2012 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-21-2012


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D ock e t N o . 11-2037

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 11

- 2037

UNITED STATES OF AMERICA

v.

AMIFA S. KNIGHT,

Appellant

On Appeal from the District Court of the V irgin Islands

(Division of St. Croix) (D. C. No. 1

- 09

- cr

- 00005

- 001 ) District Judge: Honorable Raymond L. Finch

Argued on December 6, 2011

Before: F ISHER , GREENAWAY, JR. and ROTH, Circuit

Ju dges

(Opinion fil ed : November 2 1 , 2012 )

Natalie Nelson Tang How, Esquire (Argued) 27 & 28 King Cross Street2 Phoenix Court Business Complex

Christian sted , St. Cr o i x , VI 00820

Counsel of Appellant

Alphonso G. Andrews, Jr., Esquire (Arg ued) Office of the Unites States Attorney 1108 King Street, Suite 201 Christiansted, St. Croix, VI 00820

Counsel for Appellee

O P I N I O N

ROTH

, Circuit Judge :

Amifa Knight appeals the judgment s of conviction and

sentence on charges of pe rjury arising out of statements she made at a suppression h earing in the District Court of the Virgin Islands. She seeks review of the District Cou rt ’s ruling on an evidentiary issue, its denial of her motion for

acq uittal , and its application of the Unit ed States Sente ncing

Guidelines. We find no error in the District Court’s determinations on these issues, and we will therefore affirm.

I. BACKGROUND3 On May 12, 2008, Amon Thomas and Shadrock Frett engaged in a violent gun fi ght at Frett’s apartment in St. Croix, United States Virgin Islands. Both men sustained gunshot wounds which resulted in their hospitalization at Juan Luis Hospital in St. Croix. Thomas, less severely injured than Frett, was discharged on May 16, 2008. Five days later, on Ma y 2 1, 2008, at approximately 3:5 0 a.m., six masked gunmen entered the hospital, located Frett , and shot

him to death.

A polic e investigation revealed that the gunmen entered the hospital through an employee entrance with the benefit of an employee “ swipe ca rd, ” proceeded directly to Frett’s room, committed the murder, and left in under three minutes. Based on these circumstances, investigators suspected that a hospital employee may have been involved in the crime in some capacit y. They examine d the hospita l’s electronic patient record s system, which showed that Knight, an admissions clerk, had accessed Frett’s records at 7:24 p.m.

on May 20, 2008, just hours before he was killed. Investigators subsequently obtained Knight’s cell phone records, w hich indica ted that she had telephone conversations with Thomas’s brother, Halik Milligan, at 7 p. m

. and 7:30 p.m. that same evening

.

On January 26, 2009, Thomas Drummond, a special agent from the Federal Bureau of Investigation , and Dino Herbert, an officer of the Virgin Islands Police Department

, jointly interviewed Knight about the hospital shooting. During her questioning, Knight stated to the investigators that she had no prior knowledge that someone would enter the hospital and kill Frett. She claimed that s he did not know Frett’s room number on May 20, 2008, and that she did not4 remember accessing the hospital’s record s system to ascertain it that night. She admitted that Milligan was her boyfriend but denied that she had any phone conversations with him on May 20 th

. She further stated that she never disclose d Frett’s

roo m number to anyone

.

The following day, January 27, 2009, Herbert and Drummond obtained a warrant and arrested Knight for making false statements to a federal agent on the basis of this

in terview. They again questioned her, but this time confronted her with her cell phone records

, showing that she

had been in contact with Milligan on the night of Frett’s

murder

, and with a printout from the hospital ’s record s system

, indicating that she ha d looked up hi s room number that night . Faced with this evidence, Knight admitted that, prior to May 20, 2008, Milligan had asked her whether she
could obtain Frett’s room number and that she informed him

that she could. She stated that at 7 p.m. on May 20 th

, Milligan called her and specifically asked her for Frett’s room number. Knight admitted that she then access ed the

hos pital ’s records system to determine Frett’s location, and that at 7:30 p.m., she called Milligan to inform him that she

had this in formation. According to Knight, Milligan came to the hospital approximately one hour later, at which point she gave him Frett’s room number. She admitted that she had

been aware of a plan to kill Frett prior to the time that it was

carried out

.

On Febr uary 19, 2009, Knight was indicted on six counts of making false statements to a federal officer, in5 violation of 18 U.S.C. § 1001(a)(2). 1 She moved to suppress

the statements she had made following her arrest on January

27 th , arguing that they were coerc ed and that she had not been properly advised of her Miranda rights. A hearing was held on Knight’s suppression motion on April 16, 2009, at

which s he testified about her January 27 th interrogation

. She

also made a number of statements concerning events at the hospital on the night of Frett’s murder. First, she stated that she had accessed Frett’s electronic hospital records three or four times on the evening of May 20, 2008. Second, she

claimed that she did so in order to determine his room number

so t hat she could provide it to friends and family of Frett’s who wanted to visit him and whose telephone calls had been transferred to her by the hospital’s telephone operator. Third,

she claimed that Milligan was a friend of Fr ett’s and wanted

to visit him at the hospital.

On August 13, 2009, the Government issued a superseding indictment in Knight’s case, charging that each of these three statements constituted perjury, in violation of 18 U.S.C. § 1621(1). A charge of conspiring in Frett’s

1 Knight was specifically charged with falsely stating to Special Agent Drummond that (1) she di d not know on May 20, 2008, that anyone was planning to enter the hospital to kill Frett; (2) on May 20, 2008, she did not know Frett’s hospital room number; (3) she did not on May 20, 2008, make calls to or receive calls from two telephone numbers assigne d to Milligan; (4) she did not speak with Milligan on May 20, 2008; (5) she did not recall whether she searched the hospital’s records system on May 20, 2008, to ascertain Frett’s room number; and (6) she had not disclosed Frett’s room number to anyone.6 murder, in vio lation of 14 V.I.C. § § 551 (1) and 922(a) (1)

,

was also added. Knight was ultimately acquitted on the six original charges of making false statements to a federal agent

and on the conspiracy charge. She was convicted

, however

,

on the three perjury charges and sentence d to 36 months imprisonment

. 2 Knight now appeals, arguing that the District

Court erred in (1) admitting irrelevant and unfairly prejudicial

evide nce pertaining to the May 12 th shooting at Frett ’s
apartment and the May 21 st shooting at the ho spital

, (2)

den ying her motion for acquittal as untimely , and (3) sentencing her pursuant to a provision of the United States

Se ntencing Guideline s that is applicable only to perjury that is in respect to a crimi nal offense.

II. DISCUSSION

The District Court had jurisdiction under 48 U.S.C. § 1612, and we have jurisdiction under 28 U.S.C. § 1291. We will review the District Court’s decision regarding the admissibility of evidence for abuse of discretion. United States v. Serafini , 233 F.3d 758, 768 n. 14 (3d Cir. 2000). Our review of the dismissal of Knight’s motion for acquittal as untimely, however, is plenary. United States v. Mike , 655 F.3d 167, 174 (3d Cir. 2001). Finally, with respect to the District Court’s factual finding in applying the Unit ed States Sentencing Guidelines, our inquiry is whether it was clearly

2 Knight was also charged with one additional count of perjury, which related to her testimony at the suppression hearing that she never expressed to anyone that she had prior knowledge of a plan to kill Frett at the hospital. She was found not guilty on th is charge.7 erroneous. See United States v. Ali , 508 F.3d 136, 143 (3d Cir. 2007).

A. Admission of Evid

ence Related to the May 12 th & May 21 st Shootings

Prior to trial, Knight moved in limine to e xclude evidence regarding both the gun battle between Frett and Thomas on May 12, 2008, and the subsequent killing of Frett on May 21, 2008, at the hospital. The motion was denied

, and the jury heard evidence of both of these events

. Knight

contends on a ppeal that this evidence was irrelevant to the perjury charges and therefore should have been excluded

under Rule 401 of the Federal Rules of Evidence. She further argues that even assuming its relevancy, the evidence was unfairly prejudicial and thus sh o uld have been excluded on

the basis of Rule 403.

We conclude, however, that t he evidence was not irrelevant to the perjury charges because it put into context why Knight was accessing Frett’s hospital records and the nature of her relationship with Milli gan and through him with

Thomas. This inclusion of evidence of both shootings helped to explain why Knight committed perjury by lying about her access to the electronic hospital records and the reasons for

that access.

Moreover, Knight’s argument overl ooks the fact that

she was concurrently on trial for conspiracy to murder Frett

. In order to establish her guilt on this charge, the g overnment
had to prove that she an d at least one other person (1) intentionally entered into an agreement (2) with the pu rpose of killing Frett (3) wi th malice aforethought. See 14 V.I.C. §§8 551(1) , 922(a)(1); see also United States v. Reyeros , 537 F.3d 270, 277 to 78 (3d Cir. 2008) (setting forth elements of conspiracy). The g overnment sought to meet this burden by showing that Knight participated in a plot to kill Frett by obtaining hi s hospital room number and disclosing it t o Milligan so that Frett’s assailants could locate him and complete their mission. Any evidence that has a tendency t o make this account more probab le than it otherwise would be

is relevant. See Fed. R. Evid. 401. E vidence related to the May 12 th shooting at Fret t’s apartment i s also relevant because it suggests a motive for the conspiracy to kill Frett and provides a link between that conspiracy an d Knight.

Finally , we reject Knight’ s contention that evidence of

these s hootings s hould have been excluded on account of

unfair preju dice

. “ Unfair prejudice means an undue tendency to suggest decision on an improper basis, commonly, though

not necessa rily, an emotional one.” Fed. R. Evid. 403 ( advisory committee ’s note )

. Relevant evidence may be

excluded for this reason only if its “probative value is substantially outweighed by a danger of unfair prejudice.”

Fed. R. Evid. 403 (emphasis added)

. In d etermining whether evidence must be excluded as unfairly prejudicial, we owe “considerable deference” to the judgment of the District
Court, United States v. Guerrero , 803 F.2d 783, 785 (3d Cir. 1986), and we will not disturb its ruling unless it was
“arbi trary or irrational.” United States v. Universal Rehab. Servs. (PA), Inc. , 205 F.3d 657, 665 (3d Cir. 2000) (en banc). As we have outlined, evidence of both shootings was relevant

to all the charges against Knight in significant ways. Knight contends, h owever
, that this relevance is trumped by the risk

that the evidence might have led the jury to convict her in

o rder to punish someone for the shootings rather than because9 of a conclusion t hat she was guilty of perjury. We find no merit in this argument. With respect to the May 12 th shooting at Frett’s apartment, Knight makes no claim that the Government alleged or even implied that she had any involvement, and we therefore see no risk that the jury would have sought to punish her for that incident. Reg arding the May 21 st hospital shooting, evidence of that shooting is critical to explain the perjury. Moreover, to the extent that the jury was motivated to convict Knight in order to punish someone for that shooting, it could have found her guilty on

the conspiracy charge. We see no logic in Knight’s argument

that t he jury would acquit her on th e conspiracy charge but punish her for the underlying events by convicting her of perjury.

We conclude that evidence pertaining to the May 12 th and May 21 st shoot ings was relevant and not unfairly prejudicial. Its admission at trial was therefore appropriate.

B. Denial of Knight’s Motion for Acquittal

Knight also claims that the Di strict Court erred in denying her motion for acquittal , which she sought after the jury returned its verdict. The District Court denied that motion on the grounds that it was untimely. A motion for a judgment of acquittal sought after a jury verdict must b e filed

within 14 days after the verdict or after the court discharges the jury, whichever is later. Fed. R. Crim. P . 29(c)(1). This time limit may be extended for good cause before its expiration

, or even afterwards if the defendant ’s failure to act

was due to excusable neglect. Fed R. Crim. P. 45( b)(1). A district court has no j uris diction, however, to consider a10 motion for acquittal that is untimely

. United States v. Gaydos , 108 F.3d 505, 512 (3d Cir. 1997).

The jury returned its verdict in Knight’s case on December 22, 2009 , meaning that her motion for acquittal initially nee ded to be filed by Janua ry 5, 2010

. On December 29, 2009, s he filed a motion for an extension of the time to

file it . T he District Court granted this request and gave her

until 30 days after receipt of the trial transcript to make her filing. The transc ript was available on March 16, 2010, rendering Knight’s motion due by April 15, 2010. She did

not submit it until July 9, 2010, 85 days beyond the due date. She also failed to make any showing of excusable neglect

. Knight’s motion was accordingly untim ely, and the District Court was without jurisdiction to consider it. We conclude

therefore that the denia l of her motion was appropriate.

C. Application of § 2J1.3(c) of the United States Sentencing Guidelines

Sentences for perjury convictions such as Knig ht’s are governed by § 2J1.3 of the United States Sentencing Guidelines. In the ordinary case , that provision dictates a base offense level of 14 and a co rresponding sentence range

of 15 to 21 months imprisonment

. U.S.S.G. § 2J1.3(a).

Where perjury is “ in respect to a criminal offense,” however,

it instructs that the defendant be sentenced pursuant to §

2X3.1 as if she were an “Accessory After the F a ct” to that

criminal o ffense. Id. at § 2J1.3(c). The District Court applied

this cross

- reference to Kni ght in light of its finding that her perjurious statements were in respect to the crime of f irst degree murder, and as a result determined that the Guidelines11 range was 60 months. 3 Knight contends that her perjury was not in respect to the offense of firs t degree murder and that

her sentence must therefore be vacated.

Other courts have found that “[p]erjury is in respect to

a criminal offense where the defendant knew or had re ason to know, at the time of [her] perjury, that [her] testimony

concerned such a criminal offense.” United States v. Leon

Reyes , 177 F.3d 816, 824 (9th Cir. 1999) (citation and internal quotation marks omitted); see also United States v.

Flemmi , 402 F.3d 79, 9 6 n.28 (1st Cir. 2005); United States v.

Blanton , 281 F.3d 771, 776 (8th C ir. 2002); United States v. Leifson , 568 F.3d 1215, 1220 (10th Cir. 2009). We agree with this interpretation of § 2J1.3(c) of the Sentencing Guidelines and adopt it here. Applying this standard, we find that Knight’s perjury was in respect to Frett’s mur der. Her perjur y convictions related to her testimony that (1) she accessed Frett’s hospital records three or four times on the evening of May 20, 2008; 4 (2) she did so in order to be able to

3 The Guidelines dictate that the base offense level for an accessory after the fact be “6 levels lower than the offense level for the underlying offense” but “not more than level 30.” U.S.S.G. § 2X3.1(a). The base offense level for the

underl ying offense here, first degree murder, is 43, i d. at § 2A1.1(a), and 6 levels less would be 37, so the maximum offense level of 30 and its corresponding sentence range of 97 to121 months would be triggered. However, because the crime of perjury has a sta tutory maximum sentence of 60 months, 18 U.S.C. § 1621, that limit applies here.

4 The Government’s theory was that Knight falsely claimed to have accessed Frett’s records three or four times,12 provide his room number to friends and family who were making t elephone calls to the hospital because they wanted to visit him; and (3) that Milligan was a friend of Frett’s and called on May 20, 2008, because he wanted to visit Frett in the hospital. S he gave this testimony at a suppression hearing in criminal proce edings concerning charges that she had made

false statements to f

ederal agents specifically investigating

Frett ’s murder. All of the testimony, moreover, was given in response to questions which pertain ed to events at the hospital on the very night that F rett was killed and which were clearly being asked to establish facts surrounding that crime. Finally, based on her initial interview by investigators on January

26 th

, her post

- arrest interrogation on January 27 th , and the

details of the charges of making false statements to a federal
agent on which she had already been indicted, Knight was

aware of the g overnment’s theory that Frett’s murder had been facilitated by her obtaining his room location from the hospital’s record s system and disclosing it to Mil ligan . For these reasons, we conclude that Knight knew or had reason to know that the testimony underlying her perjury convictions
concerned Frett’s mu rder. Accordingly, the District Court did not commit clear error in finding that the perjury was in

rel ation to that criminal offense

.

rather than just once, in order to corroborate her claim that she had done so in response to multiple inquiries from his friends and family members and to mask the conspicuousness of her single instance of access in the short interval between two phone calls with Milligan.13 III. CONCLUSION

For the reasons stated above , we will affirm the District Court’s judgment s of conviction and sentence.