                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          NOV 26 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-1523
                                                    (D.C. No. 96-CR-32-D)
    JONN ARTHUR GORE,                                     (D. Colo.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant appeals from his conviction and sentence for bank robbery.

See 18 U.S.C. § 2113(a), (d). The jury acquitted defendant on charges of using

and carrying a firearm in relation to the commission of a crime of violence,

see 18 U.S.C. § 924(c)(1), and being a felon in possession of a firearm,

see 18 U.S.C. § 922(g)(1). On appeal, defendant argues that the trial court

erred in 1) computing his criminal history, for sentencing guidelines purposes,

and failing to depart downward from the sentencing range mandated by the

guidelines; 2) granting the government’s motion to compel defendant to shave

prior to his participation in a pretrial lineup; 3) refusing to instruct the jury that

its decision was not meant to create a winner or a loser, but rather to do justice;

and 4) denying defendant’s motion to waive his right to a jury trial on the charge

of being a felon in possession of a firearm. We affirm.

      Addressing first the challenges to his conviction, defendant argues that

the conviction was based upon eyewitness identification testimony that was the

product of an impermissibly suggestive pretrial lineup. This court reviews such

a challenge to a pretrial identification procedure to determine, first, whether the

procedure was unduly suggestive; and, if it was, whether, in light of the totality

of the circumstances, the witness’s identification was nevertheless reliable.

See United States v. Sanchez, 24 F.3d 1259, 1261-62 (10th Cir. 1994);




                                           -2-
see also Messer v. Roberts, 74 F.3d 1009, 1016 (10th Cir. 1996) (addressing

28 U.S.C. § 2254 petition).

      Defendant first argues that the lineup was impermissibly suggestive

because he was the only participant to appear with a moustache. Because it was

at his own behest that he appeared at the lineup with a moustache, defendant

cannot now complain that the district court erred in allowing him to do so. See

United States v. Scroger, 98 F.3d 1256, 1261 n.3 (10th Cir. 1996) (appellant

cannot complain of error that he invited), cert. denied, 117 S. Ct. 1324 (1997). 1

      Defendant also argues that the lineup was impermissibly suggestive because

he was the only participant who was not clean shaven and who was wearing a

sweater. Because defendant did not assert these objections before the district

court, we review only for plain error. See Fed. R. Crim. P. 52(b); see also United



1
      Even if we were to address the merits of this claim, the lineup was not
impermissibly suggestive. Although defendant was the only participant with a
moustache, the two bank tellers viewing the lineup had both described the robber
as having only several days’ beard growth and no moustache. Rather than being
unduly suggestive, therefore, the fact that defendant had a moustache made it more
unlikely that the witnesses would identify him.

       Further, while one of the tellers was able to identify defendant from the
lineup, the other teller first identified another participant and then included
defendant as one of two participants who looked like they fit the robber’s
description. This fact militates against determining that the lineup was unduly
suggestive. See United States v. Borrelli, 621 F.2d 1092, 1095-96 (10th Cir.
1980).

                                         -3-
States v. Moore, 487 F.2d 414, 416-17 (10th Cir. 1973). Therefore, defendant

will be entitled to relief only if the trial court committed an error that was plain

and affected his substantial rights, and that “‘seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings.’” See United States v.

Clifton, No. 96-5018, 1997 WL 640621, at *2 (10th Cir. Oct. 17, 1997) (quoting

Johnson v. United States, 117 S. Ct. 1544, 1549 (1997) (further quotation

omitted)). Having reviewed the videotape of the lineup, we determine that the

lineup was not impermissibly suggestive, see Messer, 74 F.3d at 1016

(participants in lineup possessed sufficient similarities to pass constitutional

muster), and, therefore, the trial court’s admission of the bank teller’s testimony

identifying defendant as the robber was not plain error.

      Defendant next argues that the trial court erred in refusing to instruct the

jury to “[r]emember . . . that the question before you can never be: will the

Government win or lose the case? The Government always wins when justice is

done, regardless of whether the verdict be guilty or not guilty.” Rec., supp.

vol. 1, doc. 4. The district court did not abuse its discretion in refusing to give

this proffered instruction. See United States v. McIntosh, 124 F.3d 1330, 1337

(10th Cir. 1997). Reviewing de novo the instructions given, we conclude that, as

a whole, they “correctly state[d] the governing law and provide[d] the jury with

an ample understanding of the issues and applicable standards.” Id.

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      Defendant also asserts that the trial court erred in denying his motion to

waive a jury trial on the charge of being a felon in possession of a firearm. He

argues that the presentation to the jury of evidence of his prior felony conviction

prejudiced his defense of the bank robbery charge. Deeming defendant’s motion

to be one made pursuant to Fed. R. Crim. P. 14 and 23(a), we review only for an

abuse of discretion. See United States v. Patterson, 20 F.3d 809, 816 (10th Cir.

1994) (Rule 14 motion to sever); United States v. Clapps, 732 F.2d 1148, 1151

(3d Cir. 1984) (Rule 23(a) motion to waive jury trial), overruled in part on other

grounds by McNally v. United States, 483 U.S. 350 (1987).

      Rule 23(a) provides that a defendant may not waive his right to a jury trial

without the consent of the government and the approval of the trial court. See

also United States v. Robertson, 45 F.3d 1423, 1431 (10th Cir. 1995). Although

the prosecution did ultimately agree to defendant’s waiver of a jury trial on the

felon in possession charge, the trial court refused to accept the waiver, preferring

instead that one trier of fact consider all three interrelated charges. The trial

court did not abuse its discretion in denying defendant’s Rule 23(a) motion.

See Clapps, 732 F.2d at 1151-52 (district court did not abuse its discretion in

denying motion to waive jury trial, despite government’s acquiescence, because

court anticipated trial would include credibility determinations best left to jury).

See generally United States v. Martin, 704 F.2d 267, 272 (6th Cir. 1983) (because

                                          -5-
trial court bears substantial responsibility for jealously preserving jury trials, the

constitutionally preferred method of disposing of criminal cases, trial court should

not lightly approve trial waivers).

      In Singer v. United States, 380 U.S. 24 (1965), the Supreme Court noted

the possibility that “there might be some circumstances where a defendant’s

reasons for wanting to be tried by a judge alone are so compelling

that . . . insistence on trial by jury would result in the denial to a defendant of an

impartial trial.” Id. at 37. Defendant, however, has failed to show the existence

of any such compelling circumstances in this case. See United States v. Clark,

943 F.2d 775, 777, 784 (7th Cir. 1991) (jury trial on non-complex charge of being

felon in possession of firearm did not present compelling circumstances requiring

bench trial over government’s objection); United States v. Kramer, 355 F.2d 891,

899 (7th Cir.) (claim that disclosure of defendant’s prior murder conviction would

have prejudiced jury, if defendant had elected to testify, did not state exceptional

circumstances that might compel bench trial), cert. granted and decision vacated

in part on other grounds, 384 U.S. 100 (1966).

      Moreover, the trial court did not abuse its discretion in refusing to sever the

felon in possession charge. In reviewing the district court’s refusal to sever a

count, we examine “the record for undue prejudice on a case-by-case basis,”

looking also for the presence of any limiting jury instructions. Patterson, 20 F.3d

                                           -6-
at 816. In this case, the prosecution’s evidence of the prior conviction was

minimal and the trial court’s instructions limited the jury’s consideration of the

prior conviction. See id.

      Defendant also posits several challenges to his sentence. First, defendant

argues that the sentencing court erred in using a Nevada misdemeanor sentence

to calculate his criminal history. Section 4A1.2(e)(2) of the sentencing guidelines

requires inclusion in the criminal history calculation of any sentence “imposed

within ten years of the defendant’s commencement of the instant offense.”

      Defendant argues, for the first time on appeal, that there was insufficient

proof before the sentencing court that the Nevada court actually imposed this

sentence within ten years of the federal bank robbery offense. Because defendant,

at sentencing, never challenged the accuracy of the presentence report’s

indication that the Nevada court imposed sentence on December 24, 1985, that

fact is deemed admitted. See United States v. Graves, 106 F.3d 342, 344 (10th

Cir. 1997).

      Next, defendant argues that the district court erred in not granting him

a downward departure because the bank robbery at issue here occurred on

December 19, 1995, within five days of the expiration of § 4A1.2(e)(2)’s ten-year

period following the imposition of the Nevada sentence. Because “nothing in the

record indicates that the district court thought it lacked discretion to depart

                                          -7-
downward,” this court lacks jurisdiction to review the district court’s decision not

to do so. United States v. Banta, No. 96-4030, 1997 WL 644408, at *1 n.1

(10th Cir. Oct. 20, 1997).

      Lastly, defendant challenges the sentencing court’s assessment of two

points for obstruction of justice, after determining that defendant and his wife had

committed perjury while testifying at trial. See U.S.S.G. § 3C1.1, application

note 7 (“Under this section, the defendant is accountable for his own conduct and

for conduct that he aided or abetted, counseled, commanded, induced, procured or

willfully caused.”). We review the district court’s finding for clear error, giving

due deference to the district court’s application of the guidelines to the facts.

See United States v. Hargus, No. 97-6014, 1997 WL 656793, at *6, *7 (10th Cir.

Oct. 22, 1997). In order to impose this two-level enhancement based upon

perjured trial testimony, the sentencing court must 1) find that defendant and his

wife committed perjury - that is, that they testified falsely under oath concerning

a material matter, with the willful intent to provide false testimony, rather than

as a result of confusion, mistake or faulty memory; and 2) identify the specific

testimony that it finds to have been perjured. See, e.g., United States v. Copus,

110 F.3d 1529, 1536 (10th Cir. 1997).

      Defendant argues that the district court failed to make specific findings as

to what testimony it found to be perjured, and that, viewing the evidence in the

                                          -8-
light most favorable to defendant, see U.S.S.G. § 3C1.1, application note 1, the

testimony of defendant and his wife cannot be considered perjury. Having

reviewed the record, we determine that the district court did specify what

testimony it found to be perjured and that determination was not clearly

erroneous.

      The judgment of the United States District Court for the District of

Colorado is, therefore, AFFIRMED. Defendant’s pending appellate motions

are DENIED.



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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