UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-10237
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RICHARD WAYNE WELLS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CR-279
November 4, 1998
Before WISDOM, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
A jury convicted Richard Wayne Wells of bank fraud and
aiding and abetting in violation of 18 U.S.C. §§ 2, 1344. The
district court sentenced Wells to 18 months of imprisonment,
imposed a $3000 fine, and ordered him to pay $17,006.25 in
restitution to the defrauded bank. Wells now appeals, arguing
that (1) the evidence was not sufficient to sustain his
conviction and (2) the district court erred by enhancing his
sentence under U.S.S.G. § 3C1.1 for obstruction of justice.
Neither contention has merit. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
We review Wells’s challenge to the sufficiency of the
evidence to see whether a reasonable trier of fact could have
found that the evidence established Wells’s guilt beyond a
reasonable doubt.2 To sustain a conviction for bank fraud, the
Government was required to prove beyond a reasonable doubt that
Wells knowingly executed or attempted to execute a scheme or
artifice to defraud a financial institution by means of false or
fraudulent pretenses, representations, or promises.3 In the case
at bar, the essence of the bank fraud scheme charged in the
indictment was that Wells, one of the principal owners of a home
construction business, submitted invoices which falsely claimed
that a subcontractor had performed construction, to banks for
loans. The jury heard overwhelming evidence that the invoices
were fraudulent and that Wells diverted borrowed money to pay
himself while subcontractors and suppliers went unpaid. Based on
this evidence, the jury was entitled to infer Wells’s fraudulent
intent in submitting the invoices. The evidence was thus
sufficient to support Wells’s conviction.
We review the district court’s factual finding that Wells
obstructed justice for clear error.4 Because the district court
found that Wells committed perjury at trial, it was required,
2
United States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir.
1996).
3
United States v. Dupre, 117 F.3d 810, 815 (5th Cir.
1997), cert. denied, 118 S. Ct. 857 (1998).
4
United States v. Storm, 36 F.3d 1289, 1295 (5th Cir.
1994).
2
under § 3C1.1 of the Sentencing Guidelines, to apply a sentencing
enhancement.5 If a defendant objects to such an enhancement, the
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.”6 Here, the district court made the
requisite independent findings that Wells committed perjury.7
The court’s finding that Wells provided false testimony was
supported by the trial testimony of several witnesses. Moreover,
in finding that Wells had provided materially false information
to the court, the district court implicitly determined that the
testimony satisfied the factual predicates for perjury.8 The
court’s finding that Wells obstructed justice was not clearly
erroneous.
AFFIRMED.
5
Id.
6
Id. (quotation and citation omitted). Perjury occurs
when “[a] witness testifying under oath or affirmation . . . gives
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.” Id. (quotation and citation
omitted).
7
See United States v. Cabral-Castillo, 35 F.3d 182, 186
(5th Cir. 1994).
8
See id. at 186-87.
3