United States v. McCoy, Joann

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2000 Decided March 16, 2001

No. 99-3075

United States of America,
Appellee

v.

Joann McCoy,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 98cr00082-01)

Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.

Suzanne Grealy Curt, Assistant U.S. Attorney, argued the
cause for Appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Elizabeth Tros-
man, Assistant U.S. Attorneys.

 Before: Henderson, Randolph, and Garland, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: On September 22, 1998, defendant
Joann McCoy was found guilty of making a false statement
for the purpose of influencing a federally insured bank,
making a false statement for the purpose of influencing the
Small Business Administration (SBA), and committing perju-
ry at a 1995 bankruptcy proceeding. In this appeal, McCoy
argues that her perjury conviction was supported by insuffi-
cient evidence and that the district court committed five
errors in calculating her sentence under the United States
Sentencing Guidelines (U.S.S.G.). We affirm McCoy's perju-
ry conviction and four of the five challenged sentencing
calculations. We remand the case to the district court for
further proceedings with respect to the fifth sentencing calcu-
lation.

I

In 1993, McCoy formed McCoy Waste Industries and Man-
ufacturing Co. (MWI), of which she became president and
51% owner. The company was in the business of recycling
waste paper into fuel pellets, and earned revenues from both
hauling paper ("tipping fees") and selling pellets. On Sep-
tember 3, 1993, McCoy--on behalf of MWI--applied for a
$296,014 loan from Adams National Bank to finance the
purchase of a $385,000 pellet-making machine from Lundell
Manufacturing Co. Adams National eventually approved the
loan, and the SBA agreed to guarantee 80% of the principal.
The collateral for the loan included a lien on MWI's furniture,
fixtures, machinery, and equipment; a guarantee from MWI;
and guarantees from McCoy and four of her close relatives.

As part of her loan application, McCoy submitted three
documents to Adams National, which were forwarded to the
SBA for approval: a personal financial statement declaring
that McCoy and her husband had $1,482,000 in assets and
$12,000 in liabilities, a resume indicating that McCoy had
received a degree from Northern Virginia Community Col-
lege, and a financial projection that MWI would earn tipping

fees for hauling 100 tons of waste paper per day. McCoy
subsequently admitted, at her criminal trial, that the personal
financial statement failed to disclose her liability for a
$100,000 loan from Central Fidelity Bank and that she had
not received a degree from Northern Virginia Community
College.

On October 4, 1993, an Adams National loan officer re-
quested additional evidence to support MWI's tipping fees
projection. In response, McCoy requested and received a
faxed letter from Ed Warmus, a plant manager for
Browning-Ferris Industries Recyclery. McCoy had listed
Browning-Ferris on the loan application as one of MWI's
primary suppliers of waste paper. Warmus' letter stated that
Browning-Ferris anticipated supplying MWI with "at least 16
tons" of paper per day. McCoy directed her secretary, Kim
Turner, to "white-out" the term "16 tons" each time it ap-
peared in the letter, and to replace it with the term "100
tons." She then instructed Turner to fax the altered letter to
Adams National. When Adams National expressed concern
because the letter's tonnage figures were handwritten, McCoy
directed Turner to type them in, mark the initials "EW" (for
"Ed Warmus") beside each appearance of "100 tons," and
refax the letter to Adams National. At trial, Warmus testi-
fied that he had not authorized the change to 100 tons.1

Several days prior to the November 1993 loan closing,
Warmus informed McCoy that Browning-Ferris had decided
to open its own landfill and would no longer provide waste
paper to MWI. At the closing, however, McCoy certified that
there had been "no substantial adverse change in financial
condition, organization, operations, or fixed assets" since she
filed the loan application. McCoy did not disclose Browning-
Ferris' decision to cease supplying paper to MWI.

MWI failed to make the first payment on the loan. There-
after, Adams National placed the loan in default, and, togeth-
er with two other creditors, filed an involuntary bankruptcy

__________
1 The government also introduced MWI invoices showing that
Browning-Ferris had been paying MWI to haul a daily average of
only 16 tons.

petition against MWI. MWI countered by suing Adams
National and Lundell in bankruptcy court for breach of
contract, alleging misconduct in the sale and financing of the
pellet-making machine. During the 1995 bankruptcy pro-
ceeding, Adams National argued that McCoy had fraudulent-
ly induced it to provide the loan by altering the Warmus
letter. In reply, McCoy testified that she had telephoned
Warmus, and that he had authorized her to change the
estimate from 16 to 100 tons, with the understanding that 100
tons was the "maximum amount" his facility could provide.

On March 13, 1998, a grand jury returned a ten-count
indictment against McCoy. Four counts charged McCoy with
making false statements for the purpose of influencing Adams
National, in violation of 18 U.S.C. s 1014. These counts
alleged that: (i) the personal financial statement submitted
with the loan application failed to list McCoy's $100,000 loan
from Central Fidelity Bank; (ii) the resume submitted with
the application falsely represented that McCoy had a degree
from Northern Virginia Community College; (iii) the Warmus
letter was falsely altered to indicate that Browning-Ferris
would supply 100 tons of paper instead of 16; and (iv) McCoy
failed to reveal at the closing that Browning-Ferris would not
continue to provide waste paper to MWI. Four additional
counts charged McCoy with making these same false state-
ments to the SBA, in violation of 15 U.S.C. s 645. The
indictment's final two counts alleged that McCoy committed
perjury at the 1995 bankruptcy proceeding, in violation of 15
U.S.C. s 1623, by testifying, inter alia, that Warmus had
authorized her to change his supply estimate from 16 tons to
100.

On June 29, 1998, the district court ordered that the
indictment's non-perjury counts be consolidated to avoid po-
tential prejudice to the defendant. Thereafter, the govern-
ment obtained a superseding indictment with four counts: the
first alleged that McCoy made four false statements to
Adams National; the second alleged that she made four false
statements to the SBA; and the third and fourth repeated
the original perjury counts. In July of 1998, the case was
transferred to a second district judge, who further pared the

indictment by ordering the government to elect one of the
two perjury counts.2

On September 22, 1998, the jury returned a guilty verdict
on each of the three remaining counts. Using a special
verdict form for Counts One and Two, the jury determined
that McCoy had knowingly, and for the purpose of influencing
Adams National and the SBA: (i) failed to disclose her
financial liability for the Central Fidelity loan; (ii) caused a
false letter to be submitted stating that Browning-Ferris
would provide 100 tons of waste paper per day; and (iii) failed
to reveal that Browning-Ferris would no longer be supplying
any waste paper to MWI. Due to an illness of the second
judge, the case was transferred to a third district judge for
sentencing. Following an evidentiary hearing, the court im-
posed concurrent prison terms of 24 months on Count Two
and 37 months on each of Counts One and Three. In the
"Statement of Reasons" supporting this sentence, the court
"adopt[ed] the factual findings and guideline application in the
presentence report." Judgment at 6.

II

McCoy asserts that the evidence supporting her conviction
for committing perjury at the 1995 bankruptcy proceeding
was insufficient because the transcript of that perjurious
testimony was not admitted into evidence. Because McCoy
failed to raise this objection before the district court, despite
raising other specific objections to the sufficiency of the
evidence, we review this claim for plain error only. Fed. R.
Crim. P. 52(b); United States v. Spinner, 152 F.3d 950, 955
(D.C. Cir. 1998). The standard of review is not particularly
important in this case, however, because the record shows
that the disputed transcript was admitted into evidence.
Hence, there was no error, plain or otherwise.

__________
2 At the close of the government's evidence, the court dismissed,
as immaterial, the allegations concerning McCoy's resume in the
indictment's first two counts.

 The core of McCoy's argument is that the court reporter's
transcript of her 1998 criminal trial does not record the
admission of the 1995 bankruptcy transcript. There is, how-
ever, a plethora of other evidence that the transcript was
admitted. First, the court clerk's exhibit list plainly states
that the bankruptcy transcript, introduced as Exhibit 30, was
"received into evidence" on September 17, 1998.3 Second, the
district court indicated its own understanding that it had
admitted the bankruptcy transcript. Rejecting a government
request to perform a demonstrative reading of the transcript,
the court ruled such a reading unnecessary because the
jurors "can read it just like they read all the other exhibits."
9/17/98 Tr. at 66.4 Finally, McCoy's trial counsel made clear,
as the court reporter's transcript shows, that she understood
that the bankruptcy transcript had been admitted. Opposing
the government's (renewed) attempt to have a tape of the
bankruptcy testimony entered into evidence and played to the
jury, McCoy's counsel said: "We have got the transcript.
That is already in the record.... [T]he tape adds nothing,
and it is just cumulative...." 9/18/98 Tr. at 3. See United
States v. Barrett, 111 F.3d 947, 951 (D.C. Cir. 1997) (holding
exhibits "deemed admitted" into evidence where they "were
treated below, without objection, as if they were admitted").5

__________
3 See Fed. R. App. P. 10(a) (providing that the record on appeal
includes all "original papers and exhibits filed in the district court");
cf. Toucet v. Maritime Overseas Corp., 991 F.2d 5, 8 & n.1 (1st Cir.
1993) (including district court clerk's minutes as part of appellate
record).

4 Earlier, the court had also rejected government requests to
have a tape recording of McCoy's 1995 testimony admitted into
evidence and played to the jury, declaring that there was no "need
for playing the tape. You can put in the transcript. If you offer
the transcript I will admit it into evidence, but that is all I am going
to do." 9/17/98 Tr. at 65. In the same colloquy, the prosecutor
moved the transcript into evidence. Id. at 64.

5 In her closing argument, the prosecutor likewise indicated her
understanding that the transcript had been admitted, quoting it
repeatedly and advising the jury that: "you'll have this transcript,
Government Exhibit No. 30, which shows the entire portion of the

 Because we conclude that the bankruptcy transcript was
admitted into evidence, we find no ground for McCoy's chal-
lenge to her perjury conviction.

III

McCoy also disputes the district court's application of five
provisions of the Sentencing Guidelines, which collectively
increased her offense level from 6 to 21, thereby substantially
increasing her range of imprisonment. McCoy asserts that
the court erroneously imposed: (i) an eight-level increase
based on a loss calculation of $200,000 to $350,000, pursuant
to U.S.S.G. s 2F1.1(b)(1); (ii) a two-level increase for "more
than minimal planning," pursuant to s 2F1.1(b)(2); (iii) a two-
level increase because McCoy "willfully obstructed or imped-
ed ... the administration of justice," pursuant to s 3C1.1;
(iv) a one-level increase because McCoy's perjury conviction
was not grouped with her other two convictions, pursuant to
s 3D1.2; and (v) a two-level increase for McCoy's role as an
"organizer, leader, manager, or supervisor," pursuant to
s 3B1.1(c).

In reviewing these sentencing challenges, we "give due
regard to the opportunity of the district court to judge the
credibility of the witnesses," "accept the findings of fact of the
district court unless they are clearly erroneous," and "give
due deference to the district court's application of the guide-
lines to the facts." 18 U.S.C. s 3742(e); United States v.
Breedlove, 204 F.3d 267, 272 (D.C. Cir. 2000). Issues of law
are reviewed de novo. United States v. Drew, 200 F.3d 871,
876 (D.C. Cir. 2000); United States v. Kim, 23 F.3d 513, 517
(D.C. Cir. 1994).

__________
testimony .... and I've also made copies for each of you so you
won't have to share one piece of paper here." 9/21/98 Tr. at 6A-25.
In rebuttal, the prosecutor asked the jurors to "[p]lease read the
transcript excerpts that have been introduced into evidence." Id. at
6A-56. Neither McCoy's trial counsel nor the district court voiced
any objection to these statements or to the jurors' receipt of

 A

McCoy's first challenge is to the application of Guideline
s 2F1.1(b)(1), which prescribes an eight-level increase for
conduct that caused a loss of $200,000 to $350,000. Applica-
tion Note 8(b) to the guideline explains that "[i]n fraudulent
loan application cases .... the loss is the amount of the loan
not repaid ... reduced by the amount the lending institution
has recovered (or can expect to recover) from any assets
pledged to secure the loan." U.S.S.G. s 2F1.1, comment.,
n.8(b). Here, it is undisputed that the amount of the unre-
paid loan to MWI was $296,014.00, and that the SBA ulti-
mately recovered a total of $24,113.22 by selling the pellet-
making machine back to its manufacturer at a liquidation
sale.6 Accordingly, the court calculated the loss as
$271,900.78 and increased McCoy's offense level by eight.

McCoy objects that this dollar figure understates "what the
SBA could reasonably have expected to recover." Appellant's
Br. at 44. Her principal argument is that the SBA should
have been able to obtain more for the pellet-making machine,
since the machine had been purchased for $385,000 only two
years before. But whatever the SBA "should" have been able
to recover, the fact remains that, in the words of the applica-
tion note, "the amount the lending institution has recovered"
is only $24,113.22. (Emphasis added). Moreover, since the
machine has been sold, the SBA "can expect to recover"
nothing more. Hence, under the application note, no greater
offset is indicated.

Nor is there any evidence that the liquidation sale was a
sham, or that the SBA artificially depressed the value of the
recovery. To the contrary, all circumstances indicate that the
matter was handled as an arms-length, business transaction:
The SBA engaged an independent appraisal company, which
valued the machine at between $37,000 and $56,000; a profes-
__________
individual copies of the transcript. Id.; see Barrett, 111 F.3d at
951.

6 MWI's only other asset of value was a forklift, which was
appraised at $1,200 and sold to MWI's landlord for $1,000 to offset
storage costs. No buyer could be found for MWI's residual office
furniture and equipment, which were abandoned because their
appraised worth was below their removal and storage costs.

sional auction company handled the sale; and the machine
was sold to the highest of three bidders--which turned out to
be the original manufacturer--for a price of $45,000. After
deducting auctioneer's expenses and pre-sale storage costs,
the SBA realized a net of $24,113.22. Although that amount
is significantly less than MWI originally paid for the machine,
the government explains the reduction in value as caused by
market conditions and deterioration of the machine while at
MWI. In light of the arms-length nature of the transaction,
the district court's loss calculation cannot be described as
clearly erroneous. Accordingly, McCoy's offense level was
properly increased by eight levels pursuant to U.S.S.G.
s 2F1.1(b)(1).7

B

McCoy's second challenge is to the two-point increase she
received under Guideline s 2F1.1(b)(2) for "more than mini-
mal planning." The Guidelines define that phrase as follows:

"More than minimal planning" means more planning
than is typical for commission of the offense in a simple
form. "More than minimal planning" also exists if signif-
icant affirmative steps were taken to conceal the of-
fense....

"More than minimal planning" is deemed present in any
case involving repeated acts over a period of time, unless
it is clear that each instance was purely opportune.
Consequently, this adjustment will apply especially often
in property offenses.

U.S.S.G. s 1B1.1, comment., n.1(f), incorporated by reference
in s 2F1.1(b)(2), comment., n.2. As this definition makes
clear, more than minimal planning may be found in any of the

__________
7 McCoy also contends that the SBA unjustifiably delayed in
attempting to recover funds from the loan's guarantors. The only
guarantors other than MWI and McCoy, however, were McCoy's
relatives, and she has offered no evidence that there was any
realistic prospect of a recovery from them that would have material-
ly affected her guidelines calculation.

following three circumstances: (i) the offense entailed more
planning than is typical for commission of the offense in a
simple form; (ii) significant affirmative steps were taken to
conceal the offense; or (iii) the offense involved repeated, not
purely opportune acts over a period of time.8

McCoy's presentence report ("PSR"), whose findings the
district court adopted, recommended a more than minimal
planning enhancement based on the third prong of the guide-
line's framework--repeated acts that were not purely oppor-
tune. PSR p 43.9 We have previously held that satisfaction
of the repeated acts criterion requires at least three acts over
a period of time. Kim, 23 F.3d at 515. Once three acts have
been identified, more than minimal planning is "deemed"
present, "unless it is clear that each instance was purely
opportune." U.S.S.G. s 1B1.1, comment., n.1(f), incorporated
by reference in s 2F1.1(b)(2), comment., n.2.10

Every circuit that has addressed the question, including
our own, has defined "purely opportune" acts as those under-
taken on the spur of the moment, in response to a sudden,

__________
8 See United States v. Lutz, 154 F.3d 581, 590 (6th Cir. 1998);
United States v. Viemont, 91 F.3d 946, 952 (7th Cir. 1996); United
States v. Clements, 73 F.3d 1330, 1340-41 (5th Cir. 1996); United
States v. Bridges, 50 F.3d 789, 791 (10th Cir. 1994); United States
v. Mullins, 996 F.2d 1170, 1171 (11th Cir. 1993); United States v.
Rust, 976 F.2d 55, 57 (1st Cir. 1992).

9 See generally United States v. Valdez-Torres, 108 F.3d 385,
390 (D.C. Cir. 1997) (holding that "by adopting the presentence
report, the district court made the requisite finding" under the
Guidelines); United States v. Strothers, 77 F.3d 1389, 1394 (D.C.
Cir. 1996) ("The district court adopted the [presentence] report's
findings and we may review them only for clear error.").

10 The literal language of the application note states that an
increase is appropriate unless each of the three acts was purely
opportune--i.e., as long as one of the three was not purely oppor-
tune, the increase is appropriate. As we conclude that none of
McCoy's three acts was purely opportune, we need not decide
whether this literal reading is correct. See United States v. Macia-
ga, 965 F.2d 404, 407 (7th Cir. 1992) (suggesting that the enhance-
ment requires that none of the acts be purely opportune).

fortuitous opportunity of which the defendant took advantage
without deliberation.11 Moreover, because s 1B1.1's third
prong is independent of its first, the guideline contemplates
that an act may not entail more planning than is typical of the
offense in its simple form, and yet still warrant enhancement
if it is part of a series of repeated acts that are not purely
opportune. Defendant conceded as much at oral argument.
See also United States v. Monaco, 23 F.3d 793, 797-98 (3d
Cir. 1994) (requiring enhanced sentence, although defendant's
submission of repeated false labor sheets constituted only "a
simple repetition of a simple plan" (emphasis omitted)); Unit-
ed States v. Rust, 976 F.2d 55, 57 (1st Cir. 1992) (requiring
enhanced sentence for repeated acts, even assuming defen-
dant "engaged in no more planning than would be typical for
the crime of mail fraud, which, by its very nature, involves
planning"); see generally Kim, 23 F.3d at 515 (noting two
"guideline paradigms of more than minimal planning--re-
peated acts and more planning than is typical for the simple
form of the crime").

Reviewing the sentencing court's factual findings for clear
error, and giving due deference to its application of the
Guidelines to the facts, we find the third prong of the more
than minimal planning enhancement satisfied here. See Kim,
23 F.3d at 517 (holding that appellate court should afford due
deference to district court determination that defendant en-
gaged in more than minimal planning).12 Although the pre-

__________
11 E.g., Lutz, 154 F.3d at 590 ("There is no indication that any of
these actions were the result of spur of the moment conduct such as
would warrant a finding that the conduct was purely opportune.");
United States v. Broumas, 69 F.3d 1178, 1183 (D.C. Cir. 1995)
(affirming enhancement because acts were not prompted by "fortui-
tous circumstances"); United States v. Monaco, 23 F.3d 793, 797
(3d Cir. 1994) ("[P]urely opportune ... has been appropriately
defined as spur of the moment conduct, intended to take advantage
of a sudden opportunity." (internal quotation omitted)); Rust, 976
F.2d at 57 (same).

12 Because we find the enhancement justified by the "repeated
acts" rationale, we do not consider whether McCoy's sentence could
also have been properly enhanced under either of the first two

sentence report did not specifically indicate which of McCoy's
acts it relied upon to justify the enhancement, it described at
least three that clearly qualify.13 The first is McCoy's sub-
mission of the September 1993 loan application, which falsely
understated her liabilities by omitting her $100,000 liability to
Central Fidelity Bank. The second is the submission of the
October 1993 Warmus letter, which McCoy altered to state
falsely that Browning-Ferris would provide MWI with 100
tons of paper per day. The third is McCoy's November 1993
certification, at the closing on the Adams National loan,
stating that there had been no substantial adverse change
since the original application and failing to disclose that
Browning-Ferris had decided to stop supplying MWI with
waste paper.

McCoy does not dispute that these three acts were "part of
the same course of conduct or common scheme or plan as the
offense of conviction," thus constituting part of the "relevant
conduct" used in determining her appropriate guideline
range. U.S.S.G. s 1B1.3(a)(2). Nor does she contest that
these acts occurred "over a period of time," namely three
months. U.S.S.G. s 1B1.1, comment., n.1(f), incorporated by
reference in s 2F1.1(b)(2), comment., n.2. Accordingly, the
two-point increase for more than minimal planning is proper
unless "it is clear that each [act] was purely opportune." Id.
(emphasis added). Here, that is not at all clear; to the
contrary, each act appears to have been a calculated step in
McCoy's fraudulent pursuit of the Adams National loan.

McCoy concedes that her first act, submitting a false
financial statement with her initial loan application, was not
purely opportune. Reply Br. at 2. McCoy initiated the

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prongs--i.e., because her conduct entailed more planning than is
typical for commission of the offense in a simple form, or because
significant affirmative steps were taken to conceal the offense.

13 The fact that not all three of these acts were mentioned by
the probation officer at the sentencing hearing is not determinative,
because the district court expressly adopted all of the PSR's factual
findings and guideline applications without limitation. See United
States v. Bridges, 175 F.3d 1062, 1069 n.8 (D.C. Cir. 1999).

application and had ample time to contemplate the financial
data she included therein. See United States v. Lutz, 154
F.3d 581, 590 (6th Cir. 1998) (holding that the submission of
"false information with regard to loan applications" was not
the "result of spur of the moment conduct"). Nor was
McCoy's second act, submitting the altered Warmus letter, a
spur-of-the-moment event. See Breedlove, 204 F.3d at 272-73
(affirming finding that presentation of altered check for de-
posit was not purely opportune). Indeed, altering the letter
required McCoy to take a series of component steps, each
evincing deliberation and calculation: McCoy sought the let-
ter from Warmus in order to satisfy Adams National's doubts
concerning the tipping fees projection in her loan application;
when she received a figure far below that which she had
submitted to Adams National, McCoy instructed her secre-
tary to white-out the references to 16 tons, replace them with
handwritten "100 tons," and fax the altered letter to the bank;
when Adams National expressed concern that the tonnage
figures were handwritten, McCoy directed her secretary to
type them in, and, in order to create an aura of authenticity,
further directed her secretary to inscribe Ed Warmus' initials
next to the tonnage terms; she then directed that the letter
be refaxed to Adams National. Finally, we do not regard
McCoy's third act, her false certification at the loan closing,
as either spur of the moment or fortuitous: Adams National
had made clear that MWI's tipping fees projection was criti-
cal, and Warmus had advised McCoy of Browning-Ferris'
stunning change of plans, which invalidated that projection,
several days before the closing--again giving her ample
opportunity for contemplation.

Accordingly, because McCoy's relevant conduct included
repeated acts, and because it is not "clear that each instance
was purely opportune," we conclude that the district court
properly increased McCoy's offense level under Guideline
s 2F1.1(b)(2).

C

McCoy also contends that the district court incorrectly
imposed a two-point increase in offense level because she

"willfully obstructed ... or attempted to obstruct ... the
administration of justice" during the course of her prosecu-
tion. U.S.S.G. s 3C1.1. The presentence report recom-
mended this increase based on a finding that McCoy had
committed perjury during her criminal trial by testifying,
inter alia, that Warmus authorized her to alter his letter's
tonnage estimates.

McCoy correctly notes that at the time she committed her
offenses, this circuit required "clear and convincing" evidence
for s 3C1.1 enhancements based on a defendant's alleged
perjury at trial.14 She claims that it is not apparent whether
the sentencing court used that standard. And she argues
that the court could not possibly have found clear and con-
vincing evidence that she lied at trial because there was
conflicting testimony--most importantly, between her de-
scription of events and that of Warmus. The sentencing
judge was not in a position to resolve the alleged conflicts,
McCoy argues, because that judge did not preside over the
trial (a transfer having occurred due to the trial judge's
illness) and hence did not personally observe the witnesses'
demeanor.

Defendant's arguments are rendered irrelevant by the trial
jury's verdict, on Count Three of the indictment, that McCoy
committed perjury at the 1995 bankruptcy proceeding when
she testified that Warmus had given her permission to change
the contents of his letter. See Second Retyped Indictment
pp 17-26 (App. 144-48). McCoy's testimony to the same
effect at her 1998 criminal trial was the principal ground for
the presentence report's conclusion, adopted by the sentenc-

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14 Compare United States v. Montague, 40 F.3d 1251, 1254
(D.C. Cir. 1994) (requiring clear and convincing evidence), with
United States v. Dozier, 162 F.3d 120, 124 n.1 (D.C. Cir. 1998)
(noting that guideline amendment, which took effect on November
1, 1997, now requires only proof by preponderance). In light of our
disposition, we need not consider the government's contention that
the relevant time for determination of the appropriate standard of
proof is the date of defendant's obstruction--here, her 1998 trial
perjury--rather than the date of her indicted offenses--the last of
which occurred in 1995.

ing judge, that McCoy had likewise committed perjury at that
trial and therefore deserved the two-point enhancement for
obstruction of justice. Since the jury reached its conclusion
based on a standard more stringent than "clear and convinc-
ing" evidence--i.e., evidence beyond a reasonable doubt--and
since the district court was entitled to rely upon the jury's
verdict at sentencing, the court's opportunity to observe the
testimony is irrelevant and the defendant's complaint neces-
sarily fails. See United States v. Montague, 40 F.3d 1251,
1256 n.4 (D.C. Cir. 1998) (holding that s 3C1.1 enhancements
are proper where juries have found "beyond a reasonable
doubt that the defendant lied, and could not have convicted
otherwise" (quoting United States v. Thompson, 962 F.2d
1069, 1071 (D.C. Cir. 1992))).15

At oral argument, McCoy conceded the force of this point,
agreeing that if her testimony at the bankruptcy proceeding

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15 We do not, in any event, accept defendant's proposition that a
court cannot resolve disputes over the credibility of witnesses
without directly observing their demeanor. To the contrary, de-
meanor is only one of many bases upon which factfinders may judge
credibility. See Carbo v. United States, 314 F.2d 718, 749 (9th Cir.
1963) ("Credibility involves more than demeanor. It apprehends
the over-all evaluation of testimony in the light of its rationality or
internal consistency and the manner in which it hangs together with
other evidence."); 1 J. Strong, McCormick on Evidence s 33, at
123-24 (5th ed. 1999) (noting that credibility may be attacked
through, inter alia, prior inconsistent statements, proof of bias,
evidence of character, capacity to observe, and proof of contrary
facts); see also Fed. R. Evid. 608, 609, 801(d)(1)(A). Moreover, the
Sentencing Reform Act states that courts of appeals "shall give due
regard to the opportunity of the district court to judge credibility of
the witnesses, and shall accept the findings of the district court
unless they are clearly erroneous." 18 U.S.C. s 3742(e) (emphasis
added). Thus, the ultimate question is whether the district court's
findings are clearly erroneous; the kind of opportunity the court
had to evaluate credibility is simply a factor we must take into
account in making that determination. In this case, although the
sentencing judge did not preside at trial, she did have before her a
transcript of the relevant witnesses' testimony, provided as an
attachment to the government's sentencing memorandum.

had been the same as her testimony at the criminal trial, the
jury's finding that she committed perjury at the former would
establish that she did so at the latter as well. McCoy argues,
however, that her testimony was not the same in both pro-
ceedings, and hence that we cannot be certain whether the
bankruptcy testimony that the jury found perjurious was the
same as her testimony at the trial of the criminal case.16

Defendant did not make this argument below, thus limiting
our review to plain error. See Fed. R. Crim. P. 52(b).17
Indeed, at sentencing she took the opposite position: McCoy
told the court that she had made "precisely the same state-
ment" in both proceedings. Def.'s Supp. Sentencing Mem. at
5 (App. 211); see also Sentencing Hr'g Tr. at 68 ("Ms. McCoy
was convicted of false statements and she was convicted of
perjury for the same testimony that she gave in her bank-
ruptcy proceeding." (statement of defense counsel)). McCoy
made this claim in support of a double jeopardy attack on the
proposed perjury enhancement: She argued that since she
had been "convicted of perjury for statements that she made
during a bankruptcy proceeding," and since she had made
"precisely the same statement" during her criminal trial, "[t]o
convict her of perjury and then to enhance her sentence on
essentially the same conduct is unconstitutional [under] the
Double Jeopardy Clause of the Constitution." Def.'s Supp.
Sentencing Mem. at 5 (App. 211). Although defendant does
not pursue her double jeopardy argument on appeal, she is
nonetheless hoisted by her own petard. Since McCoy told
the sentencing judge that she was convicted of perjury for
making "precisely the same statement" at the 1995 bankrupt-
cy proceeding as she made at her 1998 criminal trial, it was
hardly plain error for the judge to conclude that she commit-
ted perjury at the latter, just as she had at the former.

__________
16 Although we do not find McCoy's efforts to distinguish the
two testimonies convincing, the discussion that follows makes it
unnecessary to address the distinctions she claims.

17 The government, by contrast, did seek to rely on the jury's
finding of perjury. Government's Mem. in Aid of Sentencing at 12-
13.

 D

Fourth, McCoy challenges the district court's failure to
group her perjury conviction with her two false statement
convictions. See U.S.S.G. s 3D1.2. That decision increased
McCoy's offense level by one. See U.S.S.G. s 3D1.4; PSR
pp 54-58.

Guideline s 3D1.2 states:

All counts involving substantially the same harm shall be
grouped together into a single Group. Counts involve
substantially the same harm within the meaning of this
rule:

...

(b) When counts involve the same victim and two or
more acts or transactions connected by a common crimi-
nal objective or constituting part of a common scheme or
plan.

McCoy asserts that, under s 3D1.2(b), the court should have
grouped her perjury count with the other two because all
three crimes involved the "same victims"--namely, Adams
National and the SBA.18 The government, on the other hand,
contends that while Adams National and the SBA were the
victims of the false statement counts, society at large was the
victim of McCoy's perjury in the bankruptcy proceeding. We
believe the government has the better of the argument.

The Guidelines state that the "victim" of an offense gener-
ally is the "one person who is directly and most seriously
affected by the offense." U.S.S.G. s 3D1.2, comment., n.2.
There is no doubt that Adams National and the SBA were the
victims of McCoy's false statements in connection with the
__________
18 At oral argument, the government appeared to accept
McCoy's claim that Adams National and the SBA (rather than each
individually) should together be deemed "the victim" of the false
statements. Moreover, neither party has addressed whether this
case satisfies the second requirement of s 3D1.2(b), namely, that
the counts also involve "two or more acts or transactions connected
by a common criminal objective or constituting part of a common
scheme or plan." Accordingly, we do not address these issues here.

loan application, but there is no evidence that they were
affected by McCoy's perjury in the 1995 bankruptcy proceed-
ing--much less that they were "directly and most seriously
affected." McCoy does not contend that either institution
relied upon that false testimony. Indeed, the SBA does not
appear to have participated in the bankruptcy proceeding at
all, while Adams National won every significant issue contest-
ed therein. See McCoy's Waste Indus. & Mfg., Inc. v. Adams
Nat'l Bank, Adv. No. 94-0096, slip op. at 1, 50-52 (Bankr.
D.C. Oct. 5, 1995). It is therefore difficult to discern how
either entity could have been adversely affected by McCoy's
perjury. Cf. United States v. Norris, 217 F.3d 262, 272 (5th
Cir. 2000) (holding that, for purposes of 18 U.S.C. s 3663,
creditors in bankruptcy proceeding were not "victims" of
perjury when they neither relied on the false testimony nor
incurred any losses as a consequence thereof).

The Guidelines further provide that "[f]or offenses in which
there are no identifiable victims ... the 'victim' for purposes
of subsections (a) and (b) is the societal interest that is
harmed." U.S.S.G. s 3D1.2, comment., n.2. It is well-
recognized that the societal interest harmed by perjury is the
integrity of the legal system.19 Since the perjury count
therefore involved a different victim from the false statement
counts, the one-level increase under s 3D1.2(b) was warrant-
ed in this case. Cf. United States v. Napoli, 179 F.3d 1, 7-8
(2d Cir. 1999) (declaring that, under s 3D1.2(b), victims of
fraud are those who lose money thereby, while victim of
money laundering is society as a whole).

__________
19 See, e.g., United States v. Kiszewski, 877 F.2d 210, 214 (2d
Cir. 1989) ("[P]erjury strikes at the heart of the integrity of the
judicial system...."); cf. Hazel-Atlas Glass Co. v. Hartford-
Empire Co., 322 U.S. 238, 246 (1944) ("[T]ampering with the
administration of justice involves far more than an injury to a single
litigant. It is a wrong against the institutions set up to protect and
safeguard the public, institutions in which fraud cannot complacent-
ly be tolerated consistently with the good order of society."),
overruled on other grounds by Standard Oil Co. v. United States,
429 U.S. 17, 18 & n.2 (1976).

 E

Finally, McCoy argues that the district court wrongly
imposed a two-level enhancement based on her role as "an
organizer, leader, manager, or supervisor" of a criminal activ-
ity. U.S.S.G. s 3B1.1(c). "To qualify for an adjustment
under this section, the defendant must have been the organiz-
er, leader, manager, or supervisor of one or more other
participants." Id., comment., n.2 (emphasis added).

The presentence report explained its recommendation of
the enhancement as follows:

The defendant was the President of McCoy's Waste. As
such, she held a leadership and managerial role over the
employees of McCoy's Waste, who were unwitting par-
ticipants in the fraud. Specifically, the defendant direct-
ed the activities of Kim Turner, secretary at McCoy's
Waste. Pursuant to U.S.S.G. s 3B1.1(c), two levels are
added.

PSR p 45 (emphasis added). As McCoy correctly notes,
however, supervision of an unwitting individual cannot justify
an enhancement under U.S.S.G. s 3B1.1(c). The guideline
commentary requires supervision of one or more "partici-
pants," and a "participant" is defined as a person who,
although not necessarily convicted, "is criminally responsible
for the commission of the offense." U.S.S.G. s 3B1.1, com-
ment., n.1. Because an individual cannot be criminally re-
sponsible for making a false statement unless she is witting,
see 18 U.S.C. s 1014 (requiring that false statement be made
"knowingly"), the fact that McCoy's employees were unwit-
ting would appear to render this enhancement inapplicable.
See United States v. Bapack, 129 F.3d 1320, 1325 (D.C. Cir.
1997) (holding that a person is "criminally responsible" under
s 3B1.1 only if "he commit[s] all of the elements of a statuto-
ry crime with the requisite mens rea" (internal quotations
omitted) (emphasis added)).

The government does not dispute this reading of the guide-
line, suggesting instead that the word "unwitting" was merely
a typographical error in the presentence report, and that the

probation officer who wrote it must have intended to indicate
that Turner was an "unwilling" participant. As the govern-
ment points out, the probation officer twice rejected McCoy's
argument that Turner was not a criminally responsible partic-
ipant, writing that "Turner was criminally responsible for the
offense as she altered the letter, at the instruction of the
defendant." PSR Addendum at 29; see Sentencing Hr'g Tr.
at 82. On the other hand, as McCoy correctly notes, altering
the letter "at the instruction of the defendant" is still not the
same as being "witting," unless Turner knew that Warmus
had not authorized the alteration. In rebuttal, the govern-
ment contends that there was sufficient evidence from which
the sentencing court could have found Turner criminally
responsible under a correct legal standard, noting that Tur-
ner testified that she "knew" that altering the letter "was
wrong to do." 9/17/98 Tr. at 12.

Whatever the sentencing court intended to find or could
have found, on the record before us we cannot conclude with
confidence that it employed the correct legal standard in
applying the s 3B1.1(c) enhancement. Accordingly, the en-
hancement cannot stand, and we remand the case for resen-
tencing with instructions to resolve the ambiguities in the
court's application of U.S.S.G. s 3B1.1. See 18 U.S.C.
s 3742(f)(1) (requiring remand where sentence is imposed in
violation of law or as result of incorrect guideline application);
Dozier, 162 F.3d at 128 (noting that remand is appropriate
where reasonable likelihood exists that trial court based
decision on impermissible factor and where issue cannot be
resolved without more complete statement of court's reason-
ing); see also United States v. Saro, 24 F.3d 283, 288-89
(D.C. Cir. 1994).

IV

For the foregoing reasons, we affirm McCoy's conviction of
perjury, reject four of her five sentencing challenges, and
remand for further proceedings with respect to the fifth.