                                                        [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 11-11505
                                                            DECEMBER 6, 2011
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________                CLERK

                D.C. Docket No. 1:10-cr-00182-WKW-TFM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

ALLEN CAPRICE STOUDEMIRE,

                                                           Defendant-Appellant.
                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        ________________________
                              (December 6, 2011)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     After a jury trial, Allen Caprice Stoudemire appeals his convictions on two
counts of knowingly making false material statements under oath, in violation of

18 U.S.C. § 1623(c). Stoudemire argues that the government failed to prove that

the two statements he made under oath were irreconcilably contradictory

declarations and thus false. After review, we affirm.1

       To sustain a conviction under § 1623, the government must show beyond a

reasonable doubt that the defendant, while under oath, knowingly made a false

material declaration. 18 U.S.C. § 1623(a). If, as here, the indictment alleges that

the defendant “made two or more declarations, which are inconsistent to the

degree that one of them is necessarily false,” the indictment

       . . . need not specify which declaration is false if- -

              (1) each declaration was material to the point in question, and
              (2) each declaration was made within the period of the statute of
              limitations for the offense charged under this section.

              In any prosecution under this section, the falsity of a declaration
       set forth in the indictment or information shall be established sufficient
       for conviction by proof that the defendant while under oath made
       irreconcilably contradictory declarations material to the point in
       question in any proceeding before or ancillary to any court or grand jury.




       1
         Because Stoudemire timely moved for a judgment of acquittal under Federal Rule of
Criminal Procedure 29, we review the sufficiency of the evidence de novo, “viewing the
evidence in the light most favorable to the government and drawing all reasonable inferences and
credibility choices in favor of the jury’s verdict.” United States v. Taylor, 480 F.3d 1025, 1026
(11th Cir. 2007).

                                                2
18 U.S.C. § 1323(c) (emphasis added).2 Two declarations are irreconcilably

contradictory for § 1623(c) purposes if “they are so different that if one is true

there is no way that the other can also be true.” United States v. Hasan, 609 F.3d

1121, 1134 (10th Cir. 2010) (quotation mark omitted); United States v. McAfee, 8

F.3d 1010, 1014-15 (5th Cir. 1993); United States v. Porter, 994 F.2d 470, 473

(8th Cir. 1993); United States v. Flowers, 813 F.2d 1320, 1324 (4th Cir. 1987).

       Here, the government presented evidence that, on April 5, 2010, Stoudemire

pled guilty to knowingly and intentionally growing 100 or more marijuana plants.

United States v. Stoudemire, No. 09-cr-189 (“Stoudemire I”).3 During his change

of plea hearing before Magistrate Judge Walker, Stoudemire admitted under oath

that he was involved in manufacturing or growing marijuana plants that were in an

aquarium at his home and used and carried a couple of pistols during and in

relation to his marijuana growing operation:

       [DEFENSE COUNSEL]:                And back on or around January 29th of
       the year 2009 did you . . . become involved in manufacturing or growing


       2
       Stoudemire does not challenge the materiality of the two statements or that they were
made under oath and within the statute of limitations period. The only issue Stoudemire raises
on appeal is whether the two statements are sufficiently contradictory.
       3
          The government introduced two transcripts from Stoudemire I, and a court reporter
testified that she prepared those transcripts in the regular practice and course of her job, at or near
when the hearings occurred. The parties stipulated that the two transcripts referred to hearings
that occurred during Stoudemire I proceedings and involved charges against the same Stoudemire
on trial in the current case.

                                                  3
      some marijuana plants that were in an aquarium in your house or on the
      premises?
      DEFENDANT: Yes.
      ....
      [DEFENSE COUNSEL]:                 And as far as count two, at the same
      house that you used to have, you had a couple of pistols in that house;
      is that right?
      DEFENDANT: Yes.
      [DEFENSE COUNSEL]:                 And did you knowingly use and carry
      during and in relation to the - - and possess those firearms in relation to
      the growing of the marijuana plants in this case?
      DEFENDANT: Yes.
              ....
      [PROSECUTOR]: Mr. Stoudemire, as far as the marijuana plants
      referred to in count one, you agree that you were growing - - knowingly
      and intentionally growing more than 100 marijuana plants; is that right?
      DEFENDANT: I was told it was 100 or more, but - - I knew they was
      growing. I don’t know.
      [DEFENSE COUNSEL]:                 You didn’t count them, right?
      DEFENDANT: No.
      [PROSECUTOR]: Do you have any reason to disagree that there were
      more than 100?
      DEFENDANT: Not - - no.

      However, in an August 18, 2010 hearing on Stoudemire’s motion to

withdraw his above guilty plea, Stoudemire, again under oath, recanted that

testimony and said he had lied, at the above change of plea hearing, when he said:

(1) he was involved in manufacturing or growing marijuana plants that were in an

aquarium at his house; and (2) he had used and carried a couple of pistols during

and in relation to the growing of the marijuana plants.

      Q:     All right. [Defense Counsel] asked you at your change of plea: On

                                          4
      or about January 29th of 2009, did you become involved in
      manufacturing or growing some marijuana plants that were in an
      aquarium in your house or on the premises? And you answered, yes.
      A:    Yes, I did.
      Q:    Do you remember that?
      A:    Yes.
      Q:    When you said yes, was that the truth or a lie?
      A:    That was a lie.
      Q:    That was a lie?
      A:    Yes.
      Q:    And [Defense Counsel] further asked you if you knowingly used
      and carried during and in relation to the growing of the marijuana plants
      a couple of pistols. Do you remember him asking you about that?
      A:    Yes.
      Q:    And you said yes?
      A:    Yes, I did.
      Q:    Was that the truth or a lie?
      A:    That was a lie.
      Q:    So what you're telling the Court is that you lied to the judge,
      Judge Walker, about the facts of your case when you were asked
      questions about it in open court?
      A:    Yes.

At this point, the district court questioned Stoudemire as to why he now believed he

was not guilty:

             THE COURT:        What possible evidence could you have
      received that you now say you didn’t do that?
             THE WITNESS: The affidavit where I told the officers that - -
      whose stuff it was. Because I never participated into the growth of it.
             The COURT:        So you’re saying it’s a technical distinction
      between you participating in the growth of marijuana and whether or not
      there was marijuana in the aquarium in your home?
             THE WITNESS: Yes, because I never seen the aquarium and the
      plants, Your Honor.
             THE COURT:        All right. I just wanted to make sure that I

                                         5
      understood what you were saying. . . . . But I want to make sure that
      you understand that if you’re saying, Judge Fuller, I now am saying I
      didn’t do anything or have any participation in growth of marijuana,
      although I knew it was being grown in my house, I want to know what
      discovery you’ve received that would change your mind about what you
      did to and didn’t do.
             THE WITNESS: I did not know it was being grown in my
      house. I gave a relative permission that weekend to move up there. I
      wasn’t at the house, and he hid it in the garage.
             THE COURT:         All right. You understand that giving false
      testimony under oath is a separate federal crime, the crime of perjury?
             THE WITNESS: Yes, Your Honor. I guess that's - - where he
      asked me, I lied to Judge Walker.

      Given these colloquies, we conclude that the government’s evidence was

sufficient for a reasonable jury to conclude that Stoudemire, while under oath,

knowingly made irreconcilably contradictory declarations about his involvement

in the marijuana growing operation and his possession of firearms in connection

with that marijuana growing operation. We reject Stoudemire’s contention that his

August 2010 testimony was too vague to be inconsistent with his April 2010

testimony or that the prosecutor was required to ask identical questions at both

hearings to prove the statements were irreconcilable.

      Stoudemire’s statements at the two hearings addressed the same components

of the underlying criminal charges–his participation in the marijuana growing

operation and his possession of firearms in connection with the marijuana growing

operation–and were in direct opposition to each other. In April 2010, Stoudemire

                                         6
said he had participated in the marijuana growing and had possessed firearms in

connection with that marijuana growing. In August 2010, he clearly and explicitly

disavowed any knowledge of the marijuana growing operation and said that he had

lied at the April 2010 hearing. Because the two statements take opposite positions

on the same subject matter, they are irreconcilably inconsistent. Stoudemire either

lied when he admitted the conduct, or he lied when he recanted and denied the

conduct. There is no way the two statements can both be true.

      Accordingly, the district court did not err in denying Stoudemire’s motion

for a judgment of acquittal.

      AFFIRMED.




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