Published United States Court of Appeals For The Fourth Circuit
Published United States Court of Appeals For The Fourth Circuit
No. 94-5912
CARRIE M. LITTLETON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
John A. MacKenzie, Senior District Judge.
(CR-94-36)
Argued: September 29, 1995
Decided: March 1, 1996
Before HALL and NIEMEYER, Circuit Judges, and BEATY,
United States Judge for the Middle District of North Carolina,
sitting by designation.
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Reversed by published opinion. Judge Hall wrote the majority opinion, in which Judge Beaty concurred. Judge Niemeyer wrote a separate dissenting opinion.
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COUNSEL
ARGUED: James Orlando Broccoletti, ZOBY & BROCCOLETTI,
P.C., Norfolk, Virginia, for Appellant. Michael R. Smythers, Executive Assistant United States Attorney, Norfolk, Virginia, for Appellee.
ON BRIEF: J. F. Hoen, ZOBY & BROCCOLETTI, P.C., Norfolk,
while she waited in the reception area, she encountered "another couple that came in concerning the lady's son." 2 Littleton testified that
Detective Myron Bittenbender came to the reception area at about 6
p.m. and advised her to go home because Kelley had not yet been
charged.
On cross-examination, Littleton was asked about being visited at
her home by Bittenbender and Detective Kenneth Seals a couple of
days before Kelley's arrest. Littleton said that she had told the detectives that Kelley did not live with her and her husband, Ervin Littleton. She flatly denied telling Seals that she had thrown Kelley out for
dealing drugs.
After the defense rested, the court heard argument on the motion
to suppress:
[AUSA] SMYHERS: Your Honor, we could call Detective Bittenbender, obviously, to say there's been some contrary testimony here, but I don't think it's really relevant to
the suppression motion.
THE COURT: All right. The only witness that would be
helpful to the court would be [one] resolving the suppression motion. Of course, there's always conflicts and the
court is faced with what it will do. Do you wish to argue?
[AUSA] GROENE: Yes, Your Honor. Assuming
arguendo for a second that Mrs. Littleton's testimony is true,
so what? She is in no position to exercise any . . . rights on
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reveal that both buildings are constructed of brick and appear to rise
about two stories above ground level, although the Public Safety Building is slightly darker in color and is of an obviously more modern design.
Both are clearly identified by block letters attached to the front or side
of the structure; the letters on both buildings are of identical style.
2 Cynthia Johnson and her fiance, Gregory Stewart, testified at Littleton's trial that they had come to the police station upon learning that
Johnson's son was also being questioned in connection with the murder
investigation.
3
Littleton was tried before a jury. The government's evidence consisted solely of the testimony of Detectives Seals and Bittenbender,
and a joint stipulation concerning Major Depalantino.
1.
Detective Seals testified first about his conversation with Littleton
at her home. Seals testified that Littleton had told him that she had
made Kelley leave because he had been associating with "bad people"
who were involved in selling drugs. Seals noted that, at the suppression hearing, Littleton had denied making such a statement.
Seals then testified concerning Kelley's arrest. Seals said that, on
July 21, 1992, he had assisted in executing a search warrant of Kelley's residence at about 10:30 a.m., that he had personally informed
Kelley of his rights, and that Kelley had been taken to the police station at the Public Safety Building between 11:30 and noon. Seals
identified photographs of the Public Safety Building and the Carmel
Center for Justice, see note 1, supra . He confirmed that he had not
taken Kelley to the Carmel Center following the arrest; indeed, Seals
denied having been at the Carmel Center anytime that day.
Seals said that he and Detective Bittenbender took Kelley to an
interrogation room at the Public Safety Building, and that Kelley
remained there throughout the entire day. He explained that the room
had no windows and no telephone. There was only one door, which
opened directly onto the main working area for the detectives in Seals
and Bittenbender's unit. Seals admitted that he and Bittenbender left
Kelley alone for a time, but noted that department policy required
them to have asked another detective to watch the interrogation room
door. Seals was certain that he had made such a request, but could not
remember of whom. Seals steadfastly denied having allowed Kelley
any phone calls until after he had been taken to the city jail.3
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3 An inventory of Kelley's personal property, filled out at the Hampton
City Jail, was introduced through Seals; the inventory indicates that Kelley indeed telephoned Littleton, but not until 8:07 p.m.
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2.
Detective Bittenbender essentially corroborated Seals's version of
what Littleton had said during her initial encounter with the detectives. Regarding the arrest, Bittenbender verified that Kelley had been
taken to the Public Safety Building for interrogation, and that he had
occasionally been left alone during breaks in the questioning. Bittenbender recalled having seen, and perhaps having spoken with, Cynthia Johnson at the Public Safety Building sometime during the course
of the afternoon. See note 2, supra. He adamantly denied having had
any similar contact with Littleton that day.
3.
Major Depalantino did not arrive to testify at the scheduled time.
The parties stipulated that Depalantino would have testified that she
did not succeed Major Karen Reed as Littleton's supervisor until
August 24, 1992, and, therefore, could not have given Littleton permission to leave work on July 21, 1992.4
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4 Littleton presented substantial testimony in her defense. Kelley testified that at about 2:00 or 3:00 p.m. on the day of his arrest, Seals accompanied him to a telephone near the interrogation room so that he could
call his mother; he also testified that Bittenbender later told him that Littleton had stopped by to see him. Johnson and Stewart, who admitted to
only a passing acquaintance with Littleton, both testified that they had
seen her at the Public Safety Building, see note 2, supra.
Ervin Littleton testified that, when the detectives had visited his home
to speak with his wife, he had overheard most of the conversation and
had never heard either Seals or Bittenbender inquire as to why Kelley
had vacated the residence. Littleton herself testified that she had simply
mistaken the Carmel Center for the Public Safety Building because she
had been too upset about her son to accurately note the building's name
upon her arrival. She attributed her erroneous testimony regarding her
supervisor's name to the nearly two years that had passed between her
son's arrest and the suppression hearing. Littleton insisted, however, that
she had not been mistaken about her son's phone call, her subsequent
encounter with Bittenbender at the police station, and the substance of
her conversation with the detectives at her home a few days earlier.
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C.
At the close of all the evidence, Littleton moved for a judgment of
acquittal. In response, the district court withdrew from the jury's consideration the question of whether Littleton had violated the law by
testifying incorrectly regarding her supervisor's name:
I have omitted or have rejected any claim of whether or not
permission was given to Mrs. Littleton to leave the hospital
by Major Depalantino or whether it was by her real supervisor . . . because I don't believe that that's material in the
case, and it would have to be a material matter in order to
warrant you able to sit.
The remainder of the indictment was submitted to the jury, which
found Littleton guilty of both charges. The district court fined Littleton $1000 on each count, and it sentenced her to prison for five
months. Littleton has remained free on bond during the pendency of
this appeal.
II.
A.
Littleton was convicted of violating 18 U.S.C. 1623, which provides, in pertinent part:
(a) Whoever under oath . . . in any proceeding before or
ancillary to any court or grand jury of the United States
knowingly makes any false material declaration . . . shall be
fined under this title or imprisoned not more than five years,
or both.
18 U.S.C.A. 1623(a) (West Supp. 1995). Not every untrue declaration before a court or grand jury violates the statute; it is essential that
the statement also be material to the government's inquiry. United
States v. Farnham, 791 F.2d 331, 333 (4th Cir. 1986); United States
v. Flowers, 813 F.2d 1320, 1325 (4th Cir. 1987). Because materiality
is an essential element of a 1623 offense, an accused is entitled to
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have the jury determine the materiality of the allegedly false statement beyond a reasonable doubt. See United States v. Gaudin, 115 S.
Ct. 2310, 2320 (1995) (construing the materiality element of 18
U.S.C. 1001).5
A statement is material if it has a natural tendency to influence, or
is capable of influencing, the decision-making body to which it was
addressed. Kungys v. United States, 485 U.S. 759, 770 (1988). Thus,
the relevant inquiry in the instant proceeding is whether Littleton's
testimony in the Mathis murder case regarding the supposed telephone call from her son, her subsequent encounter with Bittenbender
at the police station, or the substance of her conversation a few days
earlier with Seals and Bittenbender could have influenced the district
court to suppress Kelley's confession on the ground that he had
unlawfully been refused access to a lawyer prior to being questioned.
B.
Regardless of whether the district court presiding over the suppression hearing believed that Kelley had telephoned Littleton and asked
her to obtain a lawyer to represent him, it would not have been constrained to suppress the confession unless it had also found that Kelley had made a similar request of Seals and Bittenbender.6 Indeed,
this was the gist of the argument made by the government at the suppression hearing, and was the sole basis underlying the district court's
ruling denying the motion. See Section I-A, supra.7
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5 The court's instructions to the jury in the instant case were not transcribed for the record. At oral argument, the parties represented that the
jury had been instructed as to the materiality element. We are surprised
by this revelation inasmuch as, prior to Gaudin , it was settled in this circuit that the question of materiality was one of law, and thus within the
trial court's exclusive province. United States v. Paolicelli, 505 F.2d 971,
973 (4th Cir. 1974).
6 See Poyner v. Murray, 964 F.2d 1404, 1410 (4th Cir.) ("A suspect's
right to have counsel present . . . attaches only when the suspect invokes
that right during custodial interrogation by indicating in some manner
that he wishes to consult with an attorney before speaking.") (emphasis
supplied), cert. denied, 113 S. Ct. 419 (1992).
7 Littleton maintains that, because the government argued at Kelley's
suppression hearing that her statements were immaterial, it is now estop8
759, 770 (1988) (recognizing test for materiality as whether misrepresentation "has a natural tendency to influence, or was capable of
influencing" the court) (citation omitted).
Because Littleton's testimony at the suppression hearing was false,
was intended to corroborate her son's legal position at the hearing,
and was intended to influence the court to grant the motion to suppress, Littleton was properly convicted of perjury. In addition, she
was also properly convicted for obstruction of justice because her perjury was intended to obstruct the court's effort to reach the truth at
the hearing. I cannot imagine a scenario that would accommodate
Mrs. Littleton's making up facts about a telephone conversation and
a visit to the police station for the purpose of obtaining counsel if it
were not intended to help her son and frustrate the prosecution's
efforts. Because this conduct violated the statutes under which she
was convicted, I would affirm her convictions.
Accordingly, I dissent.
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