The opinion of the court was delivered by: MUIR
On August 25, 1992, a grand jury sitting in the Middle District of Pennsylvania returned a one-count indictment against six Defendants. On March 8, 1993, one of the Defendants, Brad McKean, entered a plea of not guilty to the indictment which charged him with conspiracy to distribute marijuana in violation of Title 21, United States Code, § 846. The jury was selected on May 4, 1993. The trial commenced on June 14, 1993, and ended on June 15, 1993, with a verdict of guilty. The Court ordered a presentence investigation and scheduled a presentence conference. The presentence report was prepared by Probation Officer Melvin L. Hoover, Jr., and submitted to McKean, defense counsel, and the Government on August 26, 1993. The probation officer determined that the base offense level is 26, a two-level increase in the offense level for obstruction of justice was warranted pursuant to U.S.S.G. § 3C1.1 as a result of McKean falsely testifying at his trial, the total offense level is 28, the criminal history category is I, the guideline imprisonment range is 78-97 months and the fine range is $ 12,500.00 to $ 2,000,000. The Government did not file objections to the presentence report. However, McKean objected to the two-level increase for obstruction of justice.
At the presentence conference held on September 8, 1993, it was agreed that the Government and McKean would file proposed findings of fact relating to the question of whether or not McKean committed perjury when he testified during the trial. The Government was directed to submit proposed findings of fact to defense counsel by September 20, 1993, and both McKean and the Government were directed to submit proposed findings of fact to the Court by September 27, 1993. Moreover, we scheduled oral argument on the issue raised for October 1, 1993, at 10:00 a.m. and sentencing for October 14, 1993, at 4:00 p.m.
At oral argument counsel for McKean requested that he be permitted to present testimony from McKean in order to refresh the Court's recollection regarding McKean's demeanor. In light of this request we scheduled a hearing for October 14, 1993, at 10:00 a.m. and rescheduled sentencing for October 15, 1993. On October 14, 1993, a hearing was held at which McKean testified and at which we set the sentencing time as 11:00 a.m. on October 15, 1993. The following are the Court's findings of fact, discussion, and conclusions of law with regard to whether McKean should receive a two-level increase in the offense level for obstruction of justice.
1. The prosecution's theory at the trial of McKean was that McKean assisted in obtaining marijuana from Tucson, Arizona, wrapped the substances in Mesa, Arizona, helped hide the substances through the construction of false panelling in a mobile home, loaded the substances, transported the mobile home from Arizona to Virginia, unloaded the mobile home in Virginia, received four to five thousand dollars in payment for his activities, and subsequently admitted his involvement in the offense. (Undisputed, hereinafter "U")
2. Seven witnesses testified on behalf of the prosecution at trial in support of this theory including Robert Rogers, Jack Bate, Greg Scherting, Ken Mossey, Amy Rogers, David Douty, and Tammy Bate. (U)
3. McKean testified on his own behalf at trial. (U)
4. During McKean's testimony at trial he denied obtaining the substances, wrapping it, preparing false compartments in the mobile home, loading the substances, unloading the substances, or making post-incident admissions but did admit that he transported the mobile home from Arizona to Virginia without knowing its contents, and was paid only $ 200.00 for expenses for the trip. (U)
5. Greg Scherting and Robert Rogers testified that McKean accompanied them to Tucson, Arizona where all three obtained marijuana from Anthony Cordova's residence. (U)
6. Robert Rogers, Jack Bate, Greg Scherting, and Amy Rogers testified that McKean assisted in the wrapping of the marijuana for transportation. (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 ...