District Court's Pre-Trial Adminitions Regarding Potential for Perjury Enhancement "Troubling," But Not Plain Error

United States v. Ricardo, No. 05-40848 (5th Cir. Dec. 11, 2006) (Garza, DeMoss, Stewart)

Most of this opinion (which features a tractor-trailer, a black Cadillac Escalade, and roosters) is a fairly routine rejection of several defendants' challenges to their convictions for participation in a marijuana conspiracy. There is one aspect of the opinion worth highlighting, however, and that is the defendants' argument that the district court unconstitutionally chilled their right to testify at trial by admonishing them that if they testified and the jury found them guilty, they would likely be facing a §3C1.1 obstruction enhancement for perjury.

Prior to trial,

[t]he court stated, “FYI if he testifies and is convicted—if he testifies that he didn’t commit this crime and, of course, if the jury finds that he did, then I find that he perjured himself . . . . I certainly know that all the District Judges in this courthouse add an additional two points when a defendant has perjured himself by testifying to his innocence, his factual innocence, and the jury determines that the facts were contrary to what was stated from him.” Although the court acknowledged that there might be exceptions to his practice, he never gave any indication that he would conduct an independent review of the evidence.

Slip op. at 10. All three defendants elected not to testify at trial, although none of them objected to the district court's warning regarding the perjury enhancement.

Of course, the law is clear that a court cannot apply the §3C1.1 enhancement simply because a defendant testifies and the jury finds him guilty. Slip op. at 10 (citing cases). Instead, "a district court must make 'findings to support all the elements of a perjury violation' before the enhancement can be properly applied." Id. (quoting United States v. Dunnigan, 507 U.S. 87, 97 (1993)).

But plain error review strikes again:

The district court’s statements in this case came very close to the line of improperly implying that a perjury enhancement would be based entirely on the jury’s verdict without any independent findings by the court. This practice is troubling, and it could be an error under Dunnigan. We emphasize that due caution, as noted in Dunnigan and the previously cited cases, should be exercised when the district court contemplates applying the perjury sentencing enhancement. However, it is not a plain error in this case because the district court never directly stated that he would definitely apply the sentencing enhancement based entirely on the jury’s verdict. Such explanations of the application of this sentencing enhancement should, however, be clearer in the future.

Slip op. at 11 (emphasis added). The court went on to opine that even if there had been plain error, it is unlikely that the trial would have turned out any differently in light of what the court characterized as substantial evidence of guilt. The court also noted that "although Ricardo and Gonzalez stated that they wanted to testify at the trial, the record does not clearly indicate that they would have testified but for the explanation of the sentencing enhancement. Without a stronger record on this point, we find that the district court’s comments did not affect the defendants’ substantial rights." Id.