                                            NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 10-2799
                   _____________

          UNITED STATES OF AMERICA

                          v.

             CLAUDELLE MCMAHILL,
                               Appellant
                 _____________

    On Appeal from the United States District Court
       for the Western District of Pennsylvania
       (D.C. Criminal No. 2:06-cr-00216-005)
        District Judge: Hon. Joy Flowers Conti
                    _____________

         Submitted Under Third Circuit LAR 34.1(a)
                  October 26, 2011

Before: FISHER, VANASKIE and ROTH Circuit Judges

              (Filed: December 29, 2011)

                   _____________

                     OPINION
                   _____________




                          1
VANASKIE, Circuit Judge.

       Claudele McMahill1 appeals her conviction and sentence for mail fraud and

conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341 and 371. For the

reasons set forth below, we will affirm.2

                                            I.

       Because we write primarily for the parties, we assume familiarity with the case

and discuss only those facts necessary to our decision. In 2003, Claudele McMahill and

Lacy Tilley were romantically involved. At that time, Tilley was vice president of Penn

Window Cleaning, a company owned by Steve Gaber. In January 2004, McMahill began

working at Acme Building Service, a janitorial services company which Gaber also

owned. McMahill was hired to work on increasing the company‟s sales as well as to

prepare the company for its eventual sale to Tilley. In April 2004, Tilley purchased

Acme‟s assets, and with Acme‟s former clients and personnel, continued Acme‟s

business operation under a new company name – United Building Maintenance

(“UBM”).

       Following the purchase, Tilley informed his employees that UBM could not afford

to continue to pay them the salaries they made with Acme. Tilley told them that if they

wanted to continue working for UBM, they would have to file for unemployment

compensation, and that UBM would then pay them “under the table” to cover the

       1
       Although the case caption as docketed indicates that McMahill‟s first name is
“Claudelle,” McMahill spells her name “Claudele.”
       2
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                            2
difference between the unemployment benefits they received and what they had earned

working for Acme. McMahill, along with several other former Acme employees,

participated in the scheme and, while working for UBM, fraudulently claimed and

received unemployment benefits.

         McMahill and Tilley were ultimately jointly indicted and tried in the Western

District of Pennsylvania on several counts of mail fraud and conspiracy to commit mail

fraud in violation of 18 U.S.C. §§ 1341 and 371. The jury found McMahill and Tilley

guilty on all charged counts. McMahill was sentenced to a prison term of 20 months.

         McMahill raises two challenges on appeal. First, she claims that the District Court

abused its discretion in denying her motion to sever. Second, she argues that the District

Court erred in enhancing her offense level for obstruction of justice pursuant to United

States Sentencing Guidelines (“U.S.S.G.”) § 3C1.1. We find both claims to be without

merit.

                                              II.

         A. Motion for Severance

         At trial, McMahill and Tilley were separately represented by counsel, until Tilley,

after the close of the government‟s case, decided he wanted to proceed pro se.

McMahill‟s counsel subsequently moved to sever his client‟s case from Tilley‟s pursuant

to Federal Rule of Criminal Procedure 14, arguing that Tilley‟s self-representation was

unfairly prejudicing McMahill. The District Court disagreed that severance was

warranted and denied the motion. McMahill argues that the District Court erred in

denying the motion for severance.

                                              3
       Rule 14(a) permits a court to sever defendants‟ trials where consolidation “appears

to prejudice a defendant.” Fed. R. Crim. P. 14(a). We have recognized that severance

should be granted “only if there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” United States v. Urban, 404 F.3d 754, 775 (3d Cir.

2005) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). A defendant seeking

to sever “bear[s] a heavy burden and must demonstrate not only abuse of discretion in

denying severance, but also that the denial of severance would lead to clear and

substantial prejudice resulting in a manifestly unfair trial.” Id. (citations and internal

quotation marks omitted).

       McMahill asserts that Tilley‟s “testimony and closing argument could not have

been more disastrous for [her].” (McMahill‟s Br. at 14.) McMahill appears to argue that

she was tainted by Tilley‟s general demeanor at trial. She accuses Tilley of being an

evasive and paranoid witness, and also cites his expression of contempt for the federal

government and his remarks that a number of individuals, including McMahill‟s ex-

husband, Gaber, and the prosecutor, were trying to cause trouble for Tilley.

       To the extent such allegedly prejudicial conduct or statements occurred during

Tilley‟s testimony, it is not at all clear that they bear any relation to the decision to

proceed pro se, which was the purported basis of McMahill‟s motion for severance.

Moreover, we think that any taint that may have arisen as a result of the jury‟s perception

of Tilley‟s demeanor or character would have prejudiced only Tilley himself, and could

not reasonably have affected the jury‟s view of McMahill or her guilt, especially in light

                                               4
of the District Court‟s specific instruction to the jury that “the personalities and the

conduct of counsel, and here I might add, Mr. Tilley, when he was acting as his own

counsel, are not in any way an issue.” (A. 2157.)

       McMahill further asserts that she was prejudiced by Tilley‟s specific testimony

concerning her. She states that Tilley was “evasive [on cross-examination] as to

[McMahill‟s] role at UBM, denying that she was an employee while simultaneously

claiming that she worked there.” (McMahill‟s Br. at 7.) Tilley‟s testimony was not

evasive – it was simply his and McMahill‟s version of events, i.e., McMahill worked for

UBM, but was not receiving remuneration for any of her services. And, if his articulation

of McMahill‟s own defense was evasive, the record makes clear that it was not any more

evasive than her own testimony on the issue.

       McMahill also asserts that she was prejudiced by Tilley‟s testimony that following

his decision to purchase Acme, he sent McMahill there to act “sort of as a spy” for him.

(A. 1323.) McMahill does not explain why she believes Tilley‟s reference to her as his

“spy” at Acme would be so damaging, and we are unable to agree that it would have

caused her any prejudice. McMahill further complains that Tilley‟s testimony “identified

her as a corporate officer” and that he introduced a UBM organizational chart that

referenced McMahill. We cannot agree that this testimony prejudiced McMahill in view

of the other substantial evidence, including McMahill‟s own testimony, that McMahill

worked for UBM while she claimed and collected unemployment benefits. Furthermore,

the specific allegation of prejudice here is completely undercut by the fact that McMahill

herself testified that she held herself out to be vice president of UBM. While Tilley‟s

                                               5
“identification” of McMahill as a corporate officer may have been unfavorable to

McMahill‟s defense that she was not working for UBM, it was certainly not more

unfavorable than McMahill‟s own admission that she held herself out to be UBM‟s vice

president.

        McMahill also claims that she was prejudiced when Tilley “opened the door” to

evidence concerning his involvement in an unrelated embezzlement scheme for which

Tilley was also under indictment. The prosecutor‟s questioning, however, did not

implicate McMahill in the alleged embezzlement scheme and the District Court

specifically instructed the jury that, to the extent Tilley denied engaging in any

embezzlement, there was no evidence in the trial that Tilley committed embezzlement.

Even if we assume that the jury impermissibly construed the government‟s line of

questioning as evidence that Tilley committed embezzlement, the District Court

instructed the jury to compartmentalize the evidence as to each defendant, and there is no

reason to think that the jury would not have been able to follow that instruction.

        In sum, McMahill has not met her burden to show that the denial of severance

caused “clear and substantial prejudice resulting in a manifestly unfair trial.” Urban, 404

F.3d at 775 (internal quotation marks omitted). Accordingly, we must reject her claim

for relief.

        B. Obstruction of Justice Sentence Enhancement

        In its pre-sentence investigation report, the Probation Office calculated

McMahill‟s total offense level to be 13, which, with her criminal history category of I,

resulted in an advisory guideline range of 12 to 18 months‟ imprisonment. The

                                              6
government objected to the Probation Office‟s offense-level calculation on the ground

that the office had not applied an “obstruction of justice” enhancement pursuant to

U.S.S.G. § 3C1.1. The District Court ruled that a two-level obstruction of justice

enhancement was appropriate, finding that McMahill perjured herself in testifying that

the checks she received from UBM during the time the government contended that she

worked for the company while fraudulently receiving unemployment compensation

constituted either the repayment of money she had loaned to Tilley or expense

reimbursements. The two-level enhancement resulted in an increased guideline range of

18 to 24 months. The District Court sentenced McMahill to 20 months‟ imprisonment

and 3 years‟ post-release supervision.

       We have explained that “to trigger application of § 3C1.1 on perjury grounds, a

defendant must give „false testimony concerning a material matter with the willful intent

to provide false testimony.‟” United States v. Miller, 527 F.3d 54, 75 (3d Cir. 2008)

(quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)). The District Court

concluded that McMahill‟s testimony was false in light of the absence of credible

evidence substantiating the existence of any loan from her to Tilley, as well as the

extensive evidence demonstrating that McMahill was in fact working for UBM during the

period she collected unemployment insurance. The District Court further found the

testimony to be material, in that the testimony, if credited, bolstered McMahill‟s defense

that she was not being paid for her services at UBM. Lastly, the District Court found that

McMahill gave the testimony with the willful intent to provide false testimony, noting

that it was not the type of testimony that could be given as a result of confusion or

                                             7
mistake. See Dunnigan, 507 U.S. at 94-95 (distinguishing perjured testimony from false

testimony given as a result of “confusion, mistake, or faulty memory.”)

       McMahill argues that the District Court erred in applying the two-level obstruction

of justice enhancement because “[t]here was no evidence introduced that [the] cash loan

never occurred.” (McMahill‟s Br. at 16.) We review a district court‟s determination that

a defendant committed perjury for clear error. See United States v. Cusumano, 943 F.2d

305, 315 (3d Cir. 1991). We will not reverse the court‟s determination unless we are

“left with the definite and firm conviction that a mistake has been committed.” See

United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (internal quotation mark

omitted).

       It is well-established that the facts underlying a sentencing enhancement,

including an enhancement for the obstruction of justice, must be proven by a

preponderance of the evidence. See United States v. Johnson, 302 F.3d 139, 154 (3d Cir.

2002); United States v. Belletiere, 971 F.2d 961, 965 (3d Cir. 1992). In this case, there

was ample evidence that McMahill was a compensated employee of UBM while

receiving unemployment compensation benefits. The absence of evidence that she had

not loaned cash to Tilley did not preclude the District Court from disbelieving McMahill.

Accordingly, the District Court did not clearly err in finding that McMahill committed

perjury when she testified that the payments she received from the company were either

loan repayments or expense reimbursements.

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.

                                             8
