References in this form are to the transcript of Cleckler’s testimony. 1

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA §

§

v. § CR. NO. 2:06cr202-WKW

§

EUGENE CLECKLER §

GOVERNMENT’S RESPONSE TO DEFENDANT’S SENTENCING MEMORANDUM

Comes now the United States of America, by and through Leura G. Canary, United States

Attorney for the Middle District of Alabama, and hereby responds to Defendant’s Sentencing

Memorandum as follows:

In his memorandum, Eugene Cleckler objects to the conclusion of the presentence report

(“PSI”) that he should receive two-level enhancements for, respectively, obstruction of justice

(U.S.S.G. § 3C1.1), and role in the offense (Id. § 3B1.1(c)). For the reasons set forth below, the

Court should overrule Cleckler’s objections.

I. OBSTRUCTION OF JUSTICE 

At trial, Cleckler testified on his own behalf. Among other things, he testified that:

• he did not instruct Tanya Morris to create fictitious documentation in 1996 (55:21-

24 ); 1

• he did not authorize the creation of the false Ezy-Ryder invoices (57:6-9), which

occurred in 2000;

• he was not told by Ed Selfe it would be helpful if Cleckler could document the fact

that Ezy-Ryder had sold boats to third parties (61:25-62:8);

• he did not tell Frank Brand that Cleckler would walk away from the corporation and

that the IRS could have whatever assets it could find (62:12-21);

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• he did not speak with Rhonda Howard about the circumstances of her quitting

(70:11-19); and

• he was told by Cleveland Brown that Brown was going to take care of reconstructing

the Ezy-Ryder transaction with the help of an unidentified Montgomery accountant

(25:8-26:3, 66:23-67:25).

All of this testimony was contradicted by other witnesses at trial.

The Sentencing Guidelines provide a two-level increase if “(A) the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the

course of the . . . prosecution . . . of the instant offense of conviction, and (B) the obstructed conduct

related to . . . the defendant’s offense of conviction . . . .” U.S.S.G. § 3C1.1. Among other things,

the enhancement applies to “committing . . . perjury.” Id., app. note 4(b).

In United States v. Dunnigan, 507 U.S. 87 (1993), the Court considered the issue of trial

perjury as a basis for an obstruction-of-justice enhancement and, as relevant to the instant case, held

as follows:

a. Upon a district court’s “determination that the accused has committed perjuryat trial,

an enhancement of sentence is required by the Sentencing Guidelines.” Id. at 98.

b Perjury would consist of “giv[ing] 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. at 94.

c. If the defendant objects to a PSI’s proposed perjury enhancement, “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 we have set out.” Id. at 95.

Thus, under Dunnigan, the Government must establish the following elements by a

preponderance of the evidence:

1. The testimony must be under oath or affirmation.

2. The testimony must be false.

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3. The testimony must be material

4. The testimonymust be given with the willful intent to provide false testimony

and not as a result of mistake, confusion, or faulty memory.

United States v. Singh, 291 F.3d 756, 763 n.4 (11 Cir. 2002); see also United States v. Paz, 2005 th

WL 1540136, *3-4 (11 Cir. July 1, 2005) (unpublished) (affirming district court’s use of th

preponderance-of-the-evidence standard in making perjury finding).

Applying this standard here, there is ample evidence to support a finding of trial perjury.

First, the testimony was under oath. Second, the testimony was false, directly contradicted by

numerous witnesses. Third, the testimony addressed material matters: the statements cited above

related to facts that either went directly to the question of guilt or related to an important fact

corroborating the Government’s theory of the case.

Finally, there is more than sufficient evidence to support a finding that the testimony was

wilfully false, and not the result of a faulty memory. Cleckler simply made too many false

statements contradicting the testimony of too many witnesses. A conclusion of willfulness is also

supported by the fact that each false statement tended to support Cleckler’s defense––honest

mistakes would not fall into such a neat pattern. Therefore, the Court should find that Cleckler

committed perjury at trial and overrule his objection to the application of the obstruction-of-justice

enhancement.

II. ROLE IN THE OFFENSE 

The trial evidence was that Cleckler was an owner of the business and that he directed Tanya

Morris and Cleveland Brown to create false documentation. These facts are more than adequate to

support the two-level enhancement for aggravating role.

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The Sentencing Guidelines provide for upward adjustments for defendants who lead others

in criminal conduct, providing for an increase of

(a) four levels for a defendant who is an “organizer or leader” of criminal activity

involving five or more participants, U.S.S.G. §3B1.1(a),

(b) three levels for a defendant who is a “manager or supervisor” of criminal activity

involving five or more participants, U.S.S.G. §3B1.1(b), and

(c) two levels “[i]f the defendant was an organizer, leader, manager, or supervisor in any

criminal activity other than described in (a) or (b),” U.S.S.G. §3B1.1(c).

Section 3B1.1(c) is an “inclusive[]” provision, which requires only that “the defendant . . . have been

the organizer, leader, manager, or supervisor of one or more other participants.” U.S.S.G. §3B1.1,

commentary & app. note 2; see United States v. Mandhai, 375 F.3d 1243, 1248 (11 Cir. 2004) th

(“The assertion of control or influence over only one individual is sufficient to support the role

enhancement.”); United States v. Garrison, 133 F.3d 831, 843-46 (11 Cir. 1998) (business owner

th

who instructed employee to engage in criminal conduct properly received leadership enhancement).

In support of his argument against application of the enhancement, Cleckler cites United

States v. Vandeberg, 201 F.3d 805 (6 Cir. 2000). However, in that case the court simply reaffirmed

th

that “[m]erely playing an essential role in the offense is not equivalent to exercising managerial

control over other participants . . . .” Id. at 811. Here, by contrast, the evidence was clear that

Cleckler directed his employees to engage in criminal conduct. Therefore, the two-level

enhancement for role in the offense is applicable.

CONCLUSION

For the reasons set forth above, the Government requests that the Court overrule Cleckler’s

objections to the PSI.

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Respectfully submitted this the 26 day of April, 2007. th

LEURA G. CANARY

UNITED STATES ATTORNEY

/s/Andrew O. Schiff

ANDREW O. SCHIFF

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

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IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA §

§

v. § CR. NO. 2:06cr202-WKW

§

EUGENE CLECKLER §

CERTIFICATE OF SERVICE

I hereby certify that on April 26, 2007, I electronically filed the foregoing with the Clerk of

the Court using the CM/ECF system, which will send notification of such filing to: Ronald Brunson,

Esq.

Respectfully submitted,

/s/Andrew O. Schiff

ANDREW O. SCHIFF

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

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