U.S. v. Rohde, 98-4000

• Decision Date: 03 November 1998
• Docket Number: No. 98-4000,98-4000
• Parties: 1999 CJ C.A.R. 208 UNITED STATES of America, Plaintiff-Appellant, v. Arlene Elizabeth ROHDE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1298

159 F.3d 1298

1999 CJ C.A.R. 208

UNITED STATES of America, Plaintiff-Appellant, v. Arlene Elizabeth ROHDE, Defendant-Appellee.

No. 98-4000.

United States Court of Appeals Tenth Circuit.

Nov. 3, 1998.

Brooke C. Wells, Assistant United States Attorney, Salt Lake City, UT (David J. Schwendiman, United States Attorney, Salt Lake City, UT, on brief), for Plaintiff-Appellant.

James D. Gilson, VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, UT (Stephen K. Christiansen, VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, UT, on brief), for Defendant-Appellee.

Before BRORBY, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

The United States appeals the dismissal on double jeopardy grounds of a perjury indictment against Arlyne Rohde. ¹ After pleading guilty to bank robbery and a related firearm offense, but before being sentenced, Rohde testified falsely at her accomplice's trial. Because she thereby obstructed justice, the sentencing court enhanced her sentence for the bank robbery and firearm offenses. In light of the sentencing enhancement, the district court held that the Double Jeopardy Clause prevented the government from prosecuting Rohde for perjury based on the same testimony.

For double jeopardy purposes, the consideration of related but uncharged criminal conduct in calculating a sentence, or the enhancement of a sentence for obstructing justice by failing to appear at a hearing, do not constitute "punishment." See Witte v. United States, 515 U.S. 389, 399, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995); United States v. Hawley, 93 F.3d 682, 688 (10th Cir.1996). Rohde notes differences between those sentencing calculations and a sentence enhancement for obstructing justice by perjury. Those differences, however, do not distinguish Witte and Hawley. This court thus exercises jurisdiction under 18 U.S.C. § 3731 ² and holds that a sentence enhancement for perjury, even if the perjury was committed after conviction for the underlying offense, does not bar a subsequent prosecution for the same perjury.

I. BACKGROUND

Arlyne Rohde pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a) and to carrying a firearm during the commission of a violent felony in violation of 18 U.S.C. § 924(c). See United States v. Rohde, 989 F.Supp. 1151, 1152 (D.Utah 1997). Along with her plea, Rohde filed a statement admitting that she had planned the bank robbery with Paul Jones and Tracy Brown and that Jones and Brown had given her a gun which she carried during the robbery. She also admitted these facts under oath at her plea hearing.

The district court, per Judge Dee Benson, accepted Rohde's plea but postponed sentencing until after Jones's trial, at which she was to testify pursuant to a government subpoena. The court stated that her truthfulness at the Jones trial would likely affect her sentence.

In her trial testimony, Rohde initially reiterated her plea account of the bank robbery. During her second day of testimony, however, she recanted and testified instead that Jones had not participated in or known of the robbery. The government responded in two ways. It indicted her for perjury in violation of 18 U.S.C. § 1621 and, at sentencing on the robbery and firearms charges, it requested an increase of two in her offense level under Sentencing Guideline § 3C1.1 for obstruction of justice.

At her sentencing hearing, Rohde admitted having changed her testimony in an effort to help Jones. The court increased her offense level by two "for obstruction of justice for lying on that witness stand." Relying on the resulting sentence enhancement, Rohde moved to dismiss the perjury indictment on double jeopardy grounds. The court, per Judge J. Thomas Greene, granted the motion and dismissed the indictment. See id. at 1156-59.

II. DISCUSSION

This court reviews de novo a district court's decision to dismiss an indictment on double jeopardy grounds. See United States v. McAleer, 138 F.3d 852, 855 (10th Cir.1998) (reviewing de novo a denial of a motion to dismiss on double jeopardy grounds). Neither party challenges the court's factual findings.

The Double Jeopardy Clause of the Fifth Amendment provides that no person "shall ... be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend V. The Supreme Court has long construed the Clause to bar two distinct types of government conduct: punishing a person twice for the same offense or prosecuting a person twice for the same offense. See, e.g., United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)); Ex Parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1874). The district court held, and Rohde argues on appeal, that the enhancement constituted both punishment and a prosecution for perjury. See Rohde, 989 F.Supp. at 1157.

A. The sentence enhancement did not "punish" Rohde for her perjury.

When a court bases a sentence under the Guidelines in part on relevant conduct, i.e., related but uncharged criminal conduct, it does not thereby punish the defendant for that conduct. See Witte v. United States, 515 U.S. 389, 399, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). In Witte, the defendant pleaded guilty to a charge arising from a 1991 drug sale. The district court based its sentence not only on the amount of drugs involved in the 1991 sale but also on amounts of drugs Witte had conspired to distribute in 1990. See id. at 392-94, 115 S.Ct. 2199. The court relied on Guideline § 1B1.3, which directs courts to determine the sentencing range for an offense by considering all relevant conduct, not just the conduct constituting the offense of conviction. See U.S. Sentencing Guidelines Manual § 1B1.3 (1997) ["U.S.S.G."]. The Supreme Court held that, despite the incorporation of the 1990 conduct in Witte's sentence, the government did not violate the Double Jeopardy Clause when it later prosecuted Witte separately for that conduct. See Witte, 515 U.S. at 397, 403-04, 115 S.Ct. 2199. The Court reasoned that a defendant in Witte's situation "is punished, for double jeopardy purposes, only for the offense of which the defendant is convicted." Id. at 397, 115 S.Ct. 2199.

Rohde attempts to distinguish Witte by noting that § 1B1.3 applies only to conduct "that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1). ³ Rohde notes that the district court did not take her perjury into account under § 1B1.3 but used it to enhance her sentence under § 3C1.1, which directs the court to increase an offense level by two "[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." Id. § 3C1.1. ⁴ Rohde further notes that her perjury occurred years after the conduct comprising her offenses of conviction, not in the same time period, as is generally true of conduct taken into account under § 1B1.3. See id. § 1B1.3(a)(1), (a)(2) & cmt. 9(B).

Tenth Circuit precedent, however, forecloses Rohde's attempt to distinguish Witte. See United States v. Hawley, 93 F.3d 682 (10th Cir.1996). While released on bond, Hawley failed to appear for his arraignment. The court forfeited his bond. See id. at 685. After Hawley was recaptured, he eventually pleaded guilty. See id. The court enhanced his offense level under § 3C1.1 for obstruction of justice because of his failure to appear. See id. at 686. He appealed, arguing that the bond forfeiture and sentence enhancement constituted multiple punishments for the same conduct and thus violated the Double Jeopardy Clause. See id.

This court disagreed for two reasons. See id. at 687-88. First, the bond forfeiture was a remedial civil penalty and not punishment in the sense of double jeopardy jurisprudence. See id. Second, under Witte, "the enhancement for obstruction of justice was not punishment for any conduct other than the conduct to which Hawley pleaded guilty." Id. at 688.

Rohde argues that Hawley does not control this case because, in light of its holding that the bond forfeiture was not punishment, its comments about the enhancement were dicta. Concededly, the holding that the bond forfeiture was not punishment for purposes of double jeopardy could have alone resolved Hawley's appeal. The Hawley opinion, however, discusses Witte so thoroughly and applies it so unequivocally that it leads this panel to treat the § 3C1.1 rationale as an alternate holding, not dicta. The Hawley panel summarized and quoted Witte at length and then applied it in no uncertain terms: "We conclude that the facts of this case are governed by Witte. The enhancement of Hawley's sentence under U.S.S.G. § 3C1.1 was punishment for the underlying offense to which he pleaded guilty, not punishment for failing to appear." Id. The Hawley panel's use of the terms "conclude" and "governed," undiluted by such language as "may not have been punishment," indicate a holding, not dicta. ⁵

Rohde also notes that a subsequent prosecution was not at issue in Hawley. Nonetheless, the court's unequivocal conclusion that the § 3C1.1 enhancement "was ... not punishment" suggests, if it does not dictate, the result in this case, which does involve a prosecution for the enhancing conduct.

Finally, Rohde argues that Hawley is unavailing because the government did not rely upon or even cite it in the district court. Failing to cite a specific case, however, even if precedential, does not invariably have the same consequence as failing to present an issue, particularly when the failure is that of the prevailing party. Cf., e.g., Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1189 (10th Cir.1998) (noting that court of appeals "may affirm on any...