1

The Honorable Michael J. Melloy, Chief Judge, United States

District Court for the Northern District of Iowa.

___________

No. 95-3940

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Shaun Thomas, *

*

Appellant. *

__________

 Submitted: April 9, 1996

 Filed: August 21, 1996 __________

Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and

LOKEN, Circuit Judge.

___________

MAGILL, Circuit Judge.

Shaun Thomas appeals his conviction of possession with intent

to distribute more than five grams of cocaine base, in violation of

21 U.S.C. § 841(a)(1) (1994), and of using and carrying a firearm

during and in relation to a felony drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (1994). Because there was

insufficient evidence to establish that Thomas violated 18 U.S.C.

§ 924(c), we vacate his conviction on that count and remand for

resentencing. With respect to Thomas's other challenges, we affirm

the district court.1
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I.

On March 25, 1994, the Waterloo, Iowa, Police Department

received information from a motel employee that several people from

Chicago had checked into the Rodeway Inn in the early hours of the

morning. According to the motel employee, the guests had made

numerous telephone calls early in the day and appeared to be

conducting drug transactions from their room and their automobile,

a white Oldsmobile Delta 88. The room was registered to Charmane

Powells and the automobile to Shaun R. Thomas. Based on this

information, the police ran a check on Powells and Thomas and

discovered that both had suspended Illinois driver's licenses.

At a police department meeting before the 3-11 p.m. shift,

officers were directed to "attempt to locate" the white Oldsmobile

Delta 88. Suppression Tr. at 5-7. The officers were informed that

the occupants of this vehicle were suspected of trafficking drugs

at the Rodeway Inn and that their licenses had been suspended by

the State of Illinois.

At approximately 8:30 p.m., Officer Frank Krogh observed

Thomas's automobile parked outside the West Coast Connection, a bar

on the north end of Waterloo that had been the site of frequent

drug deals. I Trial Tr. at 267. It was described by police

officers as the hot spot for crack cocaine dealing in Waterloo in

March 1994. Suppression Tr. at 6, 59. 

Krogh set up surveillance on the white Oldsmobile from a

distance. During this time, he observed Thomas going back and

forth between the automobile and the bar. Shortly after 9 p.m.,

Thomas and Steve Marshall left the West Coast Connection, entered

Thomas's Delta 88, and drove away with Thomas behind the steering

wheel. Krogh followed. 
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While following the defendants, Krogh observed that neither

Thomas nor Marshall was wearing a safety belt, a violation of Iowa

law. Krogh followed the vehicle for a short distance and then

stopped the defendants in a well-lit area. Krogh approached the

driver's side of the vehicle and asked Thomas for his driver's

license. Thomas produced an Arkansas driver's license. The

passenger identified himself as Steven Dixon. 

Krogh took Thomas's Arkansas driver's license and called the

dispatcher to run a check on the defendant's driving status in

Illinois and Arkansas. By this time, Officer Mark Meyer had

arrived at the scene. Krogh asked Thomas whether he had any guns,

drugs, or things of that nature in the automobile. Thomas said

that he did not.

Krogh then asked Thomas if he could search the automobile.

Thomas responded in the affirmative by stating either that he did

not mind or that he did not care. I Trial Tr. at 276; Suppression

Tr. at 45-46. Thomas was told to get out of the car, and Krogh did

a pat-down search of the defendant for weapons. A search of the

automobile revealed a white napkin between the front seats. Inside

the white napkin, Krogh found 0.29 grams of crack cocaine. A

further search of Thomas's person revealed additional crack cocaine

concealed under his baseball cap. Police arrested Thomas and

Marshall. 

After placing Thomas and Marshall in custody, officers

obtained a search warrant for the Rodeway Inn motel room. The room

search uncovered 39.65 grams of crack cocaine hidden between the

mattress and the box spring of one of the two beds in the room.

There were two packages of cocaine--one containing loose crack

cocaine and the other containing numerous, individually packaged

pieces of crack cocaine. The police found a loaded 9mm semiautomatic handgun concealed under a pillow. The room also

contained plastic bags used to package crack cocaine and a piece of
 2

Powells testified at trial that Thomas had left the package

of crack cocaine found in the upstairs, southeast bedroom. The

cocaine base weighed 4.52 grams.

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luggage containing Thomas's clothing.

Following the execution of the search warrant at the Rodeway

Inn, officers returned to the police station and interviewed Thomas

and Marshall after advising them of their Miranda rights. Both

individuals denied any knowledge of crack cocaine at the hotel

room. Indeed, both denied staying at the hotel room even though

their clothing had been found scattered about the room.

During the interview, Thomas admitted coming to Waterloo with

a third person named Charmane Powells, whom he knew by the nickname

of "Shoe." Marshall likewise confirmed that he had come to

Waterloo with the defendant and Powells. However, Marshall stated

that he and Powells had stayed at a house located on the west side

of Waterloo the previous evening, while the defendant had stayed at

the motel. Later, on the morning of March 26, 1995, Marshall was

taken from the jail to identify the house at 1116 West Fifth

Street, Waterloo, Iowa, as the house where he and Charmane Powells

had spent the previous evening.

Based on information provided by Marshall and information law

enforcement officials had received from other sources, officers

applied for a search warrant for the residence of Keisha Morris,

1116 West Fifth Street in Waterloo. Pursuant to a warrant,

officers searched the residence and located a large quantity of

crack cocaine in three separate locations in the house along with

a large quantity of money, plastic bags used to package crack

cocaine, and other drug paraphernalia.2

On June 24, 1994, Thomas, Marshall, and Powells were indicted

on one count of possession with intent to distribute fifty grams or
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more of cocaine base. Three months later, a superseding indictment

was filed against the three defendants, substituting a charge for

possession with intent to distribute five grams or more of cocaine

base, in violation of 18 U.S.C. § 841(b)(1)(B)(iii), and for using

and carrying a firearm during and in relation to a felony drug

trafficking offense, in violation of 18 U.S.C. § 924(c). Thomas

filed a motion to suppress the evidence seized as a result of the

traffic stop made by Krogh, which the court denied. 

Powells subsequently entered into a plea agreement with the

government and testified against Thomas at trial. Powells

testified that he observed Thomas with a small package which

contained crack cocaine. Thomas placed this package in the bedroom

in the upstairs of the Morris residence. Police seized this

package during the execution of the warrant at the Morris

residence. 

Powells also testified that he had observed Thomas coming out

of the Rodeway Inn carrying a brown paper bag. Powells testified

that the brown paper bag which the defendant was carrying was very

similar to the one which was government's exhibit 13. Government

exhibit 13 was the brown paper bag which contained the large

quantity of controlled substances found at the motel room.

Thomas also testified at trial. The defendant admitted that

he stayed in Room 207 at the Rodeway Inn and slept in the bed where

the drugs and gun were found. Thomas acknowledged that he had gone

to the West Coast Connection with Marshall and that he had been

stopped while driving his car after leaving the West Coast

Connection. Thomas contended that he had purchased the crack

cocaine found in his hat at the West Coast Connection. He admitted

that he lied to the officers when he denied that he had ever been

in the motel room. Thomas admitted that his luggage and clothing

were in the motel room, although he denied any knowledge of the

drugs, firearm, or drug paraphernalia located in the room or the
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crack found between the car seats.

On cross-examination, the prosecutor tried to establish that

Thomas had given trial testimony inconsistent with testimony he had

given at prior hearings held in the case, including a suppression

hearing. At the beginning of cross-examination, the prosecutor

asked the defendant whether he had ever lied under oath in a court

proceeding and Thomas answered "no." II Trial Tr. at 598. The

prosecutor then inquired as to whether the defendant had been under

oath when he "previously testified in August of 1994" and whether

he had been honest at that time. II Trial Tr. at 600. The

defendant responded that "yes" he had been under oath and that, as

far as he knew, he had been honest on that occasion. Later, the

prosecution questioned Thomas about several inconsistent statements

he had made, including statements previously made under oath. In

the course of trying to pin down the defendant on testimony which

appeared inconsistent to previous testimony, the prosecutor asked

the following question:

And do you recall testifying at the suppression hearing--

excuse me--at the previous hearing in this matter

concerning how long you had been at that hotel or what

you had been at that hotel for?

II Trial Tr. at 608. After cross-examination continued for several

more minutes, the court adjourned trial for the day. At the time

court was recessed, defendant's counsel moved for a mistrial based

upon the prosecutor's withdrawn mention of the word "suppression"

in reference to a prior hearing while cross-examining the

defendant. The court denied the motion for mistrial, but agreed to

give a curative instruction.

Thomas was subsequently convicted. He moved for a new trial,

which the district court denied. At sentencing, the district court

found that Thomas had obstructed justice through perjurious

testimony and applied a two level sentence increase. The court
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sentenced Thomas to 151 months in prison for the drug offense, and

an additional 60 months in prison for the § 924(c) firearm

conviction. 

Thomas now appeals, arguing that the district court committed

four reversible errors. First, Thomas claims that the district

court erred in refusing to exclude evidence stemming from the

police stop of Thomas's vehicle. Second, Thomas argues that the

government, in making improper and prejudicial references at trial

to Thomas's testimony at the suppression hearing, deprived him of

a fair trial. Third, in light of Bailey v. United States, 116 S.

Ct. 501 (1995), the district court erred in failing to grant

Thomas's motion for judgment of acquittal in light of the

insufficient evidence supporting the § 924(c) firearms count.

Fourth, the district court erred in applying a two level sentence

increase for obstruction of justice based on Thomas's trial

testimony. After careful review of these claims, we affirm the

district court except with respect to Thomas's § 924(c) conviction,

which we vacate and remand for resentencing.

II.

Thomas argues that the evidence stemming from the automobile

search should have been excluded. He predicates this argument on

two assertions. According to Thomas, the district court erred in

finding (1) that the police made a valid traffic stop, and (2) that

Thomas gave voluntary and knowing consent to the subsequent search

of his automobile. We review the district court's legal

conclusions de novo and its factual findings for clear error. See

United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995), cert.

denied, 116 S. Ct. 971 (1996).

A.

As a general matter, police may stop an automobile where there
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is probable cause to believe that a traffic violation has occurred.

See Whren v. United States, 116 S. Ct. 1769, 1772 (1996); United

States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990), cert.

denied, 502 U.S. 962 (1991). Probable cause exists where an

officer objectively has a reasonable basis for believing that the

driver has breached a traffic law. See Cummins, 920 F.2d at 501.

Under this objective test, so long as police have probable cause to

believe that a traffic violation has occurred, the stop is valid

even if the police would have ignored the traffic violation but for

their suspicion that greater crimes are afoot. 

The district court found that Krogh stopped Thomas's

automobile because he observed that the driver and front seat

passenger were not wearing their seat belts and because he had

reason to believe that the driver did not have a valid driver's

license. Thomas challenges these findings, arguing that the police

had no valid reason for making the traffic stop. 

Police stopped Thomas's automobile around 9:00 in the evening.

According to Thomas, Krogh could not have observed whether Thomas

was wearing his seat belt because it was dark outside and Krogh was

some distance away. Under these conditions, Thomas contends, it

was impossible for Krogh to make such a determination. We

disagree.

At the suppression hearing, neither Thomas nor Marshall

claimed that they were wearing their seat belts. In fact, the

police testimony was not challenged in any fashion. We are not

willing to reverse the district court's evaluation of the evidence

on the thin observation that in March at 9 p.m. the sun had set in

Waterloo, Iowa. Interior lights of Thomas's automobile, street

lights, and headlights of other automobiles could have allowed

Krogh to observe whether Thomas had his seat belt fastened or not.

We do not believe the district court's fact-finding to be clearly

erroneous.
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B.

Thomas also argues that the district court erred when it found

that he had given valid consent for the police to search his

automobile and his person. Even without probable cause or a

warrant, police may search an area if they obtain voluntary consent

from someone possessing adequate authority over the area. See

United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990). A

driver of an automobile has sufficient authority to give consent

for its search. See United States v. Eldridge, 984 F.2d 943, 948

(8th Cir. 1993). 

Thomas makes two challenges to the district court's

suppression hearing determination that he gave the police his

consent to search. First, he argues that the police never sought

his consent to conduct the searches. Second, accepting that Thomas

was asked and indicated consent, this consent was not voluntary and

therefore inadequate to validate the search. We do not find either

of these arguments persuasive.

At the suppression hearing, Krogh and Meyer testified that

they asked for and received Thomas's consent before they searched

the automobile. Suppression Tr. at 17. Thomas offered a different

account of the events, stating that the police conducted the patdown search and the automobile search without asking his consent.

On appeal, Thomas asserts that the district court should have found

his version of the searches more credible, pointing to an apparent

discrepancy between the police testimony at the initial detention

hearing and the police testimony at the suppression hearing. 

Meyer stated at the initial detention hearing that he heard

Krogh ask Thomas for permission to search, whereas at the

suppression hearing Meyer stated that he requested that Krogh ask

Thomas for consent. We are not convinced that the police testimony

at the two hearings is at odds or, if such a discrepancy does
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exist, that it warrants overturning the district court's firsthand

assessment of the evidence. It is uniquely the role of the

district court to judge the credibility of witnesses. See United

States v. Hankins, 931 F.2d 1256, 1258-59 (8th Cir.), cert. denied,

502 U.S. 886 (1991).

Thomas also challenges the voluntariness of any consent that

he might have given for the police search. Consent is voluntary if

it is "the product of an essentially free and unconstrained choice

by its maker," Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973),

and not the result of "duress or coercion, express or implied."

Id. at 227. To determine whether consent was voluntary, we look at

the totality of the circumstances surrounding a particular case,

considering both the characteristics of the accused and the details

of the police questioning. Id. at 226. We will "'affirm the trial

court's decision unless it is not supported by substantial

evidence, it evolves from an erroneous conception of the applicable

law, or we are left with the firm conviction that a mistake has

been made after having considered the entire record.'" United

States v. Ware, 890 F.2d 1008, 1011 (8th Cir. 1989) (quoting United

States v. Wallraff, 705 F.2d 980, 987 (8th Cir. 1983)).

Thomas asserts that the coercive circumstances of the traffic

stop, with an intimidating show of force by the police and the

seizure of Thomas's person, tainted any consent offered by Thomas.

As Thomas succinctly stated his position, he "was a young man in a

strange town surrounded by numerous police officers at night."

Appellant's Br. at 11. The age of the consent giver, the

intimidating actions of police, the time of day, and the consent

giver's familiarity with the area are proper considerations under

the totality of the circumstances evaluation of whether consent is

voluntary. In this instance, however, they are not sufficient to

establish that Thomas acted against his will when he told police

they could search his automobile. 
 3

The district court instructed the jury that "during the

cross-examination of Mr. Thomas, you heard reference to earlier

testimony by Mr. Thomas. You need not and should not concern

yourself about the proceedings or the nature of that prior hearing.

Specifically, you are advised that no evidence, statements, or

testimony has been suppressed in any way in this case." III Trial

Tr. at 745.

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The district court's conclusion is supported by substantial

evidence. The court heard Thomas testify and found him to be old

enough and intelligent enough to understand the situation he was in

and the consequences of allowing the search. Thomas had been

stopped in a well-lit area and had been detained only briefly

before Krogh asked permission to search the automobile. At the

suppression hearing, Thomas discounted the intimidating effect of

the police, stating that he was "sort of surprised" by the number

of police around him. Suppression Tr. at 113. He also

characterized the exchange between the police and himself as

cordial. In these circumstances, the district court properly found

Thomas's consent to be voluntary.

III.

While cross-examining Thomas, the prosecutor mentioned that

Thomas had testified at an earlier suppression hearing.

Immediately upon speaking the words "suppression hearing," the

prosecutor corrected himself and recharacterized the suppression

hearing as "the previous hearing." II Trial Tr. at 608. Thomas

moved for a mistrial, arguing that it was improper and highly

prejudicial for the prosecutor to convey to the jury that Thomas

had sought to exclude evidence. The court denied the motion, but

gave the jury a curative instruction immediately prior to closing

arguments.3 Thomas argues it was both improper and highly

prejudicial for the prosecution to convey to the jury that Thomas

had sought to exclude evidence and that the district court erred in

denying his motion for mistrial.
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An instance of trial error constitutes reversible error when

the prosecutor's actions are, in fact, improper and have

prejudicially affected the defendant's substantial rights so as to

deprive the defendant of a fair trial. See United States v.

Emmert, 9 F.3d 699, 701 (8th Cir. 1993), cert. denied, 115 S. Ct.

101 (1994). The decision to deny a motion for a mistrial falls

within the discretion of the district court and will be reversed

only if that discretion is abused. See United States v. Wold, 979

F.2d 632, 635 (8th Cir. 1992).

We agree that the prosecutor's mention of the suppression

hearing was improper. The defendant has a Fourth Amendment right

to be free of unreasonable searches and seizures which is

diminished when the prosecution mentions before the jury that the

defendant attempted to exercise that right by excluding evidence.

Thomas, however, was not denied a fair trial as a consequence of

this trial error and, therefore, we conclude that the district

court was not in error.

In evaluating whether a trial error resulted in prejudice to

the defendant, we consider the cumulative effect of such

misconduct, the strength of the properly admitted evidence of the

defendant's guilt, and the curative actions taken by the district

court. See Emmert, 9 F.3d at 701. Considering the quantum of

evidence presented by the prosecution, the brief, inadvertent, and

quickly corrected error by the prosecution is insignificant. In

addition, the district court issued a corrective instruction to the

jury, assuring them that all the evidence was before them. In

combination, these factors eliminated the risk that Thomas was

prejudiced. Cf. United States v. Farmer, 73 F.3d 836, 844 (8th

Cir.) (where prosecution merely asks an improper question, which

was immediately stricken, there was no substantial effect on the

outcome of the case), cert. denied, 116 S. Ct. 2570 (1996); United

States v. Turk, 21 F.3d 309, 312-13 (8th Cir. 1994) (where

prosecution witness testified in contravention of the district
 4

18 U.S.C. § 924(c)(1) states that "[w]hoever, during and in

relation to any crime of violence or drug trafficking crime . . .

for which he may be prosecuted in a court of the United States,

uses or carries a firearm, shall, in addition to the punishment

provided for such crime of violence or drug trafficking crime, be

sentenced to imprisonment for five years . . . ." 

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court's motion in limine, jury was admonished that they were to

disregard such testimony and that such admonishment cured any harm

caused by the improper testimony).

IV.

Police, in the course of searching the motel room, discovered

a loaded 9mm semi-automatic handgun under a pillow on the bed.

Thomas was charged with violating 18 U.S.C. § 924(c), which

increases the defendant's sentence for using a firearm during a

drug offense.4 Following the completion of the government's case

and again at the close of evidence, Thomas moved for judgment of

acquittal on the firearms charge. The district court denied the

motion and submitted the charge to the jury, which convicted

Thomas.

Subsequent to the district court's decision, the Supreme Court

issued its opinion in Bailey v. United States, 116 S. Ct. 501

(1995). In Bailey, the Supreme Court held that § 924(c)(1)

"requires evidence sufficient to show an active employment of the

firearm by the defendant, a use that makes the firearm an operative

factor in relation to the predicate offense." Bailey, 116 S. Ct.

at 505 (emphasis added). Active use includes brandishing,

displaying, bartering, striking with, as well as firing or

attempting to fire a firearm. Id. at 508. Significantly, the

Court expressly precluded the mere storage of a weapon near drugs

or drug proceeds from the scope of active use. Indeed, active use

does not necessarily encompass a gun which is hidden where it could

be grabbed and used if necessary. Id. 
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On appeal, Thomas argues that there was insufficient evidence

to prove that he actively employed the 9mm gun found in the motel

room. We agree. In light of Bailey, the facts of this case do not

allow Thomas to be convicted under § 924(c)(1). At the time of his

arrest, the firearm was well outside of Thomas's control. In no

way can it be said that a firearm concealed under a pillow in an

unoccupied motel room constitutes active employment. 

The government asks that we remand for resentencing. The

government draws our attention to the fact that once Thomas's

§ 924(c) conviction is reversed, a two level upward adjustment may

be appropriate under § 2D1.1(b)(1) of the sentencing guidelines.

Under § 2D1.1(b)(1), it is a specific offense characteristic if "a

dangerous weapon (including a firearm) was possessed" by the

defendant and warrants a two level sentence increase. 

The district court did not consider this sentencing provision

because, at the time he was sentenced, Thomas was ineligible for a

§ 2D1.1(b)(1) sentence increase. The sentencing guidelines

prohibits double counting and therefore, because of Thomas's

conviction on the § 924(c) firearm charge, the district court was

precluded from applying a § 2D1.1(b)(1) increase. See U.S.S.G.

§ 2K2.4, comment. (n.2). In light of our decision to vacate

Thomas's § 924(c) conviction, however, this double counting concern

is eliminated and it is appropriate to remand to the district court

to allow it to resentence Thomas. See United States v. Roulette,

75 F.3d 418, 426 (8th Cir. 1996) ("The prohibition against applying

the two level enhancement is no longer applicable, because the

firearm sentence on Count 4 has been set aside."); see also United

States v. Clements, 86 F.3d 599, 600-01 (6th Cir. 1996) (vacating

§ 924(c) conviction and remanding for consideration of a two level

increase under U.S.S.G. § 2D1.1(b)(1)); United States v. Lang, 81

F.3d 955, 963 (10th Cir. 1996) (same); United States v. Fennell, 77
 5

We note that Bailey does not impact the application of

§ 2D1.1(b)(1). Under § 2D1.1(b)(1), a sentence enhancement is

required if a dangerous weapon was "possessed." The Supreme

Court's analysis in Bailey focuses on the word "use" found in

§ 924(c) and determined that "use" must be "active employment."

See United States v. Betz, 82 F.3d 205, 210 n. 3 (8th Cir. 1996).

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F.3d 510, 510-11 (D.C. 1996) (per curiam) (same).5

We therefore reverse Thomas's § 924(c) conviction, vacate his

sentence, and remand the case to the district court, which should

consider whether a sentence enhancement under U.S.S.G.

§ 2D1.1(b)(1) is warranted.

V.

Finally, Thomas argues that the district court erred by

refusing to grant a three level sentence reduction for acceptance

of responsibility under U.S.S.G. § 3E1.1, and by assessing a two

level sentence increase for obstruction of justice under U.S.S.G.

§ 3C1.1. These sentencing decisions rest entirely on the factual

determinations of the district court, which we review for clear

error. See United States v. Evans, 51 F.3d 764, 766 (8th Cir.

1995); United States v. Oakie, 12 F.3d 1436, 1444 (8th Cir. 1993).

Under the sentencing guidelines, a three level reduction in

the sentence level is warranted when "the defendant clearly

demonstrates a recognition and affirmative acceptance of personal

responsibility for his criminal conduct." U.S.S.G. § 3E1.1(a).

The burden rests with the defendant to establish that he accepted

responsibility. See United States v. Morales, 923 F.2d 621, 628-29

(8th Cir. 1991). Thomas did not present evidence that suggests

that he is entitled to this reduction.

The sentencing guidelines set out a list of considerations

useful in determining whether the defendant has accepted
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responsibility. See U.S.S.G. § 3E1.1, comment. (n.1). This list

includes truthfully admitting the conduct comprising the offense of

conviction, voluntarily terminating or withdrawing from criminal

conduct, voluntarily surrendering to authorities promptly after

commission of the offense, and voluntarily assisting authorities in

recovering the fruits and instrumentalities of the offense. Id.

Thomas presents no evidence that he has satisfied any of these

factors. The police apprehended Thomas in a traffic stop and

discovered the firearm and crack cocaine in the motel room without

Thomas's assistance. In fact, except for the crack cocaine police

found hidden in his hat, Thomas continued to deny any connection to

the drugs. Based on this evidence, the district court reasonably

refused to find that Thomas had accepted responsibility for his

criminal behavior.

The district court found that Thomas had, in fact, obstructed

justice by testifying falsely under oath, and the court applied a

two level sentence enhancement under U.S.S.G. § 3C1.1. Section

3C1.1 states that the offense level may be adjusted upward for

obstruction of justice if "the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of

justice during the investigation, prosecution, or sentencing of the

instant offense." It is well accepted that perjury at trial

amounts to obstruction of justice within the meaning of § 3C1.1.

See U.S.S.G. § 3C1.1, comment. (n.3(b)); United States v. Pena, 67

F.3d 153, 157 (8th Cir. 1995); United States v. Dyer, 910 F.2d 530,

533 (8th Cir.), cert. denied, 498 U.S. 907 (1990).

A witness commits perjury if he "'gives false testimony

concerning a material matter with the wilful intent to provide

false testimony, rather than as a result of confusion, mistake, or

faulty memory.'" United States v. Berndt, 86 F.3d 803, 810 (8th

Cir. 1996) (quoting United States v. Dunnigan, 507 U.S. 87, 94

(1993)). The district court must review the evidence and make

independent finding, by a preponderance of the evidence, of perjury
 6

We hold that the district court was not clearly erroneous in

making the predicate findings to the sentence enhancement. On

remand, the district court is free to reevaluate its sentencing

determination in light of the evidence presented at the rehearing.

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in order to impose a sentence enhancement for obstruction of

justice. See Berndt, 86 F.3d at 810; United States v. Darden, 70

F.3d 1507, 1548 (8th Cir.), cert. denied, 116 S. Ct. 1449 (1996).

We review a district court finding of obstruction of justice for

clear error. See United States v. Big Crow, 74 F.3d 163, 166 (8th

Cir. 1995).

At the sentencing hearing, the trial court found that, at a

minimum, several of Thomas's statements under oath were "outright

fabrications," that he "lied about those matters," and that "those

[matters] were material to the charges that were before the court."

Sentencing Tr. at 34. Much of the trial testimony made by Thomas

stood in direct contradiction with Powells' account of events.

Police observations and the evidence found in the motel room

further undermined Thomas's statements. Given this weight of

evidence against Thomas, the district court was not clearly

erroneous in concluding that Thomas had committed perjury and,

therefore, should receive a sentence increase for obstruction of

justice.6

VI.

For the reasons stated, we affirm the district court in all

respects except Thomas's conviction under 18 U.S.C. § 924(c). We

vacate his sentence and remand the case to the district court for

resentencing.
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A true copy.

Attest:

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