IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

 §

Plaintiff, §

 § Criminal No. 3:06-CR-011-D

VS. §

 §

NANCY HARLOW, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

A jury convicted defendant Nancy Harlow (“Harlow”) of the offenses of corruptly

obstructing, influencing, or impeding an official proceeding, or attempting to do so, in violation of

18 U.S.C. § 1512(c); making false declarations under oath before the federal grand jury, in violation

of 18 U.S.C. § 1623; and knowingly and willfully conspiring to corruptly obstruct, influence, or

impede an official proceeding, that is, a federal grand jury investigation, or to attempt to do so, in

violation of 18 U.S.C. § 1512(k). Harlow testified during the trial. Because the court finds that she

committed perjury during her testimony, the court directs the probation officer to add a two-level

increase to the advisory guideline offense level for obstruction of justice, and it enters these tentative

findings in support of this determination.

I

U.S.S.G. § 3C1.1 provides that the offense level shall be increased two levels if “the

defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration

of justice during the . . . prosecution . . . of the instant offense . . . .” “Though the court may not

penalize a defendant for denying [her] guilt as an exercise of [her] constitutional rights, a sentence

may be enhanced if the defendant commits perjury.” United States v. Como, 53 F.3d 87, 89 (5th Cir.

 

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*

The court recognizes that the Guidelines are advisory. But it must normally calculate the

guideline range. See United States v. Johnson, 445 F.3d 793, 797 (5th Cir.) (“This duty to ‘consider’

the Guidelines will ordinarily require the sentencing judge to determine the applicable Guidelines

range even though the judge is not required to sentence within that range.”), cert. denied, ___ U.S.

___, 126 S.Ct. 2884 (2006).

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1995) (citing United States v. Laury, 985 F.2d 1293, 1308 (5th Cir.1993)). Under the Sentencing

Guidelines, the court is required to enhance a sentence upon a proper determination that the accused

committed perjury at trial. United States v. Humphrey, 7 F.3d 1186, 1191 (5th Cir. 1993) (“If the

district court finds that [the defendant] did commit perjury, it must impose a two-level enhancement

of his sentence.”); United States v. Butler, 988 F.2d 537, 544 (5th Cir. 1993).*

According to the application notes, this enhancement applies to “committing, suborning, or

attempting to suborn perjury.” U.S.S.G. § 3C1.1, comment n. 4(b) (Nov. 1, 2005 Manual). Federal

law defines perjury as giving 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. See United

States v. Dunnigan, 507 U.S. 87, 94 (1993) (citing 18 U.S.C. § 1621(1)). Nevertheless, “not every

accused who testifies at trial and is convicted will incur an enhanced sentence under § 3C1.1 for

committing perjury.” Dunnigan, 507 U.S. at 95. Because there are reasons why a defendant may

testify falsely without committing perjury, see U.S.S.G. § 3C1.1, comment n. 2 (Nov. 1, 2005

Manual), “if a defendant objects to a sentence enhancement resulting from her trial testimony, 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 [the Supreme Court has] set out.” Dunnigan, 507 U.S. at 95. “[I]t is preferable for a

district court to address each element of the alleged perjury in a separate and clear finding.” Id.;

United States v. Como, 53 F.3d 87, 89 (5th Cir. 1995) (preferred course is to make clear finding on

 

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each element of the alleged perjury). “The district court’s determination that enhancement is

required is sufficient, however, if . . . the court makes a finding of an obstruction of, or impediment

to, justice that encompasses all of the factual predicates for a finding of perjury.” Dunnigan, 507

U.S. at 95.

Factual determinations at sentencing are made according to U.S.S.G. § 6A1.3. “[T]he court

may consider relevant information without regard to its admissibility under the rules of evidence

applicable at trial, provided that the information had sufficient indicia of reliability to support its

probable accuracy.” United States v. Bermea, 30 F.3d 1539, 1576 (5th Cir. 1994). The

preponderance of the evidence standard applies to such determinations. See United States v.

Mergerson, 995 F.2d 1285, 1291 (5th Cir. 1993) (holding that it is well established in this circuit

that as a general matter the burden of proof at sentencing is by a preponderance of the evidence).

II

 The court enters these tentative findings in support of its determination that Harlow

committed perjury during her trial testimony. 

Using a preponderance of the evidence standard, and based upon the evidence adduced at

trial, including defendant Harlow’s testimony, the court finds that at least the following testimony

constituted (1) false testimony by Harlow, (2) given under oath at trial, (3) concerning a material

matter, (4) that Harlow did not believe to be true, and (5) that she gave with the willful intent to

provide false testimony rather than as a result of confusion, mistake, or faulty memory. The court

finds that Harlow gave this testimony willfully to obstruct or impede, or attempt to obstruct or

impede, the administration of justice during the prosecution of the instant offense. 

The testimony on which the court bases the perjury enhancement is as follows: 

 

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(1) that she did not lie to the grand jury;

(2) that she did not present false evidence to the grand jury;

(3) that she did not fabricate any of the documents that she provided to the grand jury;

(4) that her relationship with American Liquidators began when a gentleman named

Eddie contacted her and said that he had gotten her name from someone at Chaparral

that told him she supplied face shields and safety equipment and that he had a

liquidating company that sold inventory that was either overstocks or closeouts; 

(5) that she paid Eddie by cash because he gave her one price and then said that he could

give her a better price if she paid cash, and it seemed economically feasible to do

that;

(6) that Eddie delivered the triacetate face shields to her office;

(7) that Eddie delivered the triacetate face shields to her office as part of the negotiations

because he said that if she could wait until Saturdays, he could personally deliver

them and that would save her freight charges;

(8) that Eddie delivered the items she ordered from him on Saturdays; 

(9) that the way the contacts were made for each of the purchases was that Eddie would

call and tell her he had a supply of face shields and ask if she was interested, she

would tell him “yes” or “no,” and they would arrange for when he would bring them

to her;

(10) that government exhibit 33 was the ticket that Eddie would give her when he would

make a delivery; 

(11) that she got the cash to pay American Liquidators from her father;

(12) that she got the cash from her father because she knew he had the cash and knew that

he had given money to her sister and all her brothers over the years and felt like she

could get the cash from him;

(13) that she got six cash payments from her father because that was the number of

shipments of triacetate face shields she got from American Liquidators; and

(14) that Eddie sometimes contacted her two or three weeks, sometimes maybe a month

or so, in advance before he would deliver face shields on a Saturday.

 

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III

Any objections to these tentative findings must be filed in writing no later than the deadline

previously set in the sentencing scheduling order for filing objections to the presentence report.

SO ORDERED.

August 3, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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