Editor’s Note: Last week’s article by JR Bernans and this week’s article by Monica Welker are meant to be a point and counterpoint to each other on the Circuit split they detail.
Monica Welker, Associate Member, University of Cincinnati Law Review
Elizabeth is arrested and charged with armed robbery of a post office. One of her first visits will be from Pre-Trial Services. She requests an attorney and is assisted by Pre-Trial Services as she fills out her financial affidavit to establish her ability to pay for bond and an attorney. She is a drug addict going through withdrawal during the interview. Her drug addiction is her method of self-medicating for her anxiety and bipolar disorders, and it is also affecting her ability to think clearly during her interview. She guesses her income and just barely qualifies for a federal public defender. At trial, it is discovered that her financial affidavit estimate was very off, and she in fact makes too much to have a public defender. Elizabeth is found guilty. The judge sentencing Elizabeth increases her sentence with an obstruction of justice enhancement, adding two years to her sentence.
Obtaining free counsel when one is not financially eligible for it is not obstruction of justice. First, it does not meet the definition of obstruction of justice because it is not intentionally, maliciously inhibiting the justice system. . Third, it is also a due process violation because financial affidavits used to obtain counsel are only sometimes eligible to be used as evidence against a defendant, and when a defendant fills one out, it is not clear at that point if it is eligible for use as evidence. Finally, a separate trial for perjury is a less confusing, more appropriate way to deal with this dishonesty which better fits the definition of the criminal act of lying on an affidavit.
The Sixth Amendment to the U.S. Constitution guarantees federal defendants access to an attorney during criminal proceedings. If a defendant cannot afford an attorney, one will be appointed to them by the court. 18 U.S.C. § 3006A requires that the court engage in an “appropriate inquiry” into a defendant’s financial inability to pay for counsel. The Pre-Trial Services Act of 1982 established a network of pre-trial services that administer bond recommendations, pre-trial detention or release recommendations, and financial affidavits used in the determination of bond and appointed counsel determinations. Courts have ruled that the financial affidavit obtained by pre-trial services is sufficient to meet the “appropriate inquiry” standard.
The financial affidavit is completed by the defendant with Pre-Trial Services. The defendant is normally in detention at the time it is filled out. The defendant is without her possessions, and if the defendant needs to access her phone for information, she will have to rely on Pre-Trial Services to obtain the information from it. Defendants are sometimes battling drug addictions, mental illness, or other complications that make remembering their financial information a challenge. Pre-Trial Services asks the defendant for family members or employers who can verify the information they receive. Due to the need for the appointment of counsel, bond and pre-trial detention decisions happen quickly, and verification is necessarily cursory.
Defendants are able to use the Fifth Amendment to avoid filling out a financial affidavit, but they can only obtain free counsel if they fill it out. In United States v. Aguirre, the Sixth Circuit held that a defendant cannot be forced to choose between her Fifth and Sixth amendment rights, and thus a financial affidavit cannot be used as evidence in court provided the defendant objects to its use, and it was truthful.In other words, a defendant who wants free counsel must fill out a financial affidavit, and she can object to its use in court as evidence. However, if the Defendant is found to have lied on her affidavit, it can be used as evidence during her sentencing phase to show that she obstructed justice.
After a defendant’s trial and conviction, the court can increase her sentence if she is found to have obstructed justice. The guideline states that the defendant obstructed justice if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” Going forward, this article will refer to this increased sentence as an “upcharge” for clarity and economy.
It is worth noting that the vast majority (roughly 75%) of federal defendants qualify for either a public defender or court-appointed counsel. The federal public defenders and pre-trial services personnel interviewed for background information unanimously reported that it would be rare for a defendant to lie or hide assets in order to obtain free counsel.
Regardless of the frequency with which defendants lie on their financial affidavit, it is still important to determine if those who have seen an upcharge in their sentence as a result of their dishonesty have faced an injustice. Our Constitution bars federal laws from being enforced in some states and not in others, and the importance of the Sixth Amendment’s Right to Counsel warrants its uniform application across all the circuits.
Some courts believe that if a defendant’s financial affidavit contains deliberately false testimony, the defendant has obstructed justice and an upcharge is warranted. Others believe that a defendant filing a false financial affidavit in order to obtain free counsel does not rise to the standard of obstruction of justice, and thus an upcharge is not warranted. The U.S. courts of appeals are currently split on the matter.
The Fifth, Ninth and Eleventh Circuits have determined that reporting false information on a financial affidavit in order to obtain free counsel warrants an upcharge. The Second Circuit specifically rejected the arguments of the Ninth and Eleventh Circuits in ruling against the appropriateness of an upcharge.
The Second Circuit’s Reasoning Against Upcharge
The Second Circuit addressed the issue in United States v. Khimchiachvili. In this case, the defendant was accused of mortgage fraud, wire fraud, and conspiracy to commit wire fraud. His financial affidavit warranted an appointment of free counsel. Yet, after an investigation done to complete his presentence report, it was discovered that he had property worth over $800,000 and liabilities of $345,000.
When the court rejected the upcharge imposed by the trial court, it ruled that 18 U.S.C. Appx. § 3C1.1 is only applicable if the defendant submitted a false affidavit with the intent to obstruct justice. The court clarified that lying to get free counsel did not show an intent to willingly obstruct justice.
The court analogized lying in order to obtain free counsel to lying to a probation office about one’s drug use, and pointed to a note in § 3C1.1 where lying to a probation officer about drug use was not eligible for an upcharge. After an earlier circuit split regarding upcharging for lying about drug use, comment Note 5(e) was added to § 3C1.1. The note states that lying to a probation officer about drug use is not obstruction of justice and that the level of intention one has when lying to a court official must meet the criminal standard of willfully. The Second Circuit cites Screws v. United States, which discusses how in the criminal context, “willful” necessitates evil intent. In the case of lying to a court official, it is only willful obstruction of justice if the intent is to deliberately prevent the administration of justice with one’s falsehood.
The Fifth Circuit’s Reasoning For Upcharge
The Fifth Circuit, in United States v. Iverson, disagreed with the Second Circuit and held that upcharging a defendant for filing a false financial affidavit in order to obtain free counsel was justified.
In Iverson, the defendant listed the value of his vehicles at $5,500 on his financial affidavit, which is signed under penalty of perjury. His presentence report, prepared by probation officers after further investigation, revealed that the vehicles were in fact worth $18,500. He obtained free counsel as a result of his financial affidavit’s incorrect information.
The court reasoned that, because the process of filling out a financial affidavit and being appointed counsel was part of the administration of justice, lying in order to obtain counsel was interfering with that administration, and thus eligible for the upcharge.
The court examined the reasoning of the Second Circuit in Khimchiachvili and was not persuaded. It found that lying to a magistrate or judge, as one does when filing a false financial affidavit, is more serious than lying to a law enforcement officer.
The court also rejected the Second Circuit’s application of the “lying about drugs” comment in § 3C1.1 note 5(e). It argued that lying about drugs would not affect the administration of justice in the way that falsely obtaining free counsel would.
There are three reasons why the Second Circuit’s rejection of upcharging for lying to obtain free counsel better reflects the constitutional protections given to criminal defendants. Rejecting the practice of an upcharge for lying on a financial affidavit holds with the Supreme Court’s definition of “willingly” in criminal statutes, it protects the equal rights of citizens, and it prevents a due process violation.
First, in order to be upcharged, under § 3C1.1, one must willingly and maliciously intend to prevent justice. The Second Circuit’s holding that lying to obtain free counsel is not automatically obstruction of justice is more persuasive than the Fifth Circuit’s broad interpretation that any lie to a court official is automatically obstruction of justice. Its strongest point lies with the distinction between lying to obtain free counsel and lying to deliberately interfere and disrupt the administration of justice. By contrast, the Fifth Circuit’s differentiation between lying to a judicial official and lying to a probation officer or law enforcement agent does not change the criminal meaning of “willfully” not being met when one lies to get free counsel. To willfully commit obstruction of justice, the Supreme Court has ruled, one must specifically want to obstruct justice and maliciously prevent justice from happening.
Second, the Due Process Clause requires that our laws avoid offending the “canons of decency and fairness” and is violated by an upcharge. Specifically, upcharging only punishes those who lie on their financial affidavits and then are found guilty of the underlying crime. If someone is found not guilty of the crime with which they are charged, they cannot receive an upcharge. They could be charged with perjury, but that is not obstruction of justice, and perjury is a rare indictment indeed.
Third, the manner in which financial affidavits are obtained and treated do not lend themselves to the rigorous standards we require for procedural due process. This is true both in how they are obtained and in how the court treats them.
As in the opening vignette with our example of defendant Elizabeth, defendants under detention are often upset, confused, potentially high, going through withdrawal, or mentally ill. Defendants are asked to estimate their financial worth and to provide information to enable pre-trial services to verify their estimation. In this day and age, no one remembers anyone’s phone number or street address because cell phones contain information. A detained defendant won’t have access to her cell phone. Pre-trial Services does everything it can, but it can only work with what it is given, and the information it is given can easily be incorrect, incomplete, or confused.
Add to this the fact that defendants are able to use the Fifth Amendment to avoid filling out a financial affidavit, and to have an affidavit used against them as evidence. If a defendant objects, the prosecution cannot use her financial affidavit as evidence against her, provided she was truthful on it.
If a person who is honest on their financial affidavit can have her affidavit shielded from becoming evidence, why can’t one who is not honest? It is violative of the Due Process of the lying defendant to use his sworn statement against him for the purpose of proving his lie, but not to use the honest defendant’s sworn statement against him to prove he has financial holdings that he may be hiding. Due process requires an adjudication before finding a financial affidavit to be false. An upcharge without a separate charge and adjudication violates that due process guarantee.
Connected to this is a defendant filling out a financial affidavit that the prosecution could use against her if it finds she lied on it. She is read her Miranda Rights, which she knows warns her that anything she discloses can be used against her. If she refuses to fill out a financial affidavit, on Fifth Amendment grounds, she is instructed that she can’t obtain free counsel. However, if she does complete the affidavit, it can be kept away from the court for purposes of evidence against her. Yet, according to the Sixth Circuit in Aguirre, the only guarantee she has that it can’t be used as evidence in court is if she is honest. All of this, factored in with the stressful circumstances under which a financial affidavit is filled out, places the defendant in a position where she has uncertain rights and inconsistent expectations. The purpose of due process is to make the adversarial process predictable and fair.
Finally, there is another remedy available to the government. The defendant can be charged with perjury and undergo a trial for that purpose. The affidavit would be eligible for evidence at that trial. The dishonest behavior would be punished with a better fit for the crime, and it would also solve the lack of equal outcomes for defendants found guilty and not guilty of their original charges.
A court should not upcharge a defendant who lies on her financial affidavit in order to obtain free counsel. The Second Circuit’s argument is much more persuasive with its discussion of §3C1.1 Note 5(e) and the meaning of the word “willingly” in §3C1.1. It does not meet the intended definition of § 3C1.1 because the reason for the defendant’s dishonesty may not be a deliberate attempt to disrupt justice. It violates due process by essentially sentencing her for a crime without a full adjudication. Due process is also violated by creating an unclear set of rights for a defendant with regard to her financial affidavit. Finally, another remedy is available that is better suited to the dishonest behavior and better protects the defendant’s rights.
 I want to personally thank Laurie Cook, a Pre-Trial Services Officer in the Southern District of Ohio for an interview on January 31, 2018 walking me through the process of pre-trial services. Additionally, I want to thank Zenaida Lockard and Kevin Schaad, Assistant Federal Public Defenders for the Southern District of Ohio, for allowing me to interview them on January 11, 2018 regarding the frequency with which the circumstances discussed herein affect their work. I also want to thank Judge Timothy S. Black of the Southern District of Ohio for his time while I researched the practical effects of this split. Finally, I want to thank my University of Cincinnati criminal law professor, Janet Moore, for helping me to arrange some of these meetings and her valuable academic instruction.
 U.S. Const. amend. VI.
 18 U.S.C. § 3006A(a) (2018).
 Id. at (b) (2018).
 18 U.S.C. § 3152 (2018).
 United States v. Gravatt, 868 F.2d 585, 589 (3d Cir. 1989), United States v. Parker, 439 F.3d 81, 93 (2d Cir. 2006).
 Interview by the author with Laurie Cook, Pre-Trial Services Officer, S.D. Ohio (January 31, 2018).
 United States v. Aguirre, 605 F.3d 351, 358 (6th Cir. 2010).
 18 U.S.C. Appx. § 3C1.1
 See supra, n.1; Adam Liptak, Gap Seen Between Court-Appointed Lawyers and Public Defenders, NY Times (July 13, 2007), http://www.nytimes.com/2007/07/13/us/13cnd-defenders.html.
 Supra, n. 1.
 U.S. Const. art. 4, § 2, cl. 1.
 United States v. Ruff, 79 F.3d 123, 125 (11th Cir. 1996), United States v. Hernandez-Ramirez, 254 F.3d 841, 844 (9th Cir. 2001), United States v. Iverson, 874 F.3d 855, 860 (5th Cir. 2017).
 United States v. Khimchiachvili, 372 F.3d 75, 80 (2d Cir. 2004)
 Id. at 77.
 Id. at 78.
 Id. at 80.
 Screws v. United States, 325 U.S. 91, 101 (1945).
 Khimchiachvili, 372 F.3d at 80.
 United States v. Iverson, 874 F.3d 855, 857-858 (5th Cir. 2017).
 Id. at 858.
 Id. at 859.
 Id. at 859-860.
 Screws v. United States, 325 U.S. 91, 101 (1945).
 Rochin v. California, 342 U.S. 165, 169 (1952)