98-3400, 98-4218, 99-3797 U.S. v. McGiffen

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“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.”

“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.”

“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 [U.S. v. Dunnigan, 507 U.S. 87 (1993)] 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.”

Affirmed in part, and vacated in part.

Appeals from the United States District Court for the Southern District of Illinois, Riley, J., Wood, J.