*1 оp- present Corps with but two would on these em- place
tions: more restrictions UNITED STATES of America requiring them “to remain ployees, such as they are at a state of readiness” while (a/k/a Don A. THOMPSON John 551.431(a)(2)(iii)), {id. thereby quali- home Shellington), Appellant. F. status; fying standby pay drop them for beeper plan altogether. No. 91-3091. Authority’s response is that under The Appeals, States Court of regulation Corps has rather wide District of Columbia Circuit. designate employees discretion status, place standby point Argued wishes Feb. 1992. AFGE, Corps deny. does not Council 8,May Decided Locals, Corps 39 F.L.R.A. at Marine impediment 781. There is thus no
Corps’ imposing employees carrying
beepers whatever additional restrictions qualify compensa-
are needed to them for presumably
tion. Those restrictions would
enhance, from, rather than detract
Corps’ ability get workers back to the
job Authority con- short order. As the
cluded, does not 5 C.F.R. 551.431 bar
Corps agreeing propos- from to the union’s simply beeper program
al. It makes the costly Corps
more for the and more oner-
ous, lucrative, Corps’ but more em-
ployees. increasing
As to the effect of the cost of beeper prоgram, one sentence in the
Corps’ asserts that the economic bur- brief
den would be “substantial.” Brief for Peti-
tioner at 27. Even if this were a valid
point, but Fed’n see American Gov’t FLRA, Employees v.
(D.C.Cir.1986) curiam), Corps has up any supporting
not backed it with data. Corps Authority explains why. objection raised this in the adminis-
never proceedings. therefore would
trative
not consider it in event. EEOC v.
FLRA, 19, 23-24, 476 U.S.
1680-1681, (1986) (per cu-
riam). Authority
The decision of the proposal subject
union’s to collective
bargaining Corps’ peti- and the is enforced is denied.
tion for review *2 for assistance radioed Stone
tions. Officer Thompson and several to arrest order scene, was an which came to officers them, he spotted Thompson alley. When he had been paper bag the brown tossed tried nearby and bushes some holding into leave. Thompson, arrested the officers After sixty- in it found bag and they retriеved the containing cocaine bags each ziplock four person Thompson’s A search base. was Thompson in cash. up $297 turned base cocaine charged possession with with distribu- and intent to distribute with feet base, within 1000 both cocaine tion of 21 U.S.C. school. See public 845a(a). (b)(1), 841(a)(1), §§ tes- arresting officers trial one At only person was the Thompson that tified body detailed matched the alley who by the (appointed Carey Wall David Stone description Officer clothing and Court), appellant. for arrest, Subsequent to the given them. had Atty., with Herring, Asst. U.S. A. Albert Thompson as the himself identified Stone R. Atty., John Jay Stephens, B. whom drugs. At selling he had observed man Yannett, Asst. Fisher, Bruce E. again identified trial, Officer Stone brief, appellee. for on Attys., were as the vendor. son WILLIAMS, D.H. WALD, Before identi- was mistaken Thompson's defense GINSBURG, Judges. playing he been had He testified ty. leading alley courtyard chess by Circuit filed the Court Opinion for but had had occurred drug sales where D.H. Judge GINSBURG. certainly had not alley and in the been not and four His sister selling drugs. been Judge WALD. by Circuit Dissent in his defense testified also witnesses other Judge: GINSBURG, Circuit D.H. part of corroborating trial, some each (For example, convicted his appellant had been Thompson’s After offenses, just en- him drug given $250 she had sаid that various sister that he ground arrest; friend said his sentence one days hanced before two appellant Thompson falsely at trial. playing chess with had testified had been he sales, “sim- another drug was that his trial of the during the time contends not thus guilt” and was the Thompson discarded ply bag a denial purpose of him a bever- perjury brought as had she be treated one store.) We conclude enhancing nearby his sentence. from a age judge’s decision district guilty on all Thompson found improper. sentence appellant’s recom- Office The Probation counts. Thompson’s enhance court that the mended BaCkground I. obstructing levels for two offense testimony and perjured by giving justice appellant watched Mark Stone Officer Section others. suborning the high-powered through Thompson Don (Nov. Sentencing Guidelines hours, during three (7x50) binoculars increase the judge to a trial instructs ap- engaged in what Thompson which time if: by two level drug transac- offense separate eight to be peared the defendant obstructed or im- court should not have had firma conviction peded, attempted impede, or obstruct lied.” [he] administration of the in- disagree read vestigation, prosecution, ing of face, the Guidеlines. On its *3 the instant offense.... does not require that a defendant’s false According 3(b), Note testimony implausible or particularly “committing, suborning, attempting flagrant. Rather, [and] the sentencing judge perjury” among suborn are only need find that the defendant conduct that warrant an enhancement for committed, suborned, attempted to su justice. obstruction of born perjury in justice. order to obstruct admonition in Note 1 to hearing argument After on the enhance- evaluate the defendant’s testimony “in a issue, Judge ment Lamberth determined light most favorable to the ap defendant” although he did not believe the testi- parently raises the standard proof— sister, Thompson’s he could not “preponderance above the of the evidence” Thompson conclude that had suborned her applies standard that to mоst other sen perjury. hand, to commit On the other tencing determinations, see United States only determined not Thompson Burke, v. (D.C.Cir. 888 F.2d testify untruthfully” has, “did but “that he it does require proof not fact, in justice” obstructed thereby. Ac- —but something more than ordinary perjury. To cordingly, he enhanced limit only enhancements to cases of inter by tence two offense levels. nally contradictory testimony flagrant Analysis II. lying permit only —or when nо reasonable trier of fact could have appeal, Thompson On “submit[s] found other than that the defendant lied— simply was a denial of [his] merely would be polished reward the guilt” refuge and seeks in Note prevaricator punishing while those less 1 for Guideline which cautions: practiced in deception. the art of We do provision is not intended to not think that the contemplate Guidelines defendant for the exercise of a constitu- this distinction degrees between different tional A defendant’s denial of lying. of willful (other guilt guilt than a denial of perjury) oath that constitutes ... is not a Thus, court must de application
basis
provision.
for
of this
(1)
termine whether the defendant testified
the defendant’s
(2)
falsely,
fact,
as to a material
testimony and statements should be eval- willfully in
justice,
order to obstruct
uated
most favorable tо the merely inaccurately as the result of confu
faulty memory.
sion or a
See
U.S.C.
Citing
1621;
Jordan,
cases
each of which an enhance
see also United States v.
imposed
(7th
(false
ment was
after the
Cir.1989)
defendant’s
jury verdict material fact as to a oath were der because jus attempts to obstruct willful and were a doubt judge entertains op.”) at 1071- (“Maj. (court opinion 29(a) shall Majority tice. Fed.R.Crim.P. liеd. Cf. Lozoya- See, insuffi- e.g., United States evidence is acquittal “if direct conviction”). do not Morales, sustain cient however, whether Husky, 924 F.2d as to 1991); opinion, States United express all, error; Cir.), after be an 223, 224-25 it would says go to the L.Ed.2d 81 to let case decision guilt find jury could Martinez, only a reasonable (1991); States United doubt, a rea- not that a reasonable Cir.1991); beyond (1st *4 agree. necessarily judge would 1537, 1540-41 sonable Beauliеu, — U.S. —, Cir.), cert. story, us, Thompson’s In the case before (1990). My col complete bar believed, have been would if however, on the disagree, I leagues and implau- wildly Although not to conviction. for the mandate the Guidelines standard that sible, in fact believe jury did not finding. make that judge to beyond a reasonable story; they concluded Judge lying. Thompson was that doubt provided of Guidelines The drafters the sen- stated at unequivocally Lamberth is intend- “Commentary” to § he found hearing tencing explain guideline or interpret “to ed of and an obstruction testimony untruthful see U.S.S.G. applied,” is to be how justice. Commentary in rele- states IB 1.7. § part: vant we owe the deference of Mindful court, sentencing see is not findings of the 1. This provision Application Note sentence, (in reviewing a 3742(e) for the U.S.C. a defendant § accept the apрeals shall ... of A de- court exercise of a “[t]he unless district court findings (other of fact of the than a guilt of denial fendant’s erroneous”), we conclude clearly they are that consti- guilt under oath denial of to enhance not error appli- that it was ... is not basis perjury) tutes offense levels by two son’s sentence In provision. cation of this Accordingly, the justice. of obstruction alleged false testi- respect to provision court the district imposed by defendant, such by the mony made ... in a evaluated should be ... Affirmed. the defendant. light most favorable dissenting: WALD, Judge, Note treats appli- by the defendant proper alleged perjury puts in issue on This case based on Sen- the United States enhancements based differently 3C1.1 from cation of § testimo- witnesses, doc- destruction Guidelines to tencing corruption The Guideline trial. obstruction uments, at ny by a defendant or other by preponder- find reads: where evenhanded- ance, evaluating the evidence Impeding Obstructing or § In the occurred. the obstructions Justice ly, Administration the de- an enhancement case willfully obstructed If testimony, the Com- alleged false or im- fendant’s attempted to obstruct impeded, oi; lan- instead on the mentary draws administration pede, the for а directed verdict: guage used investigation, prosecution, offense, increase directed ver- tencing of the instant denial of a reviewing 2 levels. is the same apply level dict, the offense we the standard consid- court by a district applied as that colleagues agree that My instance. in the first motion ering the jury’s rely solely judge cannot light most evidence Viewing the a sentence verdict pаrty, we non-moving specific' 3C1.1; she make § must ask ourselves whether no juror reason- reasonable could find plain- able in its tiff because of the inherent incredibility of find favor. testimony, his must direct a ver- Harbor Ins. v.Co. Schnabel Foundation dict for the Co., defendant. Thus (D.C.Cir.1991) adoption (citing of the “no Columbia, person” Klein v. District directed ver- (D.C.Cir.1969)) added); dict (emphasis standard to a sentencing enhancement Wright see also Charles A. determination of whether the defendant & Arthur R. Miller, Procedure, perjury committed altogether trial is Federal Practice & (1971 Supp.1991). 2524 at 545-46 I § reasonable. similarly believe that requires My colleagues worry that to interpret viewing find that the testi- broadly Note more in order to most favorable to the de- limit the applicability of 3C1.1 to fendant, no reasonable trier of fact could testimony, “would be to re- find other than had been com- polished ward the prevaricator pun- while mitted. ishing practiced those less in the art of parallel language used in deception.” Maj. op. at 1071. But that 1Note 3C1.1 and in the directed ver argument assumes the answer to the crit- Indeed, dict standard was not coincidental. *5 question. ical question is not whether Eighth the prop has ruled that the punish to degrees “different of willful ly- application er 3C1.1 to defendant’s ing,” id., by but what standard to decide in testimony requires the sen place the first whether a defendant has in tencing judge to find that no reasonable fact lied. Under the de- trier could have found the testimo of fact perjurer fendant is declared a pun- and his ny Willis, truthful. See United States v. substantially ishment is enhanced on the (8th Cir.1991) (“No sentencing judge determination of the only. imposed enhancement shоuld be based on It enormously important is under what the defendant’s if a reasonable sentencing strictures the judge makes that trier of fact could find the testimony decision. Note 1 admonishes true.”); O’Meara, v. 895 — judge the not to the defendant for (8th Cir.), F.2d exercising his right testify to —, defense, in provides his own and further J., (Bright, concurring part in judge standard which the is to the (same); view dissenting part) in see also United defendant’s Seabolt, should he chоose to States v. curiam) take the stand: she is to evaluate his testi- (upholding sentencing light “in a most to per “no reasonable favorable” the standard). son” majority appears agree defendant. The to that this instruction “raises the standard of analogy to the directed verdict stan proof,” Maj. op. at then but declines in might dard used civil cases at first blush through any meaningful to follow with cri- inapposite sеem in a criminal case. Under applying higher teria for the standard of Guidelines, however, the virtually all sen proof testimony. to It af- tence enhancements or reductions are in solely upon firms the enhancement based fact determined “preponder under the civil “unequivocal yet the subjective view of ]” And, ance of the evidence” standard. al sentencing judge. the The “in a most though credibility gеn determinations are language surely require favorable” erally left to the in civil as well as Perhaps, more than that. had the Guide- cases, deciding criminal in a mo judges lines told to evaluate the tion for a directed verdict at the close of testimony “favorably” or “in evidence, must make a threshold as light,” upon this reliance plaintiff’s sessment of the truthfulness of a Dow, judge’s subjective might proper. testimоny. David belief Judicial Determi farther; they significantly, nation Credibility Jury-Tried But went Ac tions, (1959). 38 Neb.L.Rev. If drafters borrowed a standard familiar to higher standard testimony. The on trial stan- admittedly high judges: trial all mis- against safeguard extra provides an could believe trier “no dard of For if the directed judge.2 takes a trial required before otherwise” employed, standard verdict a verdict.1 can direct just sub- evaluate against drafters wrotе The Guidelines beliefs, but according her own to jectively of an backdrop of the effect troubling any reasonable to whether objectively as defen- arising of a out penalty enhanced believed could have trier his con- testimony on the exercise dant’s greater provides as- higher de- testify in his own stitutional may take he to a defendant Note to surance Indeed, fense. subject- being tеstify without the stand it is not states specifically having done punishment for enhanced con- ed and it is that right, penalize that of crime who accused persons all Not so. believe, impelled the drafters cern, I perjury. And even commit testify at trial higher standard consciously set truthfully are testify who defendants some enhancement imposing an judge in justice at hear- that he obstructed inter Admittedly, other circuits havе several The court ing the enhancement. consist 1 in a manner avoid preted Application Note See, e.g., meaning Unit position. give majority’s purport to the definitive ent with the did not (1st Akitoye, F.2d v. Note 1 to a defendant’s ed States Cir.1991); 603, effect of United States later "clari- The Commission Cir.1990); Barbo United States operation amend- §of 3C1.1” fie[d] (9th Cir.), cert. de sa, 1: Application Note ment nied, L.Ed.2d defendant’s tes- (1990). havе relied courts All of these be evaluated timony and statements United States Circuit decision the Fifth *6 defendant. light to the a most Cir.1989), 797, Franco-Torres, 801 from a further resulted present version Application Note 1 the court ruled in which "simply necessary clarify amendment, proved to which sentencing judge to resolve the instructs light a heightened protection of the "in about those conflicts the defendant in favor оf language was intended cover favorable” most only evidence, weighing judge, after Again, testimony. this trial the defendant’s F.2d at 800. 869 no firm conviction.” has no substantive latest amendment case, en an revealingly, not itself involve did precisely the mean- change, state[d] but “more testimony. These oth trial false hancement er circuits applied commentary.” ing this of perfunctorily somewhat that have testimony аp 3C1.1 § contexts, Supreme variety Court dis 2. In crucial distinction parently overlooked the protections judge's procedural when required between 1 extra Note cussed e.g., and evaluating See Cali significant are at stake. interests role in justice. See obstruct conduct that Santa Cooper Bros. Ana other v. Mitchell ex rel. fornia 173, Capps, 172, 90, 93, 952 1026 States v. 70 Theater, 102 S.Ct. U.S. 454 1991). curiam) (collecting (1981) L.Ed.2d 262 decisiоn, it convincing” of the At time Franco-Torres evidence and “clear cases where the light most libel, the "in a favorable" clear that including deportation, was not applied, standard is only apply a defen- language was intended also, Santosky denaturalization). See and Franco-Torres, In 1388, dant's Kramer, 71 L.Ed.2d U.S. 455 police when allegedly at officers shot defendant parental (1982) (grounds for termination 599 him, to hide and tried they attempted to arrest convincing" and rights proven "clear must be government asked crime. The of the evidence Texas, evidence); Addington 441 obstructions for enhancements S.Ct. sentencing hear- theAt those actions. based on proven be (grounds commitment for civil and the stand denied ing, took the defendant evidence); Mullaney convincing” and "clear argued that allegations, thеn and obstruction Wilbur, S.Ct. language in the light most favorable” the "in Commentary required "beyond (1975) (requiring proof L.Ed.2d 508 in his to find passion the absence reasonable doubt" 1 read: Application Note that time At favor. trial); Specht v. provocation in murder sudden suspect 1209, 1212, 605, 610, Patterson, 386 U.S. light be evaluated and statements (1967) (requiring “procedural L.Ed.2d 326 most favorable hearing trial-type before state safeguards" of court, the "in а predictably, ruled that separate under may impose increased help the language could not most favorable" Act”). circumstances; other- "Sex Offenders under those defendant deny wise, plausibly could defendant who Defendants, of these as to whether his sentence aware will be more convicted.3 facts, to refrain from testi- likely are more severe because he has his Fifth exercised fying, if is no obstacle to their receiv- there Amendment I find it difficult to after conviction ing greater punishment believe that the Guidelines intended that percep- solely upon judge’s own testify the fundamental in one’s A re- they have lied. tion that own defense should be left so vulnerable to subjec- than the mere quiring more prosecutor’s judgment and the trial hand, belief, on the other lessens to tive judge’s subjective I beliеf. think it was deterrent effect of degree the inherent intended to an unusual rather than a enhancements. § enhancement, ap- routine sentence to be plied only
Finally, reality of how 3C1.1 works when no trier practice to enhance a defendant’s conclude other than that the defendant had against begrudg- should caution too tence perjured Only in way himself. can the ing interpretation Note 1. “light most given favorable” instruction be An is not increased sentence any substantive effect. discretionary option for a I would therefore vacate prose- If the judge under the Guidelines. sentence, require the district an enhancement cutor moves for because determine on remand that no reasonable alleged perjury, must decide trier of fact could have believed the defеndant testified untruthful- whether enhancing son’s before his sen- ly. judge personally If the believes the tence under 3C1.1. trial, majority’s lied under the no choice to enhance the rule she has but
sentence, regardless of how close a call she question.4 make to resolve the matter, then, every practical
As a defen- puts
dant who chooses to take the stand mercy prosecutor
himself at the judge’s subjective view of the evidence 41, 57, Contreras, (7th Cir.1991); Grayson, See United States v. 438 U.S. States v. 2610, 2619, (1978) (Stew- Batista-Polanco, L.Ed.2d 98 S.Ct. art, J., *7 Matos, (1st Cir.1991); dissenting) (noting inhibiting effect United States v. 907 F.2d 274, testify by (2nd Cir.1990); on exercise of "defendant's Barbo United States v. sa, 1366, Cir.), truthful will be rational fear that his cert. de 906 F.2d false"). 394, nied, U.S. —, perceived as 111 S.Ct. 112 L.Ed.2d (1990); United States v. (11th Cir.1990); United States v. 604-05 It was the "wooden and reflexive” nature of —U.S. denied, (10th Cir.), Keys, F.2d 983 cert. the Fourth Circuit to hold un- § 3C1.1 led (1990); alleged perjury Acosta-Cazares, United testimony, States see based on the (6th Cir.), Dunnigan, 944 F.2d (1989). (4th Cir.1991) The constitu (citing Grayson, 438 U.S. at Willis, 2610). tionality applied as United S.Ct. at But see (8th Cir.1991); not been raised this defendant.