affirming denial of reduction for acceptance of responsibility based on false representations by defendant because the “district court was entitled to conclude that [the defendant’s] failure to come clean about the limits of his memory was inconsistent with a full acceptance of responsibility”
How later courts described this case
- affirming denial of reduction for acceptance of responsibility based on false representations by defendant because the “district court was entitled to conclude that [the defendant’s] failure to come clean about the limits of his memory was inconsistent with a full acceptance of responsibility”
- finding that the defendant could perjure himself for purposes of U.S.S.G. sec. 3C1.1 by representing that he remembered an event when he did not
- finding that the defendant could perjure himself for purposes of U.S.S.G. § 3C1.1 by representing that he remembered an event when he did not
- remanding a case for resentencing when the district court’s obstruction enhancement did not include a specific “factual finding that [the defendant] told the lie intending to obstruct justice”
Written by the judges who cited it.
The opinion
POSNER, Chief Judge,
concurring.
I write separately to draw the attention of bench and bar to a latent tension in the case law on obstruction of justice. The majority opinion states that the guideline for increasing the length of a federal sentence because of the defendant’s obstruction of justice, U.S.S.G. § 3C1.1, requires proof of the defendant’s intent to obstruct justice. The statement is supported by a *718 large number of eases (many in this circuit) that interpret the word “willfully” as it appears in the guideline to require proof of specific intent to obstruct justice. E.g., United States v. Ewing, 129 F.3d 430, 434 (7th Cir.1997); United States v. Henderson, 58 F.3d 1145, 1153 (7th Cir.1995); United States v. Teta, 918 F.2d 1329, 1333-34 (7th Cir.1990); United States v. Greer, 158 F.3d 228, 239 (5th Cir.1998); United States v. Cassiliano, 137 F.3d 742, 747 (2d Cir.1998); United States v. Draper, 996 F.2d 982, 984 (9th Cir.1993); United States v. Gardiner, 931 F.2d 33, 35 (10th Cir.1991). The District of Columbia Circuit, however, has come out the other way. United States v. Taylor, 997 F.2d 1551, 1560 (D.C.Cir.1993). And some of the cases I have cited, such as Cassiliano , flinch, and hold that “inherently obstructive” behavior, such as not showing up for sentencing, need not be shown to have been intended to obstruct justice. 137 F.3d at 747 .
Above all, the Ewing line of cases is in conflict with the doctrine of United States v. Neiswender, 590 F.2d 1269 (4th Cir.1979); see Joseph V. De Marco, Note, “A Fupny Thing Happened on the Way to the Courthouse: Mens Rea, Document Destruction, and the Federal Obstruction of Justice Statute,” 67 N.Y.U. L.Rev. 570 (1992), which holds that specific intent is not required for conviction under the catchall federal obstruction of justice statute, 18 U.S.C. § 1503 ; see also United States v. Brooks, 111 F.3d 365, 372 (4th Cir.1997). Our court adopted the Neiswender doctrine in United States v. Machi, 811 F.2d 991, 998-99 (7th Cir.1987), and applied it in United States v. Bucey, 876 F.2d 1297, 1314 (7th Cir.1989). Other courts have as well. United States v. Atkin, 107 F.3d 1213, 1219 (6th Cir.1997); United States v. Moree, 897 F.2d 1329, 1333 (5th Cir.1990); United States v. Silverman, 745 F.2d 1386, 1396 (11th Cir.1984); United States v. Buffalano, 727 F.2d 50, 53-54 (2d Cir.1984). No court has rejected it, and though one can find language in some cases that is inconsistent with it, see, e.g., United States v. Petzold, 788 F.2d 1478, 1485 (11th Cir.1986); United States v. Rasheed, 663 F.2d 843, 852 (9th Cir.1981), that language may well be inadvertent — clearly so in Petzold , in light of the same court’s decision in Silverman and its approving citation of Buffalano . One court even believes that the Supreme Court endorsed Neiswender (without citing it) in United States v. Aguilar, 515 U.S. 593 , 115 S.Ct. 2357 , 132 L.Ed.2d 520 (1995). United States v. Brooks, supra, 111 F.3d at 372 . And another believes that the Court endorsed it more than a century ago, in Pettibone v. United States, 148 U.S. 197, 206-07 , 13 S.Ct. 542 , 37 L.Ed. 419 (1893). United States v. Buffalano, supra, 727 F.2d at 53-54 . These readings are plausible; both Aguilar and Pettibone make obstructive conduct culpable if the obstruction was the natural and probable consequence of the conduct. It need not have been the intended consequence. And although the terminology of section 1503 and of the guideline provision is somewhat different — the former requiring that the defendant do something “corruptly” to obstruct justice and the latter that he do it “willfully” — Neiswender is consistent or inconsistent with either formulation.
There is nothing radical about Neiswender . Deliberately to do something that one knows will have a particular result is often in the criminal law enough to establish the requisite intention to bring about that result. United States v. United States Gypsum Co., 438 U.S. 422, 444-46 , 98 S.Ct. 2864 , 57 L.Ed.2d 854 (1978); 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.5(a)-(c), pp. 303-311 (1986). Intention and desire are not synonyms. If you plant a bomb in a plane desiring only to kill the passenger whose heir you are, you are guilty of first-degree murder (deliberate, premeditated) of the other passengers who die in the crash as well, even though you didn’t desire their death. You knew that the likely effect of your act would be their death, and *719 that is enough. Pettibone v. United States, supra, 148 U.S. at 207 , 13 S.Ct. 542 ; United States v. Aguilar, supra, 515 U.S. at 599 , 115 S.Ct. 2357 . Transposed to the obstruction of justice context (both the Pettibone case and the Aguilar case are obstruction cases), this reasoning implies that if you killed a potential witness against you not because you wanted to prevent his testifying but because you were furious at his disloyalty, you would still be guilty of obstruction of justice, because you would know that a consequence of your act would be to prevent him from testifying, even though that was not your objective. Why should more be required when obstruction of justice is invoked as a basis for a sentencing enhancement rather than charged as a separate crime?
In short, I don’t see how Neiswender can coexist with the Ewing line. Coexistence leads to the paradox that it is easier to convict a person of obstruction of justice than to enhance his sentence because he obstructed justice in the investigation or prosecution that led up to his conviction. It leads to the further paradox that “willfully” is made to require more proof than “corruptly,” though the latter connotes the higher degree of culpability. United States v. Gatling, 96 F.3d 1511, 1522 (D.C.Cir.1996). I say this with some confidence while granting that the term “willfully” does not have a settled meaning in law. Sometimes it means just knowing what you’re doing, American Surety Co. v. Sullivan, 7 F.2d 605, 606 (2d Cir.1925) (L.Hand, J.)—more precisely, “act[ing] knowingly with respect to the material elements of the offense.” American Law Institute, Model Penal Code and Commentaries § 2.02(8) and comment 10, pp. 248-50 (1985); see also United States v. Ladish Malting Co., 135 F.3d 484, 487 (7th Cir.1998). Sometimes it means even less— means acting recklessly or even just grossly negligently, as in tort law’s “willful and wanton” formula. E.g., Carter v. Chicago Police Officers, 165 F.3d 1071, 1080-81 (7th Cir.1998); Davis v. United States, 716 F.2d 418, 425-26 (7th Cir.1983); Poole v. City of Rolling Meadows, 167 Ill.2d 41 , 212 Ill.Dec. 171 , 656 N.E.2d 768, 771 (Ill.1995). Sometimes it means more than knowing what you’re doing — means also knowing that what you’re doing is unlawful. E.g., Bryan v. United States, 524 U.S. 184 , 118 S.Ct. 1939, 1944-46 , 141 L.Ed.2d 197 (1998). But it never means willing the consequences of an act known' to be illegal, and so in the obstruction of justice context it is satisfied by deliberately doing a known illegal act, such as killing a witness, that has the natural and probable effect of obstructing justice; the defendant does not have to desire the obstruction.
If we stick with Neiswender , probably we shall eventually have to discard Ewing and its predecessors. But as the issue is not unavoidably presented by the present case, because neither party has mentioned it, I am content merely to flag it for future reference.