                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 01-2748
           ___________

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Crystal Blanton,                       *
                                       *
              Appellant.               *
           ___________
                                           Appeals from the United States
           No. 01-2878                     District Court for the
           ___________                     District of Nebraska.

United States of America,              *
                                       *
              Appellant,               *
                                       *
      v.                               *
                                       *
Crystal D. Blanton,                    *
                                       *
              Appellee.                *
                                  ___________

                             Submitted: December 10, 2001

                                 Filed: February 27, 2002
                                  ___________
Before WOLLMAN,1 Chief Judge, HANSEN, Circuit Judge, and FENNER,2 District
      Judge.
                              ___________

WOLLMAN, Chief Judge.

      Crystal Blanton appeals the denial of her motion for judgment of acquittal after
her conviction for perjury pursuant to 18 U.S.C. § 1623(a). The United States cross
appeals the district court’s application of the United States Sentencing Guidelines.
We affirm the conviction, vacate the sentence, and remand to the district court for
resentencing.

                                          I.

       In early 2000 a string of bank robberies was perpetrated in eastern Nebraska.3
Two of those robberies are of interest to this appeal. The First National Bank in
Omaha was robbed on February 16, 2000 (the Omaha robbery). A witness reported
that the robbers switched from the SUV used to flee the scene to a white Monte Carlo.
On March 14, 2000, the Westgate Bank in Lincoln was robbed (the Lincoln robbery).
James Allee and Justin Allee (the Allees) were arrested for the Lincoln robbery. A
grand jury was convened to investigate the robberies and to determine whether the
Allees were involved.



      1
       The Honorable Roger L. Wollman stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on January 31,
2002. He has been succeeded by the Honorable David R. Hansen.
      2
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, sitting by designation.
      3
       For a companion case arising from this series of robberies see United States
v. Jimenez, No. 01-2290 (8th Cir. 2002).

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       On April 18, 2000, Blanton was called to testify before the grand jury
concerning a white Monte Carlo that witnesses saw in her garage around the time of
the Omaha robbery. Both before and during her testimony, the Assistant United
States Attorney (AUSA) informed Blanton that the grand jury was investigating a
series of bank robberies and that it was particularly interested in money, weapons, and
vehicles, particularly a white Monte Carlo. Blanton denied that any white car was
ever stored in her garage. As a result of her testimony before the grand jury, Blanton
was indicted for perjury on May 17, 2000, and was convicted on January 9, 2001.

       The district court denied Blanton’s motion for judgment of acquittal at the
close of the government’s case in chief, as well as that made after the jury returned
its guilty verdict. At sentencing, the court found that Blanton’s false statement was
not “in respect to a criminal offense” within the meaning of U.S.S.G. § 2J1.3(c)(1)
and thus refused to apply the sentencing formula set forth in U.S.S.G. § 2X3.1,
resulting in a base offense level of 12 and a sentencing range of 10 to 16 months. The
district court sentenced Blanton to ten months’ imprisonment.

                                          II.

       Blanton argues that the district court erred in denying her motion for judgment
of acquittal based on insufficiency of the evidence. We review a denial of a motion
for judgment of acquittal using the same standard as the district court. United States
v. Bredell, 884 F.2d 1081, 1082 (8th Cir. 1989). “A motion for judgment of acquittal
should be granted only where the evidence, viewed in the light most favorable to the
government, is such that a reasonably minded jury must have a reasonable doubt as
to the existence of any of the essential elements of the crime charged.” Id. (internal
quotes and citations omitted).

       To establish a violation of 18 U.S.C. § 1623(a), the government must prove that
1) the witness was under oath; 2) the testimony was given in a proceeding before a

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grand jury; 3) the statement was false; 4) the witness knew the statement was false at
the time it was made; and 5) the statement was material. Cf. United States v.
Roenigk, 810 F.2d 809, 813 (8th Cir. 1987) (listing elements of violation where false
statement was made at trial). Blanton contends that the evidence presented by the
government was insufficient to prove knowledge and materiality beyond a reasonable
doubt. We disagree.

       The evidence concerning Blanton’s knowledge is circumstantial, and its
probative force is dependent upon the jury’s evaluation of the credibility of the
witnesses. “A conviction may be based on circumstantial evidence as well as direct
evidence.” Id. “[D]ecisions regarding the credibility of witnesses are to be resolved
in favor of the jury’s verdict.” United States v. Nelson, 970 F.2d 439, 443 (8th Cir.
1992). The government presented the testimony of two witnesses that a white car,
possibly a Monte Carlo, had been in Blanton’s garage. The government also
presented evidence that the garage could only be accessed by using a key, that
Blanton held the only key to her garage, and that in the past anyone who wanted to
enter the garage had to ask Blanton for the key. Blanton presented evidence that she
did not know about a car because she was spending little time at her apartment, that
she had lost the garage key, and that the garage was accessible even without a key.
Because the jury was entitled to believe the government’s witnesses and reject
Blanton’s explanations, Blanton’s challenge to the sufficiency of the evidence fails.

       Blanton next argues that the statement was not material. “The test of
materiality is ‘whether or not the statements alleged to be perjurious tend to impede
or hamper the course of the investigation by the grand jury.’” United States v.
Ostertag, 671 F.2d 262, 264 (8th Cir. 1982) (quoting United States v. Phillips, 540
F.2d 319, 328 (8th Cir. 1976)). “The statements need not be material to any particular
issue, but may be material to any proper matter of inquiry.” Id. Because the grand
jury was investigating a bank robbery in which a white Monte Carlo was used as a
switch car, the issue of whether a white Monte Carlo was stored in Blanton’s garage

                                         -4-
was clearly a proper matter of inquiry. At trial, the government presented testimony
from the foreperson of the grand jury that Blanton’s statement limited the scope of
the investigation regarding the white Monte Carlo. Accordingly, we conclude that
a reasonable jury could have found beyond a reasonable doubt that because Blanton’s
statement terminated a potentially fruitful line of inquiry, it impeded or hampered the
grand jury’s investigation and thus was material.

                                          III.

       The government argues that the district court misapplied the sentencing
guidelines by not applying the cross reference in U.S.S.G. § 2J1.3(c)(1), which states:
“If the offense involved perjury . . . in respect to a criminal offense, apply § 2X3.1
(Accessory After the Fact) in respect that criminal offense, if the resulting offense
level is greater than that determined above.” Section 2X3.1 provides that the base
offense level for an accessory after the fact is “6 levels lower than the offense level
for the underlying offense, but in no event less then 4, or more than 30.”

       The government contends that because it advised Blanton before and during
her grand jury testimony that the focus of the investigation was a series of bank
robberies and because it specifically stated that part of that investigation included its
interest in a white vehicle, possibly a Monte Carlo, any knowingly made false
statement about the vehicle was in respect to the offense of robbery.

       The government’s contention raises questions of fact and questions of law. In
sentencing guidelines cases, we review the district court's findings of fact for clear
error. United States v. Larson, 110 F.3d 620, 627 (8th Cir. 1997) (citing United
States v. Lamere, 980 F.2d 506, 510 (8th Cir. 1992)). Whether perjury was “in
respect to a criminal offense” is an issue of fact. United States v. Colbert, 977 F.2d
203, 207 (6th Cir. 1992). “Interpretation of the sentencing guidelines and application
of the guidelines to the facts of the case [are] subject to a de novo standard of review,

                                          -5-
however.” United States v. Roggy, 76 F.3d 189, 192 (8th Cir. 1996) (citing United
States v. Willis, 997 F.2d 407, 417 (8th Cir. 1993)).

       In sustaining Blanton’s objection to the presentence investigation report and
refusing to apply the cross reference, the district court stated that “notice to the
defendant that you are investigating ‘x’ number of crimes in the grand jury doesn’t
get you to the enhancement, because the enhancement is basically made for people
that are accessories after the fact.” (Tr. of Sentencing Proceedings at 416.)
Application of the cross reference, however, only imposes § 2X3.1's sentencing
formula. It does not require that the defendant be found in any degree to be an
accessory to the underlying crime. United States v. Gay, 44 F.3d 93, 94-95 (2d Cir.
1994); cf. United States v. Russell, 234 F.3d 404, 409-410 (8th Cir. 2000) (applying
§ 2X3.1 enhancement in case of § 2J1.2 cross reference).

       The Ninth Circuit has held that a perjurious statement “is in respect to a
criminal offense where ‘the defendant knew or had reason to know, at the time of his
perjury, that his testimony concerned such a criminal offense.’” United States v.
Leon-Reyes, 177 F.3d 816, 824 (9th Cir. 1999) (quoting United States v. Rude, 88
F.3d 1538, 1543 (9th Cir. 1996)). Similarly, the Second Circuit has found that “as
long as the witness has been alerted to the fact that the grand jury is investigating a
criminal offense, false answers to material questions will almost always merit
enhanced punishment.” United States v. Suleiman, 208 F.3d 32, 39 (2d Cir. 2000).
In Suleiman, the court found that because an AUSA notified and questioned the
witness about the nature of the grand jury inquiry, the witness could “not avoid the
enhancement.” Id. at 40. We agree with these two holdings, and accordingly we hold
that a witness is put on notice when an AUSA informs that witness of the nature of
the grand jury’s inquiry either prior to or during her grand jury testimony.

     Although the district court made no factual findings as to whether the
exchanges between Blanton and the AUSA were sufficient to put Blanton on notice,

                                         -6-
we conclude that any finding that they were not sufficient would be clearly erroneous.
Accordingly, on remand the sentence imposed should be based upon the offense level
resulting from the application of § 2J1.3(c)(1) and § 2X3.1 that is required under the
provisions of this opinion.

       We affirm Blanton’s conviction, vacate her sentence, and remand to the district
court for resentencing consistent with the views set forth in this opinion.

      A true copy.

             Attest:

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




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