United States v. Gilchrist, No. 09-10250 (9th Cir. 2011)
Annotate this CaseDefendant appealed his sentence of 25 months' imprisonment plus five years of supervised release following his guilty plea to ten counts of embezzlement under 18 U.S.C. 656, and eight counts of bank fraud under 18 U.S.C. 1344. The eighteen counts defendant pleaded guilty to related to two schemes to defraud Wells Fargo: an embezzlement scheme and a check-kiting scheme. On appeal, defendant's primary contention was that because he did not know he was the subject of a pending criminal investigation at the time he committed perjury in a civil suit concerning the very same conduct later charged in the criminal indictment, the district court erred in applying U.S.S.G. 3C1.1 to enhance his sentence for willfully obstructing justice. The court held that because the district court applied the correct legal standard and relied upon probative evidence submitted by the government, the district court did not err in calculating the intended loss at being over $200,000. The court also held that "willful" meant only that defendant had engaged in intentional or deliberate acts designed to obstruct any potential investigation, at the time an investigation was in fact pending; it did not mean that defendant had to know for certain that the investigation was pending. Accordingly, the court affirmed the judgment.
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