United States v. Prince

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4329

DON PRINCE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 97-4334
ROGER DEWITT PRINCE, a/k/a Bill
Prince, a/k/a Ike Davis,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson Jr., District Judge.
(CR-96-122)

Argued: June 8, 1999

Decided: July 20, 1999

Before MURNAGHAN, LUTTIG, and MOTZ,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Jack Bruce Swerling, Columbia, South Carolina, for
Appellants. John Michael Barton, Assistant United States Attorney,
Columbia, South Carolina, for Appellee. ON BRIEF: Jack W. Law-
son, Florence, South Carolina, for Appellant Roger Prince. J. Rene
Josey, United States Attorney, Scarlett Wilson, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted two brothers, Don Prince and Roger Dewitt
("Bill") Prince, of conspiring in a murder-for-hire scheme directed at
killing two persons expected to testify against Bill in connection with
an earlier contract murder. Both brothers appeal, asserting that numer-
ous errors require reversal of their convictions and sentences. Finding
no reversible error, we affirm.

I.

In 1992, a South Carolina state court tried and convicted Bill
Prince, along with Charlie Dorn Smith, of conspiracy and solicitation
of the murder of Bill's foster father, Billy Graham. Evidence at that
trial showed that Prince and Smith hired a man to kill Graham to
eliminate their $259,000 debt to him and to collect on a $500,000 life
insurance policy on Graham. Frederick "Peaches" Andrews testified
as to Prince and Smith's involvement in Graham's murder.

Prince and Smith appealed their convictions; Prince remained free
on bond during the appeal period. The South Carolina Supreme Court
reversed Smith's conviction, but affirmed Prince's. Shortly thereafter,

2
Prince learned he had cancer. He petitioned for rehearing, but the
court denied that petition on August 26, 1994. Rather than turning
himself in the Monday after the petition for rehearing was denied, Bill
Prince left town and remained a fugitive until his capture almost a
year later.

Don Prince, Bill's brother, helped Bill evade law enforcement dur-
ing the year that Bill was a fugitive. Don brought Bill, who was very
ill, back to the United States from Puerto Rico, visited Bill, kept in
telephone contact with Bill, ran Bill's businesses for him, arranged
doctor's appointments for Bill, and found places for Bill to live.
When Don's ex-girlfriend learned of Don and Bill's scheme to keep
Bill out of jail, Don threatened her to keep her quiet. Don worked
with Bill's lawyers on new trial motions and post conviction relief;
he attempted to obtain sworn affidavits to assist in these efforts. Don
testified at trial, admitting that he assisted Bill in these ways while
Bill was a fugitive but explaining that he did so because he loved his
brother and wanted to help him during his sickness. Don also testified
that he frequently urged Bill to turn himself in.

After state authorities arrested Bill in August 1995, Don, who lived
and worked in North Carolina, frequently visited Bill in prison in
South Carolina. Don continued managing Bill's affairs and continued
to attempt to acquire affidavits in an effort to obtain a new trial for
Bill. Don testified to talking to T. Cross, who told Don that he could
obtain an affidavit from Peaches Andrews recanting his testimony in
the Billy Graham trial. Don had an affidavit prepared and gave it to
T. Cross, but Andrews never signed the affidavit. Don also testified
to his attempts to obtain an affidavit from Charlie Dorn Smith, who
had given an affidavit in 1991 that was helpful to Bill; Don believed
that Smith would sign another more detailed affidavit. Don visited
Smith and had one of the attorneys and others talk to Smith; Smith,
however, did not sign the affidavit. In addition, Don obtained state-
ments from some twenty other witnesses. Various attorneys con-
firmed that they worked with Don to obtain the affidavits to provide
grounds to obtain a new trial for Bill.

In late summer while imprisoned, Bill told Don that he had a
friend, a former fellow inmate in state prison, Scott Sherpinskas, who
could get the Andrews and Smith affidavits signed. Actually, Sherpin-

3
skas was an FBI informant. After talking with Bill, Sherpinskas con-
tacted Special Agent Rob Waizenhofer telling him that Bill and Don
Prince wanted to hire someone to kill Peaches Andrews and Charlie
Dorn Smith. According to Sherpinskas, he and Bill Prince began dis-
cussing the contract murders of Andrews and Smith in October 1995.
Bill wanted to murder Smith because he believed that Smith had
orchestrated the lawsuit that Bill's son, Dewitt, had recently filed to
obtain control of his father's business. Bill presumably wanted to kill
Andrews because of his testimony in Bill's first trial and his subse-
quent unwillingness to recant. Bill came up with the idea of having
Andrews killed, with Dewitt and Smith's murders to follow. After
more thought, Bill decided not to kill Dewitt but to have him framed
for possessing heroin in hopes of distracting him from pursuing the
lawsuit. Bill assured Sherpinskas that his brother Don would travel
from North Carolina to pay Sherpinskas's hit man in South Carolina.
Bill also told Sherpinskas that his brother Don was going to find
someone else to commit the murders if Sherpinskas could not find
someone to do it.

As proof of the Princes' murder-for-hire plot, the Government
presented another witness, George Thomas Young, who was impris-
oned with Bill Prince during the Fall of 1995. (Young did not know
of the plot with Sherpinskas and Sherpinskas did not know of the plot
with Young.) Young testified that Bill asked him to arrange to murder
Andrews and Smith after Young got out of jail on December 1, 1995,
in exchange for a pay-off from Don. Bill gave Young maps to Smith's
girlfriend's house as well as to Andrews' house and explained that
Don would help Young find the houses and would pay Young for the
murders. Don acknowledged that Bill introduced him to Young as a
"friend," while Young was still imprisoned, but Don disclaimed all
knowledge of the two murder plots.

Upon Young's release from prison, Don, after traveling from North
to South Carolina, met with Young and showed him the residences of
Smith's girlfriend and of Andrews. Don paid Young approximately
$2,000 and gave him telephone charge cards to use for calling Don.
Don admitted giving the money and telephone cards to Young at his
brother's request, explaining that his brother Bill was extremely gen-
erous and often told him to distribute or send money to inmate
friends. Using the charge cards, Young frequently contacted Don dur-

4
ing Young's first week of release, and Don telephoned Young on at
least one occasion. According to Young, he also met with Don to dis-
cuss the murder plots on December 7. Young's wife and a neighbor
corroborated the fact that Young met with Don and that Young had
a map of Smith's girlfriend's house. The evidence showed that Young
accurately described the homes of Peaches Andrews and Smith's girl-
friend.

On December 8, 1995, Sherpinskas pretended that he had arranged
to have a hit man murder Andrews and showed Bill a staged photo-
graph depicting the dead body of Peaches Andrews. Bill negotiated
with Sherpinskas as to the amount owing for Andrews's murder and
the down payment for Smith's murder. Bill assured Sherpinskas that
Don would make the payments to Sherpinskas's chosen hit man. Bill
and Sherpinskas came up with the code word "Turbeville" for Don to
use so that the hit man would know and recognize Don.

When Don arrived at the prearranged location, a rest stop area off
Interstate 20, he asked the hit man (actually undercover FBI Agent
Bruce Otterbacher who taped their conversation),"You don't know
how to get to Turbeville, do you?" Don and Otterbacher discussed the
payoff and Don told him to get rid of the envelopes that contained the
$5,000 payoff. Otterbacher asked Don if he had seen the newspaper
story reporting the disappearance of Peaches Andrews and Don told
him that he had been called earlier that morning about the article.
Otterbacher talked about the "first deal" and the "second one." Don
told the agent "he wants you to hold off on the second one." The agent
replied, "he doesn't want me to do Smith?" Don answered, "no, he
wants you to hold on it . . . he wants everything on hold" because
"things are buzzing about this." There was a mix-up regarding the
payments and the agent asked Don when he could talk to his brother
Bill and clear the matter up. Don demurred, explaining, "I don't like
to talk a lot to him on the telephone because when he was on the run
all my lines were bugged . . . and they still may be."

After Don paid the agent, law enforcement officers arrested him.
The police reported that Don then stated in a disgusted voice, "The
things you would do for your brother." In the weeks after Don's
arrests, the Government obtained search warrants for Don's office,

5
home, boat, and car. The Government introduced at trial several
incriminating letters and documents obtained from those searches.

The brothers (mostly Don) lodge numerous arguments as to why
their convictions must be reversed.

II.

Both brothers initially object to the district court's refusal to redact
a tape recording and transcript of a conversation between Bill and a
Government informant in order to omit Bill's use of the word "nig-
gers." They rightly note that this pejorative word had no probative
value and was likely to be prejudicial to them.

The Government suggests that the district court offered to allow the
defense to use its own version of the transcript, which lacked the epi-
thet. But in fact, the court offered only to allow the admission of the
defendant's transcript in addition to the transcript prepared by the
Government, which did contain the epithet. As the district court
observed, this approach would almost certainly have had the effect of
making the epithet more conspicuous, and thus the brothers' refusal
to agree to it cannot be considered a rejection of a solution to the
problem.

The Government also suggests that redaction is unnecessary in this
case because the epithet was isolated, redaction would have delayed
the trial, and the defense had failed to seek redaction before trial even
though it had access to the tape for several weeks. The primary reason
the defense failed to request redaction earlier, however, appears to be
that its transcript of the tape never included the word. Although at
trial the Government asserted that redaction would take "all after-
noon," that statement seems to have been based primarily on its con-
cern that new transcripts would have to be made, and the district court
indicated that new transcripts could be made quickly and easily.
Accordingly, we find the Government's argument that the epithet was
properly admitted because redaction would have caused unjustifiable
delay unpersuasive.

However, we believe that the error in failing to redact the statement
was harmless because of the district court's careful jury instruction.

6
"We generally presume that a jury will follow cautionary instructions
regarding potentially prejudicial evidence." United States v. Love, 134
F.3d 595, 603 (4th Cir. 1998). The district court instructed the jury
not to allow the offensive language in the tape influence its conclu-
sions. This instruction was sufficient to eliminate the relatively mod-
est prejudicial effect that this isolated epithet might otherwise have
had on the jury.

III.

While in prison, Bill sent a letter to his wife, which contains the
following passage:

Please keep me posted on Pam [Don's daughter] and Scott's
kids. I sure hope Jillian will be well soon. I know they are
really hurt with everything that is going on. But I hope they
will understand that everything is my fault. I will never be
able to forgive myself for the problems that I have caused
everybody. But if it would be any consolation, I would have
done the same for Don.

(Emphasis added). The district court concluded that this letter consti-
tuted proper admissible evidence against Bill, but not against Don.
Neither of those rulings is challenged on appeal.

What Don does challenge is the district court's refusal to sever his
trial from Bill's. Don contends that the emphasized sentence in the
letter facially and powerfully incriminates him. For this reason, he
asserts that its admission at their joint trial violates the rule estab-
lished in Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the
Supreme Court held that admission at a defendant's trial of the con-
fession of a non-testifying co-defendant, which is"powerfully incrim-
inating" of the defendant, violates the defendant's Sixth Amendment
right to confront adverse witnesses. Id. at 135. A cautionary instruc-
tion by the trial court cannot cure such a violation and if such evi-
dence is to be admitted against the co-defendant, severance of the
defendants' trials is necessary. Id.

Subsequently, in Richardson v. Marsh, 481 U.S. 200 (1987), how-
ever, the Court clarified that a jury instruction can prevent or cure a

7
Sixth Amendment violation where the proffered statement does not
expressly implicate the defendant, but only becomes incriminating by
virtue of an inference from other evidence. The Court explained:

Where the necessity of such linkage is involved, it is a less
valid generalization that the jury will not likely obey the
instruction to disregard the evidence. Specific testimony that
"the defendant helped me commit the crime" is more vivid
than inferential incrimination, and hence more difficult to
thrust out of mind. Moreover, with regard to such an explicit
statement the only issue is, plain and simply, whether the
jury can possibly be expected to forget it in assessing the
defendant's guilt; whereas with regard to inferential incrimi-
nation the judge's instruction may well be successful in dis-
suading the jury from entering onto the path of inference in
the first place, so that there is no incrimination to forget.

Id. at 208.

The Richardson Court emphasized that the statement at issue there
omitted all reference to the existence of the defendant; of course,
here, the challenged statement does expressly name Don. Moreover,
the Richardson Court rationalized its distinction between "facially
incriminating" statements and statements "requiring linkage" by not-
ing that a rule limiting the application of Bruton to the former could
be "complied with by redaction -- a possibility suggested in that
opinion itself." Id. at 208-09. Here, redaction of the last sentence
would have entirely remedied the problem; however, neither the par-
ties nor the district judge considered redaction. They only discussed
exclusion of the entire letter, severing Don's trial from Bill's, or
admission of the letter with an instruction that the jury was only to
consider it as evidence against Bill. (Don rejected the instruction.)

Thus, the case at hand differs from Richardson . However, Don
cannot prevail based on these distinctions because Bruton does not
mandate severance unless evidence "powerfully incriminates" a
defendant. In Bruton, the co-defendant directly inculpated the peti-
tioner by stating essentially that "we committed the crime." Here, on
the other hand, the challenged passage does not powerfully incrimi-
nate Don.

8
To be sure, in light of the evidence presented in this case, a juror
could conclude that "the same" Bill would have done for Don referred
to the crime charged against Don -- conspiring to murder the wit-
nesses against his brother. Even if all evidence of Don's aid to Bill
while Bill was a fugitive was excluded, see infra at 11-12, the Gov-
ernment presented abundant evidence that while Bill was imprisoned,
Don visited and telephoned Bill frequently, ran his businesses, and
worked feverishly to obtain the affidavits believed necessary for
Bill's new trial. Indeed, Don testified at trial and freely admitted to
the considerable efforts he made on his brother's behalf.

If Don was, as he claimed, not guilty of the crime charged, Bill
might well have especially regretted and so particularly apologized to
the family for the fact that Don's innocent assistance to him could be
used as circumstantial evidence tying Don to Bill's criminal conspir-
acy. The statement in Bill's letter is not in any way inconsistent with
Don's defense that he extensively assisted his brother but never par-
ticipated in any murder-for-hire plot. The statement, standing alone,
simply does not powerfully incriminate Don.

IV.

Don also challenges the search warrants used by the Government
to search his car, home, boat, and office. He contends that the war-
rants were supported by false information, were not based on proba-
ble cause, and were overbroad.

We have carefully examined the affidavits and warrants. We have
no difficulty concluding that the affidavits contained no information
known by the officers to be materially false. Similarly, those affida-
vits provide ample probable cause to justify issuance of the warrants.

Some portions of the warrants do, however, contain broad boiler-
plate language authorizing seizure of every conceivable item without
tying these items to the alleged crimes or circumstances of the case.
However, the first two categories of "items to be seized" listed in the
warrant are specifically identified, i.e."life insurance policies, busi-
ness transactions, and/or communications involving" Bill, Don, and
their allegedly intended victims, and documents"evidencing the
fraudulent or illegal acquisition of life insurance policies or the pro-

9
ceeds thereof." These two categories are certainly described with ade-
quate particularity. See United States v. Fawole , 785 F.2d 1141, 1144
(4th Cir. 1986).

We have held that, in order to avoid the suppression of lawfully
seized evidence, a warrant that properly identifies some items "will
not be defeated by [other] ambiguous or conclusionary language" so
long as the warrant was "sufficiently particularized with respect to the
items seized." United States v. Jacob, 657 F.2d 49, 52 (4th Cir. 1981).
In other words a court will "sever" the too general portion of the war-
rant from the sufficiently specific portion. See United States v.
George, 975 F.2d 72, 79 (2d Cir. 1992). A search"conducted pursu-
ant to a warrant held unconstitutional in part does not invalidate the
entire search [and] only those items seized beyond the warrant's
scope will be suppressed." Id. ("`the remedy with respect to any items
exceeding the scope of the warrant [is not] invalidation of the search
but suppression of those items.'") (quoting United States v. Dunaloy,
584 F.2d 6, 11 n.4 (2d Cir. 1978)).

Don has pointed to no evidence used by the Government at trial
that did not fall into the properly identified first two categories of the
warrant. The evidence obtained pursuant to the lawful portion of the
warrant was rightly admitted, the remainder of the warrant, while too
broad, provides no basis for reversal.

V.

Don maintains that the district court erred in admitting, over his
objection, evidence of Bill's prior murder conviction; evidence that
Bill was a beneficiary of the insurance policies held by the victim of
that murder, Billy Graham, and by one of the intended victims of the
instant murder-for-hire scheme; evidence that Don helped Bill collect
on Graham's policy; evidence that Don helped Bill when he was a
fugitive; evidence, including the complaint, of a lawsuit brought
against Don by his nephew; and evidence of threats allegedly made
by Don against a woman who later testified at trial for the Govern-
ment. Don asserts that the admission of this evidence violated Federal
Rule of Evidence 404(b), in that it simply constituted evidence of bad
character with no other legitimate evidentiary purpose, and Rule 403,
in that its prejudicial effect outweighed its probative value.

10
Rule 404(b) permits admission of evidence necessary to prove
"motive, opportunity, preparation, plan, knowledge, identity or
absence of mistake or accident." United States v. Bailey, 990 F.2d
119, 122 (4th Cir. 1993). Also admissible is evidence of bad acts that
arise out of the same series of transactions as the charged offense and
is "necessary to complete the story of the crime," United States v.
Kennedy, 32 F.3d 876, 885 (4th Cir. 1994), evidence inextricably
intertwined with the charged crime, United States v. Chin, 83 F.3d 83,
88 (4th Cir. 1996), or evidence "elicited as part of the groundwork
that the government needed to lay to explain to the jury how . . . indi-
viduals fit into the operation of [a] conspiracy," United States v.
McMillon, 14 F.3d 948, 955 (4th Cir. 1994). It is well established that
evidence of these kinds does not implicate Rule 404(b)'s prohibition
of evidence admitted solely to demonstrate bad character. See
Kennedy, 32 F.3d at 886; Chin, 83 F.3d at 88; McMillon, 14 F.3d at
955.

We fail to see what bearing Bill's murder conviction and his status
as a beneficiary of the insurance policies would have on the matter
of Don's character, and thus we doubt that this evidence even raises
a question under Rule 404(b). The evidence concerning Bill and the
insurance policies certainly has no such significance in itself. Assum-
ing that Bill's prior murder conviction could have subjected Don to
inferences of guilt or bad character by association, that evidence was
plainly admissible as evidence necessary to complete the story of the
crime. See Kennedy, 32 F.3d at 885. Similarly, the evidence concern-
ing the lawsuit was properly admitted to illustrate Don's motive and
intent to kill Smith. Likewise, Don's threatening statements to his ex-
girlfriend was evidence of his intent, preparation, plan, and absence
of any mistake. Nor did any of this evidence unfairly prejudice Don.

The evidence that Don helped Bill collect on the Graham policy
and that Don helped Bill while he was a fugitive, by contrast, should
have been excluded. This evidence could have been omitted without
adversely affecting a complete presentation of the story of the crime
alleged against Don, i.e., conspiracy to murder the witnesses. The
assistance Don gave Bill when he was a fugitive manifestly was not
part of the same criminal episode as the conspiracy to murder the wit-
nesses; the "criminal episode" surrounding Bill's flight from justice
terminated when Bill was captured, and there is nothing to indicate

11
that Bill planned to murder the witnesses before then. Thus, evidence
of Don's assistance to Bill while he was a fugitive was not admissible
as evidence of acts constituting "necessary preliminaries" to the con-
spiracy, acts "inextricably intertwined" with it, acts forming part of a
single criminal episode containing the alleged crime, Chin, 83 F.3d
at 88, or acts arising out of the same series of transactions, Kennedy,
32 F.3d at 885.

It is difficult to see what probative value this evidence could have
had other than to suggest that Don had previously been involved in
Bill's unlawful activity, and that Don was therefore likely to have
conspired with his brother in the charged conspiracy. The only justifi-
cations that the Government offers for this evidence are that it "al-
lowed the jury to fully understand the extent of the conspiracy and the
illegal methods used by him and Bill in reaching the goal of their con-
spiracy," and that it "shows how the Prince brothers established a
relationship of trust through their activities and how these events
flowered into the charged crimes." Brief of Appellant at 33. The for-
mer assertion falsely implies that the prior bad acts were part of the
conspiracy alleged, and the latter in effect creates a new exception to
Rule 404(b) that would allow a defendant's prior bad acts in conjunc-
tion with a co-defendant, whatever their nature, to be admitted in vir-
tually every instance.

In sum, even if this evidence could survive scrutiny under Rule
404(b), it would nonetheless be inadmissible under Rule 403 because
its prejudicial effect would outweigh whatever modest probative
value it might have. However, even where the trial court abuses its
discretion in admitting bad character evidence, such error may be
harmless. See United States v. Kenny, 973 F.2d 339, 344 (4th Cir.
1992). In deciding the harmlessness of an error we must determine
"whether we can say that we believe that it is`highly probable that
the error did not affect the judgment.'" United States v. Madden, 38
F.3d 747, 753 (4th Cir. 1994) (quoting United States v. Nyman, 649
F.2d 208, 212 (4th Cir. 1980)). In light of the voluminous properly
admitted evidence detailed above against Don, we have no difficulty
finding that the error here did not affect the judgment and was there-
fore harmless.

12
VI.

Don asserts that the district court erred by instructing the jury that
"[i]t does not matter whether the interstate travel took place before or
after the murder occurred or was supposed to have occurred," because
the statute criminalizes interstate travel with an intent that murder "be
committed," not interstate travel following a murder.

Don maintains that the meeting in which he gave money to the
Government agent occurred after the victim to whom the payment
allegedly related, Peaches Andrews, was already believed to be dead.
Even if the Government cannot rely on evidence of travel post-
murder, a question we need not decide here, this does not assist Don
in light of the fact that the Government produced evidence tending to
show that Don traveled interstate to further the plan to murder
Andrews before he came to believe Andrews was dead. The evidence
indicated, for example, that Don could not have believed Andrews
was dead prior to December 8, and that Don drove from North to
South Carolina on December 1 to meet with an individual concerning
Andrews's murder.

VII.

We have carefully reviewed Don's other arguments as to why his
conviction must be reversed and find them all meritless. There
remains only Don's assertion that the district court improperly
enhanced his sentence for obstruction of justice under U.S.S.G.
§ 3C1.1.

On appeal, Don essentially contends that there was insufficient evi-
dence for the district court to find that he gave false testimony when
he took the stand. The district judge made a finding at the sentencing
hearing that Don had lied at trial when he testified that the money he
gave to the hit man was paid for the purpose of obtaining affidavits
to help secure a new trial for Bill. The district court relied heavily on
the audio tape of the meeting at the interstate rest area between Don
and Agent Otterbacher. Though the court noted that"the parties [on
the tape] used guarded language and code words," it also noted that
"[i]t was obvious they were talking about something that was some-
what nefarious" and that there was no reference on the tape to any sort

13
of affidavit. Indeed, the tape contains interchanges between Don and
the undercover agent that seem surely related to the plot to murder
Peaches Andrews and Smith, not to affidavits. For instance, when
Otterbacher complained about the amount of money Don had brought,
the following exchange took place:

Otterbacher: I was supposed to get five thousand for the first
deal, okay. That was up front and I was supposed to get five
thousand more cut in half and you guys were gonna hold on
to half of it for the second one.

Don: Yeah, but [Bill] wants you to hold off on the second
one.

Otterbacher: Oh, he doesn't want me to do Smith?

Don: No, no, no, no, no he [Bill] wants to hold on it.

Otterbacher: I thought he wanted him done in a couple days.

Don: No, no, no, no, he wants you to hold him. He wants
you to hold on him . . . .

The discussion on the tape in conjunction with the trial testimony of
Sherpinskas, who arranged the meeting, convince us that the district
court did not commit clear error when it found that Don had lied on
the stand about this meeting. Thus there was sufficient evidence to
support the district court's obstruction of justice enhancement.

In his reply brief, Don additionally contends that the sentencing
judge failed to follow the requirements of United States v. Dunnigan,
507 U.S. 87 (1993). Dunnigan directs that in order to impose an
enhancement for obstruction of justice, a court must make a "finding
. . . of an obstruction of, or impediment to, justice that encompasses
all of the factual predicates for a finding of perjury." Id. at 95. The
"factual predicates" consist of at least the main elements of the
Court's definition of perjury: falsity, materiality, and intent. See id. at
94. Don contends that in this case the district court found only that
Don committed "perjury," and made no specific findings on two of
the factual predicates, namely intent to testify falsely and materiality.

14
Whether the district court's finding was sufficient under Dunnigan
presents a close question. However, this circuit has long held that we
will not address new arguments raised for the first time in the reply
brief. See Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995). Don has
thus waived his Dunnigan argument; the obstruction of justice
enhancement was not otherwise in error.

AFFIRMED

15