United States v. George Kasp , 579 F. App'x 510 ( 2014 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 5, 2014
Decided September 2, 2014
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-2907
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11-CR-00920
GEORGE KASP
Defendant-Appellant. John F. Grady,
Judge.
ORDER
George Kasp was arrested during a sting operation when he attempted to sell heroin
to a police informant. In moving to suppress drugs found after his arrest, Kasp submitted
affidavits swearing that police misinterpreted his coded words in recorded phone calls with
the informant, and therefore the police had no probable cause to arrest him for possessing
heroin. After his motion to suppress was denied, Kasp pleaded guilty and admitted that,
contrary to his sworn assertions, the police had correctly interpreted his recorded phone
No. 13-2907 Page 2
conversations. Consequently, the court added two levels to Kasp’s base offense level for
attempting to obstruct justice by lying about those phone conversations. Kasp appeals his
sentence, arguing that his lies were not material to the judge’s denial of the motion to
suppress. Because his lies, if believed, could have changed the outcome of the motion, they
were material; therefore, we reject his contentions and affirm.
Background
In advance of a sting operation, an informant working with Chicago police agreed
to lead police to his heroin supplier, George Kasp. The informant had identified Kasp in a
photo and said that he had bought heroin from Kasp in the past. The informant also
reported that Kasp was involved in a criminal street gang. Officers confirmed that Kasp
had multiple prior felony convictions.
With this background information in hand, in December 2011 the police set up the
sting. They recorded a series of phone calls between Kasp and the informant. At the
prompting of police, the informant called Kasp on December 29 to order 200 grams of
heroin. During their first conversation that day, Kasp asked the informant if he wanted
“two times” (which the police recognized as code for 200 grams of heroin). The informant
responded, “yeah,” and Kasp acknowledged “I got you.” Later the same day Kasp phoned
the informant and confirmed, “what you want, sleeves? Two sleeves?” (which the officers
understood to be another code for a quantity of narcotics). Again, the informant agreed and
suggested they meet at a sandwich shop in Chicago, where he previously had bought
heroin from Kasp.
When Kasp entered the shop, two officers approached him and frisked him, and
uncovered heroin inside his pants pocket. The officers arrested Kasp and brought him to
the station for questioning, where he waived his Miranda rights and consented to a search
of his apartment. During the questioning, Kasp admitted that, after his phone calls with the
informant, he had brought 200 grams of heroin to the sandwich shop. Police later searched
Kasp’s apartment where they uncovered a handgun, ammunition, 15 pounds of cannabis,
a large quantity of cash, and drug-trafficking paraphernalia. He was indicted for possessing
heroin and marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a
firearm by a felon, 18 U.S.C. § 922(g).
No. 13-2907 Page 3
After his indictment Kasp moved to suppress the drugs and other evidence
uncovered. He argued that the officers did not have probable cause to arrest him or even
reasonable suspicion to frisk him. The phone calls, he insisted, did not suggest that a drug
deal would take place at the sandwich shop because, he swore by affidavit, he went there
only to talk to the informant. Moreover, he argued, in one of the recorded phone calls, Kasp
had told the informant he was “not gonna do [his] thing” because he believed police were
monitoring him. Having heard this comment, Kasp insisted that the officers must have
known that no drug deal would take place on December 29. Kasp urged the court to hold
an evidentiary hearing to resolve “the significant discrepancies between the government’s
interpretation” and his “sworn affidavit interpreting the events” that occurred before his
arrest.
Before it would hold an evidentiary hearing on the motion to suppress, the court
instructed Kasp to specify in another affidavit all the errors in the government’s
understanding of the slang and ambiguous language in the phone calls. Kasp did so. In his
second affidavit, he again swore that he did not arrange a drug deal with the informant on
December 29, and he explained that they were discussing only the possibility of doing drug
business in the future. Kasp also offered alternative meanings to ambiguous and slang
terms in the phone calls. When he said “two times,” he explained that he meant that he was
not asking about a drug quantity, but asking if the informant was going to visit his
girlfriend and “two-time” (be unfaithful to) his wife. And when he asked the informant if
he wanted “two sleeves,” he said that he was asking the informant which drugs he wanted
to discuss at the meeting, marijuana or heroin.
The court denied Kasp’s motion to suppress. It found that the officers had probable
cause to believe Kasp would be carrying narcotics when he arrived at the sandwich shop
on December 29. The judge explained that he based his ruling on both the background
information the officers had about Kasp before the sting began as well as the recorded
telephone conversations between Kasp and the informant.
After the denial of his motion to suppress, Kasp pleaded guilty to possession with
intent to distribute heroin and possession of a firearm by a felon. In the plea agreement, he
admitted that he had agreed to sell to the informant 200 grams of heroin, and brought that
amount with him to the sandwich shop. At sentencing the district judge found that Kasp’s
earlier false statements in his affidavit were material because “his lies … could have
affected my ruling on his motion to quash and suppress.” The judge elaborated:
No. 13-2907 Page 4
Had I found that his interpretation of the conversations was correct, … it’s
conceivable that I would have found that even though the officers
misconstrued some of the terms that were used by the defendant in his
conversations with the CI, they still had reasonable grounds for the arrest
because their interpretation was not clearly unreasonable. But I also could
have found to the contrary; namely, that because the defendant didn’t say
anything that could reasonably have led them to believe that he was on his
way to the hot dog stand with drugs in his pocket for the purpose of
delivering them, that they had no reason to believe that he would have drugs
on him when he arrived at the hot dog stand and, therefore, no reasonable
basis to either stop him or arrest him.
Analysis
Kasp’s only challenge on appeal concerned the materiality of his admitted lies
about the meaning of his recorded phone conversations. The court said they were
material because it believed the first translation. The suppression decision could have
gone the other way. Nevertheless, Kasp contends the two-level increase was
inappropriate. He insists that his version of the recorded conversations was irrelevant
because the officers had probable cause to arrest him at the sandwich shop independent
of what he had said on the phone to the informant and regardless of his interpretation
of the coded words.
The sentencing guidelines permit a two-level increase to an offense level if a
defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing of
the instant offense of conviction.” U.S.S.G. § 3C1.1. Committing perjury may warrant
the enhancement. United States v. Taylor, 637 F.3d 812, 817 (7th Cir. 2011); United States v.
Arambula, 238 F.3d 865, 868 (7th Cir. 2001). Perjury occurs when a witness wilfully and
intentionally swears to false, material testimony. United States v. Dunnigan, 507 U.S. 87,
94 (1993); United States v. Riney, 742 F.3d 785, 790 (7th Cir. 2014). We review factual
findings supporting application of § 3C1.1 for clear error, and we review de novo
whether those facts support applying the guideline increase. Riney, 742 F.3d at 790;
United States v. DeLeon, 603 F.3d 397, 402 (7th Cir. 2010).
No. 13-2907 Page 5
The statements in Kasp’s affidavit concerned a material matter because they were
capable of influencing the district court’s decision on his motion to suppress. As used in
the Guidelines, a material statement is one that, “if believed, would tend to influence or
affect the issue under determination.” U.S.S.G. § 3C1.1 cmt. n.6. Application of the
guideline is appropriate even if the false statement does not actually affect the issue
under determination. United States v. Grigsby, 692 F.3d 778, 785 (7th Cir. 2012). It is
enough that the statement could (to a reasonable probability) affect the outcome of the
process, or could influence the decision of the court to which it was addressed. Id.;
United States v. Buckley, 192 F.3d 708, 710 (7th Cir. 1999).
The district judge in this case is uniquely qualified to assess the potential effect of
Kasp’s lies on the judge’s own ruling. He expressly found that the lies “could have
affected [his] ruling on the motion to quash and suppress.” And he explained why: the
judge was open to letting Kasps’s description of the events influence how the judge
evaluated the reasonableness of the officers’ reactions. Moreover, Kasp himself told the
district court that the discrepancies between the officers’ interpretation of the
conversations and his own version of them were “significant.” Under these
circumstances, it was not clear error for the district court to find that Kasp’s statements
could have influenced the outcome of the motion. See DeLeon, 603 F.3d at 403; United
States v. Galbraith, 200 F.3d 1006, 1014–15 (7th Cir. 2000).
Kasp responds that the lies must have been immaterial because, in denying the
motion to suppress, the district court found that the police knew enough, apart from the
phone calls, to justify the search. This is not true. In denying the motion to suppress and
concluding that the officers had probable cause for the arrest and search, the court
relied on more than just the background information that the officers knew about Kasp.
The court specified that it also relied on “the defendant’s recorded telephone
conversations with the CI.” Although, it is true, the judge did not credit Kasp’s version
of those conversations, the decision to discredit a statement does not mean that the
statement did not concern a material matter. See United States v. Gonzalez-Mendoza, 584
F.3d 726, 730 (7th Cir. 2009) (affirming application of enhancement where defendant
lied in affidavit supporting motion to suppress but court did not believe lies).
Because Kasp’s lies about the phone conversations could have affected the ruling
on the suppression motion, the lies were material. Material lying is precisely what the
obstruction enhancement is designed to deter, Grigsby, 692 F.3d at 785; DeLeon, 603 F.3d
No. 13-2907 Page 6
at 405; Buckley, 192 F.3d at 710, so the enhancement was legally proper. Accordingly, the
judgment is AFFIRMED.
AFFIRMED.