United States v. Albert Andrews, III

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4422
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
ALBERT LEE ANDREWS, III,
Defendant − Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00117-NCT-1)
Argued: September 15, 2015 Decided: October 30, 2015
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Motz and Judge Keenan joined.
ARGUED: Kearns Davis, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Greensboro, North Carolina, for Appellant.
Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee. ON
BRIEF: W. Michael Dowling, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Greensboro, North Carolina, for Appellant.
Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee.
WILKINSON, Circuit Judge:
Petitioner Albert Lee Andrews challenges here the
imposition of a U.S.S.G. § 3C1.1 enhancement for obstructing the
administration of justice. The district court applied the
enhancement against the defendant for knowingly presenting false
testimony at his trial. Inasmuch as the court’s finding of
obstruction was not clearly erroneous, we affirm the imposition
of the enhancement.
I.
In the early morning hours of March 27, 2011, Andrews
entered a Domino’s Pizza store in Kannapolis, North Carolina
armed with a handgun. He ordered an employee at gunpoint back
into the office where the manager was working and demanded that
the manager open the store safe. When he was told the safe was
empty, Andrews stole money from the cash register and from two
employees, as well as the manager’s wallet. During the
encounter, he pointed his gun at Domino’s personnel and
threatened to shoot on two occasions.
The manager immediately reported the robbery. While
searching for Andrews, a police officer found an abandoned
automobile that had run off the road and hit two other vehicles.
He recovered two wallets from the car, one belonging to Andrews
and the other to the Domino’s manager. The vehicle also
contained a cell phone with photos of Andrews’ family, a traffic
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citation issued to Andrews, and a bill of sale showing that
Andrews owned the vehicle. The cell phone record listed calls
made and received in Kannapolis at the time of the robbery.
Finally, the officer found a baseball cap that fitted the
description of that worn by the robber and was shown through DNA
analysis to belong to Andrews.
Andrews was charged with interference with commerce by
robbery under 18 U.S.C. § 1951 and carry and use of a firearm
during and in relation to a crime of violence under 18 U.S.C.
§ 924(c)(1)(A)(ii). The defendant pled not guilty and invoked
his right to a jury trial. He filed several pro se motions, one
of which accused prosecutors of intimidating potential witnesses
and blocking their testimony. Prior to trial, he submitted a
notice of alibi and a brief describing the alibi testimony.
During his opening statement, Andrews’ attorney identified two
alibi witnesses: Jerrika Hunter, Andrews’ girlfriend, and her
mother, Monica Moffet. His counsel went on to preview the alibi
testimony that each witness intended to give. At trial, Hunter
and Moffet testified that Andrews was at their home on the night
of the robbery. Another witness, Brandi Lark, the mother of one
of Andrews’ children, testified that he had visited her home
during the night in question and told her that he had robbed a
Domino’s pizza store. Andrews chose not to testify. The jury
found him guilty on all counts.
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Upon reviewing Andrews’ sentence, this court ruled that he
no longer qualified for sentencing as a career offender, vacated
his sentence, and remanded for resentencing. United States v.
Andrews, 547 Fed.Appx 248 (4th Cir. 2013). Upon remand, the U.S.
Probation Office issued a Memorandum that calculated Andrews’
total offense level as 22. The government then requested a two-
level enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1. A revised Memorandum added the enhancement as
requested, increasing the total offense level to 24. Andrews
objected to the two-level enhancement for obstruction.
The district court found sufficient evidence to support the
obstruction enhancement. The court stressed that Andrews knew
that his attorney was going to present Hunter and Moffet as
alibi witnesses. Given his regular communications with his
attorney, Andrews must have been aware of the substance of
Moffet and Hunter’s testimony before trial. Andrews’ prior
knowledge of the false testimony and subsequent silence during
trial, the court stated, amounted to obstruction of justice:
[W]hen a defendant sees somebody take the stand called
by the defendant’s lawyer and realizes that person is
not telling the truth, that is absolutely telling
something that is untrue, whether that defendant in
sitting silently and ‘allowing that to proceed,’ takes
a part in trying to deceive the Court. . . . [I]n this
case, that’s not all of it, because those witnesses
testified one after the other. Mr. Andrews watched and
heard the testimony of one provide false alibi
evidence and sat there while the second was being
called, which even if he had not been aware of the
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alibi information a week before, or the trial brief,
which it stretches the imagination to think that he
was not aware of it, he understood somebody was being
called knowingly for the purpose of giving false
information, all of which was being offered for the
purpose of deceiving the jury into believing there was
a reasonable doubt as to his whereabouts on the night
of the armed robbery.
J.A. 39. The court resentenced Andrews to 115 months
imprisonment on one count, 84 months consecutive on the other,
and five years of supervised release. This appeal followed.
II.
A.
The sole issue before us is the propriety of the
enhancement for obstruction of justice. U.S.S.G. § 3C1.1 sets
forth in rather broad language the enhancement’s scope:
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 commentary to § 3C1.1 lists many examples of covered conduct
of which subornation of perjury is one. U.S.S.G. § 3C1.1, cmt.
n.4. The commentary then notes further that the above list is
“non-exhaustive.” Id. Finally, application note 9 of the
commentary enumerates several ways in which a defendant can
participate in the obstruction of justice: “[T]he defendant is
accountable for the defendant's own conduct and for conduct that
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the defendant aided or abetted, counseled, commanded, induced,
procured, or willfully caused.” U.S.S.G. § 3C1.1, cmt. n. 9. The
government bears the burden of proving the facts supporting the
enhancement by a preponderance of the evidence. United States v.
O’Brien, 560 U.S. 218, 224 (2010).
In United States v. Dunnigan, the Supreme Court instructed
district courts to establish “all of the factual predicates” of
perjury when finding obstruction of justice on that basis. 507
U.S. 87, 95 (1993). Following that language, this court has
reversed sentencing enhancements under § 3C1.1 where the
district court failed to find a required factual element of
perjury and provided no other basis for the enhancement. E.g.,
United States v. Perez, 661 F.3d 189, 193-94 (4th Cir. 2011)
(faulting the district court for failing to find willfulness);
United States v. Smith, 62 F.3d 641, 646-47 (4th Cir. 1995)
(finding the court below erroneously applied the enhancement
without any specific factual findings). While the broader
Guidelines language and commentary certainly suggest that
obstruction of a trial may take other forms than subornation of
perjury, that language in no way lessens the district court’s
obligation under our case law to find facts on the critical
component of § 3C1.1, namely a willful obstruction or impediment
of the administration of justice. Therefore, the enhancement is
warranted if the court below made a proper finding of
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obstruction even if it did not specifically find subornation of
perjury.
Many of the purposes animating separate prosecutions for
perjury also underlie sentencing enhancements for perjurious
obstruction. See Dunnigan, 507 U.S. at 97-98. In fact, the
obstruction enhancement of § 3C1.1 may be seen as an
intermediate option between condoning patently false testimony
altogether and undertaking separate prosecutions for perjury,
which both drain prosecutorial resources and raise special
difficulties of proof. The Supreme Court has underscored this
relationship between the obstruction enhancement and prosecution
for perjury:
A sentence enhancement based on perjury does deter false
testimony in much the same way as a separate prosecution
for perjury. But the enhancement is more than a mere
surrogate for a perjury prosecution. It furthers
legitimate sentencing goals relating to the principal
crime, including the goals of retribution and
incapacitation. It is rational for a sentencing
authority to conclude that a defendant who commits a
crime and then perjures herself in an unlawful attempt
to avoid responsibility is more threatening to society
and less deserving of leniency than a defendant who does
not so defy the trial process.
Dunnigan, 507 U.S. at 97 (citations omitted).
For the obstruction enhancement to function in this
intermediate role and serve the purposes outlined by the Court,
the district courts must be afforded adequate discretion in
their fact-finding capacity. See Dunnigan, 507 U.S. at 95
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(treating the basis for obstruction of justice as an issue of
fact left to the sentencing judge). District courts hold an
especial advantage in fact finding where the sentencing
enhancement is based upon testimony or trial proceedings that
they have personally observed. See Gall v. United States, 552
U.S. 38, 51-52 (2007); United States v. Bumpers, 705 F.3d 168,
173-74 (4th Cir. 2013). Of course, the advantages that district
courts enjoy in their fact-finding capacities impose the
concomitant obligation to actually find the facts necessary for
meaningful appellate review. Where the enhancement for
obstruction of justice is based on a defendant’s perjurious
testimony, trial court findings should encompass “the factual
predicates” for perjury, namely that the defendant “(1) gave
false testimony; (2) concerning a material matter; (3) with
willful intent to deceive.” Perez, 661 F.3d at 192 (quoting
United States v. Jones, 308 F.3d 425, 428 n. 2 (4th Cir. 2002)).
Issues of law do often arise in sentencing, and the
standard of review for such issues is obviously de novo. But to
routinely transform the fact finding and sentencing discretion
at the heart of a sentencing enhancement into broad matters of
law risks adopting an aerial perspective in circumstances where
the ground level view may prove the more valuable. As the
Supreme Court noted in Miller v. Fenton, “the fact/law
distinction at times has turned on a determination that, as a
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matter of the sound administration of justice, one judicial
actor is better positioned than another to decide the issue in
question,” and close calls should be resolved “in favor of
extending deference to the trial court[s]” where they hold the
institutional advantage. 474 U.S. 104, 113-15 (1985).
B.
In this case, the district court did not make an explicit
finding that Andrews procured his alibi witnesses’ false
testimony, a finding that would have been necessary to support
each element of perjury. What it did do, however, was rest the
enhancement upon the very essence of § 3C1.1 -- the willful
obstruction of justice. As we noted, the enhancement can rest on
this broader ground.
Under the facts and circumstances here, we can find no
clear error in the district court’s imposition of the
enhancement. As recounted above, the court below found
overwhelming evidence that placed Andrews at the scene of the
crime in Kannapolis. Of course, courts should not assume that
any defendant who attempts to rebut substantial adverse evidence
is a candidate for the obstruction enhancement. But in this
case, the extensive evidence against Andrews served to fortify
the district court’s firm conviction that the alibi testimony
from Andrews’ girlfriend and her mother placing him in Charlotte
9
-- the lynchpin of Andrews’ defense -- could only have been
patently false. J.A. 38-41.
Nor can there be any doubt that Andrews was aware well in
advance that his alibi witnesses were planning to present false
testimony. That testimony was repeatedly highlighted in the
notice of alibi, in the trial brief, and in counsel’s opening
statement. Even if his attorney had somehow kept him in the
dark, which is hard to imagine, Andrews also filed a pro se
motion accusing the prosecution of intimidating his witnesses,
including one alibi witness, and blocking them from testifying.
He presumably knew the substance of the testimony that his
motion sought to protect. Finally, as the district court noted,
the alibi witnesses “testified one after the other.” J.A. 39. In
the highly unlikely event that the first alibi witness surprised
Andrews, the second certainly did not. All of the above
convinced the district court that the defendant was intimately
connected with an effort to present the jury with a whopping lie
as to his whereabouts on the night of the robbery, or as the
trial court described it, an elaborate deception for which there
was no innocent explanation.
It is true, of course, that Andrews did not take the stand
and personally perjure himself. But the district court’s finding
that Andrews knowingly presented and likely actively
orchestrated the presentation of false testimony was not only
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supported by abundant evidence, but also fell squarely within
the conduct for which the defendant is expressly held
responsible, namely “conduct that the defendant aided or
abetted, counseled, commanded, induced, procured, or willfully
caused.” U.S.S.G. § 3C1.1, cmt. n. 9. Imposition of the
obstruction enhancement was therefore well within the trial
court’s discretion.
III.
A.
In addition to contesting the application of § 3C1.1 on its
face, the defendant suggests that the imposition of the
enhancement penalized him for exercising his Fifth Amendment
right to remain silent, which is explicitly forbidden by the
Guidelines. U.S.S.G. § 3C1.1, cmt. n. 2. Andrews suffered no
such penalty. The fact that the dynamics of trial may present a
defendant with difficult tactical choices has not been held to
infringe that defendant’s right to remain silent. See Dunnigan,
507 U.S. at 96; United States v. Butler, 211 F.3d 826, 832-33
(4th Cir. 2000). For instance, the prosecution does not violate
the Fifth Amendment whenever damaging evidence exerts pressure
on a defendant to take the stand and offer a rebuttal. E.g.,
United States v. Zembke, 457 F.2d 110, 115 (7th Cir. 1972). If
adverse trial testimony from prosecution witnesses does not
infringe the right to remain silent, then the knowing
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presentation of false testimony from defense witnesses can
hardly be held to do so. That does not mean a defendant has
waived his right to remain silent. What it does mean, however,
is that a defendant who has countenanced the perjured testimony
of his own witnesses faces separate punishment for doing so
without infringement of his Fifth Amendment rights.
In addition to the right to remain silent, the obstruction
enhancement leaves intact the defendant’s right to present a
vigorous defense. The right to offer testimony and to call
witnesses on one’s own behalf is fundamental to our system of
criminal justice. See Nix v. Whiteside, 475 U.S. 157, 164
(1986); Washington v. Texas, 388 U.S. 14, 18-19 (1967). But that
right has never been thought to include the right to present
false testimony. Dunnigan, 507 U.S. at 96 (citations omitted).
As the Supreme Court put it, “Whatever the scope of a
constitutional right to testify, it is elementary that such a
right does not extend to testifying falsely.” Nix, 475 U.S. at
173.
Nor has there been any violation of defendant’s right to
counsel. Andrews was represented by counsel throughout these
proceedings, and Andrews does not contend that the district
court sought to probe the content of counsel’s communications
with his client. There was further no impediment to such
communication. That the district court drew inferences or
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proceeded circumstantially to conclude that Andrews well knew
his witnesses were attempting to deceive the court and jury is
not tantamount to a Sixth Amendment violation. It cannot be the
case that the imposition of a § 3C1.1 obstruction enhancement
for what happened here transgressed defendant’s constitutional
rights. Finding such a violation in these circumstances would go
some distance to nullifying the enhancement altogether.
B.
All this is not to deny a certain tension between the
exercise of the aforementioned rights and the imposition of the
obstruction enhancement. The Guidelines themselves anticipated
this tension, and the cautionary language following § 3C1.1 is
worth quoting in full:
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.
U.S.S.G. § 3C1.1, cmt. n. 2. The commentary thus makes clear
that the defendant must feel free to present a vigorous case
without fear of triggering the obstruction enhancement. See
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generally Dunnigan, 507 U.S. at 96 (acknowledging § 3C1.1’s
potential for chilling defendants’ rights); Alexandra Natapoff,
Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L.
REV. 1449, 1460 (2005) (noting the danger of using obstruction
enhancements to deter defendants from testifying). Recollection
is by nature an imprecise and uncertain exercise, and faulty
recall is far different from deliberate deception. Here,
however, the district court properly applied the enhancement to
safeguard the integrity of the proceedings before it. It acted
to ensure that trial retained its most basic and essential
purpose, that of reaching a true and accurate judgment at once
fair to the interests of society and the rights of those
accused. For the foregoing reasons, its judgment is affirmed.
AFFIRMED
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