United States v. Kroledge, Charles M. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1338, 99-1339, 99-1340 & 99-2164
United States of America,
Plaintiff-Appellee,
v.
Charles Kroledge, Kathleen Kroledge
a/k/a Kathy Kroledge, Tony L. Kroledge
and Ethel Juanita Kroledge,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 96 CR 33--James T. Moody, Judge.
Argued November 4, 1999--Decided January 7, 2000
Before Manion, Kanne and Evans, Circuit Judges.
Kanne, Circuit Judge. Charles Kroledge, his wife
Kathleen Kroledge, Charles’s brother Tony
Kroledge and Tony’s wife Ethel Juanita Kroledge
were convicted on December 1, 1997, of conspiracy
to participate in mail fraud. Ethel and Kathleen
Kroledge were also convicted of mail fraud. The
Kroledges’ convictions resulted from the family’s
attempt to defraud its insurer by filing false
claims in conjunction with a fire, allegedly set
by Charles Kroledge, that damaged Charles and
Kathleen’s home. The four were indicted on the
charge of using fire to commit a felony, but all
were acquitted.
The Kroledges do not appeal the merits of their
convictions. Instead, they contend that their
sentences were wrongly enhanced, because the
district court included the arson as relevant
conduct for purposes of enhancing each of their
offense levels, and ask us to reconsider the
standard of evidence required to include
acquitted offenses as relevant conduct for the
purpose of sentence enhancement. They also claim
that the district court erred in enhancing their
sentences for obstruction of justice. Finding no
errors, we affirm.
I. History
In May 1991, one of Charles and Kathleen
Kroledge’s children accidentally shot a hole in
the family’s television, causing it to spark.
This accident led Charles’s brother Gilbert to
joke that Charles and Kathleen, who were under
considerable financial pressure to keep up with
the mortgage payments on their house, would be
better off if the house did catch fire. These
events allegedly spawned a plan in Charles’s mind
to burn down the house and use the insurance
money to build a new house for the family.
Shortly thereafter, Charles and Kathleen sought
Gilbert and his wife Martha’s help in planning
the fire, and the four engaged in activities such
as experimenting with ways to start a fire and
packing up mementoes, photographs and records.
Charles’s brother Tony and his wife Ethel also
became involved as Charles and Kathleen stored
some of the boxes containing their possessions at
Tony and Ethel’s house.
On the morning of June 8, 1991, Charles told
Martha that he and his wife intended to set fire
to the house that night and that they would spend
the evening with Tony and Ethel at the stock car
races while the house burned. Sometime after 1:00
a.m. that night, the Hobart, Indiana fire
department responded to a fire at Charles and
Kathleen Kroledge’s home. Although members of the
Hobart Fire Department considered some of the
damage to the house suspicious and worthy of
arson investigation, the house was actually
located in the jurisdiction of the neighboring
town of Lake State, Indiana. Therefore, the Lake
Station Fire Department was responsible for the
investigation.
Lake Station’s fire investigator Ken Corbeille
who was inexperienced in arson investigation,
focused on an electrical outlet rather than on
other damage and determined that the fire was
accidental. Corbeille then left the fire scene
unattended for several hours. During this time,
Gilbert Kroledge testified at trial that he and
Tony Kroledge removed newspapers from inside the
walls and among the furniture cushions of the
couch where the fire started. These newspapers
were allegedly planted by Charles to provide
trailer for the fire.
Charles and Kathleen Kroledge declared that
their entire house and all their valuables
(including those that they had stored with Tony
and Ethel) had been destroyed by the fire. In
addition, Kathleen and Ethel Kroledge forged
false receipts for an apartment where Charles and
Kathleen were supposedly residing during the
reconstruction of their house. Ethel Kroledge
asked the owner of the apartment that Kathleen
claimed to be renting, Annette Mathews, whether
she could use Mathews’s name on insurance claim
forms and told Mathews to lie if anyone asked
whether Kathleen and Charles were living with
her. During this time, Charles, Kathleen and
their family were actually living with Tony and
Ethel Kroledge. When the fire was declared an
accident, their insurer, State Farm Insurance
Company ("State Farm"), reimbursed Charles and
Kathleen for both their loss and their living
expenses.
In October 1991, Martha and Kathleen Kroledge
had a falling out because Kathleen informed
Martha’s husband Gilbert of an affair that Martha
was having. Martha was enraged by this and told
a relative about Charles and Kathleen’s
activities. This relative contacted State Farm’s
fraud investigators, who in turn contacted the
FBI. The FBI contacted Martha, and the agency
granted Martha and Gilbert immunity from
prosecution in exchange for their cooperation in
the investigation of the fire.
In August 1993, an FBI investigator spoke with
Charles and Kathleen Kroledge about the events
surrounding the 1991 fire. Charles and Kathleen
told this investigator that they attended stock
car races that night and did not return home
until 1:00 a.m. In November 1993, the same
investigator spoke to Tony and Ethel Kroledge
about their involvement in the fire. Neither Tony
nor Ethel mentioned that Charles and Kathleen
stayed with them during the time that the
Kroledges were rebuilding their house, but the
two did verify that Charles and Kathleen had
attended stock car races with them on the night
of the fire.
During the 1993 investigation, Martha and
Gilbert Kroledge secretly tape recorded
conversations with Charles, Tony and Ethel. These
conversations implicated each of the Kroledges in
the scheme to defraud the insurer. Charles
admitted that he burned his own house down. Tony
and Ethel admitted that they had stored many of
Charles and Kathleen’s possessions for them.
On April 10, 1996, the four Kroledges--Charles,
Kathleen, Tony and Ethel--were indicted on
charges of conspiracy to commit mail fraud, mail
fraud (on three counts) and using fire or an
explosive to commit a federal felony. All four
pleaded not guilty. After the return of a
superseding indictment substituting certain
mailings for which the mail fraud allegations
would be based, trial commenced on November 17,
1997.
At trial, Charles Kroledge denied even
discussing the possibility of starting a fire at
his house. He also denied experimenting with ways
to start a fire, and he testified that he
attended stock car races on the night that the
fire occurred. Kathleen admitted that she may
have misrepresented her loss in her claim to
State Farm but testified that she and Charles did
not have financial problems. She denied lying to
a State Farm investigator who asked her where she
was living during the reconstruction of her
house. State Farm claims adjuster Bob Bradley
contradicted Kathleen’s story, claiming that
Kathleen never informed him that she was living
with Tony and Ethel. In addition, Annette Mathews
testified that Ethel told her to tell any person
who asked that the Kroledges were living in her
apartment.
Ethel Kroledge testified that she told the FBI
investigator that she had lied about where
Charles and Kathleen had lived during the
rebuilding process, but the FBI investigator
testified that she never admitted her lie prior
to her testimony before a grand jury in 1994.
Tony testified that he had no idea who lived in
his house in 1991 because he worked nights. He
also testified that Charles and Kathleen were
with Tony at the stock car races on the night
that the fire took place.
The jury found all four Kroledges guilty of
conspiracy to commit mail fraud. The jury also
found Kathleen Kroledge guilty of two counts of
mail fraud and Ethel Kroledge guilty of one
count. The jury acquitted the Kroledges of all
remaining counts, including using fire to commit
a federal felony. At sentencing, however, the
court found by a preponderance of the evidence
that the Kroledges used fire as a part of their
conspiracy to defraud State Farm, and therefore,
the court used evidence of the arson as relevant
conduct and applied this conduct to each
defendant’s sentence. This evidence of relevant
conduct led to a two-point enhancement of each
defendant’s base offense level for reckless risk
of serious bodily injury and another two-point
enhancement for more than minimal planning. In
addition, the court found that Tony, Kathleen and
Charles had each obstructed justice by providing
false testimony and lying to FBI investigators
about their role in the conspiracy. Because of
medical problems that she experienced, Ethel was
separately sentenced. At her separate sentencing,
the district court adopted the same findings
about her behavior except that the court made no
finding of perjury, and she was given a similar
sentence. Charles, Tony and Ethel Kroledge were
each sentenced to twenty-seven months
imprisonment with a three year term of supervised
release. Kathleen Kroledge was sentenced to
thirty-three months imprisonment with a three
year term of supervised release. Each of the
defendants was ordered to pay State Farm
$78,344.85 in restitution.
II. Analysis
The Kroledges challenge the enhancement of their
sentences on three grounds. First, they claim
that the district court erred in enhancing each
of their sentences for obstruction of justice.
Second, they claim that the district court lacked
sufficient evidence of arson to include it as
relevant conduct for purposes of calculating
their sentences. Third, they argue that the
district court applied the wrong evidentiary
standard in determining whether to include the
arson as relevant conduct for the purpose of
computing each of their sentences.
Both the challenge to the district court’s
enhancement to the Kroledges’ sentences for
obstruction of justice and the challenge to the
court’s inclusion of arson as relevant conduct
are determinations made for the purpose of
sentencing. We review sentence determinations for
clear error. See United States v. Gwiazdzinski,
141 F.3d 784, 788 (7th Cir. 1998). We will
reverse on clear error only if we are left with
a definite and firm conviction that a mistake has
been committed. See United States v. Garcia, 69
F.3d 810, 819 (7th Cir. 1995).
A. Obstruction of Justice
Each of the Kroledges challenges the enhancement
of his or her sentence for obstruction of
justice. Sentencing Guidelines sec. 3C1.1
authorizes a two-point enhancement for
obstruction of justice if the sentencing court
finds by a preponderance of the evidence that a
defendant "willfully obstructed or impeded . . .
the administration of justice during the course
of the investigation, prosecution, or sentencing
of the instant offense." U.S. Sentencing
Guidelines Manual sec. 3C1.1 (1997). "To
establish an obstruction of justice, the
sentencing court must make an independent factual
finding that the defendant engaged in a willful
attempt to provide false testimony." United
States v. Smith, 103 F.3d 600, 606 (7th Cir.
1996) (citation omitted). When a defendant
objects to an enhancement for obstruction of
justice, the district court must review the
evidence and make an independent determination as
to the existence of the willful obstruction of
justice. See United States v. Menting, 166 F.3d
923, 929 (7th Cir. 1999). Since the court based
its finding of obstruction against each Kroledge
on different facts, we review each finding
independently.
1. Charles Kroledge
The sentencing court based its finding of
obstruction of justice against Charles Kroledge,
among numerous other items, on his testimony that
Tony and Ethel Kroledge had no involvement in the
scheme to defraud State Farm. Charles claims that
this finding, which was based on the pre-sentence
report, was inaccurate and did not meet the
required specificity for findings of fact as to
the willfulness and materiality of Charles’s
testimony. We disagree.
Even if the district court did not explicitly
address the willful and material nature of
Charles’s testimony, we may uphold the
enhancement as long as the district court made a
finding of obstruction that "encompasses all of
the factual predicates for a finding of perjury."
United States v. Craig, 178 F.3d 891, 901 (7th
Cir. 1999) (quoting United States v. Dunnigan,
507 U.S. 87, 95 (1993)). Charles’s testimony
regarding Tony and Ethel Kroledge’s involvement
in the conspiracy speaks to the guilt of
Charles’s co-conspirators, Tony and Ethel, and is
therefore a material obstruction. See Craig, 178
F.3d at 901. Thus, to enhance Charles’s sentence
for obstruction, Charles’s inaccurate testimony
must have been made willfully, rather than as a
result of mistake, faulty memory or confusion.
See Craig, 178 F.3d at 901. An enhancement
authorized by sec. 3C1.1 may employ a defendant’s
perjurious testimony, but we construe the
Guidelines in such a way as to avoid punishing
defendants for exercising their right to testify.
See Dunnigan, 507 U.S. at 96; United States v.
Emerson, 128 F.3d 557, 563 (7th Cir. 1997). In
this instance, we find that the court correctly
met this standard by focusing on elements of
Charles’s testimony that did not reflect directly
on his own guilt or innocence.
Charles testified that no one, including Tony,
entered the house after the arson investigator
left the premises. This statement seems to have
been made with the intent to show that his
brother Tony had no participation in his scheme.
However, Gilbert Kroledge testified that he and
Tony Kroledge entered Charles’s house after the
arson investigator left and removed newspaper
from the couch and walls. Rather than claiming
that his statements at trial were mistaken or the
result of confusion, he still claims that his
statements do not suggest that Tony and Ethel
were not involved in the case. Because his
statements were made to exculpate his family, we
find no error in the court’s determination that
Charles’s testimony formed the basis for a
finding of obstruction.
2. Kathleen Kroledge
The district court based its finding of
obstruction against Kathleen Kroledge on her
testimony that Tony and Ethel Kroledge were not
involved in the conspiracy. The court found that
she obstructed justice both by her trial
testimony and by pretrial statements that she
made to investigators. In her opening statement,
Kathleen Kroledge confessed lying to
investigators when she and Charles misrepresented
their living expenses to State Farm. She now
claims that her earlier false statements were
immaterial and the finding that she perjured
herself at trial was inaccurate.
Kathleen Kroledge testified at trial that she
told State Farm’s claim adjuster that she was
staying with Tony and Ethel, rather than at an
apartment as she had claimed. She also testified
that she was often away from Tony and Ethel’s
house, so Tony might not have been aware that she
and Charles were living there. State Farm’s claim
adjuster Bob Bradley testified that Kathleen
never informed him that Charles and Kathleen’s
family were residing with Tony and Ethel after
the fire. In addition, Tony Kroledge testified
that he told FBI investigators that he knew
Charles and Kathleen Kroledge were living with
his family while they rebuilt their house.
Kathleen Kroledge’s testimony contradicts
statements that she made to State Farm and to the
FBI prior to trial and contradicts itself in
several places. Given the testimony of the
government’s witnesses at trial, we find that the
trial court had sufficient evidence to conclude
that the statements by Kathleen about Tony’s
knowledge of her family’s presence in their home,
as well as many other contradictory statements,
constituted an attempt to obstruct justice, and
we will not second guess the district court on
such questions of credibility. Kathleen’s
statements were material, as they would tend to
influence the decisionmaking body to which they
were addressed. See United States v. Wells, 519
U.S. 482, 483 (1997). Therefore, we find that the
district court’s finding was accurate on the
ground of her perjurious testimony and that its
enhancement must be upheld without regard to the
materiality of her earlier false statements.
3. Tony Kroledge
The district court enhanced Tony Kroledge’s
sentence because he provided an alibi for his
brother and sister-in-law. Tony Kroledge argues
that this finding was in error because any
misstatements that he made to investigators
occurred early in the investigation and were
therefore immaterial. Application Note 6 to
Sentencing Guidelines sec. 3C1.1 defines
materiality as "evidence . . . that, if believed,
would tend to influence or affect the issue under
determination." U.S. Sentencing Guidelines Manual
sec. 3C1.1 application note 6. Although
misstatements made to investigators that do not
force investigators to expend additional
resources are not material, see United States v.
Barnett, 939 F.2d 405, 407 (7th Cir. 1991),
pretrial statements that significantly obstruct
or impede an investigation are material and may
serve as the basis for an enhancement. See id.
Tony Kroledge provided an alibi for his brother
and sister-in-law by testifying that the two
accompanied him to the stock car races on the
night of the fire. Further, he corroborated
Charles’s claim that Charles and Kathleen
followed him home that night and did not find out
about the fire until after 1:00 a.m. However, his
own testimony and the testimony of some
government witnesses suggest discrepancies in his
story. Gilbert and Martha Kroledge both testified
that they saw Charles and Kathleen Kroledge
driving in the direction of the races on the
night of the fire at an hour when Tony testified
they were already with him. Tony Kroledge
testified that it generally took thirty-five to
forty minutes to return to his home from the
races, yet he testified that on the night of the
fire it took the Kroledges well over an hour to
return home. In addition, Tony Kroledge testified
on direct examination that he told the FBI
investigator that Charles and Kathleen lived with
him during the rebuilding of their home, but he
also testified that he did not know at the time
that they were living with him. Under cross-
examination, Tony Kroledge admitted that he never
told anyone that Charles and Kathleen lived with
him until he testified so under oath before the
grand jury.
On appeal, Tony Kroledge explains, through
counsel, that these statements were mistakes made
by a simple man confused by the proceedings who
was attempting only to protect his family.
However, the district court found instead that
these statements were made willfully in an
attempt to obstruct justice. We review such
findings of credibility with great deference and
will not reverse unless we find clear error. See
United States v. Hall, 101 F.3d 1174, 1179 (7th
Cir. 1996). As such, the obstruction enhancement
to Tony Kroledge’s sentence will remain
undisturbed.
4. Ethel Kroledge
The district court enhanced Ethel Kroledge’s
sentence for obstruction of justice, but, unlike
her co-defendants, the court based its
enhancement on Ethel Kroledge’s pretrial conduct
rather than her testimony. On appeal, Ethel
Kroledge argues that her pretrial conduct did not
significantly impede the government’s
investigation into the fire and, therefore, was
not material for the purposes of enhancing her
sentence for obstruction.
In its finding that Ethel Kroledge obstructed
justice, the court adopted the finding of fact
contained in the pre-sentencing report that Ethel
Kroledge had obstructed justice by attempting to
influence the testimony of a witness. Ethel
Kroledge admitted in her testimony that she told
FBI investigators that Charles and Kathleen lived
with Annette Mathews during the period when their
house was being rebuilt. Annette Mathews
testified that Ethel Kroledge asked her to lie to
the FBI and State Farm investigators and claim
that Charles and Martha lived in their basement
apartment during that period. Ethel Kroledge
admitted that she asked Annette Mathews whether
she could use her name on receipts that the
Kroledges presented to State Farm.
The presented testimony dispels any argument
that Ethel Kroledge did not obstruct justice in
an attempt to protect her brother and sister-in-
law. However, she claims that her misstatements
were not material because she later corrected
them by telling the truth to FBI investigators.
To determine the materiality of her conduct, we
must review whether the district court correctly
found that Ethel Kroledge’s actions significantly
impeded the investigation of the Kroledges’
conduct. See Barnett, 939 F.2d at 407. In
Barnett, we refused to uphold an enhancement for
obstruction of justice based on a defendant’s
pretrial conduct when the defendant’s only
pretrial misstatement was that he denied
committing the offenses about which he was
questioned. See id.; see also United States v.
Wells, 154 F.3d 412, 414 (7th Cir. 1998) (stating
that obstruction of justice that "has no
consequence . . . is not a permissible basis" for
enhancement).
In this case, however, Ethel Kroledge’s
misstatements went well beyond a mere declaration
of innocence. Instead, Ethel Kroledge concocted
a false set of facts that led investigators
toward a witness whom she had attempted to
influence. As in Wells, Ethel Kroledge attempted
to lead investigators on a "wild goose chase" in
order to obscure evidence of her own criminal
conduct. However, in this instance, unlike Wells,
the evidence that Ethel Kroledge would obscure
was not merely ancillary to questions of her (and
her family’s) guilt; the activities she concealed
were exactly those which led to Kathleen
Kroledge’s and her own convictions for mail
fraud. In circumstances such as these, we have
found that such behavior was material, see United
States v. Taylor, 135 F.3d 478, 483-84 (7th Cir.
1998), and we have no question that Ethel
Kroledge’s behavior significantly impeded the
instant investigation. As such, her behavior was
material for the purpose of determining whether
her sentence should be enhanced for obstruction,
and we will uphold the district court’s
enhancement of her sentence.
B. Use of Arson as Relevant Conduct
The Kroledges also argue that the district
court erred when it found by a preponderance of
the evidence that they had committed arson and
that this arson could be used as relevant conduct
for the purpose of computing their sentence. They
argue that the district court lacked sufficient
evidence to determine by a preponderance of the
evidence that they committed arson, and in the
alternative, they argue that under these
circumstances the more rigorous "clear and
convincing evidence" standard should have been
applied instead of the "preponderance of the
evidence" standard.
All four Kroledges were acquitted of the
federal crime of arson--using fire in the
furtherance of a federal felony. However, the
district court determined, for the purposes of
sentencing, that a preponderance of the evidence
indicated that the Kroledges had committed arson,
and the court decided to use the acquitted
offense of arson as relevant conduct for the
computation of their sentences. In United States
v. Watts, 519 U.S. 148, 149 (1997), the Supreme
Court held that acquitted offenses may be used as
relevant conduct for the purposes of computing a
defendant’s sentence. The decision in Watts
confirmed our own prior precedent, see United
States v. Fonner, 920 F.2d 1330, 1332 (7th Cir.
1990), which allowed such conduct to be taken
into account. See Watts, 519 U.S. at 149.
Sentencing judges may use all information that
they possess in order to properly compute their
sentence. See 18 U.S.C. sec. 3661 ("No limitation
shall be placed on the information concerning the
background, character, and conduct of a person .
. . for the purpose of imposing an appropriate
sentence."). Because the relevant burden at
sentencing is the "preponderance of the
evidence," we allow evidence of acquitted conduct
to be considered as long as the government has
met the burden of proving by a preponderance of
the evidence that defendants have engaged in the
relevant conduct, see United States v. Porter, 23
F.3d 1274, 1277-78 (7th Cir. 1994), rather than
applying the more stringent standard "beyond a
reasonable doubt" required to convict a
defendant. See Fonner, 920 F.2d at 1333. Thus, we
will uphold the sentences imposed by the district
court whenever we determine that the government
at trial met the applicable standard for proving
that the defendants have engaged in the relevant
conduct even if they were acquitted at trial
under the stricter standard.
1. Relevant Burden of Proof
We have held that a preponderance of the
evidence is all that is required under the
Sentencing Guidelines for a finding of fact. See,
e.g., Porter, 23 F.3d at 1277. Despite our clear
precedent, the Kroledges urge us to consider the
argument that a heightened standard of proof must
be met under some instances "where a factual
finding will result in a sentencing increase so
great ’that the sentencing hearing can fairly be
characterized as a tail which wags the dog of the
substantive offense.’" United States v. Corbin,
998 F.2d 1377, 1387 (7th Cir. 1993) (citations
omitted). In support, the Kroledges cite United
States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir.
1990), in which the Third Circuit required the
higher standard of proof in a case where the
sentencing court raised the defendant’s sentence
from about thirty months to thirty years.
In Corbin, we acknowledged the possibility that
a higher standard might be appropriate in those
circumstances where the government appeared to
use the sentencing hearing to retry the
substantive offense. In such circumstances, the
district court might use its discretion to depart
from the Sentencing Guidelines in such a way as
to effectively sentence a defendant to the term
that would have been appropriate had she been
convicted of the substantive offense. As we noted
in United States v. Rodriguez, 67 F.3d 1312, 1322
(7th Cir. 1995), we have not yet been presented
with an opportunity to consider whether, under a
certain set of facts, such a heightened standard
of proof may be appropriate. We are confident
that these facts do not merit the imposition of
the clear and convincing evidence standard.
Here, the Kroledges were each acquitted of the
charge of use of fire in the furtherance of a
federal felony, pursuant to 18 U.S.C. sec.
844(i), which provides that any person who
"maliciously damages or destroys . . . by means
of fire or an explosive, any building, vehicle,
or other real or personal property . . . shall be
imprisoned for not less than 5 years and not more
than 20 years." Thus, if the Kroledges had been
convicted of the federal arson charge, they would
each serve between five and twenty years.
Instead, by enhancing their sentences based on
the relevant conduct of arson, each Kroledge is
serving either twenty-seven or thirty-three
months, which is roughly half of the minimum
sentence that they would have received for the
arson charge. As we noted in Porter, see 23 F.3d
at 1277-78, we have in many instances refused to
adopt the Kikumura standard in cases where the
sentence enhancement was more drastic than the
enhancement at issue here. See Rodriguez, 67 F.3d
at 1323 (51-63 months enhanced to life
imprisonment); Porter, 23 F.3d at 1276 (92-115
months enhanced to 137 months); United States v.
Masters, 978 F.2d 281, 283-85 (7th Cir. 1992)
(33-41 months enhanced to 40 years). Contrasting
these cases with the facts of Kikumura, we find
that this does not qualify as a rare instance
where a higher standard might be justified.
2. Sufficiency of the Evidence
The Kroledges also argue that, even under the
preponderance of the evidence standard, the
sentencing court lacked sufficient evidence of
the arson to include it as relevant conduct for
the purpose of enhancing their sentences. Because
there is ample evidence available in the record
on which to base a finding of arson, we
understand this claim actually to imply that the
district court committed clear error by believing
the government’s witnesses and disbelieving the
Kroledges’ witnesses.
Determinations of credibility by the sentencing
judge are entitled to great deference on review.
See United States v. Anaya, 32 F.3d 308, 314 (7th
Cir. 1994). When confronted with conflicting
testimony, sentencing judges "are fully capable
of considering the motivations of witnesses in
weighing conflicting evidence and, because they
have had an opportunity to assess the demeanor of
the witnesses, are in a better position than this
court to make credibility determinations." United
States v. Griffin, 115 F.3d 1322, 1331 (7th Cir.
1997). For this reason, when a defendant asks
only that we reassess a credibility
determination, the argument is "wasted on an
appellate court," United States v. House, 110
F.3d 1281, 1286 (7th Cir. 1997) (citation
omitted), unless a challenged witness’s testimony
is shown to be inconsistent with contemporary
documents or impossible. See, e.g., United States
v. Grandinetti, 891 F.2d 1302, 1307 (7th Cir.
1989).
In this case, the Kroledges do not challenge
any evidence presented by the government.
Instead, they argue that the government’s
evidence should not outweigh the evidence that
the Kroledges presented. The government’s
evidence of arson included testimony of at least
three witnesses, each of whom told a consistent
story, as well as such physical evidence as
Charles and Kathleen Kroledge’s possessions pre-
dating the fire, which had been stored with their
family to preserve them, and the tape recordings
made by Gilbert Kroledge, which capture
admissions made by the Kroledges about the nature
of the fire. We consider this evidence sufficient
to support the district court’s determination.
III. Conclusion
We find that the sentencing court correctly
enhanced Charles, Kathleen, Tony and Ethel
Kroledge’s sentences for obstruction of justice.
In addition, we find that the district court’s
decision to include the arson that the Kroledges
were accused of committing as relevant conduct
for the purpose of computing their sentences was
correctly based on a preponderance of the
evidence. Therefore, we AFFIRM the decisions of the
district court.