Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 CR 296--John F. Grady, Judge.
Before CUMMINGS, KANNE, and ROVNER, Circuit Judges.
DECIDED SEPTEMBER 6, 1995
The defendants were tried together and convicted of charges stemming from a Chicago police raid of an apartment suspected of being the center of a drug ring. Ricky Mitchell was convicted of possession of counterfeit Federal Reserve Notes and of possession with intent to distribute a mixture containing heroin. He was sentenced to fifty-one months imprisonment, and he appeals his sentence only. Peter Johnson was convicted of possession of cocaine and marijuana with intent to distribute and of carrying a firearm during a drug trafficking crime. Johnson appeals his conviction.
On October 19, 1991, Chicago police officers executed a search warrant on an apartment located at 4344 South Princeton. The officers were looking for evidence of drug trafficking and for a man named Charles "Scotty C." Harris (Scotty C.). After forcing open the door and entering the apartment, the officers immediately saw defendant Mitchell standing in the living room. Officer Glen Lewellen ordered Mitchell to the floor, and, when Mitchell complied, Lewellen stepped over him and ran toward the rear of the apartment, where he saw defendant Johnson through an open bedroom door. Johnson was standing near a window holding a briefcase in his right hand. Lewellen saw a gun in Johnson's waistband and yelled "Gun! Gun!" to alert the other officers of the danger. Lewellen ordered Johnson to drop the briefcase and to hit the floor. Johnson complied, and Lewellen removed from Johnson's waistband a loaded .380 Titan semi-automatic pistol.
After handcuffing Johnson, Lewellen picked up the open briefcase. He looked inside and saw what appeared to be narcotics. He then took both Johnson and the briefcase out to the living room, where he conducted a full search of both. Inside the briefcase, Lewellen found quantities of cocaine, marijuana, and heroin and several clear plastic bags.
Meanwhile, Officer Getman searched Mitchell, finding a .25 caliber semi-automatic handgun. Lewellen also searched Mitchell and found quantities of cocaine and heroin in his right pants pocket. In Mitchell's left pants pocket, Lewellen found $909.00 in United States currency and $320.000 in counterfeit bills.
After arresting and searching Mitchell and Johnson, the officers completed their search of the apartment. In the same bedroom where Lewellen had cornered Johnson, police recovered an electronic digital scale.
Mitchell's sole claim on appeal is that the district court erred when it increased his base offense level by two for obstruction of justice after finding that he perjured himself during his testimony.
The United States Sentencing Guidelines provide: "If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels." U.S.S.G. sec. 3C1.1. The Guidelines Commentary notes that this provision is not to be applied to a constitutional right, such as a denial of guilt, unless that denial is under oath and constitutes perjury. Id., Application Note 1, 3(b).
In order to apply the obstruction increase, the district court must find on the record that the defendant willfully obstructed or attempted to obstruct justice and that the obstruction was material. United States v. Yusufu, No. 94-3608, 1995 WL 452099 (7th Cir. 1995). To find perjury, the court may not simply rely on a jury's verdict that necessarily rejects the defendant's testimony; rather, the court must "make a specific, independent finding that a defendant was less than truthful when he testified." United States v. Hofer, 995 F.2d 746, 750 (7th Cir. 1993). We review the district court's factual finding that the defendant obstructed justice through perjury for clear error. United States v. Carter, 999 F.2d 182, 188 (7th Cir. 1993).
During trial, Mitchell testified that he was part of a drug ring led by Scotty C. He stated that his duties included picking up narcotics and delivering them to the apartment. He also testified that, in late September and October of 1991, he spoke with Michael Domer of the Cook County Sheriff's office about becoming an informant against Scotty C. Mitchell told the jury that he and Domer specifically discussed a counterfeiting scheme run by Scotty C. and that Domer instructed him to bring him a few of the counterfeit bills to Domer for examination. It was in accordance with Domer's instructions, Mitchell testified, that he came to possess the sixteen counterfeit $20 bills at the time of his arrest on October 19, 1991.
The district court concluded that this story was a lie and that Mitchell had committed perjury. The court stated on the record that, after making an independent analysis of Mitchell's story (that is, independent of the jury's verdict that Mitchell was guilty), it found that Mitchell's testimony did not square with the facts. The district court found quite damaging to Mitchell's position the fact that the counterfeit money was mixed in with the legitimate money and that Mitchell carried so many bills. If indeed Mitchell were providing a sample to the police, the court noted, he would need ...