United States v. Bogan, Mark ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-2269 & 00-2723
United States of America,
Plaintiff-Appellee,
v.
Mark Bogan and Tony F. Calhoun,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 99 CR 91--Barbara B. Crabb, Chief Judge.
Argued April 10, 2001--Decided September 25, 2001
Before Coffey, Rovner, and Diane P. Wood,
Circuit Judges.
Coffey, Circuit Judge. On September 16,
1999, a federal grand jury returned a
two-count indictment charging the
appellants Mark Bogan and Tony Calhoun,
prisoners at FCI-Oxford, a federal prison
in Adams County, Wisconsin, with using a
deadly and dangerous weapon to assault a
corrections officer, 18 U.S.C. sec.
111(a), and assaulting a corrections
officer with the intent to commit murder,
18 U.S.C. sec. 113(a). After a two-day
jury trial, the jury returned a verdict
of guilty on both counts. Bogan and
Calhoun appeal their convictions,
alleging a constellation of errors
throughout the proceedings. We affirm.
I. Factual Background
On September 6, 1999, Corrections
Officer Matthew Degenhardt conducted a
random cell inspection in the Waupaca
Housing Unit at FCI-Oxford, where Bogan
and Calhoun both were confined.
Degenhardt conducted the inspection
shortly after he began his shift at 4:00
p.m. while many inmates in the unit were
away on various work and activity
assignments in order that he might avoid
confrontations with the inmates. Noting
that Bogan was absent from his cell,
Degenhardt proceeded to search it. In the
cell, the corrections officer found three
large coffee-creamer containers filled
with sugar, two one-pound bags of
unopened sugar, and more than two bags of
brown sugar, all of which are commonly
used to make intoxicants in prison and
thus contraband. In addition, Degenhardt
discovered a number of postage stamp
booklets, commonly used as currency or
barter in the purchase of prison-made
intoxicants and also contraband.
Degenhardt seized the contraband listed
and returned to the officer station,
which is located within the common area
of the Waupaca Unit, and proceeded to
inventory the confiscated items.
Officer Degenhardt commenced counting
the stamps in the station, but before he
could complete the task, he noticed that
it was time for the inmates to return
from their work and activity assignments.
Officer Degenhardt placed the stamps in a
desk drawer, locked the officer station,
and waited near the housing unit’s door,
monitoring the inmates as they returned.
After the inmates had returned,
Degenhardt returned to the officer
station, in order to complete the
inventory of the materials seized. Bogan
approached Degenhardt at the station and
told him that he wanted to talk, and at
this time Degenhardt observed that
Calhoun was standing nearby. A nearby
inmate, Miquel Jackson, heard Bogan
remark to another inmate that he was
going to "steal on," or beat, Degenhardt
unless Degenhardt returned the items
seized from his cell.
Without responding to Bogan’s request,
Officer Degenhardt returned to the
officer station and sat down at the desk.
Bogan followed Degenhardt into the
station. Once within the station, Bogan
asked Degenhardt in a hostile tone,
"where are my stamps?" Degenhardt did not
reply. Bogan then picked up and threw the
office chair across the room and dumped
the seized sugar onto the desk. Concerned
for his safety, Degenhardt activated his
body alarm and twice told the control
center that he needed immediate
assistance. Bogan again demanded his
stamps, and Degenhardt once again
declined to respond. At this time, Bogan
grabbed Degenhardt by the shirt and threw
him to the floor. While ducking his head
in an attempt to protect himself,
Degenhardt was able to observe Calhoun
enter the station. Over the course of the
next minute, Degenhardt received numerous
blows to his head and face, resulting in
cuts, bruises, tooth damage, as well as a
fractured left-eye socket. The
altercation ended when Bogan and Calhoun
abruptly terminated their attack and fled
the scene. Degenhardt later identified
Bogan and Calhoun as the two prisoners
who had violently assaulted him.
During the attack, inmate Kelly Hilpipre
had been sitting in a phone booth,
approximately ten feet away from the
officer station and observed the assault.
Hilpipre saw the two men beat Degenhardt
with a telephone and a clothes iron,
though at the time of the incident he did
not know the names of the prisoners
involved in the attack. While having a
telephone conversation with his family,
which was tape recorded and later played
for the jury, Hilpipre described the
attack and exclaimed that "they’re trying
to kill him." During the investigation
five photographs of inmates were
exhibited to Hilpipre, one of which was
of Calhoun and two of which were of
Bogan. Hilpipre identified Bogan and
Calhoun as the inmates he had observed
assaulting and beating Officer
Degenhardt. He further identified Bogan
as the inmate who had assaulted Officer
Degenhardt with a clothes iron. During
Bogan’s and Calhoun’s trial, Hilpipre
reaffirmed his identification of Bogan
and Calhoun as the inmates involved in
the attack upon Degenhardt. He went on to
describe the severity of the attack and
explained his tape-recorded exclamation
in more detail, testifying that he
believed that Bogan and Calhoun were
trying to kill Degenhardt:
When I seen [sic] him being struck in the
head and being subdued from the back and
the repeated blows to the head by what I
thought were deadly weapons, in my
opinion that’s when I realized that this
wasn’t just a fight or an ordinary, or if
there is such a thing as an ordinary
assault.
Other physical evidence corroborated
Hilpipre’s and Degenhardt’s
identifications, including Calhoun’s
wrist watch with a broken wrist band,
which was discovered by investigators in
the officer station immediately following
the attack. Additionally, investigators
found a blood-stained t-shirt bearing
Bogan’s name tag stuffed in a nearby
trash can. DNA analysis confirmed that
the blood on the t-shirt was
Degenhardt’s.
Ten days after the attack, a grand jury
sitting in the Western District of
Wisconsin indicted both Bogan and Calhoun
with assaulting a corrections officer
with a deadly weapon and indicted Bogan
also with assaulting a corrections
officer with the intent to kill. Prior to
trial, Bogan and Calhoun moved to
suppress the identification testimony of
Hilpipre on the grounds that the
photographic lineup had been unduly
suggestive./1 Bogan moved to exclude
Hilpipre’s lay opinion testimony that the
defendants were "trying to kill"
Degenhardt, arguing that it did not meet
the requirements of Federal Rule of
Evidence 701. The court overruled the
objection and admitted this testimony,
finding that Rule 701 allowed a lay
witness to provide an opinion regarding a
defendant’s intent. Furthermore, Bogan
and Calhoun moved to exclude evidence
that the sugar seized from their cell was
used to make wine and the postage stamps
were used in the prison as currency to
purchase, among other things, prison-made
wine. The district court also denied this
motion, ruling that the evidence was
relevant to supplying a motive for the
defendants’s assault on Officer
Degenhardt and was not so prejudicial as
to outweigh its significant probative
value.
After a two-day trial, a jury convicted
the defendants on all counts. During
sentencing, the district court found,
among other things, that the defendants
had used a dangerous weapon (namely, the
clothes iron), U.S.S.G. sec. 2A2.2(b)
(2)(B), in the assault and had inflicted
serious bodily harm upon Officer
Degenhardt, U.S.S.G. sec. 2A2.1(b)(1)(B).
Each guideline application resulted in a
separate four-level upward adjustment in
offense level, resulting in an eight-
level total adjustment for each
defendant. Based upon Bogan’s and
Calhoun’s resulting adjusted offense
levels and criminal history category, the
court sentenced Bogan to a prison term of
125 months and Calhoun to a term of
imprisonment of 120 months, to be served
consecutively to those terms that they
were presently serving. The
defendantsappeal.
II. Issues
Bogan raises three issues in this
appeal. Initially he contends that the
trial court abused its discretion in
admitting Hilpipre’s testimony that he
was "trying to kill" Degenhardt as set
forth in Federal Rule of Evidence 701.
Second, Bogan claims that the evidence
was insufficient to sustain his
conviction. Finally, Bogan claims that
the trial judge committed error when she
found at sentencing that Bogan had used a
deadly weapon and furthermore that the
court’s finding that Degenhardt had
sustained severe physical injury was also
in error. Calhoun raises only one
issue:/2 that the district court erred
in admitting evidence pursuant to Federal
Rule of Evidence 404(b) of his prior
wine-making activity.
III. Discussion
A. Hilpipre’s Opinion Testimony
Bogan initially contends that the trial
court abused its discretion in admitting
Hilpipre’s exclamatory statement that he
believed Bogan and Calhoun were "trying
to kill" Officer Degenhardt. The decision
of "’whether to admit testimony under
Rule 701 is committed to the sound
discretion of the trial court and a
ruling will not be reversed absent a
finding that the trial court abused its discretion.’"
United States v. Stormer, 938 F.2d 759,
761 (7th Cir. 1991) (quoting United
States v. Towns, 913 F.2d 434 (7th Cir.
1990)) (internal citations omitted). A
determination made by a trial judge
regarding the admissibility of evidence
"’is treated with great deference because
of the trial judge’s first-hand exposure
to the witnesses and the evidence as a
whole, and because of [her] familiarity
with the case and ability to gauge the
likely impact of the evidence in the
context to the entire proceeding.’"
United States v. Wash, 231 F.3d 366, 371
(7th Cir. 2000) (quoting United States v.
Torres, 977 F.2d 321, 329 (7th Cir.
1992)).
Rule 701 of the Federal Rule of
Evidences provides:
If the witness is not testifying as an
expert, the witness’ testimony in the
form of opinions or inferences is limited
to those opinions or inferences which are
(a) rationally based on the perception of
the witness, (b) helpful to a clear
understanding of the witness’ testimony
or the determination of a fact in issue,
and (c) not based on scientific,
technical or other specialized knowledge
within the scope of Rule 702.
Bogan does not contest the fact that
Hilpipre was able to clearly view the
altercation in the officer station and
also that his opinion was rationally
based on his observation of the incident.
Similarly, Bogan also does not challenge
the court’s ruling that Hilpipre’s
exclamation was helpful to the jury.
Bogan’s acknowledgments thus satisfy the
requirements of Rule 701 as previously
stated. Bogan’s claim that the testimony
should have been excluded rests upon a
novel, though unconvincing, argument. The
gist of Bogan’s argument is that
Hilpipre’s statement would be too helpful
to the jury--that Hilpipre himself
concluded that Bogan intended to kill
Degenhardt, and thus did not allow the
jury to draw that conclusion for itself.
According to Bogan’s theory, then, any
statement describing a third person’s
observations that forms the basis for a
conclusion regarding a defendant’s
thoughts and motivations would be
presumptively inadmissible. Bogan offers
no case law in support of his theory that
lay opinions regarding mental states are
presumptively inadmissible. Indeed, such
an argument runs contrary to case law
precedent. We have previously held that
"lay opinion testimony as to the mental
state of another is indeed competent
under [Rule 701]." United States v.
Guzzino, 810 F.2d 687, 699 (7th Cir.
1987); see also Bohannon v. Pegelow, 652
F.2d 729, 731-32 (7th Cir. 1981).
Bogan offers another reason in support
of his argument that the experienced and
competent trial judge abused her
discretion in admitting Hilpipre’s
statement. Bogan speculates that while
Hilpipre was speaking on the phone he
realized that his conversation was being
recorded, and that, as he observed the
attack, Hilpipre consciously decided to
proclaim that Bogan was "trying to kill"
Degenhardt in order that it might later
help him to strike a bargain with the
government to reduce his sentence in
exchange for his testimony. Bogan’s
speculation borders on the fantastic. To
suppose that in the midst of an
observation of a violent altercation
where two inmates are observed savagely
attacking a prison guard, the observing
witness would have the presence of mind
to think calmly and rationally not about
the attack itself, but rather about how
he might manipulate the system in an
attempt to reduce his sentence simply
lacks even a scintilla of substantiation
in the record. Ultimately, the decision
as to admissibility of Hilpipre’s
statement lies within the sound
discretion of the trial judge. Wash, 231
F.3d at 371. We are confident that had
Hilpipre truly been attempting to
manipulate the system, as Bogan
speculates, that the trial judge would
have uncovered the ruse because she had
the opportunity and ability (gained from
years of trial experience) to gauge
Hilpipre’s credibility by hearing his
answers as well as observing his "facial
expressions, tone of voice, eye contact,
posture and body movements," all of which
are not contained in the cold pages of an
appellate record. United States v. Woods,
233 F.3d 482, 484 (7th Cir. 2000).
Accordingly, Bogan’s contention is
meritless and we hold that the trial
judge did not abuse her discretion in
admitting Hilpipre’s statement.
B. Evidence of Wine-Making Activity
Calhoun argues that the district court
committed error in permitting Degenhardt
to testify about the defendants’s wine-
making activities. Calhoun objected not
only to Degenhardt’s testimony that he
seized intoxicants from their cell in May
1999, but also evidence of the September
1999 seizure that precipitated the
beating as well as Degenhardt’s
explanation that the sugar seized is
commonly used by inmates to make
intoxicants and that postage stamps, in
the amount seized, are commonly used by
inmates as barter to purchase
intoxicants. We examine each argument in
turn, keeping in mind that we review the
trial judge’s ruling to admit the
disputed evidence under an abuse of
discretion standard. United States v.
Denberg, 212 F.3d 987, 992 (7th Cir.
2000).
1. Evidence of the May 1999 Seizure
Under Federal Rule of Evidence 404(b),
"evidence of other misconduct is not
admissible to demonstrate that the
defendant acted in conformity therewith,
but may be admissible for other purposes,
such as proof of motive, opportunity,
intent, preparation, plan, knowledge, or
identity." United States v. Lloyd, 71
F.3d 1256, 1264 (7th Cir. 1995). In
determining the admissibility of Rule
404(b) evidence we utilize the familiar
four-part test and examine whether:
(1) the evidence is directed toward
establishing a matter in issue other than
the defendant’s propensity to commit the
crime charged, (2) the evidence shows
that the other act is similar enough and
close enough in time to be relevant to
the matter in issue, (3) the evidence is
sufficient to support a jury finding that
the defendant committed the similar act,
and (4) the evidence has probative value
that is not substantially outweighed by
the danger of unfair prejudice.
Denberg, 212 F.3d at 992-93.
Calhoun has failed to support his
contention that the district court abused
its discretion in admitting Officer
Degenhardt’s testimony about the May 1999
seizure with case law, much less citation
to the record. Calhoun contends that
there is "no identity of the seizure of
the wine-making material with the
assault." But this statement defies
reasonable explanation. The government’s
theory of the case was that Bogan and
Calhoun were cellmates at the time Degen
hardt seized the intoxicants in May 1999
and were upset that Degenhardt had once
again thwarted their underground wine-
making and selling enterprise. According
to the government’s theory, Bogan and
Calhoun hoped to prevent future
interference by Degenhardt with a violent
assault upon him. In other words, the May
1999 seizure explains Calhoun’s motive
for beating Degenhardt, for after all,
the September 1999 seizure was from only
Bogan’s cell, not Calhoun’s. Accordingly,
Degenhardt’s testimony regarding the May
1999 seizure satisfies the first prong of
the test.
Calhoun also alleges that the probative
value of the evidence was substantially
outweighed by its prejudicial effect.
Again, Calhoun offers little in the way
of case law in support of his conjecture.
Instead, Calhoun merely argues that the
evidence of prior wine making was
prejudicial without ever offering an
explanation for his assertion. United
States v. McClellan, 165 F.3d 535, 550
(7th Cir. 1999) ("We repeatedly have made
clear that perfunctory and undeveloped
arguments . . . are waived [on appeal]")
(citation omitted). In any event, we note
that relevant evidence is inherently
prejudicial. Lloyd, 71 F.3d at 1265. In
this instance, the evidence of
Degenhardt’s seizure of the defendants’s
wine-making materials was exceedingly
probative of Calhoun’s motive to assist
Bogan in the attack upon Officer
Degenhardt. We remain unconvinced (as did
the trial judge) that the evidence of the
wine-making activity would serve to
induce a jury to decide the case upon
emotion, rather than upon the evidence
presented. Accordingly, we are satisfied
that the trial court carefully considered
the admissibility of the May 1999 seizure
and did not abuse her discretion in
admitting Degenhardt’s testimony.
2. Evidence of the September 1999 Seizure
and Degenhardt’s Explanations
Calhoun also asserts that evidence of
the September 1999 seizure and
Degenhardt’s corresponding explanation of
the importance of sugar and stamps in
Bogan’s and Calhoun’s enterprise should
have been excluded. We see no need to
engage in our standard Rule 404(b)
analysis to resolve Calhoun’s meritless
argument because it is clear from the
record that the evidence of the September
1999 seizure was "intricately related" to
the assault upon Officer Degenhardt. See
United States v. Ryan, 213 F.3d 347, 349
(7th Cir. 2000) (dispensing with 404(b)
analysis when evidence was intricately
related to the offense charged in the
indictment). This circuit has a well-
established line of precedent that allows
evidence of uncharged acts to be
introduced at trial if the evidence is
"intricately related" to the acts charged
in the indictment. United States v.
Gibson, 170 F.3d 673, 680 (7th Cir.
1999). Under the "intricately related"
doctrine, the admissibility of Bogan’s
and Calhoun’s wine-making turns on:
whether the evidence is properly admitted
to provide the jury with a complete story
of the crime on trial, whether its
absence would create a chronological or
conceptual void in the story of the
crime, or whether it is so blended or
connected that it incidentally involves,
explains the circumstances surrounding,
or tends to prove any element of, the
charged crime.
United States v. Ramirez, 45 F.3d 1096,
1102 (7th Cir. 1995) (emphasis added)
(internal quotations and citations
omitted).
In the factual situation before us, the
evidence of the wine-making activity of
Bogan and Calhoun serves to complete and
answer a conceptual void in the history
of the crime. To the lay juror, most
likely unfamiliar with the manufacturing
of prison intoxicants and the currency of
the prison black market, it would seem
less than reasonable and likely that the
mere confiscation of a small quantity of
sugar and a few postage stamps would
serve to provoke a violent assault and
reaction of the magnitude testified to at
trial. Indeed, a pall of incredibility
might be cast upon the government’s case
if it claimed that two prisoners severely
assaulted and beat a prison guard merely
for confiscating such ordinary household
items (sugar and stamps). It is only when
the juror is informed of the panorama of
events and past history of the entire
picture of the production and sale of
liquor in a prison setting that the
violent attack after the confiscation of
the sugar and stamps makes sense. In
other words, the testimony of Degenhardt
regarding Bogan’s and Calhoun’s wine-
making activity completed the story of
the crime charged and was "necessary to
enable the jury to fully understand and
make sense of" their vicious attack upon
Officer Degenhardt. Gibson, 170 F.3d at
682.
Calhoun further argues that their wine-
making scheme was so different from the
act of the charged crime that it should
have been excluded. But we have never
held that the uncharged criminal activity
under the intricately related doctrine
must be identical to the charged
activity. Indeed, in a similar case, we
held that evidence of a previous sexual
exploitation conviction was intricately
related to the prosecution of an arson
case because it was essential to tell a
complete story and explain the
defendant’s motive. See United States v.
Menzer, 29 F.3d 1223, 1233 (7th Cir.
1994) (defendant burned down dwelling
where his wife slept to prevent her from
reporting his ongoing sexual abuse of his
children). As in Menzer, the evidence of
Bogan’s and Calhoun’s wine-making
activities (and prior confiscation of
wine-making paraphernalia and proceeds)
are "exceedingly probative as to [their]
motive" to violently assault Officer
Degenhardt, who had on two separate
occasions thwarted their underground
entrepreneurial scheme. Id. at 1234.
Calhoun also offers a weak and
unconvincing argument in his attempt to
demonstrate that the district judge
abused her discretion in admitting the
evidence of the defendants’s wine-making.
In his argument, Calhoun reaching for
straws suggests that the government could
have shown their motive to beat Officer
Degenhardt simply by informing the jury
that he had confiscated contraband from
their cells, leaving out the details of
what he confiscated and for what purpose
the inmates used it. In short, he
contends that while the evidence of their
wine making might be relevant, it was too
prejudicial. But, as we noted earlier,
"’relevant evidence is inherently
prejudicial . . . . Rule 403 was never
intended to exclude relevant evidence
simply because it is detrimental to one
party’s case; rather, the relevant
inquiry is whether any unfair prejudice
from the evidence substantially outweighs
its probative value.’" Lloyd, 71 F.3d at
1265 (quoting Cook v. Hoppin, 783 F.2d
684, 689 (7th Cir. 1986)) (emphasis in
original). "’Evidence is unfairly
prejudicial only if it will induce the
jury to decide the case on an improper
basis, commonly an emotional one, rather
than on the evidence presented.’"
Denberg, 212 F.3d at 994 (quoting United
States v. Long, 86 F.3d 81, 86 (7th Cir.
1996)). In this instance, the evidence of
Bogan’s and Calhoun’s wine-making "gave
the jury a more, not less, accurate
picture of the circumstances" surrounding
the charged crime, and the trial judge
did not abuse her discretion to admit it.
Ramirez, 45 F.3d at 1103.
C. Sufficiency of the Evidence
At the conclusion of the government’s
case in chief and also at the conclusion
of the trial, Bogan moved for judgement
of acquittal, contending that the
evidence was insufficient to establish
his guilt. Bogan renews his argument
here. A challenge to the sufficiency of
the evidence to support a conviction
poses a "nearly insurmountable burden."
United States v. Frazier, 213 F.3d 409,
415 (7th Cir. 2000). When reviewing a
sufficiency of the evidence claim, we
view the evidence and all reasonable
inferences that can be drawn from it in
the light most favorable to the
government. Id. Only where the record
contains no evidence, regardless of how
it is weighed, from which the jury could
find guilt beyond a reasonable doubt, may
an appellate court overturn the verdict.
United States v. Lundy, 809 F.2d 392, 396
(7th Cir. 1987).
Bogan’s argument fails before it can get
off the ground. Bogan contends that "so
many varying stories were presented to
the jury regarding the altercation . . .
that no reasonable juror could have
concluded from the evidence that Bogan
forcibly assaulted Degenhardt through the
use of deadly or dangerous weapons."
Bogan points out that another inmate,
Miquel Jackson, also allegedly witnessed
the altercation and testified that he
never saw Bogan strike Degenhardt with a
weapon, contrary to Degenhardt’s and
Hilpipre’s testimony. Obviously this is a
credibility determination, which is
solely within the province of the jury.
United States v. Jefferson, 252 F.3d 937,
942 (7th Cir. 2001); United States v.
Pulido, 69 F.3d 192, 205 (7th Cir. 1995).
In this case overwhelming evidence
existed linking Bogan to the attack.
Degenhardt testified that Bogan threw him
to the floor and violently assaulted him
when he was down. Degenhardt’s testimony
was corroborated by the testimony of an
inmate who observed the attack from ten
feet away, Hilpipre. Furthermore, both
Degenhardt’s and Hilpipre’s testimony was
corroborated by the physical evidence
found by the investigators, which
included a broken iron found in the
officer station, Bogan’s t-shirt covered
with Degenhardt’s (DNA identified) blood
found in a trash can shortly after the
incident, and Calhoun’s broken wrist band
and watch found in the officer station.
There is more than sufficient evidence to
support the jury’s verdict, and Bogan’s
argument that this evidence is
insufficient is without merit.
D. Sentencing Enhancement
Bogan lastly appeals two sentencing
enhancements imposed in the trial court.
Initially, Bogan argues that the district
court erred in adjusting his offense
level upward by four levels for the use
of a dangerous weapon during the assault.
U.S.S.G. sec. 2A2.2(b)(2)(B) & sec. 1B1.1
cmt. n. 1(d) & (g). We review the
district court’s factual findings in
support of sentencing determinations for
clear error. United States v. Baker, 227
F.3d 955, 964 (7th Cir. 2000). Bogan
again points to the testimony of inmate
Jackson that Bogan only used his fists in
the assault, instead of the iron. But
Hilpipre clearly testified that Bogan
used a clothes iron to beat Officer
Degenhardt, and a broken clothes iron was
found at the scene. The sentencing judge
resolves credibility questions that arise
during the sentencing hearing, and in
this case she chose to believe Hilpipre
and Degenhardt and not Jackson. The
district court was entitled to
creditHilpipre’s version of the event
rather than that of Jackson, and we see
no reason to upset that credibility
determination. What is more, the
government charged Bogan with the use of
a dangerous weapon as an element of the
crime, and given the jury’s determination
of guilt beyond a reasonable doubt, the
court’s finding to the same at sentencing
cannot be clearly erroneous.
Bogan also argues that the sentencing
judge erred in concluding that Degenhardt
suffered "serious bodily injury" within
the meaning of the guidelines, and
therefore the district court erred in
imposing a four-level upward adjustment
in his offense level. U.S.S.G. sec.
2A2.1(b)(1)(B). Because Bogan argues that
the district court misinterpreted the
Sentencing Guidelines, our review is de
novo. United States v. Phillips, 239 F.3d
829, 847 (7th Cir. 2001). The Guidelines
define "serious bodily injury" in
pertinent part as an "injury involving
extreme physical pain or the protracted
impairment of a function of a bodily
member, organ, or mental faculty; or
requiring medical intervention such as
surgery, hospitalization, or physical
rehabilitation." U.S.S.G. sec. 1B1.1,
cmt. n. 1(j). The government submitted
reports of Degenhardt’s medical
treatment, and Bogan admits that
Degenhardt suffered lacerations requiring
sutures, a fractured eye-socket bone,
nerve damage to the left side of his
face, ongoing emotional distress and
migraine headaches, and the potential
loss of three teeth, but contends that
because Degenhardt did not "undergo a
prolonged hospital stay . . . or surgical
intervention" that he did not suffer a
serious bodily injury. In the past we
have held that where a defendant
inflicted facial scars on the victim, the
imposition of a six-level upward
adjustment in offense level for
"permanent or life-threatening bodily
injuries" was warranted. See Phillips,
239 F.3d at 848. Given the undisputed
nature of Degenhardt’s injuries, we are
convinced that Bogan’s argument that the
district court erred in finding that
Degenhardt suffered "serious bodily
injury" is without merit.
IV. Conclusion
We hold that the district court did not
err in admitting either Hilpipre’s lay
opinion testimony or evidence of Bogan’s
and Calhoun’s wine-making activity.
Further, we hold that the evidence was
more than sufficient to support the
verdict against Bogan. Finally, we hold
that Bogan’s challenges to the trial
court’s sentencing determinations are
without merit. Bogan’s and Calhoun’s
convictions and sentences are AFFIRMED.
FOOTNOTES
/1 Before submitting their briefs, the defendants’s
attorneys notified the magistrate judge that they
were withdrawing this motion, and the magistrate
entered an order confirming the motion as being
withdrawn and striking the briefing schedule.
/2 In his brief, Calhoun also raised the issue of
whether the district court erred in admitting
Hilpipre’s identification of the defendants from
a photographic lineup. At oral arguments, counsel
admitted that Calhoun’s trial counsel had waived
this issue when he withdrew his objection to the
identification. Therefore, we need not address
this issue.