Case Information
Before: *1 SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge. [*]
SARA LIOI, Distriсt Judge. Defendants, Tammy Brewer and Hoey Dobson, challenge their convictions and sentences growing out of an investigation into public corruption in Knott County, Kentucky. Defendants were ultimately convicted of one count each of committing perjury, in violation of 18 U.S.C. § 1623, and conspiring to commit perjury, in violation of 18 U.S.C. § 371. On appeal, both defendants challenge the admission of out-of-court statements of a coconspirator. In addition, Brewer attacks the district court’s refusal to give a requested instruction. With respect to her sentence, Brewer also argues that the district court did not give proper consideration to the need to avoid unwarranted sentence disparities under 18 U.S.C. § *2 3553(a)(6), and erred in applying sentence enhancements under U.S.S.G. §§ 2J1.3 and 3C1.1. For the reasons detailed below, we AFFIRM.
I
In November 2007, County Judge Executive Randy Thompson was fighting for his political life. After a contentious campaign, Thompson was narrowly reelected to his seat on the bench. Following the election, however, the Federal Bureau of Investigation (FBI) began an investigation into whether Thompson and others had misappropriated county owned gravel and asphalt to private citizens in order to favorably influence the election.
On April 9, 2007, an FBI agent interviewed Brewer, who was the secretary to Judge Thompson. It is undisputed that on November 28, 2006, both Brewer and her father, Dobson, had their respective driveways paved by East Kentucky Paving. When asked about the fresh blacktop at Brewer’s home, Brewer informed the agent that she had paid for the blacktop and received a receipt. In a subsequent meeting, Brewer prоduced the receipt to the blacktop, which was issued to Dobson. Brewer informed the agents that Dobson was a family member.
The owner of East Kentucky Paving, Randy Campbell, agreed to cooperate with authorities in exchange for immunity. Campbell had been hired by Judge Thompson to pave roads during the fall election. Campbell claimed that he had been instructed by former magistrate John Mac Combs to pave certain private driveways, and that Mac Combs had told him to issue fake receipts to hide the misappropriation of county funds. During his interviews with the FBI, Campbell admitted that the driveways of Brewer and Dobson were on the list of private driveways that had been paved with county asphalt. He further claimed that neither Brewer nor Dobson had paid for their new blacktops.
Brewer was subpoenaed tо testify before the grand jury. Prior to her appearance, investigating agents advised Brewer that they had reason to believe that she had lied about paying for the services provided by Campbell’s paving company. She was offered immunity in exchange for her honest testimony that she had not paid for her new blacktop, and that she was aware of other such illegal pavings. Instead, in her November 28, 2007 appearance, Brewer told the grand jury that she and her father, Dobson, had paid for their blacktops. She further testified that the receipt she had produced, bearing Dobson’s name, was genuine.
On December 19, 2007, the grand jury returned a one count indictment charging Brewer with making false statements before a grand jury. Dobson was not named in the original indictment. Brewer entered a plea of not guilty on January 8, 2008.
As a result of Brewer’s grand jury testimony, however, Dobson was questioned by the FBI on December 12, 2007. Dobson told investigators that he did not know who paid for the blacktop on his property. Further, while he initially stated that he had little or no knowledge as to the existence of any receipt, he later recalled that he might have placed it in a safe deposit box that he and his wife maintained.
Dobson appeared before the grand jury on December 19, 2007. He testified that he and Brewer paid for the paving services provided by Campbell’s company, and that the receipt produced by Brewer was legitimate.
On January 22, 2008, the grand jury returned a three-count superseding indictment against Brewer and Dobson. Count 1 charged Brewer with knowingly making false statements to a grand jury, in violation of 18 U.S.C. § 1623. Count 2 charged Dobson with the same offense. Count 3 chargеd Brewer and Dobson with conspiring to give materially false statements to a grand jury, in violation of 18 U.S.C. § 371.
Brewer and Dobson were jointly tried in the district court. During the jury trial, Brewer testified that she and Dobson had received estimates from East Kentucky Paving for both driveways, and that they had paid cash for their new blacktops. She also testified that her prior grand jury testimony had been truthful. She further insisted on the stand that she was unaware of any private driveways that were paved illegally with county asphalt.
Campbell also testified at defendants’ jury trial. He testified that he was informed by Judge Thompson that Mac Combs would tell him which private driveways to pave with the county’s asphalt. He also told the jury that Brewer’s and Dobson’s driveways were among the private drives Mac Combs instructed him to pave. In addition, he testified that Mac Combs told him to produce bogus rеceipts to conceal the illegal pavings.
The jury returned guilty verdicts against Brewer and Dobson on both charges. The U.S. Sentencing Guidelines set the base level for violations of 18 U.S.C. § 1623 at 14. U.S.S.G. § 2J1.3. At sentencing, the district court applied a three-level enhancement for substantial interference, pursuant to U.S.S.G. § 2J1.3(b)(2), and a two level enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, to Brewer’s offense level. (ROA (Vol. 4) at 76-7.) This gave Brewer a new base level of 19, which carried with it a recommended range under the Sentencing Guidelines of 30-37 months. The district court ultimately sentenced Brewer to two concurrent sentences of 26 months. (ROA (Vol. 4) at 85.) With respect to Dobson, the district court determined that enhancements were not appropriate, leaving Dobson’s base level undisturbed at 14. After noting that the recommended range was 15-21 mоnths, the district court sentenced Dobson to two concurrent sentences of 15 months. (ROA (Vol. 4) at 85.)
II
Statements by a Coconspirator
Defendants contend that the district court erred in admitting part of Campbell’s testimony in which Campbell recounted statements made to him by former magistrate John Mac Combs relating to the scheme to use county asphalt to pave private driveways. Defendants insist that the admission of these out-of-court statements violated their rights under the Confrontation Clause, citing Crawford v. Washington , 541 U.S. 36 (2004). The government responds that the statements were properly admitted as non-hearsay, and that, in any event, they could have been admitted under the coconspirator exception to the hearsay rule set forth in Fed. R. Evid. 801(d)(2)(E).
“In reviewing a trial court’s evidentiary determinations, this court reviews
de novo
the
court’s conclusions of law and reviews for clear error the cоurt’s factual determinations that
underpin its legal conclusions.”
United States v. Jenkins
, 345 F.3d 928, 935 (6 Cir. 2003)
th
th
(quoting
United States v. Salgado
,
A district court’s evidentiary rulings are reviewed for abuse of discretion.
United States v.
th
Baker
,
At trial, Campbell testified that Mac Combs told him which private driveways to pave, and that Mac Combs instructed him to pave Dobson’s and Brewer’s driveway. He also testified [1] *6 that Mac Combs asked him to prepare fake receipts for the work done on the private driveways, and advised Campbell that he (Mac Combs) would file the bogus receipts in the courthouse. [2]
Prior to Campbell taking the stand, Brewer filed a motion in limine to limit Campbell’s testimony to exclude all reference to any out-of-court statements made by Mac Combs. Specifically, Brewer sought to prevent Campbell from testifying that Mac Combs told him which private drives to pave, and further told him to issue bogus receipts to cover up the misappropriation of county resources. The district court denied the motion, finding that the out- of-court statements were not hearsay because they were not being offered for the truth of the matters asserted. (ROA (Vol. 5) at 57.) In so ruling, the district judge emphasized that the testimony was being offered to show “the reason the witness [Campbell] acted in a particular way.” ( Id. at 58.)
“Hearsay” is defined by the Federal Rules of Evidence as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the “Yeah.” (ROA (Vol. 6) at 12.) Later, Campbell was asked who instructed him to pave Dobson’s driveway. Campbell answered: “Mac Combs.” (ROA (Vol. 6) at 28.) As to Brewer’s drive, Campbell was asked: “W ho directed you to [lay blacktop]?” Again, Campbell responded: “Mac Combs.” (ROA (Vol. 6) at 29.)
W ith respect to the bogus receipts, the testimony unfolded as such:
Q. [… ] After you paved these driveways, did anyone ask you to prepare receipts— A. Yes.
Q. –that made it appear to be private blacktop?
A. Yes.
Q. W ho asked you to do this?
A. Mac Combs.
Q. And what were the circumstances of— tell us how that happened?
A. He said that he needed some receipts made out, and he told me who to put on them, and he said he was going to file them in the courthouse.
(ROA (Vol. 6) at 33-4.)
truth of the matter asserted.” Fed. R. Evid. 801(c). A “declarant” is one who makes a
“statement,” and words constitute a “statement” only if they qualify as an “assertion.” Fed. R.
Evid. 801(b), (a). “A ‘witness who testifies at trial that [someone solicited them to commit a
crime] is testifying to a verbal act of which the witness has direct knowledge: the extension of
th
the invitation.’”
United States v. Childs
, 539 F.3d 552, 559 (6 Cir. 2008) (quoting
United
States v. Gordon
, No. 90-1501,
Similarly, Campbell’s testimony regarding his conversations with Mac Combs was properly admitted as non-hearsay verbal acts. The statements of Mac Combs, recounted on the stand by Campbell, were not assertions; rather, they represented solicitations on the part of Mac Combs to commit a series of crimеs involving the misappropriation of public resources. As the district court properly observed, the testimony was offered for the sole purpose of putting into context Campbell’s response of paving the private driveways and generating bogus receipts. Consequently, the statements were properly admitted as non-hearsay. See e.g., United States v. [3]
Rodriguez-Lopez,
Even if the statements could have been considered hearsay, their admission would have
been appropriate under the coconspirator exception to the hearsay rule. Rule 801(d)(2)(E)
provides that a statement made by a coconspirator is admissible as non-hearsay “if [t]he
statement is offered against a party and is […] a statement by a coconspirator of a party during
the course and in furthеrance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). “A statement is
made in furtherance of a conspiracy if it was intended to promote conspiratorial objectives; it
th
need not actually further the conspiracy.”
United States v. Carter
,
It was the government’s theory that defendants were involved in a conspiracy with Judge
Thompson, Mac Cоmbs, Campbell and others to misappropriate county resources for personal
use. Mac Combs’ verbal directions to Campbell as to which driveways to pave and how to cover
up the illegal pavings with fake receipts were clearly offered to assist Campbell in performing
his role in that conspiracy.
See Godinez
, 110 F.3d at 454. Mac Combs’s out-of-court
statements, if they were, indeed, offered for the truth asserted therein, would fall neatly into the
coconspirator exception to the hearsay rule.
See United States v. Martinez
,
Defendants argue, however, that the admission of these statements violated their rights
under the Confrontation Clause. In
Crawford
, the Supreme Court ruled that “[w]here testimonial
еvidence is at issue, […,] the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.”
Crawford
, 541 U.S. at 68.
See
also United States v. Martinez
, 430 F.3d at 328-29. However, only statements that are
testimonial in nature invoke the protection of the Sixth Amendment’s Confrontation Clause.
See
Davis v. Washington
,
Further, even if the district court erred in admitting the statements into evidencе, any
such error was harmless under the standard set forth in
Chapman v. California
,
Request for Jury Instruction on Good Faith
Brewer also complains that the district court erred in refusing to instruct the jury that there is a presumption in the law that contracts are entered into in good faith. We review the denial of a proposed jury instruction for abuse of discretion. United States v. Frost , 914 F.2d 756, 766 (6 Cir. 1990). th
“The standard on appeal for a court’s charge to the jury is whethеr the charge, taken as a
whole, fairly and adequately submits the issues and applicable law to the jury.”
United States v.
th
Martin
,
(6 Cir. 2008);
United States v. Prince
,
Brewer requested the following instruction:
Proposed Instruction # 4
In this case you have heard testimony that the defendants properly contracted with Randy Campbell through his paving company, known as East Kentucky Paving, to pave their respective driveways. Further, a receipt has been introduced into evidеnce showing payment of $1,850.00 to East Kentucky Paving as payment for said blacktopping. There is a presumption in the law I must make you aware of, that is, sales and contracts are presumed to have been made in good faith until the contrary is proven. This of course is all for you to decide.
(Record Entry No. 52 at 3.)
Brewer argues that the district court abused its discretion in refusing to give the instruction because the requested charge was an accurate account of Kentucky contract law, the defense’s theory that Brewer and Dobson acted in “good faith” when they contracted with Campbell was not otherwise addressed in the district court’s charge, and that this “good faith” was central to Brewer’s defense. The government maintains that the requested instruction was redundant, in that the concept of “good faith” was adequately covered by the district court’s instructions on the presumption of innocence.
With respect to the charge under § 1623, the district court instructed the jury that: For you to find the defendant guilty of this crime, you must be convinced that the government has proved each and every one of the following elements beyond a reasonable doubt:
First, that the defendant made a statement, as alleged in the indictment, while she was under oath before the grand jury;
Second, that such statement was false in one or more of the respects charged; Third, that the defendant knew such statement was false when she made it, and Fourth, that the false statement was material to the grand jury inquiry.
(ROA (Vol. 1) at 88.) This instruction accurately set forth the elements of perjury under 18 U.S.C. § 1623. See United States v. Safa , 484 F.3d 818, 821 (6 Cir. 2007) (internal citation *12 omitted) (To convict an individual under §1623, “the government must prove beyond a reasonablе doubt that the defendant ‘(1) knowingly made; (2) a materially false declaration; (3) under oath; (4) in a proceeding before or ancillary to any court of the United States.’”) (emphasis in original). The district court also thoroughly and properly instructed the jury that Brewer and Dobson enjoyed a presumption of innocence, noting, in particular, that “the defendants start the trial with a clean slate, with no evidence at all against them, and the law presumes that they are innocent. This presumption of innocence stays with them unless the government presents evidence here in court that overcomes the presumption, and convinces you beyond a reasonable doubt that they are guilty.” (ROA (Vol. 1) at 78.)
The district court’s instruction fairly and accurately reflected the law as it applied to § 1623. Moreover, the idea that there is a presumption that contracts are entered into in good faith, regardless of the accuracy of this general contract principle, was substantially covered by the trial court’s instruction that the government bore the burden of proof and that Brewer was entitled to a presumption of innocence. Regardless of the civil law governing the making of contracts, Brewer’s jurors were instructed that they were to begin with the presumption that Brewer did not offer materially false testimony. Since it was Brewer’s position that she had testified truthfully before the grand jury that she had paid for the blacktop, the instruction on the presumption of innocence alerted the jury to start with the presumption that her contract was entered into in good faith in that she intended to, and did, pay for the services provided. Inasmuch as Brewer’s requested instruction was substantially covered by the district court’s charge, this Court cannot find that the district judge abused his discretion.
Even if Brewer’s requested charge regarding contract law could be viewed as going
directly to her theory of defense, the failure to instruct on “good faith” would have been
*13
harmless. “It is error to fail to instruct on the defendant’s theory of the case, however ‘[t]he trial
judge [is] not required to adopt the language suggested by a defendant […].’”
United States v.
McGuire
,
970 (6 Cir.), cert. denied, 429 U.S. 850 (1976)). Moreover, even if an instruction on a
defendant’s theory of the case is improperly rejected, a resulting conviction will still be upheld
“when the court is convinced that the jury would have convicted the defendant even if it had
been properly instructed.”
United States v. Nash
, 175 F.3d 429, 437 (6 Cir. 1999) (citing
United States v. Mauldin
,
It was Brewer’s defense theory that she did pay for the blacktop, and therefore, her
subsequent grand jury testimony swearing to the same was truthful. Any failure to specifically
instruct on this theory was harmless. The issue of Brewer’s “good faith” was clearly placed
before the jury, even if the exact words were not used. By instructing on the burden of proof and
the presumption of innocence, the district court informed the jury of Brewer’s theory of the case,
and properly placed the burden of proof on the government.
See e.g., Nash
,
Sentencing Issues
Brewer also raises three separate issues relating to her sentencing. In the landmark case of United States v. Booker , 543 U.S. 220 (2005), the Supreme Court determined that the U.S. Sentencing Guidelines were advisory. As such, post- Booker, district courts are now vested with enhanced discretion when sentencing criminal defendants. United States v. Jackson , 408 F.3d th 301, 304 (6 Cir. 2005). Still, it remains the duty of the district court to ensure that the sentences
it imposes are “sufficient, but not greater than necessary, to comply with the purposes” of 18 U.S.C. § 3553(a), and it is our duty to determine that a sentence is reasonable. United States v. Davis , 458 F.3d 505, 509-510 (6 Cir. 2006). “Reasonableness” has both a procedural and th th
substantive component.
United States v. Walls
,
of substantive reasonableness attaches to a sentence that falls within the Sentencing Guidelines
recommended range.
United States v. Vonner
,
Under § 3553(a), the district court should consider the seriousness of the offense,
deterrence of future crimes, protection of the public from future crimes of the defendant, and the
need to provide the defendant with training or correctional treatment.
Id.
(citing § 3553(a)(2)).
The district judge should also consider circumstances unique to the defendant, the various
sentences available, the range recommended by the Sentencing Guidelines, policy statements set
forth in the Guidelines, the appropriateness of restitution, and the need to avoid disparate
sentences.
United States v. Collington
, 461 F.3d 805, 807 n. 1 (6 Cir. 2006) (citing §
*15
3553(a)(1), (3)-(7)). A district court’s sentence is reviewed for reasonableness with an eye
toward those same § 3553(a) factors.
Jackson
,
A review of the sentencing transcript reveals that the district court properly set forth his responsibilities under § 3553(a), and carefully considered each factor in crafting defendants’ sentences. Brewer complains, however, that the district judge failed to properly consider the need to avoid disparate sentences under § 3553(a)(6).
Avoiding Disparities under § 3553(a)(6)
At sentencing, Brewer’s counsel moved to require the government to produce discovery on the number of individuals who were implicated in the Knott County corruption investigation but received immunity. (ROA (Vol. 6) at 5.) Defense counsel argued that, under § 3553(a)(6), the district judge needed to know the number of people who had been granted immunity, and the nature and extent of their involvement in the public corruption, to avoid unwarranted sentence disparities. (ROA (Vol. 6) at 9-12.) After acknowledging that it would take notice of the fact that the government had chosen to offer immunity to certain individuals who had engaged in the same type of behavior as defendants, the district court denied the motion to require discovery. (ROA (Vol. 6) at 12, 18.)
Brewer’s argument that § 3553(a)(6) entitled her to information on the number of people granted immunity fails for several reasons. First, Brewer’s request for discovery of those offered immunity fell outside of the boundaries of § 3553(a)(6). Specifically, that section provides:
The court, in determining the particular sentence to be imposed, shall consider—
***
The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct […].
18 U.S.C. § 3553(a)(6). It is clear that § 3553(a)(6) limits its reach to consideration of (1)
defendants, (2) who have convictions, and (3), therefore, have been adjudged guilty. Those who
*16
accepted the government’s offer of immunity avoided conviction, and, therefore, were never
found guilty. Thus, the plain and ordinary meaning of the language of § 3553(a)(6) precludes a
finding that the district court erred in denying Brewer’s motion.
See generally United States v.
th
Davis
,
issue, we give Guideline language its ordinary meaning.”)
Second, § 3553(a)(6) “is concerned with national disparities among the many defendants
with similar backgrounds convicted of similar criminal conduct.”
United States v. Simmons
, 501
F.3d 620, 623 (6 Cir. 2007).
See United States v. Rochon
, No. 07-5429,
(6 Cir. Mar. 27, 2009) (quoting
United States v. Houston
, 529 F.3d 743, 752 (6 Cir. 2008))
(“[W]hile a district court in its discretion may consider local disparities to be relevant, the need
to avoid sentencing disparities under Section 3553(a)(6) concerns ‘national disрarities,’ not
disparities between specific cases.”) It does not focus on perceived disparities between any two
defendants, even if those defendants happen to be co-defendants implicated in the same criminal
Id
activity.
United States v. LaSalle
.; ,
*17 is there to ensure nationally uniform sentences among like offenders so as to leave room to depart downward for those defendants who are truly deserving of leniency.” Simmons , 501 F.3d at 624. Generally, “national uniformity is taken into account by the Sentencing Guidelines which ‘are almost certainly the best indication of ordinary practice since most sentences are Id within the guidelines.’” United States v. Saez . at 626 (quoting , 444 F.3d 15, 19 (1 Cir. [5] st 2006)).
Here, the district judge found that there were no other defendants who had been found
guilty of similar offenses who had been guilty of perjury from which a disparity analysis could
be made. (ROA (Vol. 6) at 82.) Instead, the district court turned to the U.S. Sеntencing
Guidelines to ensure that the sentences it was about to impose were not disparate to sentences
handed out for similar crimes. After considering the recommended Guidelines range, as well as
all of the § 3553(a) factors, including the seriousness of the offense, the district court imposed a
sentence that was actually below the adjusted base level recommended range. Such a sentence
carries with it a rebuttable presumption of reasonableness.
United States v. Cage
,
Even assuming arguendo that a considerаtion of those who had been afforded immunity in the Knott County scandal was relevant and necessary to Brewer’s sentencing, it is clear from the record that any failure by the district court to require the government to produce discovery on the subject was harmless. While the district court did not know the exact number of individuals who were granted immunity, it was aware that the government had granted immunity to others who might otherwise have been considered “defendants” under § 3553(a)(6). Further, the *18 district court stated for the record that it did take the grants of immunity into consideration in sentencing Brewer. As such, it cannot be said that the failure to disclose the number of [6]
individuals granted immunity jeopardized the reasonableness of the sentence Brewer received.
Two-Level Enhancement Under § 3C1.1
Brewer also challenges the district court’s imposition of a two-level enhancement for obstruction of justice. Section § 3C1.1 provides, in part:
If […] the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentence of the instance offense, […] increase the offense level by 2 levels.
U.S.S.G. § 3C1.1. “One type of obstructive conduct specifically mentioned in the Guidelines is
perjury.”
United States v. Logan
, 250 F.3d 350, 374 (6 Cir. 2001). This Court employs a
clearly erroneous standard to a district court’s factual determinations, while the decision that
certain conduct constitutes obstruction and its application of the enhancement are reviewed
de
.
novo
,
*19 th th 306 F.3d 356, 389 (6 Cir. 2002) . See United States v. Walker , 119 F.3d 403, 405 (6 Cir. 1997).
In this case, the district judge found that the enhancement for obstruction of justice was
appropriate because Brewer was untruthful at trial, and that “the untruthful testimony on material
matters was designed to substantially affect the outcome of the case.” (ROA (Vol. 6) at 62.) Of
course, the district court may not rely solely on the jury’s guilty verdict on the perjury charge.
Chance
,
The Sixth Circuit has interpreted the decision in
Dunnigan
as placing two requirements
upon a district court before it may impose an enhancement for obstruction of justice. First, the
district court must identify the particular testimony it finds to be perjurious.
Chance
,
the district court may rely on a detailed list of perjurious statements supplied by the government.
Chance
,
Where a defendant’s PSR contains mere conclusory assertions as to a defendant’s
obstruction of justice, adoption of the PSR by the district court will not satisfy the
Dunnigan
requirement that specific instances of perjury be set forth with particularity.
Johns
,
In the present case, the PSR sets forth with detail the portions of Brewer’s trial testimony
believed to have been perjurious. This includes Brewer’s testimony that she paid cash for the
blacktop, that she was unaware of any driveways that were illegally paved with county asphalt,
and that her prior grand jury testimony indicating the same had been truthful. (ROA (PSR) at
10-14.) The level of detail provided in the PSR, which the district court adopted at sentencing,
was amply sufficient to satisfy the first prong of the
Dunnigan
test.
See e.g., United States v.
nd
Johns
,
court’s factual findings as to obstruction of justice);
United States v
.
Oxendine
,
The district court also had at its disposal its own recollections as to Brewer’s obstructivе
conduct, as well as the trial testimony of Campbell, which clearly contradicted that offered by
Brewer on the issues material to the obstruction of justice inquiry. Coupled with the detailed
findings in the PSR, it cannot be said that the district court erred in making its determination that
Brewer obstructed justice within the meaning of § 3C1.1.
See e.g., Logan
,
As for the second requirement, the district court started with the elements of perjury and made a specific finding that “Ms. Brewer was untruthful at trial of this matter with respect to material matters in this case, and that the untruthful testimony on material matters was designed to substantially affect the outcome of the case.” (ROA (PSR) at 60, 62.) Further, the district [8]
court observed that the perjurious testimony that formed the basis for Brewer’s conviction for
knowingly making false, material declarations to a grand jury was repeated on the stand in her
criminal trial. (ROA (PSR) at 63.) Having made findings that supported the factual predicates
for the crime of perjury, the district court properly discharged its duties to support its imposition
of a two level enhancement for obstruction of justice.
See Johns
,
at 531.
Three-Level Enhancement Under § 2J1.3
In her final assignment of error, Brewer takes issue with the district court’s imposition of
a further sentencing enhancement for causing substantial interference with the administration of
justice. As previously observed, factual findings supporting sentencing enhancements are
*22
reviewed for clear error, while the application of the Sentencing Guidelines to the facts is
th
reviewed
de novo
.
United States v. Tackett
,
Section § 2J1.3 provides:
If the perjury, subornation of perjury, or witness bribery resulted in substantial interference with the administration of justicе, increase by 3 levels.
18 U.S.C. § 2J1.3(b)(2). Application Note 1 explains that substantial interference with the administration of justice “includes a premature termination of a felony investigation; an indictment, verdict, or any judicial determination based on perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.” U.S.S.G. § 2J1.3, Application Note 1. It is the “unnecessary expenditure of substantial governmental or court resources” that is the focus of this final assignment of error. [10]
In advocating for an enhancement for unnecessary expenditure of substantial
governmental resources, the government may not rely on any investigative costs incurred prior
to the defendant’s perjury.
United States v. Johnson
, 485 F.3d 1264, 1271 (11 Cir. 2007).
Nonetheless, “’[t]he government need not particularize a specific numbеr of hours expended by
government employees’ to sustain the application of section 2J1.3(b)(2)’s enhancement.”
United
States v. Norris
,
Here, the district court applied the enhancement under § 2J1.3 to Brewer’s sentence upon a determination that, as a result of Brewer’s perjured grand jury testimony, the government was required to expend additional, unnecessary, and substantial resources to investigate Dobson and bring him before the grand jury. (ROA (Vol. 6) at 65-6.) Brewer argues that the district court *23 erred in imposing the enhancement because it failed to identify “with specificity” what resources were spent as a result of Brewer’s testimony, and because any resources expended by the government in investigating Dobson were not the result of Brewer’s perjured testimony. [11] Neither argument has merit.
It is undisputed that Dobson was not interviewed prior to Brewer’s grand jury testimony, even though his driveway hаd been paved the same day as Brewer’s and his name appeared on the bogus receipt produced by Brewer. Instead, he was interviewed immediately after Brewer gave her perjured grand jury testimony. Brewer’s dishonesty put into motion a series of events that included a subsequent grand jury appearance by Dobson, and the issuance of a superseding indictment naming Dobson as a coconspirator. The Court cannot find that the district court clearly erred in determining that Brewer’s misconduct resulted in the expenditure of governmental resources. See e.g . Tackett, 193 F.3d at 886-87 (defendants’ dishonesty in [12]
attempting to obstruct their son’s arson trial resulted in the expenditure of government resources to charge the son with the additional offense of obstruction). Nor can the Court find that the district judge’s determination that the time and expense necessary to investigate, charge, and prosecute Dobson were substantial was erroneous . See e.g., Johnson , 485 F.3d at 1272 *24 (defendant’s false grand jury testimony in Clean Water Act action resulted in substantial resources expended to interview additional witnesses and reconvene the grand jury).
Accordingly, we find that the district court did not err in imposing a three-level enhancement under § 2J1.3.
III
For all of the forgoing reasons, the judgment and sentence of both Brewer and Dobson are AFFIRMED.
Notes
[*] The Honorable Sara Lioi, United States District Judge for the Northern District of Ohio, sitting by designation.
[1] Specifically, Campbell was asked: “Did someone—you said Mac Combs told you where to pave?” Campbell answered;
[3] Brewer attempts to distinguish Childs on the ground that Campbell’s testimony related to on-going criminal activity while the disputed testimony in Childs involved an initial invitation to commit a crime. Brewer fails to cite any authority, however, that wоuld suggest that the point in the conspiracy in which the verbal act occurred dictates whether the statement can be considered non-hearsay.
[4]
A district court may, but is not required to, consider a sentence in light of a sentence received by a co-defendant.
Walls
,
[5]
In addition, § 3553(a)(6) counsels against
unwarranted
sentence disparities. § 3553(a)(6) (emphasis added). Behavioral
differences and differences in individual characteristics between defendants are valid bases for considering dissimilar
sentences.
See United States v. Fernandez
,
[6] At sentencing, the district judge explained its reason for considering the grants of immunity: I think the Government has provided some information fоr the record, and, M r. Coffey, you’ve made a case for the record that I think it is fair for me to consider in terms of the overall considerations under 3553 that I’m going to consider. By denying your motion to disclose, which I’m going to do, it’s simply a recognition that the specificity that you are seeking is not necessary to these proceedings. But that’s different than saying that I won’t consider your general argument as it relates to this notion of disparity. I think it’s fair to consider it. I’m not sure I’d give it much weight. But I’m not suggesting that that’s not an argument that’s not appropriate to be made, and will certainly recognize it and consider it more broadly as it relates to the arguments that you’re setting forth on behalf of your client. (ROA (Vol. 6) at 18-19.)
[7] The government advocates for a plain error review of the district court’s imposition of the enhancement for obstruction of justiсe, arguing that Brewer failed to offer any objections to the sentence when it was imposed. The Court need not decide whether this more stringent standard is appropriate because it is clear that under any standard, the district court did not err in imposing the enhancement.
[8]
This determination encapsulates the elements of a violation of 18 U.S.C. § 1623, which include: that the defendant “(1)
knowingly made; (2) a materially false declaration; (3) under oath; (4) in a proceeding before or ancillary to any court
of the United States.”
United States v. Lee
,
[9]
In imposing the enhancement under § 3C1.1, the district court also observed that Application Note 7 to § 3C1.1 cautions
that “this adjustment is not to be applied to the offense level for that offense except if a significant further obstruction
occurred during the investigation, prosecution, or sentencing of the obstruction offense itself (e.g., if the defendant
threatened a witness during the course of the prosecution for the obstruction offense).” Relying on the decision in
United States v. McCoy
, 316 F.3d 287 (D.D.C. 2003), the district court properly concluded that the exception to
Application Note 7 applied in situations, such as this, where a defendant took the stand in a perjury trial. (ROA (Vol.
6) at 61).
See McCoy
,
[10]
“W hether the government expenditures constituted ‘substantial resources’ is a question of law applied to fact, which
we review
de novo
.”
Tackett
,
[11] Specifically, Brewer argues: This case was part of an investigation of many persons in Knott County who received blacktop from Randy Campbell and other pavers. Detective Hopkins indicated to Tammy Brewer during his initial interview that he was talking to everyone who had allegedly received blacktop from Randy Campbell during this period. Further, Detective Hopkins testified many individuals testified before the grand jury who had received improper benefits from the Knott County officials. Even if Brewer had testified consistent with the government’s theory of the case that she and Dobson did not pay for the paving and received a fake receipt, Dobson, just like everyone else, implicated in the investigation would have been interrogated and brought before the grand jury. (Appellant’s Brief at 29.)
[12] Tackett actually involved a sentence enhancement under U.S.S.G. § 2J1.2(b)(2) that also provided for a similar three- level enhancement if the offense resulted in “substantial interference with the administration of justice.”