For the Defense - Vol. 5, Issue 2 - 24

of justice sentencing enhancement based upon the
level of detail included in the defendants' respective
statements-both of which were made in affidavits
submitted in support of motions to suppress.
In United States v. Lincecum, the defendant provided
statements to Secret Service agents upon his arrest.27
Lincecum then sought to suppress those statements
before trial, arguing that his repeated requests for
an attorney had been denied by investigators. In
support of his motion, Lincecum provided a signed
affidavit detailing three instances in which agents
told him he could call an attorney "later." At a
suppression hearing, multiple agents denied that
Lincecum ever requested to have an attorney present
for questioning. Lincecum did not testify at the
hearing, and ultimately withdrew his petition before
the district court ever issued a ruling. Moreover, the
government chose not to use Lincecum's statements
at trial. At sentencing, the district court applied
the obstruction of justice sentencing enhancement.
On appeal, the Second Circuit rejected defendant's
argument that his averments were not material. And,
in upholding the perjury enhancement, the Second
Circuit cited the lower court's finding that Lincecum's
affidavit was "so detailed" Lincecum "must have
known it [was false] when he signed [it]."28
Several years later, the Second Circuit addressed
a similar fact pattern in United States v. Agudelo,
but this time reversed the sentencing court's
imposition of a perjury sentencing enhancement.29
There, as in Lincecum, the defendant moved to
suppress statements made to agents and submitted
a sworn affidavit in support of his motion to
dismiss. Agudelo's affidavit included a two-sentence
allegation that agents continued to question him
after he had requested to speak with an attorney.
At the suppression hearing, agents denied Agudelo
ever asked for an attorney to represent him during
questioning, although they acknowledged they may
have described the arrest process to the defendant,
including the fact that he would have an attorney
present for his initial appearance.
The district court denied the suppression motion
and, after Agudelo's ultimate conviction, applied a
two-level enhancement for perjury. Relying on the
court's decision in Lincecum, the district court found
Agudelo's statements in his affidavit amounted to an
"obvious lie" when weighed against the testimony
offered by the law enforcement agents.30 On appeal,
though, the Second Circuit reversed the district court's
application of the obstruction of justice sentencing
enhancement because Agudelo's statements were too
vague to be clearly perjurious. The court reasoned that
Lincecum's "three detailed statements [that] reeked
of fabrication" were distinguishable from Agudelo's
indistinct "two sentences averring that he had asked
for a lawyer."31
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For The Defense l Vol. 5, Issue 2

A Defendant's Subjective Belief May Weigh Against
the Sentencing Enhancement
Courts may also consider a criminal defendant's
subjective beliefs and the relative strength of the
government's evidence in determining whether an
obstruction of justice sentencing enhancement is
appropriate. In United States v. Pena, the defendant
was arrested for smuggling cocaine contained in
pellets he had ingested. After his arrest, Pena was
interviewed by DEA agents, searched by X-ray, and
ultimately confessed. Prior to trial, he moved to
suppress his confession because, inter alia, he had
requested a lawyer at least seven times and his
confession was extracted through a threat of physical
force.32
Several agents involved with the arrest testified
at the suppression hearing. Some stated Pena
never requested an attorney. Others said Pena did
seek counsel but could not recall how many times.
Regarding threats of force, one agent testified Pena
was told there were "other ways" to obtain his
consent for an X-ray search if he did not consent.
Ultimately, Pena's motion to suppress was denied and,
after his conviction, the court applied the obstruction
of justice sentencing enhancement based upon Pena's
statements in support of suppression.33
On appeal, the Second Circuit again distinguished
the case from Lincecum based on the specificity of
Pena's statements. More interestingly, however, the
Circuit also weighed the relative strength of the
government's perjury evidence against the defendant's
subjective belief that his statements were true. The
court concluded the defendant's statements about
requesting an attorney were not clearly perjurious,
in part, because the government's evidence on that
issue was itself mixed. Similarly, although the court
did not believe that the defendant had been coerced,
it relied significantly upon Pena's subjective belief
that he had been physically threatened. Because, the
court concluded, "it [was] possible that Pena 'simply
misunderstood the agent's comments,' it was clear
error to find Pena committed perjury with regard to
this statement."34
***
Where a sentencing court concludes that perjury
has occurred, in contrast, the "independent fact
finding" requirement imposed by Dunnigan does not
provide for much recourse on appeal. The appellate
courts have made clear that a sentencing court need
not even make an express finding that a defendant's
statements constituted perjury. As the Third Circuit
held in United States v. Boggi, "[a]lthough . . . 'it
is preferable for a district court to address each
element of the alleged perjury in a separate and
clear finding,' express separate findings [as to each
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