IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

 §

Plaintiff, §

 § Criminal No. 3:06-CR-034-D

VS. §

 §

JOHN WENTZELL DOWNS, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

A jury convicted defendant John Wentzell Downs (“Downs ”) of the offense of fraud

involving aircraft parts in or affecting interstate commerce, in violation of 18 U.S.C. § 38(a)(1)(C).

Downs testified during the trial. Because the court finds that he committed perjury during his

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 his guilt as an exercise of his constitutional rights, a sentence may

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

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

 

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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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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, 2006 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, 2006

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

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

 

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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 Downs

committed perjury during her trial testimony. 

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

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

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

matter, (4) that Downs 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 Downs 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: 

(1) that he did not put 3/1/05 on every piece of paper in relation to Mr. Fernandez

because he was trying to cheat, or defraud, or lie to anybody;

(2) that he did not intend to create a false document or to defraud or cheat anybody with

the work order (No. 3005-2);

 

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(3) that he did not intentionally fail to have anything about blade work and was not

trying to defraud anybody by not having anything about blade work repair on the

document;

(4) that he did not intend to do anything wrong by placing the date of 3/1/05 in the

overhaul record (GX 23);

(5) that he did not intend for the documents to be false or misleading;

(6) that there was no effort to backdate anything; and

(7) that he dated the logbook March 1, 2005 because that was the date he overhauled the

propeller.

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.

July 25, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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