F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 26 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 99-3161
v.
(D.C. No. CR-98-40026-02-RDR)
(District of Kansas)
WILLIAM BUCKLEY,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, HENRY and LUCERO, Circuit Judges.
Defendant-appellant William Buckley appeals from his conviction and
sentence for one count of bank robbery. A grand jury returned two separate
indictments against Buckley on charges of bank robbery and assault upon a law
enforcement officer. Following a consolidated trial on both charges, the jury
convicted Buckley of bank robbery and acquitted him of assault. The district
court sentenced him to 144 months imprisonment. He raises three issues on
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeal: (1) the district court erred in consolidating the assault and bank robbery
charges for trial; (2) the district court erred in adding a two-point enhancement
under United States Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 for obstruction
of justice based on false testimony during trial; and (3) the district court erred in
adding a two-point enhancement under U.S.S.G. § 3C1.2 for reckless
endangerment during flight. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742 and affirm.
I
On February 23, 1998, Buckley was arrested for a supervised release
violation and was subsequently indicted for assaulting a U.S. Marshall during the
arrest. In a separate indictment, he was indicted for a bank robbery that occurred
on February 19, 1998—four days before his arrest for the supervised release
violation.
Pursuant to the government’s request, the district court consolidated the
assault and bank robbery charges for trial. After a trial, during which Buckley
testified, a jury acquitted him of assault but convicted him of bank robbery. The
district court sentenced him to 144 months imprisonment, based in part on a two-
point enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1 for
providing false testimony at trial and a two-point enhancement for reckless
endangerment during flight pursuant to U.S.S.G. § 3C1.2.
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II
Consolidation of indictments for trial is governed by Fed. R. Crim. P. 13,
which states:
The court may order two or more indictments or informations or both
to be tried together if the offenses, and the defendants if there is
more than one, could have been joined in a single indictment or
information. The procedure shall be the same as if the prosecution
were under such single indictment or information.
Offenses may be joined in a single indictment pursuant to Fed. R. Crim. P. 8(a) if
they “are of the same or similar character or are based on the same act or
transaction or on two or more acts or transactions connected together or
constituting parts of a common scheme or plan.” We construe Rule 8 broadly to
allow liberal joinder to enhance the efficiency of the judicial system. See United
States v. Janus Indus., 48 F.3d 1548, 1557 (10th Cir. 1995).
Although the bank robbery charge was not the underlying substantive
offense for the arrest warrant being executed at the time of the assault, the district
court, after conducting a hearing, consolidated the two separate charges for trial
based on its finding that “[t]he assault occurred only days after the robbery when .
. . the defendant was still attempting to conceal evidence of the robbery[, and his]
actions indicate that he was attempting to flee at the time of the assault.”
(Appellant’s Br. App. B at 2-3.) We review the district court’s decision to join
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indictments for trial de novo. See United States v. Furman, 31 F.3d 1034, 1036
(10th Cir. 1994).
The assault charge need not arise from the execution of an arrest warrant
for the bank robbery to satisfy Rule 8(a). See United States v. Quinones, 516
F.2d 1309, 1312 (1st Cir. 1979) (“Nor was it improper under Fed. R. Crim. P. 8(a)
to try the escape count with the other three counts, although the warrant pursuant
to which he was in custody related to another incident charged in two counts
dismissed with prejudice at the start of trial.”); cf. Bayless v. United States, 381
F.2d 67, 71 (9th Cir. 1967) (holding that joinder for trial of escape and burglary
charges was proper where the escape provided a motive for the burglary). The
assault was a separate offense, but proof of it “was not prejudicial” in the bank
robbery case “where flight was a circumstance that might be considered in
determining guilt.” United States v. Bourassa, 411 F.2d 69, 74 (10th Cir. 1969).
The temporal proximity of only four days between the bank robbery and
Buckley’s vigorous flight from arrest permits the inference that he may have been
fleeing for fear of being arrested for the robbery. Cf. United States v. Peoples,
748 F.2d 934, 936 (4th Cir. 1984) (holding that an escape and a bank robbery
were sufficiently connected to permit joinder where the defendant escaped only
days after being arrested for the robbery and, although the defendant had other
outstanding charges against him, the robbery charge was the most recent motive
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for flight). In addition to the temporal proximity between the bank robbery and
the assault, evidence of the bank robbery was found in Buckley’s vehicle after his
arrest on the parole violation warrant, further indicating that the bank robbery was
his motive to flee from arrest. The two indictments were sufficiently “connected
together” to warrant consolidation for trial. Fed. R. Crim. P. 8(a).
A district court may, however, “order the separate trials of counts which are
properly joined if it appears the defendant is prejudiced by their joinder.”
Furman, 31 F.3d at 1036-37 (citing United States v. Muniz, 1 F.3d 1018, 1023
(10th Cir. 1993)); see also Fed. R. Crim. P. 14 (“If it appears that a defendant or
the government is prejudiced by a joinder of offenses or of defendants in an
indictment or information or by such joinder for trial together, the court may
order an election or separate trials of counts, grant a severance of defendants or
provide whatever other relief justice requires.”). The court’s decision to grant or
deny severance is reviewed for abuse of discretion. See Furman, 31 F.3d at 1037.
“In order to show an abuse of discretion, the defendant must show actual
prejudice.” Id. (citing United States v. Rogers, 925 F.2d 1285, 1288 (10th Cir.
1991)). Buckley argues prejudice based on his allegation at sentencing that he
felt he needed to testify on his own behalf for the assault charge, but was
therefore forced to testify about the bank robbery as well—a charge for which he
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would have preferred to exercise his Fifth Amendment right against self-incrimination.
A defendant who wishes to remain silent on some counts and testify on
other counts is not entitled to a severance under Fed. R. Crim. P. 14 without “‘a
convincing showing that he has both important testimony to give concerning one
count and strong need to refrain from testifying on the other.’” United States v.
Martin, 18 F.3d 1515, 1518-19 (10th Cir. 1994) (quoting United States v.
Valentine, 706 F.2d 282, 291 (10th Cir. 1983)). In making such a showing, the
defendant must
present enough information—regarding the nature of the testimony
that he wishes to give on one count and his reasons for not wishing
to testify on the other—to satisfy the court that the claim of prejudice
is genuine and to enable it to intelligently weigh the considerations
of ‘economy and expedition in judicial administration’ against the
defendant’s interest in having a free choice with respect to testifying.
Id. (quoting Valentine, 706 F.2d at 291). Buckley’s claim necessarily fails
because he did not inform the court of his desire to testify on one count and
remain silent on the other. See United States v. Cox, 934 F.2d 1114, 1120 (10th
Cir. 1991). His statement at sentencing to this effect was too late; this was
compounded by its inadequacy due to lack of specificity. The district court did
not abuse its discretion in failing to sever trial because Buckley did not establish
prejudice.
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III
Section 3C1.1 of the Sentencing Guidelines requires a two-point
enhancement of a defendant’s offense level if “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.”
Obstruction of justice includes “the offering of perjured testimony at trial.”
United States v. Copus, 110 F.3d 1529, 1536 (10th Cir. 1997) (citing U.S.S.G.
§ 3C1.1, comment. (n.3(b))). An enhancement under § 3C1.1 for perjured
testimony requires willful intent to mislead. See United States v. Cerrato-Reyes,
176 F.3d 1253, 1263 (10th Cir. 1999).
However, “[t]he mere fact that a defendant testifies to his or her innocence
and is later found guilty by the jury does not automatically warrant a finding of
perjury.” United States v. Anderson, 189 F.3d 1201, 1213 (10th Cir. 1999). “In
order to apply the § 3C1.1 enhancement, it is well-settled that a sentencing court
must make a specific finding—that is, one which is independent of the jury
verdict—that the defendant has perjured herself.” United States v. Massey, 48
F.3d 1560, 1573 (10th Cir. 1995) (citing United States v. Dunnigan, 507 U.S. 87,
95 (1993)). The required finding must encompass “‘all of the factual predicates
of perjury,’” id. (quoting Dunnigan, 507 U.S. at 95), so that we are able “to
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satisfy our appellate responsibility of review in determining whether the record
would support findings of falsity, materiality, and willful intent,” id.
The district court made the following findings concerning Buckley’s
perjurious testimony:
The defendant offered considerable testimony at trial denying various
aspects of his participation in the bank robbery. The court finds by a
preponderance of evidence that the testimony offered by the
defendant concerning his participation in the bank robbery was false
and was given with the intent to commit perjury. There is little
question that it was material to this case. In sum, the court finds that
a two-level enhancement under § 3C1.1 is appropriate.
(Appellant’s Br. App. C at 5.) “We review the district court’s factual findings as
to the enhancement under § 3C1.1 for clear error, and review de novo the district
court’s interpretation of the Sentencing Guidelines.” Cerrato-Reyes, 176 F.3d at
1263. “Our deference to the district court is especially appropriate when the issue
concerns questions of a witness credibility.” United States v. Litchfield, 959 F.2d
1514, 1523 (10th Cir. 1992). The district court’s findings encompassed all the
factual predicates of perjury and are not clearly erroneous. Buckley argues that
this enhancement is nonetheless inappropriate because he should not have been
forced to testify as to the bank robbery. That argument speaks to the propriety of
joinder, not the propriety of this enhancement, and, as discussed, joinder was
proper. We therefore affirm the district court’s application of the § 3C1.1
enhancement for obstruction of justice.
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IV
Section 3C1.2 of the Sentencing Guidelines provides for a two-point
enhancement “[i]f the defendant recklessly created a substantial risk of death or
serious bodily injury to another person in the course of fleeing from a law
enforcement officer.” For purposes of this enhancement, “reckless” is defined in
the same way as it is defined in the Guideline for involuntary manslaughter. See
U.S.S.G. § 3C1.2, comment. (n.2). That Guidelines section provides in relevant
part: “‘Reckless’ refers to a situation in which the defendant was aware of the
risk created by his conduct and the risk was of such a nature and degree that to
disregard that risk constituted a gross deviation from the standard of care that a
reasonable person would exercise in such a situation.” U.S.S.G. § 2A1.4,
comment. (n.1). “[T]he standard of care envisioned by the Guidelines is that of
the reasonable person, not the reasonable fleeing criminal suspect.” United States
v. Conley, 131 F.3d 1387, 1389 (10th Cir. 1997).
The district court found that Buckley knowingly engaged in a high-speed
car chase with law enforcement officials through residential areas and attempted
to run over a police officer. We review the district court’s factual findings as to
the enhancement under § 3C1.2 for clear error and review de novo the district
court’s interpretation of the Sentencing Guidelines. See Cerrato-Reyes, 176 F.3d
at 1263.
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The record supports the district court’s factual findings and belies
Buckley’s contentions that, because the officer’s vehicle was unmarked, he did
not know he was being chased by a law enforcement officer. As to his claimed
ignorance that he was being pursued by a law enforcement officer, the officer
identified himself several times just before Buckley attempted to run him down.
Buckley also argues that his acquittal on the assault charge proves that he did not
create a risk of death or serious injury to anyone. As to Buckley’s recklessness,
however, the officer testified that Buckley drove at speeds of fifty to sixty miles
per hour skidding around corners through residential neighborhoods. Moreover,
the chase having ended and the officer having exited his car, Buckley rapidly
accelerated directly towards the officer.
The district court’s findings are not erroneous and are sufficient to support
the enhancement of Buckley’s sentence pursuant to § 3C1.2 for reckless
endangerment during flight. These actions plainly involved “a known risk of
danger to others, and constituted a gross deviation from the standard of care that a
reasonable person would have exercised in that same situation.” Conley, 131 F.3d
at 1389-90 (holding that a § 3C1.2 enhancement was justified where the defendant
operated his vehicle, in reverse, at a high rate of speed on a residential street)
(citing United States v. Gonzalez, 71 F.3d 819, 836-37 (11th Cir. 1996); United
States v. Woody, 55 F.3d 1257, 1262, 1274 (7th Cir. 1995); United States v.
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Chandler, 12 F.3d 1427, 1433 (7th Cir. 1994); United States v. Sykes, 4 F.3d 697,
700 (8th Cir. 1993)).
V
Because Buckley fails to make the requisite showing of prejudice resulting
from the joinder, and the district court made sufficient factual findings to support
the contested sentencing enhancements, we AFFIRM his conviction and
sentence.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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