PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ARLENE ELIZABETH ROHDE,

Defendant-Appellee.

No. 98-4000

Appeal from the United States District Court

for the District of Utah

(D.C. No. 97-CR-200G)

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

James D. Gilson, VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah (Stephen K. Christiansen, VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, on the 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 (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. § 37312 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 (1993) (citing North Carolina v. Pearce, 395 U.S. 711 (1969)); Ex Parte Lange, 85 U.S. (18 Wall.) 163, 173 (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 (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. 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. 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.

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 ground supported by the record"). The government argued in the district court that indicting a defendant for perjury after a sentencing enhancement for obstruction of justice based on that perjury does not constitute double jeopardy. The government cited Witte and specifically argued its application to perjury. The government acknowledged that no reported case addressed the double jeopardy implications of a perjury enhancement; it simply failed to note that Hawley did address more generally the implications of a § 3C1.1 enhancement. These are not the makings of appellate preclusion.

Even were Rohde able to avoid Hawley, she could not distinguish Witte by differentiating § 3C1.1 from § 1B1.3. Several other circuits have applied Witte to § 3C1.1 enhancements for obstruction of justice. See United States v. Grisanti, 116 F.3d 984, 987 (2d Cir. 1997); United States v. Ross, 77 F.3d 1525, 1550 (7th Cir. 1996); United States v. Bellrichard, 62 F.3d 1046, 1051–52 (8th Cir. 1995); United States v. Jernigan, 60 F.2d 562, 564–65 (9th Cir. 1995).6 Those decisions, however, all apply Witte summarily, without analyzing an argument premised on differentiating § 3C1.1 from § 1B1.3. Such an argument is nonetheless unavailing.

Rohde's argument adopts the district court's two-part reasoning about temporality: (1) unlike a court that uses relevant conduct under § 1B1.3 to calculate a sentence, Rohde's sentencing court could not have premised its enhancement of her sentence under § 3C1.1 on aggravating circumstances of her robbery and firearm offenses, because her perjury did not precede or accompany those crimes; (2) the § 3C1.1 enhancement must therefore have been punishment for the perjury itself, barring further prosecution or punishment as double jeopardy. See Rohde, 989 F. Supp. at 1155. Similar reasoning, however, did not persuade the Court in Witte.

The Court determined that Witte's appeal was controlled by its pre- and post-Guidelines precedent, in which it had consistently rejected double jeopardy challenges to sentences based in part on "conduct arising out of the same criminal transaction" as the crime of conviction or on "a defendant's background." Witte, 515 U.S. at 400.7 Justice Stevens argued in dissent that a sentencing court's use of relevant conduct under § 1B1.3 bars further prosecution or punishment for that conduct because, unlike criminal history under § 4A1.1, which measures the character of the offender, relevant conduct measures only the character of the offense. See id. at 408–12 (Stevens, J., dissenting). Basing a sentence in part on relevant conduct, Justice Stevens concluded, thus serves only to punish the offense constituted by the relevant conduct. See id. The Court specifically rejected this argument. See id. at 402–03.8 Minimizing the importance of temporality, the Court noted that "the difference between 'criminal history' and 'relevant conduct' is more temporal than qualitative, with the former referring simply to a defendant's past criminal conduct . . . and the latter covering activity arising out of the same course of criminal conduct as the instant offense." Id. at 402 (citations omitted).

Rohde's argument and the district court's reasoning similarly rely on a distinction that is "more temporal than qualitative." Rohde committed perjury after her crimes of conviction, not before or in the same general time period as those crimes. The pertinent difference, then, between the conduct underlying her § 3C1.1 enhancement, and conduct qualifying as criminal history under §§ 4A1.1–.3 or as relevant conduct under § 1B1.3, is merely temporal.

Despite that temporal distinction, her willingness to lie under oath, like a defendant's willingness to commit multiple offenses, "necessarily provides important evidence that the character of the offender requires special punishment." See Witte, 515 U.S. at 403. A criminal who perjures herself to escape responsibility for her crime poses a greater threat to society, and deserves less leniency, than one who does not. See United States v. Dunnigan, 507 U.S. 87, 97 (1993) (upholding constitutionality of sentence enhancements for perjury). While Rohde intended her perjury to benefit an accomplice, the resultant threat to society was no less imminent than had she lied to protect herself. She showed the same willingness as the defendant in Dunnigan to place an individual's interests above those of society and the criminal justice system by lying under oath. The perjury enhancement in this case, like that in Dunnigan, thus "further[ed] legitimate sentencing goals relating to the principal crime, including . . . retribution and incapacitation." Id.

By obstructing the prosecution of her accomplice, Rohde did not only show that her character deserved special punishment. She also aggravated the character of her charged offenses. Cf. Witte, 515 U.S. at 402–03 (discussing distinction between character of offender and character of offense). Her perjury aggravated the character of her offenses as plainly as the commission of related, uncharged crimes aggravates the character of a defendant's charged offenses. If the prosecution of a crime is obstructed, then that crime becomes more dangerous to society than an otherwise identical crime whose prosecution is not obstructed. A crime whose prosecution is obstructed thus deserves greater punishment.

In the usual case, the convict who receives a § 3C1.1 enhancement will have obstructed the prosecution of his or her own crime. In this unusual case, Rohde's perjury obstructed the prosecution of Jones's offense, not her own. This makes the relation of her perjury to her underlying offense less immediately obvious. Rohde, however, has already unsuccessfully appealed her § 3C1.1 enhancement.9 That failure precludes her from relying in this appeal on the unusual nature of her obstruction to avoid the general rule outlined above: a perjury enhancement punishes the underlying offense, not the perjury, because the perjury both reveals the bad character of the offender and aggravates the character of the offense. Because the perjury enhancement does not punish the perjury itself, Rohde's multiple-punishments argument fails.

B.	The sentencing court's consideration of Rohde's perjury did not constitute a prosecution for double jeopardy purposes.

While Rohde's sentence enhancement did not punish her perjury, the Double Jeopardy Clause would still require dismissal of the perjury indictment if the enhancement constituted a prosecution for perjury. This court, however, has specifically rejected the argument that a sentencing hearing in which a court based a sentence in part on relevant conduct constituted a de facto prosecution for the relevant conduct. See United States v. Koonce, 885 F.2d 720, 722 (10th Cir. 1989) (rejecting argument by dissenting panel member); compare id. at 722 (McKay, J., dissenting).

Rohde's attempt to distinguish Koonce rests on her interpretation of a special rule for sentence enhancements based on perjury established in United States v. Dunnigan, 507 U.S. 87 (1993). In Dunnigan, the Court held that "if a defendant objects to a [§ 3C1.1] sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same, under the [standard federal] perjury definition." Id. at 95. Quoting a phrase from Dunnigan, Rohde argues that its requirement of an independent finding of perjury converts a sentencing hearing into a "surrogate for a perjury prosecution." Id. at 97. Rohde's argument, however, ignores the purpose and context both of Dunnigan's reference to a "surrogate . . . prosecution" and, more broadly, of its independent-findings rule.

In requiring independent findings, the Court was defusing the argument that a § 3C1.1 perjury enhancement unconstitutionally impairs a defendant's right to testify. See id. at 91–92, 96–97. Dunnigan argued that perjury enhancements burden the right to testify because they create a risk "that courts will enhance sentences as a matter of course whenever the accused takes the stand and is found guilty." See id. at 96. The Court agreed that not every accused who testifies and yet is convicted should incur a perjury enhancement, noting ways in which testimony may be inaccurate or unconvincing, yet not perjurious. See id. at 95. But the independent-findings rule, the Court then explained, dispels the risk that every such convict will receive an automatic enhancement. See id. at 96–97. The rule's purpose is thus to shield defendants in the exercise of their right to testify in their own defense.

The purpose of the ban on multiple prosecutions in double jeopardy jurisprudence, on the other hand, is to shield individuals from any danger that the government will use its superior resources to subject them to the fiscal and emotional burdens of repeated trials:

[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187–88 (1957).

A sentencing hearing at which a court considers a § 3C1.1 enhancement is obviously not a formal prosecution. Rohde, however, argues that this court should treat the hearing as a surrogate prosecution for double jeopardy purposes. Her implicit premise, therefore, is puzzling: when a sentencing court protects a defendant's exercise of the right to testify by making independent findings of perjury, it thereby subjects the defendant to the embarrassment, expense, ordeal, and compulsion referred to in Green. Even if the sentencing court's consideration of a defendant's perjury has some such consequences, they are not so burdensome as to require this court to treat the sentencing hearing as a de facto prosecution. The proceedings required by Dunnigan fall far short of being a full-blown collateral "prosecution." While the Court deemed it "preferable for a district court to address each element of the alleged perjury in a separate and clear finding," it held that an enhancement is proper "if . . . the court makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury." Dunnigan, 507 U.S. at 95. The district court's proceedings and findings in Dunnigan, which the Court approved, were far from extensive.10

Similarly, the sentencing court's proceedings in this case were not extensive. Rohde's counsel briefly attempted to explain the perjury,11 inspiring an equally brief comment by the prosecution.12 There followed a short colloquy between the court and Ms. Rohde13 and the court's succinct finding and comments in imposing the enhancement.14 This court cannot equate the proceedings relating to perjury, which were scattered and decidedly secondary in importance to the other sentencing issues argued and addressed in the hearing, to a prosecution. Rohde cites no authority to suggest that Dunnigan sentencing proceedings are frequently extensive, grueling, or otherwise comparable to a prosecution. Nor has any other court treated the sentencing proceedings and findings required by Dunnigan as a de facto prosecution for double jeopardy or any other purpose.

Beyond misconstruing Dunnigan's purpose, Rohde also quotes out of context the Court's reference to the § 3C1.1 enhancement as a "surrogate for a perjury prosecution." The Court used that phrase in rejecting Dunnigan's argument that perjury enhancements serve only the impermissible purpose of enabling the government to incarcerate a defendant for perjury while sparing it the time and expense of a separate prosecution. See Dunnigan, 507 U.S. at 97. The Court acknowledged that an enhancement based on perjury deters perjury in the same way as a separate perjury prosecution. See id. "But the enhancement," the Court reasoned, "is more than a mere surrogate for a perjury prosecution. It furthers legitimate sentencing goals relating to the principal crime, including . . . retribution and incapacitation." Id.

The Court was thus discussing the purpose of a perjury enhancement, and showing that it serves to measure how to punish and incapacitate the offender for the underlying offense, not just for the perjury. To note that the enhancement has some purposes in common with a prosecution, and also serves additional purposes, is not to say that the enhancement is a de facto prosecution.

As noted, this court has rejected the argument that a sentencing court's consideration of relevant conduct constitutes a de facto prosecution for that conduct. See Koonce, 885 F.2d at 722. The only difference that Rohde notes between a sentencing court's consideration of relevant conduct under § 1B1.3 and its enhancement of a sentence for perjury under § 3C1.1 is the independent- findings requirement for perjury. Nothing in Dunnigan suggests that the Court had that requirement in mind when it referred to a § 3C1.1 enhancement for perjury as "more than a mere surrogate for a perjury prosecution." The Court's opinion, read as a whole, simply does not suggest that the independent-findings requirement converts a perjury enhancement, unlike other considerations of conduct beyond the charged offense, into a surrogate prosecution.

III.	CONCLUSION

The order of the district court dismissing the perjury indictment is REVERSED. The matter is REMANDED for further proceedings.