18

- 1994

- cr(L) United States v. Rosario

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term, 20 20 4 5 ( Argued : December 2, 2020 Decided: February 2 3 , 2021 ) 6 7 Docket No s

. 18

- 1994

- cr(L), 19

- 2399(CON) 8 9

_____________________________________ 10 11 UNITED STATES OF AMERICA, 12 13 Appellee , 14 15

v. 16 17 IVAN ROSARIO, AKA “GHOST,” 18 19 Defendant

- Appellant

. 20

_____________________________________ 21 22 Before: 23 24 SACK, CHIN, and LOHIER, Circuit Judges

. 25 26 We consider whether the United States District Court for the District of 27 Connecticut (Vanessa L. Bryant, Judge ) made the factual findings required 28 under United States v. Dunnigan , 507 U.S. 87 (1993), before applying an 29 obstruction of justice enhancement un der U.S.S.G. § 3C1.1. Because the 30 District Court did not make the necessary findings at sentencing, the case is 31 REMANDED IN PART for further proceedings consistent with this opinion. 32 In a separate summary order filed simultaneously with this opinion, we 33 dispose of Rosario’s remaining claims. 34 35 36 37 382 M ICHAEL P. J OSEPH , Kliegerman & Joseph, LLP, New 1 York, NY, for Defendant

- Appellant Ivan Rosario. 2 3 J OSEPH V IZCARRONDO , Assistant United States 4 Attorney (Marc H. Silverman, Assistant United 5 States Atto rney, on the brief ), for John H. Durham, 6 United States Attorney for the District of 7 Connecticut, New Haven, CT, for Appellee United 8 States of America. 9 10 P ER C URIAM : 11

Defendant

- Appellant Ivan Rosario appeals from a judgment of the 12
United States District Court for the District of Connecticut (Bryant, J. ), after a 13
jury trial, sentencing him principally to a term of 210 months ’ imprisonment

. 14

As relevant here, Rosario obje cts to the District Court’s imposition of a two

15

level sentence enhancement for obstruction of justice under U.S.S.G. § 3C1.1 16
relating to his trial testimony. He argues that the District Court did not make 17
the findings of fact required before imposing the enhancement. We agree and 18

REMAND IN PART to the District Court for further proceedings consistent 19
with this opinion. In a separate summary order filed simultaneously with 20
this opinion, we dispose of Rosario’s remaining claims. 21

BACKGROUND 22
Rosario was charged with various firearms offenses and conspiring to 23
distribute heroin, as well as witness tampering with intent to influence or 243 prevent testimony, in violation of 18 U.S.C. §§ 1512(b)(1), (b)(2)(A), and (j), 1
and causing or inducing any per son to destroy evidence, in violation of 18 2
U.S.C. §§ 1512(b)(2)(B) and (j). At trial, the Government introduced evidence 3
that Rosario had coerced his child’s mother (who was not his wife , as Rosario 4

was married to another woman ) and his own mother to des troy a mobile 5
phone so that it could not be used as evidence against him on the drug 6
conspiracy charge. In response, Rosario testified that he asked his child’s 7
mother to destroy the phone because it contained recordings of “intimate 8

moments” between them and he did not want his wife to discover th o se 9

videos. See App’x at 258

– 59, 263

. Rosario denied that he ordered the phone 10
destroyed because it held incriminating evidence of his participation in the 11
heroin conspiracy. The jury acquitted Rosario of unla wful possession of a 12
firearm and obstruction of justice based on witness tampering; it was unable 13
to reach a verdict as to the narcotics conspiracy count; and it convicted 14
Rosario of obstruction of justice based on destruction of evidence. 15
At sentencing, the District Court observed that “ the Government is 16
proposing that the Court add two additional points for the defendant ’ s 17
untruthfulness, his perjurious testimony, indicating that he requested the 184 phone be destroyed not because it contained incriminating evidence but 1

because he did not want [his wife] to know that he had consorted with [his 2
child’s mother]

. ” App’x at 441. The District Court later added the following: 3
There is no doubt here, no doubt whatsoever, that [Rosario] elicited the 4 aid of his mother,

. 

### . . and the mother of his child, . . . his paramour at 5 the time, to destroy evidence to evade prosecution and conviction for 6 the charge of conspiracy to distribute and the possession with intent to 7 distribute more than a kilo of heroin. 8 9 App’x at 475. Over Rosario’s objection, the District Court then applied the 10

two

- level enhancement under § 3C1.1 for committing perjury. Rosario was 11
sentenced principally to a term of 210 months ' imprisonment

. 12

DISCUSSION 13

We consider de novo whether the Distri ct Court’s factual findings in 14
support of its perjury enhancement pursuant to U.S.S.G. § 3C1.1 complied 15
with the requirements of United States v. Dunnigan , 507 U.S. 87 (1993). See 16

United States v. Ben

- Shimon , 249 F.3d 98, 102 (2d Cir. 2001). Section 3C1. 1 17
provides for a two

- level enhancement of the offense level if “the defendant 18
willfully obstructed or impeded, or attempted to obstruct or impede, the 19
administration of justice with respect to the investigation, prosecution, or 20
sentencing of the instant of fense of conviction” and the obstructive conduct 215 related to the defendant’s offense of conviction or a closely related offense. 1
U.S.S.G. § 3C1.1. The Guidelines caution that if, as here, a defendant is 2
convicted for obstruction of justice, the § 3C1.1 en hancement “is not to be 3
applied to the offense level for that offense except if a significant further 4
obstruction occurred during the investigation, prosecution, or sentencing of 5
the obstruction offense itself (e.g., if the defendant threatened a witness 6

d uring the course of the prosecution for the obstruction offense).” U.S.S.G. 7
§ 3C1.1 cmt. 7

. 8

In Dunnigan , the Supreme Court held that “if a defendant objects to a 9
sentence enhancement resulting from her trial testimony, a district court must 10
review the evidence and make independent findings.” 507 U.S. at 95. The 11
Court explained that the “concern that court s will enhance sentences as a 12
matter of course whenever the accused takes the stand and is found guilty” is 13
“dispelled” precisely because “the trial court must make findings to support 14
all the elements of a perjury violation in the specific case.” Id. at 96

– 97. 15
Echoing Dunnigan , we have reasoned that a rigid “requirement of fact

16
finding” ensures “that courts will not automatically enhance sentences 176 whenever the accused takes the stand and is thereafter found guilty.” United 1

States v. Catano

- Alzate , 62 F. 3d 41, 42 (2d Cir. 1995). 2
Any sentence enhancement for perjured trial testimony implicates a 3
defendant’s constitutional right to testify in his or her own defense. S ee Rock 4

v. Arkansas , 483 U.S. 44 (1987). The Supreme Court has therefore directed 5

distr ict courts to “make findings to support all the elements of a perjury 6
violation in the specific case , ” Dunnigan , 507 U.S. at 97

— namely, “ that the 7
defendant (1) willfully and (2) materially (3) committed perjury , which is (a) 8
the intentional (b) giving of false testimony (c) as to a material matter , " United 9
States v. Thompson , 808 F.3d 190, 194

– 95 (2d Cir. 2015) (quotation marks 10
omitted) . “[I]t is preferable for a district court to address each element of the 11
alleged perjury in a separate and clear findin g,” although the court can also 12
satisfy these requirements by finding “an obstruction of, or impediment to, 13
justice that encompasses all of the factual predicates for a finding of perjury.” 14
Dunnigan , 507 U.S. at 95

. 15

District courts must take these instruc tions seriously. In Catano

- Alzate , 16
we concluded that the district court’s factual findings were inadequate 17
because it said only that “the Court thinks that the testimony given at trial 187 was not the truth and was material falsehood . . . . [Defendant] chose to testify 1

and not be truthful, a s far as I understand it. I am making those findings by a 2
preponderance of the evidence.” 62 F.3d at 42. In United States v. Williams , 3
we held that “the district court fell short of making the necessary findings” 4
when it stated only that “[b]ased upon t he whole record that I have seen [and] 5
the testimony I have heard, [ the d efendant] obstructed justice.” 79 F.3d 334, 6
337 (2d Cir. 1996) (quotation marks omitted) . As a result, we determined that 7
“[t]he record d[id] not contain the required finding that [ the d efendant] 8
knowingly made a false statement under oath.” Id. at 337. More recently, in 9
Thompson , we determined that relying merely on a pre

- sentence report’s 10

statement s that “[t]he Court expressly characterized [ the defendant’s] 11
testimony as equivoca l, inconsistent, and contradictory,” and that the 12
testimony “could not be credited,” failed to satisfy the requirements of 13
Dunnigan . 808 F.3d at 194

– 95. 14
In defense of the perjury enhancement at issue here, the Government 15
relies largely on the District Court’s statement at sentencing that “[t]here is no 16
doubt . . . that [Rosario] elicited the aid of his mother,

. . . and the mother of 17

his child,

. . . his paramour at the time, to destroy evidence to evade 188 prosecution and conviction for the charg e of conspiracy to distribute and the 1
possession with intent to distribute more than a kilo of heroin.” App’x at 475. 2
For the first time, the Government suggested at oral argument that the 3
District Court’s order denying Rosario’s Rule 29 motion contained the 4
necessary findings. See Oral Arg. at 17:04

– 17:36. In that order, the District 5
Court explained that “the jury could have found Mr. Rosario’s proffered 6
explanation for why he wanted the telephone destroyed not credible.” 7
Special App’x at 7. 8

We disa gree that either of these statements is enough to satisfy the 9
Dunnigan requirement. 1 In neither did the District Court make the findings 10

we have demanded . For example, the District Court did not identify the 11
“statements on which the perjury finding was grounded.” Ben

- Shimon , 249 12
F.3d at 104. Nor did it make “explicit findings that [defendant’s] 13

1 We hesitate to rely on the District Court’s order denying Rosario’s Rule 29 motion for two additional reasons. First, in the context of a Rule 29 motion, the District Court need only have asked whether any rational fact finder could have found Rosario’s t estimony not credible, see United States v. Martoma , 894 F.3d 64, 72 (2d Cir. 2017), not whether Rosario intentionally, willfully, and materially committed perjury, see Dunnigan , 507 U.S. at 97. Second, the factual findings to support a perjury enhancemen t in response to a defendant’s objection to the enhancement must be provided at sentencing

. See, e.g. , Ben

- Shimon , 249 F.3d at 102

– 03

.9 testimony

. . . was intentionally false,” United States v. Norman , 776 F.3d 67, 1
84 (2d Cir. 2015), or that Rosario “knowingly made a false statement under 2

oath, ” Williams , 79 F.3d at 337. We see no discussion, let alone a finding, of 3
whether Rosario “consciously acted with the purpose of obstructing justice.” 4
United States v. Zagari , 111 F.3d 307, 328 (2d Cir. 1997) (quotation marks 5
omitted). 6

The Government invites us to review the district court record ourselves 7
to determine that Rosario obviously perjured himself. We decline to do so. In 8

Ben

- Shimon , we concluded that it “does not suffice for us to decide that [ the 9
defendant] made obvious mi srepresentations” because “the district court was 10
nonetheless required to reference the statements on which the perjury finding 11
was grounded.” 249 F.3d at 104; see also Williams , 79 F.3d at 337 (explaining 12
that while it “may be true” that defendant’s “tes timony was so inherently 13
untruthful that the factual prerequisites to a perjury enhancement are 14
obvious,” this “cannot relieve the district court of the burden of making its 15

own independent findings”). “Nothing in Dunnigan can be read to suggest 16

that a se parate finding of willful perjury is unnecessary where the perjury is 17

obvious.” Williams , 79 F.3d at 337. Whatever we think of the evidentiary 1810 record, the District Court was separately required to make specific factual 1
findings to support the application of the perjury enhancement. Because the 2
District Court failed to make those findings, we remand to permit it to do so 3

in the first instance. 4

CONCLUSION 5
For the foregoing reasons, the case is REMANDED IN PART to the 6
District Court to make any further find ings in support of its enhancement 7
under § 3C1.1. If the District Court determines on remand that the facts do 8
not justify the enhancement for committing perjury, then Rosario must be 9

resentenced. We consider and reject as without merit Rosario’s remaining 10
arguments in a summary order filed simultaneously herewith. 11