United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued March 5, 2014

Decided September 2, 2014

Before

FRANK H. EASTERBROOK, Circuit Judge

DANIEL A. MANION, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 13-2907

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GEORGE KASP

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 11-CR-00920

John F. Grady,

Judge.

O R D E R

George Kasp was arrestedduring a sting operation when he attempted to sell heroin

to a police informant. In moving to suppress drugs found after his arrest, Kasp submitted

affidavits swearing that police misinterpreted his coded words inrecordedphone callswith

the informant, and therefore the police had no probable cause to arrest him for possessing

heroin. After his motion to suppress was denied, Kasp pleaded guilty and admitted that,

contrary to his sworn assertions, the police had correctly interpreted his recorded phone

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 13-2907 Page 2

conversations. Consequently, the court added two levels to Kasp’s base offense level for

attempting to obstruct justice by lying about those phone conversations. Kasp appeals his

sentence, arguing that his lies were not material to the judge’s denial of the motion to

suppress. Because his lies, if believed, could have changed the outcome of the motion, they

were material; therefore, we reject his contentions and affirm.

Background

In advance of a sting operation, an informant working with Chicago police agreed

to lead police to his heroin supplier, George Kasp. The informant had identified Kasp in a

photo and said that he had bought heroin from Kasp in the past. The informant also

reported that Kasp was involved in a criminal street gang. Officers confirmed that Kasp

had multiple prior felony convictions.

With this background information in hand, in December 2011 the police set up the

sting. They recorded a series of phone calls between Kasp and the informant. At the

prompting of police, the informant called Kasp on December 29 to order 200 grams of

heroin. During their first conversation that day, Kasp asked the informant if he wanted

“two times” (which the police recognized as code for 200 grams of heroin). The informant

responded, “yeah,” and Kasp acknowledged “I got you.” Laterthe same day Kasp phoned

the informant and confirmed, “what you want, sleeves? Two sleeves?” (which the officers

understood to be another code for a quantityofnarcotics). Again, the informant agreed and

suggested they meet at a sandwich shop in Chicago, where he previously had bought

heroin from Kasp.

When Kasp entered the shop, two officers approached him and frisked him, and

uncovered heroin inside his pants pocket. The officers arrested Kasp and brought him to

the station for questioning, where he waived his Miranda rights and consented to a search

of his apartment. During the questioning, Kasp admitted that, after his phone calls with the

informant, he had brought 200 grams of heroin to the sandwich shop. Police later searched

Kasp’s apartment where they uncovered a handgun, ammunition, 15 pounds of cannabis,

a large quantity of cash, and drug-trafficking paraphernalia. Hewas indicted for possessing

heroin and marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a

firearm by a felon, 18 U.S.C. § 922(g).
No. 13-2907 Page 3

After his indictment Kasp moved to suppress the drugs and other evidence

uncovered. He argued that the officers did not have probable cause to arrest him or even

reasonable suspicion to frisk him. The phone calls, he insisted, did not suggest that a drug

deal would take place at the sandwich shop because, he swore by affidavit, he went there

only to talk to the informant. Moreover, he argued, in one of the recorded phone calls, Kasp

had told the informant he was “not gonna do [his] thing” because he believed police were

monitoring him. Having heard this comment, Kasp insisted that the officers must have

known that no drug deal would take place on December 29. Kasp urged the court to hold

an evidentiary hearing to resolve “the significant discrepancies between the government’s

interpretation” and his “sworn affidavit interpreting the events” that occurred before his

arrest.

Before it would hold an evidentiary hearing on the motion to suppress, the court

instructed Kasp to specify in another affidavit all the errors in the government’s

understanding of the slang and ambiguous language in the phone calls. Kasp did so. In his

second affidavit, he again swore that he did not arrange a drug deal with the informant on

December 29, and he explained that they were discussing only the possibility of doing drug

business in the future. Kasp also offered alternative meanings to ambiguous and slang

terms in the phone calls. When he said “two times,” he explained that he meant that he was

not asking about a drug quantity, but asking if the informant was going to visit his

girlfriend and “two-time” (be unfaithful to) his wife. And when he asked the informant if

he wanted “two sleeves,” he said that he was asking the informant which drugs he wanted

to discuss at the meeting, marijuana or heroin.

The court denied Kasp’s motion to suppress. It found that the officers had probable

cause to believe Kasp would be carrying narcotics when he arrived at the sandwich shop

on December 29. The judge explained that he based his ruling on both the background

information the officers had about Kasp before the sting began as well as the recorded

telephone conversations between Kasp and the informant.

After the denial of his motion to suppress, Kasp pleaded guilty to possession with

intent to distribute heroin and possession of a firearm by a felon. In the plea agreement, he

admitted that he had agreed to sell to the informant 200 grams of heroin, and brought that

amount with him to the sandwich shop. At sentencing the district judge found that Kasp’s

earlier false statements in his affidavit were material because “his lies ... could have

affected my ruling on his motion to quash and suppress.” The judge elaborated:
No. 13-2907 Page 4

Had I found that his interpretation of the conversations was correct, ... it’s

conceivable that I would have found that even though the officers

misconstrued some of the terms that were used by the defendant in his

conversations with the CI, they still had reasonable grounds for the arrest

because their interpretation was not clearly unreasonable. But I also could

have found to the contrary; namely, that because the defendant didn’t say

anything that could reasonably have led them to believe that he was on his

way to the hot dog stand with drugs in his pocket for the purpose of

delivering them, that they had no reason to believe that he would have drugs

on him when he arrived at the hot dog stand and, therefore, no reasonable

basis to either stop him or arrest him.

Analysis

Kasp’s only challenge on appeal concerned the materiality of his admitted lies

about the meaning of his recorded phone conversations. The court said they were

material because it believed the first translation. The suppression decision could have

gone the other way. Nevertheless, Kasp contends the two-level increase was

inappropriate. He insists that his version of the recorded conversations was irrelevant

because the officers had probable cause to arrest him at the sandwich shop independent

of what he had said on the phone to the informant and regardless of his interpretation

of the coded words.

The sentencing guidelines permit a two-level increase to an offense level if a

defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution, or sentencing of

the instant offense of conviction.” U.S.S.G. § 3C1.1. Committing perjury may warrant

the enhancement. United States v. Taylor, 637 F.3d 812, 817 (7th Cir. 2011); United States v.

Arambula, 238 F.3d 865, 868 (7th Cir. 2001). Perjury occurs when a witness wilfully and

intentionally swears to false, material testimony. United States v. Dunnigan, 507 U.S. 87,

94 (1993); United States v. Riney, 742 F.3d 785, 790 (7th Cir. 2014). We review factual

findings supporting application of § 3C1.1 for clear error, and we review de novo

whether those facts support applying the guideline increase. Riney, 742 F.3d at 790;

United States v. DeLeon, 603 F.3d 397, 402 (7th Cir. 2010).
No. 13-2907 Page 5

The statements in Kasp’s affidavit concerned a material matter because they were

capable of influencing the district court’s decision on his motion to suppress. As used in

the Guidelines, a material statement is one that, “if believed, would tend to influence or

affect the issue under determination.” U.S.S.G. § 3C1.1 cmt. n.6. Application of the

guideline is appropriate even if the false statement does not actually affect the issue

under determination. United States v. Grigsby, 692 F.3d 778, 785 (7th Cir. 2012). It is

enough that the statement could (to a reasonable probability) affect the outcome of the

process, or could influence the decision of the court to which it was addressed. Id.;

United States v. Buckley, 192 F.3d 708, 710 (7th Cir. 1999).

The district judge in this case is uniquely qualified to assess the potential effect of

Kasp’s lies on the judge’s own ruling. He expressly found that the lies “could have

affected [his] ruling on the motion to quash and suppress.” And he explained why: the

judge was open to letting Kasps’s description of the events influence how the judge

evaluated the reasonableness of the officers’ reactions. Moreover, Kasp himself told the

district court that the discrepancies between the officers’ interpretation of the

conversations and his own version of them were “significant.” Under these

circumstances, it was not clear error for the district court to find that Kasp’s statements

could have influenced the outcome of the motion. See DeLeon, 603 F.3d at 403; United

States v. Galbraith, 200 F.3d 1006, 1014–15 (7th Cir. 2000).

Kasp responds that the lies must have been immaterial because, in denying the

motion to suppress, the district court found that the police knew enough, apart from the

phone calls, to justify the search. This is not true. In denying the motion to suppress and

concluding that the officers had probable cause for the arrest and search, the court

relied on more than just the background information that the officers knew about Kasp.

The court specified that it also relied on “the defendant’s recorded telephone

conversations with the CI.” Although, it is true, the judge did not credit Kasp’s version

of those conversations, the decision to discredit a statement does not mean that the

statement did not concern a material matter. See United States v. Gonzalez-Mendoza, 584

F.3d 726, 730 (7th Cir. 2009) (affirming application of enhancement where defendant

lied in affidavit supporting motion to suppress but court did not believe lies).

Because Kasp’s lies about the phone conversations could have affected the ruling

on the suppression motion, the lies were material. Material lying is precisely what the

obstruction enhancement is designed to deter, Grigsby, 692 F.3d at 785; DeLeon, 603 F.3d
No. 13-2907 Page 6

at 405; Buckley, 192 F.3d at 710, so the enhancement was legally proper. Accordingly, the

judgment is AFFIRMED.

AFFIRMED.