                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                February 19, 2009
                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                            __________________________             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 08-1156
 v.                                          (D.Ct. No. 1:98-CR-00432-EWN-1)
                                                          (D. Colo.)
 JAMES CAPADONA,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Defendant James Capadona was convicted by a jury of escape from federal

custody, in violation of 18 U.S.C. § 751(a), and sentenced to thirty months

      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
imprisonment and three years supervised release. He now appeals both his

conviction and sentence on grounds the district court erred: (1) by declining to

rule on the sufficiency of his affirmative defense of justification prior to trial,

thereby depriving him of the opportunity to make a reasoned choice whether to

testify or remain silent at trial; and (2) in applying a two-point enhancement for

obstruction of justice based on its finding Mr. Capadona perjured himself at trial.

We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291

and affirm Mr. Capadona’s conviction and sentence.



                        I. Factual and Procedural Background

      On August 19, 1998, Mr. Capadona walked away from a minimum security

prison camp located at the Florence, Colorado, Federal Correctional Complex

(FCC) after serving approximately one-half of his ninety-seven-month sentence

for a drug-related offense. He remained a fugitive for more than six and one-half

years, from August 1998 until his arrest in San Francisco, California, in March

2005. He was indicted on one count of escape, in violation of 18 U.S.C. § 751(a),

and extradited to Colorado to face federal prosecution on the pending charge.



      Prior to trial, Mr. Capadona gave notice of his intent to assert the

affirmative defense of “necessity or duress,” pursuant to United States v. Bailey,

444 U.S. 394 (1980), which the parties now refer to as a “justification defense,”

                                           -2-
as termed in United States v. Butler, 485 F.3d 569, 572 n.1 (10 th Cir. 2007).

Relying on Bailey, Mr. Capadona advised he would prove the four elements of

such a defense by showing: (1) his life was in imminent danger from: (a) a

member of the prison staff who had threatened him, and (b) a group of prison

guards, referred to as the “Cowboys,” who violently treated inmates; (2) it would

have been futile to raise an outcry; (3) no person was harmed in the course of his

escape; and (4) he had not reached a position of safety during the six and one-half

years following his escape because he believed he would inevitably face

retribution from prison officials if he returned to custody. While Mr. Capadona

stated he recognized that Bailey requires a threshold showing for each of these

elements before a justification defense can properly be submitted to a jury, he

urged the court not to “act as a super-gate keeper” in making a pre-trial

determination as to whether his evidence would be sufficient for jury

consideration and, instead, to let the jury make the determination.



      The government filed a response in opposition and moved in limine to

preclude Mr. Capadona’s introduction of evidence in support of the justification

defense at trial, challenging the prima facie threshold sufficiency of such

evidence to meet all the required elements of that defense. Also relying on

Bailey, it asserted Mr. Capadona could not prevail as a matter of law on the fourth

element regarding not being able to reach a position of safety for almost seven

                                         -3-
years after his escape, given the Supreme Court’s determination that three months

as a fugitive was too long as a matter of law to succeed on the fourth element.

See Bailey, 444 U.S. at 399, 415. Mr. Capadona replied, arguing the decision on

the viability of his asserted justification defense should be left to the jury, and not

the court, and that a determination on the sufficiency of his proffer prior to trial,

including his own testimony, would deprive him of his right to present a

“complete defense” at trial.



      At a status conference, the parties again presented argument on the issue of

the justification defense, and Mr. Capadona’s counsel reiterated the defense’s

position that it would produce sufficient evidence to support the affirmative

defense, which should be an issue for jury determination. He also acknowledged

that proving the fourth element of achieving a position of safety could be a

problem but urged that “if we can’t produce a scintilla of evidence that [Mr.

Capadona] was not in a position of safety, then I can understand the court not

going with the jury instruction to the effect of he was under duress.” R., Vol. 3 at

4-5. Counsel also pointed out a trial would be needed anyway, given Mr.

Capadona’s unwavering position that he would not plead guilty to the charge.



      Thereafter, the district court issued an order denying the government’s

motion in limine to preclude the admission of the justification defense evidence at

                                          -4-
trial. While the district court acknowledged its authority to determine whether

Mr. Capadona met the minimum standard of proof on each element, it made no

determination on the sufficiency of his evidence supporting his affirmative

defense at that time and announced its intent not to hold a pretrial evidentiary

hearing, stating:

      Such a hearing could only lead to one of two results: the defense is
      either available or unavailable. If it is the former, the parties will be
      forced to re-argue the evidence before the jury and the court will
      have wasted scarce judicial resources in conducting duplicative
      proceedings. If the latter, the court will have wasted resources in an
      unnecessary proceeding on the eve of trial. Accordingly, [Mr.
      Capadona] may present his evidence concerning his affirmative
      defense at trial. This court will serve in its proper capacity as
      gatekeeper, and will only allow the jury to consider the defense if
      [he] has adequate evidence to support the elements thereof.

R., Vol. 1, Doc. 62 at 5-6.



      At the pretrial motions hearing, the district court addressed the justification

defense issue again, questioning the sufficiency of Mr. Capadona’s proof and his

need to lay a foundation, including a nexus between himself and the Cowboys. It

also questioned how he intended to prove the fourth element regarding reaching a

position of safety. Counsel responded by explaining Mr. Capadona would testify

as to each element in support of his affirmative defense. The district court

warned Mr. Capadona that the justification defense was “so implausible on its

face” that it could not “ever conceive of a jury buying into it” but indicated its


                                          -5-
inclination to allow the defense to be presented to the jury nevertheless.



      At trial, the district court permitted Mr. Capadona to present evidence in

support of the justification defense. Mr. Capadona’s first witness, an FBI

investigator, testified: (1) the “Cowboys” Mr. Capadona complained about as

threatening and retaliatory had worked at the Special Housing Unit (SHU), which

is a different Florence FCC facility than where Mr. Capadona was held; (2) an

investigation into the brutality of the guards known as the Cowboys was prompted

by complaints received from inmates; and (3) their reign of violence ended almost

a year before Mr. Capadona’s August 1998 escape. Mr. Capadona now admits

this testimony rebutted his claims about the Cowboys and the futility of inmates

complaining about prison staff.



      Following the FBI investigator’s testimony, Mr. Capadona testified

concerning his fear of the Cowboys based on what he had heard about them but

admitted he could not name any individual who was a Cowboy, he did not have

physical contact with them, and they were not at the same facility where he was

housed or worked. However, he also testified with respect to the particular guard

he claimed threatened him. Specifically, he explained he worked in the kitchen

outside of his camp at another prison facility – the Administrative Maximum

Facility (ADX) – where he and a staff member known as “Crockett” developed a

                                         -6-
hostile relationship but that the situation improved after he raised the issue with

kitchen administrators named “Garcia” and “Scofield.” He stated hostilities again

resumed, reaching a climax on the day of his escape, when, at the end of his shift,

Mr. Crockett escorted him to the back of the kitchen to a sally port, slammed him

against a wall, choked him, and goaded him to fight. When he refused to fight, he

testified, Mr. Crockett advised him to “check in” to protective custody, but that if

he did, Mr. Crockett had “something for [his] ass then.” According to Mr.

Capadona, Mr. Crockett’s last words to him were that he (Mr. Capadona) was not

leaving prison. He admitted that during this altercation, other people were

“there” and “all grouped up doing things” but stated that no one actually

witnessed the altercation. After the incident, Mr. Capadona testified, Mr.

Crockett stayed at the ADX while he left the kitchen and took the bus back to his

minimum security camp.



      Based on these events, Mr. Capadona testified, he believed his life was in

immediate danger, consulted with fellow inmates about the matter; and, a few

hours later, escaped by walking away from the camp. He also testified he

believed it would have been futile to report Mr. Crockett’s actions to authorities

and that he later did not take any action to report the matter to local, state, or

federal agencies. While he offered that decent police officers existed, he testified

that he did not trust them enough to report the matter. In addition, he

                                           -7-
acknowledged he achieved a temporary position of safety from the immediate

threat just a day or so after his escape and consulted with attorneys about the

possibility of surrender but, despite their advice, never turned himself in because

he was afraid of going back. He also testified that after his instant arrest, he did

not tell the arresting officer or any of the California authorities that he feared for

his life if returned to the Bureau of Prisons.



      Following Mr. Capadona’s testimony, a former inmate testified on his

behalf, offering testimony Mr. Capadona confided in him about being threatened

by a guard who pushed him against a wall on the day of his escape. However,

this witness also testified that he had advised Mr. Capadona to report the incident

to his case manager and counselor and admitted to previously stating that he

believed another motive for Mr. Capadona’s escape was his anger at the length of

his sentence.



      At the close of evidence, the government moved to strike the affirmative

defense of justification on grounds Mr. Capadona failed to meet all but the third

element of the justification defense – that no person was harmed during his

escape. The district court agreed, finding Mr. Capadona failed to satisfy the other

three contested elements in support of his affirmative defense. With regard to the

first element, regarding an imminent threat, the district court determined even if

                                           -8-
Mr. Capadona’s version of events with Mr. Crockett was true, it amounted to a

vague threat and an assault without injury, which was insufficient to show his life

was in imminent danger, especially in comparison to other cases where the danger

was far more pressing, extreme, and serious than what he faced. The district

court also noted that after the assault, Mr. Capadona took a bus back to his

minimum security camp and away from the officer, who was located at a different

facility and a person distinct from his counselors or advisors, and that Mr.

Capadona did not escape until four hours later – again, failing to demonstrate an

imminent threat of death or danger, unlike other cases where the officer had a gun

or knife or was pursuing the defendant.



      As to the second element, regarding the futility of complaining or reporting

any threats, the district court noted inmate reports on the Cowboys’ violence were

investigated and the guards were prosecuted and convicted, resulting in Mr.

Capadona’s assertions falling “far short” of showing that reporting his situation

would have been futile. The district court also noted Mr. Capadona had pursued

his legal rights repeatedly, both in its court and the Bureau of Prisons, and the

fact that he did not always prevail did not mean that his situation would have

been futile. As to the fourth element, it found that not only had Mr. Capadona

reached a position of safety when he reached his camp away from Mr. Crockett,

but he achieved a position of safety “very shortly” after his escape and

                                          -9-
nevertheless failed to turn himself in or report the incident to anyone, even

though he acknowledged police officers and guards existed who did not subscribe

to guard-on-inmate violence. It further found Mr. Capadona’s assertion he

satisfied the fourth element regarding being unable to reach a position of safety

for the six and one-half years following his escape “simply frivolous.”

Consequently, the district court ruled the justification defense could not be

considered by the jury. After closing arguments, the jury found Mr. Capadona

guilty of the charge of escape.



      Prior to sentencing, the government sought a two-point enhancement for

obstruction of justice under United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) § 3C1.1 based, in part, on Mr. Capadona’s false pretrial assertions

and trial testimony that prison staff assaulted him. Mr. Capadona objected,

claiming his testimony concerning the threats against him constituted credible

evidence and played no role in the trial, given the jury did not consider his

affirmative defense. At a hearing on the issue, the government presented the

testimony of Rene Garcia, the former food service administrator at the ADX, who

was also Mr. Crockett’s supervisor. Mr. Garcia testified: (1) he was unaware of

any kind of altercation, argument, or anything of that nature occurring between

Mr. Crockett and Mr. Capadona; (2) no complaints had ever been received from

Mr. Capadona or any other inmate regarding Mr. Crockett, whom he described as

                                         -10-
“an excellent supervisor” with “excellent reports”; and (3) if his deputy, Mr.

Scofield, had received such a complaint, he would have told Mr. Garcia and they

would have turned the matter in for investigation. He also testified he reviewed

Mr. Capadona’s file and it contained no complaint or request for transfer out of

the kitchen and that inmates were not usually reluctant to complain about staff

members.



      Mr. Crockett also testified on behalf of the government and explained he

had been a cook supervisor in the kitchen at Mr. Capadona’s facility. Mr.

Crockett stated that in his thirteen years as a cook supervisor with the Bureau of

Prisons, supervising over a thousand inmates, no complaints had ever been filed

against him by either staff or inmates, that he received nine performance awards,

and all of his yearly performance reviews had been either “outstanding” or

“exceeds.” He testified that from the time Mr. Capadona began working in the

kitchen in April 1997 until his escape in August 1998 he only supervised him

twelve or thirteen times and had a vague recollection of who he was, what he

looked like, and that he was a cook on the “p.m. shift.” He also stated he did not

recall any problems or anything out of the ordinary with Mr. Capadona; did not

threaten or assault him or any other inmate; and, specifically, did not grab Mr.

Capadona’s neck, push him against a wall, or tell him he would not get out of the

prison camp alive.

                                        -11-
      After the parties presented argument on the obstruction of justice issue, the

district court found Mr. Capadona offered material and intentional false testimony

with respect to the alleged threats and assault he received from Mr. Crockett,

which it determined was “accompanied by a wilful intent to commit perjury, as

opposed to mistake, accident, or faulty memory.” It explained that it made this

determination based on its finding Mr. Capadona lacked credibility, the fact the

threats and assault were directly contradicted by Mr. Crockett and no complaint

had ever been made against him during his entire employment with the Bureau of

Prisons, and the unlikelihood that individuals present at the alleged assault would

have continued to stand around and talk without taking action or reporting it,

which it found was “simply incredible.” As a result, the district court applied the

two-point obstruction of justice enhancement to Mr. Capadona’s base offense

level of thirteen, for a total offense level of fifteen, which, together with a

criminal history category of IV, resulted in a Guidelines range of thirty to thirty-

seven months imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Tbl.). After

considering the parties’ arguments, the applicable Guidelines, and the sentencing

factors under 18 U.S.C. § 3553(a), the district court sentenced Mr. Capadona at

the low end of the Guidelines range to thirty months imprisonment.




                                          -12-
                                    II. Discussion

                                    A. Conviction

      Mr. Capadona, now represented by different counsel than during his trial,

appeals his conviction on grounds the district court erred in declining to rule prior

to trial on the sufficiency of his affirmative defense of justification, thereby

depriving him of the opportunity to make a reasoned choice on whether to testify

or remain silent at his trial. He not only suggests that “deficiencies in proof”

concerning his justification defense “were revealed early on in the trial” when the

FBI investigator testified, rebutting his contentions concerning the Cowboys, but

that it was clear, even prior to trial, that he could not establish as a matter of law

the fourth element of his affirmative defense because no case existed in state or

federal law that supported the justification defense when a defendant had

remained at large for years without making an attempt to surrender to authorities.

Because the deficiencies in his justification defense were so readily apparent, he

asserts the district court should have ruled on the sufficiency of his evidence prior

to trial and intimates that, at the very least, the district court should have ruled on

it prior to his trial testimony, thereby sparing him from two days of trial on an

obviously deficient defense which resulted in a negative finding he committed

perjury, which, in turn, lengthened his sentence.



      In making these assertions, Mr. Capadona suggests his arguments never

                                          -13-
induced or swayed the district court to defer its ruling on the sufficiency of his

justification defense, but, instead, the district court deferred its ruling based

solely on its concern over wasting scarce judicial resources. He admits, however,

that his position on appeal is “seemingly at loggerheads with his position below”

and further concedes he never made an objection to the district court’s decision to

defer its sufficiency ruling, which he now asserts requires us to apply a standard

of review of “plain error.”



      In opposing the appeal, the government argues Mr. Capadona invited or

induced the district court to take the action it did when he asked it to allow him to

present evidence on his affirmative defense, which the district court allowed him

to do. As a result, the government asserts, Mr. Capadona waived any objection as

to the timing of the district court’s sufficiency ruling.



      “[T]he invited-error doctrine precludes a party from arguing that the district

court erred in adopting a proposition that the party had urged the district court to

adopt.” United States v. Deberry, 430 F.3d 1294, 1302 (10 th Cir. 2005). Invited

error is a form of intentional relinquishment of a known right, constituting

waiver, which is not entitled to appellate relief, unlike forfeiture of a known right

through neglect, which may be reviewed for plain error. See United States v.

Carrasco-Salazar, 494 F.3d 1270, 1272 (10 th Cir. 2007).

                                          -14-
      Under the circumstances presented, we conclude the invited error doctrine

applies because any error Mr. Capadona now complains of was invited. This is

because Mr. Capadona affirmatively urged the district court to allow him to

present evidence in support of his affirmative defense, including his testimony,

rather than rule on his affirmative defense as a matter of law, as the government

requested.



      To begin, when the government argued early on that Mr. Capadona’s

affirmative defense on the fourth element should fail as a matter of law, or when

the district court initially indicated the deficiencies in Mr. Capadona’s proffer of

evidence, Mr. Capadona argued he had sufficient evidence to prove the elements

of his defense which he should be allowed to present. In fact, when the district

court warned Mr. Capadona of the difficulties and unlikelihood of being able to

meet the requirements of his affirmative defense and otherwise questioned the

adequacy of his justification defense, Mr. Capadona insisted he should be able to

present evidence, including his testimony, to establish the required elements,

arguing it was necessary to present a complete defense to the charge against him.

He also suggested that if he could not produce sufficient evidence, then his

affirmative defense should not be considered. It is for this reason the district

court elected, however reluctantly, to defer its ruling on the justification defense

until such evidence was presented, rather than make a determination, as the

                                         -15-
government requested, as a matter of law. Incredulously, on appeal, Mr.

Capadona now argues the district court should have ruled on his affirmative

defense as a matter of law on the fourth element, rather than allow him to present

his evidence in support thereof – the very thing against which he argued at the

trial level. Accordingly, Mr. Capadona invited the alleged error of which he now

complains.



      In addition, contrary to Mr. Capadona’s contentions, it is also clear the

district court’s concern about wasting judicial resources in having a hearing in

advance of trial was secondary to Mr. Capadona’s repeated pleas to allow him to

present his justification defense evidence before making any ruling as a matter of

law. In addition, we note that if the district court had required Mr. Capadona to

present his evidence at a hearing rather than at trial, Mr. Capadona has not shown

the district court would have ruled differently on his affirmative defense, he

would not have perjured himself at that proceeding, or that such perjured

testimony would not have been used to lengthen his sentence. See United States

v. Hawthorne, 316 F.3d 1140, 1148 (10 th Cir. 2003) (holding § 3C1.1 for

obstruction of justice is not limited to perjury committed at trial, but extends to

any judicial proceeding). As the government suggests, Mr. Capadona is, in effect,

arguing the district court should have “saved him from himself” by ruling on his

affirmative defense before hearing the evidence he sought to proffer.

                                         -16-
      Other weaknesses in Mr. Capadona’s argument are further illustrated by the

fact that while the FBI investigator may have dispelled Mr. Capadona’s claims

regarding the Cowboys early in the trial, Mr. Capadona’s primary claim

concerning Mr. Crockett’s alleged threats and assault still remained and was not

in any way dispelled or rebutted by the FBI investigator’s testimony, leading us to

believe Mr. Capadona elected to testify, in part, to present evidence on his

altercation with Mr. Crockett in support of his affirmative defense. However,

even if Mr. Capadona and his counsel felt his case suffered “deficiencies in

proof” with respect to the FBI investigator’s testimony or in regard to any other

aspect of his case, it was up to him and his counsel to make a tactical decision

before or even at trial as to whether he should testify, especially after the district

court repeatedly warned about the apparent deficiencies in his offers of proof. To

now argue, in essence, that he might not have testified had he known the outcome

of the district court’s ruling is disingenuous. For these reasons, we conclude the

error, if any, of which Mr. Capadona now complains was invited, 1 requiring no

further review on appeal.




      1
         Because we have determined the error, if any, was invited, we need not
specifically determine whether it was improper for the district court to decline to
rule as a matter of law on his affirmative defense or to allow the jury to hear
evidence on it before making a ruling.

                                          -17-
                                    B. Sentence

      Mr. Capadona also appeals his sentence, claiming the district court erred in

applying the two-point enhancement for obstruction of justice based on its finding

Mr. Capadona perjured himself at trial. On appeal, he claims the district court’s

finding he perjured himself at trial was based “on a clearly erroneous rendition of

[his] testimony,” as evidenced by the district court’s finding the assault occurred

in the presence of witnesses who incredibly did not see or hear it. To refute this

description of his testimony, Mr. Capadona points out he never stated the

altercation was loud enough to be heard by others and that he testified he was

being choked and it occurred out of the kitchen in a sally port, where no one

witnessed it. He further asserts any arguable inconsistencies in his testimony

were based on the almost ten years between the altercation and the trial, implying

that his memory may have been confused, mistaken, or faulty due to the passage

of time.



      Guidelines § 3C1.1 mandates a two-level increase if “the defendant

willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense ....” U.S.S.G. § 3C1.1. “[C]ommitting,

suborning, or attempting to suborn perjury” is sufficient to trigger the obstruction

of justice enhancement. Id. at cmt. n.4. Perjury occurs when “[a] witness

                                         -18-
testifying under oath or affirmation ... 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), abrogated on other grounds, United States v. Wells, 519 U.S. 482

(1997). This court has held the district court must “be explicit about which

representations by the defendant constitute perjury.” Hawthorne, 316 F.3d at

1146. We review the district court’s factual findings in regard to obstruction of

justice issues under the clearly erroneous standard, while reviewing its legal

interpretations de novo. See id. at 1145. In order for a district court’s factual

findings to be clearly erroneous, we must conclude they lack factual support in

the record, or, after reviewing all the evidence, we are left with the definite and

firm conviction that a mistake has been made. United States v. Martinez, 512

F.3d 1268, 1276 (10 th Cir.), cert. denied, 128 S. Ct. 2461 (2008). We give

deference to the district court’s credibility determinations and will not disturb

such credibility determinations on appeal. See United States v. Burson, 531 F.3d

1254, 1259 n.4 (10 th Cir. 2008). This includes credibility determinations in

sentencing proceedings for the purpose of applying an enhancement for

obstruction of justice. See United States v. Cook, 949 F.2d 289, 296-97 (10 th Cir.

1991).



         In this case, the district court found Mr. Capadona offered material and

                                          -19-
intentional false testimony with respect to the alleged threats and assault he

received from Mr. Crockett which it determined was “accompanied by a wilful

intent to commit perjury, as opposed to mistake, accident, or faulty memory.”

The district court explained that it made its determination based on its finding Mr.

Capadona’s testimony about the threats and assault was not credible and directly

contradicted by Mr. Crockett, who had never received a complaint against him

during his entire employment with the Bureau of Prisons, as well as the

unlikelihood individuals present at such an assault would continue to stand around

and talk without taking action or reporting it.



      Under these circumstances, even if, as Mr. Capadona contends, the district

court made its perjury determination, in part, on an erroneous rendition of his

testimony as to whether the assault occurred in the presence of witnesses, its

ruling was also based on a credibility determination when it credited, over Mr.

Capadona’s testimony, Mr. Crockett’s contradictory testimony that no threats or

assault ever occurred. Given the deference we must afford district court

credibility findings, we cannot say it committed clear error in applying the

obstruction of justice enhancement. In other words, we are not persuaded, based

on this credibility determination, that the district court’s application of the

obstruction of justice enhancement lacks factual support in the record, nor, after

reviewing all the evidence, are we left with the definite and firm conviction that a

                                          -20-
mistake has been made.



                               III. Conclusion

      For these reasons, we AFFIRM Mr. Capadona’s conviction and sentence.



                                   Entered by the Court:

                                   WADE BRORBY
                                   United States Circuit Judge




                                    -21-
