7. Robert Rogers and Jack Bate testified that McKean assisted in creating false panels to hide the marijuana in the storage area of the mobile home. (U)
8. Robert Rogers, Jack Bate, and Amy Rogers testified that McKean assisted in the loading of the marijuana onto the mobile home. (U)
9. Robert Rogers, Jack Bate, and Tammy Bate testified that McKean knew that marijuana was contained within the mobile home which was driven from Arizona to Virginia on or about Thanksgiving, November, 1991. (U)
10. David Douty testified that McKean was present during the unloading of the mobile home in Virginia and the loading of the marijuana onto a truck which Douty had rented. (U)
11. Jack Bate and Greg Scherting testified that McKean assisted in the unloading of the marijuana from the mobile home in Virginia and the loading of the rented truck. (U)
12. Robert Rogers and Greg Scherting testified that McKean received four to five thousand ($ 4,000.00 - $ 5,000.00) dollars in cash in Virginia for assisting in the transportation of the marijuana from Arizona to Virginia. (U)
13. Tammy Bate testified in contradiction of testimony offered by McKean that at no time did McKean act as a babysitter for her children in Virginia which excuse McKean offered regarding his non-participation in the unloading of the marijuana in Virginia. (U)
14. Ken Mossey testified that McKean admitted to him sometime in approximately December 1991, that he had been involved in transporting a quantity of marijuana from Arizona to Virginia. (U)
15. Prosecution witnesses David Douty, Ken Mossey, Jack Bate and Robert Rogers were convicted drug felons who testified pursuant to plea agreements. (U)
16. Prosecution witness Scherting entered into a plea agreement but had not yet been sentenced at the time of trial. (U)
17. Madams Bate and Rogers were the wives of prosecution witnesses, at least one of whom received immunity as a result of her husband's cooperation and plea agreement. (U)
18. Madams Bate and Rogers are sisters.
19. Ken Mossey was very close to the Rogers family and considered himself part of the family.
20. Greg Scherting had a business relationship with Robert Rogers.
21. David Douty lived with Robert Rogers's sister Debbie at the time McKean was working for Rogers. The couple had a child.
22. McKean did take the witness stand on his own behalf, and did deny guilty knowledge of the underlying conspiracy testified to by the Government witnesses as well as all overt acts testified to in furtherance of the conspiracy. (U)
23. During his testimony, McKean denied all criminal acts attributed to him. (U)
24. Prior to the beginning of trial, McKean had, through counsel, requested to be allowed to enter a letter from Don Wilkes, Investigative Consultant, dated May 27, 1993, and referring to a polygraph examination on May 26, 1993. (U)
25. In connection with the report, Don Wilkens submitted a resume showing, among other things, that he had been affiliated with the Lincoln, Nebraska police force from 1967 through 1981; that in 1973, he was a graduate of Keeler Polygraph in Chicago, Illinois; that in 1974 he was a Master of Polygraphy; that as a police officer for the City of Lincoln, he administered over 7,500 polygraph examinations, and that as a private polygraph examiner, he administered over 3,500 polygraph examinations. (U)
26. The request by counsel took the form of a Motion to Determine Admissibility of Polygraph Evidence and attached to the Motion were the questions asked, the answers given, and the charts and graphs from the instrument. The polygrapher concluded by stating that "after careful analysis of McKean's polygram, it would be the considered opinion of this polygraphist that McKean has told substantially the truth when he states that he had no knowledge of Rogers's and Bate's business of transporting illegal drugs and that he was never paid money or received any compensation from Rogers or Bate for transporting illegal drugs." (U)
27. McKean did not suborn any improper evidence from any other party, and in fact, his only witness was his father, who was called to detail the manner in which McKean and Rogers initially became involved with one another in legitimate business dealings. (U)
Joseph Anthony Cordova was a large scale supplier of marijuana with his principal base in Arizona. Cordova obtained the marijuana from sources in Mexico. One of his biggest wholesale customers was Robert Rogers who utilized couriers to deliver marijuana received in Arizona to Pennsylvania, Virginia and other states. The Government presented evidence at McKean's trial that in November 1991 Rogers enlisted McKean as a courier to transport a quantity of marijuana to Virginia. At trial McKean testified he knew nothing about the delivery of marijuana to Virginia in November of 1991. The Government is now requesting a two-level enhancement of McKean's offense level for obstruction of justice pursuant to § 3C1.1 of the Sentencing Guidelines.
Section 3C1.1 of the Sentencing Guidelines provides as follows:
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
Most courts considering the above guideline have held that if the court finds that the defendant gave false testimony at trial, an enhancement under this section is appropriate. See United States vs. Batista-Polanco, 927 F.2d 14, 22 (1st Cir. 1991); United States vs. Matos, 907 F.2d 274, 276 (2d Cir. 1990); United States vs. Colletti, 984 F.2d 1339, 1347-48 (3d Cir. 1992); United States vs. Acosta-Cazares, 878 F.2d 945, 953 (6th Cir.), cert. denied, 493 U.S. 899, 107 L. Ed. 2d 204, 110 S. Ct. 255 (1989); United States vs. Contreras, 937 F.2d 1191, 1194-1195 (7th Cir. 1991); United States vs. Wagner, 884 F.2d 1090, 1098-1099 (8th Cir. 1989), cert. denied, 494 U.S. 1088, 108 L. Ed. 2d 958, 110 S. Ct. 1829 (1990); United States vs. Barbosa, 906 F.2d 1366, 1369-1370 (9th Cir.), cert. denied, 498 U.S. 961, 112 L. Ed. 2d 403, 111 S. Ct. 394 (1990); United States vs. Beaulieu, 900 F.2d 1537, 1539-1540 (10th Cir.) cert. denied, 497 U.S. 1009 (1990); United States vs. Wallace, 904 F.2d 603, 604-605 (11th Cir. 1990). Only the Court of Appeals for the Fourth Circuit has held that a sentencing enhancement for perjury at trial is inappropriate and unconstitutional. See United States vs. Dunnigan, 944 F.2d 178 (4th Cir. 1991). In that case the Court of Appeals found that an enhancement pursuant to U.S.S.G. § 3C1.1 for a disbelieved denial of guilt under oath was unconstitutional in that it would create an "intolerable burden on the defendant's right to testify in his own behalf." Id. at 185. However, the Supreme Court granted the United States's petition for writ of certiorari and reversed the judgment of the Court of Appeals. See United States vs. Dunnigan, 122 L. Ed. 2d 445, 113 S. Ct. 1111 (1993).
Where a defendant committed perjury at his trial, an increase for obstruction of justice by two levels pursuant to U.S.S.G. § 3C1.1 is justified. However, the guidelines caution that "in applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statement should be evaluated in a light most favorable to the defendant." U.S.S.G. § 3C1.1, Commentary, Application Note 1. Several Courts of Appeals have interpreted this application note as instructing the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction. See United States vs. Rojo-Alvarez, 944 F.2d 959, 969 (1st Cir. 1991); United States vs. Cunavelis, 969 F.2d 1419, 1423 (2d Cir. 1992); United States vs. Matos, supra; United States vs. Franco-Torres, 869 F.2d 797, 801 (5th Cir. 1989); United States vs. Barbosa, supra 906 F.2d 1366, 1370; United States vs. Wallace, supra at 605. The Fifth Circuit, one of the first Courts of Appeals to interpret Application Note 1 of § 3C1.1, stated:
We do not believe that this note requires the sentencing judge to believe the defendant whenever [the defendant denies certain allegations]. To construe the note in that way would effectively enable every defendant to nullify its application by self-serving testimony. Instead, we believe the note simply instructs the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction. Such uncertainties may arise when the judge is unsure about which witness to believe, or when the prosecution has failed to procure available evidence crucial to the resolution of the controversy.