United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
SIDNEY
A. FITZWATER SENIOR JUDGE
A jury
convicted defendant Donna H. Woods (“Woods”) of
the offense of conspiracy to commit mail and wire fraud, in
violation of 18 U.S.C. § 1349, and three counts of wire
fraud, in violation of 18 U.S.C. § 1343. Woods testified
at trial. Because the court finds that Woods committed
perjury during her testimony, the court adds two levels to
the advisory guideline offense level for obstruction of
justice, and enters these tentative findings in support of
this determination.
I
U.S.S.G.
§ 3C1.1 provides that the offense level shall be
increased two levels “[i]f (1) the defendant willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the . . .
prosecution . . . of the instant offense of conviction, and
(2) the obstructive conduct related to (A) the
defendant's offense of conviction and any relevant
conduct[.]” U.S.S.G. § 3C1.1 (Nov. 1, 2018
Manual). “Though the court may not penalize a defendant
for denying his guilt as an exercise of his constitutional
rights, a sentence may be enhanced if the defendant commits
perjury.” United States v. Como, 53 F.3d 87,
89 (5th Cir. 1995) (citing United States v. Laury,
985 F.2d 1293, 1308 (5th Cir.1993)). Under the Sentencing
Guidelines, the court is required to enhance a sentence upon
a proper determination that the accused committed perjury.
United States v. Humphrey, 7 F.3d 1186, 1191 (5th
Cir. 1993) (“If the district court finds that [the
defendant] did commit perjury, it must impose a two-level
enhancement of his sentence.”); United States v.
Butler, 988 F.2d 537, 544 (5th Cir. 1993).[1]
According
to the application notes, this enhancement applies to
“committing, suborning, or attempting to suborn
perjury[.]” U.S.S.G. § 3C1.1, comment n. 4(b)
(Nov. 1, 2018 Manual). Federal law defines perjury as giving
false testimony concerning a material matter with the willful
intent to provide false testimony rather than as a result of
confusion, mistake, or faulty memory. See United States
v. Dunnigan, 507 U.S. 87, 94 (1993) (citing 18 U.S.C.
§ 1621(1)). Nevertheless, “not every accused who
testifies at trial and is convicted will incur an enhanced
sentence under § 3C1.1 for committing perjury.”
Id. at 95. Because there are reasons why a defendant
may testify falsely without committing perjury, see
U.S.S.G. § 3C1.1, comment n.2 (Nov. 1, 2018 Manual),
“if a defendant objects to a sentence enhancement
resulting from her trial testimony, a district court must
review the evidence and make independent findings necessary
to establish a willful impediment to or obstruction of
justice, or an attempt to do the same, under the perjury
definition [the Supreme Court has] set out.”
Dunnigan, 507 U.S. at 95. “[I]t is preferable
for a district court to address each element of the alleged
perjury in a separate and clear finding.” Id.;
United States v. Como, 53 F.3d 87, 89 (5th Cir.
1995) (preferred course is to make clear finding on each
element of the alleged perjury). “The district
court's determination that enhancement is required is
sufficient, however, if . . . the court makes a finding of an
obstruction of, or impediment to, justice that encompasses
all of the factual predicates for a finding of
perjury.” Dunnigan, 507 U.S. at 95.
Factual
determinations at sentencing are made according to U.S.S.G.
§ 6A1.3(a). U.S.S.G. § 6A1.3(a) (Policy Statement)
(Nov. 1, 2018 Manual). “[T]he court may consider
relevant information without regard to its admissibility
under the rules of evidence applicable at trial, provided
that the information had sufficient indicia of reliability to
support its probable accuracy.” United States v.
Bermea, 30 F.3d 1539, 1576 (5th Cir. 1994). The
preponderance of the evidence standard applies to such
determinations. See United States v. Mergerson, 995
F.2d 1285, 1291 (5th Cir. 1993) (holding that it is well
established in this circuit that, as a general matter, the
burden of proof at sentencing is by a preponderance of the
evidence).
II
The
court enters these tentative findings in support of its
determination that Woods committed perjury during her trial
testimony.
Using a
preponderance of the evidence standard, and based upon the
evidence adduced at trial, including defendant Woods's
testimony, the court finds that at least the following
testimony[2] constituted (1) false testimony by Woods,
(2) given under oath at trial, (3) concerning a material
matter, (4) that Woods did not believe to be true, and (5)
that she gave with the willful intent to provide false
testimony rather than as a result of confusion, mistake, or
faulty memory. The court finds that Woods gave this testimony
willfully to obstruct or impede, or attempt to obstruct or
impede, the administration of justice during the prosecution
of the instant offenses.
The
testimony on which the court bases the perjury enhancement is
as follows: that the $5, 000 check was not a kickback for
putting ADI as the winner of the E-Rate bid but was to pay
Woods back the loan[3] that Donatus I. Anyanwu
(“Anyanwu”) had borrowed from her; that Woods
believed at the time she signed the certifications that she
was in compliance with E-Rate rules; that she did not enter a
conspiracy to defraud E-Rate in March 2011; and that nothing
about the loan to Anyanwu was done for the purposes of trying
to defraud E-Rate.
III
Any
objections to these tentative findings must be made no later
than the deadline for filing objections to the presentence
report.
SO
...