In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2000
United States of America,
Plaintiff-Appellee,
v.
Johnnie L. White,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 922-4--Robert W. Gettleman, Judge.
Argued January 24, 2001--Decided February 16, 2001
Before Flaum, Chief Judge, and Evans and Williams,
Circuit Judges.
Flaum, Chief Judge. Johnnie White was indicted
as a result of his participation in an elaborate
insurance fraud scheme. During the course of
trial, the government presented voluminous
evidence which implicated White in the cabal.
White took the stand in his defense, and
categorically denied his involvement. After the
jury convicted White on all counts, the
government sought a two-level sentencing
enhancement for obstruction of justice. The
district court, finding that White’s testimony
constituted perjury, granted the two-level
enhancement, and sentenced White to 27 months
imprisonment. White has appealed his sentence,
arguing that the district court erred in applying
the obstruction of justice enhancement. For the
reasons stated herein, we affirm the sentencing
decision of the district court.
I. BACKGROUND
For many years, Johnnie White participated in
an intricate scheme to defraud insurance
companies. Coordinating the scam was Louis Himes,
Sr., part-owner and operator (along with Jake
Hightower) of Jake’s Auto Repair ("Jake’s Auto").
To conduct the machination, the pair first
recruited friends and family members to act out
the roles of "victims." If one of these
individuals had a vehicle that he or she could no
longer afford, that person would often allow the
automobile to be used as a "prop" in the staged
accident. If the victim’s car was not already
sufficiently wrecked, or if it was not damaged at
all, employees from Jake’s Auto would
intentionally damage the vehicle by crashing it
into a brick wall, or smashing it with a
sledgehammer. Once a car looked as if it had been
wracked in an accident, Himes would employ that
vehicle in one, if not a multitude, of his staged
productions.
When the actors and the vehicles had been
secured, rehearsals began. Participants were
told, or in certain instances given scripts,
detailing how the fictionalized collision took
place. As soon as the victims were confident in
their roles, they were either escorted to the
scene of the alleged accident, or sometimes asked
to stage the accident themselves. Thereafter,
employees from Jake’s Auto would accompany the
victims to police stations to file false police
reports. On certain occasions, White assisted
participants in their conversations with
officers, and in other instances he even played
the role of an accident victim.
Subsequent to the filing of the false police
reports, Himes arranged for the victims to file
false insurance claims. These claims were either
for damages to the car, which was supposedly
being fixed by Jake’s Auto, or for medical
injuries stemming from the alleged accident. To
these ends, Jake’s Auto provided legitimacy to
the scheme, allowing insurance adjustors to view
the damaged vehicles in the shop where they were
supposedly being repaired. The scam was often
successful, as numerous insurance companies
issued settlement checks via mail to alleged
victims. Victims were accompanied by Jake’s Auto
employees, including White, to cash their
settlement checks. The victims received a portion
of the proceeds, with Himes and his co-owner
Hightower keeping the rest. White was compensated
for his role in the scheme through his weekly
paycheck from Jake’s Auto.
On December 15, 1998, White was charged, along
with 29 others, in a 17-count indictment.
Specifically, White was indicted on three counts
of mail fraud, and aiding and abetting mail
fraud, in violation of 18 U.S.C. sec. 1341 and 18
U.S.C. sec. 2. Because of his known and admitted
heroin addiction, each morning before trial
White’s blood was tested for the presence of
heroin. Throughout the course of the proceedings,
White tested negative for the substance. At
trial, the government paraded eight witnesses who
testified that White knowingly and actively
participated in the insurance fraud scheme. These
witnesses, a group which included White’s cousin
and friends, provided first-hand accounts that
White picked up cars that would be used as props,
damaged cars, escorted participants to and from
accident scenes, arranged accident scenes to look
realistic, escorted participants to police
stations, helped participants file false police
reports, and otherwise facilitated the fraudulent
accident scheme at Jake’s Auto. Despite the
copious eyewitness evidence, White took the stand
in his defense, denying his involvement in the
scheme. In the course of his testimony, White
denied knowledge of participants he had
personally recruited, as well as any role in the
fraud.
On November 4, 1999, a jury convicted White on
all three charges. In recognition of the fact
that White’s testimony was uniformly contrary to
the government witnesses who testified that White
was personally involved in the accident fraud
scheme, the Pre-Sentence Investigation Report
("PSR") recommended that White be given a two-
level upward adjustment pursuant to U.S.S.G. sec.
3C1.1, in that his testimony was perjured and
amounted to an obstruction of justice. The court
conducted a sentencing hearing on April 5, 2000,
in which it agreed with the PSR that White had
perjured himself at trial. The court acknowledged
that White had a drug problem and stated that it
believed "it would be very dangerous to penalize
somebody for exercising his constitutional right
to go to trial," as "everybody has a right to
stand and put the Government to their proof and
to make them prove guilt beyond a reasonable
doubt." However, the court continued, "when
somebody takes the stand and commits perjury, the
guidelines do provide for an enhancement." Thus,
the court concluded that "despite everything Mr.
White said about being high and doing all this,
he wasn’t high when he testified, he knew exactly
what he was saying when he testified, and he was
committing perjury, and I think that the two-
point enhancement is appropriate in this case."
With the two-level enhancement for obstruction
of justice, White had a sentencing level of 18.
Because his criminal history was considered
Category I, White fell within a sentencing range
of 27-33 months imprisonment. The court sentenced
White to the low end of that range, namely 27
months, followed by three years of supervised
release. The court also ordered White to pay
restitution, jointly and severally with his co-
defendants, in the amount of $349,198.74.
Thereafter, White appealed his sentence, arguing
that the district court erred in applying the
two-level enhancement for obstruction of justice.
II. DISCUSSION
A. Standard of Review
The Sentencing Guidelines permit a sentencing
court to enhance a defendant’s offense level by
two points if it finds, by a preponderance of the
evidence,/1 that the defendant "willfully
obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during
the investigation, prosecution, or sentencing of
the instant offense." U.S.S.G. sec. 3C1.1; United
States v. Hickok, 77 F.3d 992, 1006 (7th Cir.
1996). In determining whether to apply the
enhancement, actual prejudice to the government
as a result of the defendant’s conduct is not
required. United States v. Nobles, 69 F.3d 172,
192 (7th Cir. 1995) (the defendant’s "ultimate
lack of success for obstructing justice will not
relieve his responsibility for his attempt to do
so.").
Both the Supreme Court and Seventh Circuit case
law establish that perjury is a type of conduct
that warrants an enhancement for obstruction of
justice. See United States v. Dunnigan, 507 U.S.
87, 93 (1993); United States v. Woody, 55 F.3d
1257, 1273 (7th Cir. 1995); see also U.S.S.G.
sec. 3C1.1 cmt. 3(b). One commits perjury if,
while under oath, he or she gives false testimony
concerning a material matter with a willful
intent to provide false testimony, rather than as
a result of confusion, mistake, or faulty memory.
See Dunnigan, 507 U.S. at 93. Whether one has
obstructed justice by committing perjury is a
factual determination which enjoys the
presumption of correctness under the clearly
erroneous standard. See Hickok, 77 F.3d at 1007.
Thus, we will not disturb a sentencing court’s
decision on such a matter unless we are firmly
convinced that the judge was mistaken when he or
she determined that perjury had been committed.
Id. In other words, "[i]f the district court’s
account of the evidence is plausible in light of
the record viewed in its entirety, [an appeals
court] may not reverse it even though convinced
that had it been sitting as the trier of fact, it
would have weighed the evidence differently."
Anderson v. Bessemer City, 470 U.S. 564, 573-74
(1985). Finally, special deference is given to
findings based on credibility determinations,
which seldom constitute clear error. Id. at 575.
B. Willfulness of White’s Testimony
White asserts on appeal that the district court
clearly erred in finding that the two-level
enhancement for obstruction of justice was
appropriate to his case./2 Specifically, as he
did before he was sentenced, White puts forth
that, at the time he participated in the
insurance scheme, he was consistently under the
influence of heroin. He suggests that as a result
of his constant heroin use, his memory of events
pertaining to that period of time is quite hazy.
Since his false testimony was the result of
faulty memory, he claims, the district court
erred in finding that he had willfully intended
to provide false testimony, as is required for a
finding of perjury./3
While we are sympathetic to White’s assertion
that his false testimony may have resulted from
memory lapses caused by the long-term effects of
habitual drug use, we cannot concur that the
district court committed error (let alone clear
error) in finding White’s claim unpersuasive. As
the government has noted, White did not take the
stand in his defense and claim that his heroin
use had caused him not to remember what he had
done during the years in question. Were that the
case, it is unlikely that an obstruction of
justice enhancement would have been sought or
granted. Rather, White flatly and categorically
denied involvement in the scheme, in blatant
contradiction to numerous witnesses’ testimonies.
As stated above, at the time of his trial and
testimony, White was not under the influence of
drugs. Testifying soberly, he denied facts which
he now claims he could not recall. Assuming
arguendo that White is not now prevaricating, and
that he truly could not remember the events
concerning his role in the insurance scam, his
testimony at trial asserting that he did not
participate in the scheme is still sufficient to
warrant an obstruction of justice enhancement.
See United States v. Gage, 183 F.3d 711, 716 (7th
Cir. 1999) (finding that the defendant could
perjure himself for purposes of U.S.S.G. sec.
3C1.1 by representing that he remembered an event
when he did not). Thus, whether White’s drug use
influenced his memory of events does not detract
from the finding that he had willfully intended
to provide false testimony. Therefore, we
conclude the district court did not clearly err
in determining that White had obstructed justice
by perjuring himself during the course of trial.
C. Necessity of Individualized Findings of Perjury
White’s other contention on appeal is that the
district court failed to make a finding regarding
which specific testimony amounted to perjury./4
As we noted in Hickok, the "independent finding
requirement" is not as exacting as one would
assume. 77 F.3d at 1008. While the Supreme Court
has articulated that, when making a finding of
perjury, it is preferable to have the district
court address each element of the alleged perjury
in a separate and clear finding, the district
court’s determination that the obstruction of
justice enhancement is required is sufficient if
"the court makes a finding of an obstruction or
impediment of justice that encompasses all of the
factual predicates for a finding of perjury."
Dunnigan, 507 U.S. at 95. Hence, it is not
necessary for the sentencing judge to conduct a
mini-trial with respect to each of the
defendant’s false statements, nor must the judge
set forth his or her findings specifically in
terms of the elements of perjury. As we have
interpreted Dunnigan, separate findings are not
strictly necessary so long as the court
determined that the defendant lied to the judge
and jury about matters crucial to the question of
the defendant’s guilt. See Hickok, 77 F.3d at
1008 (citing United States v. Mustread, 42 F.3d
1097, 1105 (7th Cir. 1994).
Reviewing the record in this matter, we find
that the factual findings of the district court
are consistent with the requirements set forth in
Dunnigan. The sentencing transcript makes evident
that the court determined that White knew what he
was saying and doing when he took the stand and
denied basic facts regarding his participation in
the fraud. As was noted during oral argument,
White did not deny, in a piecemeal fashion,
specific conduct during the relevant stretch of
time. Rather, he systematically and in a
wholesale fashion contradicted the eyewitness
testimonies of eight witnesses concerning every
aspect of his participation in the insurance
fraud. Given that White’s relevant testimony as
a whole was predominately falsified, we believe
it was unnecessary for the court to peruse the
trial transcript to point out every instance in
which White perjured himself. As such, we find
that the district court’s finding of perjury was
sufficiently established.
III. CONCLUSION
Like the district court, we recognize that a
defendant does have a right to force the
government to meet its burden in establishing the
elements of an offense. We have been careful to
note that a simple denial of culpability cannot
serve as the basis of an obstruction of justice
enhancement pursuant to sec. 3C1.1. See Hickok,
77 F.3d at 1007; United States v. Contreras, 937
F.2d 1191, 1194 (7th Cir. 1991). However, the law
is unambiguous in that if a defendant decides to
take the stand and tell the jury a story, he or
she does so at the defendant’s own risk. Hickok,
77 F.3d at 1007. If the defendant commits
perjury, the court may, at the time of
sentencing, enhance the defendant’s sentence for
obstructing justice. Id. That is precisely what
happened here.
For the foregoing reasons, we Affirm the decision
of the district court.
/1 In his brief, appellant argues that, pursuant to
the Supreme Court’s decision in Apprendi v. New
Jersey, 120 S.Ct. 2348 (2000), in order to
enhance White’s sentence for obstruction of
justice the district court was required to find
beyond a reasonable doubt that White had done so.
At oral argument, appellant conceded that the
rule of Apprendi is inapplicable to these
circumstances, in light of our decision in
Hernandez v. United States, 226 F.3d 839 (7th
Cir. 2000), but maintained that the district
court erred by not finding obstruction of justice
by a preponderance of the evidence.
/2 As we alluded to above, the majority of
appellant’s brief was devoted to challenging the
district court’s finding, in light of Apprendi,
under the standard of beyond a reasonable doubt.
Since appellant has abandoned that argument, we
will examine his claim to determine whether the
district court’s finding of obstruction, by a
preponderance of the evidence, was clearly
erroneous.
/3 White does not challenge the other prongs of the
perjury determination, namely materiality or
falsity. Thus, we confine our review to the issue
of willfulness.
/4 As the government correctly points out, this
argument is only clearly presented in an argument
heading in appellant’s brief. While it is
established that perfunctory or underdeveloped
arguments are waived, see United States v.
Andreas, 150 F.3d 766, 769-70 (7th Cir. 1998), we
will grant the appellant a degree of latitude,
and examine the merits of his claim.