                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 99-2651
           ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *
      v.                                *
                                        *
Scott Plumley,                          *
                                        *
             Appellant.                 *

           ___________                      Appeals from the United States
                                            District Court for the
           No. 99-2997                      Northern District of Iowa.
           ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *
      v.                                *
                                        *
Jeremy Thomas Kaune,                    *
                                        *
             Appellant.                 *

                                  ___________

                             Submitted: January 11, 2000

                                 Filed: April 3, 2000
                                  ___________
Before WOLLMAN, Chief Judge, FLOYD R. GIBSON, and MURPHY,
      Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

       In this consolidated appeal, Scott Plumley challenges the district court’s1
decision to enhance his sentence and Jeremy Kaune raises various issues related to his
sentence and jury trial. We affirm.

                                          I.

       In the spring of 1997, Plumley and Kaune frequently associated with Craig
Burns, Nick Carner, Raymond Jenaman, John Schoenberger, and Nicholas Ware, a
group of young white men who harbored racial animus toward blacks. During this
period, the group’s bias became focused on the Hills and Dales Child Development
Center (Hills and Dales) in Dubuque, Iowa, a daycare facility at which Schoenberger’s
former girlfriend, Jennifer Mundschenk, worked. Mundschenk had recently begun
dating Terry Brown, an African-American co-worker, and in late April the group began
to engage in a pattern of criminal conduct intended to intimidate and harass
Mundschenk and Brown. This conduct included acts of vandalism and graffiti as well
as the sending of threatening notes and packages. It culminated on May 16, 1997,
when some members of the group collaborated to detonate a pipe bomb on the front
porch of Hills and Dales. The bombing caused substantial property damage but no
injuries.




      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.

                                         -2-
       Although Kaune was not involved in the pipe bombing, the day before this
incident he and other members of the group had traveled across the Iowa border to East
Dubuque, Illinois, for the purpose of stealing a motorcycle. This motorcycle was used
in the bombing the next day. Several days later, other members of the group traveled
to Galena, Illinois, and stole two more motorcycles.

       In June of 1997, a federal grand jury convened in Cedar Rapids, Iowa, to inquire
into these and other criminal activities of members of the group. During Plumley’s
grand jury testimony on June 17, he generally claimed to have no knowledge of any
crimes and offered an innocent explanation for the acquisition of the motorcycles. Two
days later, Carner and Jenaman initially gave testimony that was consistent with
Plumley’s story. Outside the grand jury room, however, they both recanted this
testimony and were then taken back before the grand jury, where they admitted that
they had lied and said that Plumley had urged them to do so. Plumley subsequently
pleaded guilty to charges of perjury, 18 U.S.C. § 1623, obstruction of justice, 18
U.S.C. § 1503, interstate transportation of stolen motor vehicles, 18 U.S.C. § 2312, and
conspiracy to transport stolen motor vehicles, 18 U.S.C. § 371. He was sentenced to
30 months’ imprisonment.

        Kaune, who had been identified by Carner and Jenaman as a participant in the
May 15 motorcycle theft, was visited on September 9, 1997, by a Dubuque police
officer and special agent Damian Bricko of the Federal Bureau of Investigation (FBI).
In response to the officers’ questions regarding the motorcycle theft, Kaune disclaimed
any knowledge or involvement and offered an alibi that closely resembled both
Plumley’s account and the false story initially given by Carner and Jenaman. The next
day, Kaune repeated this information before the grand jury, claiming that he had been
working at the time of the theft.

      On June 9, 1998, more than eight months later, Bricko contacted Kaune on
behalf of the United States Attorney’s office to recommend to Kaune that he obtain

                                          -3-
counsel. During this meeting, Kaune suggested that Bricko check Kaune’s work
records to confirm that he could not have been involved with the motorcycle theft. The
work records, to the contrary, revealed that this was a false alibi, and Kaune was
indicted on charges of conspiracy to transport a stolen vehicle, 18 U.S.C. §§ 2 & 2312,
perjury, 18 U.S.C. § 1623, and making a false statement to an investigator, 18 U.S.C.
§ 1001. Following a jury trial, Kaune was convicted on all counts and sentenced to 34
months’ imprisonment.

                                            II.

A.    Plumley’s Claims

       At sentencing, the district court, finding that Plumley had threatened several of
his cohorts with physical violence if they testified against him, increased Plumley’s
base offense level for the obstruction of justice count by three levels pursuant to section
2J1.2(b)(1) of the sentencing guidelines. We review the district court’s factual findings
for clear error, and its application of the guidelines de novo. See United States v. Hunt,
171 F.3d 1192, 1195 (8th Cir. 1999).

      1.     Sufficiency of the Evidence

       Schoenberger testified at the sentencing hearing that, during the police
investigation of the pipe bombing, Plumley on one occasion “informed us all to keep
our mouth shut,” because if anyone cooperated with the police he would “kick our ass.”
Plumley denied saying any such thing, and the district court observed that some details
of Schoenberger’s rendition of the threat had changed since his initial description
before the grand jury. Plumley now contends that the court’s conclusion that he issued
the threat is insufficiently supported by the evidence in the record.




                                           -4-
       The district court acknowledged that it was a “very, very close call whether the
statement was made or not,” but nonetheless found that the government had met its
burden by a preponderance of the evidence. This was the correct standard of proof, see
United States v. Hoelzer, 183 F.3d 880, 882 (8th Cir. 1999) (preponderance of the
evidence required at sentencing), and we have held that “‘a district court’s decision to
credit a witness’s testimony over that of another can almost never be clear error unless
there is extrinsic evidence that contradicts the witness’s story or the story is so
internally inconsistent or implausible on its face that a reasonable fact-finder would not
credit it.’” United States v. Womack, 191 F.3d 879, 885 (8th Cir. 1999) (quoting
United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995)) (brackets omitted). Our
review of the record on this point does not leave us with a “definite and firm
conviction” that a mistake has been made, see United States v. Whatley, 133 F.3d 601,
606 (8th Cir.), cert. denied, 524 U.S. 940, and cert. denied, 524 U.S. 945 (1998), and
thus we conclude that the district court’s finding that Plumley made the threat was not
clearly erroneous.

      2.     Seriousness of Threat

      Plumley next argues that, even if he made the statement, his conduct was not
serious enough to warrant an eight-level enhancement. We reject this argument, for we
agree with the district court’s characterization of Plumley’s threat as “very serious
obstruction of justice, because it’s an intent to intimidate the witness into testifying a
certain way.” The text of section 2J1.2(b)(1) simply prescribes an eight-level
enhancement “[i]f the offense involved causing or threatening to cause physical injury
to a person, or property damage, in order to obstruct the administration of justice.”
U.S.S.G. § 2J1.2(b)(1). This language does not impose an additional “seriousness”
requirement beyond the fact of a violent threat. Although the background commentary
indicates that the guideline reflects “the more serious forms of obstruction,” id.,
comment. (backgr’d), we agree with our sister circuits that have found that threats of
violence, as such, necessarily fit within this category. See, e.g., United States v. Sidhu,

                                           -5-
130 F.3d 644, 652 (5th Cir. 1997) (section 2J1.2(b)(1) applies so long as there is a
“threat of physical injury”); United States v. Versaglio, 85 F.3d 943, 949 (2d Cir.
1996) (section 2J1.2(b)(1) applies to “more serious conduct such as threatening a
witness”); United States v. Moody, 977 F.2d 1420, 1425 (11th Cir. 1992) (threats of
violence strike “at the heart of our system of justice”).

      3.     Nexus with Underlying Offense

      Finally, Plumley urges that the connection between the threat and the conduct
underlying the obstruction of justice charge is too tenuous for the threat properly to
support a “specific offense characteristic” enhancement based on section 2J1.2(b)(1).
We apply the “relevant conduct” concept when considering the nexus between the
offense of conviction and an enhancement based on a specific offense characteristic.
See U.S.S.G. § 1B1.1, comment. (n.1l) (defining “offense” to include relevant
conduct); United States v. LeCompte, 108 F.3d 948, 951 (8th Cir. 1997). Relevant
conduct includes “all acts or omissions committed . . . by the defendant . . . 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). Whether an act or omission constitutes relevant
conduct is a factual determination subject to review under the clearly erroneous
standard. See United States v. Georges, 146 F.3d 561, 562 (8th Cir. 1998).

       The obstruction of justice charge against Plumley was based on a June 19, 1997,
conversation in which he instructed Jenaman and Carner to give perjurious testimony
consistent with the false alibi Plumley had offered before the grand jury two days
earlier. According to Schoenberger’s testimony at the sentencing hearing, Plumley’s
threat to him was issued sometime in May of 1997. This threat thus preceded both
Plumley’s own grand jury testimony and his attempt to enlist others to lie. Plumley
emphasizes this timing issue in support of his contention that the threat and the conduct
underlying the obstruction of justice charge are insufficiently related to one another; he

                                           -6-
also claims that the threat involved only the pipe-bombing investigation whereas the
instructions to Jenaman and Carner focused on the government’s inquiry into the
motorcycle thefts. We are not persuaded by these arguments.

        First, the fact that Plumley’s threat occurred prior to the conduct that formed the
basis for his obstruction of justice conviction does not mean that the threat may not be
considered relevant conduct for purposes of a “specific offense characteristic”
enhancement. Cf., e.g., United States v. Geralds, 158 F.3d 977, 979 (8th Cir. 1998)
(drug transaction occurring eighteen months before offense of conviction deemed
relevant conduct for sentencing purposes); United States v. Taylor, 88 F.3d 938, 942
(11th Cir. 1996) (conduct occurring before offense of conviction may form basis for
specific offense characteristic enhancement). Second, the record does not support a
sharp distinction between either the motorcycle-theft and the pipe-bombing facets of
the investigation or Plumley’s various attempts to thwart these inquiries. Rather, both
Plumley’s threat and his subsequent efforts to ensure that his companions’ grand jury
testimony aligned with his own appear to have been part of an overall scheme to evade
responsibility for the theft and the bombing alike – crimes that were, after all, related
to one another from the outset. We thus conclude that the district court did not clearly
err in imposing the section 2J1.2(b)(1) enhancement. See United States v. Duarte, 28
F.3d 47, 48-49 (7th Cir. 1994) (section 2J1.2(b)(1) enhancement proper although threat
against witness made after defendant had already pleaded guilty; provision not intended
“to introduce refined distinctions within the broad category of obstruction of justice,”
such that it could be applied only to threats prospectively designed to impede
investigation or prosecution of offense of conviction).




                                           -7-
B.    Kaune’s Claims

      1.     Sentencing Issues

             a. Substantial Interference Enhancement

       Kaune’s base offense level for perjury was adjusted upward three levels pursuant
to section 2J1.3(b)(2) of the guidelines, which provides for such enhancement when the
perjury “resulted in substantial interference with the administration of justice.” An
upward adjustment for substantial interference is warranted where the perjury
necessitated “the unnecessary expenditure of substantial governmental or court
resources.” U.S.S.G. § 2J1.3, comment. (n. 1).

        Kaune contends that the substantial interference enhancement amounts to
“double-counting” a single statement that he repeated on several occasions, and that
this effectively penalizes him for exercising his right to testify on his own behalf during
judicial proceedings. We note that, at sentencing, there appears to have been some
confusion about which statements in fact formed the basis for the enhancement. The
perjury charge itself was based on Kaune’s grand jury testimony, in which he flatly
denied any involvement in the motorcycle theft. Kaune reasserted this denial on two
subsequent occasions, each time supplying a different alibi.2 Although the district court
initially announced its intention to rely in part on one of these statements to justify the
section 2J1.3(b)(2) enhancement, during the sentencing hearing the court orally




      2
        The first such occasion was Kaune’s unsolicited assertion to Bricko that he had
been working at the time – a claim that formed the basis for the false statement charge.
The second occasion was at trial, when Kaune claimed that he had not been working
but instead was at home when the motorcycle theft occurred.

                                           -8-
amended this decision, choosing instead to rely only on separate statements regarding
legal representation that Kaune had made during two suppression hearings.

       At the first of these hearings, which was held on December 1, 1998, Kaune
alleged under oath that federal law enforcement agents had advised him not to consult
a lawyer prior to his appearance before the grand jury – a claim central to Kaune’s
argument that his grand jury testimony was tainted. In response, the government called
Bricko, the agent who had purportedly given Kaune this advice, to the stand. Bricko
insisted he never told Kaune such a thing, and the court denied the motion to suppress
Kaune’s grand jury testimony.

       The second suppression hearing took place on February 3, 1999. Kaune had
moved to suppress his June 9, 1998, statement to Bricko on the grounds that Bricko’s
visit constituted an improper communication by an agent of the United States
Attorney’s office with a represented party in violation of Iowa’s rules of professional
ethics. To support the position that he was a represented party at the time, Kaune
recounted a discussion concerning his grand jury testimony that he had had with Paul
Kaufman, a state public defender who had represented Kaune in unrelated matters.
This testimony, which materially conflicted with an account of the discussion Kaune
had given at the earlier suppression hearing, forced the government to call Kaufman as
a witness in order to counter Kaune’s version of their discussion. The district court
denied this motion to suppress as well.

       These two incidents were wholly separate from, and in addition to, both Kaune’s
statement to the grand jury that led to the perjury charge and his statement to Bricko
that led to the false statement charge; thus, no “double-counting” occurred. The district
court, in order to enhance Kaune’s sentence under section 2J1.3(b)(2), was required
to be convinced of his untruthfulness on these occasions by a preponderance of the
evidence. See Hoelzer, 183 F.3d at 882. The court found that Kaune had lied at both
suppression hearings, and such credibility determinations are “close to invulnerable on

                                          -9-
appeal.” United States v. Due, No. 99-1310, 2000 WL 233239, *3 (8th Cir. March 2,
2000). Moreover, given the resultant need for additional preparation, investigation, and
testimony, we find that the district court’s conclusion that Kaune’s perjury at the
suppression hearings required the unnecessary expenditure of substantial governmental
and court resources is not clearly erroneous. See United States v. Sinclair, 109 F.3d
1527, 1538-40 (10th Cir. 1997) (discussing scope of § 2J1.3(b)(2) and the meaning of
“substantial governmental or court resources” in application note 1).

             b. Propriety of Consecutive Sentence

       Kaune argues that the district court erred in ordering that his 34-month federal
sentence run consecutive to a state court sentence that resulted from the revocation of
parole just prior to Kaune’s federal sentencing. We find nothing in section 5G1.3, the
guideline that deals with the sentencing of a defendant already subject to an
undischarged term of imprisonment, to indicate any reversible error in this decision.
Although the district court incorrectly concluded that it did not have discretion to
impose a concurrent sentence under section 5G1.3(c), see United States v. Moore, 160
F.3d 509, 510 (8th Cir. 1998); it made clear that it would not have done so in any
event, and we find that the sentence actually imposed was consistent with the
guidelines. See id.; United States v. Lange, 146 F.3d 555, 556 (8th Cir. 1998).

      2.     Alleged Prosecutorial Improprieties

             a. References to Plea Agreements at Trial

       Kaune contends that, at trial, the government improperly vouched for the
credibility of prosecution witnesses Jenaman, Ware, and Plumley by soliciting
testimony that they had entered into cooperation plea agreements requiring them to tell
the truth. Kaune objected to this questioning and requested a cautionary instruction
pointing out that prosecutors often have no way of knowing whether witnesses are

                                         -10-
telling the truth or not. Kaune’s objection was overruled, and the district court declined
to give the requested instruction.

       We review both the admission of testimony and the formulation of jury
instructions for abuse of discretion. See United States v. Bad Wound, No. 99-1550,
2000 WL 175154, *1 (8th Cir. Feb. 16, 2000) (testimony); United States v. Einfeldt,
138 F.3d 373, 378 (8th Cir. 1998) (jury instructions). We have held that a prosecutor
may inquire into the terms of a cooperating witness’s plea agreement so long as this
information is not used as evidence of the defendant’s guilt and the jury understands
its duty to judge witness credibility independently. See United States v. Willis, 997
F.2d 407, 414 (8th Cir. 1993); United States v. Drews, 877 F.2d 10, 12 (8th Cir. 1989).
District courts are under no obligation to instruct juries to consider accomplice
testimony with extra caution. See United States v. Rockelman, 49 F.3d 418, 423 (8th
Cir. 1995); Drews, 877 F.2d at 12-13.

       In this case, recitation of the terms of the plea agreements served as an aid to the
jury in reaching its own credibility determinations. During closing argument the
prosecutor reminded the jury that “we live in a system where the government cannot
force people to testify truthfully,” and that “your job is to judge their credibility.”
Moreover, the government said nothing to imply that Kaune must be guilty because his
friends had pleaded guilty. We presume that the jurors gave the testimony “such
weight as they thought it deserved, taking into account whether the witnesses’
testimony may have been influenced by a desire to please the government.” Drews,
877 F.2d at 12. The district court thus did not abuse its discretion in allowing testimony
about the cooperation plea agreements and in refusing to issue a cautionary instruction.




                                           -11-
             b. Closing Argument

       Kaune alleges prosecutorial misconduct because, during the government’s
rebuttal argument, the prosecutor defended the use of cooperation plea agreements by
stating:

      “My job is to enforce the law. And the way I have to do that, to get at the
      truth, is to give some benefit or hope of benefit to some of these people,
      then that’s what I’ve got to do or else we’re going to let crime go
      unpunished.”

At another point, the prosecutor told the jury, “Here’s what happened in my view. The
defendant lied to his mother. He lied to his girlfriend. He lied to his probation officer.”
Kaune argues on appeal that these statements by the prosecutor amounted to further
instances of improper vouching.

        In order to prove prosecutorial misconduct, a defendant must show that (1) the
prosecutor’s remarks were improper, and (2) the remarks prejudicially affected the
defendant’s substantial rights so as to deprive him of a fair trial. See United States v.
Macklin, 104 F.3d 1046, 1049 (8th Cir. 1997). If we reach the second step, we
consider (1) the cumulative effect of the misconduct; (2) the strength of the properly
admitted evidence of the defendant’s guilt; and (3) any curative actions taken by the
trial court. See United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir. 1996).

       During Kaune’s own closing statement, his attorney unfavorably compared the
credibility of prosecution witnesses Jenaman, Ware, and Plumley to that of certain
defense witnesses. He also likened cooperation plea agreements to “a lawyer who
handed a witness some money in order to influence their testimony,” suggesting to the
jury that such behavior generally “would be frowned upon.” We conclude that the
government’s subsequent justification of cooperation plea agreements, which did not


                                           -12-
include any suggestion that the prosecutor had independently verified witnesses’
testimony, constituted a “fair response and rebuttal” prompted by these statements of
defense counsel. United States v. Lee, 743 F.2d 1240, 1253 (8th Cir. 1984). As such,
it does not warrant reversal. See id.

       The prosecutor’s remark “Here’s what happened in my view” is more plausibly
read as the equivalent of his saying “Here is what the evidence established” than as
constituting an unvarnished expression of his personal belief in Kaune’s guilt.
Although the latter is not permitted, see United States v. Young, 470 U.S. 1, 8-9
(1985), to prohibit the former would be to unduly circumscribe the prosecutor’s right
and duty to “prosecute with earnestness and vigor.” Berger v. United States, 295 U.S.
78, 88 (1935). In any event, in light of the numerous witnesses who testified that
Kaune participated in the May 15, 1997, bike theft, the district court’s clear instruction
that credibility determinations were for the jury alone, and the prosecutor’s own
statements to the same effect, we conclude that this comment, if in fact it crossed over
into the gray zone between clearly acceptable and clearly unacceptable advocacy, see
Young, 470 U.S. at 7, was at most harmless error. See United States v. Triplett, 195
F.3d 990, 997 (8th Cir. 1999); United States v. French, 88 F.3d 686, 688-89 (8th Cir.
1996).

             c. Ex Parte Contact

       Kaune, who testified before the grand jury on September 10, 1997, that he had
a lawyer, argues that Bricko’s June 9, 1998, visit on behalf of the United States
Attorney’s office constituted improper ex parte communication. Kaune contends that
this contact violated Iowa Rule of Professional Responsibility DR 7-104(A)(1), which
provides:

      (A) During the course of representing a client a lawyer shall not:


                                          -13-
             (1) Communicate or cause another to communicate on the subject
      of the representation with a party known to be represented by a lawyer in
      that matter except with the prior consent of the lawyer representing such
      other party or as authorized by law.

       Kaune suggests that we read this provision in conjunction with a formal opinion
of the Iowa Supreme Court Board of Professional Ethics and Conduct that interprets
Rule DR 7-104(A)(1) to prohibit state prosecutors from talking with a represented
criminal defendant on any subject without the consent of the defendant’s lawyer. In
support of this approach, Kaune directs our attention to the recently-enacted Ethical
Standards for Prosecutors Act, 28 U.S.C. § 530B (1999), which provides that “[a]n
attorney for the Government shall be subject to State laws and rules, and local Federal
court rules, governing attorneys in each State where such attorney engages in that
attorney’s duties, to the same extent and in the same manner as other attorneys in that
State.” Id. (emphasis added); cf. United States v. Lowery, 166 F.3d 1119, 1124-25
(11th Cir.), cert. denied, 120 S. Ct. 212 (1999) (interpreting Act in context of federal
criminal proceeding). Although this statute may inform our approach to future cases
such as this, we need not consider it here because it did not become effective until April
21, 1999, well after the June 9, 1998, contact between Kaune and Bricko. In the
meantime, we agree with those courts that have concluded that the interpretation of
state disciplinary rules as they apply to federal criminal law practice “should be and is
a matter of federal law.” Grievance Comm. for the Southern Dist. of N.Y. v. Simels,
48 F.3d 640, 646 (2d Cir. 1995); see id. at 645-46 (collecting cases); Cord v. Smith,
338 F.2d 516, 524 (9th Cir. 1964) (“When an attorney appears before a federal court,
he is acting as an officer of that court, and it is that court which must judge his
conduct.”).

      As a matter of federal law, we find that Kaune’s argument that the district court
should have suppressed his statement to Bricko is foreclosed by our precedent. We
have previously held that Minnesota’s ethical rule DR 7-104(A)(1), which is


                                          -14-
substantively identical to Iowa’s rule, “does not require government investigatory
agencies to refrain from any contact with a criminal suspect because he or she
previously had retained counsel.” United States v. Dobbs, 711 F.2d 84, 86 (8th Cir.
1983); see also United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir. 1983) (holding
that Minnesota’s rule DR 7-104(A)(1) did not prevent a federal prosecutor from wiring
a represented defendant’s accomplice for the purpose of surreptitiously eliciting a
confession); cf. United States v. Ingle, 157 F.3d 1147, 1151 (8th Cir. 1998) (citing
Fitterer and Dobbs); United States v. Balter, 91 F.3d 427, 436 (3d Cir. 1996) (same).
Accordingly, we find that the district court correctly denied Kaune’s motion to
suppress.

      3.     Perjury Conviction

        Kaune challenges his perjury conviction on the basis of immateriality. A witness
testifying under oath commits perjury if he “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 United States v. Berndt, 86 F.3d 803, 810 (8th Cir. 1996); 18 U.S.C. §§
1621, 1623.

       During his grand jury testimony, Kaune was asked whether he had “ever traveled
to East Dubuque or Galena or anywhere in between, Illinois, with Ware, Plumley,
Burns, Jenaman or Schoenberger.” He answered, “No, I haven’t.” Kaune contends
that this broad question, which formed the basis for his conviction, was so generalized
that his response to it had no tendency to “‘influence, mislead, or hamper’” the
investigation. United States v. Moeckly, 769 F.2d 453, 465 (8th Cir. 1985) (quoting
United States v. Lasater, 535 F.2d 1041, 1047 (8th Cir. 1976)). We reject this
argument.




                                         -15-
        Although it is true that this particular question did not address the “ultimate
issue” of whether Kaune was with the named individuals at the time the motorcycle
was stolen, it was not thereby rendered immaterial. See United States v. Feldhacker,
849 F.2d 293, 298 (8th Cir. 1988) (statement material when truthful answer would have
raised questions about role of others in offense); Moeckley, 769 F.2d at 465 (statement
material when witness obscures whereabouts or involvement in offense); United States
v. Ashby, 748 F.2d 467, 471 (8th Cir. 1984) (statements about seemingly peripheral
matters can become material when considered in context). Indeed, the government
initially charged Kaune with two counts of perjury, the other count having been based
on his denial of the more specific, “ultimate” question. Kaune objected to these dual
charges on the grounds that they were multiplicitous, and he cannot now be heard
contradictorily to complain that the count the government chose to pursue insufficiently
resembled the count it dropped at Kaune’s behest.

      4.     Other Arguments

       We have carefully considered the remainder of Kaune’s claims, and find them
to be without merit.

      Affirmed.

      A true copy.

             Attest:

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -16-
