Thursday, July 14, 2005

Another Advantage of a Less Detailed Affidavit in Support of a Suppression Motion

United States v. Luis Agudelo, Docket No. 04-2223-cr (2d Cir. July 13, 2005) (Pooler, Parker, and Castel, D.J.) (Op. by Parker): Defense lawyers are generally well aware of the tactical advantages of filing a less detailed affidavit, rather than a more detailed one, from a client in support of his or her suppression motion. After all, the only real goal of the affidavit is to put in enough facts to warrant an evidentiary hearing, and any additional details beyond the bare essentials just gives unnecessary notice to the prosecution as well as additional ammunition for its cross of the client. This case demonstrates an additional -- and especially important -- advantage that the less detailed affidavit has over the more detailed one: Your client is less likely to receive an obstruction enhancement even if the district judge buys the Government's story at the hearing and denies the motion. Fortunately for Mr. Agudelo, his affidavit was sufficiently vague: The Circuit ruled that the district judge clearly erred in finding the affidavit "knowingly false" and thus warranting a 2-level obstruction enhancement under § 3C1.1, because it was just as likely that the defendant simply "misremembered" the relevant events rather than lied about them. The decision also contains some great language warning district courts against applying the obstruction enhancement simply because they have denied the suppression motion.

The relevant facts are simple. Agudelo filed a pretrial suppression motion, supported by his affidavit. Among other things, he stated that "at one point, I told the agents that I wanted to speak to a lawyer but they did not cease their questioning. Instead, they told me, in substance, that I would be able to see a lawyer at a later point in time." Op. at 7.

Mr. Agudelo did not testify at the suppression hearing. The two agents who interrogated him did, however, and testified that Agudelo did not ask for a lawyer at this time. However, one of the agents admitted that "I may have described to [Agudelo] the process which would take place after he's brought down to the marshals and pretrial and all that stuff," and that he "would be able to have a lawyer with him for his initial appearance." Op. at 8.

The district judge credited the agents' testimony and denied the motion. At sentencing following Agudelo's conviction, the judge imposed the 2-level obstruction enhancement, concluding that his affidavit was "knowingly false." Op. at 5. (Note: the court also imposed the enhancement on an alternative ground, which was upheld by the Circuit).

On appeal, the Circuit ruled that the district judge's finding that Agudelo's statements were knowingly false was clearly erroneous. Crucially, the Court distinguished the case before it from an earlier case relied upon by the district court -- United States v. Lincecum, 220 F.3d 77 (2d Cir. 2000). In Lincecum, the defendant filed a detailed affidavit in support of a suppression motion in which he specifically stated that he requested to see a lawyer on three distinct occasions -- once at his house, once in the car with the agents, and once in the interrogation room. Agents testified at the hearing, however, that Lincecum never requested to speak with an attorney, and the court credited their testimony. It also imposed an obstruction enhancement, finding that Lincecum's affidavit was knowingly false. The Circuit affirmed, agreeing that he had made an "obvious lie."

Distinguishing Lincecum, the Court in this case pointed out that "Lincecum's three detailed statements reeked of fabrication because he could not have simply misremembered so much detail." Op. at 8. "On the other hand," however,

"Agudelo's two sentences averring that he had asked for a lawyer were far more vague. Moreover, his statement that, 'they told me, in substance, that I would be able to see a lawyer at a later point in time,' was actually supported by the cross-examination of one of the agents . . . [who] admitted having told Agudelo that he would be able to have a lawyer with him for his initial appearance."

Op. at 8. Under these circumstances, the Court concluded, "rather than willfully fabricating the affidavit in order to obstruct justice, Agudelo may well have simply misunderstood the agent's comments or misremembered the chronology of the conversation." Op. at 9. It thus found that "the District Court committed clear error in finding . . . that Agudelo submitted a knowingly false affidavit." Id.

The Court then threw in some very nice comments to explain why "extending Lincecum even to Agudelo's vague affidavit" carries "significant risks." Op. at 9. First, such an extension would mean that a defendant would "automatically be subject to an enhancement for obstruction of justice if the suppression motion is denied," which flouts the Supreme Court's command in United States v. Dunnigan, 507 U.S. 87, 94 (1993), that the enhancement is appropriate only where the defendant acts "with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." Even better, the Court adds that "[e]xtending Lincecum to these facts would also raise the troubling prospect that future defendants might either be deterred from pressing arguably meritorious Fourth Amendment claims or unfairly punished when they do." Op. at 9.

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