                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3573
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Martin Jorge Esparza,                   *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: April 17, 2002

                                 Filed: May 31, 2002
                                  ___________

Before BOWMAN, RILEY, and MELLOY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

      After a jury trial, Martin Jorge Esparza (Esparza) was convicted of possessing
cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1), and was
sentenced to 292 months in prison and five years of supervised release. On appeal,
Esparza argues that the district court1 should have allowed him to testify about a
statement he made to a law enforcement officer at the time of his arrest and should
not have applied a two-level enhancement for obstruction of justice. We affirm.

      1
        The Honorable Jean C. Hamilton, Chief Judge, United States District Court
for the Eastern District of Missouri.
I.     BACKGROUND
       Esparza was arrested at a weigh station on Interstate 44 in St. Clair, Missouri,
when, pursuant to a lawful search, an officer of the Missouri State Highway Patrol
found cocaine in a semi trailer he was towing from El Paso, Texas. When the officer
discovered several boxes of drugs, Esparza exclaimed that he "didn't know that was
in there." The officer placed Esparza under arrest and advised him of his Miranda
rights. Two other officers then questioned Esparza for several hours. During the
questioning, Esparza did not directly admit guilt. Instead of speaking about himself
directly, he proposed several "scenarios," including one in which "someone" would
be paid $125,000 to carry a shipment of cocaine. He also said that once a person
starts working for a drug organization, it is extremely dangerous for him to leave it
behind.

       At trial, Esparza testified that he did not know there was cocaine in his trailer
and he had not proposed the "scenarios" during the police interrogation. The district
court refused to allow Esparza to tell the jury about his initial statement to the
arresting officer that he "didn't know" the cocaine was in his trailer, either on direct
or re-direct examination. After Esparza was convicted, the presentence investigation
report (PSR) recommended a two-level enhancement for obstruction of justice based
upon false testimony during the trial. See U.S.S.G. § 3C1.1. The district court
overruled Esparza's objections to the PSR and applied the enhancement. On appeal,
Esparza challenges the district court's refusal to admit his hearsay statement into
evidence and the two-level enhancement for obstruction of justice.

II.    DISCUSSION
       We review a district court's evidentiary rulings for abuse of discretion. United
States v. Becht, 267 F.3d 767, 770 (8th Cir. 2001). The factual findings underlying
an enhancement for obstruction of justice are reviewed for clear error; application of
the sentencing guidelines to those facts is subject to de novo review. United States
v. O'Dell, 204 F.3d 829, 836 (8th Cir. 2000).

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       A.     Esparza's Out-of-Court Statement
       The statement Esparza made at the time of his arrest – that he did not know the
drugs were in his trailer – meets the general definition of hearsay; it is an out-of-court
statement offered to prove the truth of the matter asserted. See Fed. R. Evid. 801(c).
Esparza argues that the statement is not hearsay, because it was offered as a prior
consistent statement. See Fed. R. Evid. 801(d)(1)(B). Under Rule 801(d)(1)(B), a
prior consistent statement is not hearsay if it is "offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive."
For this qualification to apply, the defendant's motive to fabricate must have come
about after the statement was made. See United States v. Roach, 164 F.3d 403, 411
(8th Cir. 1998) (citing Tome v. United States, 513 U.S. 150, 158-60 (1995) and
finding Rule 801(d)(1)(B) "embodies the common-law premotive requirement").
Esparza had the same motive to lie at the time of his statement to the officer as he did
at the trial, and so his statement was not admissible to rebut a charge of recent
fabrication.

       Esparza's statement was not admissible as an excited utterance, either. Under
Rule 803(2) of the Federal Rules of Evidence, a hearsay statement may be introduced
into evidence if it relates to "a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition." Police
discovery of contraband is not ordinarily the kind of "startling event" to which this
exception applies. United States v. Sewell, 90 F.3d 326, 327 (8th Cir. 1996). As we
explained in Sewell, when "incriminating evidence is discovered in one's possession,
it requires only the briefest reflection to conclude that a denial and plea of ignorance
is the best strategy." Id. With this consideration in mind, we hold that the district
court did not abuse its discretion in refusing to admit Esparza's hearsay statement as
an excited utterance.




                                           -3-
       B.      Enhancement for Obstruction of Justice
       "A defendant is subject to an obstruction enhancement under U.S.S.G. § 3C1.1
if he testifies falsely under oath in regard to a material matter and does so willfully
rather than out of confusion or mistake." United States v. Chadwick, 44 F.3d 713,
715 (8th Cir. 1995) (citing United States v. Dunnigan, 507 U.S. 87, 94 (1993)). If a
defendant objects to an obstruction enhancement based on perjury, the district court
"must review the evidence and make independent findings" that the defendant
willfully gave false testimony concerning a material matter in the case. Dunnigan,
507 U.S. at 95.

      In this case, the district court neglected to make such findings. Instead, it
simply overruled Esparza's objection to the PSR's recommendation of an
enhancement for "providing false testimony." Esparza argues that the case should be
remanded so the district court can make independent findings on the elements of
perjury.

       A district court's failure to make the findings required by Dunnigan is not
always grounds for reversal and remand. For example, we have affirmed obstruction
enhancements when the evidence of willfulness was unequivocal, without an express
finding of willfulness by the district court. See United States v. Simms, 285 F.3d
1098, 1101 (8th Cir. 2002); United States v. Robinson, 217 F.3d 560, 565-66 (8th Cir.
2000). In these cases, the district court made a general finding of perjury without
making a specific finding of willfulness. Simms, 285 F.3d at 1101 (district court
found the defendant "had committed perjury on 'some pretty critical issues'");
Robinson, 217 F.3d at 565 (district court found the defendant's testimony "was not
truthful regarding material facts"). Although there was no explicit finding as to
willfulness, we affirmed because the record left no doubt that the defendant's false
testimony at trial was not the result of confusion, mistake, or faulty memory. See
Simms, 285 F.3d at 1101; Robinson, 217 F.3d at 565-66.



                                         -4-
        In this case we are confronted with somewhat different circumstances. In
contrast to Simms and Robinson, in which the district court made a general finding
of perjury, the district court in this case did not make any such finding. However, the
principle that animated these prior cases applies equally to Esparza's case. Esparza
testified that he did not know the drugs were in his trailer. This testimony was
obviously material and plainly inconsistent with the jury's verdict. Moreover, after
reviewing the trial transcript, we have no doubt that Esparza's decision to provide
false testimony was willful.2 Even if we remanded the case for a new sentencing
determination, the district court would have no choice but to apply an enhancement
for obstruction of justice. Under these exceptional circumstances, a remand would
be a waste of time and effort.3 We therefore affirm the district court's enhancement
for obstruction of justice without an explicit finding of perjury by the district court.

III.  CONCLUSION
      The district court acted within its discretion in excluding Esparza's hearsay
statement to the arresting officer and did not clearly err in enhancing his sentence for
obstruction of justice. The judgment of the district court is affirmed.




       2
       Our belief as to Esparza's testimony about his knowledge of the presence of
drugs in his trailer does not apply to Esparza's testimony about what happened during
his subsequent interview with law enforcement officers. We express no opinion as
to whether Esparza's asserted recollection of what was said during the lengthy
interrogation might have been the result of confusion, mistake, or faulty memory.
       3
       Our decision not to remand this exceptional case does not excuse district
courts from their obligation to make independent findings on the separate elements
of perjury in future cases that may call for an enhancement under U.S.S.G. § 3C1.1.
See Dunnigan, 507 U.S. at 94-95.

                                          -5-
A true copy.

      Attest:

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




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