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December 3, 2015
  United States v. Andrews -- Fourth Circuit
Honesty Is the Best Policy: Fourth Circuit Upholds Sentence Enhancement of Man Who Allowed Alibi Witnesses to Falsely Testify on His Behalf

Areas of Law: Criminal Law, Criminal Procedure

Issue Presented: Whether a defendant's sentence enhancement level should be raised for obstruction of justice when the defendant knowingly allows his alibi witnesses to falsely testify on his behalf.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit found no clear error in the United States District Court for the Middle District of North Carolina's imposition of a two-level sentence enhancement on a man whose alibi witnesses falsely claimed he was at their home during the time of a reported robbery.

Extended Summary: On March 27, 2011, a man believed to be Albert Lee Andrews III ("Andrews"), entered a Domino's Pizza in Kannapolis, North Carolina, armed with a handgun. He ordered an employee at gunpoint into the store's office and demanded that the manager who was working in the office, open the safe. When he was told the safe was empty, Andrews stole money from the cash registers and from two employees. He also stole the manager's wallet.

The store manager immediately reported the robbery to the police. While searching for Andrews, a police officer found an abandoned vehicle that had hit two other vehicles before running off of the road. From that vehicle, the police officer recovered two wallets, one belonging to Andrews and the other to the Domino's Pizza store manager. The officer also recovered a cell phone that had pictures of Andrews' family as well as listed calls made and received in Kannapolis at the time of the robbery, a traffic citation that was issued to Andrews, a bill of sale for the vehicle showing that Andrews owned it, and a baseball cap that was later proven by DNA analysis to belong to Andrews.

Andrews was charged with interfering with commerce by robbery under 18 U.S.C § 1951, and carrying and using a firearm during and in relation to a crime of violence under 18 U.S.C § 924 (c) (1) (A) (ii). Andrews pled not guilty and invoked his right to a jury trial. Andrews also filed several pro se motions, one of which accused prosecutors of intimidating potential witnesses and blocking their testimony as well as submitted a notice of alibi and a brief describing the alibi testimony.

In the opening statements at trial, Andrews' attorney identified two alibi witnesses, Jerrika Hunter ("Hunter"), Andrews' girlfriend, and Hunter's mother, Monica Moffet ("Moffet"). Hunter and Moffet testified that Andrews was at their home in Charlotte at the time of the robbery. This testimony was found to be false. Another witness, Brandi Lark, the mother of one of Andrews' children, testified that Andrews visited her home during the night in question and told her that he robbed the Domino's. Andrews chose not to testify and the jury found him guilty on all counts.

In 2013, the Fourth Circuit reviewed Andrews' sentence and ruled that he no longer qualified for sentencing as a career offender. As a result, the court vacated Andrews' sentence and remanded the case for resentencing. On remand, the United States Probation Office calculated Andrews' total offense level as 22. However, the government requested a two-level enhancement for obstruction of justice under U.S.S.G § 3C1.1 on the grounds that Andrews knowingly allowed the witnesses to be called and give false testimony.

The requested enhancement was granted and Andrews objected. However, the District Court found that Andrews' knowledge that his attorney was going to present Hunter and Moffet as alibi witnesses, his watching and listening to the false testimony, and his subsequent silence during trial amounted to obstruction of justice. The court resentenced Andrews to 115 months imprisonment on one count, 84 months consecutive on the other, and five years of supervised release.

U.S.S.G § 3C1.1 states that a sentence enhancement level may be increased by two levels if the defendant willfully obstructs or impedes or attempts to obstruct or impede the administration of justice with respect to the investigation, prosecution or sentencing of the offense of conviction. Moreover, the commentary of §3C1.1 lists subornation of perjury as an example of a covered conduct and states that a defendant can obstruct justice through his own conduct and through the conduct of others that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.

The Fourth Circuit noted that in U.S. 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 (1993). However, the Fourth Circuit also explained that the district court's obligation is to find facts on the critical component of § 3C1.1, which is a willful obstruction or impediment of the administration of justice. Further, a sentence enhancement is warranted if the court below made a proper finding of obstruction even if it did not find subornation of perjury. The court also explained that for deterrent and efficiency purposes, the district court must be afforded adequate discretion in its fact finding capacity as it holds a special advantage in fact finding when the sentence enhancement is based on testimony or trial proceedings that it previously observed.

The Fourth Circuit found no clear error in the district court's imposition of the sentence enhancement due to the overwhelming evidence that placed Andrews at the scene of the crime. This fortified the district court's conviction that the testimony of Andrews' alibi witnesses was patently false. Moreover, the Fourth Circuit agreed that Andrews was aware in advance of the trial that his alibi witnesses were planning to present false testimony, as he was put on notice through the notice of alibi, opening statements, the trial brief, and his pro se motion. The Fourth Circuit also agreed that although Andrews did not take the stand and personally perjure himself, the evidence showed that Andrews knowingly presented and actively orchestrated the presentation of false testimony, making him guilty of obstructing justice.

Andrews suggested that the imposition of the sentence enhancement penalized him from exercising his Fifth Amendment right to remain silent. However, the Fourth Circuit found that Andrews suffered no such penalty as the fact that the dynamics of a trial may present a defendant with difficult tactical choices such as taking the stand to rebut evidence, has never been held to infringe on the defendant's right to remain silent. The court also found that Andrews was not deprived of his right to present a vigorous defense as this right has never included the right to present false testimony. Lastly, the Fourth Circuit found that Andrews' right to counsel was also not violated as he was represented by counsel throughout the proceedings and there was no attempt to probe the content of his counsel's communication with him.

In concluding its analysis, the Fourth Circuit cautioned that not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice and that an obstruction of justice sentence enhancement should only be used in situations like the present where it is needed to safeguard the integrity of the proceeding.

To read the full text of this opinion, please click here.

Panel: Judges Wilkinson, Motz, and Keenan

Argument Date: 9/15/15

Date of Issued Opinion: 10/30/15

Docket Number: Case No. 14-4422

Decided: Affirmed by published opinion.

Case Alert Author: Simone Chukwuezi, Univ. of Maryland Carey School of Law

Counsel: 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.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 12:44 PM     4th Circuit  

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