Opinion
Criminal No. 3:03-CR-431-D.
April 4, 2005
MEMORANDUM OPINION AND ORDER
A jury convicted defendant Stuart Cole ("Cole") of the offenses of securities fraud, mail fraud, wire fraud, interstate transportation of money taken by fraud, and money laundering. Cole testified during the trial. Because the court finds that Cole committed perjury during his testimony, the court directs the probation officer to add a two-level increase to the 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 the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the . . . prosecution . . . of the instant offense." "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 at trial. 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).
In reaching this decision, the court recognizes that the Sentencing Guidelines are advisory. Under United States v. Mares, ___ F.3d ___, 2005 WL 503715, at *7 (5th Cir. Mar. 4, 2005), however, the court is ordinarily required to calculate the proper guideline range.
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, 2004 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." Dunnigan, 507 U.S. 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, 2004 Manual), "if a defendant objects to a sentence enhancement resulting from [his] 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." Id. "[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. "[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 Cole committed perjury during his trial testimony.
Using a preponderance of the evidence standard, and based upon the evidence adduced at trial, including defendant Cole's testimony, the court finds that at least the following testimony constituted (1) false testimony by Cole, (2) given under oath at trial, (3) concerning a material matter, (4) that Cole did not believe to be true, and (5) that he gave with the willful intent to provide false testimony rather than as a result of confusion, mistake, or faulty memory. The court finds that Cole gave this testimony willfully to obstruct or impede, or attempt to obstruct or impede, the administration of justice during the prosecution of the instant offense.
The testimony on which the court bases the perjury enhancement is as follows:
(1) that George Gezzer knew exactly what his $300,000 loan was to be used for;
(2) that Cole did not represent anywhere to investors that wells were producing gas when they were not;
(3) that there was no way that George Gezzer would not know exactly where the money from the $300,000 loan would be going and what it would be used for, and that Gezzer provided false information to the court; and
(4) that when investors see "producing" in the joint venture agreements, it means producing water, in connection with de-watering.