United States v. Kroledge, Charles M.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-1338, 99-1339, 99-1340 & 99-2164

United States of America,

Plaintiff-Appellee,

v.

Charles Kroledge, Kathleen Kroledge

a/k/a Kathy Kroledge, Tony L. Kroledge

and Ethel Juanita Kroledge,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 96 CR 33--James T. Moody, Judge.

Argued November 4, 1999--Decided January 7, 2000

Before Manion, Kanne and Evans, Circuit Judges.

Kanne, Circuit Judge. Charles Kroledge, his wife

Kathleen Kroledge, Charles’s brother Tony

Kroledge and Tony’s wife Ethel Juanita Kroledge

were convicted on December 1, 1997, of conspiracy

to participate in mail fraud. Ethel and Kathleen

Kroledge were also convicted of mail fraud. The

Kroledges’ convictions resulted from the family’s

attempt to defraud its insurer by filing false

claims in conjunction with a fire, allegedly set

by Charles Kroledge, that damaged Charles and

Kathleen’s home. The four were indicted on the

charge of using fire to commit a felony, but all

were acquitted.

The Kroledges do not appeal the merits of their

convictions. Instead, they contend that their

sentences were wrongly enhanced, because the

district court included the arson as relevant

conduct for purposes of enhancing each of their

offense levels, and ask us to reconsider the

standard of evidence required to include

acquitted offenses as relevant conduct for the

purpose of sentence enhancement. They also claim

that the district court erred in enhancing their

sentences for obstruction of justice. Finding no

errors, we affirm.

I. History

In May 1991, one of Charles and Kathleen

Kroledge’s children accidentally shot a hole in

the family’s television, causing it to spark.

This accident led Charles’s brother Gilbert to

joke that Charles and Kathleen, who were under

considerable financial pressure to keep up with

the mortgage payments on their house, would be

better off if the house did catch fire. These

events allegedly spawned a plan in Charles’s mind

to burn down the house and use the insurance

money to build a new house for the family.

Shortly thereafter, Charles and Kathleen sought

Gilbert and his wife Martha’s help in planning

the fire, and the four engaged in activities such

as experimenting with ways to start a fire and

packing up mementoes, photographs and records.

Charles’s brother Tony and his wife Ethel also

became involved as Charles and Kathleen stored

some of the boxes containing their possessions at

Tony and Ethel’s house.

On the morning of June 8, 1991, Charles told

Martha that he and his wife intended to set fire

to the house that night and that they would spend

the evening with Tony and Ethel at the stock car

races while the house burned. Sometime after 1:00

a.m. that night, the Hobart, Indiana fire

department responded to a fire at Charles and

Kathleen Kroledge’s home. Although members of the

Hobart Fire Department considered some of the

damage to the house suspicious and worthy of

arson investigation, the house was actually

located in the jurisdiction of the neighboring

town of Lake State, Indiana. Therefore, the Lake

Station Fire Department was responsible for the

investigation.

Lake Station’s fire investigator Ken Corbeille

who was inexperienced in arson investigation,

focused on an electrical outlet rather than on

other damage and determined that the fire was

accidental. Corbeille then left the fire scene

unattended for several hours. During this time,

Gilbert Kroledge testified at trial that he and

Tony Kroledge removed newspapers from inside the

walls and among the furniture cushions of the

couch where the fire started. These newspapers

were allegedly planted by Charles to provide

trailer for the fire.

Charles and Kathleen Kroledge declared that

their entire house and all their valuables

(including those that they had stored with Tony

and Ethel) had been destroyed by the fire. In

addition, Kathleen and Ethel Kroledge forged

false receipts for an apartment where Charles and

Kathleen were supposedly residing during the

reconstruction of their house. Ethel Kroledge

asked the owner of the apartment that Kathleen

claimed to be renting, Annette Mathews, whether

she could use Mathews’s name on insurance claim

forms and told Mathews to lie if anyone asked

whether Kathleen and Charles were living with

her. During this time, Charles, Kathleen and

their family were actually living with Tony and

Ethel Kroledge. When the fire was declared an

accident, their insurer, State Farm Insurance

Company ("State Farm"), reimbursed Charles and

Kathleen for both their loss and their living

expenses.

In October 1991, Martha and Kathleen Kroledge

had a falling out because Kathleen informed

Martha’s husband Gilbert of an affair that Martha

was having. Martha was enraged by this and told

a relative about Charles and Kathleen’s

activities. This relative contacted State Farm’s

fraud investigators, who in turn contacted the

FBI. The FBI contacted Martha, and the agency

granted Martha and Gilbert immunity from

prosecution in exchange for their cooperation in

the investigation of the fire.

In August 1993, an FBI investigator spoke with

Charles and Kathleen Kroledge about the events

surrounding the 1991 fire. Charles and Kathleen

told this investigator that they attended stock

car races that night and did not return home

until 1:00 a.m. In November 1993, the same

investigator spoke to Tony and Ethel Kroledge

about their involvement in the fire. Neither Tony

nor Ethel mentioned that Charles and Kathleen

stayed with them during the time that the

Kroledges were rebuilding their house, but the

two did verify that Charles and Kathleen had

attended stock car races with them on the night

of the fire.

During the 1993 investigation, Martha and

Gilbert Kroledge secretly tape recorded

conversations with Charles, Tony and Ethel. These

conversations implicated each of the Kroledges in

the scheme to defraud the insurer. Charles

admitted that he burned his own house down. Tony

and Ethel admitted that they had stored many of

Charles and Kathleen’s possessions for them.

On April 10, 1996, the four Kroledges--Charles,

Kathleen, Tony and Ethel--were indicted on

charges of conspiracy to commit mail fraud, mail

fraud (on three counts) and using fire or an

explosive to commit a federal felony. All four

pleaded not guilty. After the return of a

superseding indictment substituting certain

mailings for which the mail fraud allegations

would be based, trial commenced on November 17,

1997.

At trial, Charles Kroledge denied even

discussing the possibility of starting a fire at

his house. He also denied experimenting with ways

to start a fire, and he testified that he

attended stock car races on the night that the

fire occurred. Kathleen admitted that she may

have misrepresented her loss in her claim to

State Farm but testified that she and Charles did

not have financial problems. She denied lying to

a State Farm investigator who asked her where she

was living during the reconstruction of her

house. State Farm claims adjuster Bob Bradley

contradicted Kathleen’s story, claiming that

Kathleen never informed him that she was living

with Tony and Ethel. In addition, Annette Mathews

testified that Ethel told her to tell any person

who asked that the Kroledges were living in her

apartment.

Ethel Kroledge testified that she told the FBI

investigator that she had lied about where

Charles and Kathleen had lived during the

rebuilding process, but the FBI investigator

testified that she never admitted her lie prior

to her testimony before a grand jury in 1994.

Tony testified that he had no idea who lived in

his house in 1991 because he worked nights. He

also testified that Charles and Kathleen were

with Tony at the stock car races on the night

that the fire took place.

The jury found all four Kroledges guilty of

conspiracy to commit mail fraud. The jury also

found Kathleen Kroledge guilty of two counts of

mail fraud and Ethel Kroledge guilty of one

count. The jury acquitted the Kroledges of all

remaining counts, including using fire to commit

a federal felony. At sentencing, however, the

court found by a preponderance of the evidence

that the Kroledges used fire as a part of their

conspiracy to defraud State Farm, and therefore,

the court used evidence of the arson as relevant

conduct and applied this conduct to each

defendant’s sentence. This evidence of relevant

conduct led to a two-point enhancement of each

defendant’s base offense level for reckless risk

of serious bodily injury and another two-point

enhancement for more than minimal planning. In

addition, the court found that Tony, Kathleen and

Charles had each obstructed justice by providing

false testimony and lying to FBI investigators

about their role in the conspiracy. Because of

medical problems that she experienced, Ethel was

separately sentenced. At her separate sentencing,

the district court adopted the same findings

about her behavior except that the court made no

finding of perjury, and she was given a similar

sentence. Charles, Tony and Ethel Kroledge were

each sentenced to twenty-seven months

imprisonment with a three year term of supervised

release. Kathleen Kroledge was sentenced to

thirty-three months imprisonment with a three

year term of supervised release. Each of the

defendants was ordered to pay State Farm

$78,344.85 in restitution.

II. Analysis

The Kroledges challenge the enhancement of their

sentences on three grounds. First, they claim

that the district court erred in enhancing each

of their sentences for obstruction of justice.

Second, they claim that the district court lacked

sufficient evidence of arson to include it as

relevant conduct for purposes of calculating

their sentences. Third, they argue that the

district court applied the wrong evidentiary

standard in determining whether to include the

arson as relevant conduct for the purpose of

computing each of their sentences.

Both the challenge to the district court’s

enhancement to the Kroledges’ sentences for

obstruction of justice and the challenge to the

court’s inclusion of arson as relevant conduct

are determinations made for the purpose of

sentencing. We review sentence determinations for

clear error. See United States v. Gwiazdzinski,

141 F.3d 784, 788 (7th Cir. 1998). We will

reverse on clear error only if we are left with

a definite and firm conviction that a mistake has

been committed. See United States v. Garcia, 69

F.3d 810, 819 (7th Cir. 1995).

A. Obstruction of Justice

Each of the Kroledges challenges the enhancement

of his or her sentence for obstruction of

justice. Sentencing Guidelines sec. 3C1.1

authorizes a two-point enhancement for

obstruction of justice if the sentencing court

finds by a preponderance of the evidence that a

defendant "willfully obstructed or impeded . . .

the administration of justice during the course

of the investigation, prosecution, or sentencing

of the instant offense." U.S. Sentencing

Guidelines Manual sec. 3C1.1 (1997). "To

establish an obstruction of justice, the

sentencing court must make an independent factual

finding that the defendant engaged in a willful

attempt to provide false testimony." United

States v. Smith, 103 F.3d 600, 606 (7th Cir.

1996) (citation omitted). When a defendant

objects to an enhancement for obstruction of

justice, the district court must review the

evidence and make an independent determination as

to the existence of the willful obstruction of

justice. See United States v. Menting, 166 F.3d

923, 929 (7th Cir. 1999). Since the court based

its finding of obstruction against each Kroledge

on different facts, we review each finding

independently.

1. Charles Kroledge

The sentencing court based its finding of

obstruction of justice against Charles Kroledge,

among numerous other items, on his testimony that

Tony and Ethel Kroledge had no involvement in the

scheme to defraud State Farm. Charles claims that

this finding, which was based on the pre-sentence

report, was inaccurate and did not meet the

required specificity for findings of fact as to

the willfulness and materiality of Charles’s

testimony. We disagree.

Even if the district court did not explicitly

address the willful and material nature of

Charles’s testimony, we may uphold the

enhancement as long as the district court made a

finding of obstruction that "encompasses all of

the factual predicates for a finding of perjury."

United States v. Craig, 178 F.3d 891, 901 (7th

Cir. 1999) (quoting United States v. Dunnigan,

507 U.S. 87, 95 (1993)). Charles’s testimony

regarding Tony and Ethel Kroledge’s involvement

in the conspiracy speaks to the guilt of

Charles’s co-conspirators, Tony and Ethel, and is

therefore a material obstruction. See Craig, 178

F.3d at 901. Thus, to enhance Charles’s sentence

for obstruction, Charles’s inaccurate testimony

must have been made willfully, rather than as a

result of mistake, faulty memory or confusion.

See Craig, 178 F.3d at 901. An enhancement

authorized by sec. 3C1.1 may employ a defendant’s

perjurious testimony, but we construe the

Guidelines in such a way as to avoid punishing

defendants for exercising their right to testify.

See Dunnigan, 507 U.S. at 96; United States v.

Emerson, 128 F.3d 557, 563 (7th Cir. 1997). In

this instance, we find that the court correctly

met this standard by focusing on elements of

Charles’s testimony that did not reflect directly

on his own guilt or innocence.

Charles testified that no one, including Tony,

entered the house after the arson investigator

left the premises. This statement seems to have

been made with the intent to show that his

brother Tony had no participation in his scheme.

However, Gilbert Kroledge testified that he and

Tony Kroledge entered Charles’s house after the

arson investigator left and removed newspaper

from the couch and walls. Rather than claiming

that his statements at trial were mistaken or the

result of confusion, he still claims that his

statements do not suggest that Tony and Ethel

were not involved in the case. Because his

statements were made to exculpate his family, we

find no error in the court’s determination that

Charles’s testimony formed the basis for a

finding of obstruction.

2. Kathleen Kroledge

The district court based its finding of

obstruction against Kathleen Kroledge on her

testimony that Tony and Ethel Kroledge were not

involved in the conspiracy. The court found that

she obstructed justice both by her trial

testimony and by pretrial statements that she

made to investigators. In her opening statement,

Kathleen Kroledge confessed lying to

investigators when she and Charles misrepresented

their living expenses to State Farm. She now

claims that her earlier false statements were

immaterial and the finding that she perjured

herself at trial was inaccurate.

Kathleen Kroledge testified at trial that she

told State Farm’s claim adjuster that she was

staying with Tony and Ethel, rather than at an

apartment as she had claimed. She also testified

that she was often away from Tony and Ethel’s

house, so Tony might not have been aware that she

and Charles were living there. State Farm’s claim

adjuster Bob Bradley testified that Kathleen

never informed him that Charles and Kathleen’s

family were residing with Tony and Ethel after

the fire. In addition, Tony Kroledge testified

that he told FBI investigators that he knew

Charles and Kathleen Kroledge were living with

his family while they rebuilt their house.

Kathleen Kroledge’s testimony contradicts

statements that she made to State Farm and to the

FBI prior to trial and contradicts itself in

several places. Given the testimony of the

government’s witnesses at trial, we find that the

trial court had sufficient evidence to conclude

that the statements by Kathleen about Tony’s

knowledge of her family’s presence in their home,

as well as many other contradictory statements,

constituted an attempt to obstruct justice, and

we will not second guess the district court on

such questions of credibility. Kathleen’s

statements were material, as they would tend to

influence the decisionmaking body to which they

were addressed. See United States v. Wells, 519

U.S. 482, 483 (1997). Therefore, we find that the

district court’s finding was accurate on the

ground of her perjurious testimony and that its

enhancement must be upheld without regard to the

materiality of her earlier false statements.

3. Tony Kroledge

The district court enhanced Tony Kroledge’s

sentence because he provided an alibi for his

brother and sister-in-law. Tony Kroledge argues

that this finding was in error because any

misstatements that he made to investigators

occurred early in the investigation and were

therefore immaterial. Application Note 6 to

Sentencing Guidelines sec. 3C1.1 defines

materiality as "evidence . . . that, if believed,

would tend to influence or affect the issue under

determination." U.S. Sentencing Guidelines Manual

sec. 3C1.1 application note 6. Although

misstatements made to investigators that do not

force investigators to expend additional

resources are not material, see United States v.

Barnett, 939 F.2d 405, 407 (7th Cir. 1991),

pretrial statements that significantly obstruct

or impede an investigation are material and may

serve as the basis for an enhancement. See id.

Tony Kroledge provided an alibi for his brother

and sister-in-law by testifying that the two

accompanied him to the stock car races on the

night of the fire. Further, he corroborated

Charles’s claim that Charles and Kathleen

followed him home that night and did not find out

about the fire until after 1:00 a.m. However, his

own testimony and the testimony of some

government witnesses suggest discrepancies in his

story. Gilbert and Martha Kroledge both testified

that they saw Charles and Kathleen Kroledge

driving in the direction of the races on the

night of the fire at an hour when Tony testified

they were already with him. Tony Kroledge

testified that it generally took thirty-five to

forty minutes to return to his home from the

races, yet he testified that on the night of the

fire it took the Kroledges well over an hour to

return home. In addition, Tony Kroledge testified

on direct examination that he told the FBI

investigator that Charles and Kathleen lived with

him during the rebuilding of their home, but he

also testified that he did not know at the time

that they were living with him. Under cross-

examination, Tony Kroledge admitted that he never

told anyone that Charles and Kathleen lived with

him until he testified so under oath before the

grand jury.

On appeal, Tony Kroledge explains, through

counsel, that these statements were mistakes made

by a simple man confused by the proceedings who

was attempting only to protect his family.

However, the district court found instead that

these statements were made willfully in an

attempt to obstruct justice. We review such

findings of credibility with great deference and

will not reverse unless we find clear error. See

United States v. Hall, 101 F.3d 1174, 1179 (7th

Cir. 1996). As such, the obstruction enhancement

to Tony Kroledge’s sentence will remain

undisturbed.

4. Ethel Kroledge

The district court enhanced Ethel Kroledge’s

sentence for obstruction of justice, but, unlike

her co-defendants, the court based its

enhancement on Ethel Kroledge’s pretrial conduct

rather than her testimony. On appeal, Ethel

Kroledge argues that her pretrial conduct did not

significantly impede the government’s

investigation into the fire and, therefore, was

not material for the purposes of enhancing her

sentence for obstruction.

In its finding that Ethel Kroledge obstructed

justice, the court adopted the finding of fact

contained in the pre-sentencing report that Ethel

Kroledge had obstructed justice by attempting to

influence the testimony of a witness. Ethel

Kroledge admitted in her testimony that she told

FBI investigators that Charles and Kathleen lived

with Annette Mathews during the period when their

house was being rebuilt. Annette Mathews

testified that Ethel Kroledge asked her to lie to

the FBI and State Farm investigators and claim

that Charles and Martha lived in their basement

apartment during that period. Ethel Kroledge

admitted that she asked Annette Mathews whether

she could use her name on receipts that the

Kroledges presented to State Farm.

The presented testimony dispels any argument

that Ethel Kroledge did not obstruct justice in

an attempt to protect her brother and sister-in-

law. However, she claims that her misstatements

were not material because she later corrected

them by telling the truth to FBI investigators.

To determine the materiality of her conduct, we

must review whether the district court correctly

found that Ethel Kroledge’s actions significantly

impeded the investigation of the Kroledges’

conduct. See Barnett, 939 F.2d at 407. In

Barnett, we refused to uphold an enhancement for

obstruction of justice based on a defendant’s

pretrial conduct when the defendant’s only

pretrial misstatement was that he denied

committing the offenses about which he was

questioned. See id.; see also United States v.

Wells, 154 F.3d 412, 414 (7th Cir. 1998) (stating

that obstruction of justice that "has no

consequence . . . is not a permissible basis" for

enhancement).

In this case, however, Ethel Kroledge’s

misstatements went well beyond a mere declaration

of innocence. Instead, Ethel Kroledge concocted

a false set of facts that led investigators

toward a witness whom she had attempted to

influence. As in Wells, Ethel Kroledge attempted

to lead investigators on a "wild goose chase" in

order to obscure evidence of her own criminal

conduct. However, in this instance, unlike Wells,

the evidence that Ethel Kroledge would obscure

was not merely ancillary to questions of her (and

her family’s) guilt; the activities she concealed

were exactly those which led to Kathleen

Kroledge’s and her own convictions for mail

fraud. In circumstances such as these, we have

found that such behavior was material, see United

States v. Taylor, 135 F.3d 478, 483-84 (7th Cir.

1998), and we have no question that Ethel

Kroledge’s behavior significantly impeded the

instant investigation. As such, her behavior was

material for the purpose of determining whether

her sentence should be enhanced for obstruction,

and we will uphold the district court’s

enhancement of her sentence.

B. Use of Arson as Relevant Conduct

The Kroledges also argue that the district

court erred when it found by a preponderance of

the evidence that they had committed arson and

that this arson could be used as relevant conduct

for the purpose of computing their sentence. They

argue that the district court lacked sufficient

evidence to determine by a preponderance of the

evidence that they committed arson, and in the

alternative, they argue that under these

circumstances the more rigorous "clear and

convincing evidence" standard should have been

applied instead of the "preponderance of the

evidence" standard.

All four Kroledges were acquitted of the

federal crime of arson--using fire in the

furtherance of a federal felony. However, the

district court determined, for the purposes of

sentencing, that a preponderance of the evidence

indicated that the Kroledges had committed arson,

and the court decided to use the acquitted

offense of arson as relevant conduct for the

computation of their sentences. In United States

v. Watts, 519 U.S. 148, 149 (1997), the Supreme

Court held that acquitted offenses may be used as

relevant conduct for the purposes of computing a

defendant’s sentence. The decision in Watts

confirmed our own prior precedent, see United

States v. Fonner, 920 F.2d 1330, 1332 (7th Cir.

1990), which allowed such conduct to be taken

into account. See Watts, 519 U.S. at 149.

Sentencing judges may use all information that

they possess in order to properly compute their

sentence. See 18 U.S.C. sec. 3661 ("No limitation

shall be placed on the information concerning the

background, character, and conduct of a person .

. . for the purpose of imposing an appropriate

sentence."). Because the relevant burden at

sentencing is the "preponderance of the

evidence," we allow evidence of acquitted conduct

to be considered as long as the government has

met the burden of proving by a preponderance of

the evidence that defendants have engaged in the

relevant conduct, see United States v. Porter, 23

F.3d 1274, 1277-78 (7th Cir. 1994), rather than

applying the more stringent standard "beyond a

reasonable doubt" required to convict a

defendant. See Fonner, 920 F.2d at 1333. Thus, we

will uphold the sentences imposed by the district

court whenever we determine that the government

at trial met the applicable standard for proving

that the defendants have engaged in the relevant

conduct even if they were acquitted at trial

under the stricter standard.

1. Relevant Burden of Proof

We have held that a preponderance of the

evidence is all that is required under the

Sentencing Guidelines for a finding of fact. See,

e.g., Porter, 23 F.3d at 1277. Despite our clear

precedent, the Kroledges urge us to consider the

argument that a heightened standard of proof must

be met under some instances "where a factual

finding will result in a sentencing increase so

great ’that the sentencing hearing can fairly be

characterized as a tail which wags the dog of the

substantive offense.’" United States v. Corbin,

998 F.2d 1377, 1387 (7th Cir. 1993) (citations

omitted). In support, the Kroledges cite United

States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir.

1990), in which the Third Circuit required the

higher standard of proof in a case where the

sentencing court raised the defendant’s sentence

from about thirty months to thirty years.

In Corbin, we acknowledged the possibility that

a higher standard might be appropriate in those

circumstances where the government appeared to

use the sentencing hearing to retry the

substantive offense. In such circumstances, the

district court might use its discretion to depart

from the Sentencing Guidelines in such a way as

to effectively sentence a defendant to the term

that would have been appropriate had she been

convicted of the substantive offense. As we noted

in United States v. Rodriguez, 67 F.3d 1312, 1322

(7th Cir. 1995), we have not yet been presented

with an opportunity to consider whether, under a

certain set of facts, such a heightened standard

of proof may be appropriate. We are confident

that these facts do not merit the imposition of

the clear and convincing evidence standard.

Here, the Kroledges were each acquitted of the

charge of use of fire in the furtherance of a

federal felony, pursuant to 18 U.S.C. sec.

844(i), which provides that any person who

"maliciously damages or destroys . . . by means

of fire or an explosive, any building, vehicle,

or other real or personal property . . . shall be

imprisoned for not less than 5 years and not more

than 20 years." Thus, if the Kroledges had been

convicted of the federal arson charge, they would

each serve between five and twenty years.

Instead, by enhancing their sentences based on

the relevant conduct of arson, each Kroledge is

serving either twenty-seven or thirty-three

months, which is roughly half of the minimum

sentence that they would have received for the

arson charge. As we noted in Porter, see 23 F.3d

at 1277-78, we have in many instances refused to

adopt the Kikumura standard in cases where the

sentence enhancement was more drastic than the

enhancement at issue here. See Rodriguez, 67 F.3d

at 1323 (51-63 months enhanced to life

imprisonment); Porter, 23 F.3d at 1276 (92-115

months enhanced to 137 months); United States v.

Masters, 978 F.2d 281, 283-85 (7th Cir. 1992)

(33-41 months enhanced to 40 years). Contrasting

these cases with the facts of Kikumura, we find

that this does not qualify as a rare instance

where a higher standard might be justified.

2. Sufficiency of the Evidence

The Kroledges also argue that, even under the

preponderance of the evidence standard, the

sentencing court lacked sufficient evidence of

the arson to include it as relevant conduct for

the purpose of enhancing their sentences. Because

there is ample evidence available in the record

on which to base a finding of arson, we

understand this claim actually to imply that the

district court committed clear error by believing

the government’s witnesses and disbelieving the

Kroledges’ witnesses.

Determinations of credibility by the sentencing

judge are entitled to great deference on review.

See United States v. Anaya, 32 F.3d 308, 314 (7th

Cir. 1994). When confronted with conflicting

testimony, sentencing judges "are fully capable

of considering the motivations of witnesses in

weighing conflicting evidence and, because they

have had an opportunity to assess the demeanor of

the witnesses, are in a better position than this

court to make credibility determinations." United

States v. Griffin, 115 F.3d 1322, 1331 (7th Cir.

1997). For this reason, when a defendant asks

only that we reassess a credibility

determination, the argument is "wasted on an

appellate court," United States v. House, 110

F.3d 1281, 1286 (7th Cir. 1997) (citation

omitted), unless a challenged witness’s testimony

is shown to be inconsistent with contemporary

documents or impossible. See, e.g., United States

v. Grandinetti, 891 F.2d 1302, 1307 (7th Cir.

1989).

In this case, the Kroledges do not challenge

any evidence presented by the government.

Instead, they argue that the government’s

evidence should not outweigh the evidence that

the Kroledges presented. The government’s

evidence of arson included testimony of at least

three witnesses, each of whom told a consistent

story, as well as such physical evidence as

Charles and Kathleen Kroledge’s possessions pre-

dating the fire, which had been stored with their

family to preserve them, and the tape recordings

made by Gilbert Kroledge, which capture

admissions made by the Kroledges about the nature

of the fire. We consider this evidence sufficient

to support the district court’s determination.

III. Conclusion

We find that the sentencing court correctly

enhanced Charles, Kathleen, Tony and Ethel

Kroledge’s sentences for obstruction of justice.

In addition, we find that the district court’s

decision to include the arson that the Kroledges

were accused of committing as relevant conduct

for the purpose of computing their sentences was

correctly based on a preponderance of the

evidence. Therefore, we AFFIRM the decisions of the

district court.