2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-21-2010

USA v. Gerardo Fernandez

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3917

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Gerardo Fernandez" (2010). 2010 Decisions. Paper 920.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/920
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-3917

____________

UNITED STATES OF AMERICA

v.

GERARDO FERNANDEZ,

 Appellant

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 08-cr-00673)

District Judge: Honorable Anne E. Thompson

____________

Argued June 29, 2010

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges.

(Filed: July 21, 2010)

Norman Gross [Argued]

Office of United States Attorney

Camden Federal Building & Courthouse

401 Market Street

P.O. Box 2098, 4th Floor

Camden, NJ 08101-0000

George S. Leone

Samuel A. Stern

Office of United States Attorney

970 Broad Street

Room 700
2

Newark, NJ 07102-0000

Attorneys for Appellee

Nicholas C. Harbist [Argued]

Blank Rome

210 Lake Drive East

Suite 200, Woodland Falls Corporate Park

Cherry Hill, NJ 08002-0000

Attorney for Appellant

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Gerardo Fernandez was indicted on one count of perjury in violation of 18 U.S.C.

§ 1623(a) and one count of obstruction of justice in violation of 18 U.S.C. § 1512(c)(2). 

A jury found Fernandez guilty of the former charge and not guilty of the latter charge. On

appeal, Fernandez raises several claims of error in his indictment, trial, and sentencing. 

We will affirm.

I.

Because we write for the parties, who are familiar with the facts and procedural

history of the case, we recount only that which is essential to our decision.

In June 2006, the FBI and a federal grand jury sitting in Trenton, New Jersey

began investigating public corruption in Passaic, New Jersey. As part of its investigation,

the FBI incorporated a dummy insurance company, Coastal Solutions, which was used to

bribe local politicians including Passaic City Councilman Jonathan Soto. Soto
3

represented that he could steer insurance contracts from the Passaic City Council

(Council) to Coastal Solutions and indicated to an FBI informant that some of the bribes

had gone to two other local politicians: Mayor Samuel Rivera and Councilman Marcellus

Jackson.

As part of the scheme to steer insurance business to Coastal, Soto lobbied against

resolutions on the Council’s March 22, 2007 agenda that would have awarded insurance

contracts to another company, Brown & Brown. At this time, Fernandez was also a

member of the Council.

At 5:07 p.m. on March 22, two hours before the start of the meeting, Soto placed a

call to Fernandez’s cell phone to discuss the vote. The call was intercepted by a wiretap

the FBI had placed on Soto’s cell phone. During the conversation, Soto told Fernandez

that: Rivera had informed Soto, Jackson and another council member, Joe Garcia, that “he

doesn’t want Brown & Brown to go through”; Rivera told Soto to “vote down Brown and

Brown” and Soto agreed to do so; and Rivera directed Soto to “reach out to Gerry

[Fernandez].” App. at 152. Soto also told Fernandez that they were going to vote against

the Brown & Brown resolutions to save the City money. Id. at 153. Fernandez responded

“[t]hat’s right.” Id. At the end of the call, Fernandez said “I’ll give Sammy [Rivera] a

call to let him [know] that I know what’s going on.” Id. at 154. Immediately after

speaking with Soto, Fernandez placed a call to Rivera, which was not recorded. App. at
4

330-31. Both of the Brown & Brown resolutions were defeated at the March 22 meeting,

with Soto, Jackson, Garcia, and Fernandez voting against them.

In September 2007, Rivera, Soto, and Jackson were arrested by federal law

enforcement officials for their involvement in the bribery scheme. After the arrests, the

grand jury subpoenaed Fernandez to testify on November 14, 2007. During his

testimony, Fernandez denied speaking with anyone about the March 22, 2007 vote. 

Specifically, Fernandez testified that he had never discussed insurance matters pending

before the City Council with Soto or Rivera, by telephone or otherwise. When asked

whether he would recall a discussion with Soto about insurance matters, Fernandez

replied: “Absolutely. I would have slapped him. . . . Because I don’t tell anybody how to

vote. I don’t want anybody telling me how to vote either.” App. at 25, 1015. Fernandez

was subsequently indicted on one count of perjury and one count of obstruction of justice

based on his grand jury testimony.

At trial, Fernandez testified in his own defense. The thrust of his defense was that

he did not knowingly lie to the grand jury. Fernandez averred that he had forgotten about

the March 22 calls for various reasons, including that: he received numerous phone calls

every day and was a busy person, the call from Soto was not memorable because it lasted

only two minutes and merely repeated information Fernandez had already learned at City

Council meetings, and Fernandez had no reason to lie to the grand jury because he was
 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have appellate 1

jurisdiction pursuant to 28 U.S.C. §1291 and 18 U.S.C. § 3742(a).

5

not involved in the underlying bribery scheme. The jury found Fernandez guilty of

perjury but not guilty of obstruction of justice.

At sentencing, the District Court applied a two-level enhancement for obstruction

of justice pursuant to § 3C1.1 of the United States Sentencing Guidelines (USSG or

Guidelines); as a result, Fernandez faced a Guidelines range of 21 to 26 months

imprisonment. The District Court varied downward and imposed a sentence of 18 months

imprisonment. Fernandez filed this timely appeal, in which he raises numerous issues

regarding the validity of his indictment, evidentiary rulings made by the District Court,

the jury instructions, and the application of the two-point obstruction of justice

enhancement.1

II.

A. The Indictment

Before trial, Fernandez moved to dismiss his indictment, arguing that it was

impermissibly ambiguous and duplicitous. We exercise plenary review over the District

Court’s legal conclusions in denying the motion and review the Court’s factual findings

for clear error. United States v. Barbosa, 271 F.3d 438, 469 (3d Cir. 2001).

Fernandez claims that the questions posed to him before the grand jury could not

support perjury charges because they were fundamentally ambiguous. Although a trial
6

court has the power to dismiss a perjury count when the prosecutor’s questions are fatally

ambiguous, see United States v. Serafini, 167 F.3d 812, 820 (3d Cir. 1999), this is not

such a case. “[T]he existence of ‘some ambiguity’ in a falsely answered question is

generally not inconsistent with a conviction for perjury.” United States v. Camper, 384

F.3d 1073, 1076 (9th Cir. 2004) (citation omitted). Rather, in instances of less than

fundamental ambiguity, “it is for the petit jury to decide which construction the defendant

placed on the question.” Serafini, 167 F.3d at 820 (internal quotation marks and citation

omitted).

It is clear from the context of the questions and the record as a whole that

Fernandez understood what the prosecutor was asking him. Though advised at the start

of his grand jury appearance that “during the course of the questions and the course of

this proceeding today, if you have any questions or any confusion about any questions,

you’ll let us know[,]” App. at 978, Fernandez never indicated that he was confused by any

of the questions to which he allegedly responded falsely. Moreover, Fernandez

unequivocally denied that he received any phone calls relative to the insurance resolutions

prior to the vote on March 22, and in denying that he had a discussion with Soto

regarding the insurance matters, Fernandez insisted that he would have remembered such

a discussion. See United States v. Long, 534 F.2d 1097, 1100 (3d Cir. 1976).
7

The fact that questions could have been more specific is not evidence of

fundamental ambiguity; thus, any argument that Fernandez did not understand the

questions to which he was responding was one for the jury.

Fernandez also argues that Count I of the indictment should have been dismissed

as duplicitous “because the Government charged multiple false statements in the same

count involving the same subject.” The District Court denied Fernandez’s motion to

dismiss the indictment in this regard, opting to resolve any issues by charging the jury that

a verdict of guilty on Count I required unanimity as to at least one perjurious statement. 

Fernandez contends that the unanimity instruction was inappropriate because such an

instruction is proper only when a duplicity challenge is first raised at trial. Because

Fernandez argued duplicity prior to trial, he claims the only appropriate remedies were

election or dismissal. “Whether an indictment is duplicitous is a question of law subject

to de novo review.” United States v. Root, 585 F.3d 145, 150 (3d Cir. 2009).

“Duplicity is the joining in a single count of two or more distinct and separate

offenses.” United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). Duplicity is not to

be confused with “multiplicity,” which is the charging of a single offense in several

counts thereby risking multiple punishments for a single crime. 1A Charles Alan Wright

et al., Federal Practice and Procedure § 142 (4th ed. 2010). The purposes of the

prohibition against duplicitous indictments include:

(1) avoiding the uncertainty of whether a general verdict of guilty conceals

a finding of guilty as to one crime and a finding of not guilty as to another; 
8

(2) avoiding the risk that the jurors may not have been unanimous as to any

one of the crimes charged; (3) assuring the defendant adequate notice; (4)

providing the basis for appropriate sentencing; and (5) protecting against

double jeopardy in a subsequent prosecution.

Root, 585 F.3d at 154.

“Duplicitous pleading, however, is not presumptively invalid.” United States v.

Olmeda, 461 F.3d 271, 281 (2d Cir. 2006). The charging of separate acts in one count is

permissible “if those acts could be characterized as part of a single continuing scheme.”

Id. (quotation omitted). This rule makes an abundance of sense in perjury cases where the

same falsehood could be repeated in several ways. In such circumstances, charging each

statement separately could lead to a multiplicity challenge. See, e.g., United States v.

Clarridge, 811 F. Supp. 697, 705 (D.D.C. 1992) (two counts of an indictment alleging

false statements before Senate Committee were multiplicitous even though they were

responses to different questioners where the “statements were given pursuant to one oath,

they were made before the same committee on [the same day], and they pertained to

identical subject matter”). Thus, courts have held that perjury indictments are not

duplicitous simply because they specify multiple statements demonstrating the same

falsehood. See, e.g., United States v. Berardi, 629 F.2d 723, 729 (2d Cir. 1980) (“[I]t has

long been accepted practice to charge perjury before the grand jury, committed in the

course of the same appearance, in a one count indictment with each false declaration set

forth in a particular specification.”); United States v. Isaacs, 493 F.2d 1124, 1155 (7th

Cir.) (“In perjury cases . . . where one offense is committed, all the false declarations
 Fernandez also claims that the jury instruction regarding unanimity impermissibly 2

amended the indictment. After thorough consideration of this issue—which is subject to

the onerous plain error standard because Fernandez failed to raise it before the District

Court—we find no error. Even assuming the instruction constituted a constructive

amendment of the indictment, it was not impermissible because it did not “broaden[] the

possible bases for conviction from that which appeared in the indictment.” United States

v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (quotation omitted). The District Court did

not permit the jury to consider statements beyond those included in the indictment;

accordingly, Fernandez had full notice of the charges and statements against which he

needed to defend and his Fifth Amendment rights were not violated. See also United

States v. Syme, 276 F.3d 131, 148 (3d Cir. 2002) (“A constructive amendment occurs

where a defendant is deprived of his ‘substantial right to be tried only on charges

presented in an indictment returned by a grand jury.’” (citation omitted)).

9

pertaining to that offense can be charged in one count without making that count

duplicitous.”), cert. denied, 417 U.S. 976 (1974).

Accordingly, Count I of Fernandez’s indictment, which specified multiple

falsehoods all regarding whether Fernandez spoke with anyone about the insurance

resolutions prior to the vote, was not duplicitous.2

B. Evidentiary Rulings

The primary focus of Fernandez’s defense at trial was to disprove that he had

“knowingly” lied to the grand jury. According to Fernandez, he had merely forgotten

about the March 22 phone calls by the time of his grand jury testimony. On appeal,

Fernandez challenges three instances in which the District Court excluded evidence

offered to corroborate Fernandez’s state of mind during his grand jury testimony.

We review a trial court’s decision to admit or exclude evidence for abuse of

discretion, “and such discretion is construed especially broadly in the context of Rule
10

403.” United States v. Mathis, 264 F.3d 321, 326-27 (3d Cir. 2001). A district court’s

decision to exclude evidence under Rule 403 constitutes an abuse of discretion only

where it is “arbitrary or irrational.” United States v. Universal Rehab. Servs. (PA), Inc.,

205 F.3d 657, 665 (3d Cir. 2000) (en banc). If we conclude that an evidentiary ruling

constituted an abuse of discretion, we must determine whether the error was harmless. 

United States v. Casoni, 950 F.2d 893, 902 (3d Cir. 1991).

1.

At trial, Fernandez sought to introduce audiotapes of telephone calls between Soto,

Rivera, and Jackson which took place earlier in the day on March 22, 2007. In those

calls, Soto, Rivera, and Jackson discussed whether to cut Fernandez in on the bribery

scheme to secure his vote against the upcoming insurance resolutions. Ultimately, the

three concluded that, instead of cutting Fernandez in, Soto would call Fernandez and tell

him to vote against the resolutions to save the City money. In seeking to admit the tapes

into evidence, Fernandez argued they corroborated his testimony that he had no motive to

mislead the grand jury.

The District Court excluded the audiotapes, finding that they were irrelevant, and

constituted impermissible hearsay. The Court noted the unreliability of the statements

given the motivations of the parties to the conversation. It also found that playing the

tapes would be “a distraction” because Fernandez was not accused of membership in the

bribery conspiracy and his case dealt with the “very narrow” perjury issue, which the
11

Court would not allow to be “obfuscated by bringing in schemes and cross agendas of

others.” App. at 312-13.

Under Federal Rule of Evidence 403, a District Court may exclude otherwise

relevant evidence “if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.

Evid. 403.

The audiotapes of the March 22 telephone calls between Soto, Rivera, and Jackson

were largely irrelevant to the case. Fernandez was not charged with participation in the

underlying bribery scheme and the Government conceded that it had no evidence he was

involved. Furthermore, though the Government referred to Fernandez as a “friend” of

Mayor Rivera in its opening statement, its theme throughout trial was that Fernandez was

motivated to lie, not because he was a close personal friend of Rivera, but because it was

politically expedient for Fernandez to curry favor with Rivera. The fact that Rivera, Soto

and Jackson considered and rejected the idea of including Fernandez in their scheme does

not tend to negate the Government’s theory. Therefore, the tapes had minimal probative

value.

Moreover, the potential for “obfuscation” from the admission of evidence

regarding the corruption conspiracy was high, and the District Court instructed the jurors

that they could not apply guilt by association to Fernandez based on the underlying
12

extortion crime. App. at 772. Therefore, the District Court’s conclusion that the danger

of confusion and prejudice from playing the audiotapes substantially outweighed their

probative value was not an abuse of discretion.

2.

Fernandez next assigns error to the exclusion of audiotapes and transcripts of prior

Council meetings during which the Council discussed the insurance resolutions and the

need to save the City money. The District Court’s statement that the tapes were irrelevant

to the perjury charge was incorrect, as they did tend to show that the reason Fernandez did

not recall the March 22 phone call with Soto was because it was an “unremarkable

discussion” reiterating information Fernandez had already learned in the Council

meetings. Contrary to the Government’s assertions, Fernandez did develop this argument

at trial and in his proffer of the tapes.

Nonetheless, the District Court’s conclusion that the tapes were repetitive of

uncontested information already presented through the testimony of Gregory Hill, the

City’s Business Administrator, and through Fernandez’s own testimony, was not

improper. App. at 509-11. Fernandez proffered multiple audiotapes of full Council

meetings, each twenty to forty minutes in length, and numerous pages of transcripts to

corroborate undisputed testimony. See App. at 410, 523. The Court was legitimately

concerned that such evidence would be a waste of time. App. at 509-511, 515. Thus, the

conclusion that any probative value of the tapes was substantially outweighed by their
 We also reject Fernandez’s claim that the District Court erred when it permitted 3

the Government to question him regarding what his lawyer told him about the scope of

the grand jury investigation. The Government’s questions did not violate the attorneyclient privilege because Fernandez repeated only what his attorney had learned from the

prosecutor and the conveyance of such information does not constitute privileged legal

advice. See In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984) (“[W]hen an attorney

conveys to his client facts acquired from other persons or sources, those facts are not

privileged.” (quotation omitted)); see also Rhone-Poulenc Rorer Inc. v. Home Indem. Co.,

32 F.3d 851, 862 (3d Cir. 1994) (underlying facts do not become privileged via

incorporation in an attorney-client communication). We also conclude that Fernandez

suffered no harm when his attorney was precluded from testifying.

13

cumulative effect was not an abuse of discretion, particularly where the Court permitted

Fernandez to submit the meeting minutes and agendas as an alternative, which he did. 

Fed. R. Evid. 403; see App. at 499-500, 519, 521, 534, 580-81.3

C. Jury Instructions

Fernandez asserts four errors with respect to the jury instructions. He argues that

the District Court erred by: (1) failing to define the term “knowingly” with respect to the

perjury count; (2) refusing to give Fernandez’s proposed “ambiguity” instruction; (3)

instructing the jury that a prosecutor is not obligated to give grand jury witnesses advance

notice of the subject matter of the investigation; and (4) improperly instructing the jury as

to “materiality.” “We generally exercise plenary review in determinating ‘whether the

jury instructions stated the proper legal standard,’ and review the refusal to give a

particular instruction or the wording of instructions for abuse of discretion.” United

States v. Flores, 454 F.3d 149, 156 (3d Cir. 2006) (citation omitted).
14

Fernandez’s argument with respect to the Court’s knowingly charge is borderline

frivolous. Though the District Court did not define the term “knowingly” immediately

following its instruction concerning the elements of perjury, it did define the term after it

had set out the elements of obstruction of justice, App. at 767-68, and further instructed

the jury that the definition applied wherever “knowingly” appeared among the elements

of either offense, App. at 874. These instructions “fairly and adequately submit[ted] to

the jury” the definition of knowingly for Count I. United States v. Traitz, 871 F.2d 368,

383 (3d Cir. 1989).

The District Court’s refusal to give Fernandez’s ambiguity instruction also was not

an abuse of discretion because the Court charged the jury properly as to the elements of

perjury and the burden of proof necessary to convict Fernandez. This included instructing

the jury that one did not make a knowing falsehood if the statement was based on

mistake. App. at 767. Furthermore, Fernandez’s proposed instruction incorporated the

issue of fundamental ambiguity which is a question for the court, not the jury.

The District Court instructed the jury that “[t]he Government is under no

requirement to inform a witness in the Grand Jury of the extent or breadth of the

Government's investigation. Or to tell him of the evidence it already possesses or that it

already has regarding the subject matter.” App. at 764. This instruction neither misstated

the law nor discouraged the jury from considering Fernandez’s argument about the effect

of the lack of information on his state of mind. Given the numerous implications made by
15

the defense during trial that the prosecutor improperly failed to provide Fernandez with

advance notice of the scope of the investigation, this instruction was not an abuse of

discretion. See, e.g., Edwards v. City of Phila., 860 F.2d 568, 575 (3d Cir. 1988).

Finally, Fernandez assigns error to the Court’s materiality instruction because it

failed to state that a material statement is one on which “a reasonable person would rely.” 

This argument is meritless because the materiality instruction that the Court did

provide—that “[a] statement is material if it has a tendency to influence, impede or

hamper the Grand Jury from pursuing [its] investigation,” App. at 763—was consistent

with controlling precedent. See, e.g., United States v. Gaudin, 515 U.S. 506, 509 (1995)

(“[C]onviction under [18 U.S.C. § 1001 false statements] requires that the statements be

‘material’ to the Government inquiry . . . [t]he statement must have ‘a natural tendency to

influence, or [be] capable of influencing, the decision of the decisionmaking body to

which it is addressed.” (citation omitted)).

D. Sentencing Challenge

Fernandez challenges the District Court’s application of a two-level enhancement

under USSG § 3C1.1 for obstruction of justice. We exercise plenary review over the

District Court’s interpretation of the Guidelines, and review its findings of fact in support

of an enhancement for clear error. United States v. Wise, 515 F.3d 207, 217 (3d Cir.

2008).
16

Fernandez’s Presentence Investigation Report (PSR) found the enhancement

appropriate based on his testimony at trial “that he had no recollection of the March 22,

2007 telephone call with Jonathan Soto.” At sentencing, the District Court agreed that

Fernandez had perjured himself at trial: “[h]aving taken that position in the Grand Jury,

and feeling that he was not a wrongdoer in all of this corruption, as I view it, Mr.

Fernandez could not bring himself to step away from the position he had taken.” App. at

939. Because the District Court did not further explain its application of § 3C1.1, the

Government initiated the following exchange at the close of the sentencing hearing:

MR. CHAO: And, Your Honor, if I just may clarify because with respect to

the obstruction enhancement, did the Court find by a preponderance that

defendant’s testimony at trial constituted false testimony?

THE COURT: Absolutely.

MR. CHAO: Concerning material matter with the willful intent to provide

false testimony.

THE COURT: Yes, I believe that the defendant took the position he took

early on and could not bring himself to waiver [sic] from it.

App. at 945-46.

Fernandez argues that application of the enhancement constituted improper double

counting because his underlying offense was for perjury and the Government failed to

show a “significant further obstruction” as required by the Application Notes to § 3C1.1. 

See USSG § 3C1.1 cmt. n.7.

Section 3C1.1 provides for a two-level enhancement:
17

If (A) the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of

conviction, and (B) the obstructive conduct related to (i) the defendant's

offense of conviction and any relevant conduct . . . . 

USSG § 3C1.1. Application Note 7 cautions that if the offense of conviction is perjury

(among other crimes), then the enhancement should not be applied “except if a significant

further obstruction occurred during the investigation, prosecution, or sentencing of the

obstruction offense itself,” and lists threatening a witness as an example of “significant

further obstruction.” USSG § 3C1.1 cmt. n.7.

We have held that the commission of perjury at trial warrants application of the

obstruction of justice enhancement. United States v. Fiorelli, 133 F.3d 218, 221 (3d Cir.

1998); see also USSG § 3C1.1 cmt. n.4(b) (including “committing . . . perjury” on “list of

examples of the types of conduct to which this enhancement applies”). Moreover, we

have rejected the argument that perjurious statements at trial must cause the government

some additional burden in order to support a § 3C1.1 enhancement. See Fiorelli, 133

F.3d at 223 (holding that perjury need not be “so far reaching as to impose some

incremental burdens on the government” to constitute obstruction under § 3C1.1 (internal

quotation marks omitted)); see also United States v. Dunnigan, 507 U.S. 87, 93 (1993)

(precedents requiring “some greater design to interfere with judicial proceedings . . . arose

in the context of interpreting early versions of the federal criminal contempt statute” not §

3C1.1). While these cases dealt with underlying convictions for crimes which did not
18

trigger Application Note 7, they are nonetheless instructive that perjury at trial constitutes

obstruction of justice under § 3C1.1.

Like the Court of Appeals for the District of Columbia Circuit, “[w]e are reluctant

to hold that Note 7 gives a defendant license to perjure [himself] in a criminal proceeding

in order to avoid enhanced punishment for, of all things, perjury.” United States v.

McCoy, 316 F.3d 287, 289 (D.C. Cir. 2003) (rejecting contention that “[s]imply repeating

precisely the same statements that were the subject of perjury charges is not the sort of

‘significant further obstruction’ that can justify an exception to Application Note 7's

general rule against applying obstruction enhancements to perjury convictions” (internal

quotation marks omitted)). Thus, Fernandez’s perjury at trial constitutes a “significant

further obstruction” during the prosecution of his perjury before the grand jury. Contrary

to Fernandez’s arguments, this does not constitute “double counting.” Fernandez was

convicted of perjury before the grand jury, and the enhancement was based on his perjury

at trial. As noted in the PSR, these were “separate and distinct” instances of lying; there

is no free pass for consistent perjury. Therefore, the enhancement was warranted in this

case.

Fernandez also assigns error to the District Court’s failure to make specific

findings in support of the enhancement. While it is true that the District Court’s

discussion of the elements of perjury was less than ideal (as evidenced by the

Government’s attempt to shore up the Court’s findings at the end of the sentencing
19

hearing), this is not a basis for vacating application of the enhancement where it is

supported by the record and jury’s verdict. As we stated in United States v. Boggi:

[W]e stress that it is preferable for a district court to specifically state its

findings as to the elements of perjury on the record when applying this

enhancement. However, where, as here, the record establishes that the

district court’s application of the enhancement necessarily included a

finding as to the elements of perjury, and those findings are supported by

the record, we will not remand merely because the district court failed to

engage in a ritualistic exercise and state the obvious for the record.

74 F.3d 470, 479 (3d Cir. 1996).

Moreover, in United States v. Gricco, we upheld a § 3C1.1 enhancement based on

perjury even though the district court did not specifically identify which statements were

perjurious, observing only that Gricco “testified falsely regarding material matter during

trial.” 277 F.3d 339, 362 (3d Cir. 2002). We affirmed application of the enhancement in

Gricco, despite the lack of specific findings by the sentencing court, because it was

“obvious” from the record “that [the defendants]-both of whom denied any participation

in embezzling the money from the airport and in underreporting their income-committed

perjury.” Id.

The same is true here. At trial, Fernandez repeatedly explained that the reason he

denied the existence of the March 22, 2007 phone calls when answering questions before

the grand jury was because he did not remember the calls, see, e.g., App. at 563-567; he

also asserted, during his trial testimony, that he testified truthfully before the grand jury,

App. at 543, 604-05. The veracity of these statements was necessarily rejected by the
20

jury’s verdict, finding that Fernandez willfully made false statements to the grand jury. In

light of the record, it was not error for the District Court to conclude that these statements

constituted willful, material falsehoods warranting an enhancement under § 3C1.1.

III.

For the foregoing reasons, we will affirm Fernandez’s judgment of conviction and

sentence.