NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0763n.06 No. 12-3349 UNITED STAT ES COURT OF AP P EALS FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , ON APPEALFROM THE v. UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN J OHN J. RUGAL A, DI STRI CT OF OH I O Def endant- Appellant.

Be fore : CL AY, COOK, a nd ROTH, Circuit J udg es.

* J ANE R. ROTH, Circuit J udg e. I n this sentenc ing appea l, J ohn Ruga la challeng es the district court’s ap p l ication of a two-leve l enhanc ement to his base o ff en s e level for obstruction of justice under § 3C1.1 of the United States Sentencing Guidelines. For the rea sons that follow, we aff irm the sentenc e imposed by

the district court. I. Background J o h n R u gal a wa s convicted of one count of bank fra ud, in violation of 18 U.S.C. § 1344,

on November 21, 2011. Ruga la had been a car deale r in t h e C l ev el and, Ohio, are a, wher e he owned J ohn Ruga la Chevrolet an d wa s a co-ow ner of Ruga la Stanton Motors. By late 2000, J o h n R ug ala Chevrolet was experiencing financ ial problems. I n response to this, Ruga la and others beg an eng ag ing in a chec k-kiting scheme whereb y t hey wrote chec ks back and forth

* The Honorable J ane R. Roth, Senior Circuit J udg e for the Unit ed States Court of Appe als for the Third Circuit, sitti ng by

desig nation.No. 12-3349

United States v. Rugala Pag e 2 betwee n the two car deale rships. This allowed them to cre ate short-term loans for the deale rships by taking advant age o f their banks’ prac tice of allowing customers to draw upon chec ks once they wer e deposited, even though it took sever al day s for the chec ks to clea r. This scheme ultimately

cause d a loss of appr ox imately $1.2 milli on to the banks involved. Most pertinent to this appea l, R u gala lear ned on J anuar

y 25, 2001, that J ohn Ruga la Chevrolet fac ed a cash shortfall, but o n t h at same day he signe d 51 chec ks totaling over $1 milli on from J ohn Ruga la Chevrolet’s acc ount to Ruga la S t an t o n Motors. He signe d another 49 chec ks for ove r $1 million t o Ruga la Stanton Motors the next day

. Ruga la testified in his own defe nse. At the end of his direc t examination, with respe ct t o the chec ks written in J anuar y 2 0 0 1 , Ruga la said “I thought they wer e backe d by actua l money .” On cross-e x amination, howeve r, Ruga la testified that he k n ew J ohn Ruga la Chevrolet was short

on cash o n J an u ar y 25, 2001, when he beg an writing chec ks to Ruga la Stanton Motors. He also testified that J o h n Ruga la Chevrolet’s office manag er told him the deale rship was short on cash beca use they wer e waiting to rec eive approximately $500,000 worth of financi n g for used vehicles, $100,000 from outs tanding contra cts, and m o n i es t hat would be coming in from reg ular business. On re- direc t, Ruga la further t es t i fi ed that the office manag er indicated to him that money would be coming in from “[financing ] of car s, contra cts that wer e g oi n g to be cashe d from the sa le of ve hicles, and pa rts, may be an ope n acc ount statement.” At sentenc ing, the g overnme nt soug ht a two-leve l en h an cement to Ruga la’s base offe nse level for o b s t ru ction of justice under § 3C1.1 of the Sentencing Guidelines. The g overnme nt pointed to the statements, descr ibed above, that Ruga la made on direc t examination and crossexaminati o n to arg ue that Ruga la committed perjury while testify ing. After arg ument on this issue, the district court made the following ruling :No. 12-3349

United States v. Rugala Pag e 3 Ba sed upon the testimony specific ally now cited by the g overnme nt as to Mr. Ruga la’s testimony indicating that he only signe d – well, he signe d checks and he believed that t h er e was alway s money in the acc ount to cover , that he never signe d a chec k when he didn’t believe there was money i n t h e acc ount to cover , jux taposed with the cited testimony on cr o s s -e x amination, the Court does find that there was perjurious testimony and will apply the two-leve l enhance m en t for obstruction. The district court sentenc ed Ruga la to 37 months imprisonment on Mar ch 1 4, 2012. Ruga la appea led. II. Analysi s 1 Ruga la arg ues that the district court err ed by imposing the two-leve l en h an ce m ent for obstruction of j ustice under § 3C1.1 of t h e Sentencing Guidelines. We revie w t he dis trict court’s finding s of fac t with respe ct to the obstruction of justice enhanc ement for clea r erro r, but we revie w its deter

mination of whether the fac ts constitute obstruction, and its applicatio n o f the enhanc ement, de novo. United States v. W atkins , 691 F.3d 841, 851 ( 6th Cir. 2012). Section 3C1.1 of the Sentencing Guidel i n es mandates a two-leve l incre ase to a defe ndan t ’s offe nse level when he “willfully obstructed or impeded

. . . the administration of justi ce with respe ct to the investiga tion, prosec ution, or sentenc ing of the

. . . offe nse of conviction.” U.S. Sentencing Guidelines § 3C 1.1. Application Note 4 contains a non-exhaustive list of conduct to which the enhanc ement ap p lies, including “committing, suborning , or attempting to suborn perjury .” Id. at cmt. n. 4; see United States v. Dunnigan , 507 U.S. 87, 98 (1993). I n order to proper ly apply a § 3C1.1 enhanc ement for obstructio n o f justice, “the court must 1) identify those particu l ar p o rt ions of defe ndant’s testimony that it considers to be

The district cour

t had jurisdiction pursuant to 18 U.S.C. § 3231, and this court has jurisdiction 1 pursuant to 18 U.S.C. § 3742(a).No. 12-3349

United States v. Rugala Pag e 4 perjurious; and 2) either make a specific finding for eac h eleme n t o f p er j u ry or, at least, make a finding that encompa sses all of the fac tual predic ates for a finding of perjury .” United States v. B o r i n g , 557 F.3d 707, 712 (6th Cir. 2009) (interna l quotation marks omitted); see United S t a t es

v. Kennedy , 714 F.3d 951, 961-62 (6t h C i r. 2 013). The elements of perjury are “fa lse testimony

conce rning a materia l matter wi t h the willful intent to provide false testimony , rathe r than as a result of confusion, m i s t ake, or faulty memory .” Kennedy , 714 F.3d at 962 (quoting Boring , 557 F.3d a t 712). Ruga la arg ues that the district cour t ’s fi n d ing that Ruga la lied by testify ing that he thought the chec ks he wrote wer e “bac ked by actua l money ” was clea rly err oneous. “A finding is clea rly err oneous when the revie wing court on the entire evidenc e is left wi t h t h e d ef inite and firm conviction that a mistake h as b ee n comm itted.” United States v. Gilpatrick , 548 F.3d 479, 484-85 (6th Cir. 2 0 0 8 ) (q u o t i ng Heights Cmty. Cong. v. Hilltop Realty, Inc. , 774 F.2d 135, 140 (6th Cir. 1 9 8 5 ))

. Ba s ed on our revie w of the testimony at trial, we cannot conclude that the district court’s finding that Ruga la testified falsely was clea rly erroneous. Ruga la admitted that he knew J ohn Ruga la Chevrolet’s acc ount fac ed a cash sh o rt fall when he wrote over $2 milli on worth of chec ks draw ing from that acc oun t

. T h i s clea rly contra dicts Ruga la’s statement that he believed the se che cks we re ba cked by actua l money

. Ruga la arg ues that the phrase “bac ked by actua l money ” was used at trial to also mean that an expected inflow of money would cover a chec k such that there would be money i n the

acc ount at t h e t i m e t h e chec k was prese nted. Under this meaning , Ruga la arg ues, he did not lie beca use he did expect an inflow of money into J ohn R u gal a C h ev rol et’s acc ount befor e the chec ks to Ruga la Stanton Motors wer e cashe d. Even attributing this meaning to the phrase “bac ked by actua l money ,” we ca n n o t conclude that the district court clea rly err ed in finding thatNo. 12-3349

United States v. Rugala Pag e 5 R u gala testified falsely

. Ruga la testified on cross-e x amination that he believed $500,000 wo rt h of financ ing, $100,00 worth of outstanding contra ct s , an d regula r business would be coming into J ohn Ruga la Chevrolet’s acc ount. This, too, contra dicts Ruga la’s statement the he believed t he chec ks wer e “bac ked by actua l money ” beca use he signe d ch ec k s fo r o v er $2 milli on and knew J ohn Ruga la Chevrolet’s acc ount was alre ady short on cash. There fore , the district court’s finding that Ruga la testified fa lsely was not cle arly

err oneous. Be cause the district court’s fac tual finding s wer e not cl ea rl y erroneous, the district court did n o t er r b y ap ply ing the obstruction of justice enhanc ement in § 3C1.1 to deter mine Ruga la’s

sentenc e. III. Conclusi on For the fore g oing r easons, we aff irm the district court’s judg ment of sentenc e.