United States v. Griffin, Warren G. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1336
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WARREN G. GRIFFIN, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 CR 30080—William D. Stiehl, Judge.
____________
ARGUED SEPTEMBER 4, 2002—DECIDED NOVEMBER 19, 2002
____________
Before FLAUM, Chief Judge, and CUDAHY and KANNE,
Circuit Judges.
KANNE, Circuit Judge. A jury found defendant Warren
G. Griffin, Jr. guilty of being a felon in possession of a
firearm that had traveled in interstate commerce in viola-
tion of 18 U.S.C. § 922(g)(1). Griffin appeals, arguing (1)
that the district court committed plain error in admitting
improper rebuttal testimony; (2) that the evidence was
insufficient to support his conviction; and (3) that the
district court clearly erred in applying a two-level sen-
tence enhancement for obstruction of justice. Because the
evidence was sufficient and because we find no error
either in the district court’s decision to admit evidence
2 No. 02-1336
or in its application of the enhancement, we affirm both
Griffin’s conviction and his sentence.
I. HISTORY
At 11:00 p.m. on June 12, 2000, in East St. Louis, Illi-
nois, Detective Desmond Williams pulled over a blue four-
door Pontiac Grand Am for speeding. He illuminated the
car’s interior by shining his car-mounted spotlight into
the vehicle and saw that two men were inside. Approach-
ing the car on the driver’s side, Williams stopped at the
car’s center post and requested the driver’s license and
registration. While speaking with the driver, Darryl Rus-
sell, Williams saw that the car’s front-seat passenger had
the handle of a handgun protruding from the waistband of
his pants. Drawing his own gun and ordering both the
driver and passenger to keep their hands in the air and
make no sudden movements, Williams reached inside the
car from the back seat and tried to retrieve the gun from
the passenger’s waist. Before Williams could secure the
gun, the passenger grabbed Williams’s hand. A stand-off
ensued, with Williams training his gun at the passenger’s
head, demanding that the passenger release his grip. The
passenger refused, only letting go of Williams’s hand as
he opened the car door and fled. Instead of giving chase,
Williams arrested Russell.
Williams conducted an investigation to identify the
unknown passenger. He first searched the car and found
a traffic ticket and a bond sheet issued to Griffin. By
running the car’s license plates, he determined Griffin had
rented the car from a rental agency. Also, Williams re-
covered an envelope containing a set of photographs
that had been recently developed by Griffin at a local
supermarket. Examining the photos, Williams identified
the passenger who had fled the scene as one of the individ-
uals depicted. And after comparing that photo to a set
No. 02-1336 3
of mug shots at the station house, Williams identified Grif-
fin as that passenger.
Russell gave a statement to police after the incident
in which he claimed that someone named “James” or
“Jaybo” was the passenger in the car who had the gun,
not Griffin. According to Russell’s statement, Jaybo had
picked him up in Griffin’s car that evening; Griffin was
never in the car with Russell. When U.S. Deputy Marshal
Sean Newlin arrested Griffin, Griffin corroborated Russell’s
story, claiming he had loaned the rental car to Jaybo that
evening and had not been in the car with Russell when
Williams pulled it over. According to Newlin, Griffin
was adamant as to this last point stating, “I wasn’t ar-
rested by any skinny policeman.” And although Griffin
denied he was the passenger, Newlin reported that Grif-
fin admitted to possessing guns while on supervised release.
In the end, despite Griffin’s and Russell’s protestations
of mistaken identity, Griffin was arrested and indicted
with the charge of being a felon in possession of a firearm
under 18 U.S.C. § 922(g)(1).
Not surprisingly, Griffin presented an elaborate mistak-
en-identity and alibi defense at trial supported by his own
testimony and that of five other defense witnesses, includ-
ing Russell. But curiously, gone was the claim that Jaybo
had been the gun-bearing passenger. Griffin and Russell
admitted at trial that they had made up the Jaybo story,
hoping to throw police off of Griffin’s trail. Nevertheless,
they continued to maintain that Griffin wasn’t the pas-
senger; they now claimed that the unknown individual
was a minor named Issac Windom, also known as “Boo.”
After being apprised of his Fifth Amendment rights,
Boo testified that he was the passenger in the car. Accord-
ing to Boo, he was attending a friend’s party when Rus-
sell drove up in Griffin’s rental car. Although he did not
know either Griffin or Russell (at trial, he was only able
4 No. 02-1336
to identify Russell as the driver by describing him as the
man in the courtroom wearing an orange jumpsuit), he
had heard from others that Russell was driving to Duck’s
Variety Store and, wanting to get something from the
store himself, he decided to ride along. Boo testified that
it was during this trip to the store that Williams pulled
the car over. When Williams saw that he had a gun and
tried to retrieve it, Boo ran.
Russell corroborated Boo’s story, testifying that he had
borrowed the rental car from Griffin at Duck’s Variety
Store earlier that evening. Russell was to return the car
to Griffin at the store before it closed. Boo had hitched a
ride with him back to the store, and on the way, Williams
pulled the car over. On cross-examination, Russell admit-
ted that he had lied in his statement to police and that
he and Griffin had made up the Jaybo story.
Griffin, likewise, admitted at trial that he and Russell
had manufactured the Jaybo story in an attempt to mis-
lead the police. What had really happened, he testified,
was that in the early evening of June 12, 2000, he had
driven his rental car to Duck’s Variety Store, where he
was to meet Russell. He loaned the car to Russell for a
joyride, requesting that Russell return the car later that
evening. In the meantime, Griffin would walk around the
store’s neighborhood, visiting friends. But as he made
his rounds, Griffin noticed that it was getting late and
Russell had not yet returned. By 9:00 p.m., he decided
to call another friend, Charles Gray, to give him a ride
home. Gray picked him up around 10:00 p.m., and it took
them about an hour to get to Griffin’s home, arriving
sometime around 11:00 p.m.
Gray testified that he had received a call from Griffin,
who was calling from his cellular phone, sometime around
10:30 p.m. on the night of June 12, 2000. He remembered
the time because he had been sitting at his computer
No. 02-1336 5
when his phone rang. Griffin wanted Gray to give him a
ride home from Duck’s Variety Store. Gray agreed. He esti-
mated that the trip lasted between fifteen and twenty-five
minutes.
To corroborate Gray’s story, Griffin called both Gregory
Parker, the owner of Duck’s Variety Store, and Griffin’s
wife, Jocelyn. Parker testified that he had seen Griffin
walk up to the store that evening and that Griffin had
left sometime around 10:00 p.m. Jocelyn testified that
she had been at home watching television on the night
of June 12, 2000, and that Griffin returned home just as
the previews of “In the Heat of the Night,” were coming
on at about 11:00 p.m. He did not have the rental car
with him when he returned home.
The case was submitted, and the jury returned a guilty
verdict, crediting the circumstantial evidence linking Grif-
fin to the rental car and Williams’s identification over
the testimony of Griffin and his defense witnesses. At
sentencing, the district court applied a two-level enhance-
ment for obstruction of justice under the U.S. Sentencing
Guideline Manual § 3C1.1 finding (i) that Griffin had
initially lied to police by concocting the Jaybo story and
(ii) that the evidence indicated he had committed perjury
at trial. Griffin now appeals his conviction and sentence.
II. ANALYSIS
A. Improper Rebuttal Testimony
Griffin’s first challenge on appeal—that the district
court committed plain error in allowing U.S. Deputy Mar-
shal Newlin to testify in rebuttal—is unsuccessful. Be-
cause Griffin failed to object to Newlin’s testimony, we
could only grant him a new trial if the district court com-
mitted a plain error that, if allowed to stand, would sub-
stantially impair the fairness and integrity of the judicial
6 No. 02-1336
process. United States v. Noble, 246 F.3d 946, 955 (7th Cir.
2001). Griffin does not explain how any asserted error in
admitting this testimony could have had a substantial
impact on the judicial process’s fairness and integrity. This
alone dooms his argument. Cf. United States v. Alwan,
279 F.3d 431, 439 (7th Cir. 2002). Moreover, we find no
plain error in the district court’s decision to allow Newlin’s
rebuttal testimony. The crux of Griffin’s argument is
that since he and Russell both admitted on their direct
and cross-examinations that they had manufactured the
Jaybo story, Newlin’s rebuttal testimony that Griffin had
told him, in essence, “Jaybo did it,” was cumulative and
improper. Griffin ignores that Newlin also testified that
Griffin had made the gun-possession and “skinny police-
man” statements—both of which, on cross-examination,
Griffin had denied making. Thus, Newlin’s testimony served
to impeach Griffin—a proper subject of rebuttal. At worst,
Newlin’s rebuttal testimony included some cumulative
evidence; that fact alone does not make the district court’s
decision to allow him to testify in the first place—without
objection—plain error.
B. Sufficiency of Evidence
Insufficient as well is Griffin’s sufficiency-of-evidence
challenge. At bottom, Griffin argues that since he and
five other witnesses testified at trial that he was not the
gun-bearing passenger in the car that evening, the jury—
relying solely on Williams’s questionable (as Griffin sees
it) testimony and identification—could not have possibly
found beyond a reasonable doubt that he was. Griffin mis-
understands the role of an appellate court evaluating
a sufficiency-of-evidence claim. We will overturn a guilty
verdict only when the record contains no evidence, regard-
less of how it is weighed, upon which a rational trier of
fact could find guilt beyond a reasonable doubt. United
No. 02-1336 7
States v. Richardson, 208 F.3d 626, 631 (7th Cir.), cert.
denied, 531 U.S. 910 (2000); United States v. Griffin, 150
F.3d 778, 784 (7th Cir. 1998). We do not weigh the evi-
dence or reassess the credibility of the witnesses. Id. at
784-85. Yet, this appears to be what Griffin argues we
should do. Griffin attacks Williams’s identification argu-
ing that his perception and judgment were impaired by the
circumstances. Undeniably, at the time he observed the
passenger in the car, it was dark and Williams was in
a tense, stressful situation. Nevertheless, Williams testi-
fied that he had illuminated the vehicle with his car-
mounted spotlight and that he had as long as three min-
utes in which to observe the passenger, at times coming
nose-to-nose with him. This explanation provided the jury
sufficient basis to credit Williams’s identification. Although
Griffin’s attacks on Williams’s perception would have
been proper material for his closing argument, they do not
form the proper basis of an appeal.
Contradicting Williams’s testimony was that of six
witnesses who stated that it was not Griffin but Boo
who was the passenger. Six against one, Griffin argues,
means that the evidence was overwhelmingly in his fa-
vor and, thus, the jury could not have reasonably found
him guilty. But there can be no doubt by its verdict that
the jury found Griffin’s own witnesses’ testimony fraught
with inconsistencies, laden with bias, and, in the end, not
credible. For example, Parker testified he had seen Grif-
fin walk to Duck’s Variety Store that evening; Griffin said
he drove up. Gray said he received a call from Griffin at
10:30 p.m. to pick him up at Duck’s and that the ride to
Griffin’s house took at most twenty-five minutes; Griffin
said he called Gray at 10:00 p.m. and that the ride took
an hour. Moreover, the witnesses were able to recall spe-
cific dates and times to relate Griffin’s alibi, but unable
to reconstruct other supporting details. And Griffin’s alibi
witnesses all admitted to having known or having had
8 No. 02-1336
close relationships with him. All of these facts were, as
Griffin admits, effectively elicited through the govern-
ment’s cross-examinations. But even more damaging
were Griffin’s and Russell’s admissions that they had
previously lied to police about the passenger’s identity; it
is not surprising in light of that revelation that the jury
chose to disbelieve the new story they presented at trial.
The jury’s verdict stands.
C. Obstruction Enhancement
Griffin’s final argument is that the district court clearly
erred in applying a two-level enhancement for obstruc-
tion of justice under § 3C1.1 of the sentencing guidelines.
Griffin’s argument is two-fold. First, he argues that the
Jaybo story he told police cannot support the enhance-
ment because the guidelines require materially false
statements to police officers, not given under oath, to
significantly obstruct or impede the official investiga-
tion before the enhancement applies. See U.S.S.G. § 3C1.1
cmt. n. 4(g) (2002). Since there was no evidence that Wil-
liams or anyone else expended any resources to investi-
gate the Jaybo lead, Griffin argues that the enhance-
ment was improper. Second, Griffin argues that the dis-
trict court erred in awarding the enhancement on perjury
grounds because it did not make a sufficiently specific
finding of the factual predicates of perjury. Griffin ob-
jected to the enhancement at sentencing and, thus, we
review the district court’s factual determination that
the enhancement applied for clear error. See United States
v. Messino, 55 F.3d 1241, 1247 (7th Cir. 1995). Because the
district court could have applied the enhancement on
either ground, Griffin needs to succeed on both challenges
in order for us to remand for resentencing.
Griffin wins his first argument. The application notes to
§ 3C1.1 plainly explain that making material false state-
No. 02-1336 9
ments, not under oath, to law-enforcement officers will
only serve as a basis for an obstruction enhancement
when those statements “significantly obstruct[ ] or impede[ ]
the official investigation or prosecution.” U.S.S.G. § 3C1.1
cmt. n. 4(g) (emphasis added). This language requires a
causal relationship between the materially false state-
ment given and a resulting impediment upon the instant
investigation or prosecution. There is no argument that
the Jaybo statement was immaterial, but without evi-
dence that the official investigation was impeded in any
manner—let alone significantly—the statement alone
cannot support the obstruction enhancement. Compare
United States v. Barnett, 939 F.2d 405, 407 (7th Cir. 1991)
(obstruction enhancement not applicable in part because
false statement did not cause investigators to expend
additional resources), with United States v. Francis, 39 F.3d
803, 811 (7th Cir. 1994) (obstruction enhancement prop-
er where defendant’s retraction of information previously
given about co-conspirators caused government to reinv-
estigate and reevaluate its case, thereby impeding its in-
vestigation and prosecution).
In response, the government notes that we have indi-
cated elsewhere that § 3C1.1 is designed to avoid apply-
ing an obstruction increase for a mere “exculpatory no,”
where a defendant denies guilt or conceals his crimes
during police questioning. See, e.g., United States. v. Ross,
77 F.3d 1525, 1550 (7th Cir. 1996). Since Griffin’s state-
ment went beyond a mere denial of his involvement to
craft out of whole cloth the identity of a fictional person
in an attempt to mislead police, the government argues
that the statement oversteps the boundaries of the ex-
culpatory-no doctrine and therefore may support the en-
hancement. Certainly, Griffin’s Jaybo statement exceeds
the protection of the exculpatory-no doctrine. Be that as
it may, the clear guidance from the guidelines suggests
that even the most outlandish and creative lies to law-
10 No. 02-1336
enforcement officers, not given under oath, must have a
detrimental effect upon their efforts to investigate or
prosecute the instant offense before the enhancement
can apply. This is not to say that, in an appropriate
case, the elaborateness or intricacies of a manufactured
story exceeding the boundaries of the exculpatory-no
doctrine cannot demonstrate a resulting burden placed
upon law-enforcement officials who expended resources
to track down its false leads. But here, without proof
that police expended any additional resources in their
investigation because of the Jaybo story, basing the en-
hancement on that statement was improper.
This is, however, an empty victory for Griffin. Besides
relying on the Jaybo lie to support the enhancement,
the district court made the independent finding that Grif-
fin had lied on the stand by “ma[king] up a scenario rela-
tive to the events.” (R. 38 at 27:17-18.) Committing, suborn-
ing, or attempting to suborn perjury supports an obstruc-
tion enhancement. U.S.S.G. § 3C1.1 cmt. n. 4(b). For en-
hancement purposes, perjury is defined—as it is under the
federal perjury statute—as willfully giving under oath,
rather than as a result of confusion, mistake, or faulty
memory, a materially false statement. United States v.
Dunnigan, 507 U.S. 87, 94 (1993); see also 18 U.S.C. § 1621
(2002). An obstruction enhancement will be upheld on
appeal so long as the district court made an independent
finding of obstruction that encompasses all of perjury’s
factual predicates. Dunnigan, 507 U.S. at 95. Here, be-
cause the district court made the requisite independent
finding of perjury encompassing all of its factual predi-
cates, it properly applied the enhancement.
Griffin contends that the district court’s perjury deter-
mination is deficient under Dunnigan because it fails to
identify these factual predicates with the requisite spec-
ificity. Without this specificity, Griffin claims he does
not know to what the district court was referring when
No. 02-1336 11
it found that he “ma[d]e up a scenario relative to the
events.” Was the district court relying on the Jaybo story?
If so, he had testified truthfully at trial that the Jaybo
story was a lie. Or, perhaps, was it merely pointing out
the inconsistencies between his and other witnesses’ tes-
timony? In that case, those minor inconsistencies were
immaterial and inadvertent: a likely product of confusion
or mistake, not the willful material lies contemplated by
the perjury statute.
But Griffin does not take into account the simplicity of
his trial, which presented a single factual issue for the
jury: whether or not he was the gun-bearing passenger.
In arguing that he was not, Griffin did not merely deny
that he was the gun-bearing passenger and put the gov-
ernment to its burden. He and other defense witnesses
testified that Boo was the passenger and that he was
elsewhere at the time of Russell’s arrest. Griffin’s deci-
sion to testify to this elaborate mistaken-identity and
alibi defense (and present five other witnesses to testify
to it as well) was not the result of confusion, mistake, or
faulty memory. Nor was this the case contemplated by
Dunnigan where a self-defense, lack-of-capacity, insanity,
or duress defense could have been truthfully presented,
yet nonetheless thought by the jury to be an insufficient
excuse for criminal liability. Id.
No, here, all that was at issue was Griffin’s presence
in that car that evening. In the end, the jury believed
that he was and therefore must have rejected his elabor-
ate mistaken-identity and alibi defense as untruthful.
But more importantly for sentencing purposes, the district
court believed he lied, independently determining that
the only defense Griffin presented at trial—the mistaken-
identity and alibi story—was untruthful:
[The enhancement] is also prefaced by the defendant’s
testimony at trial, and the defendant is allowed to
12 No. 02-1336
have a trial and is allowed to testify, he is allowed to
deny that he committed the crime or that he was
present, whatever; but what he’s not allowed to do
is make up a scenario relative to the events. And it’s
clear from the evidence that this is what this defen-
dant did.
(R. 38 at 27:12-18 (emphasis added).) Thus, the district
court independently found all of the factual predicates
for a finding of perjury: that under oath Griffin had given
material false testimony by concocting the Boo story and
his alibi, the whole purpose of which was to substan-
tially affect the outcome of the case by obtaining a not-
guilty verdict. Accord United States v. Bonilla-Comacho,
121 F.3d 287, 293 (7th Cir. 1997) (upholding obstruction
enhancement where “[b]oth judge and jury found the
government’s version of the events to be the truth and, as
a result, . . . that [the defendant] lied on the stand”).
Indeed, the finding of the lower court that the Supreme
Court upheld in Dunnigan was similar to, and no more
specific than, the record we have here:
The court finds that the defendant was untruthful
at trial with respect to material matters in this case.
[B]y virtue of her failure to give truthful testimony
on material matters that were designed to substan-
tially affect the outcome of the case, the court con-
cludes that the false testimony at trial warrants an
upward adjustment by two levels.
Dunnigan, 507 U.S. at 95 (alteration in original). Although
the Dunnigan Court observed that it is preferable for a
district court to address each element of the alleged per-
jury in a separate and clear finding, it found the above-
quoted determination sufficient because it encompassed
all of perjury’s factual predicates. Id.; United States v.
Kroledge, 201 F.3d 900, 905 (7th Cir. 2000). Here, as in
Dunnigan, the district court made the requisite finding.
No. 02-1336 13
As the Court in Dunnigan observed in rejecting the
argument that the perjury enhancement may chill or
interfere with a defendant’s right to testify, “[t]he require-
ment of sworn testimony, backed by punishment for
perjury, is as much a protection for the accused as it is a
threat.” Dunnigan, 507 U.S. at 97. While Griffin clearly had
a right to put the government to its burden by deny-
ing the charges brought against him, he did not have the
right to invent a story with hopes of impeding that burden.
III. CONCLUSION
For the foregoing reasons, Griffin’s conviction and sen-
tence are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-19-02