                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JAN 23 2003
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 02-7024
          v.                                           (E.D. Oklahoma)
 LOU JEAN WYCHE,                                    (D.C. No. 00-CR-77-S)

               Defendant - Appellant.


                             ORDER AND JUDGMENT          *




Before O’BRIEN , McWILLIAMS , and ANDERSON , Circuit Judges.




      After a jury trial, Appellant Lou Jean Wyche was acquitted of conspiracy to

posses with intent to distribute methamphetamine in violation of 21 U.S.C. § 846,

and interstate transportation in aid of racketeering in violation of 18 U.S.C.

§§ 1952(a)(1) and (2), but was convicted of three counts of perjury in violation of

18 U.S.C. § 1623. The district court denied Wyche’s subsequent motion for a




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
judgment of acquittal and, applying USSG § 2J1.3(c)(1), sentenced her to a total

of 78 months’ imprisonment.

      Wyche appeals both her conviction and sentence, arguing: (1) there was

insufficient evidence to support the jury’s finding that she was under oath—an

element of the crime of perjury—when she made the false declarations upon

which the perjury charge was based; (2) the district court erred in applying USSG

§ 2J1.3(c)(1) and sentencing her as an accessory after the fact to possession of

192.4 grams of methamphetamine because there was no credible evidence linking

her to the drug conspiracy; and (3) the district court erred when it did not admit

the entirety of her testimony from her first trial. Exercising jurisdiction pursuant

to 28 U.S.C. § 1291, we affirm.



                                  BACKGROUND

      On October 3, 2000, officers from the Drug Enforcement Administration

(D.E.A.) and local law enforcement officers from Muskogee County, Oklahoma,

established a drug interdiction point off of I-40. In the course of the interdiction,

the officers arrested Mack Flynn and Connie Ketcher for possession of three

pounds of a substance containing methamphetamine. Flynn and Ketcher were

driving from Morgan Hill, California, where they had obtained the




                                         -2-
methamphetamine, to Sallisaw, Oklahoma, where, according to Ketcher, they

were to deliver the drugs to a co-conspirator.

      Subsequent to her arrest, Ketcher began cooperating with the government

and named Lou Jean Wyche as a co-conspirator, alleging, among other things, that

Wyche planned the trip to California. According to Ketcher, Wyche met them in

California and procured, packaged and assisted in hiding the methamphetamine

that she and Flynn were carrying when they were arrested.

      Wyche was indicted on one count of conspiracy to possess with intent to

distribute methamphetamine and one count of interstate transportation in aid of

racketeering. At her first trial, in February of 2001, she testified that she traveled

to California to visit with two friends, Melony Bryans and Fern Artz, and that she

stayed at the Micro-Tel Motel during her entire trip, including the night of

October 1, 2000. Although she admitted seeing Flynn and Ketcher in California,

she testified that she had no knowledge of their plan to transport drugs back to

Oklahoma. She also testified that she picked that weekend to visit California

because her husband, Larry Wyche, was in Casper, Wyoming, for a rodeo. The

jury in this first trial was unable to reach a unanimous verdict and a mistrial was

declared.

      A second trial was scheduled for March. However, shortly after the jury

was impaneled, a local paper ran an article on the Wyche trial, which a number of


                                          -3-
jurors, contrary to the court’s instructions, read. Another mistrial was declared

and a third trial was scheduled for April. At the close of the third trial the jury

was again deadlocked, and the court declared a third mistrial.

      After the third trial, the grand jury issued a superceding indictment

charging Wyche with three counts of perjury in addition to the two original

counts. The government alleged that Wyche committed perjury when she testified

that: (1) the purpose of her trip to California was to see Bryans and Artz and that

she did in fact see them; (2) she stayed at the Micro-Tel Motel on the night of

October 1, 2000; and (3) her husband was in Casper, Wyoming, for a rodeo

causing him to be away from home from September 26 to October 3, 2000. The

district court scheduled a fourth trial to begin in June.

      During the fourth trial the government introduced evidence that Wyche had

neither visited, nor made plans to visit, Bryans and Artz while in California.

Further, the government introduced evidence that Wyche did not stay at the

Micro-Tel Motel on the night of October 1, 2000—she checked into the Executive

Inn at the San Jose Airport that night. Finally, the prosecution introduced

evidence that Larry Wyche did not travel to a rodeo in Casper because the rodeo

had been cancelled.

      Wyche did not testify in the fourth trial. The government, however,

introduced excerpts of her testimony from the first trial. She objected to the


                                          -4-
admission of the transcript of her testimony. When her objection was overruled,

she insisted that the court admit the entire transcript rather than just the excerpts

introduced by the government. The court informed Wyche that the rule of

completeness allowed her to have the entire transcript of her testimony admitted if

she offered it properly. There is no record of Wyche ever making such an offer.

      At the close of the fourth trial, the jury found Wyche not guilty of the

conspiracy and racketeering counts but guilty of all three counts of perjury. In

response, Wyche filed a motion for a judgment of acquittal. She claimed that the

government failed to introduce evidence of two of the essential elements of the

crime of perjury—that she was under oath when she made the declarations and

that the declarations were made in a court of the United States. The district court

denied her motion because it found that there was sufficient evidence to support

the jury’s verdict.

      Finally, Wyche objected to the presentence report. She argued that the

government failed to provide credible evidence that she was involved in the drug

conspiracy. Therefore, she argued that the court should apply USSG § 2J1.3(a)

and sentence her under the guideline for perjury rather than applying USSG

§§ 2J1.3(c)(1) and 2X3.1, sentencing her as an accessory after the fact to

possession of methamphetamine, as the presentence report recommended. After

considering Wyche’s argument, the court found by the preponderance of the


                                          -5-
evidence that, notwithstanding her acquittal on counts one and two, Wyche was

involved in the drug conspiracy and that the underlying offense involved 194.2

grams of methamphetamine. Therefore the court overruled Wyche’s objection,

applied USSG §§ 2J1.3(c)(1) and 2X3.1, and sentenced her to a total of 78

months’ imprisonment.



                                   DISCUSSION

      I.     Sufficiency of the Evidence

      The essential elements of the crime of perjury are: “(1) the defendant made

a declaration under oath before a federal court; (2) such declaration was false; (3)

the defendant knew the declaration was false; and (4) the declaration was

material.” United States v. Durham , 139 F.3d 1325, 1331 (10th Cir. 1998) (citing

18 U.S.C. § 1623(a)). Wyche argues that there was insufficient evidence to

support the jury’s conclusion as to the first element of perjury: that she was

under oath when she made the perjurious declarations.   1




      1
        Although Wyche did not argue in her appellate briefs that there was
insufficient evidence to support the conclusion that the statements were made in a
court of the United States, she did raise the issue during oral argument. However,
failure to raise an issue in the opening appellate brief waives that issue. See State
Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).
Arguments raised for the first time at oral argument come “too late”. Thomas v.
Denny’s, Inc., 111 F.3d 1506, 1510 n.5 (10th Cir. 1997); see also, United States
v. Osterlund, 671 F.2d 1267, 1267 n.2 (10th Cir. 1982) (“Because this issue was
                                                                        (continued...)

                                          -6-
      Sufficiency of the evidence is a legal issue that we review de novo.    United

States v. McKissick , 204 F.3d 1282, 1289 (10th Cir. 2000). Those challenging

the sufficiency of the evidence are,

      faced with a high hurdle: in reviewing the sufficiency of the
      evidence to support a jury verdict, this court must review the record
      de novo and ask only whether, taking the evidence – both direct and
      circumstantial, together with the reasonable inferences to be drawn
      therefrom – in the light most favorable to the government, a
      reasonable jury could find the defendant guilty beyond a reasonable
      doubt.

United States v. Voss , 82 F.3d 1521, 1524-25 (10th Cir. 1996) (quotations

omitted). “Rather than examining the evidence in bits and pieces, we evaluate the

sufficiency of the evidence by considering the collective inferences to be drawn

from the evidence as a whole.”    United State v. Wilson , 107 F.3d 774, 778 (10th

Cir. 1997) (quotations omitted). “We reverse only if no rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Wacker , 72 F.3d 1453, 1462-63 (10th Cir. 1995).

      Wyche’s argument is in two parts. First, there was no direct evidence that

she was under oath when she testified at the first trial. Second, she argues that

the “under oath” element cannot be proved using circumstantial evidence.




      1
        (...continued)
raised for the first time during oral argument, we need not reach this issue on
appeal.”).

                                           -7-
             A.     Direct Evidence

      Wyche’s first argument, that “   no one testified that Wyche’s previous

testimony was given under oath,” and thus there was no direct evidence that she

was under oath when she testified at her first trial, Appellant’s Br. at 12, is not

supported by the record. Special Agent Springer of the D.E.A. testified on cross

examination by the defense as follows:

      Q:     How do you know who made the phone call?
      A:     Because my information is, from the previous trial, is that [Ms.
             Wyche] said that she and only she had access to her credit
             card, which made the phone call that was charged.
             ....
      Q:     So my question is, while you think that it was [Ms. Wyche],
             you don’t know who made the call or who received it?
      A:     And my answer, as before, is I could not tell you who received
             the phone call from in front of that store, but according to [Ms.
             Wyche’s] testimony under oath was that she and only she had
             that card.

Tr. of Trial, June 5, 2001, Appellee’s App. at 7-8 (emphasis added). Springer

later identified the “previous trial” as Wyche’s first trial, which was held in

February of 2000.   Id. at 14. It is evident from the record that the other

references to testimony by Wyche, detailed below, were to that trial as well.



             B.     Circumstantial Evidence

      In addition to this direct evidence, there was circumstantial evidence that

the statements in question were made under oath. Although Wyche contends,


                                          -8-
without supporting authority, that the “under oath” requirement cannot be

established by circumstantial evidence, we disagree.

       First, as Wyche concedes, the other elements of the crime of perjury may be

proved using circumstantial evidence.        See Appellant’s Br. at 14.

       Second, as indicated by our standard of review, the elements of a crime

ordinarily can be proved by direct or circumstantial evidence.         See Voss , 82 F.3d

at 1524-25. Case law on the issue establishes that “perjury cases, like all criminal

cases, are susceptible to proof by circumstantial evidence.”        United States v.

Chapin , 515 F.2d 1274, 1280 (D.C. Cir. 1975);        see also United States v. Serafini ,

233 F.3d 758, 770 (3d Cir. 2000) (holding that intent and knowledge can be

proved by circumstantial evidence).

       Third, the perjury statute itself supports that rule.     See 18 U.S.C. § 1623(e).

It specifically provides that there is no requirement that “proof be made by . . .

documentary or other type of evidence.”        Id. Wyche’s conclusory dismissal of the

language of this section as a “red herring,” Appellant’s Br. at 15, does nothing to

explain why the government’s interpretation of it—that it explicitly authorizes

proof of all elements of perjury by either direct or circumstantial evidence—is

incorrect.

       For these reasons, Wyche’s other, and similar, arguments—that there is no

case explicitly holding that the “under oath” requirement of perjury        can be proved


                                              -9-
using circumstantial evidence, that proof by direct evidence is better, and that

there was no obstacle to proving that she was under oath with direct evidence—

are equally unpersuasive.

       The government contends that the following circumstantial evidence

supports the jury’s finding on the under oath requirement of the statute: Officer

Kidwell testified he was present at the trial of Lou Jean Wyche and that he heard

her “testimony,” see Appellant’s App. Vol. 2 at 361, 368; he read from a

“transcript” of Wyche’s testimony,     see id. at 369; the jury saw 27 witnesses at

trial, all of whom were sworn in prior to testifying, from which they could infer

that a witness who gives testimony in court is under oath,      see Appellee’s Br. at

16; and, in the context of the trial, it was evident that the transcript and Wyche’s

testimony at issue were from Wyche’s first trial in federal district court.

       It is the government’s position that use of the word “testimony” implies

that the speaker was under oath. The government cites a number of cases in

support of this position.   See e.g. Edelstein v. United States , 149 F. 636, 640 (8th

Cir. 1906) (finding that “[t]he word ‘testimony’ or to ‘testify’ implies the usual

preliminary qualification of taking an oath to speak the truth”);    see also United

States v. Molinares , 700 F.2d 647, 651 n. 6 (11th Cir. 1983) (concluding that

“[t]he fact that the proceedings take place before a court or a grand jury gives rise

to an inference that the defendant was under oath while testifying”).


                                            -10-
       Wyche counters that inferring she was under oath from the use of the word

“testimony” would “eliminate the need for the ‘under oath’ element” since,

according to the government, “if the person testified, they     must have been under

oath.” Appellant’s Reply Br. at 3. While Wyche’s description of the logical

extension of the government’s position does not lack merit, her conclusion is

flawed. It is not an element of perjury, as defined by §1623, that a person   testify

under oath. Rather the requirement is that the person make a declaration under

oath. The government’s position would eliminate the “under oath” requirement

only if the word “testify” were first read into the statute. Because we decline to

read the statute in this manner, we find Wyche’s argument unpersuasive.

       Wyche next argues that it is unreasonable to infer that she was under oath

because witnesses are not always sworn before they testify. In support of her

argument she cites numerous cases, mostly unpublished, in which witnesses gave

“testimony” that was not under oath. All of the cases she cites are factually

distinguishable from the present case.

       However, even were Wyche able to point to cases in which a witness was

not placed under oath, this would not undermine the government’s position in the

context of this case. The government’s position is that it is reasonable to

conclude that a person who gives “testimony” is under oath. An inference is

“reasonable where there exists a probability that the conclusion flows from the


                                            -11-
proven facts.”   United States v. Rahseparian , 231 F.3d 1257, 1262 (10th Cir.

2000) (quotation omitted). An inference is only unreasonable where the jury

“engaged in a degree of speculation and conjecture that renders its findings a

guess or mere possibility.”    Id. Merely pointing to rare cases in which witnesses

were not sworn in will not convert a “probability” into a “guess or mere

possibility.” Id. In any event, as indicated above, the record in this case contains

more than just the use of the word “testimony,” and the references to testimony

must be interpreted in context.

       We conclude that the entirety of the evidence in the record, both direct and

circumstantial, together with proper inferences drawn from it, when viewed in the

light most favorable to the government, was sufficient for a reasonable jury to

find beyond a reasonable doubt that Wyche was under oath when she made the

false declarations at her first trial.



       II.    Sentence

       Section 2Jl.3 of the Sentencing Guidelines provides that if the defendant is

convicted of perjury with respect to a criminal offense, the sentencing court

should “apply §2X3.1 (Accessory After the Fact) in respect to that criminal

offense, if the resulting offense level is greater than [the base offense level for

perjury: 12].” USSG § 2J1.3(c)(1). At sentencing, the district court found that a


                                          -12-
preponderance of the evidence linked Wyche to the drug conspiracy. Therefore,

the court found Wyche’s perjury was related to a conspiracy to traffic drugs, and

sentenced her as an accessory after the fact to that crime, resulting in an offense

level of 26. Wyche’s criminal history placed her in category I. Her offense level

and criminal history resulted in a guideline imprisonment range of 63 to 78

months, and she was sentenced to 78 months’ imprisonment.

       Wyche objects to this application of the Sentencing Guidelines because, she

argues, there was insufficient evidence to establish that she was involved in the

drug conspiracy. The thrust of Wyche’s argument is that Ketcher’s testimony,

which Wyche asserts is the only evidence linking her to the drug conspiracy, was

not credible. Without Ketcher’s testimony, Wyche argues, there was not enough

evidence for the district court to find, by a preponderance of the evidence, that

she had any knowledge of the drugs. Therefore, her offense did not involve

perjury in respect to any other criminal offense and the district court should have

applied USSG § 2J1.3(a), the basic perjury sentencing guideline, resulting in a

much shorter sentence.

       “We review the district court’s application of the Sentencing Guidelines de

novo and the district court’s factual determinations for clear error, giving due

deference to the district court’s application of the guidelines to the facts.”         United

States v. Vallo , 238 F.3d 1242, 1250 (10th Cir.) (quotation omitted),           cert denied ,


                                             -13-
532 U.S. 1057 (2001). “A district court's factual finding is clearly erroneous only

if it is without factual support in the record or if this court, after reviewing all the

evidence, is left with a definite and firm conviction that a mistake has been

made.” United States v. Patron-Montano        , 223 F.3d 1184, 1188 (10th Cir. 2000)

(quotation omitted). “[A] jury’s verdict of acquittal does not prevent the

sentencing court from considering conduct underlying the acquitted charge, so

long as that conduct has been proved by a preponderance of the evidence.”

United States v. Watts , 519 U.S. 148, 157 (1997).

       Wyche directs our attention to the district court’s statement that much of

Ketcher’s testimony was questionable.        See Appellant’s App. Vol. 2 at 455. She

then relies on United States v. Renteria , 161 F. Supp. 2d 1294, 1300 (D. N.M.

2001), in which the district court also found that the witness whose testimony

linked the defendant to a drug conspiracy lacked credibility. As a result of that

finding, the court in Renteria applied the lesser offense level in USSG § 2J1.3(a).

See id. at 1300-01. Wyche unsuccessfully argued in the district court, and

reasserts here, that the facts in   Renteria are sufficiently similar to the facts in this

case to compel a similar disposition.

       That argument, however, ignores the facts that corroborate Ketcher’s

testimony, facts that were not present in     Renteria . While there were

inconsistencies in Ketcher’s testimony,      see Appellant’s Br. at 19-23, the record is


                                             -14-
replete with evidence corroborating her assertion that Wyche was involved in the

conspiracy to transport the methamphetamine: she flew to California on

September 29 and returned on October 2,       see Tr. of Trial, Appellee’s App. at 25-

27, 122-26; her credit card was used to reserve both rooms at the Micro-Tel Motel

in Morgan Hill—the one she used and the one Flynn and Ketcher used,              see id. at

31-35; her cell phone was found in the car Flynn and Ketcher were driving in

when they were arrested,    see id. at 2; the police found an atlas with her

handwritten notes and directions to the Mirco-Tel Motel in Morgan Hill when

they searched Flynn and Ketcher’s home,       see id. at 74-76; and, there were records

of numerous phone calls suggesting that Flynn and Ketcher were in frequent

contact with Wyche during the entire trip to and from California,          see id. at 43-49.

       Further complicating Wyche’s argument, the district court, unlike the

Renteria court, found that a preponderance of the evidence linked Wyche to the

methamphetamine.      See Tr. of Sentencing Proceedings, Appellant’s App. Vol. 2 at

455-56. This conclusion had substantial “factual support in the record”; therefore

we conclude that the district court’s finding was not clearly erroneous.         Patron-

Montano , 223 F.3d at 1188.




                                            -15-
       III.   Exclusion of the Transcript

       Finally, Wyche argues that the district court erred when it failed to admit

the entire transcript of her testimony in the first trial. The record does not

support her argument. The district court indicated that it would admit the entire

transcript if it were offered by the defense.          See Appellant’s App. Vol. 2 at 365-

66. Appellant did not point to any place in the record where the entire transcript

was offered by defense but was not admitted by the court. We found no evidence

that the defense ever properly offered the entire transcript of Wyche’s testimony.

       “We review the district court’s evidentiary rulings for abuse of discretion.”

United States v. Bautista , 145 F.3d 1140, 1151 (10th Cir. 1998). This was no

abuse of discretion on the part of the court.



                                      CONCLUSION

       For the foregoing reasons, the decision of the district court is AFFIRMED.

                                                       ENTERED FOR THE COURT


                                                       Stephen H. Anderson
                                                       Circuit Judge




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