IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10003
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
MICHAEL ANTHONY JACKSON
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(5:95-CR-012-C)
December 19, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendant Michael Anthony Jackson appeals his conviction and
sentence for receipt of money stolen from a bank, giving false
statements to an agent of the United States, harboring a fugitive,
and being an accessory after the fact to a bank robbery.
I.
Originally, Jackson’s indictment also included a count for
aiding and abetting bank robbery. While the jury was deliberating,
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
the district court granted Jackson’s unopposed motion and dismissed
the robbery count. After consulting with the parties, the court
instructed the jury to infer nothing from the fact that the robbery
count was no longer before them. The jury found Jackson guilty on
the remaining counts.
Jackson argues that the district court committed plain error
by not sua sponte declaring a mistrial after dismissing the robbery
count. Because Jackson did not object to the dismissal or the
court’s instructions to the jury, we review for plain error. We
will correct a forfeited error only if (1) there was error (2) that
was clear or obvious and (3) the error affects Jackson’s
substantial rights. United States v. Calverley, 37 F.3d 160, 162-
64 (5th Cir. 1994) (en banc). Initially, we find nothing to
support his assertion that “the jury was deluged with gory, violent
evidence of a robbery that involved a cold-blooded murder.”
Rather, although the bank president and one of the robbers
testified to the details of the bank robbery, no “gory details”
were given regarding the subsequent murder, and the record contains
no photographic or other evidence as a trial exhibit. Furthermore,
Jackson was charged with and convicted of receiving money stolen
from a bank--a charge that, like the accessory charge, required
proof that the money was stolen from a bank. Since the evidence
was relevant to both charges, Jackson has not shown the district
court committed any error, plain or otherwise, by not declaring a
mistrial following Jackson’s motion to dismiss the robbery charge.
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II.
Jackson argues that his conduct under all the counts, properly
grouped under U.S.S.G. § 3D1.2 because they involve the same harm,
should have been limited to a base level of 20 under § 2X3.1.
Under § 3D1.3, the base offense level for grouped counts is
determined by the highest offense level for the counts in the
group. Jackson was convicted of being an accessory-after-the-fact,
the base offense level of which is
6 levels lower than the offense level for the underlying
offense, but in no event less than 4, or more than 30.
Provided, that where conduct is limited to harboring a
fugitive, the offense level shall not be more than level
20.
§ 2X3.1 (emphasis original). The underlying offense for which
Jackson was convicted for being an accessory--bank robbery
involving a murder--carries a base level of 43. § 2B3.1 (bank
robbery); § 2A1.1 (murder). The base level was thus appropriately
30, unless Jackson’s “conduct is limited to harboring a fugitive.”
The evidence supporting Jackson’s conviction for being an accessory
after the fact also supports his harboring conviction. However,
Jackson did more than merely house the fugitive, he also lied to
Agent Powell about the fugitive’s whereabouts and the last time he
saw the fugitive, and he received a box of stolen money from the
robbery. Jackson ignores his convictions for these acts, which
involve conduct outside that contemplated by “harboring a
fugitive.” The district court did not err in finding that
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Jackson’s conduct constituted more than mere harboring a fugitive
under § 2X3.1.
III.
Finally, Jackson protests the two-level increase applied to
his offense level at sentencing for obstruction following the
district court’s finding that he committed perjury during the
trial. Section 3C1.1 of the guidelines provide a two-level
enhancement “[i]f the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the instant
offense.” It is proper for the sentencing court “to enhance a
defendant’s sentence for obstruction of justice where the defendant
committed perjury by giving false testimony at trial.” U.S. v.
Laury, 985 F.2d 1293, 1308 (5th Cir. 1993); § 3C1.1 comment n.3(b).
We review the district court’s finding for clear error. Id.; U.S.
v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1994). Perjury requires a
witness testifying under oath or affirmation giving false testimony
concerning a material matter with the willful intent to provide
false testimony. United States v. Cabral-Castillo, 35 F.3d 182,
186 (5th Cir. 1994), cert. denied, 115 S.Ct. 1157 (1995); U.S. v.
Dunnigan, 113 S.Ct. 1111, 1116 (1993). The district court enhanced
the sentence for Jackson’s testimony “concerning the telephone
conversation he had with Agent Powell.” Jackson testified that he
told Powell he thought he knew where the fugitive was, while Powell
testified that Jackson told him he had a phone number for
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“Fettner”--supposedly a friend of the fugitive’s the agent might
want to contact. In fact, the fugitive had been at Jackson’s house
until he was arrested by Powell several hours before this
conversation. Putting aside the question of whether this conflict
in testimony constitutes a falsehood sufficient for a perjury
conviction, it was not material to the trial as required by Cabral-
Castillo. Since the district court did not analyze how this
“false” testimony was material, we examine the issue anew assuming
the district court implicitly determined the issue of materiality.
False testimony is “‘material’ if it is ‘designed to substantially
affect the outcome of the case.’” Cabral-Castillo, 35 F.3d at 187.
If the “false” testimony is such that, even if the jury believed
it, it could not influence or affect the outcome of the case
because it has no bearing on the defendant’s guilt or innocence, it
is not material. Id. Jackson’s testimony concerning what he was
or was not going to tell Agent Powell about the fugitive’s
whereabouts was not the subject of the lying-to-the-United-States-
agent charge, or any other charge in the indictment. Thus, it did
not have a bearing on Jackson’s guilt or innocence. As the
testimony was not “designed to substantially affect the outcome of
the case,” it was not material, and can support no sentence
enhancement. Id.
For the reasons set forth above, Jackson’s convictions for
receipt of money stolen from a bank, giving false statements to an
agent of the United States, harboring a fugitive, and being an
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accessory after the fact to a bank robbery are in all respects
AFFIRMED. However, Jackson’s sentence is VACATED and this case is
REMANDED to the district court for resentencing.
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