United States v. Claudina Benitez ( 2006 )


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  •                                                                        [DO NOT PUBLISH]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
    2
    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
    3
    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
    4
    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
    5
    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
    6
    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
    7
    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.
    8
    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.
    9
    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
    10
    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.
    11
    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.
    12
    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.
    13