For the Defense - Vol. 5, Issue 2 - 23

enforcer for debt collection and that Carr also sold
his own methamphetamine. Another witness, Pat
Sordi, testified Carr had threatened him with a gun.
Carr testified at trial and denied acting as an enforcer
for Trombetta, selling his own methamphetamine, or
threatening Sordi. At the conclusion of the trial, the
jury found Carr guilty of conspiracy, but acquitted
him of one count of possession with intent to deliver,
and hung on a second count of possession with
intent to deliver, which the Government subsequently
dismissed.17
At sentencing, the trial court applied the obstruction
of justice enhancement based on defendant's trial
testimony. In so doing, the court specifically "credit[ed]
the testimony of Trombetta and Sordi regarding
[Carr's] role as a collector, the threats [Carr] made to
Sordi, and [Carr's] distributions of drugs," even though
the jury had acquitted or hung on the two possession
with intent to deliver charges. The Third Circuit
affirmed the sentence, finding that "even though
[Carr] was not convicted of [dealing his own meth] at
trial, the District Court did not clearly err in finding his
testimony was false."18
Limitations on Application of Obstruction of Justice
Enhancement to Trial Testimony
The primary limitation on "a sentence enhancement
resulting from [a criminal defendant's] trial testimony"
is the requirement that the sentencing court "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,
under the perjury definition [the Supreme Court has]
set out."19 This requirement, the Court reasoned in
Dunnigan, serves to separate inaccurate testimony
due to confusion, mistake, or faulty memory from
that which is willfully given with the intent to mislead
on a material issue.20 And there are certainly district
court cases refusing to apply an obstruction of justice
sentencing enhancement because the sentencing court
determined the defendant's testimony was not false,
material, or willful.21
District courts within the Third Circuit have
also refused to apply the obstruction of justice
sentencing enhancement. In United States v. AngelHuerta, for example, the district court declined
to apply the obstruction of justice sentencing
enhancement even where it found defendant's
testimony was false because the government had
not established willfulness.22 Following a conviction
for Reentry of Removed Aliens, the government
sought enhancement based upon testimony the
defendant offered during a pretrial hearing to
dismiss the indictment. At issue were Angel-Huerta's
assertions that the government did not follow proper
deportation procedures to trigger the Reentry statute.
After considering Angel-Huerta's testimony and the

testimony offered by multiple immigration agents, the
district court found the agents credible and denied
defendant's motion to dismiss the indictment.
For sentencing purposes, however, the district court
denied the government's request for an enhancement
based upon the same disputed testimony, in part
because the burden had shifted to the government.
The district court found that while the testimony
offered by the immigration agents was sufficient
to deny a motion to dismiss, it was possible the
defendant was simply mistaken in his statements
concerning deportation procedure. Thus, even though
the district court "ruled against Angel-Huerta at the
pretrial hearing, and his testimony was undoubtedly
material, the government fail[ed] to show that he
intentionally sought to impede the administration of
justice or that he acted with a "bad purpose."23
In another case arising out of the Third Circuit, the
district court refused the government's application for
a two-level enhancement even where the government
had identified two distinct instances of perjurious
testimony at trial.24 The key allegation in United States
v. Sempf was that the defendant had paid thieves
to steal from drug stores and then sold the stolen
merchandise at a flea market. At trial, the defendant
testified that he (i) did not know the merchandise was
stolen and (ii) never purchased any stolen merchandise
from a certain cooperating witness, Nehemiah Mosely.
Recorded conversations, testimony by multiple
witnesses, and the jury's verdict conflicted with the
defendant's testimony.
	
Nonetheless, the court denied the government's
request for an obstruction of justice sentencing
enhancement as to either statement. Although the
government maintained at trial that the defendant
knew he was trafficking stolen goods, it also conceded
"Sempf may not have known that the items were
in fact stolen, by proceeding upon an alternative
theory that Sempf had a subjective belief that the
goods were stolen and disregarded such belief."25
As a result, the court declined to find defendant's
testimony on that point perjurious. Similarly, the court
refused to apply the sentencing enhancement based
on defendant's second statement merely because his
testimony conflicted with Mosely's. Although the court
did not explain that decision in detail, it concluded
such a conflict was not enough to support a finding of
perjury.26
Specificity of Defendant's Testimony
Application of the obstruction of justice
enhancement also may hinge on the specificity of
a defendant's purportedly false testimony. In two
otherwise factually similar cases out of the Second
Circuit, for example, the court reached different
conclusions regarding application of an obstruction

Vol. 5, Issue 2 l For The Defense

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For the Defense - Vol. 5, Issue 2

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