United States v. Eugene Onojaife Ogbeifun, A/K/A Charles Patrick Clemon, A/K/A Charles Patrick Clemons

HEANEY, Senior Circuit Judge,

concurring.

I believe that we should consider en banc whether a two-level enhancement for obstruction of justice is appropriate where a defendant testifies at trial and a determination is made that his testimony was not truthful. I believe such an enhancement penalizes defendants for exercising their right to testify on their own behalf.

The United States Court of Appeals for the Fourth Circuit recently made a compelling argument against assessing an obstruction enhancement under circumstances similar to Ogbeifun’s. See United States v. Dunnigan, 944 F.2d 178 (4th Cir.1991). In that case, the court stated:

It disturbs us that testimony by an accused in his own defense, so basic to justice, is deemed to “obstruct” justice unless the accused convinces the jury. The facile logic of hindsight deems such disbelieved testimony a lie; inasmuch as there is no right to lie, there is no harm in sanctioning it. Hindsight, however, does not help the accused when he must decide whether to take the stand. He already knows that he faces the possibility of conviction, and that he is much less likely to be acquitted if he remains silent, despite his right to do so and even in the face of instructions to the jury to draw no adverse inference from his silence. Moreover, the dilemma does not arise solely when the defendant is guilty; there are many reasons unrelated to guilt that may militate against testifying. Chief among these is the prosecution’s power to impeach the defendant’s credibility with prior convictions under Fed. R.Evid. 609. We cannot help but note that an innocent defendant with prior convictions must weigh the jury’s likelihood of drawing one impermissible inference (guilty silence) against another (guilt by criminal propensity) in deciding whether to testify. With an automatic § 3C1.1 enhancement added to the ante, the defendant may not think testifying worth the risk.

Dunnigan, 944 F.2d at 183-84 (cites and footnotes omitted).

The Fourth Circuit explained how the obstruction enhancement can chill a defendant’s right to testify at trial:

A defendant who stands trial has already probably passed up an opportunity, through a negotiated plea, for a lesser charge and sentence. At trial, he must choose between remaining silent, with a heavy risk of conviction, and testifying on pain of facing an enhanced sentence. At every turn, he is encouraged to forfeit his rights, and is subjected to increased punishment for refusing to do so. When deciding to testify, he is not simply “aware” of a “process” that might take his untruthfulness into account, he is (and ought to be advised by his counsel) aware that the very fact of his testifying will be used against him if he is convicted.

Id. at 184-85.

I recognize that many circuit courts have held that the obstruction enhancement may be applied to defendants who testify at trial. These courts, however, have relied on United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), a pre-guidelines cases that has little relevance to guidelines sentencing. The Grayson Court held that consideration of a defendant’s alleged false testimony at sentencing would be permissible to illuminate the defendant’s need for rehabilitation. See Grayson, 438 U.S. at 53-54, 98 S.Ct. at 2617-2618. Because the guidelines reject rehabilitation as a sentencing factor, see 28 U.S.C. § 994(k) (1988), the rationale of Grayson simply does not apply under the guidelines. Instead, an obstruction enhancement under U.S.S.G. § 3C1.1 for false testimony punishes a person for perjury without indictment, trial by jury, or proof beyond a reasonable doubt. This is a practice Grayson rejected. Grayson, 438 U.S. at 53, 98 S.Ct. at 2617; id. at 55, 98 S.Ct. at 2618 (“Nothing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the testimony of all defendants whose testimony is deemed false.”).

The Fourth Circuit recognized that Gray-son no longer applies to guidelines sentencing, and concluded that

[t]he rigidity of the guidelines makes the § 3C1.1 enhancement for a disbelieved denial of guilt under oath an intolerable burden upon the defendant’s right to testify in his own behalf. Consequently, though we affirm Dunnigan’s conviction, we remand for resentencing without the enhancement for obstruction of justice.

Dunnigan, 944 F.2d at 185. The Fourth Circuit’s comments are also reflected in the dissenting opinion of our distinguished colleague, Judge Myron H. Bright, in United States v. O’Meara, 895 F.2d 1216, 1222 (8th Cir.1990).

If guidelines sentencing is to be retained, we must make sure that the basic rights of defendants are not sacrificed. For the above reasons, I would refer this case to the court en banc.