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Second Circuit Rules Trial Judge Failed to Find Specific Intent Necessary for Perjury Enhancement, Orders Re-Sentencing

If a defendant takes the stand during a pre-trial evidentiary hearing, or during a trial, and provides testimony that is materially false, it can form the basis for a two point sentencing guidelines enhancement for obstruction of justice. In 1993 the U.S. Supreme Court in U.S. v. Dunnigan, stated that when deciding whether to apply this enhancement, the court must use the federal perjury statute (18 U.S.C. 1621) as a guide. The trial court must review the evidence and make an independent finding that material testimony was not only false but also intentionally misleading.

In a December 9, 2015 opinion entitled U.S. v. Thompson, the Second Circuit granted the Defendant’s appeal and found that the district trial judge failed to make a finding of specific intent to obstruct justice by simply adopting the general conclusions of the pre sentencing report.

When the DEA executed an arrest warrant for Thompson, he allegedly consented to a search of his home. Later he was indicted for conspiracy to possess with the intent to distribute controlled substances. Thompson challenged the search of his home seeking to suppress the digital scales and cash recovered. During an evidentiary hearing Thompson testified that the DEA agents said that if he did not consent to searching his home, his sister and girlfriend would be arrested thereby improperly coercing his consent.

The trial court found the DEA agents testimony more credible and found the consent was voluntary. Thompson was convicted after a jury trial. The pre sentence report recommended a two point enhancement for obstruction of justice based upon Thompson’s testimony at the pre-trial suppression hearing. The PSR reasoned that the court found Thompson’s testimony was “equivocal, inconsistent and contradictory” than that of the DEA agents. Thompson objected to the enhancement but the district court judge simply stated that “I think the PSR accurately has calculated the guideline range”

The Second Circuit had previously ruled in 2005 that before applying on obstruction enhancement the court must find by a preponderance of the evidence that the defendant willfully and materially committed perjury in U.S. v. Agudelo. The Court stated “In other words, before imposing the adjustment, the district court must find that the defendant consciously acted with the purpose of obstructing justice.”

A district court cannot satisfy Dunnigan simply by adopting the PSR’s conclusory statements that the defendant committed perjury. If the court wishes to make its required findings from the PSR it must set forth “reasonably detailed findings in support of its conclusions.” The district judge in Thompson failed to adhere to Dunnigan and therefore Thompson’s case was remanded for re-sentencing.

 Barton W. Morris, Jr.

About the Author: Barton Morris practices federal criminal defense in Michigan. He is a 2011 graduate of the Trial Lawyer’s College and the only Michigan attorney designated by the American Chemical Society as a Forensic Lawyer-Scientist. More information about Barton Morris can be found on his website,

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