NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles L. BOBBITT, Defendant-Appellant.
No. 92-6445.
United States Court of Appeals, Sixth Circuit.
Jan. 21, 1994.
Before: BOGGS and NORRIS, Circuit Judges; and CLELAND, District Judge.*
PER CURIAM.
Defendant Bobbitt challenges his conviction for making a fаlse declaration before the grand jury. For the reasons stated herein, the conviction is affirmed.
I. INTRODUCTION
The appellant/defendant, Charles L. Bobbitt, owned a commercial building in Georgia. One of his tenants was H & H Furniture Company, owned by Arthur Harriss. According to the indictment, defendant and another man (William Joseph Nelson) conspired to defraud an insurance company by committing arson in order to obtain insurance proceeds. Defendant and Nelson were charged with several substantive mail fraud violations. In addition, defendant was charged in count eleven (11) with making a false declaration to the grand jury. The jury found defendant not guilty on all counts with the excеption of count eleven. Based on this finding, the district judge sentenced defendant to serve thirteen months in prison and pay $29,496, which included $19,446 for the "cost of imprisonment." Defendant filed a motion for a new trial alleging that the district court erred in assessing costs for imprisonment because, he argued, U.S.S.G. Sec. 5E1.2(i) (which specifically allоws such costs to be assessed), was invalid. Subsequently, the district court issued an order amending its judgment to delete any reference to cost of imprisonment. The total fine assessed, however, remained at $29,496.
II. BACKGROUND
The fire which was the basis for the indictment occurred on March 19, 1987. On November 1, 1991, defendant testified before a federal grand jury invеstigating the fire. During his grand jury appearance, he was asked the following questions and gave the following answers, the emphasized portions of which were alleged in the indictment to have been false:
Q. Did you have a key to the, you had a key to the building so you could get in?
A. Yeah
Q. Could you get in to H & H Furniture if you wanted to and that kind of thing?
A. No, I didn't have a key to them.
Q. You didn't have a key to the first floor?
A. I didn't have a key to get in their store.
At trial, Arthur Harriss testified that he leased the store at the time оf the fire. He testified that there was a front door and a back door to the store and that the same key fit both doors. He also testified that he obtained the key from his brother, Don Harriss, who leased the store previously. Arthur Harriss testified that he personally saw defendant give the key to his brother Don Harriss. This same key opened the front and back doors at the time of the fire. Arthur Harriss stated further that the locks had not been changed by either him or his brother. Arthur Harriss' brother, Don Harriss, confirmed that he received his key from defendant when he leased the building. Don Harriss testified on direct as follows:
Q. Now, when you had the keys to get in, were there occasions when you werе going to meet Mr. Bobbitt (defendant) over there and he was already in the store?
A. It was one occasion that I was supposed to meet him over there. I went over there to do some cleaning, he was in there already moving some items.
Q. Did Mr. Bobbitt have access to your store, then?
A. Evidently he did. He was inside.
On cross examination, Don Harriss admitted that he could not remember exactly when it wаs that this incident occurred. However, he further stated on cross that during the first part of his lease "there were several other occasions, there wasn't just one occasion that [defendant] was there, there was [sic] several occasions over a period of a month or six weeks or whatever it was." Two issues аre before this court on appeal: 1) whether sufficient evidence supports the jury's verdict and 2) whether the district court's judgment, as amended, was a correct application of the United States Sentencing Guidelines.
III. DISCUSSION
SUFFICIENCY OF THE EVIDENCE
Defendant contends that there was not sufficient evidence to support his conviction for falsе declaration in violation of 18 U.S.C. Sec. 1623 (1984 & Supp.1993). The essential elements of a violation of 18 U.S.C. Sec. 1623(a) are:
(1) That the defendant knowingly made a false declaration while under oath before a grand jury; and
(2) That the false declaration was material.
In reviewing the sufficiency of the evidence, this court applies the same legal standard as the district court. Unitеd States v. Beddow,
Evidence is sufficient to support a criminal conviction if, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
Beddow,
Defendant contests all three relevant aspects of the statute. Specifically, defendant argues that: (1) there was insufficient evidence of falsity, (2) that, even if his statements to the grand jury were false, there was insufficient evidence to show that he knew of the falsity, and (3) that his statements, even if knowingly false, were not material.
FALSITY
Defendant maintains that there is no evidence which shows that the statements of Don Harriss were inconsistent with the statements he gave to the grand jury. In support of this argument defendant states that, "[t]here exists [sic] many plausible explanations which allow both Don Harriss' trial testimony and the defendant's grand jury tеstimony to coincide without either being untrue." He contends that a multitude of reasonable inferences can be drawn from the government's witness without any inference of perjury on his part, and he may well be correct. For example, defendant states that there was no testimony by the government to show either that the door that he entered was indeed locked or that he was the only one in the store when Don Harriss arrived. As stated above, it is not necessary for the evidence to exclude every reasonable hypothesis except that of guilt. Beddow,
FALSE STATEMENT KNOWINGLY MADE
Defendant further alleges that, even if a rational jury could have found falsity, at the time of his grand jury testimony he did not have the requisite "knowledge" that his statements were untrue. It is well settled that, even though "direct evidence on state of mind is impossible to produce, circumstantial evidence is useful and competent for this purpose." Pitts v. United States,
[T]aken together and viewed in the light most favorable to the government, the undisputed evidence of other direct falsehoods and perjury, the particular complex and unusual nature of the events appellant claims he does not recall, the incredible nature of his testimony, appellant's evasive and deceptive answers, and his uncooperativeness constitute such relevаnt evidence as could be accepted by a reasonably-minded jury as adequate and sufficient to support a conclusion of appellant's guilt beyond a reasonable doubt.
Seltzer does not stand for the proposition that transactions must be "complex" and "unusual" before a witness can be deemed to have remembered them. In Seltzer, the salient issue was whether there was sufficient evidence to convict the defendant of falsely testifying in 1983 that he had no present recollection of 1976 wire transfer orders. In contrast, defendant in the instant case unequivocally testified that he did not have a key to the H & H Furniture Store. There is, qualitatively, a significant distinction between testimony by a witness that he does not recall an event and testimony that the event in question never occurred. It is obvious that it is more difficult to prove that the former statement (which calls into question the source's subjective memory of whether or not an event occurred), rather thаn the latter statement (which merely puts at issue the veracity of the source's statement that a particular event never transpired) was a "knowing" falsehood when made.
In the instant case, Don Harriss testified that defendant apparently had "access" to his store because on at least one occasiоn when he (Don Harriss) was supposed to meet defendant at the store, he found defendant "in there already." In order to overturn his conviction based on this element, the court would have to assume that defendant had somehow forgotten that he retained a key to the store. Other than the lag in time between when Don Harriss moved into the store and defendant's testimony, defendant proffers no evidence to indicate that a reasonable jury would be required to have made such a finding. We believe that the "fact" (as determined by the jury) that defendant himself, sometime after 1982, had entered the closed store, apparently equipped with a key but nоt accompanied by a store proprietor, is sufficient evidence from which a jury could find that defendant "knew" he was falsely testifying to the grand jury in November, 1991, when he stated that he did not have a key to the store.
MATERIALITY
Lastly, defendant argues that the statements made by him to the grand jury were not material. Defendant maintains that the jury's verdiсt (acquittal on all counts except false declaration to the grand jury) is evidence that the statements made were not material. The statements at issue, however, were made to the grand (and not the petit) jury. Thus, the factual inquiry demanded is whether or not the statements were material to the grand jury's investigation. This is a questiоn of law for the court. United States v. Seltzer,
APPLICATION OF SENTENCING GUIDELINES
Defendant contends that the district court erred by deleting the language concerning "costs of imprisonment" from its judgment rather than subtracting the costs originally assessed from the total fine. In other words, defendant argues that the district court's judgment, as amended, was not a correct application of the United States Sentencing Guidelines.
It is undisputed that defendant's imprisonment guidelines range was from 10 to 16 months and his fine range from $3,000-$30,000. After his conviction, defendant was sentenced to thirteen months of imprisonment and fined $29,496.00. The judgment fine specifically included "the cost of imprisonment of $19,446, and an additional fine of $10,000...."2 Subsequently, on May 11, 1993, defendant filed a motion for a new trial in which he argued that the "Sentencing Reform Act ... does not authorize the assessment of fines to recoup to the government the cost of incarcerating defendants." In support of his motion, defendant reliеd on United States v. Spiropoulos,
The district court in the instant case construed defendant's motion for a new trial as a motion to correct a sentence that was imposed as a result of arithmetical, technical, or other clear error under Fed.R.Crim.P. 35(c). The court noted that the instant case was distinguishable from Spiropoulos, where the cost of imprisonment fine was imposed in addition to the guideline range fine. In the instant case, unlike in Spiropoulos, defendant's total fine was within the guideline range. Therefore, the court determined, "it is not necessary in this case to take either of the competing views of U.S.S.G. Sec. 5E1.2(i)." Nevertheless, to avoid any quеstion as to whether any portion of the fine--even a guideline range fine--can be grounded upon 'cost of imprisonment,' the district court amended the judgment to eliminate any reference to same.
Defendant concedes that, in light of the action taken by the district court, his argument now questions the severity of the fine rather than the 'cost of imprisonment' aspect of the fine. He nevertheless argues that the fine should be amended because "there exists no justification for the maximum fine to be imposed on [him]." The law is well settled that if a sentence is within the applicable guideline range and was neither imposed in violation of law nor as а result of an incorrect application of the sentencing guidelines, then the district court's sentence must be affirmed. See 18 U.S.C. Sec. 3742(f)(3); see also Williams v. United States,
IV. CONCLUSION
For the aforementioned reasons, the conviction and sentence are affirmed.
Notes
Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by designation
It should be noted further that on cross examination the following colloquy took place between the defense attorney and Don Harriss:
Q. Okay. Other than that one occasion, did you ever sеe Mr. Bobbitt over there at any time you weren't there?
A. Well, there were several occasions, there wasn't just one occasion that he was there, there was [sic] several occasions over a period of a month or six weeks or whatever it was.
Although it is possible that Don Harriss was referring to a time period bеfore he moved in (and thus before defendant had given him the key to the store), a rational jury could have inferred that, in answering the above question during cross-examination, he was expounding on the "one occasion" that he had previously discussed on direct. In that prior dialogue, Mr. Harriss was referring to a particular instance where he discovered defendant inside the store at a point in time after defendant had given him the keys:
Q. Now, when you had the keys to get in, were there occasions when you were going to meet Mr. Bobbitt over there and he was already in the store?
A. It was one occasion that I was supposed to meet him over thеre. I went over there to do some cleaning, he was there already moving some items.
Section 5E1.2(i) of the United States Sentencing Guidelines provides that:
Notwithstanding of the provisions of subsection (c) of this section, but subject to the provisions of subsection (f) herein, the court shall impose an additional fine amount that is at least sufficient to pay the costs to the government of any imprisonment, probation, or supervised release ordered.