United States v. Claudina Benitez , 194 F. App'x 678 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 25, 2006
No. 05-13375 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00212-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
CLAUDINA BENITEZ,
a.k.a. Claudina Campo,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 25, 2006)
Before HULL and WILSON, Circuit Judges, and DUPLANTIER,* District Judge.
*
Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of
Louisiana, sitting by designation.
WILSON, Circuit Judge:
This case involves the interpretation of the United States Sentencing
Guidelines Manual, Section 2J1.3(c), which deals with sentencing for perjury
committed “in respect to” a criminal offense. The Government appeals Claudina
Benitez’s sentence, arguing that the district court misapplied the Guidelines. The
Government argues that Benitez’s perjury was “in respect to” her sister’s drug
conspiracy trial. Benitez argues that the perjury was “in respect to” her sister’s
failure to appear for the drug conspiracy trial. The district court agreed with
Benitez, adopted the probation officer’s presentence investigation report (“PSI”),
and sentenced Benitez to a year and a day followed by three-years supervised
release. Because Benitez admitted in her plea that she made material lies about a
matter before the court, and because the matter before the court was the drug
conspiracy trial, we find that the perjury was “in respect to” the drug conspiracy.
I. B ACKGROUND
Benitez’s sister, Maria Garcia, was charged with conspiracy to distribute 100
kilograms of cocaine. Garcia was released on the condition that she attend the trial
with Benitez acting as third party custodian. Both Garcia and Benitez traveled by
bus from Houston, Texas to Mobile, Alabama for the trial. They also attended the
first day of trial together, although Benitez was excluded from the courtroom
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because she was to testify at the trial.
The night before the trial’s second day, Garcia fled from Mobile to Houston
via a taxi cab. Benitez, when questioned the next day about Garcia’s whereabouts,
stated that she did not know where Garcia was. She made these statements under
oath to the judge before trial commenced that morning and again later in both her
direct and cross examination, while testifying as a Government witness. The trial
continued in Garcia’s absence because the trial judge determined from Benitez’s
statements that Garcia left voluntarily. Before testifying about Garcia’s
whereabouts as a Government witness, Benitez testified truthfully for the defense
about issues having a direct bearing on the drug conspiracy offense.
Garcia was later arrested in Houston. When the authorities interviewed the
taxi cab driver who drove Garcia from Mobile to Houston, he identified Benitez as
helping Garcia negotiate the Houston fare the night that Garcia fled Mobile. A
grand jury later indicted Benitez on five counts: perjury (Counts 1-3), aiding and
abetting failure to appear (Count 4), and accessory after the fact (Count 5), in
violation of 18 U.S.C. §§ 1623(a), 3146(a), 2, and 3, respectively. Benitez pled
guilty to all of the charges.
At sentencing, the counts were grouped together in the PSI because they
involved “two or more acts or transactions connected by a common criminal
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objective or constituting part of a common scheme or plan.” U.S. Sentencing
Guidelines Manual § 3D1.2(b) (2004). The PSI noted that, pursuant to § 3D1.3(a),
the offense level applicable to the group was the offense level for the most serious
of the grouped counts, or in other words, the count which provided for the highest
offense level. Count 4 (aiding and abetting failure to appear) yielded the highest
offense level of the counts in the group and was used for the group’s offense level.
After making the appropriate adjustments, the total offense level was 13, which
yielded a sentencing range of 12-18 months after accounting for Benitez’s
Category I criminal history.
The Government objected to the offense level calculation arguing that the
perjury counts yielded the highest offense level. The Government argued that the
perjury occurred “in respect to” the underlying drug conspiracy trial, not Garcia’s
failure to appear. It reasoned that although the perjury concerned the failure to
appear, Benitez’s sworn denial of prior knowledge of Garcia’s flight made her a
more credible witness and thus bolstered her testimony that directly related to
Garcia’s drug conspiracy offense. According to the Government, the correct
offense level should have been 28 which would have yielded a sentence ranging
from 78 to 97 months after accounting for her criminal history.
The district court rejected the Government’s arguments and found that
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Benitez’s denial of knowledge about her sister’s flight did not enhance her
credibility. The district court also found that, except for the testimony about the
flight, Benitez’s testimony was true and that false testimony about flight could not
have led to a miscarriage of justice.
II. S TANDARDS OF R EVIEW
We review de novo the sentencing court’s choice of the appropriate
guideline to apply to a factual scenario and its legal conclusions interpreting the
Guidelines. See United States v. Miranda, 348 F.3d 1322, 1330 (11th Cir. 2003)
(per curiam). “We review the district court’s findings of fact in sentencing for
clear error.” United States v. DeVegter, 439 F.3d 1299, 1303 (11th Cir. 2006).
III. D ISCUSSION
Section 2J1.3 of the Guidelines gives the base offense level for perjury. “If
the offense involved perjury, subornation of perjury, or witness bribery in respect
to a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that
criminal offense, if the resulting offense level is greater than that determined
[otherwise under § 2J1.3].” U.S. Sentencing Guidelines Manual § 2J1.3(c) (2004).
According to § 2X3.1(a)(1), the base offense level is “6 levels lower than the
offense level for the underlying offense.” “For purposes of this guideline,
‘underlying offense’ means the offense as to which the defendant is convicted of
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being an accessory . . . .” Id. § 2X3.1 cmt. n.1 (2004). For the purpose of
determining the appropriate offense level for perjury, the Government argues that
the underlying offense was the drug conspiracy and further argues that the perjury
was “in respect to” the drug conspiracy trial.
Although there are no Eleventh Circuit cases interpreting the phrase “in
respect to a crime,” other circuits have examined the phrase. See United States v.
Bova, 350 F.3d 224 (1st Cir. 2003); United States v. Suleiman, 208 F.3d 32 (2d
Cir. 2000). Although these cases are factually distinguishable from the present
case, their statements on the Sentencing Commission’s policy and intent are
instructive.
In Bova, the defendant lied during a bail hearing about two assaults for
which he was trying to secure bail. 350 F.3d at 226. The issue was whether the
perjury was in respect to the assaults. The bail hearing was a proceeding to
determine whether supervised release should be revoked. Id. at 230-31. The
decisive consideration for the court was the connection of the perjury to the
prosecution of a criminal offense. Id. at 230-31. The court concluded, “[t]he cross
reference is based on the potential to derail or miscarry a judicial or similar
proceeding directed to another crime . . . . [The defendant’s] lies had little potential
to interfere with prosecution of the crimes lied about which is why their
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seriousness is not a suitable measure of Bova’s perjury . . . .” Id. at 230-31.
In Suleiman, the defendant lied during a grand jury investigation about
associating with individuals involved in the 1993 World Trade Center bombing.
208 F.3d at 34-35. The district court did not apply § 2J1.3's cross reference,
because the case was one “where neither the questions asked nor the answers given
referenced any criminal offense.” Id. at 36 (internal quotations and citations
omitted). Disagreeing with the district court, the Second Circuit held, “The
purpose of the ‘in respect to’ enhancement is to treat more severely perjuries that
risk an incomplete or an inaccurate investigation or trial of a criminal offense.” Id.
at 39 (internal citations omitted). Suleiman dealt with perjury before a grand jury,
which the Second Circuit concluded “will almost always merit enhanced
punishment” because of a grand jury’s broad investigatory scope. Id.
The Sentencing Commission has taken a similar approach in likening
perjury to obstruction of justice. “The Commission believes that perjury should be
treated similarly to obstruction of justice. Therefore, the same considerations for
enhancing a sentence are applied in the specific offense characteristics, and an
alternative reference to the guideline for accessory after the fact [§ 2X3.1] is
made.” U.S. Sentencing Guidelines Manual § 2J1.3 cmt. Background (2004).
We hold in this case that for perjury to be “in respect to” the drug
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conspiracy, the perjury would have to have had the potential to disrupt the
government’s investigation or prosecution of that crime. Benitez’s perjury had
this potential. For a false statement given under oath in a court proceeding to rise
to the level of perjury, it must be a “material” statement. 18 U.S.C. § 1623(a). A
false statement is material if “it was capable of influencing the tribunal on the issue
before it.” United States v. Roberts, 308 F.3d 1147, 1155 (11th Cir. 2002) (per
curiam); Blackmon v. United States, 108 F.2d 572, 573-74 (5th Cir. 1940).
At first glance it is difficult to see how Benitez’s false statements could have
“influenced the tribunal on the issue before it,” (namely, the issue of Garcia’s
guilt).1 Benitez only testified falsely on the issue of her own participation in aiding
her sister’s flight–Benitez testified truthfully in all other matters. Telling the truth
would not have significantly lessened her credibility because (1) the jury already
knew that Benitez had failed her duty as a third-party custodian; (2) Benitez would
have been more credible if she had told the truth; (3) Benitez lied to protect herself,
not to prevent Garcia from being punished; (4) Benitez testified truthfully on
behalf of Garcia about matters related to the drug conspiracy and about the
voluntariness of Garcia’s flight; and (5) the government was able to use Benitez’s
testimony about Garcia’s disappearance as affirmative evidence of Garcia’s guilt.
1
Indeed, the district court based its holding on the idea that the perjury did not impact the
drug conspiracy trial because it did not lessen Benitez’s credibility.
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Furthermore, the trial proceeded in Garcia’s absence, and the government was able
to use her flight as further evidence of guilt.
Despite the difficulty of discerning the perjury’s impact on Garcia’s trial,
such an analysis basically goes to whether or not the statements were material to
the drug conspiracy trial and is thus unnecessary because Benitez has pled guilty to
perjury. In so doing, Benitez has legally acknowledged that her false statements
influenced the district court on some matter before the court. The only matter
before the court during Garcia’s trial was whether Garcia was guilty of drug
conspiracy. Therefore, because we are bound by Benitez’s concession of her
statements’ material effect on the drug conspiracy trial, we must hold that her
perjury was “in respect to” the drug conspiracy. To hold otherwise and say that her
statements did not have a material affect on the drug conspiracy trial would be to
hold that the statements were not perjurious at all.2
2
We note that our holding is consistent with United States v. Bova, 350 F.3d 224 (1st Cir.
2003). In Bova, the perjurious statements were not given in the trial itself but at the bail hearing.
Id. at 226. Therefore, they were material to the bail hearing rather than the trial. Accordingly,
the First Circuit held that the perjury was not in respect to the underlying assaults. Id. at 230-31.
In the instant case, the perjury was given in the criminal trial itself, and is therefore material to
that trial, which existed to determine Garcia’s guilt or innocence.
Our holding is also consistent with United States v. Leon-Reyes, 177 F.3d 816, 824 (9th
Cir. 1999) (testimony regarding legitimate source of business at trial for money laundering and
drug trafficking might have benefitted the defense to drug trafficking but would only have had a
significant effect on the money laundering and was therefore only “in respect to” the money
laundering). In Leyon-Reyes, the perjury was only material to one of the charges in a trial of
multiple, discrete charges. In the instant case, the statement was material to the underlying
proceeding which was solely determining Garcia’s guilt of drug conspiracy.
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We therefore vacate Benitez’s sentence and remand for re-sentencing. In so
doing, we note that we merely hold that the district court did not properly calculate
Benitez’s sentence under the Guidelines. The district court is free to give any
reasonable sentence on remand as long as it considers the Guidelines’
recommendation and the other factors set forth in 18 U.S.C. § 3553(a).
VACATED AND REMANDED.
HULL, Circuit Judge, specially concurring:
I concur only in the judgment reversing the district court, vacating Benitez’s
sentence, and remanding for resentencing. My reasons are as follows.
Benitez, the perjury defendant here, is the sister of Garcia, who was tried and
convicted for her role in a drug conspiracy. Benitez testified for the defense in
Garcia’s drug-conspiracy trial about issues having a direct bearing on the charged
drug-conspiracy offense. Garcia was accused of having traveled to Mobile,
Alabama, with her husband, Jose Nieves, to pick up a load of cocaine. Garcia’s
knowledge of and participation in the drug conspiracy were at issue in the criminal
trial. Benitez’s testimony undermined the government’s theory that certain travels,
contacts, and money deposits by Garcia and her family were suspicious.
For example, Benitez identified certain names and addresses that emerged in
the evidence, and her testimony suggested innocent explanations – including
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ordinary contact and visits with family members – for much of the travel and
contact that the government viewed as suspicious. Benitez also denied knowing an
indicted co-conspirator and several alleged drug contacts in New York and denied
knowing how her niece, Maria Giraldo, came to possess $51,000 in cash in August
2001.1 In addition, Benitez identified the black Isuzu Montero in which Garcia
was arrested as Garcia and Nieves’s car, but testified that Nieves drove the Isuzu
all the time. Benitez’s testimony related to her sister’s relationship to people,
places, and events associated with the cocaine conspiracy and thus was highly
relevant to her sister’s knowledge of and involvement in the charged cocaine
conspiracy.
During the same criminal trial, Benitez also testified about her sister’s flight
from trial, and in so doing, perjured herself by denying her own involvement in her
sister’s flight. Benitez told the jury that she had no part in her sister’s
disappearance, when in fact she was complicit in it. Had the jurors known of
Benitez’s complicity in her sister’s absconding during the trial, they might well
have concluded that Benitez would do other unlawful things – including testifying
untruthfully – to protect her sister, and Benitez’s credibility would have been
undermined, if not eviscerated. Because Benitez’s perjury in her sister’s trial
1
Giraldo apparently was identified as having made a money drop around that time.
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protected her own credibility in testifying about matters relevant to the drug-
conspiracy charge against her sister, the perjury easily could have affected the
outcome of the trial. Benitez parses her testimony too finely in arguing that her
perjury about her sister’s fleeing her drug-conspiracy trial is about only a collateral
matter of flight and not related to her drug-conspiracy trial. My view is that
Benitez’s distancing herself from her sister’s flight, and especially not telling the
jury she had helped her sister flee during the actual trial itself, was crucial to give
her other testimony credibility. Thus, in my view, a plain reading of U.S.S.G. §
2J1.3(c) compels the conclusion that Benitez’s perjury was “in respect to” the
drug-conspiracy charge against Garcia. See United States v. Bova, 350 F.3d 224,
230 (1st Cir. 2003) (“The [§ 2J1.3] cross reference is based on the potential of the
perjury to derail or miscarry a judicial or similar proceeding directed to another
crime.”); United States v. Suleiman, 208 F.3d 32, 39 (2d Cir. 2000) (“The purpose
of the ‘in respect to’ enhancement is to treat more severely perjuries that risk an
incomplete or an inaccurate investigation or trial of a criminal offense.”).2
2
Because Benitez was a material witness in the drug-conspiracy trial and her perjury had
the potential to derail justice in that trial, I need not reach the government’s argument that
Benitez’s perjury was also “in respect to” the drug-conspiracy charge because it enabled Garcia
to avoid capture for those charges. Although the trial against Garcia proceeded in her absence,
Benitez’s perjury possibly allowed Garcia to escape justice longer than she otherwise would
have, and could have allowed her to escape indefinitely. Thus, the government argues, Benitez’s
perjury risked a miscarriage of justice in allowing Garcia to elude justice “in respect to” the
drug-conspiracy charge.
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Nor do the cases relied upon by Benitez suggest otherwise, as they involve
perjury in separate proceedings and not in the actual trial of the other crime itself.
The only case cited by Benitez that involves perjury in a criminal trial is United
States v. Leon-Reyes, 177 F.3d 816 (9th Cir. 1999). Leon-Reyes is easily
distinguished from Benitez’s case. Defendant Leon-Reyes, an accountant, testified
perjuriously in a criminal trial in which Heriberto Garcia Sr. and Heriberto Garcia
Jr. were charged with drug trafficking, money laundering, and money structuring.
Id. at 818-19. Leon-Reyes testified about the financial affairs of Garcia Sr. in
relation to the money-laundering charges and did not testify about the Garcias’
drug activities. Id. at 824. As a result, the Ninth Circuit concluded that Leon-
Reyes’s perjury was “in respect to” the money-laundering charges but not the drug-
trafficking charges. Id. Here, Benitez’s testimony was clearly material to the
drug-conspiracy charge against Garcia. Thus, Leon-Reyes does not support
Benitez’s position.
For these reasons, I conclude that Benitez’s perjury in her sister’s drug-
conspiracy trial was “in respect to” that drug-conspiracy offense and thus concur in
the judgment vacating Benitez’s sentence and remanding for resentencing.
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