
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony BROWN, Defendant-Appellant.
    No. 15-2243
    United States Court of Appeals, Seventh Circuit.
    Argued April 4, 2016
    Decided December 14, 2016
    
      Shoba Pillay, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Rosa A. Eliades, Attorney, Eliades Law, PLLC, Chicago, IL, for Defendant-Appellant.
    
      Before EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.
    
    
      
       Hon. Pamela Pepper of the Eastern District of Wisconsin, sitting by designation.
    
   HAMILTON, Circuit Judge.

Appellant Anthony Brown pled guilty to conspiring to distribute drugs. He appeals his sentence, challenging the application of a two-level Sentencing Guideline enhancement for obstruction of justice. The unusual process that led to this enhancement persuades us that we should remand; The judge who sentenced Brown imposed the enhancement based on Brown’s responses to three questions in testimony in a hearing on a motion to suppress in another case against another defendant and before another judge. The other defendant ultimately pled guilty and withdrew his motion to suppress. As a result, the judge who actually heard Brown’s testimony never made findings about the honesty of his testimony or the merits of the other defendant’s motion to suppress. The judge who sentenced Brown imposed the enhancement for obstruction of justice based on the other judge’s interim impressions about earlier testimony from police officers^ That was not a sufficient factual foundation to support the obstruction of justice enhancement. We vacate Brown’s sentence and remand for resentencing.

I. Facts and Procedural Background

Anthony Brown was arrested for selling heroin in a hand-to-hand drug transaction on Chicago’s west side. He offered to assist the police, telling the officers .that he knew where a man named “Jimmie” stored large amounts of drugs and that he was supposed to meet Jimmie later that day. Brown gave a description of Jimmie but did not provide his last name. Brown rode with police officers in an unmarked police car to Jimmie’s stash house. Brown then placed a monitored but unrecorded call from the police car using his personal cell phone. When a person matching the description given by Brown emerged from the house, police stopped him. They found eight baggies with approximately 1000 capsules containing 135 grams of heroin. The police later identified him as Jimmie Ses-som,

Sessom was charged with possessing 100 grams or more of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1); His case was assigned to Chief Judge Castillo. Sessom moved to'suppress the search and seizure of heroin. At an evidentiary hearing on the motion to suppress before Judge Castillo, Chicago police officers and an FBI agent testified about the information Brown had given them and Sessom’s stop and arrest. After hearing the testimony, Judge Castillo told the attorneys he was inclined to deny Sessom’s motion to suppress, and he shared with the attorneys his “preliminary conclusions” to the effect that he found credible, the police testimony about the information that Brown provided. Judge Castillo made no definitive ruling, however, and left open the possibility of hearing further evidence.

Sessom later moved to reopen the suppression hearing to call Brown to testify. Since Brown’s own criminal case was still pending, the parties in Sessom’s case expected Brown to assert his Fifth Amendment privilege not to incriminate himself. Sessom proposed to the court that Brown be asked just four questions that he argued would not invade Brown’s Fifth Amendment privilege. The questions were provided in briefs to the court and to all parties. Judge Castillo granted the motion, reopened the suppression hearing, and ordered Brown to answer over his Fifth Amendment objection.

The questioning was conducted by Ses-som’s counsel:

Q: Mr. Brown, on the evening of July 11, 2012 at approximately 7:45, were you in a car with a Chicago Police Department officer around Taylor and North Avenue in Chicago?
A: You said Taylor and North Avenue?
Q: Yes.
A: No.
Q: On the evening of July 11th, 2012 at approximately 7:45, did you identify an individual walking out of an apartment building at 1239 North Taylor Avenue—
A: No.
Q. — as someone you knew as Jimmie?
A: No.
Q: On the evening of July 11th, 2012 at approximately 7:45, did you place a phone call from a CPD officer’s car to someone named Jimmie?
A: No.
Q: Do you recall what your phone number was in July 2012?
A: I can’t remember.

After that hearing, Sessom pled guilty and withdrew his motion to suppress. As a result, Judge Castillo never ruled on the motion to suppress and did not make any findings on the credibility of Brown’s answers.

Brown then pled guilty to the conspiracy charge against him. Judge Guzmán sentenced Brown. The government argued that Brown had obstructed justice by lying in his answers to those questions in Ses-som’s suppression hearing. Judge Guzmán then determined that Brown’s “no” answers in the suppression hearing reflected Brown’s version of the events and found that his version of events was not credible. Judge Guzmán then “agreed with” Judge Castillo’s preliminary view that the officers who testified at Sessom’s suppression hearing were credible.

Judge Guzmán was “convinced that [Brown’s] failure to accurately testify constitutes an obstruction of justice.” He found that the failure to testify accurately was intentional and imposed the two-level guideline increase for obstruction of justice under U.S.S.G. § 3C1.1. The enhancement made the total offense level 27. With criminal history Category III, the guideline range became 87 to 108 months. Judge Guzmán imposed a sentence of 60 months, below both the actual guideline range and the range of 70 to 87 months that would have applied without the obstruction enhancement.

On appeal Brown argues that Judge Guzmán did not make appropriate findings to support application of the enhancement for obstruction of justice. In our view, while Judge Guzmán made the findings required for the enhancement, he did not have a sufficient factual basis for doing so since he based those findings primarily on the interim impressions Judge Castillo announced before he had even heard Brown’s testimony, ■ We wonder whether a remand is likely to benefit Brown, especially in light of the below-guideline sentence and the continued credit for acceptance of responsibility (which is unusual but permissible when an obstruction enhancement applies). Still, we cannot say on this record that the error was harmless, so we remand for re-sentencing.

II. Analysis

Judge Guzmán found that Brown committed perjury by providing the three “no” answers in Sessom’s suppression hearing. We review the district court’s factual findings for clear error. United States v. DeLeon, 603 F.3d 397, 402 (7th Cir. 2010), citing United States v. Powell, 576 F.3d 482, 498 (7th Cir. 2009). Those “factual findings will stand -as long as they are plausible in light of the record in its entirety.” Id. (internal quotation marks and citation omitted). We review de novo whether the factual findings of the district court adequately support the imposition of the enhancement. See id. citing United States v. Anderson, 580 F.3d 639, 648 (7th Cir. 2009).

When applying a § 3C1.1 enhancement for obstruction of justice based on perjury, “the district court should indicate that it has found all of the elements of perjury: falsity, willfulness and materiality.” United States v. Turner, 203 F.3d 1010, 1020 (7th Cir. 2000), quoting United States v. Brimley, 148 F.3d 819, 823 (7th Cir. 1998). In such cases, “a district court must review the evidence and make independent findings necessary to establish a willful impediment ;to or obstruction of justice, or an attempt to do the same — ” United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). The district court “must also find that a defendant testified untruthfully with the specific intent to obstruct justice rather than as a result of confusion, mistake or faulty memory.” United States v. Gage, 183 F.3d 711, 715 (7th Cir. 1999), citing Dunnigan, 507 U.S. at 94, 113 S.Ct. 1111, and United States v. Ewing, 129 F.3d 430, 434 (7th Cir. 1997) (“Section 3C1.1 requires specific intent to obstruct justice.”). The prosecution bears the burden “to prove by a preponderance of the evidence that the enhancement is warranted.” Ewing, 129 F.3d at 434, citing United States v. Hamm, 13 F.3d 1126, 1129-30 (7th Cir. 1994).

We first address a legal issue about whether § 3C1.1 could apply to Brown’s testimony in Sessom’s suppression hearing. Section 3C1.1 provides:

If (1) 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 by 2 levels.

Could perjury by Brown in the Sessom suppression hearing meet the requirements of § 3C1.1? We agree with the district court that it could, at least with sufficient factual findings. The second clause allows the enhancement to be applied for perjury or other obstruction regarding a “closely related offense.” We find no error in the district court’s decision to treat Brown’s testimony in the Sessom suppression hearing as “related to ... a closely related offense,” even though the two men were not charged jointly. See United States v. Messino, 382 F.3d 704, 708 (7th Cir. 2004) (affirming enhancement where defendant testified falsely during trial of co-defendants); accord, United States v. Mollner, 643 F.3d 713, 718 (10th Cir. 2011); United States v. Savoca, 596 F.3d 154, 158 (2d Cir. 2010).

The first clause in § 3C1.1 requires that the perjury or other obstruction have been “with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” The “instant offense of conviction” for Brown was conspiracy to possess heroin with intent to distribute it. A conspiracy requires a co-conspirator, of course, and when Brown wanted to cooperate, Sessom was the distributor he gave up to the police. It is not unreasonable to treat perjury in a prosecution of such a potential co-conspirator as obstruction “with respect to the investigation, prosecution, or sentencing” of Brown’s own offense of conviction. The close parsing of the precise wording of the Guideline provides another reminder, however, about why a sentencing judge may not want to tie a final sentence too closely to such narrow guideline issues as the precise scope of § 3C1.1 that may have only a tenuous relationship to the goals of sentencing under 18 U.S.C. § 3553(a). Perhaps the district judge here took that approach (keep in mind that the sentence was below the guideline ranges both with and without the obstruction enhancement), but he did not signal clearly that he was doing so. In any event, there was no legal obstacle to the obstruction enhancement here.

There was a factual obstacle, though. The district court made the required findings, but did so without an adequate basis in the evidence for finding willfulness and falsity. The combination of relying on testimony before another judge and the “no” answers to quite specific and multi-part questions undermined the usual grounds that would support those findings. Recall the three key questions:

Q: Mr. Brown, on the evening of July 11, 2012 at approximately 7:45, were you in a car with a Chicago Police Department officer around Taylor and North Avenue in Chicago?
Q: On the evening of July 11th, 2012 at approximately 7:45, did you identify an individual walking out of an apartment building at 1239 North Taylor Avenue ... as someone you knew as Jimmie?
Q: On the evening of July 11th, 2012 at approximately 7:45, did you place a phone call from a CPD officer’s car to someone named Jimmie?

Brown answered each one “no.” ; Each question included multiple factual elements. Because of concerns about his Fifth Amendment privilege, there was no followup. We recognize that Brown may have had a strong incentive to lie about the help he had given the police that led to Ses-som’s arrest and prosecution. But if Brown was mistaken or confused about just one element of the multi-part questions, his answers of “no” could have been honest or at least not deliberately perjurious. For example, there is evidence that Brown had not known the address to which he was directing the officers, but knew only how to get to the house. If he was mistaken about the date or time or the cross-streets, a “no” answer could have been honest or at least not willfully false. These questions and answers, without clarification, were too ambiguous to warrant a determination that Brown gave willfully false answers.

Neither Brown’s attorney nor any other counsel was permitted to inquire further as to what parts of the questions prompted the “no” answers. “The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry.” Bronston v. United States, 409 U.S. 352, 360, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973) (discussing federal perjury statute, 18 U.S.C. § 1621). That did not'occur in this case, for understandable reasons. The Second Circuit has said that when a line of questioning “is so vague as to be ‘fundamentally ambiguous,’ the answers associated with the questions posed may be insufficient as a matter of law to support the perjury conviction.” United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986); see also United States v. Landau, 737 F.Supp. 778, 784-85 (S.D.N.Y. 1990) (granting motion to dismiss perjury indictment because questions were ambiguous). Here the ambiguity stemmed from the combination of multiple factual elements in each question and the lack of follow-up. Accordingly, Judge Guzman could not rely on Brown’s “no”, answers in the Sessom suppression hearing to determine Brown’s “version of events.”

At Brown’s sentencing hearing, Judge Guzmán said:

On this record I find his version now of what occurred to be just not credible. It’s not credible. The testimony by the officer, I agree with Judge Castillo, was credible, was believable. That’s the way things happen. That’s the way it’s done.

When Brown’s counsel noted the limited nature of the examination in the Sessom suppression hearing and suggested that the responses to the four government questions were not sufficient to find obstruction, the court responded:

You don’t think it’s clear from this record that the officers’ testimony was that your client was with him in the car, pointed out the apartment, and pointed out the defendant when he came .out, and that he denied that when he testified?

After Brown’s counsel expressed further concern that the testimony was very limited in scope and that counsel was not able to cross-examine to clarify his testimony to bolster his credibility, the court said that Brown’s motive was:

not a great mystery. I have many defendants who come here, plead guilty, but still have one foot in their other life. These are his relationships. These are the people he did business with. These are the people who he fears. All of these reasons would be cause for him to back off and lie. It would be cause for him not to ... want to admit in open court in front of his peers, the people he was doing business with, the people he depended upon, and the people he feared, what he actually did against them. That happens all the time. I don’t find that unusual.

The court later said:

I am convinced that his failure to accurately testify constitutes an obstruction of justice. I think it was intentional. I think it directly contradicted the version of events as they actually- occurred. It was under oath. And I find that the two-level increase for obstruction of justice is appropriate in this case. As a result of that I find that the appropriate adjusted total offense level in this case is 27 —

On this record, we cannot agree. We assume that Judge' Guzmán could have relied on more definitive findings by Judge Castillo that Brown had lied deliberately. We also assume that Judge Guzmán could have made his own findings if Brown’s answers Had been less ambiguous. But the fact that Judge Castillo never made findings in the Sessom hearing and never made findings about Brown’s credibility means that Judge Castillo’s initial impressions about the hearing could not be relied on in Brown’s case to support an enhancement for .perjury. We recognize that Brown may well have been lying before Judge Castillo,- but the very specific questions and terse “no” answers in the transcript did not provide a “Brown version” of events that Judge Guzmán could rely upon to find perjury.

Brown’s sentence is VACATED and the case is REMANDED for re-sentencing.  