US v. Albert Andrews, III
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:12-cr-00117-NCT-1. [999689189]. [14-4422]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4422
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
ALBERT LEE ANDREWS, III,
Defendant − Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00117-NCT-1)
Argued:
September 15, 2015
Decided:
October 30, 2015
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.
Affirmed by published opinion.
Judge Wilkinson
opinion, in which Judge Motz and Judge Keenan joined.
wrote
the
ARGUED: Kearns Davis, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Greensboro, North Carolina, for Appellant.
Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee.
ON
BRIEF: W. Michael Dowling, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Greensboro, North Carolina, for Appellant.
Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee.
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WILKINSON, Circuit Judge:
Petitioner
Albert
Lee
Andrews
challenges
here
the
imposition of a U.S.S.G. § 3C1.1 enhancement for obstructing the
administration
of
justice.
The
district
court
applied
the
enhancement against the defendant for knowingly presenting false
testimony
at
his
trial.
Inasmuch
as
the
court’s
finding
of
obstruction was not clearly erroneous, we affirm the imposition
of the enhancement.
I.
In
the
early
morning
hours
of
March
27,
2011,
Andrews
entered a Domino’s Pizza store in Kannapolis, North Carolina
armed with a handgun. He ordered an employee at gunpoint back
into the office where the manager was working and demanded that
the manager open the store safe. When he was told the safe was
empty, Andrews stole money from the cash register and from two
employees,
as
well
as
encounter,
he
pointed
the
his
manager’s
gun
at
wallet.
the
personnel
Domino’s
During
and
threatened to shoot on two occasions.
The
searching
manager
for
immediately
Andrews,
a
reported
police
the
officer
robbery.
found
an
While
abandoned
automobile that had run off the road and hit two other vehicles.
He recovered two wallets from the car, one belonging to Andrews
and
the
other
to
the
Domino’s
manager.
The
vehicle
also
contained a cell phone with photos of Andrews’ family, a traffic
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citation issued to Andrews, and a bill of sale showing that
Andrews owned the vehicle. The cell phone record listed calls
made and received in Kannapolis at the time of the robbery.
Finally,
the
officer
found
a
baseball
cap
that
fitted
the
description of that worn by the robber and was shown through DNA
analysis to belong to Andrews.
Andrews
was
charged
with
interference
with
commerce
by
robbery under 18 U.S.C. § 1951 and carry and use of a firearm
during and in relation to a crime of violence under 18 U.S.C.
§ 924(c)(1)(A)(ii). The defendant pled not guilty and invoked
his right to a jury trial. He filed several pro se motions, one
of which accused prosecutors of intimidating potential witnesses
and blocking their testimony. Prior to trial, he submitted a
notice
of
alibi
and
a
brief
describing
the
alibi
testimony.
During his opening statement, Andrews’ attorney identified two
alibi witnesses: Jerrika Hunter, Andrews’ girlfriend, and her
mother, Monica Moffet. His counsel went on to preview the alibi
testimony that each witness intended to give. At trial, Hunter
and Moffet testified that Andrews was at their home on the night
of the robbery. Another witness, Brandi Lark, the mother of one
of Andrews’ children, testified that he had visited her home
during the night in question and told her that he had robbed a
Domino’s pizza store. Andrews chose not to testify. The jury
found him guilty on all counts.
3
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Upon reviewing Andrews’ sentence, this court ruled that he
no longer qualified for sentencing as a career offender, vacated
his sentence, and remanded for resentencing. United States v.
Andrews, 547 Fed.Appx 248 (4th Cir. 2013). Upon remand, the U.S.
Probation Office issued a Memorandum that calculated Andrews’
total offense level as 22. The government then requested a twolevel enhancement for obstruction of justice under U.S.S.G.
§
3C1.1.
A
revised
Memorandum
added
the
enhancement
as
requested, increasing the total offense level to 24. Andrews
objected to the two-level enhancement for obstruction.
The district court found sufficient evidence to support the
obstruction enhancement. The court stressed that Andrews knew
that his attorney was going to present Hunter and Moffet as
alibi
witnesses.
attorney,
Moffet
Andrews
and
Given
his
must
have
Hunter’s
regular
been
testimony
communications
aware
before
of
the
trial.
with
his
substance
Andrews’
of
prior
knowledge of the false testimony and subsequent silence during
trial, the court stated, amounted to obstruction of justice:
[W]hen a defendant sees somebody take the stand called
by the defendant’s lawyer and realizes that person is
not telling the truth, that is absolutely telling
something that is untrue, whether that defendant in
sitting silently and ‘allowing that to proceed,’ takes
a part in trying to deceive the Court. . . . [I]n this
case, that’s not all of it, because those witnesses
testified one after the other. Mr. Andrews watched and
heard the testimony of one provide false alibi
evidence and sat there while the second was being
called, which even if he had not been aware of the
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alibi information a week before, or the trial brief,
which it stretches the imagination to think that he
was not aware of it, he understood somebody was being
called knowingly for the purpose of giving false
information, all of which was being offered for the
purpose of deceiving the jury into believing there was
a reasonable doubt as to his whereabouts on the night
of the armed robbery.
J.A.
39.
The
court
resentenced
Andrews
to
115
months
imprisonment on one count, 84 months consecutive on the other,
and five years of supervised release. This appeal followed.
II.
A.
The
sole
issue
before
us
is
the
propriety
of
the
enhancement for obstruction of justice. U.S.S.G. § 3C1.1 sets
forth in rather broad language the enhancement’s scope:
If (1) the 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, and
(2) the obstructive conduct related to (A) the
defendant's offense of conviction and any relevant
conduct; or (B) a closely related offense, increase the
offense level by 2 levels.
The commentary to § 3C1.1 lists many examples of covered conduct
of which subornation of perjury is one. U.S.S.G. § 3C1.1, cmt.
n.4. The commentary then notes further that the above list is
“non-exhaustive.”
commentary
Id.
enumerates
Finally,
several
application
ways
in
which
note
a
9
of
defendant
the
can
participate in the obstruction of justice: “[T]he defendant is
accountable for the defendant's own conduct and for conduct that
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the defendant aided or abetted, counseled, commanded, induced,
procured, or willfully caused.” U.S.S.G. § 3C1.1, cmt. n. 9. The
government bears the burden of proving the facts supporting the
enhancement by a preponderance of the evidence. United States v.
O’Brien, 560 U.S. 218, 224 (2010).
In United States v. Dunnigan, the Supreme Court instructed
district courts to establish “all of the factual predicates” of
perjury when finding obstruction of justice on that basis. 507
U.S.
87,
95
reversed
district
(1993).
Following
sentencing
court
that
enhancements
failed
to
find
a
language,
under
§
required
this
3C1.1
factual
court
has
where
the
element
of
perjury and provided no other basis for the enhancement. E.g.,
United States v. Perez, 661 F.3d 189, 193-94 (4th Cir. 2011)
(faulting the district court for failing to find willfulness);
United States v. Smith, 62 F.3d 641, 646-47 (4th Cir. 1995)
(finding
without
the
any
Guidelines
court
below
specific
language
erroneously
factual
and
applied
findings).
commentary
the
While
certainly
enhancement
the
broader
suggest
that
obstruction of a trial may take other forms than subornation of
perjury, that language in no way lessens the district court’s
obligation under our case law to find facts on the critical
component of § 3C1.1, namely a willful obstruction or impediment
of the administration of justice. Therefore, the enhancement is
warranted
if
the
court
below
6
made
a
proper
finding
of
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obstruction even if it did not specifically find subornation of
perjury.
Many of the purposes animating separate prosecutions for
perjury
also
underlie
obstruction.
See
obstruction
sentencing
Dunnigan,
enhancement
507
of
§
enhancements
U.S.
at
3C1.1
for
97-98.
may
In
be
perjurious
fact,
seen
the
as
an
intermediate option between condoning patently false testimony
altogether
which
and
both
undertaking
drain
separate
prosecutorial
prosecutions
resources
and
for
perjury,
raise
special
difficulties of proof. The Supreme Court has underscored this
relationship between the obstruction enhancement and prosecution
for perjury:
A sentence enhancement based on perjury does deter false
testimony in much the same way as a separate prosecution
for perjury. But the enhancement is more than a mere
surrogate for a perjury prosecution. It furthers
legitimate sentencing goals relating to the principal
crime,
including
the
goals
of
retribution
and
incapacitation.
It
is
rational
for
a
sentencing
authority to conclude that a defendant who commits a
crime and then perjures herself in an unlawful attempt
to avoid responsibility is more threatening to society
and less deserving of leniency than a defendant who does
not so defy the trial process.
Dunnigan, 507 U.S. at 97 (citations omitted).
For
the
obstruction
enhancement
to
function
in
this
intermediate role and serve the purposes outlined by the Court,
the
district
their
courts
fact-finding
must
be
capacity.
afforded
See
7
adequate
Dunnigan,
507
discretion
U.S.
at
in
95
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(treating the basis for obstruction of justice as an issue of
fact
left
especial
to
the
sentencing
advantage
in
judge).
fact
District
finding
courts
where
the
hold
an
sentencing
enhancement is based upon testimony or trial proceedings that
they have personally observed. See Gall v. United States, 552
U.S. 38, 51-52 (2007); United States v. Bumpers, 705 F.3d 168,
173-74 (4th Cir. 2013). Of course, the advantages that district
courts
enjoy
in
their
fact-finding
capacities
impose
the
concomitant obligation to actually find the facts necessary for
meaningful
appellate
obstruction
of
review.
justice
is
Where
based
on
the
a
enhancement
defendant’s
for
perjurious
testimony, trial court findings should encompass “the factual
predicates” for perjury, namely that the defendant “(1) gave
false
testimony;
willful
intent
(2)
to
concerning
deceive.”
a
material
Perez,
661
matter;
F.3d
at
(3)
192
with
(quoting
United States v. Jones, 308 F.3d 425, 428 n. 2 (4th Cir. 2002)).
Issues
of
law
do
often
arise
in
sentencing,
and
the
standard of review for such issues is obviously de novo. But to
routinely transform the fact finding and sentencing discretion
at the heart of a sentencing enhancement into broad matters of
law risks adopting an aerial perspective in circumstances where
the
ground
Supreme
level
Court
view
noted
may
in
prove
Miller
the
more
valuable.
v.
Fenton,
“the
As
the
fact/law
distinction at times has turned on a determination that, as a
8
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matter
of
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the
sound
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administration
of
justice,
one
judicial
actor is better positioned than another to decide the issue in
question,”
and
close
calls
should
be
resolved
“in
favor
of
extending deference to the trial court[s]” where they hold the
institutional advantage. 474 U.S. 104, 113-15 (1985).
B.
In this case, the district court did not make an explicit
finding
that
Andrews
procured
his
alibi
witnesses’
false
testimony, a finding that would have been necessary to support
each element of perjury. What it did do, however, was rest the
enhancement upon the very essence of § 3C1.1 -- the willful
obstruction of justice. As we noted, the enhancement can rest on
this broader ground.
Under
clear
the
facts
and
circumstances
error
in
the
district
enhancement.
As
recounted
here,
court’s
above,
the
we
can
find
imposition
court
of
below
no
the
found
overwhelming evidence that placed Andrews at the scene of the
crime in Kannapolis. Of course, courts should not assume that
any defendant who attempts to rebut substantial adverse evidence
is
a
candidate
for
the
obstruction
enhancement.
But
in
this
case, the extensive evidence against Andrews served to fortify
the district court’s firm conviction that the alibi testimony
from Andrews’ girlfriend and her mother placing him in Charlotte
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-- the lynchpin of Andrews’ defense -- could only have been
patently false. J.A. 38-41.
Nor can there be any doubt that Andrews was aware well in
advance that his alibi witnesses were planning to present false
testimony.
That
testimony
was
repeatedly
highlighted
in
the
notice of alibi, in the trial brief, and in counsel’s opening
statement. Even if his attorney had somehow kept him in the
dark, which is hard to imagine, Andrews also filed a pro se
motion accusing the prosecution of intimidating his witnesses,
including one alibi witness, and blocking them from testifying.
He
presumably
knew
the
substance
of
the
testimony
that
his
motion sought to protect. Finally, as the district court noted,
the alibi witnesses “testified one after the other.” J.A. 39. In
the highly unlikely event that the first alibi witness surprised
Andrews,
the
second
certainly
did
not.
All
of
the
above
convinced the district court that the defendant was intimately
connected with an effort to present the jury with a whopping lie
as to his whereabouts on the night of the robbery, or as the
trial court described it, an elaborate deception for which there
was no innocent explanation.
It is true, of course, that Andrews did not take the stand
and personally perjure himself. But the district court’s finding
that
Andrews
knowingly
presented
and
likely
actively
orchestrated the presentation of false testimony was not only
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supported by abundant evidence, but also fell squarely within
the
conduct
for
responsible,
which
namely
the
defendant
“conduct
that
the
is
expressly
defendant
held
aided
or
abetted, counseled, commanded, induced, procured, or willfully
caused.”
U.S.S.G.
obstruction
§
3C1.1,
enhancement
cmt.
was
n.
therefore
9.
Imposition
well
within
of
the
the
trial
court’s discretion.
III.
A.
In addition to contesting the application of § 3C1.1 on its
face,
the
defendant
enhancement
suggests
penalized
him
for
that
the
exercising
imposition
his
Fifth
of
the
Amendment
right to remain silent, which is explicitly forbidden by the
Guidelines. U.S.S.G. § 3C1.1, cmt. n. 2. Andrews suffered no
such penalty. The fact that the dynamics of trial may present a
defendant with difficult tactical choices has not been held to
infringe that defendant’s right to remain silent. See Dunnigan,
507 U.S. at 96; United States v. Butler, 211 F.3d 826, 832-33
(4th Cir. 2000). For instance, the prosecution does not violate
the Fifth Amendment whenever damaging evidence exerts pressure
on a defendant to take the stand and offer a rebuttal. E.g.,
United States v. Zembke, 457 F.2d 110, 115 (7th Cir. 1972). If
adverse
infringe
trial
the
testimony
right
to
from
prosecution
remain
11
silent,
witnesses
then
the
does
not
knowing
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presentation
of
false
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testimony
hardly be held to do so.
from
defense
witnesses
can
That does not mean a defendant has
waived his right to remain silent. What it does mean, however,
is that a defendant who has countenanced the perjured testimony
of
his
own
witnesses
faces
separate
punishment
for
doing
so
without infringement of his Fifth Amendment rights.
In addition to the right to remain silent, the obstruction
enhancement leaves intact the defendant’s right to present a
vigorous
defense.
The
right
to
offer
testimony
and
to
call
witnesses on one’s own behalf is fundamental to our system of
criminal
justice.
See
Nix
v.
Whiteside,
475
U.S.
157,
164
(1986); Washington v. Texas, 388 U.S. 14, 18-19 (1967). But that
right has never been thought to include the right to present
false testimony. Dunnigan, 507 U.S. at 96 (citations omitted).
As
the
Supreme
Court
put
it,
“Whatever
the
scope
of
a
constitutional right to testify, it is elementary that such a
right does not extend to testifying falsely.” Nix, 475 U.S. at
173.
Nor has there been any violation of defendant’s right to
counsel.
Andrews
proceedings,
and
was
represented
Andrews
does
by
not
counsel
contend
throughout
that
the
these
district
court sought to probe the content of counsel’s communications
with
his
client.
communication.
There
That
the
was
further
district
12
no
court
impediment
drew
to
inferences
such
or
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proceeded circumstantially to conclude that Andrews well knew
his witnesses were attempting to deceive the court and jury is
not tantamount to a Sixth Amendment violation. It cannot be the
case that the imposition of a § 3C1.1 obstruction enhancement
for what happened here transgressed defendant’s constitutional
rights. Finding such a violation in these circumstances would go
some distance to nullifying the enhancement altogether.
B.
All
this
is
not
to
deny
a
certain
tension
between
the
exercise of the aforementioned rights and the imposition of the
obstruction enhancement. The Guidelines themselves anticipated
this tension, and the cautionary language following § 3C1.1 is
worth quoting in full:
2. Limitations on Applicability of Adjustment.--This
provision is not intended to punish a defendant for the
exercise of a constitutional right. A defendant's denial
of guilt (other than a denial of guilt under oath that
constitutes perjury), refusal to admit guilt or provide
information to a probation officer, or refusal to enter a
plea of guilty is not a basis for application of this
provision. In applying this provision in respect to
alleged false testimony or statements by the defendant,
the court should be cognizant that inaccurate testimony or
statements sometimes may result from confusion, mistake,
or faulty memory and, thus, not all inaccurate testimony
or statements necessarily reflect a willful attempt to
obstruct justice.
U.S.S.G. § 3C1.1, cmt. n. 2. The commentary thus makes clear
that the defendant must feel free to present a vigorous case
without
fear
of
triggering
the
13
obstruction
enhancement.
See
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generally
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Dunnigan,
507
U.S.
Pg: 14 of 14
at
96
(acknowledging
§
3C1.1’s
potential for chilling defendants’ rights); Alexandra Natapoff,
Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L.
REV. 1449, 1460 (2005) (noting the danger of using obstruction
enhancements to deter defendants from testifying). Recollection
is by nature an imprecise and uncertain exercise, and faulty
recall
is
far
different
from
deliberate
deception.
Here,
however, the district court properly applied the enhancement to
safeguard the integrity of the proceedings before it. It acted
to
ensure
that
trial
retained
its
most
basic
and
essential
purpose, that of reaching a true and accurate judgment at once
fair
to
the
interests
of
society
and
the
rights
of
those
accused. For the foregoing reasons, its judgment is affirmed.
AFFIRMED
14
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