USA v. Ruby Parker, No. 12-1991.

Ruby Parker, a former teller at LaSalle Bank, N.A., in Chicago, Illinois, was charged with and convicted of three counts of bank fraud, 18 U.S.C. § 1344, and one count of embezzlement by a bank employee, 18 U.S.C. § 656. She was sentenced to 30 months’ imprisonment. Parker now appeals her conviction and sentence.  She argues that the court erred in applying a sentencing enhancement for obstruction of justice. We affirm the convictions but vacate the sentence and remand the case for resentencing. 

In 2004, Parker was employed as a part-time teller at the Gateway Branch of LaSalle Bank, in Chicago, Illinois. In or around March 2004, her supervisor assigned to her the task of reconciling the branch’s temporary checks to the temporary check issuance forms. Temporary checks were blank checks that LaSalle Bank kept behind the teller counter for customer use. Parker disregarded her supervisor’s instructions, however, knowing that no one at the branch was monitoring the checks. A federal investigation into a March 2006 robbery at the Gateway Branch led to the allegation that Parker stole eight temporary checks drawn on the accounts of four LaSalle Bank customers. The checks were then cashed. The eight checks totaled approximately $76,450; because some of the funds were returned, the actual loss to LaSalle Bank was approximately
$49,890.

Parker testified at trial and denied having any involvement in the check-cashing scheme, specifically denying that she took any of the eight checks at issue. The jury convicted Parker on all counts. The court sentenced her to 30 months’ imprisonment, which included an enhancement for obstruction of justice. Parker appeals her conviction and sentence.

Obstuction of Justice Enhancement

Under U.S.S.G. § 3C1.1, a district court may enhance a defendant’s offense level if she “willfully obstructed or impeded, or attempted to obstruct or impede” the investigation into her offense. A finding that the defendant committed perjury supports this enhancement. United States v. Dunnigan, 507 U.S. 87, 94 (1993).  “A defendant commits perjury if, while testifying under oath, [s]he ‘gives 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.’ ” United States v. Johnson, 680 F.3d 966, 981 (7th Cir.).  To apply the enhancement based on perjury, “the district court should make a finding as to all the factual predicates necessary for a finding of perjury: false testimony, materiality, and willful intent.” Id.

Separate findings of each element of perjury, though preferable, are unnecessary if the court makes a finding that “encompasses all of the factual predicates for a finding of perjury.” Dunnigan, 507 U.S. at 95. Thus, it is sufficient if the court determines “ ‘that the defendant lied to the judge and jury about matters crucial to the question of the defendant’s guilt.’ ” Johnson, 680 F.3d at 982 (quoting United States v. White, 240 F.3d 656, 662 (7th Cir. 2001)).

We review the adequacy of the district court’s obstruction of justice findings de novo and review its underlying factual findings for clear error. United States v. Taylor, 637 F.3d 812, 817 (7th Cir. 2011).

We agree with Parker that the district court’s findings in this case are insufficient.

Parker gave testimony at trial:  (1) denying any involvement in the check-cashing scheme and (2) claiming that she had conversations with Szewczyk and Jones about the investigation of her EEOC charge. Regarding Parker’s denial of involvement in the scheme, we asked government counsel at oral argument to identify the judge’s statement that most clearly indicates a finding of willful falsity. Counsel could not point to any such statement, but instead argued that the evidence proved Parker’s guilt beyond a reasonable doubt.

Moreover, we are troubled by the judge’s comment at sentencing, made while addressing the obstruction enhancement, that “Ms. Parker may even believe herself that she didn’t negotiate these checks.” This comment seems to suggest an absence of willfulness.

As government counsel conceded at oral argument, the district court never made an explicit finding of falsity as to Parker’s testimony about the EEOC claim. Counsel argued instead that it was clear from the record that the judge thought Parker’s testimony was false. While it is true that the judge noted that “the investigation had begun even before the investigators were aware of any EEOC claim,” and “[t]here was no support for it other than Ms. Parker’s suspicion or
imagination,” implicit findings are insufficient to support the obstruction enhancement in this case.

The district court’s comments leave us unsure as to whether the court found that Parker’s denial of involvement in the scheme was willful. As for her testimony about the EEOC investigation, in making findings, the court focused almost entirely on the question of whether her testimony was material, but did not address whether the testimony was false.

We do not suggest that the enhancement for obstruction of justice cannot be justified, provided that the appropriate findings are made. But in the context of this sentencing, the insufficiency of the findings about Parker’s testimony cannot be considered harmless, and the obstruction enhancement appears to have been an important factor in the determination of the sentence imposed.

Conclusion

For the foregoing reasons, we AFFIRM Parker’s convictions, but we VACATE her sentence and REMAND this case for resentencing. 

For the full opinions visit the 7th Circuit Court of Appeals Web Site 

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com

 

      

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