933 F.3d 1226
10th Cir.2019Background
- Michelle R. Paup was convicted after a jury trial before a magistrate judge of theft of government property and removal of theft-detection devices based on a shoplifting incident at an Exchange store on a military base. She was sentenced to 30 days’ imprisonment (concurrent counts), one year of supervised release, a $1,000 fine, and restitution equal to retail value of goods.
- The district court affirmed the conviction and imprisonment sentence but vacated the magistrate judge’s restitution award and remanded for further proceedings; Paup appealed to this court.
- Paup argued (inter alia) that the magistrate judge erred by excluding her retained mental-health expert for untimely disclosure and by applying a two-level Guidelines enhancement for obstruction/perjury at sentencing.
- The magistrate judge excluded the defense expert after defense counsel missed a court-ordered disclosure deadline, disclosed only a two-sentence summary ten days late, and the government demonstrated prejudice and need for time to rebut.
- At sentencing the magistrate judge applied a two-level obstruction-of-justice enhancement based on findings that Paup’s in-court testimony was false and willful (perjury), relying on video surveillance, recovered merchandise, cut EAS tags, and other evidence contradicting Paup’s testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to hear appeal despite remand on restitution | Paup argued appeal should proceed from district court order | District court order affirmed conviction/sentence and only restitution remanded; appellate jurisdiction exists | Court held it had jurisdiction: sentence of imprisonment is a final, appealable judgment even if restitution remains unresolved |
| Exclusion of defense expert (late disclosure) | Paup: exclusion was improper; counsel’s inexperience and lack of bad faith excused delay | Government: late two-sentence disclosure (10 days after deadline) prejudiced ability to rebut and trial schedule; continuance infeasible | Court affirmed exclusion as within magistrate judge’s discretion under discovery-sanction factors (Wicker/Adams) |
| Specificity of findings for two-level perjury enhancement | Paup: sentencing court failed to identify perjurious statements with sufficient specificity | Government: record and judge’s findings make clear which testimony was false and that enhancement applied | Court rejected plain-error challenge: ample evidence of perjury and remand for specificity would be futile |
| Sufficiency of evidence to support perjury/obstruction enhancement | Paup: mental illness could explain inconsistencies; testimony not willful perjury | Government: surveillance, recovered items, cut EAS tag, wire cutters, and contradictions support finding of willful false testimony | Court held factual findings not clearly erroneous; credibility determinations are for the factfinder and enhancement stands |
Key Cases Cited
- Berman v. United States, 302 U.S. 211 (statute of sentence constitutes final judgment) (discusses finality of sentence)
- Corey v. United States, 375 U.S. 169 (appealability of judgment imposing sentence)
- Dolan v. United States, 560 U.S. 605 (discusses appealability when restitution deferred)
- Manrique v. United States, 137 S. Ct. 1266 (deferred restitution can produce multiple appealable judgments)
- United States v. Wicker, 848 F.2d 1059 (10th Cir.) (factors guiding discovery sanctions)
- United States v. Adams, 271 F.3d 1236 (10th Cir.) (upholding exclusion of belatedly disclosed defense expert)
- United States v. Flonnory, 630 F.3d 1280 (10th Cir.) (plain-error review for sentencing procedural objections)
- United States v. Massey, 48 F.3d 1560 (10th Cir.) (elements of perjury and requirement to identify perjurious statements)