                              NOT RECOMMENDED FOR PUBLICATION
                                     File Name: 19a0407n.06

                                            Nos. 17-6297/6311/6312


                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                                                                                       FILED
    UNITED STATES OF AMERICA,          )                                                        Aug 05, 2019
                                       )                                                    DEBORAH S. HUNT, Clerk
         Plaintiff-Appellee,           )
                                       )
    v.                                 )                                     ON APPEAL FROM THE
                                       )                                     UNITED STATES DISTRICT
    AARON BROOKE WARREN; JOYCE MINTON; )                                     COURT FOR THE EASTERN
    JAMES MINTON,                      )                                     DISTRICT OF KENTUCKY
                                       )
         Defendants-Appellants.        )




BEFORE:           COLE, Chief Judge; BATCHELDER, and DONALD, Circuit Judges.

         ALICE M. BATCHELDER, Circuit Judge. This case involves theft by three family–

member–employees—Joyce Minton, James Minton, and their son Aaron Brooke Warren

(collectively, “Defendants”1)—from Clark Machine Tool and Die (“Clark Machine”). Clark

Machine, a custom-machine manufacturer in Nicholasville, Kentucky, is owned by Ray and Sue

Clark and is operated primarily by their children, Lori Walker and Danny Clark. Between 2000

and 2016, Defendants stole $2,708,153 from Clark Machine and were convicted of mail fraud,

money laundering, and bank fraud and sentenced to prison. The Mintons appeal their sentences,

claiming the district court erred in prohibiting the introduction of exculpatory evidence, interfering



1
  Mr. and Mrs. Minton and Warren were tried together before the district court. However, Warren appealed separately
from Mr. and Mrs. Minton. Some, but not all, of the issues that Mr. and Mrs. Minton appealed are the same as the
issues Warren appealed. For the sake of clarity, when referring to all three individuals, we use the term “Defendants.”
When referring to Mr. and Mrs. Minton, we use the term “Mintons.” When referring to Warren, we use his last name.
Nos. 17-6297/6311/6312, United States v. Warren, et al.


with the cross-examination of a key witness, and admitting a jail phone call into evidence without

proper authentication. Warren appeals his sentence, arguing that the district court erred by giving

him a two-point enhancement for obstruction of justice, abused its discretion by failing to instruct

the jury regarding good faith, and erred by denying his motion for discovery and quashing his

subpoenas. We hold that the district court erred with regard to Warren’s obstruction-of-justice

enhancement, and we VACATE and REMAND as to that count. We AFFIRM on all other

counts.

                                                  I.

          Ray founded Clark Machine in 1968. The company grew steadily and at its peak employed

fifty to sixty employees. Since 2007, the company has had approximately $3,400,000 per year in

revenue. Mrs. Minton began working for Clark Machine in 1993. Her job was to be the

bookkeeper and manage “the purchase orders that came in, the billing that went out, all the items

that were purchased for the jobs . . . and anything . . . associated with the taking care of the office.”

Over time she became the person “with [basically] exclusive control of the bookkeeping, the

banking, and the office management.” Warren started at the company in 1989, when he was just

out of high school, and by 2016 had worked his way up to shop foreman. Mr. Minton was not a

full-time employee of the company, but he did occasional contract work for Clark Machine. The

Clarks considered the Mintons close friends.

          As the company grew, Ray and Sue removed themselves from the day-to-day operations

of the company, placing responsibility for running the company in the hands of their children,

Danny Clark and Lori Walker, and Defendants. Although Ray and Sue remained involved in big-

picture decisions and reviewed quarterly financial results, they did not closely track the

expenditures and revenues of the company, instead leaving that up to Mrs. Minton. Unbeknownst



                                                   2
Nos. 17-6297/6311/6312, United States v. Warren, et al.


to the Clarks, Defendants took advantage of the trust placed in them by engaging in a variety of

fraudulent schemes. For example, Defendants would perform metalworking and manufacturing

work for Clark Machine customers but kept the payments for themselves. They used the company

credit card and checks for personal purchases ranging from race car parts and sports equipment to

a dehumidifier and an air conditioner. Mrs. Minton wrote checks to petty cash and kept the cash

for personal use. She issued extra paychecks to herself from Clark Machine’s bank account and

inflated her and Warren’s bonuses, and she gave Mr. Minton regular paychecks for contracting

work that Clark Machine never authorized. The Clarks did not discover the fraud until they tried

to pay rent for their office and Mrs. Minton told them there wasn’t enough money in the bank to

cover the rent. Initially, Defendants tried to blame the shortfall on “dead weight” employees, even

going so far as to provide the Clarks with a list of employees they thought should be fired as a

cost-saving measure. Instead of firing anyone, the Clarks started digging into financial records

and uncovered Defendants’ fraud.

       Prosecutors filed an eighty-eight-count indictment against Defendants. The case went to

trial, and Mrs. Minton was convicted of forty-six counts of mail fraud, conspiracy to commit mail

fraud, bank fraud, and money laundering. Mr. Minton was convicted of seven counts of mail fraud

and conspiracy to commit mail fraud. Warren was convicted of thirty-four counts of mail fraud,

conspiracy to commit mail fraud, and money laundering. Mrs. Minton was sentenced to ninety-

seven months in prison, Mr. Minton to eighteen months in prison, and Warren to forty-six months

in prison. Defendants appeal, alleging the district court erred in five separate ways. For the

following reasons, we affirm the district court on all counts except for Warren’s enhancement for

obstruction of justice.




                                                3
Nos. 17-6297/6311/6312, United States v. Warren, et al.


                                                   II.

                                                   A.

        The Mintons claim first that the district court erred in admitting a jail phone call without

proper authentication. We review a trial court’s evidentiary rulings for abuse of discretion. United

States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990). The Mintons stipulated to the authenticity of

the call before the start of trial. Absent a request for relief from the stipulations—and such a

request was never made here—stipulations are binding upon the parties. Fed. Deposit Ins. Corp.

v. St. Paul Fire & Marine Ins. Co., 942 F.2d 1032, 1038 (6th Cir. 1991). The district court did not

abuse its discretion by adhering to the parties’ stipulations.

        The Mintons argue also that the call was unintelligible. The Mintons do not cite legal

authority for or develop this argument in their initial brief. It is therefore forfeited. See United

States v. Sandridge, 385 F.3d 1032, 1035 (6th Cir. 2004) (“Issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are deemed waived.”)

(quotation marks and citation omitted). Even if the Mintons had developed the argument, we still

would affirm because, having listened to the audio recording, we conclude that “the unintelligible

portions do not ‘render the recording as a whole untrustworthy.’” United States v. Adams, 722

F.3d 788, 823 (6th Cir. 2013) (quoting United States v. Robinson, 707 F.2d 872, 876 (6th Cir.

1983)). Although portions of the audio recording are difficult to understand, some phrases—such

as Mrs. Minton’s saying, “they know pretty much everything,” “they know it all,” and “they know

all of it”—come through distinctly. Accordingly, we hold that in admitting the recording the

district court did not abuse its discretion.




                                                  4
Nos. 17-6297/6311/6312, United States v. Warren, et al.


                                                    B.

          The Mintons claim next that the district court abused its discretion when it interrupted the

cross-examination of Billy Slone. “When a trial court limits the scope of cross-examination, this

court reviews that determination for an abuse of discretion.” United States v. Kone, 307 F.3d 430,

436 (6th Cir. 2002).

          The Mintons argue that the cross-examination cut off by the district court went to the

“crux” of their defense. Specifically, they say Mr. Minton’s defense was “that he performed a

great deal of work over the years and was able to keep track of his work and allowed to credit his

‘account’ and be paid when he wished, by Clark Machine funds, rather than funds of Ray Clark

personally.” According to the Mintons, the accounting of the “credit” that Mr. Minton built up

over time “was made in a ledger book kept in Joyce Minton’s desk, that was never produced at

trial.”

          We reject the Mintons’ arguments because the Mintons’ lawyer’s questions the judge cut

off were irrelevant to any issue in the case. The lawyer appeared to be arguing that because Clark

Machine paid Billy Slone for work he did on personal projects for the Clarks, Mr. Minton was also

allowed to be paid by Clark Machine for personal projects he did for the Clarks. But the dispute

between the Clarks and the Mintons was never about who paid the Mintons—i.e., the Clarks

personally or Clark Machine—but rather about whether the Mintons were entitled to the payments

they received, whatever the source. The testimony of Slone sheds no light on this dispute.

Furthermore, as the district court said at trial, Clark Machine was a closely held corporation and

its money belonged to the Clarks. Therefore, the Clarks could “pay anybody [with Clark Machine

funds that] they want to pay . . . As long as they know they’re paying for [Slone] to work on their

house, they can pay it. It’s fraud if they don’t know that they’re paying somebody for doing



                                                   5
Nos. 17-6297/6311/6312, United States v. Warren, et al.


something that is being done with their money.” The Clarks were aware of the payments to Slone;

they were not aware of the payments to Mr. Minton. Slone’s testimony is irrelevant because the

payments to Mr. Minton, unlike the payments to Slone, were fraudulent.

        Furthermore, even if the questions had been relevant, the district court allowed the

Mintons’ lawyer to question Slone extensively. The trial transcript on this line of questioning runs

over seven pages before the court intervenes. The district court is permitted to stop lines of

questioning that are cumulative. Fed. R. Evid. 403; see also United States v. Callahan, 801 F.3d

606, 623 (6th Cir. 2015) (“[T]rial judges retain wide latitude to impose reasonable limits on

interrogation that is repetitive or only marginally relevant.”) (alteration in original) (quoting United

States v. Obiukwu, 17 F.3d 816, 821 (6th Cir. 1994)). The district court did not abuse his discretion

in telling the Mintons’ lawyer to move on.

                                                       C.

        Defendants jointly claim that the district court erred in denying Warren’s pretrial discovery

motions and quashing his pretrial subpoenas.2

        Pretrial discovery motion. “We review the District Court’s order on a discovery motion in

a criminal case for an abuse of discretion.” United States v. Kincaide, 145 F.3d 771, 780 (6th Cir.

1998). In his discovery request, Warren asked for “two (2) electronic databases; copies of checks

and deposits of Clark Machine; surveillance records; email records; and tax records from the

company as well as its principals.” Warren alleged that the “records are necessary to the

defendants to rebut the accusations that the defendants unlawfully took money belonging to their

employer, Clark Machine.” Warren cited Federal Rule of Criminal Procedure 16 and Brady v.



2
 Although only Warren made the discovery motions and issued the pretrial subpoenas, the Mintons joined Warren in
appealing the district court’s quashing of the subpoenas. The Mintons did not appeal the denial of the discovery
motions.

                                                       6
Nos. 17-6297/6311/6312, United States v. Warren, et al.


Maryland, 373 U.S. 83 (1963), for the proposition that he was entitled to these records. But neither

Rule 16 nor Brady requires the government to turn over information that it does not possess, have

custody of, or control. Fed. R. Crim. P. 16(a)(1)(E) (“[T]he government must permit the defendant

to inspect and to copy or photograph . . . [certain specified items] if the item is within the

government’s possession, custody, or control.”); United States v. Tavera, No. 11–6175, 2013 WL

3064599, at **1 (6th Cir. June 20, 2013) (“[T]he Supreme Court held in Brady . . . that the

government must provide defendants with material, exculpatory evidence in its possession.”).

       Warren has not even alleged that the government possessed, was in custody of, or

controlled the records he seeks. Rather, in his motion for discovery, Warren simply contends that

it is “unreasonable for the government to dismiss the defendant’s requests by saying it cannot give

what it does not have. Rule 16, this Court’s discovery order, and Brady . . . require the government

to do more than simply rely on what they are given.” But the government went to great lengths to

describe all of the information that it had provided Warren and to describe that which Warren

sought but the government did not possess. “[T]he government does not have a duty to disclose

items it does not possess. . . [n]or does it have a duty to obtain evidence it does not possess.”

United States v. Sarras, 575 F.3d 1191, 1215 (11th Cir. 2009). The district court did not abuse its

discretion in denying the motion for discovery.

       Subpoenas. Following the denial of his discovery motion, Warren issued nine subpoenas

pursuant to Federal Rule of Criminal Procedure 17 seeking essentially the same information that

he requested in the discovery motion. The government moved to quash the subpoenas, and after

conducting a motion hearing, the court “indicated its agreement [with the government] with respect

to the irrelevance, oppressiveness, and lack of specificity with respect to the evidence sought by

the subpoenas.” However, “in an abundance of caution” the district court “took the Motions to



                                                  7
Nos. 17-6297/6311/6312, United States v. Warren, et al.


Quash under advisement and provided Defendants with the opportunity to file ex parte statements

detailing dates, places, checks and bank records that specifically relate to proof of permission given

by the Clarks and/or Clark Machine to incur such expenditures.” Warren then narrowed his request

to three areas: specific emails, Clark Machine surveillance video, and credit card statements. The

district court nevertheless granted the motion to quash the subpoenas due to “the lack of specificity

of Defendants’ requests, the burdensome nature of producing the information requested, and the

irrelevance of the requested information to the defense in this case.” “We review the district

court’s decision to quash a subpoena duces tecum under Fed. R. Crim. P. 17(c) for abuse of

discretion.” United States v. Theunick, 651 F.3d 578, 591 (6th Cir. 2011).

       As an initial matter, “Rule 17(c) was not intended to provide an additional means of

discovery. Its chief innovation was to expedite the trial by providing a time and place before trial

for the inspection of the subpoenaed materials.” Bowman Dairy Co. v. United States, 341 U.S.

214, 220 (1951). In United States v. Nixon, the Court delineated the requirements that a moving

party must meet for a Rule 17(c) subpoena to be properly issued:

               [I]n order to require production prior to trial, the moving party must
               show: (1) that the documents are evidentiary and relevant; (2) that
               they are not otherwise procurable reasonably in advance of trial by
               exercise of due diligence; (3) that the party cannot properly prepare
               for trial without such production and inspection in advance of trial
               and that the failure to obtain such inspection may tend unreasonably
               to delay the trial; and (4) that the application is made in good faith
               and is not intended as a general “fishing expedition.” Against this
               background, [three hurdles must be met]: (1) relevancy; (2)
               admissibility; (3) specificity.

418 U.S. 683, 699–700 (1974) (footnote omitted). We agree with the district court that Defendants

do not meet these requirements for any of the three categories of information they seek.




                                                  8
Nos. 17-6297/6311/6312, United States v. Warren, et al.


         Starting with the request for specific emails, Defendants sought their recovery because they

claimed the emails contained financial statements from Clark Machine.3 Defendants contend

further that these emails and financial statements are necessary to show that the Clarks were aware

of the expenditures Defendants were making and not only gave Defendants permission to make

them but specifically instructed Defendants to do so.

         This request fails the first Nixon requirement. As the district court properly noted, “the

fact that certain financial statements may have been forwarded to the Clarks for their review does

not show that the Clarks gave Defendants permission to engage in the actions alleged in the

Indictment.” On appeal, Defendants still fail to explain with the necessary specificity why the

information is relevant. Instead, Defendants broadly assert that “it is clear” the information is

relevant because “[t]he documents and records clearly would have made the allegations made in

the Indictment more or less probable.” But merely repeating the exact words of Federal Rule of

Evidence 401 does not suffice for an argument as to relevance. The request also fails the fourth

Nixon requirement because this is exactly the broad type of request that indicates a “fishing

expedition.” See Blue Cross, Blue Shield of Ohio v. Klein, No. 96-3805, 1997 WL 400095, at *3–

*4 (6th Cir. July 11, 1997) (remanding the case to the district court to determine if the

government’s extremely broad demand for information amounted to “fishing”). Despite the

district court’s admonition to limit their subpoena, Warren still demands “a copy of all of [a

specific individual’s] emails” to the Clarks, even while acknowledging these emails were sent

“each month . . . for many years.” This is hardly a narrow request and strikes us as a fishing

expedition in the hope of finding exculpatory information.


3
  Defendants’ Joint Motion for Discovery was filed under seal. See RE 51-1 at 239. In its discussion of the Motion,
the district court treated the Motion as still under seal and discussed the emails in broad generalities only. See RE 52
at 255–56. Although we have reviewed the specifics of the Motion, because the district court never lifted the seal we
too speak about the emails in generalities.

                                                           9
Nos. 17-6297/6311/6312, United States v. Warren, et al.


       Defendants’ request for surveillance video also fails the first Nixon requirement.

Defendants originally requested that “any video still in existence be produced.” In their revised

request, Defendants do not state specifically what they are seeking, but it appears they want any

interior surveillance video still in existence. Putting aside whether this request is meaningfully

narrower than the last one—which is doubtful—it is still not clear how this will show that the

defendants had permission to use Clark Machine money to purchase, for example, race car parts,

athletic shoes, and a set of golf clubs. Defendants allege that the interior video recordings will

show that Danny Clark opened packages delivered to the workplace, and that among these

packages were “purchases and shipments to the defendants” related to the transactions in the

indictment. Defendants also allege the interior video will show “Danny Clark working side-by-

side with Mr. Warren on various projects that underlie many of the counts in the indictment.” But

opening packages or working side-by-side with a supervisor doesn’t demonstrate that the

supervisor gave permission to use the company credit card to fund personal hobbies. This is

especially true given the Clarks’ testimony that Mrs. Minton was the person who made all the

materials purchases and managed all the accounts, and there is no evidence in the record that

Danny Clark would have known that a certain package or project was for the benefit of Defendants

rather than Clark Machine. Indeed, Danny Clark testified that he had never been in control of the

books, had never examined the books, had never been involved in banking or payroll, nor had he

otherwise involved himself in the accounting or managerial office functions. The district court did

not abuse its discretion in quashing the surveillance video subpoena.

       Moving to the credit card statements, Defendants fail to show why these are relevant, and

the subpoena therefore fails the first Nixon requirement. Defendants claim they “need information

to corroborate the fact that they acted with the Clarks[’] authority and as instructed in making



                                                10
Nos. 17-6297/6311/6312, United States v. Warren, et al.


purchases” and they say “this evidence is contained in the credit card statements showing the

purchases of all six persons who had a Clark Machine credit card.” But as the district court pointed

out, “Defendants overlook that credit card statements show only the basic information regarding

charges that are made, such as the date of the charge, the amount of the charge, and to whom the

charge is made.” Defendants offer no explanation as to why this information would help them

establish that the Clarks knew about the fraudulent purchases. Instead, they rely on the vague

assertion that “[h]aving the information showing how all the card holders used this credit card will

show that the Clarks had knowledge of how Mr. Warren was using this card, and by their ten-year

silence, the Clarks have expressed their authorization and permission to Mr. Warren.” But

Defendants acknowledge that they already have the credit card statements detailing Warrens’ own

expenditures; they offer no explanation as to why this information would not be sufficient to show

that Warren purportedly had the Clark’s permission to make those expenditures. Furthermore, as

stated previously, the Clarks testified that the only financials they reviewed were the company’s

monthly and/or quarterly results. Defendants cannot explain why additional credit card statements

would be helpful when the Clarks say they never looked at anything at that level of detail. The

district court did not abuse its discretion in quashing the subpoena relating to the credit card

statements.

                                                  D.

       Warren claims that the district court erred in denying his request for a good-faith jury

instruction. We review for abuse of discretion a trial court’s refusal to give a requested jury

instruction. United States v. Gunter, 551 F.3d 472, 484 (6th Cir. 2009). “A trial court’s refusal to

give a requested jury instruction is reversible error only if the instruction is (1) correct, (2) not

substantially covered by the actual jury charge, and (3) so important that failure to give it



                                                 11
Nos. 17-6297/6311/6312, United States v. Warren, et al.


substantially impairs defendant’s defense.” United States v. Heath, 525 F.3d 451, 456 (6th Cir.

2008) (quoting United States v. Sassak, 881 F.2d 276, 279 (6th Cir. 1989)).

       Warren argues that he “believed, in good faith, that he was acting with the permission and

knowledge of the Clarks.” He therefore “requested that the District Court provide the good faith

instruction contained in the Sixth Circuit Pattern Jury Instructions.” These jury instructions would

have informed the jury that “[a]n honest mistake in judgment or an honest error in management

does not rise to the level of criminal conduct.” Sixth Circuit Pattern Jury Instructions, Criminal,

§ 10.04(2) (2019). The government objected to the good-faith instruction, and the district court

did not give the instruction on the grounds that there was no evidence to support it. We agree with

the district court. See United States v. Wall, 130 F.3d 739, 746 (6th Cir. 1997) (“[A defendant] is

entitled to a good-faith instruction only if the evidence supports such an instruction.”).

       The evidence does not support giving Warren’s instruction because Warren is confused

about the meaning of “good faith.” Warren’s theory of the case—and the evidence he presented

to support his theory—was that the Clarks gave him permission to buy personal items with their

money. A good faith defense is appropriate when the defendant acts illegally without knowing his

actions are illegal. Id. When a defendant argues that he had permission to do something, as Warren

did in this case, the defendant is not mounting a good faith defense; he is asserting “merely a plea

of not guilty.” Id. at 747 (quoting United States v. Williams, 728 F.2d 1402, 1405 (11th Cir. 1984)).

       For instance, Warren testified that Danny Clark approved a transmission purchase for his

dragster, that the Clarks sponsored his racing, that the Clarks approved his purchase of a

dehumidifier for his home using the commissions he made at Clark Machine, and that his

“commission agreement with Danny Clark was 1 percent of . . . gross sales.” In making these

statements, Warren was not saying he believed he had permission from the Clarks to make these



                                                 12
Nos. 17-6297/6311/6312, United States v. Warren, et al.


purchases, but that he actually had permission. Because a good-faith jury instruction is appropriate

when there has been an “honest mistake in judgment or an honest error in management,” Sixth

Circuit Pattern Jury Instructions, Criminal, § 10.04(2) (2019), and because none of Warren’s

statements speak to a mistake or error, the district court did not abuse its discretion in refusing to

give Warren’s requested jury instruction.

                                                   E.

       Warren argues next that the district court erred in assessing a two-point Sentencing

Guidelines enhancement for testifying falsely at trial. The United States Sentencing Guidelines

provide that if the “defendant willfully obstructed or impeded, or attempted to obstruct or impede,

the administration of justice with respect to . . . the instant offense of conviction,” then the

defendant’s offense level should be increased by two levels. U.S.S.G. § 3C1.1. “For a district

court to enhance a defendant’s sentence under § 3C1.1, the court must: 1) identify those particular

portions of defendant’s testimony that it considers to be perjurious; and 2) either make a specific

finding for each element of perjury or, at least, make a finding that encompasses all of the factual

predicates for a finding of perjury.” United States v. Lawrence, 308 F.3d 623, 632 (6th Cir. 2002).

The elements of perjury are set out in 18 U.S.C. § 1621. A defendant violates this statute if he or

she, while “testifying under oath or affirmation . . . 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. Dunnigan, 507 U.S. 87, 94 (1993). A “district court’s

factual determination that [a] defendant testified falsely about material matters . . . is reviewed for

clear error.” United States v. Camejo, 333 F.3d 669, 675 (6th Cir. 2003).

       The district court said that the “telltale” sign of perjury in Warren’s testimony was his claim

to have had the Clarks’ permission to purchase a set of TaylorMade golf clubs in 2016, when in



                                                  13
Nos. 17-6297/6311/6312, United States v. Warren, et al.


reality the Clarks never gave him permission. The court said that Warren “got up and testified that

those irons were a . . . gift” for getting the low score at a Clark-sponsored golf tournament. The

court then said that “flyers for all three of the Clark Machine golf outings [in 2014, 2015, and

2016]” were admitted into evidence, and “in no instance was there ever a mention of a set of

TaylorMade irons as a prize for the low score.” The court called Warren’s testimony “a pretty

clear indication of the obstruction of justice.”

       But the court got the facts wrong. Warren never said that golf clubs were given as a prize

in a 2016 golf tournament. Instead, he said that in 2016 the clubs “were never going to be a

giveaway” at the golf tournament.        Warren said that by 2016, “We had changed . . . the

[prizes] . . . They were different. They wasn’t the same gifts.” The district court appears to have

confused this testimony by Warren with the Mintons’ attorney’s opening statement, in which the

attorney said that “Clark Machine put on a golf tournament every year, and they gave away a set

of golf clubs as a prize every year. These golf clubs [currently owned by Warren] . . . were given

away as part of a golf outing.” It is true that Warren’s testimony contradicts this part of the

Mintons’ attorney’s opening statement, but that does not suffice to support a charge of perjury.

Instead, the contradiction identified by the court shows “confusion, mistake, or faulty memory” on

the part of the Mintons’ attorney. Dunnigan, 507 U.S. at 94. Indeed, the government’s attorney

admitted as much at trial: “[I]t’s been represented—I don’t know if any witness ever did it, but an

attorney said golf clubs were a prize for a golf tournament.” This contradiction therefore does not

suffice to show a “willful intent to provide false testimony.” Dunnigan, 507 U.S. at 94.

       Because the district court erroneously identified a contradiction in Warren’s testimony, we

decline to affirm its holding. In so doing, we express no opinion as to whether Warren’s

inconsistent testimony about the golf clubs involved perjury or whether he should receive a



                                                   14
Nos. 17-6297/6311/6312, United States v. Warren, et al.


§ 3C1.1 enhancement. Nevertheless, because the district court attributed statements to Warren

that Warren did not make, and because the court used those misattributed statements in its

determination that Warren obstructed justice, we vacate Warren’s two-level obstruction of justice

enhancement and remand for proceedings consistent with this opinion.

                                              III.

       We VACATE and REMAND the district court’s holding regarding Warren’s two-point

enhancement for obstruction of justice. We AFFIRM all of the district court’s other holdings.




                                               15
