T he Honorable Richard H. Kyle, United States District Judge for the 1 District of Minnesota, sitting by designation. The Honorable Charles B. Kornmann, United States District Judge for the 2 District of South Dakota.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1889

___________ United States of America, * * Appellee, * Appeal from the United

* States District Court for v. * the District of South Dakota * Juan Gomez, * * Appellant. *

___________ Submitted: October 23, 1998 Filed: January 20, 1999

___________ Before McMILLIAN and HANSEN, Circuit Judges, and KYLE, District Judge. 1 KYLE, District Judge.

Juan Go mez (“Gomez”) was convicted by a jury of first-degree burglary, i n violation of 18 U.S.C. § 1152 an d S.D. Codified Laws § 22-32-1. He appeals both his convictionand the 46-month sentence imposed by the district court. For the reasons 2-2-

set forth below, we affirm.

I

Duri ng the evening and early morning hours of August 9-10, 1997, Caro l Thompson Muniz (“Muniz”), Kerrie Flute (“Flut e”), Fernando Aranda (“Aranda”), and Dan ielle LaRoche (“LaRoche”) spent time together drinking alcohol at a bar i n Re liance, South Dakota, and later at Muniz’s house in Lower Brule, South Dakota

. After the bar closed at midnight, the group went to a dance in Lower Brule , where they stayed until 2:00 or 3:00 in the morning. When the dance ended, they resumed drinking at Muniz’s house.
While the group was sittin g in Muniz’s kitchen, they heard someone banging on the front door of her house. Muniz and Aranda yelled at the person to go to the back door

. Gomez, who had been banging on the front door, then went to the back door , which was locked, and kicked and pounded on it until it flew open. He then entered the house carrying a beer bottle, which he bro ke on the door frame, scattering glass around the kit chen. As he broke the bottle, a piece of glass hit LaRoche on the head, afte r which LaRoche ran out of the house.

Gom ez then saw Flute attempting to flee the house and confronted her with the broken beer bottle, extending the ja gged edge toward her as he approached her. When Gomez then turned toward Aranda and lunged at him, Flute fled the house. Inside the hou se, Gomez yelled at Muniz, “Bitch, you’re dead,” or words to that effect. Gomez and Arand a began to fight and Muniz ran into her bedroom; when she came ou t moments later, nobody was left inside her house. Muniz then went to a neighbor’sU.S.S.G. § 3C1.1 provides: 3 If (A) the defendant willfully obstructed or impeded, or atempted to obstruct or impede, the administration of justice during the course of -3- house and called the police.

Officer Tim Felicia of the Lower Brule Police Department and a tribal deputy arriv ed at Muniz’s house a few minutes later, at approximately 3:30 a.m. Office r Felicia noticed that the back door was open and its frame was broken, and that ther e was a broken beer

bottle and broken glass on the floor of the house, along with blood.

Gomez , who testified in his own defense, gave a quite different account of th e activities in Muniz’s house. He testified that he went there in search of his girlfriend, Beverly Skunk (“Skunk”), but found only Arand a in the kitchen. According to Gomez, after he asked

if Skunk was present, Aranda -- unprovoked -- broke a beer bottle over Gomez’s face and cut him under his arm with the broken bottle.
Later that day, after Gomez had been arrested, Muniz left her house and saw him standing nearby. As Muniz testified, Gomez yelled at her saying “something about you better not t ell on me, or something, I’ll tell them what you’re doing at your house. ” While Muniz could not remember Gomez’s exact words, she testified that he ha d threatened to hurt her.

After a two-day trial, the jury -- disbelieving Gomez’s account of the events -

- returned a verdict of guilty on the single-count indictment. During the sentencin g hear ing, the district court imposed two two-level enhancements to Gomez’s bas e offense level for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, and for 3the investigation, prosecution, or sentencing of the instant offense of

conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels. U.S.S.G. § 2B2.1(b)(4) provides, in relevant part: “If a dangerous weapon . 4 . . was possessed, increase by 2 levels.” -4- possession of a dangerous weapon, pursuant to U.S.S.G. § 2B2.1(b)(4)

. The district 4 court f ound that the enhancement for obstruction of justice was supported not only by his threa tening of Muniz after his arrest, but also by a finding that Gomez ha d committed per

jury when he testified at trial, and by his failure to disclose his ful l criminalhistory to the presentence investigator. In addition, the district court deter mined

that the broken bottle that Gomez had possessed constituted a dangerou s weap on, which resulted in a two-level enhancement. These enhancements resulted in
atotal offense level of 21. When coupled with Gomez’s criminal history category of II I, the applicable guideline range was 46 to 57 months. Gomez received a 46-month sentence, and this appeal followed.

II

Gomez raise s several issues on appeal. He argues that his conviction must b e reversed because the trial court erred in (1) not allowing him to present evidence that Arand a had fled the jurisdiction; (2) allowing evidence of his alleged threat of Muniz; and (3) denying his motion for a judgment of acquittal. Moreover, Gomez challenges both of the two-level enhancements to his base offense level.-5-

A. Challenges to the Conviction

Go mez contends that the district court erred by not allowing him to presen t evidenc e that Aranda had fled the jurisdiction. Such evidence, he argues, would have tended to exculpate him because it would have suggested that Aranda, rather tha n Gomez, initiated the altercation at Muniz’s house.

“We review the evidentiary rulings of a district court only for abuses o f discre tionand will reverse only when an improper evidentiary ruling affects th e substantial rights of the

defendant or when we believe that the error has had more than a slight influence on the verdict.” United States v. Ballew , 40 F.3d 936, 941 (8th Cir. 1994 ) (citations omitted). In the instant case, the district court held that evidence o f what Aranda did after the altercation was irrelevant to any issue material to Gomez’s guilt or innocence, and we agree. Additionally, in light of the weight of other evidence against him, we cannot say that the district court’s decision to exclude this evidenc e affect ed any substantial right of Gomez or had more than a slight influence on th e verdict against

him. We also note that no offer of proof was made with regard to why Aranda had f

led the jurisdiction, when he did so, or indeed, whether he had fled th e jurisdiction. Under these circumstances, we see no error in the distr ict court’s exclusion of testimony about Aranda.

Gomez furt her contends that the district court erred in admitting testimony o f threats that he had made to Muniz after the altercation at his house, following his arrest. He argu es that such evidence was more prejudicial than probative, and that it wa s unreliable. We disagree. Muniz testified that, although she could not remember his-6-

exact words, Gomez had threatened her. During her direct exami nation, Muniz testified that Gomez had said “you better not tell on me, or something . . . .” During her crossexaminatio n, she testified that he had said “something like ‘Don’t tell on me,’ o r something -- ‘You better not f___ with me’ -- he was just yelling something -- ‘or I’ll tell them what you’re doing at your house.’” Gomez contends that, because she could not remember his exact words, Muniz was testifying merely to her own subjectiv e feelings rather than presenting evidence as to what Gomez actually s aid. He also argues that he r testimony on this point had no probative value and resulted in substantia l prejudice to him.

We find no requirement that, to be admissible, a witness must remember wor d forword th e statement of one who has threatened her, and we conclude that such a req uirement

would make little sense. Muniz unequivocally testified that Gome z threatened her, and atte mpted to influence her testimony in this matter. Such evidence is admissibl e and can be probative of guilt. See United States v. Hall , 565 F.2d 1052, 10 55 (8th Cir. 1977) (evidence that the defendant attempted to influence a witness i s admiss ible evidence and the jury determines what weight it should be given)

. Accordi ngly, we find that the evidence of Gomez’s attempts to influence Muni z through threats was probative on the q uestion of his guilt, and that the district court did not abuse its discretion in allowing such testimony.
Finally , with regard to his conviction, Gomez asserts that because no rationa l tri er of fact could have found each of the elements of first-degree burglary satisfie d beyond a reasonable doubt, the district court erred in d enying his motion for a judgment of acquittal. Distilled to its essence, his argument is that it is unreasonable for the jury to have believed the testimony of Muniz because she “is sim ply not a credible witness.”-7-

In reviewi ng a district court’s denial of a motion for judgment of acquittal, w e will rev erse only if there is no interpretation of the evidence that would allow a
reason able jury to find the defendant guilty beyond a reasonable doubt. See Unite d States v. White , 81 F.3d 80, 82 (8th Cir. 1996). We view the evidence in the light most favor able to the jury’s verdict, giving the government the benefit of every reasonabl e inference and resolving all evident iary conflicts in favor of the government. See United States v. Cunningham , 83 F.3d 218, 222 (8th Cir. 1996); White , 81 F.3d at 82. A district court properly denies a motion fo r a judgment of acquittal if “there is substantial evidence justifying an inference of guilt irrespective of any countervailing testimon y that may be introduced.” United States v. Armstrong , 16 F.3d 289, 292 (8th Cir. 1994). We find that Gomez’s attacks on Muniz’s credibility do not present an issue on which
we could a ppropriately reverse the district court. See United States v. Martinez , 95 8 F.2d 217, 218 (8th Cir. 1992) (“It is the sole province of t he jury to weigh the credibility of a witness.”). Accordingly, we affirm Gomez’s conviction.

B. Challenges to the Sentence

Gomez contends that the district court erred in imposing two-level enhancements for (1) possession of a dangerous weapon a nd (2) obstruction of justice. We review the district c ourt’s factual findings for clear error and give due deference to the distric t court’s application of the guidelines to those facts. See United States v. Johnson , 906 F.2d 1285, 1290 (8th Cir. 1990).
Gomez argues that Muniz’s testimony “shows that she was never threatened with that beer bottle.” (Ap pellant’s Br. at 14.) Moreover, Gomez argues that “[t]here exists evidence” that Aranda, rather than Gomez, brandished the broken bottle and that-8-

“the evidence is at best contradictory . . . .” ( Id. ) The fact that contradictory evidence existed, howev er, provides no grounds for us to reverse the finding of the district court that Gomez possessed the broken bottle. I t is evident that the district court believed the testimony of the various witnesses that Gomez brandished the broken bottle, an d disb elievedGomez’s own testimony on this point. “[A] district court’s credibilit y determinations are ‘virtuall y unreviewable on appeal.’” United States v. Pugh , 25 F.3d 669, 677 (8th Cir. 1994) (quoting United States v . Casas , 999 F.2d 1225, 1230 (8th Cir. 1993)). Ample evidence existed that Go mez possessed and brandished a broken bottle in the course of the burglary. Accordi ngly, we find that the district court did not clearly err when it imposed a two-level enhancement for possession of a dangerous weapon.
Finally, with regard to the enhancement for obstruction of justice, Gomez argues that the district court’s finding that he committed perjury was clearly erroneous. W e disagree, and hold that the district court’s determination that Gomez committed perjury i s fully supported by the record. See United States v. Benson , 961 F.2d 707, 709 (8th Cir. 1992) (holding that, while an enhancement for obstruction of justice may not b e base d solely on the fact that the jury disbelieved the defendant, it may be based on the express finding of the district court, resulting from the judge’s personal observations , that the defendant lied to the jury). Moreover, the district court articulated a separat e and independent ground to support an enhancement pursuant to U.S.S.G. 3C1.1, in its finding tha t Gomez threatened Muniz after the altercation. Accordingly, we find tha t the distr ict court did not clearly err in imposing a two-level enhancement pursuant t o U.S.S.G. § 3C1.1.
Finding no error, we affirm Gomez’s conviction and sentence.-9-

A true copy.

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