                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAY 26 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 99-3161
 v.
                                             (D.C. No. CR-98-40026-02-RDR)
                                                    (District of Kansas)
 WILLIAM BUCKLEY,

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Defendant-appellant William Buckley appeals from his conviction and

sentence for one count of bank robbery. A grand jury returned two separate

indictments against Buckley on charges of bank robbery and assault upon a law

enforcement officer. Following a consolidated trial on both charges, the jury

convicted Buckley of bank robbery and acquitted him of assault. The district

court sentenced him to 144 months imprisonment. He raises three issues on



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
appeal: (1) the district court erred in consolidating the assault and bank robbery

charges for trial; (2) the district court erred in adding a two-point enhancement

under United States Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 for obstruction

of justice based on false testimony during trial; and (3) the district court erred in

adding a two-point enhancement under U.S.S.G. § 3C1.2 for reckless

endangerment during flight. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742 and affirm.

                                           I

      On February 23, 1998, Buckley was arrested for a supervised release

violation and was subsequently indicted for assaulting a U.S. Marshall during the

arrest. In a separate indictment, he was indicted for a bank robbery that occurred

on February 19, 1998—four days before his arrest for the supervised release

violation.

      Pursuant to the government’s request, the district court consolidated the

assault and bank robbery charges for trial. After a trial, during which Buckley

testified, a jury acquitted him of assault but convicted him of bank robbery. The

district court sentenced him to 144 months imprisonment, based in part on a two-

point enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1 for

providing false testimony at trial and a two-point enhancement for reckless

endangerment during flight pursuant to U.S.S.G. § 3C1.2.


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                                          II

      Consolidation of indictments for trial is governed by Fed. R. Crim. P. 13,

which states:

      The court may order two or more indictments or informations or both
      to be tried together if the offenses, and the defendants if there is
      more than one, could have been joined in a single indictment or
      information. The procedure shall be the same as if the prosecution
      were under such single indictment or information.

Offenses may be joined in a single indictment pursuant to Fed. R. Crim. P. 8(a) if

they “are of the same or similar character or are based on the same act or

transaction or on two or more acts or transactions connected together or

constituting parts of a common scheme or plan.” We construe Rule 8 broadly to

allow liberal joinder to enhance the efficiency of the judicial system. See United

States v. Janus Indus., 48 F.3d 1548, 1557 (10th Cir. 1995).

      Although the bank robbery charge was not the underlying substantive

offense for the arrest warrant being executed at the time of the assault, the district

court, after conducting a hearing, consolidated the two separate charges for trial

based on its finding that “[t]he assault occurred only days after the robbery when .

. . the defendant was still attempting to conceal evidence of the robbery[, and his]

actions indicate that he was attempting to flee at the time of the assault.”

(Appellant’s Br. App. B at 2-3.) We review the district court’s decision to join




                                         -3-
indictments for trial de novo. See United States v. Furman, 31 F.3d 1034, 1036

(10th Cir. 1994).

      The assault charge need not arise from the execution of an arrest warrant

for the bank robbery to satisfy Rule 8(a). See United States v. Quinones, 516

F.2d 1309, 1312 (1st Cir. 1979) (“Nor was it improper under Fed. R. Crim. P. 8(a)

to try the escape count with the other three counts, although the warrant pursuant

to which he was in custody related to another incident charged in two counts

dismissed with prejudice at the start of trial.”); cf. Bayless v. United States, 381

F.2d 67, 71 (9th Cir. 1967) (holding that joinder for trial of escape and burglary

charges was proper where the escape provided a motive for the burglary). The

assault was a separate offense, but proof of it “was not prejudicial” in the bank

robbery case “where flight was a circumstance that might be considered in

determining guilt.” United States v. Bourassa, 411 F.2d 69, 74 (10th Cir. 1969).

The temporal proximity of only four days between the bank robbery and

Buckley’s vigorous flight from arrest permits the inference that he may have been

fleeing for fear of being arrested for the robbery. Cf. United States v. Peoples,

748 F.2d 934, 936 (4th Cir. 1984) (holding that an escape and a bank robbery

were sufficiently connected to permit joinder where the defendant escaped only

days after being arrested for the robbery and, although the defendant had other

outstanding charges against him, the robbery charge was the most recent motive


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for flight). In addition to the temporal proximity between the bank robbery and

the assault, evidence of the bank robbery was found in Buckley’s vehicle after his

arrest on the parole violation warrant, further indicating that the bank robbery was

his motive to flee from arrest. The two indictments were sufficiently “connected

together” to warrant consolidation for trial. Fed. R. Crim. P. 8(a).

      A district court may, however, “order the separate trials of counts which are

properly joined if it appears the defendant is prejudiced by their joinder.”

Furman, 31 F.3d at 1036-37 (citing United States v. Muniz, 1 F.3d 1018, 1023

(10th Cir. 1993)); see also Fed. R. Crim. P. 14 (“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.”). The court’s decision to grant or

deny severance is reviewed for abuse of discretion. See Furman, 31 F.3d at 1037.

“In order to show an abuse of discretion, the defendant must show actual

prejudice.” Id. (citing United States v. Rogers, 925 F.2d 1285, 1288 (10th Cir.

1991)). Buckley argues prejudice based on his allegation at sentencing that he

felt he needed to testify on his own behalf for the assault charge, but was

therefore forced to testify about the bank robbery as well—a charge for which he




                                         -5-
would have preferred to exercise his Fifth Amendment right against self-incrimination.

      A defendant who wishes to remain silent on some counts and testify on

other counts is not entitled to a severance under Fed. R. Crim. P. 14 without “‘a

convincing showing that he has both important testimony to give concerning one

count and strong need to refrain from testifying on the other.’” United States v.

Martin, 18 F.3d 1515, 1518-19 (10th Cir. 1994) (quoting United States v.

Valentine, 706 F.2d 282, 291 (10th Cir. 1983)). In making such a showing, the

defendant must

      present enough information—regarding the nature of the testimony
      that he wishes to give on one count and his reasons for not wishing
      to testify on the other—to satisfy the court that the claim of prejudice
      is genuine and to enable it to intelligently weigh the considerations
      of ‘economy and expedition in judicial administration’ against the
      defendant’s interest in having a free choice with respect to testifying.

Id. (quoting Valentine, 706 F.2d at 291). Buckley’s claim necessarily fails

because he did not inform the court of his desire to testify on one count and

remain silent on the other. See United States v. Cox, 934 F.2d 1114, 1120 (10th

Cir. 1991). His statement at sentencing to this effect was too late; this was

compounded by its inadequacy due to lack of specificity. The district court did

not abuse its discretion in failing to sever trial because Buckley did not establish

prejudice.




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                                         III

      Section 3C1.1 of the Sentencing Guidelines requires a two-point

enhancement of a defendant’s offense level if “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.”

Obstruction of justice includes “the offering of perjured testimony at trial.”

United States v. Copus, 110 F.3d 1529, 1536 (10th Cir. 1997) (citing U.S.S.G.

§ 3C1.1, comment. (n.3(b))). An enhancement under § 3C1.1 for perjured

testimony requires willful intent to mislead. See United States v. Cerrato-Reyes,

176 F.3d 1253, 1263 (10th Cir. 1999).

      However, “[t]he mere fact that a defendant testifies to his or her innocence

and is later found guilty by the jury does not automatically warrant a finding of

perjury.” United States v. Anderson, 189 F.3d 1201, 1213 (10th Cir. 1999). “In

order to apply the § 3C1.1 enhancement, it is well-settled that a sentencing court

must make a specific finding—that is, one which is independent of the jury

verdict—that the defendant has perjured herself.” United States v. Massey, 48

F.3d 1560, 1573 (10th Cir. 1995) (citing United States v. Dunnigan, 507 U.S. 87,

95 (1993)). The required finding must encompass “‘all of the factual predicates

of perjury,’” id. (quoting Dunnigan, 507 U.S. at 95), so that we are able “to




                                         -7-
satisfy our appellate responsibility of review in determining whether the record

would support findings of falsity, materiality, and willful intent,” id.

      The district court made the following findings concerning Buckley’s

perjurious testimony:

      The defendant offered considerable testimony at trial denying various
      aspects of his participation in the bank robbery. The court finds by a
      preponderance of evidence that the testimony offered by the
      defendant concerning his participation in the bank robbery was false
      and was given with the intent to commit perjury. There is little
      question that it was material to this case. In sum, the court finds that
      a two-level enhancement under § 3C1.1 is appropriate.

(Appellant’s Br. App. C at 5.) “We review the district court’s factual findings as

to the enhancement under § 3C1.1 for clear error, and review de novo the district

court’s interpretation of the Sentencing Guidelines.” Cerrato-Reyes, 176 F.3d at

1263. “Our deference to the district court is especially appropriate when the issue

concerns questions of a witness credibility.” United States v. Litchfield, 959 F.2d

1514, 1523 (10th Cir. 1992). The district court’s findings encompassed all the

factual predicates of perjury and are not clearly erroneous. Buckley argues that

this enhancement is nonetheless inappropriate because he should not have been

forced to testify as to the bank robbery. That argument speaks to the propriety of

joinder, not the propriety of this enhancement, and, as discussed, joinder was

proper. We therefore affirm the district court’s application of the § 3C1.1

enhancement for obstruction of justice.


                                          -8-
                                         IV

      Section 3C1.2 of the Sentencing Guidelines provides for a two-point

enhancement “[i]f the defendant recklessly created a substantial risk of death or

serious bodily injury to another person in the course of fleeing from a law

enforcement officer.” For purposes of this enhancement, “reckless” is defined in

the same way as it is defined in the Guideline for involuntary manslaughter. See

U.S.S.G. § 3C1.2, comment. (n.2). That Guidelines section provides in relevant

part: “‘Reckless’ refers to a situation in which the defendant was aware of the

risk created by his conduct and the risk was of such a nature and degree that to

disregard that risk constituted a gross deviation from the standard of care that a

reasonable person would exercise in such a situation.” U.S.S.G. § 2A1.4,

comment. (n.1). “[T]he standard of care envisioned by the Guidelines is that of

the reasonable person, not the reasonable fleeing criminal suspect.” United States

v. Conley, 131 F.3d 1387, 1389 (10th Cir. 1997).

      The district court found that Buckley knowingly engaged in a high-speed

car chase with law enforcement officials through residential areas and attempted

to run over a police officer. We review the district court’s factual findings as to

the enhancement under § 3C1.2 for clear error and review de novo the district

court’s interpretation of the Sentencing Guidelines. See Cerrato-Reyes, 176 F.3d

at 1263.


                                         -9-
      The record supports the district court’s factual findings and belies

Buckley’s contentions that, because the officer’s vehicle was unmarked, he did

not know he was being chased by a law enforcement officer. As to his claimed

ignorance that he was being pursued by a law enforcement officer, the officer

identified himself several times just before Buckley attempted to run him down.

Buckley also argues that his acquittal on the assault charge proves that he did not

create a risk of death or serious injury to anyone. As to Buckley’s recklessness,

however, the officer testified that Buckley drove at speeds of fifty to sixty miles

per hour skidding around corners through residential neighborhoods. Moreover,

the chase having ended and the officer having exited his car, Buckley rapidly

accelerated directly towards the officer.

      The district court’s findings are not erroneous and are sufficient to support

the enhancement of Buckley’s sentence pursuant to § 3C1.2 for reckless

endangerment during flight. These actions plainly involved “a known risk of

danger to others, and constituted a gross deviation from the standard of care that a

reasonable person would have exercised in that same situation.” Conley, 131 F.3d

at 1389-90 (holding that a § 3C1.2 enhancement was justified where the defendant

operated his vehicle, in reverse, at a high rate of speed on a residential street)

(citing United States v. Gonzalez, 71 F.3d 819, 836-37 (11th Cir. 1996); United

States v. Woody, 55 F.3d 1257, 1262, 1274 (7th Cir. 1995); United States v.


                                            -10-
Chandler, 12 F.3d 1427, 1433 (7th Cir. 1994); United States v. Sykes, 4 F.3d 697,

700 (8th Cir. 1993)).

                                         V

      Because Buckley fails to make the requisite showing of prejudice resulting

from the joinder, and the district court made sufficient factual findings to support

the contested sentencing enhancements, we AFFIRM his conviction and

sentence.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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