# Unit ed Sta tes Cou rt of Appeals
For the Seventh Circui t Chic ago, I lli nois 60604 Arg ued March 5, 2014 Deci ded Septe mber 2, 2014

Before

FRANKH. EASTERBROO K, Circ uit Judge

DANIEL A. MANIO N, Circ uit Judge
DAVID F. HAMILTON, Circ uit Judge

No. 13-2907

UNITED STATES OF AMERI CA, Plaintiff-Appellee ,

v.
GEORGE KAS P Defen dant-Appellant. Appeal from the United Stat es Di stric t Courtfor t he Nort hern Di stric t of Illinoi s, Eastern Di vis i on.
No. 11-CR-00920 John F. Grady, Judge.

O R D E R Georg e Kasp was arr est e d d u ring a sting oper ation when he atte mpted to sell heroin to a poli ce informant. In moving to supp ress drugs found after hi s arr est, Kasp sub mi tte d
a ffi davits swearing that poli ce mi sinterpr eted hi s coded word s in re c or d e d p h one c a l l s w i th the informant, and there fore the poli ce had no probable caus e to arr est hi m for possess i ng heroin. After hi s motion to su ppress was deni ed, Kasp pleaded gui lty and admi tte d that, contrar y to hi s sw or n ass ert i ons, the polic e had cor rectly interpr eted hi s r ecorded phone NON PRECEDENTIAL DISPOSITION To be ci ted only in acc or dance w i th Fed. R. App. P. 32.1No. 13-2907 Page 2

conver sati ons. C o ns equently, the court added t wo levels to Kasp’s base offense lev el for atte mpting to obstruct justic e by lyin g about those phone conver sati ons. Kasp appeals hi s sentence, arg uing th a t his li es were not material to the judge’ s deni al of the motion to supp ress. Becaus e hi s li es, i f beli eved, could have changed the outcome of the motion, they were mater i al; therefo re, we reject his contentions an d affi rm. Background

In advance of a sting oper ation, an informant work ing wi th Chi cago poli ce agr eed to lead poli ce to hi s heroin supp li er, Georg e Kasp. The informant had i denti fi ed Kasp i n a p ho t o and sai d that he had bought heroin from Kasp in the past. The informant also repo rt ed that Kasp was involv ed in a cri minal street gang. Offi cers confi rmed that Kasp had mu ltip le prior felony convicti ons.
Wi th thi s backgro und information in hand, in December 2011 the poli ce set up the sting. They recor ded a seri es of phone calls between K a sp a nd the informant. At the prompting of poli ce, t he infor mant called Kasp on December 29 to or der 200 gr ams of heroin. During their fi rst conver sati on that day, Kas p a sk e d t he informant i f he wanted “two tim es” (wh i ch the poli ce recog ni zed as code for 200 gr ams of heroin). The informant responded, “yeah,” and Kasp acknowledged “I got you.” Later the same day Kasp phoned the informant and confi rmed, “what you want, sleeves? Two sleeves?” (wh i ch the offi cers understood to be another code for a quanti ty of narcotics ). Again, the informant agr eed and suggested they meet at a san d wic h sh o p in Chi cago, where he prev i ously had bought heroin from Kasp.

When Kasp enter ed the shop, two offic e r s a p proached hi m and fri sked hi m, and
unc ov ered her oininsi de hi s pants pocket. The offi cers arre sted Kasp and brought hi m to the station for questi oni ng, where he wai ved hi s Miranda rights and consented to a search of hi s apartment. During the questi oni ng, Kasp admi tte d that, after hi s phone calls wi th the informant, he had brought 200 gr ams of heroin to the sandw i ch shop. Poli ce later searched Kasp’s apartment where they unc ov ered a handgun, ammu ni tion, 15 pounds of cannab i s, a large quanti ty of cash

, and drug-tr affi ckin g p a ra p h e rn a l i a
. H e w a s in d i c ted for possess i ng heroin and mari

juana wi th intent to d ist rib ute, 21 U.S.C. § 841(a)( 1), and possess i on of a fi rear m by a felon, 18 U.S.C. § 922(g).No. 13-2907 Page 3

After hi s indi ctment Kasp moved to supp ress the d rugs and other evidenc e unc ov ered. He arg ued that the offi cers di d not have probable caus e to arre st hi m or even reasonable sus pi ci on to fri sk hi m. The phone calls, he insi sted, di d not suggest that a drug deal would take place at the sandw i ch shop becau se, he swore by affi davit, he went there only to talk to the informant. Mor eov er, he arg ued, in one of the recor ded phone calls, Kasp had told the informant he was “not gonna do [hi s] thi ng” becau se he beli eved poli ce were moni tor ing hi m. Havin g heard thi s comment, Kasp insi sted tha t t he offi cers mus t have known that no drug deal would take place on December 29. Kasp urged the court to hold
an evidenti ary hearin g to resolv e “the si gni fi cant di screpanc i es between the gov ernment’s interpr etat i on” and hi s “sworn affi davit interpr eting the events” that occu rr ed before hi s arr est.
Before i t would hold an e v ide nt ia r y hearin g on the motion to supp ress, the court instructed Kasp to speci fy in another affi davit all the err or s in the gov e r nm e nt ’ s understanding of the slang and ambi guous language in the phone calls

. Kasp di d so. In hi s second affi davit, he again swore that he di d not arr ange a drug deal wi th the informant on December 29, and he explain ed that they were di scu ssing only the possi bi li ty of doin g drug bus iness in the future. Kasp also offered alter nati ve meaning s t o a mbiguous and slang ter ms in the phone calls

. When he sai d “two tim es,” he explain ed that he meant that he was not asking about a drug quanti ty, but a sking i f the informant was going to vis i t hi s girlfri end and “two-tim e” (be unfai thful to) hi s wi fe. And when he asked the informant i f he wanted “two sleeves,” he sai d that he was asking the informant whi ch drugs he wanted to discuss at the meet ing, marijuana or hero in.
The court deni ed Kasp’s motion to supp ress. It found that the offi cers had probable
caus e to beli eve Kasp would be carry ing n arcot i cs when he arr i ved at the s andwi ch shop
on December 29. The judge expla ine d t hat he based hi s ruli ng on both the backgro und information the offi cers had about Kasp before the sting began a s well as the recor ded telephone conve rsations b etween Kasp and the informant.

After the den i al of hi s motion to su ppress, Kasp pleaded gui lty to possess i on wi th intent to di strib ute heroin and possess i on of a fi rear m by a felon. In the plea agr eement, he admi tte d that he had agr eed to sell to the informant 200 gr ams of heroin, and brought that amount wi th hi m to the sandw i ch shop. At sentencing the di stric t judge found that Kasp’s earlier false statements in hi s affi davit were material becau se “hi s li es
... could have affec ted my r uling on hi s moti on to quashand su ppress.” Th e judge e laborat ed:No. 13-2907 Page 4

Had I found t hat hi s interpr e t a t io n o f t he conver sati ons was corr ect,

... i t’s concei vable that I would have found that even though the offi cers misconstrued some of the ter ms that were used by the defendant in his
conv e r sa t ions wi th the CI, they sti ll had reasonable gr ounds for the arr est becau se their interpr etat i on was not clearly unreasonable. But I a l so could have found to the contrar y; namely, that becau se the defendant di dn’t say anythin g thatcould reasonably have led them to beli eve that he was on hi s way to the hot dog sta nd wi th drugs in hi s pocket for the purpose of deli ver ing them, that they had no reason to beli eve that he would have drugs
o n him when he arr i ved at the hot dog stand and, there fore, no reasona bl e basi s to either stop himor arr est hi m. Analysis Kasp’s only challenge on appeal concerned the materiali ty o f hi s admi tte d li es about the meani ng of hi s recorded phone conv ersations. The court sai d they were material bec ause i t beli eved t he fi rst t ranslati on. The su ppressi on deci si on could have gone t he other way. Never theless, Kasp c ontends the two-lev el increase was inappropr i ate. He in si sts that hi s version of the recor ded conversations w as i rr elevant becau se the offi cers had probable cau se to ar rest himat the sandwi ch s hop i ndependent of what he had s ai d on the phone to the in formant and reg ardless of hi s interpr etat i on of the coded words.

The sen tencing guid elines permi t a two-lev el increase to an offense level i f a defendant “wi llful ly obstr ucted or imp eded, or atte mpted to o bstruct or impede, the admini strat i on of j usti ce wi th respect to the investigation, prosecuti on, or sentencing of the in stant offense of convi cti on.” U.S .S.G. § 3C1.1. Commi tting perj ury may warr ant the enhancemen t. United S tat es v. Taylor , 637 F.3d 812, 817 (7th Cir. 2011); United S tat es v. Arambula , 238 F.3d 865, 868 (7th Cir. 2001). P erj ury o ccu rs when a w i tness w i lfull y and intentionally sw ears to false, m ater i al testim ony. United S tat es v. Dun nigan , 507 U.S. 87, 94 (1993) ; United S tat es v. Rin ey, 742 F.3d 785, 790 (7th Cir. 2014). We review f actual findings su pport ing appli cati on of § 3C1.1 for clear err or, and we reviewde novo whether tho se fac ts supp or t applying the gui deline increase. Rin ey, 742 F.3d at 790; United S tat es v. DeL eon , 603 F.3d 397, 402 (7th Cir. 2010).No. 13-2907 Page 5

The statements in Kasp’s affi davit conc erned a mater i al matter becau se they were capabl e of i nflu encing the dis tr i ct court’s deci si on on hi s moti on to supp ress. As us ed in the Gui delines, a materi al statement is one that, “i f beli eved, would tend to influ ence or affec t the iss ue under determinati on.” U.S .S.G. § 3C1.1 cmt. n.6. Appli cati on of the gui deline i s appropriate even if the fal se statement does not actually affec t the iss ue under deter minati on. United S tat es v. Grigsby, 692 F.3d 778, 785 (7th Cir. 2012). It i s enough that t he statement could (to a r easonable probabi li ty) affect the outcome o f the process, or could i nflu ence the deci si on of the court to whi ch i t was addressed. Id. ; United S tat es v. Buckley, 192 F.3d 708, 710 (7th Cir. 1999).

The di stric t j udge i n thi s cas e i s un i quely quali fi ed to assess the potential effect of Kasp’s li es on the judge ’s own ruling. He expr essly found that t he li es “could h ave affec ted [hi s] ruling on the mot i on to quashand su ppress.” And he explained why: the judge was open to letting Kasps’s d escri ption of the events influenc e how the judge evaluated t he reasonableness of the offi cers’ reactions. Moreo ver , Kasp hi mself told the di stric t courtthat t he di screpanc i es between the offi cers’ interpr etat i on of the
conver sati ons and hi s own versi on of them were “si gni fi cant.” Under these ci rcums tances, i t was not clear er ro r for the di stric t courtto find that K asp’s s tate ments could have influ enced the outcome of the mot i on. See De Leon , 603 F.3d at 403; United States v. Ga lbraith , 200 F.3d 1006, 1014–15 (7th Cir. 2000). Kasp responds that the lies mus t have been im material bec ause, in denying the motion to suppress, the di stric t courtfound that the polic e knew enough, apartfrom the phone calls, to j usti fy the search. Thi s i s not tr ue. In denyi ng the mot i on to supp ress and conclu ding that t he offi cers had probable cau se for the ar rest and search, the court relied on more than j ust the backgro und information that the o ffi cers knew about Kasp. The court speci fi ed that it also relied on “the defendant’s recor ded telephone
conver sati ons wi th the CI .” Although, it i s true, the j udge di d not credit Kasp’s version of those conver sati ons, the deci si on to di scredi t a state ment does not mean that t he statement did n ot concern a mater i al matter

. See Un ited States v. Go nzalez-Mendoza, 584 F.3d 726, 730 (7th Cir. 2009) ( affi rmi ng appli cati on of enhancement where defendant li ed in affi davit su pport ing motion to suppress bu t courtdi d not beli eve lies)

.
Becaus e Kasp’s li es about the phone conver sati ons could h ave affected the r uling on the suppressi on motion, the li es were material. Mater i al lyi ng i s preci sely what the obstruction enh ancemen t is desi gned to deter, Grigsby, 692 F.3d at 785; DeLeon , 603 F.3dNo. 13-2907 Page 6

at 405; Buckley, 192 F.3d at 710, so t he enhanc ement was legally proper . Accordingly, t he judgment is AFF IRM ED.

AFF IRMED.