United States v. McGiffen, Dennis M.

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-3400, 98-4218, 99-3797
United States of America,
Plaintiff-Appellee,
v.
Dennis M. McGiffen/* and Wallace S.
Weicherding,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Illinois.
Nos. 98 CR 30035 & 98 CR 30053--Paul E. Riley, Judge.
Argued October 30, 2000--Decided September 21, 2001
Before Ripple, Evans, and Diane P. Wood,
Circuit Judges.
Diane P. Wood, Circuit Judge. Dennis
McGiffen and Wallace Weicherding were
members of a group of white supremacists
in southern Illinois. After a lengthy
undercover investigation by the FBI into
the group’s activities, McGiffen,
Weicherding, and two co-conspirators,
Ralph Bock and Glenn Lowtharp, were
charged in a one-count indictment with
conspiracy to receive and possess
unregistered firearms and destructive
devices in violation of 18 U.S.C. sec.
371. McGiffen was also charged in a
separate one-count information with
possession of a machine gun in violation
of 18 U.S.C. sec. 922(o). He pleaded
guilty to both charges and received
concurrent sentences of 60 and 87 months;
his appeal is limited to sentencing
issues. Weicherding ultimately faced both
the conspiracy charge and the machine gun
charge under a two-count superseding
indictment. He went to trial, where the
jury convicted him on both counts; the
court sentenced him to concurrent 60- and
70-month sentences. Weicherding’s appeal
attacks both his conviction and his
sentence. We affirm in McGiffen’s case,
and we affirm Weicherding’s conviction,
but we remand for further proceedings
directed to Weicherding’s sentence.
I
The following account is drawn from the
record in both cases, including
Weicherding’s jury trial; we view the
facts in the light most favorable to the
government. United States v. Wingate, 128
F.3d 1157, 1158 (7th Cir. 1997). In May
of 1997, Vincent Reed contacted the FBI
to report that some of his acquaintances,
including McGiffen and Weicherding, were
forming a new, potentially dangerous,
white supremacist group in southern
Illinois. According to Reed, the group
hoped to pick up where "The Order" (a
notoriously violent white supremacist
organization active in the early 1980s)
had left off, uniting white supremacist
groups in a violent struggle against
those who would resist the creation of a
"pure white Christian country." This new
group called itself, appropriately
enough, the "New Order."
The FBI enlisted Reed as a paid
informant charged with infiltrating the
emerging New Order. Through Reed’s
surveillance, the FBI learned that
McGiffen, already a Grand Dragon in the
Illinois Ku Klux Klan (KKK), was the
group’s leader. McGiffen worked hard to
build the new organization. He recruited
and "naturalized" new members (a ritual
that included swearing an oath and
acquiring a distinctive tattoo) and
regularly used both persuasion and force
to maintain members’ allegiance to the
group. He organized and ran the meetings
at which members made plans to acquire
the money and weaponry they would need to
pursue the New Order’s militant racist
agenda. Last, McGiffen parceled out tasks
to the group’s various members.
The New Order intended to raise money by
robbing banks and armored cars. With
those funds, it would then acquire a
stockpile of firearms and explosives. The
group was particularly interested in
building a supply of fully-automatic
weapons, which were valuable both for
their destructive capabilities and as a
source of revenue. McGiffen instructed
Weicherding, a member of both the Aryan
Nations and the KKK, to conduct
surveillance on armored trucks and banks.
Reed was assigned to get false
identification for New Order members, and
McGiffen gave himself and Bock the task
of coordinating the acquisition of
weapons and explosives.
Weicherding did as he was told. He cased
banks and discussed with Reed the
specifics of carrying out the first
robbery. He also joined McGiffen in the
weapons acquisition effort. By June 20,
1997, they had purchased a TEC-9 pistol
and gunpowder for use in homemade
grenades. On August 28, 1997,
Weicherding, Reed, and McGiffen drove
together to the home of Ralph Bock to
acquire additional firearms. While in the
car, they discussed the fact that they
were now in possession of a LAWS Rocket
(supplied by Reed after it was disabled
by the FBI) and dynamite. During
thatconversation they also discussed
their plans to convert semi-automatic
weapons into fully-automatic weapons with
the help of Glen Lowtharp, a white
supremacist ally with expertise in such
things.
On November 8, 1997, Weicherding and
McGiffen went to visit Lowtharp, bringing
with them two weapons they wanted to
convert from semi- to fully-automatic.
The three men then proceeded to
Lowtharp’s sister’s house to pick up the
parts they needed to complete the
conversions and then to his nephew’s
place to get an AR-15 assault rifle. The
next morning, McGiffen and Lowtharp
converted the AR-15 rifle to a fully-
automatic weapon, using a machine gun
hammer, a machine gun trigger, a machine
gun disconnector, and a machine gun
selector. Weicherding, who had received
weapons training during a stint as a
prison guard for the Illinois Department
of Corrections, watched as the others
worked. In tests later conducted by a
government expert, the AR-15 fired
multiple rounds from its clip with a
single pull of the trigger.
With the converted AR-15 in hand,
McGiffen and Weicherding left Lowtharp’s
house with the other two guns they had
brought along; they told Lowtharp they
planned to use the AR-15 as a model for
converting other firearms to "full auto."
They also left with "how to" literature
about weapons conversion, which
specifically warned that "the mere
possession of a part or parts which
convert a weapon to full auto is illegal
without prior [Federal Bureau of Alcohol,
Tobacco, and Firearms, or BATF]
approval." Later, Weicherding again
approached Lowtharp to see if he had
acquired any additional machine gun parts
the group could use for further
conversions.
As the New Order’s weapons acquisition
activities progressed, its ambitions
grew. Members discussed possible assaults
on Morris Dees and the Southern Poverty
Law Center, Federal Reserve Chairman Alan
Greenspan, and a host of other targets.
They discussed expanding their
organization nationwide and disabling the
country’s communications infrastructure.
At the same time, the growing stockpile
of weapons increased McGiffen’s concern
that law enforcement authorities might
get wind of the group’s activities. At a
meeting at his house, group members,
including Weicherding and Reed, were
strip-searched for wires, and McGiffen
proposed that future telephone
conversations be conducted in code--the
word "bibles," for example, became code
for automatic weapons. Anxiety grew to
the point that when McGiffen learned that
New Order member Jeff Schmitz told his
mother about the group’s plans, he stuck
a gun to Schmitz’s stomach and threatened
to kill him and his children if he opened
his mouth again.
During January and February of 1998,
McGiffen, Weicherding, and other members
of the New Order began in earnest to plan
their first violent act: the destruction
of Morris Dees and the Southern Poverty
Law Center. Weicherding took a trip to
Atlanta to assess the vulnerability of
the center itself and, more ominously,
five days after discussing the
possibility of assassinating Dees, he
took a revolver and drove an hour to
attend a speech by Dees at Southern
Illinois University in Evansville.
According to government agents on the
scene, Weicherding entered the hall, got
in line, but then left after noticing
that all guests were required to pass
through a metal detector. Weicherding
claimed at trial that he left the weapon
in his car.
On February 23, 1998, the FBI obtained
search warrants for five sites, including
Weicherding’s residence. That search
produced substantial evidence of
Weicherding’s association with both the
Aryan Nations and the KKK, as well as a
TEC-9 and a MAC-11 semi-automatic
revolver. The FBI also found and seized
$12,238 in cash.
A search of Bock’s house yielded a gas
grenade launcher, a semi-automatic rifle,
literature on converting the rifle to
fully-automatic, and all the necessary
components for a pipe bomb. The search of
McGiffen’s house yielded similar
evidence. He had literature illustrating
the weapons conversion process and a
brochure advertising various parts needed
to convert AR-15s to fully-automatic
rifles. That brochure specifically warned
"to get the ATF’s approval before
concluding your conversion." The agents
also caughtMcGiffen himself with the gun
that Weicherding took to the Dees lecture
and an illegal Street Sweeper 12-gauge
shotgun. The FBI’s search of McGiffen’s
mother’s home turned up another TEC-9, a
pipe bomb, five steel hand grenade hulls,
a tear gas grenade, the original
converted AR-15 rifle, the LAWS Rocket,
and a sawed-off bolt action shotgun.
After the searches, both Weicherding and
McGiffen were arrested, along with Bock
and Lowtharp.
After initially pleading not guilty,
McGiffen entered into a written plea
agreement with the government and changed
his plea to guilty. The court concluded
that his offense level was a 26, which
included a four-level enhancement for use
or possession of a weapon in connection
with another felony, U.S.S.G. sec.
2K2.1(b)(5), and another four-level
enhancement under sec. 3B1.1(a) for being
a leader or organizer of the weapons
conspiracy. McGiffen appeals these two
enhancements.
Weicherding chose to go to trial. Before
trial, the government persuaded the
district court to require that the
$12,238 seized from Weicherding’s home be
put toward his defense. Once at trial,
Weicherding sought to paint the
government’s evidence as proving only
that a small group of white supremacists
spent the better part of 1997 and early
1998 drunk and bragging about all the
things they were going to do on behalf of
the white race. Weicherding denied
knowing that the AR-15 machine gun was
converted, attributing his ignorance to
having been drunk or absent on all
relevant occasions. The jury rejected the
inebriation and uninvolvement stories and
convicted him on both counts. On appeal,
he argues that there was not enough
evidence to convict him of knowingly
possessing an illegal machine gun. He
also argues that the district court had
no basis for requiring the $12,238 to be
devoted to his defense, and that the
court erred when it enhanced his
sentencing offense level for obstruction
of justice, under U.S.S.G. sec. 3C1.1.
We will take the defendants and their
claims in turn.
II
A. McGiffen
1. The sec. 2K2.1(b)(5) Enhancement
Over McGiffen’s objection, the district
court increased his sentence by four
levels after concluding that he "used or
possessed a[ ] firearm . . . in
connection with another felony offense;
or possessed . . . a[ ] firearm . . .
with knowledge, intent, or reason to
believe that it would be used or
possessed in connection with another
felony offense." U.S.S.G. sec.
2K2.1(b)(5). The court adopted the
presentence report’s factual finding that
members of the conspiracy intended to use
the converted AR-15 rifle as a prototype
to convert other weapons and to sell
converted weapons to other groups and
that the AR-15 was part of a stockpile
intended for use in "planned acts of
violence which included felony offenses."
McGiffen does not dispute the district
court’s interpretation of the sentencing
guidelines. Instead, he objects to the
court’s factual conclusions. He has
chosen a difficult path. We will not
disturb the district court’s factual
determinations at sentencing unless they
are clearly erroneous. United States v.
Craig, 178 F.3d 891, 900 (7th Cir. 1999).
As evidence of clear error, McGiffen
points to the district court’s conclusion
that the government did not prove that
the New Order was an "iron clad"
organization "bent upon destruction of
black citizens" or that "steps were taken
to implement [ ] hits" against targets
like the Southern Poverty Law Center.
McGiffen believes that this conclusion is
inconsistent with the factual findings in
the presentence report and that adopting
the presentence report’s recommendation
was thus clearly erroneous.
Before we could even consider McGiffen’s
argument, however, we would have to
conclude that the presentence report
contains the kind of flat contradiction
he describes. If it did, then we would
have to decide how much more of the
report the alleged contradiction tainted.
But the latter inquiry is not necessary
here because we find that the two
findings McGiffen identifies are not
mutually exclusive. The presentence
report concluded only that McGiffen
possessed the converted AR-15 and other
weapons with the intent to use them in
connection with other "planned . . .
felony offenses." It did not go on to
identify an exclusive list of what the
district court called "specific hits
against enemy targets," and thus the
district court’s conclusion that the New
Order did not attempt to carry out such
hits does not create any tension with the
rest of the report. Furthermore, there is
a difference between having an intent to
use weapons to commit other planned
felonies and carrying out the specific
planning and implementation process. (We
note that the government concedes that it
would have been error to enhance
McGiffen’s sentence under sec.
2K2.1(b)(5) if the only other felonies
relied on by the district court were the
weapons possession and trafficking
offenses mentioned in the presentence
report, see sec. 2K2.1 comment 18, but as
we now explain, the court had different
felonies in mind.)
There is ample evidence, for example,
that McGiffen and his co-conspirators
planned to use their weapons to rob
banks. Whether their ultimate goal was to
fund a race war with the proceeds (and in
the course of doing so to commit yet
other felonies) is beside the point: bank
robbery is obviously a felony offense.
The district court recognized this when
it rejected McGiffen’s objection at
sentencing that Weicherding "never
planned any bank robberies and at most
drove by a bank . . . and mentioned it
would be easy to rob." The district court
was not prepared to find that the New
Order was planning a race war, but it did
conclude that there was sufficient
evidence that the group of co-
conspirators planned to rob banks, and
that conclusion was not clearly
erroneous. Similarly, the district court
concluded that the government proved by a
preponderance of the evidence that
McGiffen threatened an unindicted co-
conspirator, Jeffrey Schmitz, by placing
a weapon to his stomach and threatening
to kill him. Like the plan to rob banks,
this assault was sufficient to provide a
factual basis for a sec. 2K2.1(b)(5)
enhancement.
We are therefore satisfied that the
district court did not clearly err when
it concluded that the factual basis
existed for the enhancement for
McGiffen’s possessing a firearm in
connection with another actual or
intended felony.
2. Organizer or Leader Enhancement
The sentencing guidelines call for a
four-level enhancement if the defendant
was an "organizer or leader of a criminal
activity that involved five or more
participants or was otherwise extensive."
U.S.S.G. sec. 3B1.1. The district court
applied this enhancement to McGiffen’s
sentence after explaining that while
there did not appear to be an "iron clad
New Order . . . there was a group of
people" (fifteen of whom the judge named)
involved in the conspiracy to acquire
illegal weapons, some of whom he
acknowledged were more involved than
others. With respect to McGiffen’s level
of involvement, the court adopted the
presentence report’s finding that
McGiffen "recruited members and
associates, assigned tasks to the group
members, planned and organized the
acquisition and storage of weapons, . . .
scheduled all meetings and exercised
control and authority over other members
of the group."
McGiffen again challenges the district
court’s factual conclusions as clearly
erroneous. He believes the court applied
the enhancement on the basis of
McGiffen’s role in the alleged New Order
plot to start a race war, in spite of the
fact that it found that the government
had failed to prove the existence of an
"iron clad New Order." He contends that
when the factors to be considered in
applying the leader/ organizer
enhancement, including exercise of
decisionmaking authority, recruitment of
accomplices, and degree of planning or
organizing the offense, are considered in
relation to the crimes proven--the
conspiracy to acquire and possess illegal
weapons--it is evident that "McGiffen was
a member and nothing more."
The record belies McGiffen’s effort to
downplay his role. First, it is quite
clear that the district court applied the
sec. 3B1.1 enhancement on the basis of
McGiffen’s role in the conspiracy to
acquire illegal weapons and to use the
group’s arsenal to raise money and to
facilitate other criminal activity. As
before, the district court’s finding that
the group did not also attempt to carry
out actual attacks on "enemy targets" is
of no particular relevance. There is
ample evidence in the record to support
the conclusion that McGiffen was the
central figure in this conspiracy. He
recruited and inducted members into the
group that conspired to acquire the
weapons; he organized and ran the
meetings at which the plans for acquiring
the weapons were hatched; and he directed
the members’ activities with respect to
acquiring and disposing of the weapons.
McGiffen also took responsibility for
enforcing allegiance to the conspiracy,
going so far as to threaten to kill
persons who leaked information about the
group’s criminal activity. The district
court’s finding that McGiffen was a
leader of the conspiracy, and its
consequent decision to apply the sec.
3B1.1 enhancement, were not clearly
erroneous.
B. Weicherding
1. Monetary Contribution Toward Defense
Following his arrest, Weicherding
completed a financial affidavit in which
he listed his assets as $30,500,
including $22,000 in cash and two cars
valued together at $8,500. He reported a
monthly social security check of $738,
the bulk of which ($700 per month) went
toward credit card debts totaling
$20,000. Relying on this report, a
magistrate judge found Weicherding unable
to pay for his own defense and appointed
counsel from the Federal Public Defender
(FPD).
Several weeks later, the government
filed a motion with the district court
under 18 U.S.C. sec. 3006A(f), requesting
that the $12,238 seized during the search
of Weicherding’s home (apparently part of
the $22,000 in cash he listed in his
affidavit) be given to the FPD to help
fund his defense. The government reasoned
that this case would be unusually costly
for the FPD and asserted, without
explanation, that Weicherding was
financially able to make the
contribution. Weicherding (through his
FPD counsel) responded that requiring him
to contribute the funds would impose a
substantial hardship given his debts and
the fact that if incarcerated he would no
longer receive social security benefits.
Without holding an evidentiary hearing,
the district court issued a brief order
granting the government’s motion. The
order offered no explanation for the
decision other than that it was
"reasonable" to require the contribution
under sec. 3006A(f). Weicherding contends
that this decision was an abuse of
discretion. See United States v. Hoover,
175 F.3d 564, 569 (7th Cir. 1999)
(requiring contribution is within the
discretion of the district court). We
agree.
Section 3006A(f) provides in relevant
part:
Whenever the United States magistrate or
the court finds that funds are available
for payment from or on behalf of a person
furnished representation, it may
authorize or direct that such funds be
paid to the appointed attorney . . . or
community defender organization which
provided the appointed attorney. . . .
We construed this statutory provision in
United States v. Gurtunca, 836 F.2d 283,
288 (7th Cir. 1987). Gurtunca rejected
the government’s argument that a district
court could require the defendant to
contribute funds under sec. 3006A(f)
without a hearing, or without making
appropriate findings that the funds were
"available" within the meaning of the
statute. More recently, United States v.
Embry, 128 F.3d 584 (7th Cir. 1997),
clarified that a formal evidentiary
hearing may not always be necessary, but
Embry did not disturb Gurtunca’s
requirement that a district court make
appropriate findings of availability. To
the contrary, it indicated the kind of
findings that are necessary, such as
whether requiring the contribution would
impose an extreme hardship on the
defendant, whether it would interfere
with his obligations to his family, and
whether there were third parties with
valid claims to the funds. In Embry
itself, the district court’s order
revealed that it had considered each of
these factors and found, within its
discretion, that Embry’s funds were
"available." This, we found, was enough.
Id. at 586. Our sister circuits similarly
require that there be evidence that the
district court made specific inquiries
into the defendant’s financial
circumstances and obligations. See
Museitef v. United States, 131 F.3d 714,
716 (8th Cir. 1997) (court must inquire
into personal family needs and liquidity
of finances); United States v. Fraza, 106
F.3d 1050, 1056 (1st Cir. 1997)
(remanding for hearing or findings as to
defendant’s financial ability).
The district court in this case neither
held an evidentiary hearing nor made
findings along the lines suggested by
Embry. There is nothing in the record to
confirm that the court understood the
factors it needed to consider, or applied
those factors to the evidence before it.
Under the circumstances, we are unable to
determine how, if at all, the district
court exercised its discretion in
choosing to require Weicherding to
contribute the $12,238 to his defense.
This issue must therefore be remanded to
the district court for further
consideration.
2. Possession of a Machine Gun
Count 2 of the superseding indictment
against Weicherding charged him with
illegal possession of a machine gun in
violation of 18 U.S.C. sec. 922(o)(1).
Weicherding contends the government
presented insufficient evidence at trial
to support the conviction. When
considering a challenge on direct appeal
to the sufficiency of the evidence to
sustain a conviction, we must determine
"whether, after viewing the evidence in
the light most favorable to the
prosecution, any rational trier of fact
could have found the essential elements
of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319
(1979).
We begin with the language of sec.
922(o)(1), which provides as follows:
(1) Except as provided in paragraph (2),
it shall be unlawful for any person to
transfer or possess a machine gun.
(2) This subsection does not apply with
respect to--
(A) a transfer to or by, or possession by
or under the authority of, the United
States or any department or agency
thereof or a State, or a department,
agency, or political subdivision thereof;
or
(B) any lawful transfer or lawful
possession of a machine gun that was
lawfully possessed before the date this
subsection takes effect.
For purposes of this statute, a machine
gun is defined broadly as "any weapon
which shoots, is designed to shoot, or
can be readily restored to shoot,
automatically more than one shot, without
manual reloading, by a single function of
the trigger." 26 U.S.C. sec. 5845(b). The
term also includes "any part designed and
intended solely and exclusively, or
combination of parts designed and
intended, for use in converting a weapon
into a machine gun, and any combination
of parts from which a machine gun can be
assembled." Id.
One element that the government must
prove in order to obtain a conviction
under sec. 922(o)(1) is the defendant’s
knowledge: specifically, the government
must show that the defendant knew that
the weapon had the characteristics that
bring it within the statutory definition
of a machine gun. See United States v.
Ross, 40 F.3d 144, 146 (7th Cir. 1994)
(defining the mens rea for earlier
statutory version of sec. 922(o)); 18
U.S.C. sec. 924(a)(2) (requiring
"knowing" violation of section 922(o)).
This is the point at which Weicherding
asserts the government’s proof failed.
Weicherding argues that no reasonable
jury could have concluded that he
knowingly possessed a machine gun when he
and McGiffen took possession of the
converted AR-15 assault rifle from
Lowtharp. He points to testimony at trial
that a layperson looking at the modified
AR-15 would not necessarily know it was a
fully-automatic weapon, and he claims
that Lowtharp testified at trial that,
following the conversion, he thought the
gun would fire only in semi-automatic
mode.
But the jury did not need to find that
a random layperson knew that the AR-15
was a machine gun; it was asked whether
Weicherding knew. As to that question,
the record easily supports the jury’s
affirmative conclusion. The government
presented evidence at trial that
Weicherding and McGiffen repeatedly
discussed converting weapons to fully-
automatic; that Weicherding accompanied
Lowtharp and McGiffen to pick up the AR-
15; that Weicherding watched as Lowtharp
and McGiffen added machine gun parts to
the weapon; and that Weicherding and
McGiffen left Lowtharp’s residence with
the converted AR-15 and literature on
converting other weapons to fully-
automatic. This was more than enough to
permit the jury to conclude that
Weicherding knew the AR-15 had been
redesigned to function as a machine gun.
With respect to Lowtharp’s testimony, it
is true that he said that at the time he
gave Weicherding and McGiffen the
converted AR-15 he believed that an
additional spring was necessary to make
the machine gun operable. (He later
realized that he was wrong; consistent
with the government’s expert testimony at
trial that the weapon was fully-
automatic, the absence of the spring
merely meant that once the trigger was
pulled, the magazine would empty even if
the shooter released the trigger.) Even
assuming that the jury believed Lowtharp
on this point and that it further
believed that Lowtharp shared this
erroneous view with Weicherding, the fact
that Weicherding may have thought that an
additional spring was necessary to make
the AR-15 operational as a machine gun
does not preclude conviction under sec.
922(o). There was sufficient evidence
that Weicherding knew that the modified
AR-15 contained "a combination of parts
designed and intended, for use in
converting a weapon into a machine gun"
and that the modified AR-15, even if not
fully operational, was now "designed to
shoot" in fully-automatic mode and could
readily be adjusted to do so. Given the
broad statutory definition of machine
gun, there was sufficient evidence to
convict Weicherding under sec. 922(o).
See United States v. Pena-Lora, 225 F.3d
17, 33 (1st Cir. 2000) (inoperable
machine gun sufficient to support
conviction); United States v. Buggs, 904
F.2d 1070, 1075 (7th Cir. 1990)
(conviction upheld because inoperable
weapon was "designed to shoot" as
required by 18 U.S.C. sec. 921(a)(3));
United States v. Syverson, 90 F.3d 227,
230-31 (7th Cir. 1996) (upholding
conviction for possession of parts
designed to modify semi-automatic weapon
to machine gun); United States v. York,
830 F.2d 885 (8th Cir. 1987) (gun that
was inoperable because it lacked firing
pin was still "designed to expel a
projectile" and thus satisfied definition
of firearm).
3. Obstruction of Justice Enhancement
The district court increased
Weicherding’s offense level two notches
up for obstruction of justice under
U.S.S.G. sec. 3C1.1. In doing so, it
adopted the recommendation of the
presentence report and added, without
further explanation, "I thought your
testimony was riddled with inaccuracies
and lies." Weicherding argues that this
was inconsistent with the Supreme Court’s
decision in United States v. Dunnigan,
507 U.S. 87 (1993), which requires
specific findings to support a perjury
enhancement.
A sentencing court may enhance a
defendant’s offense level under sec.
3C1.1 "[i]f the defendant willfully
obstructed or impeded, or attempted to
obstruct or impede the administration of
justice during the course of the
investigation, prosecution, or sentencing
of the instant offense." Perjury can be
the basis for a sec. 3C1.1 increase, but
not every instance of false testimony
under oath warrants the enhancement. See
Dunnigan, 507 U.S. at 94-95; U.S.S.G.
sec. 3C1.1 application note 2. In order
to ensure that the obstruction of justice
enhancement does not become a punishment
for any defendant who chooses to exercise
his right to testify, the 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." Dunnigan, 507 U.S. at 95.
Among the findings required are that the
defendant’s misrepresentation was
willful, material to the investigation or
prosecution of the instant offense, and
made with the specific intent to obstruct
justice rather than as a result of
confusion, mistake or faulty memory. Id.
at 94; see also United States v. Ewing,
129 F.3d 430, 434 (7th Cir. 1997); United
States v. Agostino, 132 F.3d 1183, 1198
(7th Cir. 1997).
Our review of the adequacy of the
district court’s conclusions under
Dunnigan is de novo, and any factual
findings are reviewed for clear error.
United States v. Gage, 183 F.3d 711, 715
(7th Cir. 1999). Although Dunnigan does
not impose an inflexible requirement that
the sentencing court document its
reasoning on each element of the alleged
perjury, see United States v. Craig, 178
F.3d 891, 901 (7th Cir. 1999), the
district court’s findings must
"encompass[ ] all of the factual
predicates for a finding of perjury."
Id., quoting Dunnigan, 507 U.S. at 95.
The inadequacy of the district court’s
findings in this case are illustrated
well by a comparison to our holding in
Gage. There the court imposed a perjury
enhancement after identifying a specific
statement by the defendant that it
concluded was a lie; the court was
persuaded that Gage deliberately
misrepresented the truth when he claimed
he could not remember the contents of a
note he had written because he was high
on drugs. Despite the court’s very
specific identification of the statement
it considered to be a lie, we reversed on
the ground that the court had not made a
finding that Gage told the lie with the
specific intent to obstruct justice. 183
F.3d at 716-17.
This is, if anything, an even clearer
instance than Gage was of a case where
Dunnigan requires a remand. The district
court never identified which of
Weicherding’s statements it considered to
be lies and why. The record also contains
not a hint of the court’s reasoning on
the critical issues of materiality or
specific intent to obstruct justice. This
does not comply with Dunnigan’s command
to conduct "a review of the evidence and
[to make] independent findings," and it
precludes us from "discharg[ing] our
appellate responsibility to determine
whether the court’s findings are clearly
erroneous," United States v. Ledezma, 26
F.3d 636, 645 (6th Cir. 1994). We thus
must vacate Weicherding’s sentence so
that the district court may reconsider
whether the obstruction of justice
enhancement is called for on this record
and so that it can make the necessary
findings to support its conclusion.
III
To recap, we AFFIRM McGiffen’s sentence
and Weicherding’s conviction. We VACATE
and REMAND Weicherding’s sentence for
further proceedings consistent with this
opinion, as well as the district court’s
decision to require Weicherding to
contribute $12,238 to his own defense.
FOOTNOTE
/* In No. 99-3797, Dennis McGiffen’s name is spelled
"McGiffin." Because it appears as "McGiffen" in
the other two cases (Nos. 98-3400 and 98-4218)
and throughout his brief and the record, we have
used the latter spelling.