In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3695
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MARIA CHYCHULA,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10‐cr‐01047‐1 — Sharon Johnson Coleman, Judge.
____________________
ARGUED DECEMBER 5, 2013 — DECIDED JULY 2, 2014
____________________
Before WOOD, Chief Judge, and SYKES and TINDER, Circuit
Judges.
TINDER, Circuit Judge. Maria Chychula was convicted of
nine counts of wire fraud, and the district court sentenced
her to 48 months’ imprisonment. Chychula appeals, arguing
that the district court erred in applying a two‐level en‐
hancement to her offense level for obstruction of justice be‐
cause it failed to make the necessary findings. We affirm.
2 No. 12‐3695
I. Background
A grand jury charged Chychula with nine counts of par‐
ticipating in a scheme to defraud by means of interstate wire
communications in violation of 18 U.S.C. § 1343. The indict‐
ment charged that Chychula and her codefendants engaged
in a broad investment scheme, pursuant to which they de‐
frauded more than 60 investors and obtained almost $4.5
million. The scheme lasted several years and took on various
forms, including investment in the Gnxpert Companies—
companies that Chychula and her co‐schemers incorporated.
In furtherance of the scheme, Chychula sent false infor‐
mation to investors by electronic mail and facsimile, and
caused wire transfers of funds from investors’ bank accounts
to Cinema Investment Fund. Following review of a psycho‐
logical report regarding Chychula’s competency and the par‐
ties’ arguments, the district court found Chychula fit to
stand trial.
At the bench trial the government proved a scheme to de‐
fraud in which Chychula and her co‐schemers, among other
things, overstated profits, misled investors about existing
contracts and Gnxpert products on the market, and convert‐
ed investment money for the defendants’ own use. The
scheme was proved through witness testimony and hun‐
dreds of exhibits, including Chychula’s grand jury testimo‐
ny, emails between Chychula and others, and bank records.
At the conclusion of trial, the district court found Chychula
guilty of all nine counts of wire fraud. Chychula moved for
judgment of acquittal and a new trial; both motions were
denied.
A presentence investigation report (PSR) was prepared
and provided to the district court and the parties. In calculat‐
No. 12‐3695 3
ing Chychula’s offense level, the PSR included a two‐level
enhancement for obstruction of justice pursuant to
U.S.S.G. § 3C1.1, based on Chychula’s testimony to the
grand jury. In support of the enhancement, the PSR stated:
The defendant willfully obstructed or impeded, or at‐
tempted to obstruct or impede, the administration of
justice when she testified falsely before the grand ju‐
ry. She made several false statements including:
She [Chychula] did not communicate to inves‐
tors that they [Gnxpert companies] were a bil‐
lion dollar company, when, in fact, she had
told Helmet Mueller on January 31, 2008, that
the Gnxpert companies were worth one billion
dollars.
The defendants spent nothing on themselves
personally, save for food and basic survival
items. In fact, the defendant withdrew almost
$500,000 in cash, and diverted an additional
$100,000 to family members. Furthermore, the
codefendants withdrew one million dollars in
cash.
The Motion Picture Association of America
(MPAA) agreed to license the antipiracy tech‐
nology. In fact, the MPAA denies entering into
such an agreement, and stated it would not
have been the entity to license such.
An attorney for 3M said the company would
pay for Gnxpert to move to 3M’s corporate
headquarters, and pay $50 million for Gnscope.
3M denies making these statements.
4 No. 12‐3695
Chychula had no prior convictions so she was in the least
severe criminal history category of I. With an offense level of
35 and a criminal history category of I, the PSR stated that
the advisory guideline range was 168‐210 months.
Chychula filed a sentencing memorandum making vari‐
ous objections to the PSR. Relevant to this appeal, she object‐
ed to the enhancement for obstruction of justice on the
ground that the evidence was insufficient to prove her intent
to obstruct justice, and she argued that any obstructive con‐
duct could be explained by her diminished capacity. The
government argued that the obstruction enhancement was
appropriate because Chychula committed perjury in the
grand jury. The government responded that she had know‐
ingly made a number of false statements regarding her of‐
fense of conviction as § 3C1.1 requires, citing to the same ex‐
amples listed in the PSR. In addition to these examples, at
the sentencing hearing, the government referenced the
statements that Chychula had made to the grand jury in an
apparent attempt to explain false statements she and her fel‐
low schemers had made to investors about business pro‐
spects with Century Fence Company and Douglas Marine
Corporation. The government sought a sentence within the
guideline range projected in the PSR.
The district court agreed that the obstruction enhance‐
ment was appropriate. After rejecting another recommended
enhancement, the court calculated the advisory guideline
range as 135 to 168 months. The court ultimately imposed a
below‐guidelines sentence of 48 months and Chychula ap‐
pealed.
No. 12‐3695 5
II. Discussion
The single issue in this appeal is whether the two‐level
sentencing enhancement for obstruction of justice was
properly based on statements Chychula made to the grand
jury. The sentencing guidelines authorize such an enhance‐
ment if the defendant “willfully obstructed or impeded, or
attempted to obstruct or impede” the investigation or prose‐
cution of the offense of conviction and “the obstructive con‐
duct related to … the … offense of conviction … .”
U.S.S.G. § 3C1.1. “A finding that the defendant committed
perjury supports this enhancement.” United States v. Riney,
742 F.3d 785, 790 (7th Cir. 2014) (citing United States v. Dun‐
nigan, 507 U.S. 87, 94 (1993) and U.S.S.G. § 3C1.1, cmt.
n.4(B)). “A defendant commits perjury if, while testifying
under oath, [s]he gives false testimony concerning a material
matter with the willful intent to provide false testimony, ra‐
ther than as a result of confusion, mistake, or faulty
memory.” Id. (quoting United States v. Johnson, 680 F.3d 966,
981 (7th Cir. 2012) (internal quotation marks omitted).
When applying the obstruction enhancement based on
perjury, “‘the district court should make a finding as to all
the factual predicates necessary for a finding of perjury: false
testimony, materiality, and willful intent.’” Id. (quoting Unit‐
ed States v. Johnson, 612 F.3d 889, 893 (7th Cir. 2010)). “Sepa‐
rate findings on each element of perjury, though preferable,
are not necessary if the court makes a finding that ‘encom‐
passes all of the factual predicates for a finding of perjury.’”
Id. (quoting Dunnigan, 507 U.S. at 95). We review de novo the
adequacy of the district court’s findings and review the un‐
derlying factual findings for clear error. United States v.
6 No. 12‐3695
Cheek, 740 F.3d 440, 453 (7th Cir.), cert. denied, 134 S. Ct. 2152
(2014).
In some cases, we have held that the district judge’s error
in failing to make explicit findings as to each element of per‐
jury to support the enhancement was harmless. See, e.g.,
Johnson, 680 F.3d at 982 (concluding that court’s finding “that
the defendant lied to the judge … about matters crucial to
the question of the defendant’s guilt” can be sufficient to
support perjury finding); United States v. Savage, 505 F.3d
754, 763–64 (7th Cir. 2007) (holding that court’s error in fail‐
ing to make specific findings as to each element of perjury in
imposing obstruction‐of‐justice enhancement was harmless
where judge stated that the defendant “did not testify truth‐
fully” and specifically found that he “has obstructed or at‐
tempted to obstruct justice in this case,” which arguably en‐
compassed the willful intent element, and where it was clear
that the defendant willfully lied about material matters);
United States v. Sheikh, 367 F.3d 683, 687 (7th Cir. 2004) (hold‐
ing that court’s finding that each defendant lied about a mat‐
ter crucial to his guilt was sufficient to support enhance‐
ment); United States v. Saunders, 359 F.3d 874, 879 (7th Cir.
2004) (concluding that court’s error in making findings that
were “too skimpy” was harmless where the defendant was
charged with being a felon in possession of a firearm, took
the stand in his defense, and denied possessing a gun, and
the court found that the defendant told “a lie which no one
would believe”). But see United States v. Parker, 716 F.3d 999,
1011–13 (7th Cir.) (vacating sentence and remanding because
the context of the sentencing left us “unsure as to whether
the court found that [defendant’s] denial of involvement in
the scheme was willful”), cert. denied, 134 S. Ct. 532 (2013);
United States v. Johnson, 612 F.3d 889, 894–95 (7th Cir. 2010)
No. 12‐3695 7
(vacating sentence and remanding where it could not be de‐
termined that the court found that the defendant “made a
particular material false statement with willful intent, suffi‐
cient to enhance [his] sentence for obstructing justice”). In
other cases, we have concluded that the failure to make a
sufficient finding as to an element of perjury was harmless
because the error had no effect on the sentence imposed. See,
e.g., Riney, 742 F.3d at 791 (holding that the district court’s
failure to make a willfulness finding was harmless “because
the armed career criminal guideline trumped the effect of
the obstruction enhancement” and the defendant was sen‐
tenced below the guideline range).
Like the district court in Savage, 505 F.3d at 763, the dis‐
trict judge in this case did not specifically identify which of
Chychula’s grand jury statements were perjurious. Yet the
government’s sentencing memorandum argued that Chy‐
chula “made a number of knowingly false statements re‐
garding her ‘offense of conviction,’” identifying the same
statements that the PSR identified as supporting the en‐
hancement:
Defendant testified that she and her co‐
schemers did not communicate to investors
that they [the Gnxpert companies] were a bil‐
lion dollar company.
Defendant testified that she and her co‐
schemers spent nothing on themselves person‐
ally other than food or basic survival items.
Defendant testified that the [MPAA] agreed to
license the anti‐piracy technology.
8 No. 12‐3695
Defendant testified that an attorney for 3M
said the company would even pay for Gnxpert
to move to 3M’s corporate headquarters.
An attorney for 3M said the company would
pay $50 million for Gnxscope.
And at sentencing, the government mentioned these same
examples and gave two others, referencing Chychula’s
grand jury testimony about business prospects with Douglas
Marine Corporation and Century Fence Company. (Chychu‐
la’s attorney referred to the same testimony; he argued that
“Chychula simply could not separate the certainty of ac‐
complishment from her desires”—an argument that did not
persuade the district court.) The government maintained
that “[w]hat [Chychula] was trying to do was defend the lies
she had told … in her e‐mails”; immediately thereafter, the
district judge said, “All right. I think I have enough exam‐
ples.” Similar to Savage, the context of the district judge’s
statement strongly suggests that she considered all of Chy‐
chula’s grand jury statements, whether identified in the PSR
or relied on by the government at sentencing, to constitute
perjury and thus justify the obstruction‐of‐justice enhance‐
ment. See Savage, 505 F.3d at 763–64 (concluding that context
of colloquy among defendant’s counsel, the government,
and the district court “strongly suggests” that the court con‐
sidered both sets of statements as perjury in applying the
obstruction of justice enhancement).
We have said that “[a] finding that the defendant ‘lied’
about a material matter can be sufficient in some cases” to
support a perjury finding for the obstruction‐of‐justice en‐
hancement. Riney, 742 F.3d at 791; see also Sheikh, 367 F.3d at
687 (“It is enough for the district court to determine that ‘the
No. 12‐3695 9
defendant lied … about matters crucial to the question of the
defendant’s guilt.’” (quoting United States v. Holman, 314
F.3d 837, 846 (7th Cir. 2002)). The judge’s assertion that she
had “enough examples” right after the prosecutor stated that
Chychula was attempting to defend the lies she told in
emails strongly suggests that the judge adopted the prosecu‐
tor’s view and implicitly found that Chychula’s grand jury
statements themselves were lies. As we have noted, “like
perjury, lying involves willfully making a false statement.”
Riney, 742 F.3d at 791. Thus the judge implicitly made the
findings Dunnigan requires.
And if there is any lingering doubt about this, before
making the guidelines calculations, the district judge said
that she had the parties’ written arguments and heard their
oral arguments. Then the judge said: “[T]he Court is going to
uphold the obstruction of justice two‐point enhancement”
and “the Court will adopt the presentence investigation [re‐
port] with the change that the Court has set forth of offense
level 33 and a criminal history category of 1.” Thus, as per‐
taining to the obstruction‐of‐justice enhancement, the district
judge adopted the PSR in its entirety. The judge’s explicit
adoption of the PSR, which clearly identified several false
statements Chychula made when testifying before the grand
jury and stated that Chychula willfully obstructed or at‐
tempted to obstruct the administration of justice in so testify‐
ing, confirms that the judge found those grand jury state‐
ments perjurious.
There is no question that Chychula’s false statements to
the grand jury were material, a perjury element that she only
weakly contested. For purposes of the enhancement, “a mat‐
ter is ‘material’ if it concerns information ‘that, if believed,
10 No. 12‐3695
would tend to influence or affect the issue under determina‐
tion.’” Id. at 790 (quoting U.S.S.G. § 3C1.1, cmt. n.6). Chychu‐
la suggests that her statements were not material because
they did not affect the issue under determination in the
grand jury proceedings; after all, she argues, the government
obtained a nine‐count indictment against her and others.
“[I]t is true that an attempt at obstruction of justice that has
no consequence … is not a permissible basis for an obstruc‐
tion of justice enhancement.” United States v. Wells, 154 F.3d
412, 414 (7th Cir. 1998). However, a statement need only
“tend to influence or affect the issue under determination” to
be material, U.S.S.G. § 3C1.1, cmt. n.6 (emphasis added); the
statement need not actually have any influence or effect.
Chychula’s statements to the grand jury satisfy this stand‐
ard—they concern her representations to investors about the
state of the Gnxpert companies and soundness of the alleged
investments at the heart of the scheme to defraud. The grand
jury obviously did not believe her statements and charged
her notwithstanding her denials. Had the grand jury be‐
lieved her in whole or in part, it might not have indicted her,
or perhaps would not have charged her with as many
counts.
Along similar lines, Chychula maintains that her conduct
did not make it more difficult for her to be apprehended,
convicted or sentenced. But the enhancement is applicable
not only when a defendant actually obstructed or impeded
the administration of justice, but also when a defendant at‐
tempted to do so. See U.S.S.G. § 3C1.1. The fact that Chychu‐
la’s attempts to deceive the grand jury ultimately failed is of
no moment.
No. 12‐3695 11
But even if the district judge erred in not making sepa‐
rate findings on each element of perjury, the error was harm‐
less. An error in failing to make separate findings for each
element of perjury is harmless where the record is clear that
the defendant willfully lied about material matters while tes‐
tifying. See, e.g., Savage, 505 F.3d at 764; Saunders, 359 F.3d at
878–79; see also Johnson, 612 F.3d at 894 (recognizing that the
failure to make specific, separate findings as to the elements
of perjury can be harmless error where the record allowed
the appellate court to determine that the sentencing judge
found “the defendant lied about a material issue”). Chychu‐
la’s false grand jury statements were directly contradicted by
the government’s evidence at trial. For example, the gov‐
ernment introduced an audio recording and transcript of a
January 31, 2008 conversation Chychula had with investor
Helmut Mueller, in which she represented that Gnxpert was
a “billion dollar company.” Another example comes from
the testimony of Frank Both of Century Fence; he testified
that the Gnnxpert product “didn’t perform like we wanted it
to,” and that Century Fence decided the product did not
work and communicated this to Chychula “several times.”
The record is clear that Chychula willfully lied about materi‐
al matters while testifying before the grand jury.
Moreover, the only real dispute at sentencing, much the
same as the principal defense at trial, was whether Chychu‐
la’s mental state affected her intent; Chychula did not con‐
test whether her grand jury statements were false and only
weakly contested whether they were material. See, e.g., Def.’s
Objections to the Presentence Investigation Report & Sen‐
tencing Mem. 9 (“There is no evidence that Ms. Chychula
intended to obstruct justice. Any discrepancy between her
Grand Jury testimony and any writings can be attributed to
12 No. 12‐3695
her Diminished Capacity. No upward adjustment should be
given pursuant to § 3C1.1.”). The district judge clearly re‐
solved the mental status issue against the defendant at trial.
In finding her guilty, the judge determined that Chychula
“was sufficiently knowledgeable to understand that her re‐
ports to investors of signed contracts and imminent cash
flow were false,” 6/21/12 Tr. 2; 6/21/2012 Docket Entry 1, and
that the expert testimony “did not indicate that she was un‐
able to distinguish truth from fiction or right from wrong,”
6/21/12 Tr. 3; 6/21/2012 Docket Entry 1. Thus the district
judge was “unpersuaded that defendant was unable to form
the mental state necessary to be culpable of the charges
against her, and instead [found] that the evidence establishes
beyond a reasonable doubt that she possessed the requisite
mental state.” 6/21/12 Tr. 3; 6/21/2012 Docket Entry 1–2.
The judge who rejected the mental state defense for pur‐
poses of conviction is the same judge who decided that the
obstruction‐of‐justice enhancement was proper based on
perjury. Because Chychula did not contest the falsity of the
statements cited in support of the enhancement, perhaps the
judge can be forgiven for failing to explicitly identify the
specific false statements that justified the enhancement. And
the sentencing judge was the same judge who found the
claims of signed contracts, business prospects and successes,
and cash flow to be false. This distinguishes cases such as
Johnson in which the jury’s disbelief of the defendant’s testi‐
mony was insufficient to support the obstruction enhance‐
ment. See 612 F.3d at 894–95 (“[A]n obstruction enhancement
is not warranted merely because the jury did not believe the
defendant’s testimony; the enhancement should only be ap‐
plied if the court determines that the defendant committed
perjury.”). Here, the district judge disbelieved Chychula’s
No. 12‐3695 13
grand jury testimony, and her testimony was false and will‐
ful.
That said, the judge failed to make explicit findings as to
all the factual predicates necessary for a finding of perjury,
which is the preferred practice. See, e.g., Dunnigan, 507 U.S.
at 95 (“[I]f a defendant objects to a sentence enhancement
resulting from her … 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.”).
District judges should continue to follow Dunnigan and our
other case law which require particular findings for the ob‐
struction enhancement based on perjury.
But the error was harmless given the context of this case:
Chychula was convicted following a court trial; the defend‐
ant’s only real dispute was whether her alleged diminished
mental capacity prevented her from forming the intent to
obstruct justice; and the district court previously rejected
Chychula’s claim that her personality disorder rendered her
“unable to distinguish truth from fiction or right from
wrong,” and “unable to form the [requisite] mental state”.
And as we have noted, the record is clear that Chychula will‐
fully lied about material matters while testifying before the
grand jury. Moreover, the district judge imposed a sentence
so far below the advisory guidelines range—almost 100
months below the bottom of that range—that there is no
suggestion that the obstruction enhancement had an effect
on the ultimate sentence imposed. See, e.g., Riney, 742 F.3d at
791 (concluding that the judge’s failure to make a willfulness
finding was harmless “because the armed career criminal
guideline trumped the effect of the obstruction enhance‐
14 No. 12‐3695
ment” and the district judge sentenced the defendant below
the advisory guideline range); United States v. Hill, 645 F.3d
900, 906 (7th Cir. 2011) (“Harmless error review ‘removes the
pointless step of returning to the district court when we are
convinced that the sentence the judge imposes will be identi‐
cal to the one we remanded.’”) (quoting United States v. Ab‐
bas, 560 F.3d 660, 667 (7th Cir. 2009)). We have no doubt that
if we remanded for more explicit findings, the judge would
impose the same sentence again.
We accordingly AFFIRM.