The opinion of the court was delivered by: JACK B. WEINSTEIN
Found guilty of importation and possession of heroin with the intent to distribute it, defendant objects to Probation's Guideline calculation penalizing him for committing perjury at his jury trial. For reasons stated below his contention must be sustained even though he repeatedly told material untruths.
Defendant is 35 years old and a citizen of Nigeria. His wife and infant child live with him in the United States. On December 10, 1991 he was detained by United States Customs officials at John F. Kennedy Airport upon arriving on a flight from Holland. He consented to an x-ray examination that revealed foreign bodies in his digestive tract. Following his arrest, he passed 103 balloons containing a total of 427.4 grams of heroin. Defendant refused the government's pretrial offer of a plea agreement that probably would have resulted in a sentence of about 30 months imprisonment.
At trial, the government proved that defendant used two passports to travel between the United States and Nigeria eight times during 1990 and 1991. Employed during these years as a toll collector at the George Washington Bridge, he was fired for unexcused absences caused by his frequent travel. His $ 12,000 annual salary would not have covered the cost of his trips.
His testimony in his own defense that he travelled between Nigeria and the United States only four times and that the trips did not involve drugs was clearly untrue. The jury rejected it when they found him guilty.
II. OBSTRUCTION OF JUSTICE ENHANCEMENT
Guidelines § 3C1.1 directs: "If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels." The commentary to the Guidelines points to the instance of a defendant "committing . . . perjury" as an example of the type of conduct to which the enhancement applies. Guidelines § 3C1.1 comment 3.
The Court of Appeals for the Second Circuit has held that false trial testimony is an "appropriate" basis for a § 3C1.1 enhancement if the defendant's testimony relates to an essential element of the crime for which the jury ultimately convicts him. United States v. Bonds, 933 F.2d 152, 155 (2d Cir. 1991); see also United States v. Matos, 907 F.2d 274, 275-76 (2d Cir. 1990) ("there is no constitutional bar to an enhanced sentence" under § 3C1.1 for false testimony of defendant at trial).
The question whether uniform application of a § 3C1.1 enhancement for false testimony violates a defendant's constitutional rights is troubling. The Fourth Circuit, while noting that consideration of a defendant's lies on the stand was constitutionally permissible in the highly discretionary pre-Guidelines era, see United States v. Grayson, 438 U.S. 41 (1978), has ruled that the "rigidity" of Guideline § 3C1.1 renders the enhancement "an intolerable burden on the defendant's right to testify in his own behalf." United States v. Dunnigan, 944 F.2d 178, 185 (4th Cir. 1991), cert. granted, 112 S. Ct. 2272 (1992).
The Second Circuit avoided the constitutional issue and justified its finding that application of § 3C1.l to trial testimony does not violate a defendant's constitutional rights by relying on the Supreme Court's pre-Guidelines holding, in United States v. Grayson, 438 U.S. 41 (1978), that a defendant may, but need not be, penalized at sentencing for making false statements at trial. United States v. Bonds, 933 F.2d 152, 155 n.2 (2d Cir. 1991). The Court in Grayson, mindful of the pressures inherent in a rigid rule such as the one now contained in § 3C1.1, was also careful to limit its holding. It stated, "Nothing we say today ...