                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAY 3 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                          Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 98-2038
 v.
                                                 (D.C. No. CR-97-286-JC)
                                                 (District of New Mexico)
 KENNETH CHEE,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Kenneth Chee, a Navajo Indian, presents six claims on appeal of his

conviction of numerous crimes of violence perpetrated on an Indian reservation in

New Mexico against Lynn Dawes, Chee’s common-law wife under tribal custom.

Exercising jurisdiction under 18 U.S.C. § 3742(a)(1) and (2), and 28 U.S.C. §

1291, we affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                           I

      The charges against Chee arose from three violent incidents that occurred

on separate occasions over a period of more than three years. Testimony at trial

showed an abusive relationship in which Chee’s violent rages against Dawes,

often fueled by his consumption of alcohol, resulted in ferocious beatings that

caused lasting injury. On one occasion, Chee forced Dawes to engage in sexual

acts with Chee and two of his cousins; other incidents included an assault

following Dawes’s refusal to have sex with Chee, and a beating in which Chee bit

Dawes’s lip, leaving a permanent scar on her mouth.

      Chee was charged with maiming, in violation of 18 U.S.C. § 114; assault

resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6); three

counts of aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a) as

defined by 18 U.S.C. § 2246(2)(A); and aiding and abetting, in violation of 18

U.S.C. § 2. The jury convicted Chee on all five counts, and Chee was sentenced

to 188 months imprisonment. Chee presents six issues on appeal, including

appeals of three trial court rulings on pre-trial and trial motions; a claim that his

trial counsel rendered constitutionally ineffective assistance; and two claims that

the trial court erred in enhancing his sentence based on the injuries and pain his

offenses caused.

                                          II


                                          -2-
      Chee appeals three trial court rulings on motions made during and

immediately before trial: the denial of his motion to sever the maiming and

assault counts from the sexual abuse counts; the denial of his motion for judgment

of acquittal based upon the insufficiency of the government’s evidence; and the

admission of prejudicial hearsay testimony. We address each in turn.

                                 A. Motion to Sever

      The trial court denied Chee’s pretrial motion, pursuant to Fed. R. Crim.

P. 14, to sever the maiming, assault, and sexual abuse counts. Rule 14 provides

that “if it appears that a defendant . . . is prejudiced by a joinder of offenses . . .,

the court may order . . . separate trials of counts.” Chee essentially argued to the

district court that because the evidence concerning the separate counts, when

viewed together by the jury in one trial, would constitute prohibited “evidence of

other crimes, wrongs, or acts” offered “to prove the character of a person in order

to show action in conformity therewith,” Fed. R. Evid. 404(b), the joinder of

these counts would create an improper inference of Chee’s propensity to commit

violence.

      We review a district court’s denial of a motion to sever for abuse of

discretion. See United States v. Wacker, 72 F.3d 1453, 1468 (10th Cir. 1995).

Where the district court has denied severance, an appellant bears the “heavy

burden of demonstrating prejudice to his case.” United States v. Rogers, 925 F.2d


                                           -3-
1285, 1287 (10th Cir. 1991) (citation and internal quotation omitted). A district

court is not required to sever counts simply because the cumulative effect of

evidence of similar misconduct might prejudice the defendant. See United States

v. Hollis, 971 F.2d 1441, 1457 (10th Cir. 1992); cf. United States v. Valentine,

706 F.2d 282, 290 (10th Cir. 1983) (“[T]he mere fact that a defendant may have a

better chance for acquittal by separate trials of charges is not sufficient to require

severance.”). Nor does Fed. R. Crim. P. 14 require the trial court to sever

separate counts simply because the government’s evidence is stronger on some

counts than on others. See United States v. Cox, 934 F.2d 1114, 1120 (10th Cir.

1991).

         Chee cannot meet the heavy burden of demonstrating prejudice. We have

found no prejudice from the joinder of counts where similar offenses “took place

on different dates at different locations, and different witnesses and evidence

were presented on each count.” United States v. Muniz, 1 F.3d 1019, 1023 (10th

Cir. 1993) (citing Drew v. United States, 331 F.2d 85, 92-93 (D.C. Cir. 1964)).

Moreover, Chee presents us with little more than conclusory statements that if the

trial court had severed the counts, he would have been protected from prejudicial

evidence introduced to prove the other alleged crimes in separate trials.

         Even if the trial court had severed the counts, the evidence Chee sought to

separate through severance would likely have been admissible in the individual


                                           -4-
trials. Fed. R. Evid. 404(b) allows “evidence of other crimes, wrongs, or acts” to

be admissible for proof of motive and intent, so long as it is offered for a proper

purpose, it meets the relevancy requirement of Fed. R. Evid. 402, the trial court

finds that its probative value is not substantially outweighed by its potential for

creating unfair prejudice, and the trial court, upon request, limits the jury’s

consideration of the evidence to the proper purpose for which it was admitted.

See United States v. Morgan, 936 F.2d 1561, 1572 (10th Cir. 1991) (citing

Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). In analogous factual

circumstances, we have held that evidence that a defendant had previously raped

his wife is admissible under Rule 404(b) in his murder trial as probative of the

defendant’s intent to kill his wife, and was neither irrelevant nor sufficiently

prejudicial to warrant exclusion. See United States v. Joe, 8 F.3d 1488, 1495-96

(10th Cir. 1993); cf. Hollis, 971 F.2d at 1457 (affirming district court’s denial of

motion to sever where evidence of similar conduct in separate episodes of bank

and insurance fraud would have been admissible under Fed. R. Evid. 404(b) as

showing intent or lack of mistake).

      The only effect of severance of which we can be certain is that it would

have wasted judicial resources, and we defer to the “obviously important

considerations of economy and expedition in judicial administration” that a trial

court takes into account in deciding to join and not to sever different counts


                                          -5-
against the same defendant. United States v. Dirden, 38 F.3d 1131, 1140 (10th

Cir. 1994) (citation and internal quotation omitted). We therefore affirm the

district court’s denial of Chee’s motion to sever.

                          B. Sufficiency of the Evidence

      Chee also appeals the trial court’s denial of his motion for judgment of

acquittal on the maiming and assault counts, which his counsel originally

presented after the close of the government’s case in chief, 1 and which the trial

court renewed sua sponte at the close of trial. Chee contends that the evidence

presented by the government on these counts was insufficient for a jury to find

him guilty beyond a reasonable doubt under the relevant criminal statutes.

      We review the denial of a motion for judgment of acquittal de novo, using

the same standard as the trial court. See United States v. Jaynes, 75 F.3d 1493,

1500 (10th Cir. 1996). We view all the evidence and draw all reasonable

inferences in the light most favorable to the prosecution. See United States v.

Fleming, 19 F.3d 1325, 1328 (10th Cir. 1994). We “then determine whether there

is substantial evidence from which a jury might properly find the accused guilty

beyond a reasonable doubt.” United States v. Valadez-Gallegos, 162 F.3d 1256,


      1
       Chee’s original motion for judgment of acquittal encompassed all of the
counts. The court denied the motion as to the sexual abuse charges, but took
under advisement the defendant’s motion to dismiss the maiming and assault
charges. The court’s denial of the motion for judgment of acquittal on the sexual
abuse charges is not appealed.

                                         -6-
1262 (10th Cir. 1998) (citation and internal quotation omitted). The evidence

supporting the conviction must be substantial and do more than raise a suspicion

of guilt. See United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir. 1997). It is

the jury’s role as fact finder, however, to resolve conflicting testimony, weigh the

evidence, and draw inferences from the facts presented. See United States v.

Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995).

       In his motion for judgment of acquittal on the maiming count, Chee argued

that the government failed to prove the intent requirement of 18 U.S.C. § 114.

The relevant language defining the elements of maiming in § 114 reads:

“[w]hoever . . . with intent to . . . maim, or disfigure, cuts, bites, or slits the nose,

ear, or lip . . . of another person.” As a preliminary matter, we agree with both

appellant and the government that § 114 defines a specific intent crime. See

United States v. Salamanca, 990 F. 2d 629, 635 (D.C. Cir. 1993) (assuming a

specific intent requirement in 18 U.S.C. § 114, as well as in § 113(a), which

similarly uses the words “with intent to” in prohibiting assault).

       Chee claims there was insufficient evidence to prove specific intent, and

that evidence that he was intoxicated at the time of the maiming negates any

intent the prosecution may have proved. First, we find there was sufficient

evidence, presented in testimony from both the victim and her sister, of Chee’s

biting and disfiguring Dawes for the jury to conclude that the government


                                            -7-
established all of the elements of 18 U.S.C. § 114. The evidence presented

indicates that Chee bit Dawes’s lip so hard that her pillow was bloodied and she

was permanently scarred.

       Intoxication, however, is a defense to a specific intent crime. See United

States v. Sands, 968 F.2d 1058, 1064-65 (10th Cir. 1992). The only evidence of

his intoxication that Chee identifies in the record is one witness’s description of

Chee as “like drunk” during the evening of the maiming incident, and the trial

judge’s statement in considering the defense’s motion for judgment of acquittal

that Chee was “drunk all the time.” Viewing all of the evidence in the light most

favorable to the government, we find that these statements are insufficient to

warrant our reversal of the trial court’s denial of Chee’s motion for judgment of

acquittal. 2


       2
         Chee’s trial counsel did not request or tender an instruction concerning
either the specific intent requirement of § 114 or Chee’s intoxication.        Chee has
therefore waived appeal of the trial court’s jury instructions,      see Fed. R. Crim. P.
30 (“No party may assign as error any portion of the [jury instructions] or
omission therefrom unless that party objects thereto before the jury retires to
consider its verdict.”), unless there is plain error resulting in a miscarriage of
justice, see United States v. Sides , 944 F.2d 1554, 1562 (10th Cir. 1991). In
addition, appellant did not raise in his opening brief the trial court’s failure to
instruct the jury that a finding of specific intent is required to convict under §
114 or that intoxication negates specific intent. These claims are therefore
waived on appeal. See State Farm Fire & Casualty Co. v. Mhoon , 31 F.3d 979,
984 n.7 (10th Cir. 1994). Nonetheless, we note that “instructing in terms of
‘specific intent’ has been disfavored by the courts because of the confusing and
ambiguous nature of such an instruction,”       United States v. Laughlin , 26 F.3d
                                                                            (continued...)

                                           -8-
      Chee challenges the trial court’s denial of his motion for judgment of

acquittal on the assault charge on the grounds that the government failed to

present evidence of an assault in 1993, and thereby failed to prove the allegation

in the indictment that Chee had assaulted Dawes “between or about March 1,

1993, and on or about May 31, 1993.” I R. Doc. 1 at 1. Such a discrepancy

between the indictment and the facts proven at trial, however, does not bar

conviction where time is not an element of the offense and the facts charged in

the indictment show that the offense falls within the relevant statute of

limitations. 3 See United States v. Young, 862 F.2d 815, 818-19 (10th Cir. 1988)

(citation omitted). The government presented evidence concerning Chee’s assault


      2
        (...continued)
1523, 1527 (10th Cir. 1994) (citing Liparota v. United States , 471 U.S. 419, 433
n.16 (1985)), and that the evidence of intoxication at trial was insufficient to
require the trial court to instruct the jury on the issue sua sponte,       see United
States v. Janusz , 135 F.3d 1319, 1322 (10th Cir. 1998) (holding that we reverse
trial court’s failure to give instruction on good faith defense sua sponte only
where its failure is plain error that affects substantial rights);     United States v.
Larsen , 525 F.2d 444, 447 (10th Cir. 1975) (affirming trial court’s failure to give
instruction on intoxication defense where evidence of drunkenness was
insufficient). We address the issue of whether defense counsel’s failure to
present evidence and request jury instructions on the intoxication issue represents
constitutionally ineffective assistance of counsel in Part III,       infra .
      3
        Appellant failed to argue that the assault charge may have been barred by
the five year statute of limitations. See 18 U.S.C. § 3282 (establishing statute of
limitations for non-capital offenses). “It is well settled that the statute of
limitations is an affirmative defense which is waived unless raised at trial.”
United States v. Gallup , 812 F.2d 1271, 1280 (10th Cir. 1987) (citing     Biddinger
v. Commissioner , 245 U.S. 128, 135 (1917)).

                                          -9-
of Dawes that is sufficient to enable a reasonable jury to convict Chee of assault

beyond a reasonable doubt. Both Dawes and her sister testified that Chee abused

Dawes throughout their relationship, and Dawes specifically testified that he

kicked and punched her in the mouth in 1992. Furthermore, Dr. Dean Yannias,

the physician who diagnosed Dawes with temporomandibular joint dysfunction

(“TMJ”) of the jaw,   testified that Dawes told him that the injury could be

attributed to her husband’s assault.

      Moreover, we have stated that “when an indictment uses the terminology

‘on or about,’ proof of a date reasonably near to the specified date is sufficient.”

United States v. Castillo, 140 F.3d 874, 885 (10th Cir. 1998); see also United

States v. Alviso, 152 F.3d 1195, 1197 (9th Cir. 1998) (noting that the government

must prove that the crime occurred on a date reasonably near the alleged date);

United States v. Cisneros, 112 F.3d 1272, 1282 (5th Cir. 1997) (same). The court

therefore correctly instructed the jury that the government need not have proven a

specific date so long as it proved “beyond a reasonable doubt that the defendant

committed the crime on a date reasonably near the date stated in the indictment.”

I R. Doc. 33 (Instruction 8B).

      More importantly, Chee has not demonstrated that he suffered prejudice of

any substantial rights from this variance. See United States v. Ailsworth, 138

F.3d 843, 848 (10th Cir.) (“The variance is reversible error only if it affects the


                                         -10-
substantial rights of the accused.”) (citation omitted), cert. denied, 119 S. Ct. 221

(1998); United States v. Harmon, 486 F.2d 363, 366 (10th Cir. 1973) (describing

the indictment’s “failure to apprise [defendant] as to the nature and character of

the offense” as “the most important consideration” in considering variance

between time of offense alleged in indictment and proven at trial). Here, Chee

only argues that the evidence was insufficient to warrant his conviction. For the

reasons stated above, we disagree and affirm.

                              C. Tanberg Testimony

      Chee claims that the trial court abused its discretion when it allowed a

government rebuttal witness, FBI Agent John Tanberg, to testify about his

unrecorded interview of Maurice Chee, one of the men with whom appellant

forced Dawes to have sex. Appellant asserts that this testimony constituted

inadmissible hearsay. The government counters that the hearsay in Tanberg’s

testimony concerned Maurice Chee’s prior inconsistent statements. We review

the trial court’s decision to admit evidence for abuse of discretion. See United

States v. Davis, 40 F.3d 1069, 1073 (10th Cir. 1994). This standard applies to

rebuttal testimony as well. See Marsee v. United States Tobacco Co., 866 F.2d

319, 324 (10th Cir. 1989).

      When the prosecution called Tanberg, Maurice Chee had already testified

for the defense that Kenneth Chee did not physically assault Dawes or take her


                                         -11-
clothes off on the night of October 2, 1995, and that rather than being forced to

have sex with multiple partners, Dawes enjoyed the experience. To rebut Maurice

Chee’s testimony, the prosecution called Tanberg, who had interviewed him on

October 4, 1995. Over objections from defense counsel, the trial court allowed

Tanberg to testify that during Tanberg’s interview of Maurice Chee, the latter

described the events of October 2 in terms that directly contradicted his

subsequent trial testimony concerning the degree of force appellant used against

Dawes and his suggestion that Dawes consented to the intercourse.

      Tanberg’s testimony was not introduced for the truth of the matter asserted,

but only to impeach Maurice Chee, who had been questioned about his interview

with Tanberg. See Fed. R. Evid. 613(b) (“evidence of a prior inconsistent

statement by a witness is not admissible unless the witness is afforded an

opportunity to explain or deny the same”); Anderson v. Charles, 447 U.S. 404,

408 (1980); United States v. Canterbury, 985 F.2d 483, 486 (10th Cir. 1993).

Nevertheless, appellant argues, Tanberg’s testimony should have been excluded

because it both reiterated Maurice Chee’s own testimony, and ranged beyond the

witness’s testimony to include substantive evidence of prior statements that was

not otherwise admissible. See United States v. Carter, 973 F.2d 1509, 1512 (10th

Cir. 1992) (prohibiting introduction of hearsay evidence under the guise of

impeachment when the prosecution actually seeks to introduce the evidence for its


                                        -12-
truth). Tanberg’s testimony, however, was limited to describing the

inconsistencies of Maurice Chee’s prior statements. The district court therefore

acted within its discretion in allowing it.

                                            III

       Chee claims that the ineffectiveness of his trial counsel “so undermined the

proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686

(1984). Our general rule is that “[i]neffective assistance of counsel claims should

be brought in collateral proceedings, not on direct appeal.”         United States v.

Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). “A factual record

must be developed in and addressed by the district court in the first instance for

effective review.”   Id. This rule is not absolute, however,       see id. at 1240-41, and

in the past we have considered on direct appeal claims that required no further

development to facilitate review,    see, e.g. , United States v. Carter , 130 F.3d

1432, 1442 (10th Cir. 1997) (reviewing ineffective assistance of counsel claims

on direct appeal where district court heard testimony from defendant and his

attorney on relevant issue during sentencing hearing),         cert. denied , 118 S. Ct.

1856 (1998); United States v. Carr , 80 F.3d 413, 416 n.3 (10th Cir. 1996) (same,

where district court held hearing and made specific finding concerning




                                           -13-
defendant’s allegation that counsel’s ineffective assistance led to defendant’s

guilty plea).

       After carefully reviewing the record, however, we find that it is prudent to

await collateral proceedings to consider appellant’s ineffective assistance of

counsel claim. It is possible that defense counsel, having filed a motion for

judgment of acquittal at the end of the government’s case, and having had the

court renew the motion at the end of trial, made a tactical decision not to request

a jury instruction on intoxication with respect to the maiming count. Counsel

may have worried that extensive evidence of his client’s intoxication would

prejudice his client on the sexual abuse counts, which do not require specific

intent, by presenting him as an individual who, lacking self-control, would be

incapable of recognizing that his sexual partner did not consent to having sex

with him and two additional partners. We think it best to allow “counsel accused

of deficient performance [to] explain their reasoning and actions” in a collateral

proceeding in the district court.   Galloway , 56 F.3d at 1240. Accordingly, we

dismiss this claim without prejudice.

                                           IV

       Chee appeals enhancements he received in his offense level computation

for the injuries and pain caused by his maiming, assault, and sexual abuse. We

review the trial court’s factual findings in computing Chee’s sentence for clear


                                          -14-
error, and the trial court’s interpretation and application of the sentencing

guidelines de novo.   See United States v. Pappert , 112 F.3d 1073, 1078 (10th Cir.

1997) (citing United States v. McAlpine , 32 F.3d 484, 487-88 (10th Cir. 1994)).

            A. Sentence Enhancement on Maiming and Assault Counts

      Pursuant to U.S.S.G. § 2A2.2(b)(3)(C), the trial court awarded Chee six-

level increases in the computation of his offense levels for both the assault and

maiming offenses because of the permanent bodily injuries that Chee inflicted

upon Dawes.     Chee argues that the evidence of Dawes’s injuries was insufficient

to support these increases, and that because the assault charge required the jury to

find that he had inflicted serious bodily injury, the trial court’s finding of

permanent injury in enhancing the sentence constituted impermissible double

counting.

      The government introduced evidence at trial that was sufficient to support

the enhancement of Chee’s offense level computation. According to the

Guidelines, permanent or life threatening bodily injury includes “loss or

substantial impairment of the function of a bodily member [or] organ . . . that is

likely to be permanent; or an obvious disfigurement that is likely to be

permanent.” U.S.S.G. § 1B1.1, comment. (n.1(h)). In addition to Dr. Yannias’s

testimony about the scars on Dawes’s lip and her TMJ condition, Dawes testified

about her facial injuries and scars. Although Dr. Yannias could not conclude


                                         -15-
with certainty that Dawes’s permanent bodily injuries were caused by the conduct

for which Chee was found guilty, it was not clear error under U.S.S.G.

§ 2A2.2(b)(3)(C) for the trial court to enhance Chee’s sentence given the

extensive trial testimony of the specific episodes of Chee’s physical abuse of

Dawes.

       In addition, the trial court correctly applied the Guidelines in increasing

the calculation of Chee’s offense level by six points. The guideline under which

the court calculated Chee’s sentence addresses crimes committed under 18 U.S.C.

§§ 114 and 113(a)(6), the statutory provisions under which Chee was convicted.

Furthermore, the commentary specifically states that “‘[a]ggravated assault’

means a felonious assault that involved . . . serious bodily injury.” U.S.S.G.

§ 2A2.2, comment. (n.1). “[T]he plain language of the guidelines indicates

Congress intended for double counting to occur under § 2A2.2. . . . Where the

plain language of the guidelines requires the court to use a factor more than once

in computing a defendant’s sentence, the court is obligated to apply the

guidelines as written.”   United States v. Duran , 127 F.3d 911, 918 (10th Cir.

1997) (citing United States v. Florentino , 922 F.2d 1443, 1446-47 (10th Cir.

1990)), cert. denied , 118 S. Ct. 1389 (1998). We conclude that the trial court’s

enhancement of Chee’s sentence under U.S.S.G. § 2A2.2(b)(3)(C) was

permissible.


                                         -16-
                 B. Sentence Enhancement on Sexual Abuse Counts

      The court increased the offense level calculation for Chee’s sentence on

the sexual abuse conviction by two points pursuant to U.S.S.G. § 2A3.1(b)(4)(B)

for the “serious bodily injury” resulting from the rape. Under the Guidelines,

“[s]erious bodily injury means injury involving extreme physical pain.” U.S.S.G.

§ 1B1.1, comment. (n.1(j)). Chee argues that the evidence of the pain that Dawes

suffered was insufficient to support that enhancement. We disagree. The doctor

and nurse who examined Dawes in the emergency room at Gallup Indian Health

Services after the rape testified that they found bruises and abrasions all over

Dawes’s body, and the government introduced photographs showing the wounds

into evidence.    Therefore, the court did not commit clear error in enhancing

Chee’s sentence.

      AFFIRMED.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




                                         -17-
