Clarifying Obstruction-of-Justice Enhancements for Perjury and Appeal Requirements for Restitution Amendments: United States v. Nkorina

Introduction

United States v. Serge Nkorina (11th Cir. 2025) presents a multifaceted appeal arising from a complex kidnapping scheme in South Florida. Defendant‐Appellant Serge Nkorina was charged alongside codefendant Justin Boccio with conspiracy to commit kidnapping (18 U.S.C. § 1201(c)) and substantive kidnapping (18 U.S.C. § 1201(a)(1)). Following a jury verdict, the district court imposed a 240-month sentence and later entered a second amended judgment ordering $123,255 in restitution. On appeal, Nkorina challenged (1) his inability to subpoena an FBI agent listed on the government’s witness list, (2) the denial of a burglary-as-lesser-included-offense jury instruction, (3) the sufficiency of the evidence, (4) application of a two-level sentencing enhancement under U.S.S.G. § 3C1.1 for perjured testimony, and (5) the restitution award.

Summary of the Judgment

1. The Eleventh Circuit affirmed Nkorina’s convictions on Count 1 (conspiracy to kidnap) and Count 2 (substantive kidnapping), rejecting his challenges to evidentiary rulings, jury instructions, and sufficiency of the evidence.
2. The court upheld the district court’s application of the two-level obstruction-of-justice enhancement under U.S.S.G. § 3C1.1 based on Nkorina’s willful perjured testimony at trial.
3. Nkorina’s challenge to the $123,255 restitution award was dismissed because he failed to file a separate or amended notice of appeal from the second amended judgment that finally set restitution.

Analysis

1. Precedents Cited

The court relied upon several controlling precedents:

• United States v. Singer, 963 F.3d 1144 (11th Cir. 2020): affirmed that willful perjury at trial can trigger the § 3C1.1 obstruction enhancement. Singer defines perjury as “false testimony on a material matter, with the willful intent to provide false testimony.”
• United States v. Duperval, 777 F.3d 1324 (11th Cir. 2015): explains that a district court need only issue a general finding of obstruction—rather than itemizing every false statement—so long as it encompasses the factual predicates of perjury.
• Manrique v. United States, 581 U.S. 116 (2017): holds that when a district court enters an amended judgment imposing or quantifying restitution, a defendant must file a new or amended notice of appeal to challenge that portion.
• United States v. Muzio, 757 F.3d 1243 (11th Cir. 2014): confirms that a “TBD” restitution award in the initial judgment is final as to the conviction and incarceration portion, but a later order fixing restitution requires its own appeal.

2. Legal Reasoning

(a) Witness Lists vs. Subpoenas: The court held that neither the government’s witness list nor a defense list “adopting” government subpoenas creates a binding command under Fed. R. Crim. P. 17. Subpoenas must bear the court seal and formally command attendance. Because Nkorina never formally requested or served a Rule 17 subpoena for Agent Kelley, the district court did not err in refusing to compel the agent’s appearance.

(b) Lesser Included Jury Instruction: Burglary under 18 U.S.C. § 2115 (or under the UCMJ’s § 929) is not a lesser included offense of federal kidnapping (18 U.S.C. § 1201). To qualify, every element of the lesser offense must be subsumed within the greater. Since burglary requires breaking and entering, whereas kidnapping requires unlawful seizure and detention, burglary cannot be offered as a theory on which to acquit on kidnapping charges.

(c) Sufficiency of the Evidence: Viewing the record in the light most favorable to the government, the evidence overwhelmingly showed Nkorina’s knowing agreement to kidnap Dr. Shehata, his active participation in planning and executing the abduction, and his use of force and confinement. Surveillance footage, GPS data, physical items (zip ties, ammonia sticks, blowtorch, GPS tracker), and Nkorina’s own trial testimony (which the jury could—and did—disbelieve) provided a legally sufficient basis for convictions on conspiracy and substantive kidnapping.

(d) Obstruction Enhancement under U.S.S.G. § 3C1.1: The district court’s sentencing transcript reflects a clear finding that Nkorina’s testimony—inconsistent with unrefuted physical and testimonial evidence—was “egregious” perjury offered in an attempt to mislead the jury. Under Singer and Duperval, such a general finding suffices to trigger the two-level increase. The enhancement applies only when the defendant’s false statements are material (i.e., go to an element of the offense) and willful.

(e) Appeal of Restitution: By timely appealing the February 18, 2022 judgment (which left restitution “TBD”) but failing to file a new or amended notice of appeal after the district court’s July 29, 2022 second amended judgment fixed restitution at $123,255, Nkorina lost his right to challenge the restitution amount. Under Manrique, where the government objects, a court must dismiss such an appeal.

3. Potential Impact on Future Cases

• Defense Preparation: Criminal practitioners will take note that shadow-witness lists do not substitute for formal subpoenas. If a government witness is essential, a defendant must file a timely Rule 17(c) subpoena motion or risk exclusion.
• Jury Instructions: This decision underscores the strict element-matching test for lesser included offenses. Courts will continue to refuse jury instructions that do not satisfy the “all elements” and “rational jury” requirements.
• Sentencing Strategies: Defendants who testify in their own defense must weigh the risk of a § 3C1.1 enhancement if their testimony conflicts materially with unrefuted evidence. Sentencing judges may rely on contemporaneous notes to make obstruction findings, without parsing every statement.
• Appeals of Amended Judgments: Practitioners must file distinct notices of appeal for amended judgments—particularly where restitution or other penalties are quantified later—or face forfeiture of appellate review on those issues.

Complex Concepts Simplified

• “Perjury” under U.S.S.G. § 3C1.1: Any willful, material lie under oath that, if believed, would affect the outcome of the trial. A court may find obstruction even without itemizing every false statement.
• “Lesser Included Offense” Test: A proposed lesser offense must contain only elements that are also elements of the charged crime. If the lesser offense has any extra element, it fails the test.
• “Notice of Appeal” Requirement: An appeal must track the judgment you wish to challenge. If a new or amended sentence or order is entered, you need a fresh or amended notice of appeal covering that order.
• “Rule 17 Subpoena” vs. “Witness List”: A witness list is informational. To compel attendance, a formal subpoena—issued in the court’s name and sealed—is required.

Conclusion

United States v. Nkorina reaffirms and clarifies three important principles in federal criminal practice. First, listing a government witness does not equate to issuing a subpoena under Rule 17. Second, perjured testimony at trial remains a clear basis for a two-level obstruction-of-justice enhancement under U.S.S.G. § 3C1.1, even when the district court makes only a general finding of obstruction. Third, appellate practitioners must vigilantly file new or amended notices of appeal whenever a district court enters a modified or amended judgment—especially to fix restitution obligations—or else forfeit appellate review of that modification. Together, these rulings will shape how defense counsel approach witness subpoenas, jury instructions, personal testimony at trial, and appeals of post-judgment orders.