U.S. v. Murray, s. 94-5500

• Decision Date: 21 September 1995
• Docket Number: 94-5627,Nos. 94-5500,s. 94-5500
• Citation: 65 F.3d 1161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Wise MURRAY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Misjaanda Diszelle JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1161

65 F.3d 1161

UNITED STATES of America, Plaintiff-Appellee, v. William Wise MURRAY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Misjaanda Diszelle JOHNSON, Defendant-Appellant.

Nos. 94-5500, 94-5627.

United States Court of Appeals, Fourth Circuit.

Argued May 3, 1995.

Decided Sept. 21, 1995.

ARGUED: Langdon Dwight Long, Assistant Federal Public Defender, Columbia, SC; James Paul Rogers, Columbia, SC, for appellants. David Jarlath Slattery, Assistant United States Attorney, Columbia, SC, for appellee. ON BRIEF: J. Preston Strom, Jr., United States Attorney, Columbia, SC, for appellee.

Before WIDENER and WILLIAMS, Circuit Judges, and HEANEY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge WIDENER and Senior Judge HEANEY joined.

OPINION

WILLIAMS, Circuit Judge:

In this appeal we consider what constitutes an express threat of death during a robbery under the Sentencing Guidelines, U.S.S.G. Sec. 2B3.1(b)(2)(F), ¹ and address several other trial and sentencing issues. A five count indictment charged William Wise Murray with the October 1993 armed bank robbery (Count 1) of the Columbia Teachers Federal Credit Union in Columbia, South Carolina, in violation of 18 U.S.C. Secs. 2 and 2113(a) and (d) (1988). The indictment also charged Murray and Misjaanda Diszelle Johnson with the unarmed bank robberies of three other banks in Columbia (Counts 2-4) between November 5 and 19, 1993, and one attempted unarmed bank robbery (Count 5) of a bank in West Columbia, South Carolina, on November 22, 1993, all in violation of 18 U.S.C. Secs. 2 and 2113(a). Johnson pleaded guilty to Counts 2-5, and on appeal challenges the sentence imposed against her. Murray went to trial, and a jury convicted him of armed bank robbery but acquitted him of the remaining unarmed robbery charges. On appeal, Murray raises several evidentiary issues and also challenges the sentence imposed against him by the district court. Finding no error, we affirm.

I.

Johnson was arrested immediately after an attempted bank robbery on November 22, 1993. She admitted in a signed statement to F.B.I. agents that she and Murray had planned the four unarmed robberies between November 5 and November 22 and that Murray had driven her to each one and had picked her up after the first three robberies. The agents telephoned Murray at a number provided by Johnson. Murray voluntarily came in for questioning and orally confessed that he had driven Johnson to the four bank robberies in November. Murray also told the agents of another robbery not mentioned by Johnson when he confessed that, in October, Johnson helped him commit a bank robbery during which he used a toy gun. Murray refused to sign a written statement of his confession, but evidence of his oral statement was later admitted at his trial. A sawed-off shotgun recovered from Johnson's belongings also was admitted as evidence at Murray's trial. We first address Johnson's claims of sentencing error and then Murray's trial and sentencing challenges.

II.

On August 12, 1994, the district court sentenced Johnson to 121 months on each of the four unarmed robbery counts, to be served concurrently. ² Johnson challenges the district court's findings that she obstructed justice, that she did not accept responsibility for her actions, and that she made an express threat of death during one robbery.

A.

The district court found that Johnson committed perjury during Murray's trial, and enhanced her sentence two levels for obstruction of justice pursuant to U.S.S.G. Sec. 3C1.1. Johnson challenges this enhancement on the basis that the district court failed to make a specific finding addressing each element of her alleged perjury as set forth in United States v. Dunnigan, --- U.S. ----, ----, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993) ("[I]t is preferable for a district court to address each element of the alleged perjury in a separate and clear finding."). However, the language upon which Johnson relies is precatory rather than mandatory. Indeed, a district court's enhancement of a sentence for perjury is sufficiently supported if the court's finding of obstruction "encompasses all of the factual predicates for a finding of perjury." Id. Thus, the enhancement is warranted when the district court finds that a defendant gave "false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." Id. at ----, 113 S.Ct. at 1116. Whether Johnson committed perjury is a factual determination made by the sentencing court which we review for clear error. United States v. Brooks, 957 F.2d 1138, 1148 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 3051, 120 L.Ed.2d 917 (1992).

The record reflects, and the district court properly found, that Johnson willfully gave false testimony concerning a material matter during Murray's trial. In a signed confession Johnson stated that Murray was involved in the same robberies to which she later pleaded guilty. Nevertheless, at Murray's trial Johnson testified that she could not remember making any statement about Murray's involvement. She claimed that her memory was impaired because she was high on crack cocaine when she was arrested. Johnson also disavowed her signature on her written confession. The district court made several assessments of Johnson's credibility and specifically found that Johnson lied when she denied having signed the confession. The district court also disbelieved Johnson's testimony that she did not remember confessing, and found that Johnson "obstructed justice either by giving incorrect information to the police or else [by] lying on the [witness] stand." (J.A. 296.) See United States v. Barnett, 939 F.2d 405, 408 (7th Cir.1991) (whether defendant lied under oath about her confession or "simply remembered incorrectly the events during the taking of her confession" is a credibility determination to be made by the sentencing court). The court also found that, based upon other credible contradictory evidence, Johnson perjured herself by denying she was carrying Murray's child. Because these factual findings are supported by the record, we conclude that the district court did not err in enhancing Johnson's sentence for obstruction of justice.

B.

Johnson next argues the district court erred by denying her a two level decrease in the offense level for acceptance of responsibility under U.S.S.G. Sec. 3E1.1 for having admitted she committed the robberies. We defer to the sentencing court's factual determination because it "is in a unique position to evaluate a defendant's acceptance of responsibility." U.S.S.G. Sec. 3E1.1, comment. (n. 5). The Sentencing Guidelines commentary provides that an obstruction enhancement normally indicates the defendant has not accepted responsibility for her crimes. Id., comment. (n. 4). Furthermore, "a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility." Id., comment. (n. 1(a)). Although Johnson claims she accepted responsibility for her crimes by pleading guilty, during Murray's trial she denied her earlier statement that he participated in the robberies. The district court determined that Johnson thereby intentionally misled law enforcement officers. Based on the propriety of the obstruction enhancement, we conclude that the district court did not err in determining that Johnson should not receive a downward adjustment for acceptance of responsibility. United States v. Melton, 970 F.2d 1328, 1335 (4th Cir.1992) (obstruction finding supports denial of reduction for acceptance of responsibility).

C.

Finally, Johnson challenges her two level sentence enhancement pursuant to U.S.S.G. Sec. 2B3.1(b)(2)(F) for making an "express threat of death" during a robbery even though she was actually unarmed. ³ After demanding money during the November 5th robbery, Johnson told the teller: "Give me three stacks of $20's. Don't give me a dye pack. I have a gun pointed at you." (J.A. 245.) When the teller was slow to respond, Johnson queried: "You think I'm playing?" Id. The district court, with opportunity to assess evidence of Johnson's demeanor and the tone of the words used, relied on the intent of the Sentencing Guidelines to find that such a threat was an express threat of death because it would "instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery." U.S.S.G. Sec. 2B3.1 comment. (n. 6). ⁴

Because Johnson contends the district court incorrectly applied the express threat of death enhancement, we apply the "due deference" standard of review under 18 U.S.C. Sec. 3742(e)(2). United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989). Under that standard, we review de novo the district court's "legal interpretation of guidelines terminology and the application of that terminology to a particular set of facts." United States v. Toler, 901 F.2d 399, 402 (4th Cir.1990). For the reasons expressed below, we agree with the district court, and find no error in its determination that Johnson made an express threat of death as defined in the robbery guideline.

Our holding is supported by the explanatory language of application note 6 to the commentary to Sec. 2B3.1, which states:

An "express threat of death," as used in subsection (b)(2)(F), may be in the form of an oral or written statement, act, gesture, or combination thereof. For example, an oral or written demand using words such as "Give me money or I will kill you", "Give me the money or I will pull the pin on the grenade I have in my pocket", "Give me the money or I will shoot you", "Give me your money or...