PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        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.

_________________________________________________________________

Reversed by published opinion. Judge Hall wrote the majority opin-
ion, in which Judge Beaty concurred. Judge Niemeyer wrote a sepa-
rate dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Orlando Broccoletti, ZOBY & BROCCOLETTI,
P.C., Norfolk, Virginia, for Appellant. Michael R. Smythers, Execu-
tive Assistant United States Attorney, Norfolk, Virginia, for Appellee.
ON BRIEF: J. F. Hoen, ZOBY & BROCCOLETTI, P.C., Norfolk,
Virginia, for Appellant. Helen F. Fahey, United States Attorney,
W. Barry Huggins, Special Assistant United States Attorney, Nor-
folk, Virginia, for Appellee.

_________________________________________________________________

OPINION

HALL, Circuit Judge:

Carrie M. Littleton appeals her convictions for perjury and obstruc-
tion of justice, stemming from allegedly false testimony that she gave
at a suppression hearing prior to her son's murder trial. We reverse
the convictions because, with respect to both charges, the government
failed to present any proof of one or more essential elements of the
offense.

I.

A.

On July 14, 1992, Antwan Mathis was shot and killed during a
drug-related altercation in Hampton, Virginia. A week later, the
police arrested Littleton's son, Derrick Kelley, for alleged involve-
ment in the murder. Kelley, who was interrogated without a lawyer
present, made a number of self-incriminating statements, and he was
eventually indicted for the murder by a federal grand jury. Kelley
moved to suppress the statements, asserting, inter alia, that he had,
prior to being questioned, requested and been denied the assistance of
counsel.

The suppression hearing was held on April 4, 1994, nearly two
years following Kelley's arrest. Littleton, who is a Master Sergeant
in the Air Force, testified that she was on duty at the Langley base
hospital the day her son was arrested. Littleton said that Kelley tele-
phoned her at about 3:15 p.m. and requested that she come to the
police station and get him a lawyer. Littleton stated that she received
permission from her supervisor, Major Ruth Depalantino, to leave
work. According to Littleton, she arrived at the Carmel Center for
Justice at about 3:45, and asked to see Kelley. 1 Littleton noted that
_________________________________________________________________
1 Kelley was actually being held at the Public Safety Building, directly
across the street from the Carmel Center. Photographs introduced at trial

                    2
while she waited in the reception area, she encountered "another cou-
ple 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 detec-
tives that Kelley did not live with her and her husband, Ervin Little-
ton. 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 Detec-
          tive Bittenbender, obviously, to say there's been some con-
          trary 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 suppres-
          sion 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
_________________________________________________________________
reveal that both buildings are constructed of brick and appear to rise
about two stories above ground level, although the Public Safety Build-
ing 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 Little-
ton'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
          behalf of her son. . . . [Kelley] never unequivocally
          requested the assistance of counsel, never unequivocally
          requested for all questioning to cease, and, therefore, there
          was nothing for Detective Seals and Detective Bittenbender
          to scrupulously honor. . . . We believe [Littleton] was never
          there. But assuming arguendo that she was there, it doesn't
          affect, in the government's view, the merits of the confes-
          sion given by Derrick Kelley. . . . So anything the mother
          could or could not have done anywhere she could have been
          that day is immaterial and completely irrelevant. . . .

The district court denied the motion to suppress, commenting
briefly on Littleton's testimony:

          The court's conclusion on all the conflicting testimony
          regarding whether Ms. Littleton was at the station or not
          . . . or who she talked to or what room she was in is that
          notwithstanding her testimony, even if you assume that she
          was there, even if you assume that as she testified, she was
          there and could not see her son, the court does not find a
          violation of the defendant's Sixth Amendment rights.. . .
          Mr. Kelley's rights are personal in nature and he certainly
          has the authority to invoke those rights, and there's no evi-
          dence . . . that Mr. Kelley requested that he be permitted to
          have a lawyer come in.

Notwithstanding the court's denial of the motion to suppress, Kelley
was acquitted of the murder charge.

B.

On May 24, 1994, the grand jury indicted Littleton for perjury and
obstruction of justice, based on her testimony at the suppression hear-
ing. The indictment charged that Littleton falsely testified that she (1)
received a telephone call from her son the afternoon of his arrest, (2)
asked Major Depalantino's permission to leave work, (3) traveled to
the police station and spoke with Detective Bittenbender, and (4) did
not tell the detectives that Kelley had been forced to leave her home
because of his drug dealing.

                     4
Littleton was tried before a jury. The government's evidence con-
sisted 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 suppres-
sion 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 Kel-
ley'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 sta-
tion 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
_________________________________________________________________

3 An inventory of Kelley's personal property, filled out at the Hampton
City Jail, was introduced through Seals; the inventory indicates that Kel-
ley indeed telephoned Littleton, but not until 8:07 p.m.

                    5
2.

Detective Bittenbender essentially corroborated Seals's version of
what Littleton had said during her initial encounter with the detec-
tives. 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. Bitten-
bender recalled having seen, and perhaps having spoken with, Cyn-
thia 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 per-
mission to leave work on July 21, 1992.4
_________________________________________________________________

4 Littleton presented substantial testimony in her defense. Kelley testi-
fied that at about 2:00 or 3:00 p.m. on the day of his arrest, Seals accom-
panied him to a telephone near the interrogation room so that he could
call his mother; he also testified that Bittenbender later told him that Lit-
tleton 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.

                     6
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 con-
sideration 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 supervi-
          sor . . . 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 Little-
ton $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 pro-
vides, 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 declara-
tion 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

                     7
have the jury determine the materiality of the allegedly false state-
ment 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 tele-
phone 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 suppres-
sion hearing believed that Kelley had telephoned Littleton and asked
her to obtain a lawyer to represent him, it would not have been con-
strained to suppress the confession unless it had also found that Kel-
ley had made a similar request of Seals and Bittenbender.6 Indeed,
this was the gist of the argument made by the government at the sup-
pression hearing, and was the sole basis underlying the district court's
ruling denying the motion. See Section I-A, supra.7
_________________________________________________________________
5 The court's instructions to the jury in the instant case were not tran-
scribed 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 cir-
cuit 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 estop-

                    8
As the district court stated at the suppression hearing, there was no
positive evidence that Kelley requested of either detective that he be
permitted to consult with a lawyer. Seals and Bittenbender both testi-
fied that Kelley made no such request; however, even had the court,
as a result of Littleton's testimony concerning the collateral matters,
decided that Seals and Bittenbender lacked credibility -- and thus, the
detectives' testimony of their dealings with Kelley could not be
believed -- it nevertheless could not have suppressed Kelley's con-
fession based on nothing more than its disbelief. See United States v.
Fountain, 993 F.2d 1136, 1139 (4th Cir. 1993) (absent positive evi-
dence of drug distribution, a conviction for possession of marijuana
with the intent to distribute could not be sustained merely because the
trier of fact disbelieved the defendant's evidence).

We reach the inescapable conclusion that Littleton testified to noth-
ing at the suppression hearing that could have conceivably influenced
the district court to suppress her son's confession. Her entire testi-
mony was, therefore, immaterial to the court's inquiry, and, as a
result, her perjury conviction must be reversed.

III.

Littleton was also found guilty of obstruction of justice, in viola-
tion of 18 U.S.C. § 1503. That statute provides, in pertinent part:

          (a) Whoever corruptly . . . endeavors to influence . . .
          or impede any . . . officer . . . in or of any court of the
          United States . . . in the discharge of his duty . .., or cor-
_________________________________________________________________
ped from asserting the opposite position in her subsequent prosecution.
See Flowers, 813 F.2d at 1327 (doctrine of judicial estoppel may apply
to prosecutions under § 1623). Inasmuch as Littleton failed to raise this
argument below, our review of the district court's failure to dismiss the
perjury charge sua sponte would be limited to plain error. United States
v. Olano, 113 S. Ct. 1770, 1776 (1993). We choose not to address the
issue, however, because we have determined that Littleton's perjury con-
viction cannot stand in any event. See Flowers , 813 F.2d at 1327 (declin-
ing to reach the defendant's judicial estoppel argument because
insufficient evidence of materiality necessitated reversal of the convic-
tion).

                     9
          ruptly . . . influences, obstructs, or impedes, or endeavors to
          influence, obstruct, or impede, the due administration of jus-
          tice, shall be punished [by]

....

          (b) . . . imprisonment for not more than 10 years, a fine
          under this title, or both.

18 U.S.C.A. § 1503 (West Supp. 1995). To be guilty of obstructing
justice under § 1503, a defendant must have knowledge or notice of
a pending judicial proceeding, and must have acted with the intent to
influence, obstruct, or impede that proceeding in its due administra-
tion of justice. United States v. Grubb, 11 F.3d 426, 437 (4th Cir.
1993).

We acknowledged in Grubb that perjury can constitute the actus
reus of a § 1503 violation, but that "an obstruction of justice prosecu-
tion cannot rest solely on the allegation or proof of perjury; rather,
what also must additionally be proven is that the false statements
given, in some way, either obstructed or were intended to obstruct the
due administration of justice." Id.

As we have already held in the preceding section, the government's
evidence was insufficient to prove that Littleton committed perjury,
in that it failed to demonstrate that her allegedly false statements were
material to the judicial proceeding in which they were received. The
government's evidence was likewise insufficient to permit the jury to
ascertain that Littleton intended to obstruct justice. There was, for
example, no direct or circumstantial evidence that Littleton had con-
trived with Kelley, his attorney, or any of the defense witnesses to
fabricate her story.8 In fact, there was no evidence that Littleton even
understood the significance of her testimony as it related to the sup-
_________________________________________________________________
8 Had such an agreement existed, the defense surely could have pres-
ented a much stronger case at the suppression hearing by calling Johnson
and Stewart to corroborate Littleton's testimony. Instead, Littleton
merely evinced a vague recollection of "another couple" that had been at
the police station. See note 2, supra , and accompanying text.

                    10
pression hearing. The closest that the government came to producing
such evidence was during its cross-examination of Littleton herself:

         Q. Now, when you testified on April 4th at the suppres-
         sion hearing you were called by the first attorney that ques-
         tioned you, the person who wanted you there was your son's
         attorney, isn't that true?

         A. Yes.

....

         Q. And you understood the importance of what that
         suppression hearing was about, isn't that true?

         A. Yes.

         Q. You understood that it was possible that your son's
         confession could be kept out of any evidence in any future
         trial of your son, isn't that true?

         A. Yes.

         Q. So you wanted the Court to rule in favor of your son;
         isn't that true?

         A. Yes.

That Littleton understood the purpose of the suppression hearing,
was aware of the importance of the evidence that Kelley sought to
suppress, and desired the district court to grant her son's motion, does
not establish that she understood how her testimony would assist in
accomplishing that objective.9 Had the government elicited a more
_________________________________________________________________
9 Cf. Grubb at 437-38. In that case, tape-recorded conversations pro-
vided ample evidence to support an inference that the defendant, by lying
to an FBI agent who he knew was assisting a grand jury investigation
into political corruption in Logan County, West Virginia, believed that
he could thwart the investigator from discovering that the defendant was
himself corrupt.

                   11
specific account of what Littleton hoped to achieve by testifying, the
jury might have been able to infer the necessary intent. Instead, all the
government proved was that Littleton had a motive to lie, and that,
by itself, is clearly insufficient to establish the requisite mens rea
under § 1503.

Because the government failed to prove either the act or intent nec-
essary to establish a violation of 18 U.S.C. § 1503, Littleton's convic-
tion for obstruction of justice cannot stand.

IV.

Littleton's convictions for perjury and obstruction of justice are

REVERSED.

NIEMEYER, Circuit Judge, dissenting:

Carrie Littleton testified falsely at a suppression hearing before the
district court that her son called her at work at 3:15 p.m. on July 21,
1992, and requested her to come to the police station and obtain a
lawyer for him and that she arrived at the police station at 3:45 p.m.
for that purpose. By giving this testimony, Littleton intended to cor-
roborate her son's position that during detention he had requested a
lawyer and therefore his statements, incriminating him in a murder,
were taken in violation of his Sixth Amendment right to counsel. Lit-
tleton's testimony was intended to support her son's position.

While it is true that at the suppression hearing the Assistant United
States Attorney downplayed the effect of Littleton's testimony by
stating that "[Littleton] is in no position to exercise any . . . right on
behalf of her son," the fact remains that even though exercising a right
to counsel belonged to Littleton's son and not to Littleton, her testi-
mony was material because it tended to corroborate her son's position
that he asked for counsel. The question whether Littleton's son asked
for counsel was a critical issue at the suppression hearing at which
Littleton testified. Whether the testimony actually influenced the
court in deciding the motion to suppress is irrelevant so long as it was
intended to influence the court. Cf. Kungys v. United States, 485 U.S.

                     12
759, 770 (1988) (recognizing test for materiality as whether misrepre-
sentation "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 sup-
press, Littleton was properly convicted of perjury. In addition, she
was also properly convicted for obstruction of justice because her per-
jury 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.

                    13
