United States v. David Wayne Holland, Cross-Appellee
Docket: 92-8596
Court: Court of Appeals for the Eleventh Circuit; May 24, 1994; Federal Appellate Court
David Wayne Holland appeals his convictions and sentences for three counts of perjury, while the Government cross-appeals, arguing that the district court's sentencing did not adhere to the Sentencing Reform Act of 1984. The Government contests the court's decision not to enhance Holland's base offense levels due to his leadership role in the offenses and its refusal to apply perjury guidelines because the perjury occurred in civil rather than criminal proceedings. The Court of Appeals finds no merit in Holland's claims but agrees with the Government's cross-appeal, affirming Holland’s convictions and remanding for resentencing.
Holland's perjury case arises from his attempts to evade a $450,000 judgment related to a civil rights conspiracy case against him and his organization, the Southern White Knights of the Ku Klux Klan. After appealing the judgment, Holland filed a pauper's affidavit claiming he had no valuable assets, leading the court to grant his request to appeal in forma pauperis. Subsequently, a deposition taken by the plaintiffs' attorney revealed inconsistencies in Holland's financial statements, prompting a perjury indictment. Holland was indicted on five counts of perjury and one count of obstructing justice for allegedly encouraging a witness to provide false testimony.
Holland's trial commenced on March 4, 1992, addressing counts one through five. The Government proved that Holland made false statements in his in forma pauperis affidavit and deposition, claiming he had no substantial assets, despite owning a car, a boat, and a fence installation business. He orchestrated deceptive transactions to shield his assets from the Williams plaintiffs. Testimony revealed that immediately after the Williams verdict, Holland solicited Verla Mayo to help conceal his funds, providing her with a $3,500 check to cash and return to him, which was intended to evade the judgment.
The Government presented evidence of a scheme involving multiple individuals to hide Holland's boat; for instance, Bobby Starnes delivered the boat to Edwin Pierce, who backdated a $1,000 check to create the illusion of a legitimate sale, with Holland supplying the cash for the check. John Avery Coor also aided Holland by falsely claiming to have purchased Holland’s business and car, while Holland continued to operate them. The Government dismissed count one at the close of its case, and on March 13, 1992, Holland was convicted on counts two, three, and five, while acquitted on count four.
In the presentence report, Holland was assigned an adjusted offense level of 27 and a criminal history category of III, which included enhancements for threatening physical harm to a witness's son, substantial interference with justice through perjury, and his role as an organizer in a criminal scheme involving multiple participants. This resulted in a sentencing guideline range of 87 to 108 months of imprisonment.
At the sentencing hearing, the court rejected the probation office's recommendations for enhancements to Holland's base offense levels, which would have adjusted his level to 12. Instead, the court granted a downward departure, finding that U.S.S.G. Sec. 2J1.3, applicable to perjury, did not pertain to civil proceedings, and lowered Holland's base offense level to 8. This adjustment, combined with Holland's criminal history category of III, resulted in a sentencing range of 6 to 12 months imprisonment. Ultimately, Holland was sentenced to six months of home detention, two years of probation, and 250 hours of community service for counts two, three, and five.
The Government is appealing these sentences, arguing that the district court erred by (1) rejecting the probation office's recommendation for a four-level enhancement under U.S.S.G. Sec. 3B1.1(a) based on Holland's role in the offenses, and (2) mistakenly concluding that guideline section 2J1.3 did not apply to civil case perjury.
The probation office suggested a four-level enhancement based on Holland's alleged leadership role, as defined under guideline 3B1.1, which applies when a defendant is an organizer or leader in criminal activity involving five or more participants. The court rejected this enhancement, asserting that Holland acted alone in committing perjury. While findings of fact by a district court are typically reviewed for clear error, the Government's claim involves an alleged misinterpretation of the legal standard, warranting a de novo review.
Section 3B1.1(a) stipulates that enhancement is appropriate if the defendant leads a criminal activity with five or more participants, where "participants" includes anyone criminally responsible for the offense, regardless of conviction status. Additionally, even with fewer than five participants, an enhancement can apply if the operation is "otherwise extensive," which takes into account all individuals involved in the offense, including those providing unknowing services.
Guideline 1B1.3 outlines the relevant conduct for determining sentence enhancements under section 3B1.1, stating that all acts committed or aided by the defendant during the offense, in preparation for it, or to evade detection, should be considered. The court must evaluate not only the actual offense but also all acts related to a common scheme or conduct surrounding the offense. In Holland's case, the district court neglected to account for the involvement of five individuals who aided in legitimizing his perjurious statements. The evidence indicated that Holland's perjury was facilitated by these individuals, suggesting he may not have committed perjury without their assistance. The district court's conclusion that Holland acted alone was incorrect, as it overlooked these circumstantial factors. Furthermore, the court's narrow focus on the perjurious statements during sentencing misapplied the guidelines, which require consideration of events before and after the conviction. Additionally, even if there weren't five participants, a four-level enhancement may still be warranted due to the extensive nature of Holland's criminal behavior, which spanned three years and involved multiple accomplices. This determination requires further examination by the district court upon remand.
The district court's decision to sua sponte decline to apply the perjury sentencing guideline was based on the belief that Holland's perjury occurred in a civil case, which the court deemed atypical and not adequately addressed by the Sentencing Commission. The court asserted that a "downward departure" was warranted since the Commission's guidelines primarily considered perjury in criminal cases. Generally, a district court can only depart from guideline sentences if there are aggravating or mitigating circumstances that the Commission did not adequately consider. The appellate court follows a three-part analysis in reviewing such departures, focusing initially on whether the Commission considered the factor cited by the district court. In this instance, the appellate court determined that the district court relied on an improper factor by suggesting that Holland's civil case perjury was atypical. The guidelines define a "heartland" of typical cases, and a departure is only justified in unusual circumstances. The court concluded that Holland's conduct was not atypical, as he willfully made false statements under oath, similar to conduct typically prosecuted under perjury statutes. Thus, the nature of his offense did not warrant a downward departure from the sentencing guidelines.
Perjury is deemed a serious offense in both civil and criminal contexts, significantly harming the integrity of the legal system and wasting public resources. Holland's actions led to unnecessary court time and prolonged investigations by the FBI and U.S. Attorney's Office, obstructing the Williams plaintiffs from satisfying their judgment. The Sentencing Commission found no distinction based on the nature of proceedings in determining the applicable guideline range for perjury, and the district court erred in not applying the perjury guideline. Consequently, Holland's sentence is vacated, and the case is remanded for the district court to eliminate the downward departure and assess whether to enhance his sentence based on his leadership role in criminal activity involving multiple participants. Holland's appeal includes six claims, all deemed meritless, including arguments against selective prosecution, denial of discovery requests, the materiality of false statements, insufficient evidence, and failure to apply the two-witness rule. The indictment cited several false statements regarding Holland's income and assets. Additionally, the government did not contest the district court's decisions regarding enhancements for obstruction of justice and threats related to suborning perjury.
Holland is ordered by the court to pay restitution of $761.50 and a special assessment of $150 to the United States. He is also prohibited from firearm possession and must fully disclose his financial situation, subject to probation office audits. To establish Holland's leadership role in the offense, there must be at least one co-participant. The court applies the guidelines in effect on June 3, 1992, the date of sentencing, noting that recent amendments do not affect the case outcome. The current case differs from Rodgers, where the court ruled that role enhancement could not stem from conduct related to dismissed charges. In Holland's case, the relevant conduct pertains directly to the crimes for which he was convicted. Additionally, the perjury guideline, section 2J1.3, indicates that the Sentencing Commission did not create different base offense levels for civil versus criminal perjury, as evidenced by its cross-referencing to accessory-after-the-fact guidelines for perjury in criminal cases.
