                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         NOV 3 1998
                                    PUBLISH

                  UNITED STATES COURT OF APPEALS                    PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT




UNITED STATES OF AMERICA,

             Plaintiff-Appellant,
                                                      No. 98-4000
v.

ARLENE ELIZABETH ROHDE,

             Defendant-Appellee.




                  Appeal from the United States District Court
                             for the District of Utah
                            (D.C. No. 97-CR-200G)


Brooke C. Wells, Assistant United States Attorney, Salt Lake City, Utah (David J.
Schwendiman, United States Attorney, Salt Lake City, Utah, on the brief), for
Plaintiff-Appellant.

James D. Gilson, VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah
(Stephen K. Christiansen, VanCott, Bagley, Cornwall & McCarthy, Salt Lake
City, Utah, on the brief), for Defendant-Appellee.


Before BRORBY, McKAY, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
      The United States appeals the dismissal on double jeopardy grounds of a

perjury indictment against Arlyne Rohde. 1 After pleading guilty to bank robbery

and a related firearm offense, but before being sentenced, Rohde testified falsely

at her accomplice’s trial. Because she thereby obstructed justice, the sentencing

court enhanced her sentence for the bank robbery and firearm offenses. In light

of the sentencing enhancement, the district court held that the Double Jeopardy

Clause prevented the government from prosecuting Rohde for perjury based on

the same testimony.

      For double jeopardy purposes, the consideration of related but uncharged

criminal conduct in calculating a sentence, or the enhancement of a sentence for

obstructing justice by failing to appear at a hearing, do not constitute

“punishment.” See Witte v. United States, 515 U.S. 389, 399 (1995); United

States v. Hawley, 93 F.3d 682, 688 (10 th Cir. 1996). Rohde notes differences

between those sentencing calculations and a sentence enhancement for obstructing

justice by perjury. Those differences, however, do not distinguish Witte and

Hawley. This court thus exercises jurisdiction under 18 U.S.C. § 3731 2 and holds

      1
        Ms. Rohde notes that, although her name was spelled “Arlene” in both the
district court and in the captioning of this appeal, her name is actually “Arlyne.”
      2
       This statute gives the courts of appeals jurisdiction to hear appeals by the
United States in criminal cases “except . . . where the double jeopardy clause of
the United States Constitution prohibits further prosecution.” 18 U.S.C. § 3731.
This court, however, has interpreted this double jeopardy proviso as requiring a
merits analysis: when the United States appeals a double jeopardy decision, this

                                         -2-
that a sentence enhancement for perjury, even if the perjury was committed after

conviction for the underlying offense, does not bar a subsequent prosecution for

the same perjury.

      I.     BACKGROUND

      Arlyne Rohde pleaded guilty to bank robbery in violation of 18 U.S.C.

§ 2113(a) and to carrying a firearm during the commission of a violent felony in

violation of 18 U.S.C. § 924(c). See United States v. Rohde, 989 F. Supp. 1151,

1152 (D. Utah 1997). Along with her plea, Rohde filed a statement admitting that

she had planned the bank robbery with Paul Jones and Tracy Brown and that

Jones and Brown had given her a gun which she carried during the robbery. She

also admitted these facts under oath at her plea hearing.

      The district court, per Judge Dee Benson, accepted Rohde’s plea but

postponed sentencing until after Jones’s trial, at which she was to testify pursuant

to a government subpoena. The court stated that her truthfulness at the Jones trial

would likely affect her sentence.




court evaluates the merits of the decision before ascertaining its jurisdiction. See
United States v. Martinez, 667 F.2d 886, 889 (10 th Cir. 1981). If this court
concludes that the Double Jeopardy Clause does not bar further prosecution, it
assumes jurisdiction and reverses the dismissal; only if it concludes that the
Clause does bar further prosecution does it let the dismissal stand, albeit
technically by dismissing for lack of jurisdiction rather than affirming.

                                         -3-
      In her trial testimony, Rohde initially reiterated her plea account of the

bank robbery. During her second day of testimony, however, she recanted and

testified instead that Jones had not participated in or known of the robbery. The

government responded in two ways. It indicted her for perjury in violation of

18 U.S.C. § 1621 and, at sentencing on the robbery and firearms charges, it

requested an increase of two in her offense level under Sentencing Guideline

§ 3C1.1 for obstruction of justice.

       At her sentencing hearing, Rohde admitted having changed her testimony

in an effort to help Jones. The court increased her offense level by two “for

obstruction of justice for lying on that witness stand.” Relying on the resulting

sentence enhancement, Rohde moved to dismiss the perjury indictment on double

jeopardy grounds. The court, per Judge J. Thomas Greene, granted the motion

and dismissed the indictment. See id. at 1156–59.

      II.    DISCUSSION

      This court reviews de novo a district court’s decision to dismiss an

indictment on double jeopardy grounds. See United States v. McAleer, 138 F.3d

852, 855 (10 th Cir. 1998) (reviewing de novo a denial of a motion to dismiss on

double jeopardy grounds). Neither party challenges the court’s factual findings.

      The Double Jeopardy Clause of the Fifth Amendment provides that no

person “shall . . . be subject for the same offense to be twice put in jeopardy of


                                         -4-
life or limb.” U.S. Const. amend V. The Supreme Court has long construed the

Clause to bar two distinct types of government conduct: punishing a person twice

for the same offense or prosecuting a person twice for the same offense. See,

e.g., United States v. Dixon, 509 U.S. 688, 704 (1993) (citing North Carolina v.

Pearce, 395 U.S. 711 (1969)); Ex Parte Lange, 85 U.S. (18 Wall.) 163, 173

(1874). The district court held, and Rohde argues on appeal, that the

enhancement constituted both punishment and a prosecution for perjury. See

Rohde, 989 F. Supp. at 1157.

      A.     The sentence enhancement did not “punish” Rohde for her perjury.

      When a court bases a sentence under the Guidelines in part on relevant

conduct, i.e., related but uncharged criminal conduct, it does not thereby punish

the defendant for that conduct. See Witte v. United States, 515 U.S. 389, 399

(1995). In Witte, the defendant pleaded guilty to a charge arising from a 1991

drug sale. The district court based its sentence not only on the amount of drugs

involved in the 1991 sale but also on amounts of drugs Witte had conspired to

distribute in 1990. See id. at 392–94. The court relied on Guideline § 1B1.3,

which directs courts to determine the sentencing range for an offense by

considering all relevant conduct, not just the conduct constituting the offense of

conviction. See U.S. Sentencing Guidelines Manual § 1B1.3 (1997) [“U.S.S.G.”].

The Supreme Court held that, despite the incorporation of the 1990 conduct in


                                         -5-
Witte’s sentence, the government did not violate the Double Jeopardy Clause

when it later prosecuted Witte separately for that conduct. See Witte, 515 U.S. at

397, 403–04. The Court reasoned that a defendant in Witte’s situation “is

punished, for double jeopardy purposes, only for the offense of which the

defendant is convicted.” Id. at 397.

      Rohde attempts to distinguish Witte by noting that § 1B1.3 applies only to

conduct “that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or

responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1). 3 Rohde notes that the

district court did not take her perjury into account under § 1B1.3 but used it to

enhance her sentence under § 3C1.1, which directs the court to increase an

offense level by two “[i]f 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.” Id. § 3C1.1. 4

Rohde further notes that her perjury occurred years after the conduct comprising

her offenses of conviction, not in the same time period, as is generally true of

      3
       For property, tax, fraud, and drug offenses, like Witte’s, on which the
Guidelines are largely quantity-dependent, such conduct includes acts or
omissions of the defendant “that were part of the same course of conduct or
common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2);
see also id., cmts. 3, 9(B) & bckgrnd.

      The commentary to section 3C1.1 specifies that it applies to perjury. See
      4

U.S.S.G. § 3C1.1 commentary, app. note 3(b).

                                         -6-
conduct taken into account under § 1B1.3. See id. § 1B1.3(a)(1), (a)(2) & cmt.

9(B).

        Tenth Circuit precedent, however, forecloses Rohde’s attempt to

distinguish Witte. See United States v. Hawley, 93 F.3d 682 (10 th Cir. 1996).

While released on bond, Hawley failed to appear for his arraignment. The court

forfeited his bond. See id. at 685. After Hawley was recaptured, he eventually

pleaded guilty. See id. The court enhanced his offense level under § 3C1.1 for

obstruction of justice because of his failure to appear. See id. at 686. He

appealed, arguing that the bond forfeiture and sentence enhancement constituted

multiple punishments for the same conduct and thus violated the Double Jeopardy

Clause. See id.

        This court disagreed for two reasons. See id. at 687–88. First, the bond

forfeiture was a remedial civil penalty and not punishment in the sense of double

jeopardy jurisprudence. See id. Second, under Witte, “the enhancement for

obstruction of justice was not punishment for any conduct other than the conduct

to which Hawley pleaded guilty.” Id. at 688.

        Rohde argues that Hawley does not control this case because, in light of its

holding that the bond forfeiture was not punishment, its comments about the

enhancement were dicta. Concededly, the holding that the bond forfeiture was

not punishment for purposes of double jeopardy could have alone resolved


                                          -7-
Hawley’s appeal. The Hawley opinion, however, discusses Witte so thoroughly

and applies it so unequivocally that it leads this panel to treat the § 3C1.1

rationale as an alternate holding, not dicta. The Hawley panel summarized and

quoted Witte at length and then applied it in no uncertain terms: “We conclude

that the facts of this case are governed by Witte. The enhancement of Hawley’s

sentence under U.S.S.G. § 3C1.1 was punishment for the underlying offense to

which he pleaded guilty, not punishment for failing to appear.” Id. The Hawley

panel’s use of the terms “conclude” and “governed,” undiluted by such language

as “may not have been punishment,” indicate a holding, not dicta. 5

      Rohde also notes that a subsequent prosecution was not at issue in Hawley.

Nonetheless, the court’s unequivocal conclusion that the § 3C1.1 enhancement

“was . . . not punishment” suggests, if it does not dictate, the result in this case,

which does involve a prosecution for the enhancing conduct.

      Finally, Rohde argues that Hawley is unavailing because the government

did not rely upon or even cite it in the district court. Failing to cite a specific

case, however, even if precedential, does not invariably have the same

consequence as failing to present an issue, particularly when the failure is that of



      5
        Were this panel inclined to engage in the business of labeling as dicta one
of the two alternative grounds in Hawley, it would then confront defendant’s
failure to demonstrate why that label ought not adhere to the alternative which is
innocuous to her theory, rather than to the alternative which undermines it.

                                          -8-
the prevailing party. Cf., e.g., Gowan v. United States Dep’t of the Air Force, 148

F.3d 1182, 1189 (10 th Cir. 1998) (noting that court of appeals “may affirm on any

ground supported by the record”). The government argued in the district court

that indicting a defendant for perjury after a sentencing enhancement for

obstruction of justice based on that perjury does not constitute double jeopardy.

The government cited Witte and specifically argued its application to perjury.

The government acknowledged that no reported case addressed the double

jeopardy implications of a perjury enhancement; it simply failed to note that

Hawley did address more generally the implications of a § 3C1.1 enhancement.

These are not the makings of appellate preclusion.

      Even were Rohde able to avoid Hawley, she could not distinguish Witte by

differentiating § 3C1.1 from § 1B1.3. Several other circuits have applied Witte to

§ 3C1.1 enhancements for obstruction of justice. See United States v. Grisanti,

116 F.3d 984, 987 (2 d Cir. 1997); United States v. Ross, 77 F.3d 1525, 1550 (7 th

Cir. 1996); United States v. Bellrichard, 62 F.3d 1046, 1051–52 (8 th Cir. 1995);

United States v. Jernigan, 60 F.2d 562, 564–65 (9 th Cir. 1995). 6 Those decisions,

however, all apply Witte summarily, without analyzing an argument premised on



      6
       None of these cases involved obstruction by perjury. The distinction
between obstruction by perjury and obstruction by other means, however, is only
relevant to Rohde’s multiple-prosecution argument, discussed in part II.B of this
opinion. See infra at 13–19.

                                         -9-
differentiating § 3C1.1 from § 1B1.3. Such an argument is nonetheless

unavailing.

      Rohde’s argument adopts the district court’s two-part reasoning about

temporality: (1) unlike a court that uses relevant conduct under § 1B1.3 to

calculate a sentence, Rohde’s sentencing court could not have premised its

enhancement of her sentence under § 3C1.1 on aggravating circumstances of her

robbery and firearm offenses, because her perjury did not precede or accompany

those crimes; (2) the § 3C1.1 enhancement must therefore have been punishment

for the perjury itself, barring further prosecution or punishment as double

jeopardy. See Rohde, 989 F. Supp. at 1155. Similar reasoning, however, did not

persuade the Court in Witte.

      The Court determined that Witte’s appeal was controlled by its pre- and

post-Guidelines precedent, in which it had consistently rejected double jeopardy

challenges to sentences based in part on “conduct arising out of the same criminal

transaction” as the crime of conviction or on “a defendant’s background.” Witte,

515 U.S. at 400. 7 Justice Stevens argued in dissent that a sentencing court’s use


      7
       The Court extensively discussed and relied on its opinion in a particular
pre-Guidelines case involving the same criminal transaction. See United States v.
Witte, 515 U.S. 389, 398–400 (following Williams v. Oklahoma, 358 U.S. 576
(1959)). It also quoted its opinions in several cases involving criminal history
under either the Guidelines or state recidivist statutes. See id. at 400 (quoting
Nichols v. United States, 511 U.S. 738 (1994); Gryger v. Burke, 334 U.S. 728
(1948); and Moore v. Missouri, 159 U.S. 673 (1895)) (other citations omitted).

                                        -10-
of relevant conduct under § 1B1.3 bars further prosecution or punishment for that

conduct because, unlike criminal history under § 4A1.1, which measures the

character of the offender, relevant conduct measures only the character of the

offense. See id. at 408–12 (Stevens, J., dissenting). Basing a sentence in part on

relevant conduct, Justice Stevens concluded, thus serves only to punish the

offense constituted by the relevant conduct. See id. The Court specifically

rejected this argument. See id. at 402–03. 8 Minimizing the importance of

temporality, the Court noted that “the difference between ‘criminal history’ and

‘relevant conduct’ is more temporal than qualitative, with the former referring

simply to a defendant’s past criminal conduct . . . and the latter covering activity

arising out of the same course of criminal conduct as the instant offense.” Id. at

402 (citations omitted).

      Rohde’s argument and the district court’s reasoning similarly rely on a

distinction that is “more temporal than qualitative.” Rohde committed perjury

after her crimes of conviction, not before or in the same general time period as

those crimes. The pertinent difference, then, between the conduct underlying her



      8
        The Court reasoned that relevant conduct and criminal history each relate
to the character both of the offense and of the offender. See Witte, 515 U.S. at
403. “[W]hile relevant conduct . . . may relate to the severity of the particular
crime,” the Court reasoned, “the commission of multiple offenses in the same
course of conduct also necessarily provides important evidence that the character
of the offender requires special punishment.” Id.

                                         -11-
§ 3C1.1 enhancement, and conduct qualifying as criminal history under

§§ 4A1.1–.3 or as relevant conduct under § 1B1.3, is merely temporal.

      Despite that temporal distinction, her willingness to lie under oath, like a

defendant’s willingness to commit multiple offenses, “necessarily provides

important evidence that the character of the offender requires special

punishment.” See Witte, 515 U.S. at 403. A criminal who perjures herself to

escape responsibility for her crime poses a greater threat to society, and deserves

less leniency, than one who does not. See United States v. Dunnigan, 507 U.S.

87, 97 (1993) (upholding constitutionality of sentence enhancements for perjury).

While Rohde intended her perjury to benefit an accomplice, the resultant threat to

society was no less imminent than had she lied to protect herself. She showed the

same willingness as the defendant in Dunnigan to place an individual’s interests

above those of society and the criminal justice system by lying under oath. The

perjury enhancement in this case, like that in Dunnigan, thus “further[ed]

legitimate sentencing goals relating to the principal crime, including . . .

retribution and incapacitation.” Id.

      By obstructing the prosecution of her accomplice, Rohde did not only show

that her character deserved special punishment. She also aggravated the character

of her charged offenses. Cf. Witte, 515 U.S. at 402–03 (discussing distinction

between character of offender and character of offense). Her perjury aggravated


                                          -12-
the character of her offenses as plainly as the commission of related, uncharged

crimes aggravates the character of a defendant’s charged offenses. If the

prosecution of a crime is obstructed, then that crime becomes more dangerous to

society than an otherwise identical crime whose prosecution is not obstructed. A

crime whose prosecution is obstructed thus deserves greater punishment.

      In the usual case, the convict who receives a § 3C1.1 enhancement will

have obstructed the prosecution of his or her own crime. In this unusual case,

Rohde’s perjury obstructed the prosecution of Jones’s offense, not her own. This

makes the relation of her perjury to her underlying offense less immediately

obvious. Rohde, however, has already unsuccessfully appealed her § 3C1.1

enhancement. 9 That failure precludes her from relying in this appeal on the

unusual nature of her obstruction to avoid the general rule outlined above: a

perjury enhancement punishes the underlying offense, not the perjury, because the

perjury both reveals the bad character of the offender and aggravates the character




      9
        Rohde argued that the § 3C1.1 enhancement was invalid because her
perjury had not obstructed “the investigation, prosecution, or sentencing of the
instant offense,” i.e., her offense. U.S.S.G. § 3C1.1 (emphasis added). A
different panel of this court, however, upheld the enhancement. See United States
v. Alexander, No. 97–4105, 1998 WL 380529, at *2 (10th Cir. July 1, 1998)
(unpublished disposition). (Alexander is Rohde’s new, married name; she
declined, however, to move this court to recaption this appeal.) Rohde has
properly conceded that she “cannot and does not use this appeal to collaterally
attack the sentence enhancement.”

                                        -13-
of the offense. Because the perjury enhancement does not punish the perjury

itself, Rohde’s multiple-punishments argument fails.

      B.     The sentencing court’s consideration of Rohde’s perjury did not
             constitute a prosecution for double jeopardy purposes.

      While Rohde’s sentence enhancement did not punish her perjury, the

Double Jeopardy Clause would still require dismissal of the perjury indictment if

the enhancement constituted a prosecution for perjury. This court, however, has

specifically rejected the argument that a sentencing hearing in which a court

based a sentence in part on relevant conduct constituted a de facto prosecution for

the relevant conduct. See United States v. Koonce, 885 F.2d 720, 722 (10 th Cir.

1989) (rejecting argument by dissenting panel member); compare id. at 722

(McKay, J., dissenting).

      Rohde’s attempt to distinguish Koonce rests on her interpretation of a

special rule for sentence enhancements based on perjury established in United

States v. Dunnigan, 507 U.S. 87 (1993). In Dunnigan, the Court held that “if a

defendant objects to a [§ 3C1.1] sentence enhancement resulting from her trial

testimony, a district court must review the evidence and make independent

findings necessary to establish a willful impediment to or obstruction of justice,

or an attempt to do the same, under the [standard federal] perjury definition.” Id.

at 95. Quoting a phrase from Dunnigan, Rohde argues that its requirement of an

independent finding of perjury converts a sentencing hearing into a “surrogate for

                                        -14-
a perjury prosecution.” Id. at 97. Rohde’s argument, however, ignores the

purpose and context both of Dunnigan’s reference to a “surrogate . . .

prosecution” and, more broadly, of its independent-findings rule.

      In requiring independent findings, the Court was defusing the argument that

a § 3C1.1 perjury enhancement unconstitutionally impairs a defendant’s right to

testify. See id. at 91–92, 96–97. Dunnigan argued that perjury enhancements

burden the right to testify because they create a risk “that courts will enhance

sentences as a matter of course whenever the accused takes the stand and is found

guilty.” See id. at 96. The Court agreed that not every accused who testifies and

yet is convicted should incur a perjury enhancement, noting ways in which

testimony may be inaccurate or unconvincing, yet not perjurious. See id. at 95.

But the independent-findings rule, the Court then explained, dispels the risk that

every such convict will receive an automatic enhancement. See id. at 96–97. The

rule’s purpose is thus to shield defendants in the exercise of their right to testify

in their own defense.

      The purpose of the ban on multiple prosecutions in double jeopardy

jurisprudence, on the other hand, is to shield individuals from any danger that the

government will use its superior resources to subject them to the fiscal and

emotional burdens of repeated trials:

      [T]he State with all its resources and power should not be allowed to
      make repeated attempts to convict an individual for an alleged

                                          -15-
      offense, thereby subjecting him to embarrassment, expense and
      ordeal and compelling him to live in a continuing state of anxiety and
      insecurity, as well as enhancing the possibility that even though
      innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187–88 (1957).

      A sentencing hearing at which a court considers a § 3C1.1 enhancement is

obviously not a formal prosecution. Rohde, however, argues that this court

should treat the hearing as a surrogate prosecution for double jeopardy purposes.

Her implicit premise, therefore, is puzzling: when a sentencing court protects a

defendant’s exercise of the right to testify by making independent findings of

perjury, it thereby subjects the defendant to the embarrassment, expense, ordeal,

and compulsion referred to in Green. Even if the sentencing court’s consideration

of a defendant’s perjury has some such consequences, they are not so burdensome

as to require this court to treat the sentencing hearing as a de facto prosecution.

The proceedings required by Dunnigan fall far short of being a full-blown

collateral “prosecution.” While the Court deemed it “preferable for a district

court to address each element of the alleged perjury in a separate and clear

finding,” it held that an enhancement is proper “if . . . the court makes a finding

of an obstruction of, or impediment to, justice that encompasses all of the factual

predicates for a finding of perjury.” Dunnigan, 507 U.S. at 95. The district




                                         -16-
court’s proceedings and findings in Dunnigan, which the Court approved, were

far from extensive. 10

      Similarly, the sentencing court’s proceedings in this case were not

extensive. Rohde’s counsel briefly attempted to explain the perjury, 11 inspiring an




      10
         A jury convicted Dunnigan of conspiring to distribute cocaine after a trial
at which six witnesses testified to her drug-trafficking activities, and she flatly
contradicted almost all of their testimony. See United States v. Dunnigan, 507
U.S. 87, 89–90 (1993). The government requested a § 3C1.1 enhancement and,
after argument from both sides, the court made a brief, almost summary finding:

      “The court finds that the defendant was untruthful at trial with
      respect to material matters in this case. The defendant denied her
      involvement when it is clear from the evidence in the case as the jury
      found beyond a reasonable doubt that she was involved in the
      conspiracy alleged in the indictment, and by virtue of her failure to
      give truthful testimony on material matters that were designed to
      substantially affect the outcome of the case, the court concludes that
      the false testimony at trial warrants an upward adjustment by two
      levels."

Id. at 91 (quoting district court). The Supreme Court held that, “[g]iven the
numerous witnesses who contradicted respondent regarding so many facts on
which she could not have been mistaken, there is ample support for the District
Court’s finding.” Id. at 95–96.
      11
         [ROHDE’S ATTORNEY]: [S]omehow [Rohde] saw the good in [her
fellow robbers Jones and Brown] and was trying to in essence save them. I think
that the Court saw what happened when Arlyne testified. She clearly was
attempting in a last-ditch effort to save Paul Jones because he was . . . facing life
in prison under [the three-strikes-and-you’re-out provision], and Arlyne
abandoned all notions of what’s good for her, what would be good for her
children, and she could not pour gasoline on Paul’s fire. That is it. I cannot
explain what happened beyond that. I think a lot of her bad situations have arisen
from loyalty to her friends, loyalty which knows no bounds.

                                        -17-
equally brief comment by the prosecution. 12 There followed a short colloquy

between the court and Ms. Rohde 13 and the court’s succinct finding and comments

in imposing the enhancement. 14 This court cannot equate the proceedings relating


      12
         [ASS’T U.S. ATT’Y]: [Rohde’s attorney said] that Ms. Rohde had been a
model person while under pretrial supervision. I would differ with that.
       It was less than three weeks ago when under that supervision she committed
perjury. . . .
       [Long discussion of Rohde’s uncharged criminal conduct]
       [S]he should not be given three points for acceptance [of] responsibility
based upon the testimony that she provided during the trial. She reneged on all
aspects of responsibility for herself as it related to the carrying of the firearm and
the participation of Paul Jones and I don’t think . . ., based upon that testimony,
that she is entitled to the three points . . . . Clearly she should receive the two
points for obstruction of justice under [section] 3C1.1 because it specifically
states [that it applies to] committing, suborning or attempting to suborn perjury.
      13
         THE COURT: You don’t have to answer these questions if you don’t
want to because apparently you’re under indictment for perjury. What in the
world went wrong here in this courtroom in the trial of Paul Jones? You took that
witness stand and surprised me. You surprised your lawyer, I would assume.
       MS. ROHDE: It surprised me too.
       THE COURT: You surprised yourself?
       MS. ROHDE: I did. . . . I have seen the good in Paul Jones before we got
caught up in all of this. Based on my involvement in the whole thing . . . I don’t
believe that he deserves a life sentence for what happened. It breaks my heart to
see it go that way. I also have heard rumors of bad things that happen to people
that tell bad things about people in courtrooms, and I was afraid of doing that,
which is why I have never cooperated with the government.
      14
        THE COURT: [Y]ou have only just made this significantly worse for
yourself. I cannot understand for the life of me, and perhaps I am being a little
too harsh and maybe I do understand it at some level, and I can understand a
problem with snitches in prison, but I don’t understand quite how it comes
through to being under subpoena and taking an oath and being required to tell the
truth. What you are before me today, Ms. Rohde, is one thing. What you were on
that witness stand three weeks ago was another. I don’t know you. I don’t know
who you are. [A character reference] writes and claims that Arlyne Rohde is a

                                         -18-
to perjury, which were scattered and decidedly secondary in importance to the

other sentencing issues argued and addressed in the hearing, to a prosecution.

Rohde cites no authority to suggest that Dunnigan sentencing proceedings are

frequently extensive, grueling, or otherwise comparable to a prosecution. Nor has

any other court treated the sentencing proceedings and findings required by

Dunnigan as a de facto prosecution for double jeopardy or any other purpose.

      Beyond misconstruing Dunnigan’s purpose, Rohde also quotes out of

context the Court’s reference to the § 3C1.1 enhancement as a “surrogate for a

perjury prosecution.” The Court used that phrase in rejecting Dunnigan’s

argument that perjury enhancements serve only the impermissible purpose of

enabling the government to incarcerate a defendant for perjury while sparing it

the time and expense of a separate prosecution. See Dunnigan, 507 U.S. at 97.

The Court acknowledged that an enhancement based on perjury deters perjury in

the same way as a separate perjury prosecution. See id. “But the enhancement,”



person of the highest integrity. I have a hard time squaring that with the person
who lies under oath here to me. So I have difficulty with you, Ms. Rohde. I
really feel badly for your family, for your daughters. [But] [w]e are punishing the
crime.
       ....
       I am finding that there is a two[-]point addition for obstruction of justice
for lying on that witness stand. If you didn’t lie on the witness stand that time,
you lied before me when I took your plea. I am finished being mocked by you,
Ms. Rohde. I know you feel sympathy for yourself today and I know you mean
what you say, but you’re being punished for what you did, not for how you feel
today.

                                        -19-
the Court reasoned, “is more than a mere surrogate for a perjury prosecution. It

furthers legitimate sentencing goals relating to the principal crime, including . . .

retribution and incapacitation.” Id.

      The Court was thus discussing the purpose of a perjury enhancement, and

showing that it serves to measure how to punish and incapacitate the offender for

the underlying offense, not just for the perjury. To note that the enhancement has

some purposes in common with a prosecution, and also serves additional

purposes, is not to say that the enhancement is a de facto prosecution.

      As noted, this court has rejected the argument that a sentencing court’s

consideration of relevant conduct constitutes a de facto prosecution for that

conduct. See Koonce, 885 F.2d at 722. The only difference that Rohde notes

between a sentencing court’s consideration of relevant conduct under § 1B1.3 and

its enhancement of a sentence for perjury under § 3C1.1 is the independent-

findings requirement for perjury. Nothing in Dunnigan suggests that the Court

had that requirement in mind when it referred to a § 3C1.1 enhancement for

perjury as “more than a mere surrogate for a perjury prosecution.” The Court’s

opinion, read as a whole, simply does not suggest that the independent-findings

requirement converts a perjury enhancement, unlike other considerations of

conduct beyond the charged offense, into a surrogate prosecution.




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     III.   CONCLUSION

     The order of the district court dismissing the perjury indictment is

REVERSED. The matter is REMANDED for further proceedings.




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