                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 11-2037


             UNITED STATES OF AMERICA

                            v.

                   AMIFA S. KNIGHT,
                             Appellant


  On Appeal from the District Court of the Virgin Islands
                  (Division of St. Croix)
              (D. C. No. 1-09-cr-00005-001)
      District Judge: Honorable Raymond L. Finch



              Argued on December 6, 2011


 Before: FISHER, GREENAWAY,JR. and ROTH, Circuit
                      Judges

           (Opinion filed: November 21, 2012)

Natalie Nelson Tang How, Esquire (Argued)
27 & 28 King Cross Street
Phoenix Court Business Complex
Christiansted, St. Croix, VI 00820

                    Counsel of Appellant


Alphonso G. Andrews, Jr., Esquire (Argued)
Office of the Unites States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix, VI 00820

                    Counsel for Appellee




                        OPINION


ROTH, Circuit Judge:

       Amifa Knight appeals the judgments of conviction and
sentence on charges of perjury arising out of statements she
made at a suppression hearing in the District Court of the
Virgin Islands. She seeks review of the District Court’s
ruling on an evidentiary issue, its denial of her motion for
acquittal, and its application of the United States Sentencing
Guidelines. We find no error in the District Court’s
determinations on these issues, and we will therefore affirm.


I. BACKGROUND




                              2
       On May 12, 2008, Amon Thomas and Shadrock Frett
engaged in a violent gun fight at Frett’s apartment in St.
Croix, United States Virgin Islands. Both men sustained
gunshot wounds which resulted in their hospitalization at
Juan Luis Hospital in St. Croix. Thomas, less severely
injured than Frett, was discharged on May 16, 2008. Five
days later, on May 21, 2008, at approximately 3:50 a.m., six
masked gunmen entered the hospital, located Frett, and shot
him to death.

       A police investigation revealed that the gunmen
entered the hospital through an employee entrance with the
benefit of an employee “swipe card,” proceeded directly to
Frett’s room, committed the murder, and left in under three
minutes.     Based on these circumstances, investigators
suspected that a hospital employee may have been involved in
the crime in some capacity. They examined the hospital’s
electronic patient records system, which showed that Knight,
an admissions clerk, had accessed Frett’s records at 7:24 p.m.
on May 20, 2008, just hours before he was killed.
Investigators subsequently obtained Knight’s cell phone
records, which indicated that she had telephone conversations
with Thomas’s brother, Halik Milligan, at 7 p.m. and 7:30
p.m. that same evening.

       On January 26, 2009, Thomas Drummond, a special
agent from the Federal Bureau of Investigation, and Dino
Herbert, an officer of the Virgin Islands Police Department,
jointly interviewed Knight about the hospital shooting.
During her questioning, Knight stated to the investigators that
she had no prior knowledge that someone would enter the
hospital and kill Frett. She claimed that she did not know
Frett’s room number on May 20, 2008, and that she did not




                              3
remember accessing the hospital’s records system to ascertain
it that night. She admitted that Milligan was her boyfriend
but denied that she had any phone conversations with him on
May 20th. She further stated that she never disclosed Frett’s
room number to anyone.

        The following day, January 27, 2009, Herbert and
Drummond obtained a warrant and arrested Knight for
making false statements to a federal agent on the basis of this
interview.    They again questioned her, but this time
confronted her with her cell phone records, showing that she
had been in contact with Milligan on the night of Frett’s
murder, and with a printout from the hospital’s records
system, indicating that she had looked up his room number
that night. Faced with this evidence, Knight admitted that,
prior to May 20, 2008, Milligan had asked her whether she
could obtain Frett’s room number and that she informed him
that she could. She stated that at 7 p.m. on May 20th,
Milligan called her and specifically asked her for Frett’s room
number.      Knight admitted that she then accessed the
hospital’s records system to determine Frett’s location, and
that at 7:30 p.m., she called Milligan to inform him that she
had this information. According to Knight, Milligan came to
the hospital approximately one hour later, at which point she
gave him Frett’s room number. She admitted that she had
been aware of a plan to kill Frett prior to the time that it was
carried out.

      On February 19, 2009, Knight was indicted on six
counts of making false statements to a federal officer, in




                               4
violation of 18 U.S.C. § 1001(a)(2).1 She moved to suppress
the statements she had made following her arrest on January
27th, arguing that they were coerced and that she had not
been properly advised of her Miranda rights. A hearing was
held on Knight’s suppression motion on April 16, 2009, at
which she testified about her January 27th interrogation. She
also made a number of statements concerning events at the
hospital on the night of Frett’s murder. First, she stated that
she had accessed Frett’s electronic hospital records three or
four times on the evening of May 20, 2008. Second, she
claimed that she did so in order to determine his room number
so that she could provide it to friends and family of Frett’s
who wanted to visit him and whose telephone calls had been
transferred to her by the hospital’s telephone operator. Third,
she claimed that Milligan was a friend of Frett’s and wanted
to visit him at the hospital.

       On August 13, 2009, the Government issued a
superseding indictment in Knight’s case, charging that each
of these three statements constituted perjury, in violation of
18 U.S.C. § 1621(1). A charge of conspiring in Frett’s

      1
          Knight was specifically charged with falsely stating
to Special Agent Drummond that (1) she did not know on
May 20, 2008, that anyone was planning to enter the hospital
to kill Frett; (2) on May 20, 2008, she did not know Frett’s
hospital room number; (3) she did not on May 20, 2008, make
calls to or receive calls from two telephone numbers assigned
to Milligan; (4) she did not speak with Milligan on May 20,
2008; (5) she did not recall whether she searched the
hospital’s records system on May 20, 2008, to ascertain
Frett’s room number; and (6) she had not disclosed Frett’s
room number to anyone.




                              5
murder, in violation of 14 V.I.C. §§ 551(1) and 922(a) (1),
was also added. Knight was ultimately acquitted on the six
original charges of making false statements to a federal agent
and on the conspiracy charge. She was convicted, however,
on the three perjury charges and sentenced to 36 months
imprisonment.2 Knight now appeals, arguing that the District
Court erred in (1) admitting irrelevant and unfairly prejudicial
evidence pertaining to the May 12th shooting at Frett’s
apartment and the May 21st shooting at the hospital, (2)
denying her motion for acquittal as untimely, and (3)
sentencing her pursuant to a provision of the United States
Sentencing Guidelines that is applicable only to perjury that is
in respect to a criminal offense.

II. DISCUSSION

       The District Court had jurisdiction under 48 U.S.C. §
1612, and we have jurisdiction under 28 U.S.C. § 1291. We
will review the District Court’s decision regarding the
admissibility of evidence for abuse of discretion. United
States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000). Our
review of the dismissal of Knight’s motion for acquittal as
untimely, however, is plenary. United States v. Mike, 655
F.3d 167, 174 (3d Cir. 2001). Finally, with respect to the
District Court’s factual finding in applying the United States
Sentencing Guidelines, our inquiry is whether it was clearly


       2
        Knight was also charged with one additional count of
perjury, which related to her testimony at the suppression
hearing that she never expressed to anyone that she had prior
knowledge of a plan to kill Frett at the hospital. She was
found not guilty on this charge.




                               6
erroneous. See United States v. Ali, 508 F.3d 136, 143 (3d
Cir. 2007).

      A. Admission of Evidence Related to the May 12th &
         May 21st Shootings

       Prior to trial, Knight moved in limine to exclude
evidence regarding both the gun battle between Frett and
Thomas on May 12, 2008, and the subsequent killing of Frett
on May 21, 2008, at the hospital. The motion was denied,
and the jury heard evidence of both of these events. Knight
contends on appeal that this evidence was irrelevant to the
perjury charges and therefore should have been excluded
under Rule 401 of the Federal Rules of Evidence. She further
argues that even assuming its relevancy, the evidence was
unfairly prejudicial and thus should have been excluded on
the basis of Rule 403.

       We conclude, however, that the evidence was not
irrelevant to the perjury charges because it put into context
why Knight was accessing Frett’s hospital records and the
nature of her relationship with Milligan and through him with
Thomas. This inclusion of evidence of both shootings helped
to explain why Knight committed perjury by lying about her
access to the electronic hospital records and the reasons for
that access.

        Moreover, Knight’s argument overlooks the fact that
she was concurrently on trial for conspiracy to murder Frett.
In order to establish her guilt on this charge, the government
had to prove that she and at least one other person (1)
intentionally entered into an agreement (2) with the purpose
of killing Frett (3) with malice aforethought. See 14 V.I.C. §§




                              7
551(1), 922(a)(1); see also United States v. Reyeros, 537 F.3d
270, 277 to78 (3d Cir. 2008) (setting forth elements of
conspiracy). The government sought to meet this burden by
showing that Knight participated in a plot to kill Frett by
obtaining his hospital room number and disclosing it to
Milligan so that Frett’s assailants could locate him and
complete their mission. Any evidence that has a tendency to
make this account more probable than it otherwise would be
is relevant. See Fed. R. Evid. 401. Evidence related to the
May 12th shooting at Frett’s apartment is also relevant
because it suggests a motive for the conspiracy to kill Frett
and provides a link between that conspiracy and Knight.

        Finally, we reject Knight’s contention that evidence of
these shootings should have been excluded on account of
unfair prejudice. “Unfair prejudice means an undue tendency
to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.” Fed. R. Evid. 403
(advisory committee’s note). Relevant evidence may be
excluded for this reason only if its “probative value is
substantially outweighed by a danger of unfair prejudice.”
Fed. R. Evid. 403 (emphasis added). In determining whether
evidence must be excluded as unfairly prejudicial, we owe
“considerable deference” to the judgment of the District
Court, United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.
1986), and we will not disturb its ruling unless it was
“arbitrary or irrational.” United States v. Universal Rehab.
Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000) (en banc).
As we have outlined, evidence of both shootings was relevant
to all the charges against Knight in significant ways. Knight
contends, however, that this relevance is trumped by the risk
that the evidence might have led the jury to convict her in
order to punish someone for the shootings rather than because




                              8
of a conclusion that she was guilty of perjury. We find no
merit in this argument. With respect to the May 12th
shooting at Frett’s apartment, Knight makes no claim that the
Government alleged or even implied that she had any
involvement, and we therefore see no risk that the jury would
have sought to punish her for that incident. Regarding the
May 21st hospital shooting, evidence of that shooting is
critical to explain the perjury. Moreover, to the extent that
the jury was motivated to convict Knight in order to punish
someone for that shooting, it could have found her guilty on
the conspiracy charge. We see no logic in Knight’s argument
that the jury would acquit her on the conspiracy charge but
punish her for the underlying events by convicting her of
perjury.

       We conclude that evidence pertaining to the May 12th
and May 21st shootings was relevant and not unfairly
prejudicial. Its admission at trial was therefore appropriate.

       B. Denial of Knight’s Motion for Acquittal

        Knight also claims that the District Court erred in
denying her motion for acquittal, which she sought after the
jury returned its verdict. The District Court denied that
motion on the grounds that it was untimely. A motion for a
judgment of acquittal sought after a jury verdict must be filed
within 14 days after the verdict or after the court discharges
the jury, whichever is later. Fed. R. Crim. P. 29(c)(1). This
time limit may be extended for good cause before its
expiration, or even afterwards if the defendant’s failure to act
was due to excusable neglect. Fed R. Crim. P. 45(b)(1). A
district court has no jurisdiction, however, to consider a




                               9
motion for acquittal that is untimely. United States v.
Gaydos, 108 F.3d 505, 512 (3d Cir. 1997).

        The jury returned its verdict in Knight’s case on
December 22, 2009, meaning that her motion for acquittal
initially needed to be filed by January 5, 2010. On December
29, 2009, she filed a motion for an extension of the time to
file it. The District Court granted this request and gave her
until 30 days after receipt of the trial transcript to make her
filing. The transcript was available on March 16, 2010,
rendering Knight’s motion due by April 15, 2010. She did
not submit it until July 9, 2010, 85 days beyond the due date.
She also failed to make any showing of excusable neglect.
Knight’s motion was accordingly untimely, and the District
Court was without jurisdiction to consider it. We conclude
therefore that the denial of her motion was appropriate.

      C. Application of § 2J1.3(c) of the United States
         Sentencing Guidelines

       Sentences for perjury convictions such as Knight’s are
governed by § 2J1.3 of the United States Sentencing
Guidelines. In the ordinary case, that provision dictates a
base offense level of 14 and a corresponding sentence range
of 15 to 21 months imprisonment. U.S.S.G. § 2J1.3(a).
Where perjury is “in respect to a criminal offense,” however,
it instructs that the defendant be sentenced pursuant to §
2X3.1 as if she were an “Accessory After the Fact” to that
criminal offense. Id. at § 2J1.3(c). The District Court applied
this cross-reference to Knight in light of its finding that her
perjurious statements were in respect to the crime of first
degree murder, and as a result determined that the Guidelines




                              10
range was 60 months.3 Knight contends that her perjury was
not in respect to the offense of first degree murder and that
her sentence must therefore be vacated.

       Other courts have found that “[p]erjury is in respect to
a criminal offense where the defendant knew or had reason to
know, at the time of [her] perjury, that [her] testimony
concerned such a criminal offense.” United States v. Leon-
Reyes, 177 F.3d 816, 824 (9th Cir. 1999) (citation and
internal quotation marks omitted); see also United States v.
Flemmi, 402 F.3d 79, 96 n.28 (1st Cir. 2005); United States v.
Blanton, 281 F.3d 771, 776 (8th Cir. 2002); United States v.
Leifson, 568 F.3d 1215, 1220 (10th Cir. 2009). We agree
with this interpretation of § 2J1.3(c) of the Sentencing
Guidelines and adopt it here. Applying this standard, we find
that Knight’s perjury was in respect to Frett’s murder. Her
perjury convictions related to her testimony that (1) she
accessed Frett’s hospital records three or four times on the
evening of May 20, 2008;4 (2) she did so in order to be able to

      3
         The Guidelines dictate that the base offense level for
an accessory after the fact be “6 levels lower than the offense
level for the underlying offense” but “not more than level
30.” U.S.S.G. § 2X3.1(a). The base offense level for the
underlying offense here, first degree murder, is 43, id. at §
2A1.1(a), and 6 levels less would be 37, so the maximum
offense level of 30 and its corresponding sentence range of 97
to121 months would be triggered. However, because the
crime of perjury has a statutory maximum sentence of 60
months, 18 U.S.C. § 1621, that limit applies here.
      4
        The Government’s theory was that Knight falsely
claimed to have accessed Frett’s records three or four times,




                              11
provide his room number to friends and family who were
making telephone calls to the hospital because they wanted to
visit him; and (3) that Milligan was a friend of Frett’s and
called on May 20, 2008, because he wanted to visit Frett in
the hospital. She gave this testimony at a suppression hearing
in criminal proceedings concerning charges that she had made
false statements to federal agents specifically investigating
Frett’s murder. All of the testimony, moreover, was given in
response to questions which pertained to events at the hospital
on the very night that Frett was killed and which were clearly
being asked to establish facts surrounding that crime. Finally,
based on her initial interview by investigators on January
26th, her post-arrest interrogation on January 27th, and the
details of the charges of making false statements to a federal
agent on which she had already been indicted, Knight was
aware of the government’s theory that Frett’s murder had
been facilitated by her obtaining his room location from the
hospital’s records system and disclosing it to Milligan. For
these reasons, we conclude that Knight knew or had reason to
know that the testimony underlying her perjury convictions
concerned Frett’s murder. Accordingly, the District Court did
not commit clear error in finding that the perjury was in
relation to that criminal offense.




rather than just once, in order to corroborate her claim that
she had done so in response to multiple inquiries from his
friends and family members and to mask the conspicuousness
of her single instance of access in the short interval between
two phone calls with Milligan.




                              12
III. CONCLUSION

       For the reasons stated above, we will affirm the
District Court’s judgments of conviction and sentence.




                          13
