Appeal from the United States District Court for the District of Columbia (No. 95cr00121-01)
Before: Ginsburg, Henderson and Tatel, Circuit Judges.
Karen LeCraft Henderson, Circuit Judge
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the court filed by Circuit Judge Henderson.
Concurring opinion filed by Circuit Judge Tatel.
Appellant Paul L. Barrett appeals his conviction and sentences on two counts of making "a false material declaration" under oath in violation of 18 U.S.C. Section(s) 1623(a), *fn1 once before a grand jury investigating J.C. Herbert Bryant (Bryant) (count 4) and once at Bryant's subsequent bench trial (count 1). Barrett asserts that neither of the charged declarations was "material," as expressly required by section 1623(a), and that the district judge erroneously enhanced the sentences on each conviction. For the reasons set out below, we conclude that the grand jury declaration was material but that the trial declaration was not. We further conclude that the sentencing enhancement on count 4 was proper. *fn2
On September 2, 1992, Bryant, a Virginia resident, drove his truck, outfitted with flashing lights, a siren and a police radio, into the District of Columbia and parked it outside the Mayflower Hotel, which was then hosting an Israeli diplomatic delegation. In the truck's rear compartment, in plain view, lay three 9 mm Beretta pistols, a .44 caliber magnum revolver, a .357 caliber magnum revolver and a .22 caliber derringer; in the front window was displayed a placard bearing the words "United States Marshal" in large bold print. The mobile arsenal eventually drew the attention of an Israeli security agent, the Mayflower Hotel's security director, two United States Diplomatic Security Service Agents and three Metropolitan Police Department (MPD) officers. When Bryant returned to the truck he explained to the MPD officers that he had left the weapons in the truck's rear compartment after a target shooting session at a northern Virginia firing range. He also claimed, according to trial testimony credited by the district judge, that he was a United States deputy marshal and had supporting credentials in a briefcase at home. In addition, he showed those present a Warren County, Mississippi Deputy Sheriff badge.
The MPD officers contacted the United States Marshal for the District of Columbia to determine whether Bryant was a deputy marshal. When the Marshal was unable to ascertain Bryant's status, despite repeated telephone inquiries to the national Marshals Service headquarters in Virginia, he directed his deputies to bring both Bryant and the truck to the District of Columbia Marshals Service office. After a short time the Marshal released Bryant and his truck but retained the firearms. It was later determined that Bryant held no official position with the Marshals Service at that time, although he had been a "Special Deputy Marshal" for several successive one-year terms, the last of which ended on June 30, 1992.
About one month after the incident, on October 8, 1992, Barrett, then Sheriff of Warren County, Mississippi, wrote a letter at the request of Bryant and his lawyer addressed "To Whom It May Concern." The letter purported to "confirm that J.C. Herbert Bryant, Jr. is currently and has been continuously since April 9, 1984, a duly authorized Deputy Sheriff for Warren County, Mississippi" and averred that "[o]n September 2, 1992, Mr. Bryant was on a detail in the D.C. Metro areas performing duties as a Deputy Sheriff." Government's Record Material (Gov't Rec. Mat.) Tab O.
Over nine months later, in July 1993, Barrett was subpoenaed to appear before a grand jury investigating Bryant. On August 27, 1993 Barrett testified before the grand jury that Bryant was a "sworn" deputy sheriff and identified Bryant's signature on a certified copy of an oath of office dated April 6, 1987. The oath of office certificate bore the signature and seal of a Warren County court clerk. When asked about the "circumstances" surrounding the oath Barrett responded: "When he was sworn in, it was done in that clerk's office and they file it there then." Gov't Rec. Mat. Tab U at 34. Barrett further testified that he thought he had given Bryant "a badge and maybe a card" before that date but that "that doesn't have any authority with it until he was sworn in." Id. at 21. Later in his testimony he identified a photocopy of a Warren County deputy sheriff badge and a deputy sheriff identification card, dated April 9, 1984, bearing the signatures of Barrett and Bryant and the signature and seal of the same clerk as appeared on the oath of office certificate.
Almost two years after the Mayflower incident, on June 14, 1994, Bryant was indicted on 3 counts: (1) violating 18 U.S.C. Section(s) 912 in that he "did falsely assume and pretend to be a Special Deputy United States Marshal and in such pretended character, demanded and obtained that he not be arrested by the Metropolitan Police Department for possessing and carrying weapons in the District of Columbia"; (2) violating D.C. Code Section(s) 22-3204(a) in that he "did carry, openly, and concealed on or about his person, pistols, without a license issued as provided by law"; and (3) violating 18 U.S.C. Section(s) 1001 in that "in a matter within the jurisdiction ...