2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-29-2011

USA v. Claudelle McMahill

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2799

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2799

_____________

UNITED STATES OF AMERICA

v.

CLAUDELLE MCMAHILL, 

Appellant

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2:06-cr-00216-005)

District Judge: Hon. Joy Flowers Conti

_____________

Submitted Under Third Circuit LAR 34.1(a)

October 26, 2011

Before: FISHER, VANASKIE and ROTH Circuit Judges

(Filed: December 29, 2011)

_____________

OPINION

_____________
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VANASKIE, Circuit Judge.

Claudele McMahill1appeals her conviction and sentence for mail fraud and 

conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341 and 371. For the 

reasons set forth below, we will affirm.2

I.

Because we write primarily for the parties, we assume familiarity with the case 

and discuss only those facts necessary to our decision. In 2003, Claudele McMahill and 

Lacy Tilley were romantically involved. At that time, Tilley was vice president of Penn 

Window Cleaning, a company owned by Steve Gaber. In January 2004, McMahill began 

working at Acme Building Service, a janitorial services company which Gaber also 

owned. McMahill was hired to work on increasing the company‟s sales as well as to 

prepare the company for its eventual sale to Tilley. In April 2004, Tilley purchased 

Acme‟s assets, and with Acme‟s former clients and personnel, continued Acme‟s 

business operation under a new company name – United Building Maintenance 

(“UBM”).

Following the purchase, Tilley informed his employees that UBM could not afford 

to continue to pay them the salaries they made with Acme. Tilley told them that if they 

wanted to continue working for UBM, they would have to file for unemployment 

compensation, and that UBM would then pay them “under the table” to cover the 

 

1 Although the case caption as docketed indicates that McMahill‟s first name is 

“Claudelle,” McMahill spells her name “Claudele.”

2

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3

difference between the unemployment benefits they received and what they had earned 

working for Acme. McMahill, along with several other former Acme employees, 

participated in the scheme and, while working for UBM, fraudulently claimed and 

received unemployment benefits.

McMahill and Tilley were ultimately jointly indicted and tried in the Western 

District of Pennsylvania on several counts of mail fraud and conspiracy to commit mail 

fraud in violation of 18 U.S.C. §§ 1341 and 371. The jury found McMahill and Tilley 

guilty on all charged counts. McMahill was sentenced to a prison term of 20 months.

McMahill raises two challenges on appeal. First, she claims that the District Court 

abused its discretion in denying her motion to sever. Second, she argues that the District 

Court erred in enhancing her offense level for obstruction of justice pursuant to United 

States Sentencing Guidelines (“U.S.S.G.”) § 3C1.1. We find both claims to be without 

merit.

II.

A. Motion for Severance

At trial, McMahill and Tilley were separately represented by counsel, until Tilley, 

after the close of the government‟s case, decided he wanted to proceed pro se. 

McMahill‟s counsel subsequently moved to sever his client‟s case from Tilley‟s pursuant 

to Federal Rule of Criminal Procedure 14, arguing that Tilley‟s self-representation was 

unfairly prejudicing McMahill. The District Court disagreed that severance was 

warranted and denied the motion. McMahill argues that the District Court erred in 

denying the motion for severance.
4

Rule 14(a) permits a court to sever defendants‟ trials where consolidation “appears 

to prejudice a defendant.” Fed. R. Crim. P. 14(a). We have recognized that severance 

should be granted “only if there is a serious risk that a joint trial would compromise a 

specific trial right of one of the defendants, or prevent the jury from making a reliable 

judgment about guilt or innocence.” United States v. Urban, 404 F.3d 754, 775 (3d Cir. 

2005) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)). A defendant seeking 

to sever “bear[s] a heavy burden and must demonstrate not only abuse of discretion in 

denying severance, but also that the denial of severance would lead to clear and 

substantial prejudice resulting in a manifestly unfair trial.” Id. (citations and internal 

quotation marks omitted).

McMahill asserts that Tilley‟s “testimony and closing argument could not have 

been more disastrous for [her].” (McMahill‟s Br. at 14.) McMahill appears to argue that 

she was tainted by Tilley‟s general demeanor at trial. She accuses Tilley of being an 

evasive and paranoid witness, and also cites his expression of contempt for the federal 

government and his remarks that a number of individuals, including McMahill‟s exhusband, Gaber, and the prosecutor, were trying to cause trouble for Tilley.

To the extent such allegedly prejudicial conduct or statements occurred during 

Tilley‟s testimony, it is not at all clear that they bear any relation to the decision to 

proceed pro se, which was the purported basis of McMahill‟s motion for severance. 

Moreover, we think that any taint that may have arisen as a result of the jury‟s perception 

of Tilley‟s demeanor or character would have prejudiced only Tilley himself, and could 

not reasonably have affected the jury‟s view of McMahill or her guilt, especially in light 
5

of the District Court‟s specific instruction to the jury that “the personalities and the 

conduct of counsel, and here I might add, Mr. Tilley, when he was acting as his own 

counsel, are not in any way an issue.” (A. 2157.)

McMahill further asserts that she was prejudiced by Tilley‟s specific testimony 

concerning her. She states that Tilley was “evasive [on cross-examination] as to 

[McMahill‟s] role at UBM, denying that she was an employee while simultaneously 

claiming that she worked there.” (McMahill‟s Br. at 7.) Tilley‟s testimony was not 

evasive – it was simply his and McMahill‟s version of events, i.e., McMahill worked for 

UBM, but was not receiving remuneration for any of her services. And, if his articulation 

of McMahill‟s own defense was evasive, the record makes clear that it was not any more 

evasive than her own testimony on the issue.

McMahill also asserts that she was prejudiced by Tilley‟s testimony that following 

his decision to purchase Acme, he sent McMahill there to act “sort of as a spy” for him. 

(A. 1323.) McMahill does not explain why she believes Tilley‟s reference to her as his 

“spy” at Acme would be so damaging, and we are unable to agree that it would have 

caused her any prejudice. McMahill further complains that Tilley‟s testimony “identified 

her as a corporate officer” and that he introduced a UBM organizational chart that

referenced McMahill. We cannot agree that this testimony prejudiced McMahill in view 

of the other substantial evidence, including McMahill‟s own testimony, that McMahill 

worked for UBM while she claimed and collected unemployment benefits. Furthermore, 

the specific allegation of prejudice here is completely undercut by the fact that McMahill 

herself testified that she held herself out to be vice president of UBM. While Tilley‟s 
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“identification” of McMahill as a corporate officer may have been unfavorable to 

McMahill‟s defense that she was not working for UBM, it was certainly not more 

unfavorable than McMahill‟s own admission that she held herself out to be UBM‟s vice 

president.

McMahill also claims that she was prejudiced when Tilley “opened the door” to 

evidence concerning his involvement in an unrelated embezzlement scheme for which 

Tilley was also under indictment. The prosecutor‟s questioning, however, did not 

implicate McMahill in the alleged embezzlement scheme and the District Court 

specifically instructed the jury that, to the extent Tilley denied engaging in any 

embezzlement, there was no evidence in the trial that Tilley committed embezzlement. 

Even if we assume that the jury impermissibly construed the government‟s line of 

questioning as evidence that Tilley committed embezzlement, the District Court 

instructed the jury to compartmentalize the evidence as to each defendant, and there is no 

reason to think that the jury would not have been able to follow that instruction.

In sum, McMahill has not met her burden to show that the denial of severance 

caused “clear and substantial prejudice resulting in a manifestly unfair trial.” Urban, 404 

F.3d at 775 (internal quotation marks omitted). Accordingly, we must reject her claim 

for relief.

B. Obstruction of Justice Sentence Enhancement

In its pre-sentence investigation report, the Probation Office calculated 

McMahill‟s total offense level to be 13, which, with her criminal history category of I, 

resulted in an advisory guideline range of 12 to 18 months‟ imprisonment. The 
7

government objected to the Probation Office‟s offense-level calculation on the ground 

that the office had not applied an “obstruction of justice” enhancement pursuant to 

U.S.S.G. § 3C1.1. The District Court ruled that a two-level obstruction of justice 

enhancement was appropriate, finding that McMahill perjured herself in testifying that

the checks she received from UBM during the time the government contended that she 

worked for the company while fraudulently receiving unemployment compensation 

constituted either the repayment of money she had loaned to Tilley or expense 

reimbursements. The two-level enhancement resulted in an increased guideline range of

18 to 24 months. The District Court sentenced McMahill to 20 months‟ imprisonment 

and 3 years‟ post-release supervision.

We have explained that “to trigger application of § 3C1.1 on perjury grounds, a 

defendant must give „false testimony concerning a material matter with the willful intent 

to provide false testimony.‟” United States v. Miller, 527 F.3d 54, 75 (3d Cir. 2008) 

(quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)). The District Court

concluded that McMahill‟s testimony was false in light of the absence of credible 

evidence substantiating the existence of any loan from her to Tilley, as well as the 

extensive evidence demonstrating that McMahill was in fact working for UBM during the 

period she collected unemployment insurance. The District Court further found the 

testimony to be material, in that the testimony, if credited, bolstered McMahill‟s defense 

that she was not being paid for her services at UBM. Lastly, the District Court found that 

McMahill gave the testimony with the willful intent to provide false testimony, noting 

that it was not the type of testimony that could be given as a result of confusion or 
8

mistake. See Dunnigan, 507 U.S. at 94-95 (distinguishing perjured testimony from false

testimony given as a result of “confusion, mistake, or faulty memory.”)

McMahill argues that the District Court erred in applying the two-level obstruction 

of justice enhancement because “[t]here was no evidence introduced that [the] cash loan 

never occurred.” (McMahill‟s Br. at 16.) We review a district court‟s determination that 

a defendant committed perjury for clear error. See United States v. Cusumano, 943 F.2d 

305, 315 (3d Cir. 1991). We will not reverse the court‟s determination unless we are 

“left with the definite and firm conviction that a mistake has been committed.” See 

United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (internal quotation mark 

omitted).

It is well-established that the facts underlying a sentencing enhancement, 

including an enhancement for the obstruction of justice, must be proven by a 

preponderance of the evidence. See United States v. Johnson, 302 F.3d 139, 154 (3d Cir. 

2002); United States v. Belletiere, 971 F.2d 961, 965 (3d Cir. 1992). In this case, there 

was ample evidence that McMahill was a compensated employee of UBM while 

receiving unemployment compensation benefits. The absence of evidence that she had 

not loaned cash to Tilley did not preclude the District Court from disbelieving McMahill. 

Accordingly, the District Court did not clearly err in finding that McMahill committed 

perjury when she testified that the payments she received from the company were either 

loan repayments or expense reimbursements.

III.

For the foregoing reasons, we will affirm the judgment of the District Court.