode with police officers in an unmarked police car to Jimmie‘s stash house. Brown then placed a monitored but unrecorded call from the police car using his personal cell phone. When a person matching the description given by Brown emerged from the house, police stopped him. They found eight baggies with approximately 1000 capsules containing 135 grams of heroin. The police later identified him as Jimmie Sessom.
Sessom was charged with possessing 100 grams or more of heroin with intent to distribute in violation of
Sessom later moved to reopen the suppression hearing to call Brown to testify. Since Brown‘s own criminal case was still pending, the parties in Sessom‘s case expected Brown to assert his Fifth Amendment privilege not to incriminate himself. Sessom proposed to the court that Brown be asked just four questions that he argued would not invade Brown‘s Fifth Amendment privilege. The questions were provided in briefs to the court and to all parties. Judge Castillo granted the motion, reopened the suppression hearing, and ordered Brown to answer over his Fifth Amendment objection.
The questioning was conducted by Sessom‘s counsel:
Q: Mr. Brown, on the evening of July 11, 2012 at approximately 7:45, were you in a car with a Chicago Police Department officer around Taylor and North Avenue in Chicago?
A: You said Taylor and North Avenue?
Q: Yes.
A: No.
Q: On the evening of July 11th, 2012 at approximately 7:45, did you identify an individual walking out of an apartment building at 1239 North Taylor Avenue —
A: No.
Q. — as someone you knew as Jimmie?
A: No.
Q: On the evening of July 11th, 2012 at approximately 7:45, did you place a phone call from a CPD officer‘s car to someone named Jimmie?
A: No.
Q: Do you recall what your phone number was in July 2012?
A: I can‘t remember.
After that hearing, Sessom pled guilty and withdrew his motion to suppress. As a result, Judge Castillo never ruled on the motion to suppress and did not make any findings on the credibility of Brown‘s answers.
Brown then pled guilty to the conspiracy charge against him. Judge Guzmán sentenced Brown. The government argued that Brown had obstructed justice by lying in his answers to those questions in Sessom‘s suppression hearing. Judge Guzmán then determined that Brown‘s “no” answers in the suppression hearing reflected Brown‘s version of the events and found that his version of events was not credible.
Judge Guzmán then “agreed with” Judge Castillo‘s preliminary view that the officers who testified at Sessom‘s suppression hearing were credible.
Judge Guzmán was “convinced that [Brown‘s] failure to accurately testify constitutes an obstruction of justice.” He found that the failure to testify accurately was intentional and imposed the two-level guideline increase for obstruction of justice under
On appeal Brown argues that Judge Guzmán did not make appropriate findings to support application of the enhancement for obstruction of justice. In our view, while Judge Guzmán made the findings required for the enhancement, he did not have a sufficient factual basis for doing so since he based those findings primarily on the interim impressions Judge Castillo announced before he had even heard Brown‘s testimony. We wonder whether a remand is likely to benefit Brown, especially in light of the below-guideline sentence and the continued credit for acceptance of responsibility (which is unusual but permissible when an obstruction enhancement applies). Still, we cannot say on this record that the error was harmless, so we remand for re-sentencing.
II. Analysis
Judge Guzmán found that Brown committed perjury by providing the three “no” answers in Sessom‘s suppression hearing. We review the district court‘s factual findings for
When applying a
We first address a legal issue about whether
If (1) 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 by 2 levels.
Could perjury by Brown in the Sessom suppression hearing meet the requirements of
The first clause in
There was a factual obstacle, though. The district court made the required findings, but did so without an adequate basis in the evidence for finding willfulness and falsity. The combination of relying on testimony before another judge and the “no” answers to quite specific and multi-part questions undermined the usual grounds that would support those findings. Recall the three key questions:
Q: Mr. Brown, on the evening of July 11, 2012 at approximately 7:45, were you in a car with a Chicago Police Department officer around Taylor and North Avenue in Chicago?
Q: On the evening of July 11th, 2012 at approximately 7:45, did you identify an individual walking out of an apartment building at 1239 North Taylor Avenue ... as someone you knew as Jimmie?
Q: On the evening of July 11th, 2012 at approximately 7:45, did you place a phone call from a CPD officer‘s car to someone named Jimmie?
Neither Brown‘s attorney nor any other counsel was permitted to inquire further as to what parts of the questions prompted the “no” answers. “The burden is on the questioner to pin the witness down to the specific object of the questioner‘s inquiry.” Bronston v. United States, 409 U.S. 352, 360 (1973) (discussing federal perjury statute,
At Brown‘s sentencing hearing, Judge Guzmán said:
On this record I find his version now of what occurred to be just not credible. It‘s not credible. The testimony by the officer, I agree with Judge Castillo, was credible, was believable. That‘s the way things happen. That‘s the way it‘s done.
When Brown‘s counsel noted the limited nature of the examination in the Sessom suppression hearing and suggested that the responses to the four government questions were not sufficient to find obstruction, the court responded:
You don‘t think it‘s clear from this record that the officers’ testimony was that your client was with him in the car, pointed out the apartment, and pointed out the defendant when he came out, and that he denied that when he testified?
After Brown‘s counsel expressed further concern that the testimony was very limited in scope and that counsel was not able to cross-examine to clarify his testimony to bolster his credibility, the court said that Brown‘s motive was:
not a great mystery. I have many defendants who come here, plead guilty, but still have one foot in their other life. These are his relationships. These are the people he did business with. These are the people who he fears. All of these reasons would be cause for him to back off and lie. It would be cause for him not to ... want to admit in open court in front of his peers, the people he was doing business with, the people
he depended upon, and the people he feared, what he actually did against them. That happens all the time. I don‘t find that unusual.
The court later said:
I am convinced that his failure to accurately testify constitutes an obstruction of justice. I think it was intentional. I think it directly contradicted the version of events as they actually occurred. It was under oath. And I find that the two-level increase for obstruction of justice is appropriate in this case. As a result of that I find that the appropriate adjusted total offense level in this case is 27....
On this record, we cannot agree. We assume that Judge Guzmán could have relied on more definitive findings by Judge Castillo that Brown had lied deliberately. We also assume that Judge Guzmán could have made his own findings if Brown‘s answers had been less ambiguous. But the fact that Judge Castillo never made findings in the Sessom hearing and never made findings about Brown‘s credibility means that Judge Castillo‘s initial impressions about the hearing could not be relied on in Brown‘s case to support an enhancement for perjury. We recognize that Brown may well have been lying before Judge Castillo, but the very specific questions and terse “no” answers in the transcript did not provide a “Brown version” of events that Judge Guzmán could rely upon to find perjury.
Brown‘s sentence is VACATED and the case is REMANDED for re-sentencing.