In United States v. Ivan Rosario, 2d Cir. No. 18-1994 (L) (Feb. 23, 2021) (per curiam), the Court (Sack, Chin, and Lohier) reaffirmed the longstanding rule that a district court may impose a 2-level obstruction enhancement under U.S.S.G. § 3C1.1, based on the defendant’s allegedly false trial testimony, only if it “make[s] findings to support all the elements of a perjury violation in the specific case,” namely, “that the defendant (1) willfully and (2) materially (3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material matter.” Op. 6 (quoting United States v. Dunnigan, 507 U.S. 87 (1993) and United States v. Thompson, 808 F.3d 190 (2d Cir. 2015)). This “rigid requirement of fact-finding” ensures “that courts will not automatically enhance sentences whenever the accused takes the stand and is thereafter found guilty.” Op. 5-6. Because “[a]ny sentence enhancement for perjured trial testimony implicates a defendant’s constitutional right to testify,” it must be carefully monitored to prevent the chilling of that right. Op. 6.
This case illustrates just how strictly the Circuit applies the Dunnigan rule. Rosario was charged with obstructing justice by inducing others to destroy evidence, in particular a cellphone, related to his alleged drug trafficking. At trial, the Government introduced “transcripts of Rosario’s phone calls — in which he demanded that the mother of his child (who was not his wife), with the help of his own mother, destroy a cell phone.” “In response, Rosario testified that he asked his child’s mother to destroy the phone because it contained recordings of ‘intimate moments’ between them and he did not want his wife to discover those videos,” and “denied that he ordered the phone destroyed because it held incriminating evidence.” Op. 3.
The jury convicted Rosario.
At sentencing the Government sought the 2-level enhancement based on this testimony. The court agreed and imposed the enhancement, stating “There is no doubt here, no doubt whatsoever, that [Rosario] elicited the aid of his mother, . . . and the mother of his child, . . . his paramour at the time, to destroy evidence to evade prosecution and conviction for the charge of conspiracy to distribute and the possession with intent to distribute more than a kilo of heroin.” Op. 4.
This was insufficient to trigger the enhancement. To begin, the Circuit explained, the district court “did not identify the statements on which the perjury finding was grounded.” Moreover, the court failed to make “explicit findings that [defendant’s testimony] . . . was intentionally false,” or that Rosario “knowingly made a false statement under oath.” And “[w]e see no discussion, let alone a finding, of whether Rosario consciously acted with the purpose of obstructing justice.” Op. 8-9 (citations omitted).
Finally, the Circuit rejected the Government’s invitation to look at the record itself, which purportedly shows that “Rosario obviously perjured himself.” Even if it were “true that defendant’s testimony was so inherently untruthful that the factual prerequisites to a perjury enhancement are obvious, this cannot relieve the district court of the burden of making its own independent findings”: “Nothing in Dunnigan can be read to suggest that a separate finding of willful perjury is unnecessary where the perjury is obvious.” Op. 9 (citations omitted).
The Circuit thus vacated Rosario’s sentence and remanded for further proceedings.