In the Courts

Eleventh Circuit Holds That A Defense Witness's False Testimony May Be Obstruction of Justice for Sentencing Purposes

In United States v. Bradberry, 05-00208-CR-WS, (11th Cir. Oct. 11, 2006), the Eleventh Circuit held that a sentencing enhancement for obstruction of justice may be applied when a defendant calls a witness that he knows will give false testimony, even where there is no evidence that the defendant willfully procured the false testimony.

Defendant, convicted on a firearms charge, appealed his sentence on the ground that the district court erred by applying an obstruction of justice enhancement on the ground that he suborned perjury. The defense argued that, at worst, the defendant allowed two witnesses to give testimony that the defendant knew to be false, and that absent some evidence that he had induced or procured the false testimony, there could be no sentence enhancement for obstruction. The Eleventh Circuit disagreed. The circuit court noted that the defendant called the witnesses and that because one of the witnesses had testified at the suppression hearing, the defendant had some knowledge of what that witness would say, and that the testimony would be false. The court held that by calling a witness that he knew would give false testimony, the defendant at least aided and abetted perjury and that, therefore, the trial court did not err in applying an obstruction of justice enhancement.

Cafeteria Conduct Cannot Support a Charge of Direct Contempt

In United States v. Rangolan, ___ F.3d ____, 2006 WL 2695176 (2nd Cir. Sept. 21, 2006), the Second Circuit held that improper juror contact outside of the courtroom cannot support a conviction for direct contempt of court.

Despite a specific judicial instruction to avoid any contact with jurors, during a trial in which the defendant and her husband were plaintiffs, the defendant approached a juror in the cafeteria, placed a stack of documents on his table, and suggested he read them. The juror refused and reported the incident. The defendant was charged and convicted in a bench trial of misdemeanor direct contempt of court under 18 U.S.C. ' 401(1). On appeal, the circuit court held that ' 401(1), direct contempt, only applies to conduct 'in the court's presence or so near thereto as to obstruct the administration of justice.' While noting that there was no dispute that the conduct was contemptuous, the court held that contact in the courthouse cafeteria was far enough from the courtroom that it did not satisfy the 'in or near' requirement for direct contempt. The conviction was reversed and remanded with instructions to enter a judgment of acquittal.

Money Laundering Must Be Based on Net Proceeds in Seventh Circuit

In United States v. Baker, No. 05-6326/6339 (S.D. Ill. Sept. 29, 2006), the federal district court for the Southern District of Illinois held that, as a substantive rule of law in the Seventh Circuit, money laundering offenses must be based on the net, and not gross, value of the proceeds.

The defendant was convicted in a jury trial in 1999 of money laundering, engaging in illegal monetary transactions and conspiracy. Defendant filed a pro se habeas petition challenging the convictions based on United States v. Scialabba , 282 F.3d 475 (7th Cir. 2002), a gambling-related case which established the Seventh Circuit rule that money laundering offenses must be based on the net, and not gross, value of the proceeds. The district court noted that no other circuit has such a rule, but declined to limit the rule to gambling cases, holding that Scialabba established a substantive rule of law in the circuit for all money laundering cases brought under 18 U.S.C. ' 1956(a)(1). The court also held that as a substantive rule of law, Scialabba must be applied retroactively, and therefore vacated and set aside defendant's money laundering convictions. The court declined to extend Scialabba to the illegal transaction or conspiracy charges.

Eleventh Circuit Holds That A Defense Witness's False Testimony May Be Obstruction of Justice for Sentencing Purposes

In United States v. Bradberry, 05-00208-CR-WS, (11th Cir. Oct. 11, 2006), the Eleventh Circuit held that a sentencing enhancement for obstruction of justice may be applied when a defendant calls a witness that he knows will give false testimony, even where there is no evidence that the defendant willfully procured the false testimony.

Defendant, convicted on a firearms charge, appealed his sentence on the ground that the district court erred by applying an obstruction of justice enhancement on the ground that he suborned perjury. The defense argued that, at worst, the defendant allowed two witnesses to give testimony that the defendant knew to be false, and that absent some evidence that he had induced or procured the false testimony, there could be no sentence enhancement for obstruction. The Eleventh Circuit disagreed. The circuit court noted that the defendant called the witnesses and that because one of the witnesses had testified at the suppression hearing, the defendant had some knowledge of what that witness would say, and that the testimony would be false. The court held that by calling a witness that he knew would give false testimony, the defendant at least aided and abetted perjury and that, therefore, the trial court did not err in applying an obstruction of justice enhancement.

Cafeteria Conduct Cannot Support a Charge of Direct Contempt

In United States v. Rangolan, ___ F.3d ____, 2006 WL 2695176 (2nd Cir. Sept. 21, 2006), the Second Circuit held that improper juror contact outside of the courtroom cannot support a conviction for direct contempt of court.

Despite a specific judicial instruction to avoid any contact with jurors, during a trial in which the defendant and her husband were plaintiffs, the defendant approached a juror in the cafeteria, placed a stack of documents on his table, and suggested he read them. The juror refused and reported the incident. The defendant was charged and convicted in a bench trial of misdemeanor direct contempt of court under 18 U.S.C. ' 401(1). On appeal, the circuit court held that ' 401(1), direct contempt, only applies to conduct 'in the court's presence or so near thereto as to obstruct the administration of justice.' While noting that there was no dispute that the conduct was contemptuous, the court held that contact in the courthouse cafeteria was far enough from the courtroom that it did not satisfy the 'in or near' requirement for direct contempt. The conviction was reversed and remanded with instructions to enter a judgment of acquittal.