United States v. Wyche , 57 F. App'x 789 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 23 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 02-7024
v. (E.D. Oklahoma)
LOU JEAN WYCHE, (D.C. No. 00-CR-77-S)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN , McWILLIAMS , and ANDERSON , Circuit Judges.
After a jury trial, Appellant Lou Jean Wyche was acquitted of conspiracy to
posses with intent to distribute methamphetamine in violation of 21 U.S.C. § 846,
and interstate transportation in aid of racketeering in violation of 18 U.S.C.
§§ 1952(a)(1) and (2), but was convicted of three counts of perjury in violation of
18 U.S.C. § 1623. The district court denied Wyche’s subsequent motion for a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
judgment of acquittal and, applying USSG § 2J1.3(c)(1), sentenced her to a total
of 78 months’ imprisonment.
Wyche appeals both her conviction and sentence, arguing: (1) there was
insufficient evidence to support the jury’s finding that she was under oath—an
element of the crime of perjury—when she made the false declarations upon
which the perjury charge was based; (2) the district court erred in applying USSG
§ 2J1.3(c)(1) and sentencing her as an accessory after the fact to possession of
192.4 grams of methamphetamine because there was no credible evidence linking
her to the drug conspiracy; and (3) the district court erred when it did not admit
the entirety of her testimony from her first trial. Exercising jurisdiction pursuant
to 28 U.S.C. § 1291, we affirm.
BACKGROUND
On October 3, 2000, officers from the Drug Enforcement Administration
(D.E.A.) and local law enforcement officers from Muskogee County, Oklahoma,
established a drug interdiction point off of I-40. In the course of the interdiction,
the officers arrested Mack Flynn and Connie Ketcher for possession of three
pounds of a substance containing methamphetamine. Flynn and Ketcher were
driving from Morgan Hill, California, where they had obtained the
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methamphetamine, to Sallisaw, Oklahoma, where, according to Ketcher, they
were to deliver the drugs to a co-conspirator.
Subsequent to her arrest, Ketcher began cooperating with the government
and named Lou Jean Wyche as a co-conspirator, alleging, among other things, that
Wyche planned the trip to California. According to Ketcher, Wyche met them in
California and procured, packaged and assisted in hiding the methamphetamine
that she and Flynn were carrying when they were arrested.
Wyche was indicted on one count of conspiracy to possess with intent to
distribute methamphetamine and one count of interstate transportation in aid of
racketeering. At her first trial, in February of 2001, she testified that she traveled
to California to visit with two friends, Melony Bryans and Fern Artz, and that she
stayed at the Micro-Tel Motel during her entire trip, including the night of
October 1, 2000. Although she admitted seeing Flynn and Ketcher in California,
she testified that she had no knowledge of their plan to transport drugs back to
Oklahoma. She also testified that she picked that weekend to visit California
because her husband, Larry Wyche, was in Casper, Wyoming, for a rodeo. The
jury in this first trial was unable to reach a unanimous verdict and a mistrial was
declared.
A second trial was scheduled for March. However, shortly after the jury
was impaneled, a local paper ran an article on the Wyche trial, which a number of
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jurors, contrary to the court’s instructions, read. Another mistrial was declared
and a third trial was scheduled for April. At the close of the third trial the jury
was again deadlocked, and the court declared a third mistrial.
After the third trial, the grand jury issued a superceding indictment
charging Wyche with three counts of perjury in addition to the two original
counts. The government alleged that Wyche committed perjury when she testified
that: (1) the purpose of her trip to California was to see Bryans and Artz and that
she did in fact see them; (2) she stayed at the Micro-Tel Motel on the night of
October 1, 2000; and (3) her husband was in Casper, Wyoming, for a rodeo
causing him to be away from home from September 26 to October 3, 2000. The
district court scheduled a fourth trial to begin in June.
During the fourth trial the government introduced evidence that Wyche had
neither visited, nor made plans to visit, Bryans and Artz while in California.
Further, the government introduced evidence that Wyche did not stay at the
Micro-Tel Motel on the night of October 1, 2000—she checked into the Executive
Inn at the San Jose Airport that night. Finally, the prosecution introduced
evidence that Larry Wyche did not travel to a rodeo in Casper because the rodeo
had been cancelled.
Wyche did not testify in the fourth trial. The government, however,
introduced excerpts of her testimony from the first trial. She objected to the
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admission of the transcript of her testimony. When her objection was overruled,
she insisted that the court admit the entire transcript rather than just the excerpts
introduced by the government. The court informed Wyche that the rule of
completeness allowed her to have the entire transcript of her testimony admitted if
she offered it properly. There is no record of Wyche ever making such an offer.
At the close of the fourth trial, the jury found Wyche not guilty of the
conspiracy and racketeering counts but guilty of all three counts of perjury. In
response, Wyche filed a motion for a judgment of acquittal. She claimed that the
government failed to introduce evidence of two of the essential elements of the
crime of perjury—that she was under oath when she made the declarations and
that the declarations were made in a court of the United States. The district court
denied her motion because it found that there was sufficient evidence to support
the jury’s verdict.
Finally, Wyche objected to the presentence report. She argued that the
government failed to provide credible evidence that she was involved in the drug
conspiracy. Therefore, she argued that the court should apply USSG § 2J1.3(a)
and sentence her under the guideline for perjury rather than applying USSG
§§ 2J1.3(c)(1) and 2X3.1, sentencing her as an accessory after the fact to
possession of methamphetamine, as the presentence report recommended. After
considering Wyche’s argument, the court found by the preponderance of the
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evidence that, notwithstanding her acquittal on counts one and two, Wyche was
involved in the drug conspiracy and that the underlying offense involved 194.2
grams of methamphetamine. Therefore the court overruled Wyche’s objection,
applied USSG §§ 2J1.3(c)(1) and 2X3.1, and sentenced her to a total of 78
months’ imprisonment.
DISCUSSION
I. Sufficiency of the Evidence
The essential elements of the crime of perjury are: “(1) the defendant made
a declaration under oath before a federal court; (2) such declaration was false; (3)
the defendant knew the declaration was false; and (4) the declaration was
material.” United States v. Durham , 139 F.3d 1325, 1331 (10th Cir. 1998) (citing
18 U.S.C. § 1623(a)). Wyche argues that there was insufficient evidence to
support the jury’s conclusion as to the first element of perjury: that she was
under oath when she made the perjurious declarations. 1
1
Although Wyche did not argue in her appellate briefs that there was
insufficient evidence to support the conclusion that the statements were made in a
court of the United States, she did raise the issue during oral argument. However,
failure to raise an issue in the opening appellate brief waives that issue. See State
Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).
Arguments raised for the first time at oral argument come “too late”. Thomas v.
Denny’s, Inc., 111 F.3d 1506, 1510 n.5 (10th Cir. 1997); see also, United States
v. Osterlund, 671 F.2d 1267, 1267 n.2 (10th Cir. 1982) (“Because this issue was
(continued...)
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Sufficiency of the evidence is a legal issue that we review de novo. United
States v. McKissick , 204 F.3d 1282, 1289 (10th Cir. 2000). Those challenging
the sufficiency of the evidence are,
faced with a high hurdle: in reviewing the sufficiency of the
evidence to support a jury verdict, this court must review the record
de novo and ask only whether, taking the evidence – both direct and
circumstantial, together with the reasonable inferences to be drawn
therefrom – in the light most favorable to the government, a
reasonable jury could find the defendant guilty beyond a reasonable
doubt.
United States v. Voss , 82 F.3d 1521, 1524-25 (10th Cir. 1996) (quotations
omitted). “Rather than examining the evidence in bits and pieces, we evaluate the
sufficiency of the evidence by considering the collective inferences to be drawn
from the evidence as a whole.” United State v. Wilson , 107 F.3d 774, 778 (10th
Cir. 1997) (quotations omitted). “We reverse only if no rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Wacker , 72 F.3d 1453, 1462-63 (10th Cir. 1995).
Wyche’s argument is in two parts. First, there was no direct evidence that
she was under oath when she testified at the first trial. Second, she argues that
the “under oath” element cannot be proved using circumstantial evidence.
1
(...continued)
raised for the first time during oral argument, we need not reach this issue on
appeal.”).
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A. Direct Evidence
Wyche’s first argument, that “ no one testified that Wyche’s previous
testimony was given under oath,” and thus there was no direct evidence that she
was under oath when she testified at her first trial, Appellant’s Br. at 12, is not
supported by the record. Special Agent Springer of the D.E.A. testified on cross
examination by the defense as follows:
Q: How do you know who made the phone call?
A: Because my information is, from the previous trial, is that [Ms.
Wyche] said that she and only she had access to her credit
card, which made the phone call that was charged.
....
Q: So my question is, while you think that it was [Ms. Wyche],
you don’t know who made the call or who received it?
A: And my answer, as before, is I could not tell you who received
the phone call from in front of that store, but according to [Ms.
Wyche’s] testimony under oath was that she and only she had
that card.
Tr. of Trial, June 5, 2001, Appellee’s App. at 7-8 (emphasis added). Springer
later identified the “previous trial” as Wyche’s first trial, which was held in
February of 2000. Id. at 14. It is evident from the record that the other
references to testimony by Wyche, detailed below, were to that trial as well.
B. Circumstantial Evidence
In addition to this direct evidence, there was circumstantial evidence that
the statements in question were made under oath. Although Wyche contends,
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without supporting authority, that the “under oath” requirement cannot be
established by circumstantial evidence, we disagree.
First, as Wyche concedes, the other elements of the crime of perjury may be
proved using circumstantial evidence. See Appellant’s Br. at 14.
Second, as indicated by our standard of review, the elements of a crime
ordinarily can be proved by direct or circumstantial evidence. See Voss , 82 F.3d
at 1524-25. Case law on the issue establishes that “perjury cases, like all criminal
cases, are susceptible to proof by circumstantial evidence.” United States v.
Chapin , 515 F.2d 1274, 1280 (D.C. Cir. 1975); see also United States v. Serafini ,
233 F.3d 758, 770 (3d Cir. 2000) (holding that intent and knowledge can be
proved by circumstantial evidence).
Third, the perjury statute itself supports that rule. See 18 U.S.C. § 1623(e).
It specifically provides that there is no requirement that “proof be made by . . .
documentary or other type of evidence.” Id. Wyche’s conclusory dismissal of the
language of this section as a “red herring,” Appellant’s Br. at 15, does nothing to
explain why the government’s interpretation of it—that it explicitly authorizes
proof of all elements of perjury by either direct or circumstantial evidence—is
incorrect.
For these reasons, Wyche’s other, and similar, arguments—that there is no
case explicitly holding that the “under oath” requirement of perjury can be proved
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using circumstantial evidence, that proof by direct evidence is better, and that
there was no obstacle to proving that she was under oath with direct evidence—
are equally unpersuasive.
The government contends that the following circumstantial evidence
supports the jury’s finding on the under oath requirement of the statute: Officer
Kidwell testified he was present at the trial of Lou Jean Wyche and that he heard
her “testimony,” see Appellant’s App. Vol. 2 at 361, 368; he read from a
“transcript” of Wyche’s testimony, see id. at 369; the jury saw 27 witnesses at
trial, all of whom were sworn in prior to testifying, from which they could infer
that a witness who gives testimony in court is under oath, see Appellee’s Br. at
16; and, in the context of the trial, it was evident that the transcript and Wyche’s
testimony at issue were from Wyche’s first trial in federal district court.
It is the government’s position that use of the word “testimony” implies
that the speaker was under oath. The government cites a number of cases in
support of this position. See e.g. Edelstein v. United States , 149 F. 636, 640 (8th
Cir. 1906) (finding that “[t]he word ‘testimony’ or to ‘testify’ implies the usual
preliminary qualification of taking an oath to speak the truth”); see also United
States v. Molinares , 700 F.2d 647, 651 n. 6 (11th Cir. 1983) (concluding that
“[t]he fact that the proceedings take place before a court or a grand jury gives rise
to an inference that the defendant was under oath while testifying”).
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Wyche counters that inferring she was under oath from the use of the word
“testimony” would “eliminate the need for the ‘under oath’ element” since,
according to the government, “if the person testified, they must have been under
oath.” Appellant’s Reply Br. at 3. While Wyche’s description of the logical
extension of the government’s position does not lack merit, her conclusion is
flawed. It is not an element of perjury, as defined by §1623, that a person testify
under oath. Rather the requirement is that the person make a declaration under
oath. The government’s position would eliminate the “under oath” requirement
only if the word “testify” were first read into the statute. Because we decline to
read the statute in this manner, we find Wyche’s argument unpersuasive.
Wyche next argues that it is unreasonable to infer that she was under oath
because witnesses are not always sworn before they testify. In support of her
argument she cites numerous cases, mostly unpublished, in which witnesses gave
“testimony” that was not under oath. All of the cases she cites are factually
distinguishable from the present case.
However, even were Wyche able to point to cases in which a witness was
not placed under oath, this would not undermine the government’s position in the
context of this case. The government’s position is that it is reasonable to
conclude that a person who gives “testimony” is under oath. An inference is
“reasonable where there exists a probability that the conclusion flows from the
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proven facts.” United States v. Rahseparian , 231 F.3d 1257, 1262 (10th Cir.
2000) (quotation omitted). An inference is only unreasonable where the jury
“engaged in a degree of speculation and conjecture that renders its findings a
guess or mere possibility.” Id. Merely pointing to rare cases in which witnesses
were not sworn in will not convert a “probability” into a “guess or mere
possibility.” Id. In any event, as indicated above, the record in this case contains
more than just the use of the word “testimony,” and the references to testimony
must be interpreted in context.
We conclude that the entirety of the evidence in the record, both direct and
circumstantial, together with proper inferences drawn from it, when viewed in the
light most favorable to the government, was sufficient for a reasonable jury to
find beyond a reasonable doubt that Wyche was under oath when she made the
false declarations at her first trial.
II. Sentence
Section 2Jl.3 of the Sentencing Guidelines provides that if the defendant is
convicted of perjury with respect to a criminal offense, the sentencing court
should “apply §2X3.1 (Accessory After the Fact) in respect to that criminal
offense, if the resulting offense level is greater than [the base offense level for
perjury: 12].” USSG § 2J1.3(c)(1). At sentencing, the district court found that a
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preponderance of the evidence linked Wyche to the drug conspiracy. Therefore,
the court found Wyche’s perjury was related to a conspiracy to traffic drugs, and
sentenced her as an accessory after the fact to that crime, resulting in an offense
level of 26. Wyche’s criminal history placed her in category I. Her offense level
and criminal history resulted in a guideline imprisonment range of 63 to 78
months, and she was sentenced to 78 months’ imprisonment.
Wyche objects to this application of the Sentencing Guidelines because, she
argues, there was insufficient evidence to establish that she was involved in the
drug conspiracy. The thrust of Wyche’s argument is that Ketcher’s testimony,
which Wyche asserts is the only evidence linking her to the drug conspiracy, was
not credible. Without Ketcher’s testimony, Wyche argues, there was not enough
evidence for the district court to find, by a preponderance of the evidence, that
she had any knowledge of the drugs. Therefore, her offense did not involve
perjury in respect to any other criminal offense and the district court should have
applied USSG § 2J1.3(a), the basic perjury sentencing guideline, resulting in a
much shorter sentence.
“We review the district court’s application of the Sentencing Guidelines de
novo and the district court’s factual determinations for clear error, giving due
deference to the district court’s application of the guidelines to the facts.” United
States v. Vallo , 238 F.3d 1242, 1250 (10th Cir.) (quotation omitted), cert denied ,
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532 U.S. 1057 (2001). “A district court's factual finding is clearly erroneous only
if it is without factual support in the record or if this court, after reviewing all the
evidence, is left with a definite and firm conviction that a mistake has been
made.” United States v. Patron-Montano , 223 F.3d 1184, 1188 (10th Cir. 2000)
(quotation omitted). “[A] jury’s verdict of acquittal does not prevent the
sentencing court from considering conduct underlying the acquitted charge, so
long as that conduct has been proved by a preponderance of the evidence.”
United States v. Watts , 519 U.S. 148, 157 (1997).
Wyche directs our attention to the district court’s statement that much of
Ketcher’s testimony was questionable. See Appellant’s App. Vol. 2 at 455. She
then relies on United States v. Renteria , 161 F. Supp. 2d 1294, 1300 (D. N.M.
2001), in which the district court also found that the witness whose testimony
linked the defendant to a drug conspiracy lacked credibility. As a result of that
finding, the court in Renteria applied the lesser offense level in USSG § 2J1.3(a).
See id. at 1300-01. Wyche unsuccessfully argued in the district court, and
reasserts here, that the facts in Renteria are sufficiently similar to the facts in this
case to compel a similar disposition.
That argument, however, ignores the facts that corroborate Ketcher’s
testimony, facts that were not present in Renteria . While there were
inconsistencies in Ketcher’s testimony, see Appellant’s Br. at 19-23, the record is
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replete with evidence corroborating her assertion that Wyche was involved in the
conspiracy to transport the methamphetamine: she flew to California on
September 29 and returned on October 2, see Tr. of Trial, Appellee’s App. at 25-
27, 122-26; her credit card was used to reserve both rooms at the Micro-Tel Motel
in Morgan Hill—the one she used and the one Flynn and Ketcher used, see id. at
31-35; her cell phone was found in the car Flynn and Ketcher were driving in
when they were arrested, see id. at 2; the police found an atlas with her
handwritten notes and directions to the Mirco-Tel Motel in Morgan Hill when
they searched Flynn and Ketcher’s home, see id. at 74-76; and, there were records
of numerous phone calls suggesting that Flynn and Ketcher were in frequent
contact with Wyche during the entire trip to and from California, see id. at 43-49.
Further complicating Wyche’s argument, the district court, unlike the
Renteria court, found that a preponderance of the evidence linked Wyche to the
methamphetamine. See Tr. of Sentencing Proceedings, Appellant’s App. Vol. 2 at
455-56. This conclusion had substantial “factual support in the record”; therefore
we conclude that the district court’s finding was not clearly erroneous. Patron-
Montano , 223 F.3d at 1188.
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III. Exclusion of the Transcript
Finally, Wyche argues that the district court erred when it failed to admit
the entire transcript of her testimony in the first trial. The record does not
support her argument. The district court indicated that it would admit the entire
transcript if it were offered by the defense. See Appellant’s App. Vol. 2 at 365-
66. Appellant did not point to any place in the record where the entire transcript
was offered by defense but was not admitted by the court. We found no evidence
that the defense ever properly offered the entire transcript of Wyche’s testimony.
“We review the district court’s evidentiary rulings for abuse of discretion.”
United States v. Bautista , 145 F.3d 1140, 1151 (10th Cir. 1998). This was no
abuse of discretion on the part of the court.
CONCLUSION
For the foregoing reasons, the decision of the district court is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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