In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2790

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TIMOTHY B. STOKES,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-CR-30175-WLB--William L. Beatty, Judge.


Argued January 20, 2000--Decided May 2, 2000




      Before COFFEY, MANION and ROVNER, Circuit Judges.

      COFFEY, Circuit Judge. A federal grand jury
returned a four-count indictment against
Defendant-Appellant Timothy Stokes ("Stokes")
charging him in Count one with distributing
cocaine base, in Count two with possessing with
intent to distribute cocaine base, in Count three
with using a firearm during and in relation to a
drug-trafficking offense, and in Count four with
possessing a firearm as a felon. The jury
returned a guilty verdict on all four counts and
the court sentenced the defendant to 145 months
on Counts one and two, to be served concurrently
and concurrent with each other, a consecutive 60
month term on Count three and a concurrent 120
month term on Count 4, for a total of 205 months’
imprisonment followed by eight years’ supervised
release. Stokes appealed, challenging the
district court’s denial of his motion to sever
the felon in possession of a firearm count and
the two-level upward adjustment for obstruction
of justice. We AFFIRM.

I.  BACKGROUND
      In October 1998, a confidential informant and
an undercover agent for the Metropolitan
Enforcement Group of Southwestern Illinois
arranged a series of crack transactions with
Stokes in East St. Louis, Illinois. On October 6,
with a surveillance team nearby, the undercover
agent and the confidential informant met the
defendant at the East St. Louis, Illinois
residence of the informant. During this meeting
at the informant’s residence, Stokes delivered
5.3 grams of cocaine base (also referred to as
crack) in exchange for $350./1 They met again
the following day and Stokes sold the undercover
agent approximately 28.2 grams of purported crack
for $900./2 The undercover officer was
unsuccessful in arranging further meetings due to
the defendant’s growing suspicions that he was a
law enforcement officer.

      Stokes contacted the informant again and they
agreed to meet at the informant’s home, but not
only for another drug sale; Stokes wanted to
trade his .380 caliber semi-automatic weapon and
a quantity of crack cocaine for a 9 millimeter
pistol. Stokes was arrested on his arrival by
officers from the Illinois State Police and the
Bureau of Alcohol, Tobacco and Firearms. During
the search incident to Stokes’ arrest, a loaded
.380 caliber Browning pistol was found concealed
in his pants and .2 gram of crack was discovered
in his pants pocket./3

      Prior to trial, Stokes moved to have Count
four, the felon in possession of a firearm
charge, severed and tried separately from the
other counts of the indictment, arguing that
inclusion of the felon in possession count would
allow the jury to consider otherwise inadmissible
evidence regarding his criminal history. At the
conclusion of a pre-trial hearing, the trial
judge denied the defendant’s motion to sever,
ruling that joinder was appropriate and that the
charges involved were routinely tried together.
The judge also suggested that the defendant could
stipulate, as is typically done, to the prior
felony convictions and thereby preclude testimony
regarding the nature of his convictions.

      During the trial, the defendant moved to
exclude the arresting officer’s testimony
recounting the statements made at the time of his
arrest that were derogatory to the police,/4
arguing that the statements would cause undue
prejudice under Federal Rule of Evidence 403 and
furthermore, that Miranda warnings were not
given. The judge held an in camera suppression
hearing to determine the probative nature of the
comments and also whether a Miranda warning was
in fact given. The arresting officer testified
unequivocally that he had read Stokes his Miranda
warnings at the time of arrest. In spite of this
testimony, Stokes flatly denied under oath that
he was given the warnings. At the conclusion of
the hearing, the trial judge found that the
arresting officer’s testimony was more credible,
and that Miranda warnings were in fact given, but
did agree to exclude the defendant’s derogatory
statements on Rule 403 grounds.

      The jury returned a verdict of guilty against
Stokes on all four counts. At sentencing, the
court found that the defendant committed perjury
by testifying during the suppression hearing that
he had not received his Miranda warnings and
applied a two-level upward adjustment to his base
offense level for obstruction of justice under
U.S.S.G. sec. 3C1.1. The defendant appeals,
challenging the court’s denial of his motion to
sever the felon in possession of a firearm count
and the court’s imposition of a two-level upward
adjustment for obstruction of justice.

II.    ISSUES

      On appeal, we consider: (1) whether the
district abused its discretion when it refused to
sever the felon in possession of a firearm count;
and (2) whether the court clearly erred by
assessing an obstruction of justice adjustment.

III.    DISCUSSION

        A.   Defendant’s Motion to Sever

      The defendant essentially argues that the
court’s denial of his motion to sever the felon
in possession of a firearm count was prejudicial
because the jury became aware of his prior felony
record./5 The decision to grant or deny a motion
for severance is "left to the sound discretion of
the trial court; we review only for abuse of
discretion." United States v. Dixon, 184 F.3d
643, 645 (7th Cir. 1999). Rule 14 of the Federal
Rules of Criminal Procedure provides:

If it appears that a defendant or the government
is prejudiced by a joinder of offenses or of
defendants in an indictment or information or by
such joinder for trial together, the court may
order an election or separate trials of counts,
grant a severance of defendants or provide
whatever other relief justice requires.

Fed. R. Crim. Proc. 14.

      At the outset, we note that drug trafficking
and firearm counts are presumptively properly
joined because "[p]ossession of firearms and drug
trafficking are closely related." United States
v. Pigee, 197 F.3d 879, 891 (7th Cir. 1999). This
Court has noted that "where firearms have been
discovered along with evidence of a defendant’s
drug trafficking, joinder of firearms and weapons
charges has been approved due to the natural
inferences that may be drawn from the
contemporaneous possession of guns and drugs or
drug paraphernalia: the firearm is an indication
of drug activity, and participation in drug
trafficking supplies a motive for having the
gun." United States v. Hubbard, 61 F.3d 1261,
1270 (7th Cir. 1995). Because "weapons are ’tools
of the trade’ of drug dealers," United States v.
Cooper, 19 F.3d 1154, 1163 (7th Cir. 1994), and
"all of the violations charged in the indictment
occurred at the same . . . place, and clearly
constituted ’a series of acts,’" Pigee, 197 F.3d
at 891, we agree that Stokes’ counts were
properly joined under Fed. R. Crim. P. 8(a).

      Moreover, courts also have a strong interest in
favor of joinder of offenses; in particular,
joinder of offenses reduces the waste of precious
judicial and prosecutorial time in the already
overburdened federal judicial system and reduces
the burdens on witnesses from testifying at
multiple trials. See United States v.
Blassingame, 197 F.3d 271, 286 (7th Cir. 1999);
United States v. Briscoe, 896 F.2d 1476, 1516-17
(7th Cir. 1990). See generally United States v.
Lane, 474 U.S. 438, 449 (1986) (citing the
prudent use of prosecutorial and judicial
resources as among the reasons supporting
joinder).

      Returning to Stokes’ specific challenge of the
court’s denial of his motion to sever the felon
in possession of a firearm count, to succeed on
appeal, Stokes bears the heavy burden of
demonstrating that he was prejudiced by the
denial of severance. See Blassingame, 197 F.3d at
286. In challenging the court’s denial, it is not
enough that Stokes establishes that "a separate
trial would offer him a better chance of
acquittal." United States v. Cyprian, 23 F.3d
1189, 1194 (7th Cir. 1994). Rather, he "must
establish that he suffered actual prejudice" from
the denial of the motion, see United States v.
Marshall, 75 F.3d 1097, 1105 (7th Cir. 1996), by
establishing that absent the granting of the
severance motion, he was unable to obtain a fair
trial. See United States v. Magana, 118 F.3d
1173, 1186 (7th Cir. 1997).

      We are not convinced that Stokes suffered any
prejudice from the admission of his prior felony
record in relation to the felon in possession
count because the trial judge allowed the
defendant to stipulate to his prior felony
convictions in language that was sanitized of the
words "felon" or "felony," as well as the details
of his crimes. Indeed, the stipulation that the
defendant and the government agreed upon stated
that "prior to November 10, 1998, the defendant
had been convicted of a crime punishable by a
term of imprisonment of more than one year."
      Moreover, the judge further attempted to
insulate the defendant from any prejudice arising
from his prior felony convictions by properly
instructing the jury at the close of trial that:

During the defendant’s testimony you heard
evidence that the defendant has been convicted of
crimes. You may consider this evidence in
deciding whether the defendant’s testimony is
truthful in whole, part or not at all. You may
also consider this evidence on the question of
whether the defendant has committed the offense
of unlawful possession of a firearm as charged in
Count 4. You may not consider evidence of the
defendant’s prior conviction for any other
purposes. With the sole exception of Count 4, a
conviction of another crime is not evidence of
the defendant’s guilt of any other crime for
which the defendant is now charged.

. . .

The defendant has stipulated that he had been
convicted of a crime punishable by a term of
imprisonment of more than one year. You may
consider this evidence only on the question of
whether the defendant has committed the offense
of unlawful possession of a firearm as charged in
Count 4. You should consider this stipulation
only for that limited purpose.
(emphasis added). It is clear from our review of
the record that the trial judge properly
instructed the jury to consider Stokes’ criminal
history for the sole and limited purpose of the
felon in possession of a firearm count. Indeed,
"the jury was instructed to consider each count
and the relating evidence separately; there [is]
no reason to suppose that it would disregard this
mandate." United States v. Coleman, 22 F.3d 126,
135 (7th Cir. 1994) (citation omitted); see also
United States v. Linwood, 142 F.3d 418, 426 (7th
Cir. 1998) ("The Court presumes that jurors,
conscious of the gravity of their task, attend
closely [to] the particular language of the trial
court’s instructions in a criminal case and
strive to understand, make sense of, and follow
the instruction given them."); United States v.
Stillo, 57 F.3d 553, 557 (7th Cir. 1995) (holding
that a criminal defendant "must rebut the dual
presumption that a jury will (1) capably sort
through the evidence and (2) follow limiting
instructions from the court") (quotation
omitted).

      Furthermore, the defendant’s allegation of
prejudice must also fail because the defendant
took the stand in his own defense, thereby
opening himself up to the admission of his prior
felony convictions for purposes of attacking his
credibility under Federal Rule of Evidence 609.
See also United States v. Hickok, 77 F.3d 992,
1007 (7th Cir. 1996) ("However, the law is clear
that when a defendant ’decide[s] to take the
stand and tell the jury a story,’ he does so at
his own risk . . . .") (alteration in original).
Thus, regardless of the felon in possession of a
firearm count, Stokes’ criminal history was
directly probative of his truthfulness as a
witness and the weight that should be afforded to
his testimony by the jury. And lastly, as the
trial judge recognized, we routinely try drug
trafficking counts together with a felon in
possession of a firearm count. See, e.g., United
States v. Smallwood, 188 F.3d 905, 910 (7th Cir.
1999); United States v. Mancillas, 183 F.3d 682,
686 (7th Cir. 1999); United States v. Johnson,
127 F.3d 625, 627 (7th Cir. 1997). For all these
reasons, we conclude that Stokes failed to
"establish that he suffered actual prejudice"
from the court’s refusal to sever his felon in
possession of a firearm count from the drug
trafficking counts. See Marshall, 75 F.3d at
1105. Accordingly, we hold that the judge did not
abuse his discretion by denying the defendant’s
motion for severance.


      B.   Adjustment for Obstruction of Justice

      Stokes also claims that the court erred when it
assessed an obstruction of justice adjustment
based on what the court classified as his
perjurious testimony that he did not receive his
Miranda warnings because it was neither material
nor made with the intent to interfere with the
proceedings. We review a sentencing court’s
factual findings on the issue of obstruction of
justice for clear error. See United States v.
Branch, 195 F.3d 928, 935 (7th Cir. 1999).
Factual findings by a sentencing court will be
overturned only if this Court is left with "a
definite and firm conviction that a mistake has
been committed. . . . Where there are two
permissive views of the evidence, the fact
finder’s choice between them cannot be clearly
erroneous." United States v. Swanquist, 161 F.3d
1064, 1077 (7th Cir. 1998) (quotations omitted).

Whether [Stokes] obstructed justice for purposes
of sec. 3C1.1 (i.e., whether he committed
perjury) is a factual determination that enjoys
a presumption of correctness under the clearly
erroneous standard. United States v. Delgado, 936
F.2d 303, 306 (7th Cir. 1991), cert. denied, 502
U.S. 1074, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992);
Hassan, 927 F.2d at 309; Brown, 900 F.2d at 1103.
We fully recognize that the district judge was
"in the best position to evaluate [Stokes’]
truthfulness," United States v. Easley, 977 F.2d
283, 286 (7th Cir. 1992), and we will not disturb
[Stokes’] sentence unless we are firmly convinced
that the sentencing judge was mistaken when he
determined that [Stokes] committed perjury.

United States v. Hickok, 77 F.3d 992, 1007 (7th
Cir. 1996)

      Here, the sentencing judge applied the
obstruction of justice adjustment because he
found "that the defendant committed perjury when
he [testified at the suppression hearing] that he
was not Mirandized." Although Stokes’ counsel
attempted to assuage the sentencing judge by
arguing that her client may have been
"innocently" mistaken in his assertion that he
was not Mirandized due to "a lot of confusion
[and noise] there and that he didn’t recall," the
judge responded,

The Miranda testimony by this particular police
officer I remember. Not the nitty-gritty details
but I remember the police officer was very clear
about having Mirandized him. And I remember his
testimony because he [Stokes] was insisting that
he wasn’t, which is kind of unusual. So I think
that’s the thing that concerns me. And granted .
. . there can be some shades of what was exactly
said, things of that type. But you know he was
either Mirandized or he wasn’t Mirandized. And
it’s difficult for me--and the question of being
Mirandized in this case was very significant,
because at the time those questions came up . .
. it was in the frame work [sic] of a Motion to
Suppress this other testimony. It’s difficult for
me to believe that . . . the noise you’re talking
about is going to befuddle his mind. That’s the
thing I’m concerned about.

. . .

Well, if he was confused and if there was a lot
of noise and if he doesn’t know then he should
have said I don’t really remember whether he was
or not. But he didn’t say that. He said no, I was
not.

      Section 3C1.1 of the sentencing guidelines
instructs the sentencing court to increase a
defendant’s base offense level by two if "the
defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the
administration of justice during the course of
the investigation, prosecution, or sentencing" of
the offense. U.S.S.G. sec. 3C1.1. Under the
guidelines, obstruction of justice includes the
commission of perjury as well as the act of
"providing materially false information to a
judge or magistrate." U.S.S.G. sec. 3C1.1, cmt.
(n.4(b), (f)).
      In determining what constitutes perjury, courts
have previously relied upon the definition that
has gained general acceptance and common
understanding under the criminal perjury statute,
18 U.S.C. sec. 1621: "A witness testifying under
oath or affirmation violates this statute if he
or she gives false testimony concerning a
material matter with the willful intent to
provide false testimony, rather than as a result
of confusion, mistake, or faulty memory." United
States v. Dunnigan, 507 U.S. 87, 94 (1993); see
also 18 U.S.C. sec. 1621(1).
      From our review of the proceedings, we are
convinced that the record more than adequately
supports the sentencing judge’s finding that
Stokes willfully provided perjurious testimony
that was material to the proceedings by
testifying at the suppression hearing that he did
not receive his Miranda warnings during his
arrest. We come to this conclusion, in part,
because of our well-established preference to
defer to the trial judge on issues relating to
the credibility of witnesses who testified before
him:

The reasons for this deferential standard of
review are well-established. Congress has
mandated this standard of review in sentencing
and stated that "the court of appeals shall give
due regard to the opportunity of the district
court to judge the credibility of the witnesses,
and shall accept the findings of fact of the
district court unless they are clearly erroneous
and shall give due deference to the district
court’s application of the guidelines to the
facts." 18 U.S.C. sec. 3742(e) (emphasis added).
As a matter of sound jurisprudence, we do not
second-guess the sentencing judge because he or
she has had the best ’opportunity to observe the
verbal and non-verbal behavior of the witnesses
focusing on the subject’s reactions and responses
to the interrogatories, their facial expressions,
attitudes, tone of voice, eye contact, posture
and body movements,’ as well as confused or
nervous speech patterns in contrast with merely
looking at the cold pages of an appellate record.

United States v. Garcia, 66 F.3d 851, 856 (7th
Cir. 1995) (emphasis added); see United States v.
Mancillas, 183 F.3d 682, 701 n.22 (7th Cir. 1999)
("We do not second-guess the [sentencing] judge’s
credibility determinations. . . .").

      The sentencing court’s ruling is also consistent
with the "willfulness and materiality" elements
of perjury. See United States v. Brimley, 148
F.3d 819, 823 (7th Cir. 1998). By rejecting
Stokes’ claim that he was "confused" by the noise
during his arrest and "didn’t recall," the court
essentially concluded that his testimony was
intentionally false, rather than the result of
confusion, mistake or faulty memory. See U.S.S.G.
sec. 3C1.1, cmt. (n.2). His perjurious testimony
was also material because by claiming at the
suppression hearing that he was not Mirandized
during his arrest, Stokes was attempting to
suppress statements that he made to the police
which the prosecution intended to use in their
case against him. Indeed,

[a] defendant who testifies at a suppression
hearing may be subject to an obstruction of
justice enhancement if he or she gives false
testimony which is material to the decision
whether the contested evidence should be
suppressed. Having moved to suppress the
evidence, he or she may not later claim that the
evidence was not of importance to the
government’s case.

United States v. Reddrick, 90 F.3d 1276, 1283
(7th Cir. 1996) (emphasis added). Thus, there was
a "real and demonstrable connection between
[Stokes’] obstructive conduct and . . . the
sentencing of the ’instant offense.’" United
States v. Perez, 50 F.3d 396, 399 (7th Cir.
1995); U.S.S.G. sec. 3C1.1 (requiring that the
obstructive conduct relate to "the defendant’s
offense of conviction and any relevant conduct").
See also United States v Kiszewski, 877 F.2d 210,
214 (2d Cir. 1989) ("[P]erjury strikes at the
heart of the integrity of the judicial system. .
. ."). We conclude that the sentencing court’s
findings were not clearly erroneous and hold that
it did not err in assessing the defendant a two-
level adjustment for obstruction of justice. See
Hickok, 77 F.3d at 1006 ("Perjury is a
well-established example of conduct that warrants
an enhancement for obstruction of justice.")

IV.   CONCLUSION

       The defendant’s conviction and sentence are

AFFIRMED.



/1 This transaction serves as the basis for Counts
one and two.

/2 Laboratory tests later revealed that the
substance transacted on this occasion contained
no illegal substances.

/3 After his arrest, a criminal records check of the
defendant revealed that he has been previously
convicted in Illinois court of three felonies
(each punishable by a term of imprisonment
exceeding one year): (1) armed robbery; (2)
possession of a weapon by a felon; and (3)
possession of a controlled substance.

/4 The arresting officer testified at trial that at
the time of his arrest, Stokes stated that "he
didn’t mind going back to prison, he didn’t care,
all police officers are punks and pussies."

/5 The crime of possessing a firearm as a felon
requires that the person was "convicted in any
court of, a crime punishable by imprisonment for
a term exceeding one year." 18 U.S.C. sec.
922(g)(1).
