Lying to Procure a Free Lawyer: Is it Obstruction of Justice?

John Bernans, Associate Member, University of Cincinnati Law Review

A sentencing enhancement[1] applies when “the defendant willfully obstruct[s] or impede[s], or attempt[s] to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and the obstructive conduct relate[s] to the defendant’s offense of conviction and any relevant conduct; or a closely related offense.”[2] U.S.S.G. §3C1.1 was meant to punish individuals who intentionally obstruct justice through different actions in their prosecution.[3]

The commentary to this section also lists examples of obstruction, which include producing a “false, altered, or counterfeit document or record during an official investigation or judicial proceeding” and “providing materially false information to a judge or magistrate judge.[4] The theory behind the enhancement is misleading a magistrate or obstructing justice in some other way will interfere with the disposition of criminal charges against the defendant and waste valuable judicial resources.[5] Circuits are divided on what actions fall under the obstruction enhancement and the main debate between the Fifth and Second Circuits is whether lying on a financial affidavit in order to obtain free counsel is obstruction of justice.[6] The disagreement among these circuits is over whether the defendant’s false statements intended to obstruct the criminal proceeding.[7] According to the holdings from the Fifth and Second Circuits, lying on your financial affidavit to obtain free counsel should fall within the definition of obstruction of justice and lead to a sentence enhancement.

United States v. Iverson

The Fifth Circuit held procuring the financial resources of a court under false pretenses interferes with the proper administration of the criminal justice system.[8] This holding by the Fifth Circuit in Iverson is the most recent decision on whether lying to obtain free counsel qualifies for enhancement under obstruction of justice.

Michael Iverson pled guilty to failure to register as a sex offender.[9] Iverson was required to register under the Sex Offender Registration and Notification Act because he had been convicted of rape and kidnapping in New York.[10] Because he was classified as a sexually violent offender under New York law, Iverson had to register every 90 days.[11] Although Iverson moved to Texas in 2013, he never registered in the state.[12] The authorities learned about Iverson’s failure to register when they arrested him in Guadalupe County on a parole violation warrant.[13] The district court imposed a thirty-seven month sentence, which included a two-level enhancement for obstruction of justice.[14] The pre-sentence report (PSR) recommended that enhancement because Iverson “admitted to intentionally lying to U.S. Pretrial Services regarding the value of his assets with intentions to make himself appear more destitute.”[15] Iverson claimed the value of three vehicles he owned was $5,500, much less than the $18,500 later listed on his PSR.[16]

The Fifth Circuit relied heavily on the two-part test from U.S.S.G. §3C1.1. The court stated the defendant must willfully obstruct or impede the administration of justice and the obstructive conduct relates to the defendant’s conviction.[17] “On its face, that language appears to include lying to a court to obtain free counsel.”[18] The Fifth Circuit ruled on this issue before in two unpublished cases and relied on this reasoning to enforce its precedent.[19] In both of these cases, the court held that lying on your financial affidavit could serve as a basis for the obstruction adjustment.[20] The court also pointed to other circuits that agreed with their line of reasoning.[21]

Both the Ninth and Eleventh Circuits have applied sentence enhancement to false statements made to a court in connection with obtaining appointed counsel.[22] The Fifth Circuit reasoned regardless of when a false statement seeking appointed counsel is exposed, there is a more direct effect on the administration of justice than occurs when a defendant lies about using drugs or some other pretrial circumstance.[23] The appointment of counsel affects the entirety of the case—discovery, plea or trial, sentencing, and notice or appeal—and, among other things, discovery of the false statement might cause delay if new counsel needs to be engaged.[24] Due to the effect on the judicial proceeding as a whole, the court held Iverson had willing obstructed or impeded justice.[25] The court reasoned the appointment of counsel affects so much of the judicial process and for that reason, the court affirmed the judgment of the district court that enhanced the sentence for Mr. Iverson.

Lying to a judicial officer is more obstructive than lying to a law enforcement agent.[26] Lying to a judge, magistrate or other judicial officer has a direct effect on the judicial proceeding at hand.[27] The Fifth Circuit looked at the Second Circuit’s decision in Khimchiachvili and addressed their holding as it came out the opposite of what the Fifth Circuit believed. We have recognized that attempts to improperly influence judicial proceedings more directly interfere with the administration of justice than does similar conduct occurring in non-judicial contexts.”[28] The Fifth Circuit underscored the importance of the identity of the person to whom the false statement is provided.[29] The court also noted the commentary in the statute lists “providing materially false information to a judge” and producing a false document during an investigation or judicial proceeding as examples of obstructive conduct without any need to show the effect of the conduct.[30] The court in Iverson even went as far as saying that lying to a judicial officer can be seen in most cases to be “per se corrupt,” because of the effect that it can have on the proceeding.[31] Overall, lying in order to obtain free appointed counsel does call for enhancement because of the effect that counsel has on the proceeding and the fact that the defendant lied to a judicial officer.[32]

United States v. Khimchiachvili

To enhance a sentence for obstruction of justice, “the court must find that the defendant’s statements unambiguously demonstrate an intent to obstruct.”[33] In the case of United States v. Khimchiachvili, the court found the defendant swearing to a false financial affidavit in order to obtain appointed counsel did not reveal the required obstructive intent.[34] As the sentencing judge stated, “[t]he motivation for [Mr. Englert’s false financial affidavit] is obvious—he did not want to pay for a lawyer.”[35] “He was not seeking to prevent justice or even delay it.”[36]

George Englert and his co-defendants were investigated for an elaborate scheme of mortgage and wire fraud.[37] They were suspected of participating in a scheme to convince individuals that they represented a trust that had substantial assets to lend, when in fact, there were no assets.[38] Defendants would convince these individuals—generally entrepreneurs seeking financing—to pay them substantial “performance guarantees” in exchange for loans, knowing that their trust would never provide the sought-after loans.[39] The United States Attorney warned Mr. Englert that he might be a material witness in the investigation and it advised that he obtain counsel.[40] Mr. Englert followed that advice and sought counsel.[41] Englert submitted a financial affidavit, swore to its accuracy, and based on the affidavit, was appointed counsel free of charge.[42] One and a half years after the appointment of counsel, Englert pleaded guilty to charges of mortgage fraud, wire fraud, and conspiracy to commit wire fraud.[43] In connection with his pre-sentence report, Englert submitted to the Probation Office a Net Worth Statement and a Cash Flow Statement listing his total assets as $817,000 and his liabilities as $345,000.[44] Based on the new report, the United States Attorney argued that Englert’s first financial affidavit must have clearly been false when he filed the report.[45] Further, the attorney argued that this false affidavit constituted obstruction of justice worthy of a two-level enhancement pursuant to USSG §3C1.1.[46] The district court judge agreed with the U.S. Attorney and allowed the two-level enhancement.[47]

The defendant’s swearing to a false financial affidavit in order to obtain appointed counsel did not reveal the required obstructive intent.[48] As the sentencing judge stated, ““[t]he motivation for [Mr. Englert’s false financial affidavit] is obvious—he did not want to pay for a lawyer.”[49] “He was not seeking to prevent justice or even delay it.”[50] The court held an enhancement for obstruction of justice is therefore only warranted if the court finds that the defendant willfully and materially impeded the search for justice in the instant offense.[51] The Second Circuit had decided on what constituted obstruction of justice in the case of United States v. Stroud.[52] In Stroud, the Circuit considered whether a defendant’s flight from an arresting officer could provide the basis for an obstruction of justice charge.[53] In the Stroud case, the Second Circuit’s decision hinged on the word “willfully” as used in §3C1.1.[54] In order for an enhancement to be applied, the court held  the defendant had to consciously act with the purpose of obstructing justice.[55] In both the Stroud case and Mr. Englert’s case, the court held  they did not find the intent to purposefully obstruct justice.[56] In Stroud, the defendant’s purpose was to avoid apprehension and in the present case, the defendant wanted to obtain a free lawyer.[57] Ultimately, the court stated by lying on his financial affidavit, the defendant changed only one thing: assigned counsel under the Criminal Justice Act.[58] The court believed had Englert not filed a false affidavit, counsel would nevertheless have represented him, and there would not have been any effect on the outcome of the case.[59] Because the court found  Mr. Englert did not purposefully intend to obstruct justice and it had very little effect on the proceedings, the judgment of the conviction was vacated and remanded.[60] The court concluded by saying, “What happened here may amount to fraud. Indeed, in the words of the district court judge, it was ‘reprehensible’ and could provide the basis for an enhanced sentence. But that alone is not a justification for an obstruction of justice adjustment.”[61]

Lying Your Way to a Free Lawyer

Falsifying a financial affidavit in order to obtain free counsel is obstruction of justice and should be given the two-level enhancement the law requires. The Fifth Circuit’s reasoning and eventual holding in the case of U.S. v. Iverson is the appropriate decision as it ensures defendants are held accountable for making a false statement to a judicial officer and saves valuable judicial resources.

The language of U.S.S.G. §3C.1.1 indicates that lying about your financial status to obtain a free lawyer does fall within the definition of obstruction of justice. When deciding the Iverson case, the Fifth Circuit notes, “On its face, [the] language appears to include lying to a court to obtain free counsel.”[62] Specifically, the statute says when a defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice,” this is seen as obstruction of justice.[63] A lawyer affects numerous aspects on a judicial proceeding and when a defendant fraudulently represents himself to obtain free counsel, the impact can be seen from start to finish in the motions they file and the services they perform once appointed. A lawyer acting on behalf of a defendant is active in all parts of a client’s representation. Consequently, if the false financial affidavit and statement is discovered during trial or brought to light in sentencing, this could delay the entire proceeding and thereby obstruct the administration of justice. It is important to note that comment 4 to U.S.S.G. §3C1.1 listed examples of obstruction of justice to include producing a false, altered, or counterfeit document or record during an official investigation or judicial proceeding and providing materially false information to a judge or magistrate judge. A falsified financial affidavit easily falls into the false document or providing false information to a judge or magistrate category. The plain language of the law is something that is very important as it outlines the legislature’s intent and lists examples of what falls under the obstruction statute. This language should be taken into consideration when analyzing if a false statement has obstructed justice.

The identity to whom the false statement was made is an important factor when analyzing obstruction of justice. This factor is something that the Fifth Circuit relied heavily on throughout the Iverson case. It is also a factor that the Fifth Circuit felt the Second Circuit overlooked in Khimchiachvili. Unlike the Second Circuit, the Fifth Circuit makes a significant distinction between making a false statement to law enforcement officials and a judicial officer. Making a false statement to either official is never a good idea, but deceiving a judicial officer improperly influences a judicial proceeding much more than lying to law enforcement as a judge or magistrate is directly involved with the administration of justice. A law enforcement officer has little power over the actual judicial proceeding. Their role is more in the investigation stage. An affidavit is taken under penalty of perjury and the consequences of this conduct should be subject to greater penalty. The financial affidavit is given to the defendant directly from the court and plays a larger role in judicial proceedings than an affidavit from law enforcement. Because the financial affidavit directly involves the judicial proceeding and is given by a judge or magistrate, lying on that affidavit is obstruction of justice and should be subject to sentence enhancement.

The Second Circuit came to the incorrect conclusion when they ruled that lying on a financial affidavit to obtain free counsel is obstruction of justice. The Second Circuit relied on the fact that the defendant must intend to obstruct the proceeding. However, this is exactly what the defendant intends to do when they lie on the affidavit. Even the reporting of incorrect information violates the statute because the defendant is knowingly reporting something that is not true. The language of the statute includes producing a false or altered document and this would cover a defendant who reports incorrect information on a document for the court. When the defendant makes such false representations, they are intending to defraud the court. This decision by the defendant can delay proceedings and interrupt the administration of justice. When someone is appointed a lawyer, this is part of the justice system and a pivotal moment for the defendant. This is a process that the defendant intentionally deceives and defrauds when they decide to lie. In Khimchiachvili, the Second Circuit even admits that lying in order to obtain free counsel could be obstruction. They state, “A court could find that a defendant’s false statement on a financial affidavit submitted in an application to obtain appointed counsel was made with willful intent to obstruct justice.” What the courts should focus on going forward is intent – the defendant’s intent to defraud the justice system. Deceiving the court to obtain counsel is obstruction as it defrauds the defendant’s legal proceeding and interferes with the administration of justice.

Public policy demands that lying to obtain free counsel be deemed obstruction of justice and punished accordingly. In a criminal justice system that is already slim on resources and bogged down with a tremendous caseload, lying to obtain free counsel should be punishable. This act by the defendant takes away valuable resources from indigent defendants who need appointed counsel. In the case of Iverson, the defendant underreported his assets by $13,000 and the defendant in Khimchiachvili valued his assets at $817,000 after first saying they needed appointed counsel. Both individuals could have easily paid for their counsel and saved the resources for an indigent client who truly could not afford an attorney. In a country where the criminal justice system is already so slanted against indigent defendants, the courts need to ensure every resource available is going to the appropriate party.

Conclusion

When a defendant lies on their initial financial affidavit to obtain free counsel, this is obstruction of justice because it interferes and impedes the administration of justice. Looking at the plain language of the statute, one can see this act clearly interferes with the proper administration of justice. The Fifth Circuit also acknowledged when the identity of who the defendant is lying to is a judge or magistrate, it calls for an obstruction sentence enhancement. Lastly, public policy calls for such actions to be obstruction of justice to ensure that judicial time and resources are not wasted and given to people who do not need them. Overall, when a defendant lies on their financial affidavit, they are defrauding the justice system, interfering with judicial proceedings, and this action calls for a sentence enhancement.

[1] A sentence enhancement is an increase in punishment from a standard crime sentence

[2] U.S.S.G. §3C.1.1.

[3] See Generally U.S. v. Iverson, 874 F.3d 855 (5th Cir. 2017)

[4] U.S.S.G. §3C.1.1. at cmt. N.4(C), (F)

[5] Iverson, 874 F.3d at 859

[6] Id. at 858

[7] Id. at 859

[8] Id. at 858

[9] Id. at 857

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 858

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] United States v. Sanchez, 227 Fed.Appx. 412 (5th Cir. 2007) and United States v. Resendez, 1999 WL 499774 (5th Cir. 1999)

[20] Sanchez, 227 Fed.Appx. 413

[21] Iverson, 874 F.3d at 858

[22] Id.

[23] Id. at 860

[24] Id.

[25] Id.

[26] Id. at 859

[27] Id. at 859

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] United States v. Kelly, 147 F.3d 172, 178 (2d Cir. 1998)

[34] United States v. Khimchiachvili, 372 F.3d 75, 80 (2d Cir. 2004)

[35] Id.

[36] Id.

[37] Id. at 76

[38] Id.

[39] Khimchiachvili, 372 F.3d at 76

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Khimchiachvili, 372 F.3d at 76

[45] Id.

[46] Id.

[47] Id.

[48] Id. at 80

[49] Id.

[50] Id.

[51] United States v. Zagari, 111 F.3d 307, 328 (2d Cir. 1997)

[52] United States v. Stroud, 893 F.2d 504 (2d Cir. 1990)

[53] Id.

[54] Khimchiachvili, 372 F.3d at 78.

[55] Id.

[56] Id.

[57] Id.

[58] Id. at 80

[59] Id.

[60] Id. at 83

[61] Id.

[62] Iverson, 874 F.3d at 858

[63] U.S.S.G. §3C.1.1.