United States v. Milliron

majority opinion

Appellate Case: 23-1217 Document: 122-1 Date Filed: 06/23/2026 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 23, 2026

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-1217

LORI MILLIRON,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:22-CR-00012-WJM-2)

Robert T. Fishman of Ridley, McGreevy & Winocur, P.C., Denver, Colorado, for Defendant-Appellant.

Marissa R. Miller, Assistant United States Attorney (J. Bishop Grewell, Acting United States Attorney, with her on the brief), Denver, Colorado, for PlaintiffAppellee.

Before HOLMES, Chief Judge, PHILLIPS, and CARSON, Circuit Judges.

PHILLIPS, Circuit Judge.

At doctors’ appointments, museum tours, and freshman orientations,

there are no bad questions. But when a prosecutor is the one asking and the

answer carries a potential perjury charge, there are.

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Lori Milliron testified before a federal grand jury that was investigating

whether her paramour Larry Rudolph had murdered his wife. Armed with

evidence that Rudolph had given Milliron tens of thousands of dollars in the

two years before the murder, the government asked her why Rudolph had been

so generous to her. She said she didn’t know. And later, the government asked

whether Rudolph had proclaimed his innocence to her when discussing the

FBI’s investigation into his wife’s death. She said he “probably” did.

Based on Milliron’s testimony before it, the grand jury indicted her for

five counts of perjury, one count of accessory after the fact to foreign murder,

and one count of obstruction of justice. A petit jury later convicted Milliron on

two perjury counts, accessory, and obstruction.

On appeal, Milliron argues that her perjury convictions resulted from the

prosecutor’s imprecise questioning and were unsupported by sufficient

evidence. She also challenges her accessory conviction as beyond the bounds of

the accessory statute and her obstruction conviction as contrary to the Double

Jeopardy Clause.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm all Milliron’s

convictions except for the first perjury count.

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BACKGROUND

I. Factual Background

In 2003, Lori Milliron began working as a hygienist for dentist Larry

Rudolph in Pittsburgh, Pennsylvania. By 2004, the two had begun an

extramarital affair.

Milliron had long wanted Rudolph to divorce his wife, Bianca. But she

understood Rudolph’s worry that a divorce would harm him financially. And

Rudolph’s money mattered to Milliron too. Over the years, he’d helped pay for

her house, car, and vacations, and he’d funded her children’s housing,

educations, and plastic surgeries. Milliron often asked Rudolph for money, and

he always gave it to her.

In spring 2016, Bianca learned of Rudolph’s affair with Milliron and

demanded that he end it. So Rudolph could have either (1) divorced Bianca and

kept seeing Milliron or (2) stayed married and ended his affair with Milliron.

But in October 2016, he chose a third option. He kept seeing Milliron and

murdered Bianca while on safari in Zambia. To conceal the murder, Rudolph

staged a scene in his and Bianca’s private cabin to convince others that Bianca

had accidentally shot herself in the heart. While still in Zambia, and before

even telling his children about their mother’s death, Rudolph had Bianca’s body

cremated. Zambian authorities investigated but found no wrongdoing. And

stateside insurance investigators treated Bianca’s death as accidental, paying

Rudolph just under $5 million in life-insurance proceeds.

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For her part, around April 2015, Milliron confided in one of her

colleagues that she’d told Rudolph to “get rid of Bianca,” take cash from the

dental practice, and move out of the country. J. App. vol. 14, at 3467. And

three months before the murder, while preparing for an earlier Zambian safari

with Bianca, Rudolph had Milliron order—through the dental practice—five

vials of propofol, a surgical sedative that “puts [people] to sleep.” Id. at 3535.

Before then, only the practice’s contracted anesthetists, not the practice itself,

stored and used propofol. Rudolph told an employee that he was taking the

propofol “in case of an accident.” Id. at 3510.

Within hours of shooting Bianca, Rudolph texted Milliron that there had

been an accident. But he waited six days before telling anyone in his family.

Milliron received Rudolph’s text but never responded.

Less than two weeks after Rudolph returned from Zambia, and just two

days after Bianca’s funeral, Rudolph booked Milliron a one-way flight to join

him at his and Bianca’s house in Paradise Valley, Arizona. Within six months,

Milliron moved in. Within the next two years, Rudolph drew more than a

million dollars from Bianca’s life-insurance proceeds to finance the

construction of a $2.5 million Paradise Valley house for him and Milliron.

And by the time of her grand-jury testimony, Milliron knew that Rudolph

killed Bianca. In January or February 2020, Rudolph and Milliron were dining

at a Phoenix steakhouse where they were regulars. Just as a song ended, the

bartender and customers seated nearby heard Rudolph in a very firm, harsh tone

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say to Milliron: “I killed my fucking wife for you.” United States v. Rudolph,

152 F. 4th 1197, 1211 (10th Cir. 2025) (citation modified), cert. denied, --- S.

Ct. ----, 2026 WL 79716 (Jan. 12, 2026). Milliron gathered her purse, lowered

her head, and left the restaurant. Id. at 1212. The bartender thought that

Milliron seemed embarrassed but unsurprised. Rudolph left soon after,

apologizing to the bartender on his way out.

Meanwhile, the FBI had begun investigating Rudolph for foreign murder.

Around August 2020, FBI agents approached Rudolph’s son to talk about the

investigation. The son then told Rudolph about the FBI’s visit. Rudolph relayed

that news to Milliron and told her what he had learned about the investigation.

In December 2021, the government filed a criminal complaint against

Rudolph. The complaint charged foreign murder as well as mail fraud related to

Bianca’s life-insurance proceeds. A few weeks later, Milliron attended a

hearing on Rudolph’s motion to dismiss that complaint. At that hearing, she

heard the government lay out its case.

The next day, Milliron appeared via subpoena before the grand jury that

was investigating Rudolph. She testified for over an hour, discussing among

other things her relationship with Rudolph and his comments about the FBI’s

investigation. Soon after, the grand jury indicted Rudolph. And a month later, it

indicted Milliron too, based on her testimony.

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II. Procedural History

The grand jury indicted Milliron on five counts of perjury, 18 U.S.C.

§ 1623(a); one count of accessory after the fact to foreign murder, 18 U.S.C.

§§ 3, 1119, 1111; and one count of obstruction of justice, 18 U.S.C. § 1503(a).

Each charge stemmed from her grand-jury testimony. After a fourteen-day joint

trial with Rudolph, the jury convicted Milliron on two of the five perjury

counts (Counts Six and Nine), the accessory count (Count Three), and the

obstruction count (Count Four). 1

Milliron moved for a new trial and a judgment of acquittal. The district

court denied her motion. Later, the court sentenced Milliron to 204 months’

imprisonment, an upward variance from the sentencing guidelines. Milliron

timely appealed.

DISCUSSION

We consider Milliron’s challenges to her perjury convictions, then her

challenges to her accessory-after-the-fact and obstruction convictions. We

vacate her perjury conviction on Count Six and affirm her other convictions.

I. Perjury Convictions

To prevail on a perjury charge under 18 U.S.C. § 1623(a), the

government must prove four elements beyond a reasonable doubt: (1) that the

defendant made a statement while under oath before a grand jury, (2) that the

The jury convicted Rudolph on both of his charges. We affirmed.

Rudolph, 152 F.4th at 1239.

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statement was false, (3) that the defendant knew the statement was false, and

(4) that the statement was material to the grand-jury proceeding. See United

States v. Leifson, 568 F.3d 1215, 1220 (10th Cir. 2009); see United States v.

Strohm, 671 F.3d 1173, 1177–78 (10th Cir. 2011). Milliron concedes that she

testified under oath before a grand jury.

We review de novo whether sufficient evidence supports a conviction.

See United States v. Schulte, 741 F.3d 1141, 1152 (10th Cir. 2014). We view

the evidence in the light most favorable to the verdict. Id. And when a perjury

charge alleges more than one knowingly false, material statement, we affirm

even if a reasonable jury could find that only one of the charged statements was

knowingly false and material. Strohm, 671 F.3d at 1185 n.14. To that end, the

jury “is best equipped to determine the meaning that a defendant assigns to a

specific question.” United States v. Lighte, 782 F.2d 367, 372 (2d Cir. 1986).

“Precise questioning is imperative as a predicate to the offense of

perjury.” Bronston v. United States, 409 U.S. 352, 362 (1973). “The burden is

on the questioner to pin the witness down to the specific object of the

questioner’s inquiry.” Id. at 360. This is so even when the witness’s “answers

were not guileless but were shrewdly calculated to evade.” Id. at 362. With that

in mind, we turn to Milliron’s two perjury convictions.

A. Count Six

We begin by laying out the indictment’s exact language and identify in

bolded brackets what we’ll call Question 1 and Question 2:

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Count 6

On or about January 5, 2022, in the State and District of Colorado,

the defendant LORI MILLIRON, having taken an oath to testify

truthfully in a proceeding before a grand jury of the United States

sitting in the District of Colorado, knowingly made false material

declarations, that is, MILLIRON gave the following underlined false

testimony:

Q: Why was Larry paying you this additional money if you

already had a salary for those things?

A: Because he wanted to help me.

Q: Did he explain why?

A: He was very generous.

Q: So in 2015 you received approximately double your salary—

or your salary again but all in cash?

A: Yes[.]

Q: And in 2016 you received a little bit more than your salary in

cash?

A: Yes.

Q: [Question 1] Why was Larry so generous to you?

A: I don’t know why. But like I said, he would give other—staff

members, he would buy them washers and dryers. He would

give them cash if they needed it, a whole variety of things.

Q: [Question 2] So your testimony before the members of the

Grand Jury today is that you don’t know exactly why he gave

you $60,000 in 2015?

A: I don’t know exactly why.

J. App. vol. 1, at 99–100.

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Milliron argues several theories, but we begin—and end—with whether

the jury had sufficient evidence to find that her statements were knowingly

false. 2 It didn’t.

On Question 1, Milliron argues that because of “the inherent difficulty in

one person knowing what truly motivates another person’s actions, no

reasonable jury could conclude that Milliron’s initial ‘I don’t know why’

response was knowingly false.” Op. Br. at 19–20. And on Question 2, she

argues that she “truthfully respond[ed] to a precise question with an equally

precise answer.” Id. at 19.

Guided by Lighte, we agree with Milliron. 782 F.2d at 374. In that case,

the defendant testified before a grand jury investigating a blood-plasma center.

Id. at 369–70. He was asked about another person’s trust account that bore his

name. Id. at 371 n.1. The prosecutor asked, “How do you know it’s [the other

person’s] account?” Id. The defendant answered, “Because he told me.” Id.

Soon after, the prosecutor asked, “Why would [the other person] tell you he

was setting up [an account] in your name?” Id. The defendant answered, “I

don’t know.” Id.

Early in her prosecution, Milliron referenced the “perjury trap”

doctrine, which we’ve yet to consider in this circuit. That doctrine bars perjury prosecutions in which the government executes a “premeditated design . . . to trap the witness into perjury in . . . an unfair way.” See United States v. Simone, 627 F. Supp. 1264, 1269 (D.N.J. 1986) (emphasis omitted); see generally Bennett. L. Gershman, The “Perjury Trap”, 129 U. Pa. L. Rev. 624 (1981). She does not argue this doctrine on appeal.

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The Second Circuit held that the defendant’s “I don’t know” answer

couldn’t support a perjury conviction. See id. at 374. That’s because the

question required the defendant to “speculate as to [the other person’s]

motives.” Id. And the defendant “could truthfully respond that he did not know

the reasoning underlying [the other person’s] behavior.” 3 Id.

In Question 1, Milliron was asked to speculate about Rudolph’s motives,

and she answered, “I don’t know.” Supp. App. vol. 2, at 357. And in Question

2, she was asked to more precisely speculate, and she again said she didn’t

know.

As in Lighte, Milliron’s answers were not knowingly false. See 782 F.2d

at 374. Stated plainly, a witness generally can’t be convicted of perjury for

saying she didn’t know what went on inside another person’s head. This

squares with our general aversion to speculative testimony, see, e.g., United

States v. Tapaha, 891 F.3d 900, 906 (10th Cir. 2018), including witnesses’

testifying without foundation about a defendant’s state of mind. See United

States v. Hoffner, 777 F.2d 1423, 1426 (10th Cir. 1985). Our analysis would

differ if there were evidence that Rudolph had told Milliron why he gave her

money in 2015 and 2016. See id. But as we explain, there isn’t.

To be sure, this section of Lighte concerned the literal-truth defense.

See 782 F.2d at 373–74. But its logic applies equally to whether the evidence sufficed to prove that a statement was knowingly false. See Strohm, 671 F.3d at 1185.

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1. Milliron’s Indicted Testimony

Before addressing the government’s arguments head on, we present

Milliron’s testimony that she gave just before the answers underlying her

criminal charges.

The prosecutor asked Milliron about Rudolph’s individual cash gifts.

Having handed Milliron a book of deposit slips, the prosecutor showed her a

sequence of deposits from 2014 through 2021 and confirmed that she deposited

“a couple of hundred dollars at a time.” Supp. App. vol. 2, at 355. Milliron

explained that these gifts were for “expenses” like “bills” and “education.” Id.

The prosecutor then asked her why Rudolph gave her “this additional money”

and whether Rudolph “explain[ed] why.” Id. (emphasis added). Milliron

nonresponsively answered that Rudolph “was very generous.” Id. at 356.

The prosecutor handed Milliron another exhibit, which totaled these cash

deposits into annual summaries. 4 The prosecutor then pointed out that Milliron

had deposited $60,000 in 2015 and $75,450 in 2016.

At that point, the prosecutor asked Milliron why Rudolph was “so

generous” to her (Question 1). And to reiterate that he was asking about gifts

from a specific period, the prosecutor then asked (Question 2): “you don’t

The parties did not identify the actual documents shown to Milliron, but in his closing, the prosecutor said: “Now this is what she was looking at when she was asked those second two questions. . . . [T]his is clearly an annual summary.” J. App. vol. 19, at 4933 (emphasis added).

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know exactly why [Rudolph] gave you $60,000 in 2015?” Id. at 357 (emphasis

added).

It’s not clear to us “exactly why” Rudolph gave Milliron $60,000 in

2015, nor why he was “so generous” to her in 2015 and 2016. For all we know,

he may have given her that money for fear of a costly divorce, fear of damage

to his reputation and dental practice, love for Milliron’s children, compensation

for not having left Bianca earlier, and so on. 5 Nor do we think there’s record

evidence for Milliron, the grand jury, or the petit jury to have inferred why.

And though we generally leave this sort of interpretation to the jury, we can’t

affirm a conviction based on a jury’s guess. See United States v. Farmer, 137

F.3d 1265, 1269–70 (10th Cir. 1998).

To the government, this epistemological mountain is a molehill. Milliron

must have known why Rudolph was so generous and gave her $60,000 in 2015:

because they were in a relationship. To show this, the government marshals

several facts:

(1) Milliron introducing Rudolph as her boyfriend,

(2) Their countless intimate emails, including Rudolph calling her

the love of his life,

Another possible reason that Rudolph gave Milliron that money was to keep her from revealing his perjury in earlier, unrelated civil litigation. In 2013, he sued his hunting club for defamation, alleging that its officers falsely accused him of cheating on his wife. During that litigation, he denied that he was having an affair—let alone communicating—with Milliron. But at trial in this case, he admitted that this was a lie: he had been having an affair with Milliron at the time.

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(3) His confession that he killed his wife for her,

(4) Testimony from Rudolph’s other employees that they did not

receive anywhere near the cash that Milliron received,

(5) Rudolph’s efforts to help Milliron’s children financially,

(6) Milliron thanking him for sending her to Paradise and telling

him that in return she would “pamper the hell out” of him with

sex and champagne,

(7) The switch from cash payments to a credit card following

Bianca’s death, and

(8) His own testimony that he gave her money because she was

his girlfriend.

Resp. Br. at 20–21 (citation modified).

Missing from this list is any message, email, or other evidence showing

that Milliron knew “the reasoning underlying” Rudolph’s gifts in 2015 and

2016. See Lighte, 782 F.2d at 374. And without a foundation, a witness cannot

be prosecuted for disclaiming knowledge of another person’s motivations.

2. Milliron’s Later Testimony

The government next argues that Milliron later admitted “she did know

why [Rudolph] gave her the money.” Resp. Br. at 21.

We disagree with the government’s reading of Milliron’s testimony. And

to explain why, we quote her testimony at length:

Q: Do you remember him giving you $4,000 on February 18th,

2016?

A: No, I do not.

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Q: Would you agree that $4,000 is a lot of money?

A: Yes, that’s a lot of money.

Q: Do you remember what you used it for?

A: I don’t remember.

Q: Why did he give you $4,000?

A: I don’t remember why he did.

Q: That was on February 18th. If you go down, again, to February

20th, 2016. Now we’re on page 137.

A: Yes.

Q: So he gave you $4,000 on February 18th, 2016, and then

$3,400 on February 20th, 2016; is that right?

A: I don’t know when he gave it to me.

Q: But that’s when you deposited it?

A: That’s when it was deposited.

Q: When you got these cash deposits, did you deposit them

immediately, or did you hold onto it for a little bit?

A: I don’t remember.

Q: So in total, though, you deposited approximately $7,400 in

this span of three days?

A: Yes.

Q: If you go to the next one on page 138, do you see that?

A: Yes.

Q: Two days after that did you deposit $3,460?

A: I don’t remember.

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Q: All told, that’s a lot of money, right?

A: Yes.

Q: Do you remember why Larry gave you all that money?

A: I don’t remember.

Q: Ms. Milliron, were you in a relationship with Larry Rudolph?

A: Yes.

Q: What was the relationship?

A: Well, we had a working relationship, and we also had a

personal relationship. We would travel together.

Q: What was the nature of the personal relationship?

A: We were friends.

Q: Were you ever anything more than friends?

A: Yes. We traveled mostly.

Q: When did that relationship begin?

A: Shortly – well, I don’t know if it was shortly – after I started

working for him. It was probably back in 2003 or ’4.

Q: Were these payments part of that relationship?

A: I don’t know how to answer that.

Q: Were you having a sexual relationship with him?

A: We did occasionally.

Q: Was he supporting you financially?

A: You could say that.

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Q: These cash payments, was that part of his supporting you?

A: I would say so.

Q: While you were in a relationship with him?

A: Yes.

Q: And the payments to your daughter, was that also part of the

relationship?

A: Yes.

Q: So earlier, when you said you didn’t know why he was giving

you all this money, do you now have a better understanding of

why he might have been giving you this money?

A: Well, I did know why he gave me money. I just don’t know

specifically each one, what it was for.

Supp. App. vol. 2, at 360–62.

Each side claims that Milliron’s last answer supports its position. To the

government, it shows that Milliron indeed knew why Rudolph gave her “the

money.” Resp. Br. at 21. And to Milliron, it shows that when she was asked

precise questions, she gave precise answers.

We disagree with the government. When reviewing the sufficiency of the

evidence, we don’t make “every potential inference” in the government’s favor;

instead, we make “only those inferences reasonably and logically flowing from

. . . [the] evidence.” Goldesberry, 128 F.4th at 1192 (citation omitted). Look

closely at the last question. The prosecutor says: “earlier, when you said you

didn’t know why he was giving you all this money.” Supp. App. vol. 2, at 362

(emphasis added). He’s not referring to the charged statements about Rudolph’s

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generosity from several minutes (and some fifty questions) before; he’s

referring to when he asked, just then, why Rudolph had given her “all that

money”—meaning three deposits in February 2016. Id. at 361. Milliron had

answered, “I don’t remember.” Id. at 360–61. So her final answer—that she

knew “why he gave me money”—wasn’t referring to her answers to Questions 1

and 2 from several minutes before. See id. at 362. And inferring otherwise

doesn’t “reasonably and logically” flow from the evidence. Goldesberry, 128

F.4th at 1192 (citation omitted).

Next, and more subtly, the government argues that Milliron’s last answer

shows that she “could answer the question without speculating about Rudolph’s

mental state.” Resp. Br. at 21.

Perhaps Milliron’s later answer—“I did know why he gave me money”—

set some foundation for her to testify about Rudolph’s motivations. Supp. App.

vol. 2, at 362. But the questions in the indictment were (1) why he was “so

generous” to her in 2015 and 2016 and (2) “exactly why” he gave her “$60,000

in 2015.” J. App. vol. 1, at 100. Milliron’s generic statement doesn’t lay a

foundation that Milliron knew why Rudolph was “so generous” to her and

“exactly why” he gave her $60,000 in 2015. Knowing why someone gives you

money differs from knowing why he was “so generous” over two specific years,

and it also differs from knowing “exactly why” he gave a specific quantity in a

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specific year. 6 See id. Put another way, Milliron’s statement didn’t lay a

foundation to testify to either of those highly specific facts. So contrary to the

government’s argument, Milliron never said she knew what motivated Rudolph

in 2015 and 2016.

Finally, the government argues that Milliron lied in her responses to

Questions 1 and 2 by not answering that Rudolph gave her money in 2015 and

2016 because they were in an intimate relationship. But when the prosecutor

succinctly asked if Milliron was in a relationship with Rudolph, she

unequivocally said yes.

We conclude with an important reminder. To address imprecise and

evasive testimony, prosecutors should ask better questions rather than pitch

perjury charges. See Bronston, 409 U.S. at 362; United States v. Sainz, 772

F.2d 559, 564 (9th Cir. 1995) (reversing a perjury conviction because the

witness answered truthfully after the prosecutor “narrowed the focus of his

questioning to the information actually sought”). At bottom, the prosecutor’s

purpose is “to obtain the truth,” not “to obtain perjury.” United States v. Shotts,

145 F.3d 1289, 1299 (11th Cir. 1998) (emphasis omitted).

* * *

After Milliron said she knew why Rudolph gave her money, the

prosecutor didn’t follow up and ask why.

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Briefly, because both parties address them, we discuss our circuit’s

defenses to perjury based on literal truth and ambiguity. Neither defense

applies to the exchange that led to Count Six.

The literal-truth defense bars perjury convictions based on nonresponsive

but literally true statements. Strohm, 671 F.3d at 1183–84. Milliron’s

conviction doesn’t fit because we’ve held that the defense applies only when an

answer is nonresponsive. Id. at 1185. And Strohm held that “I don’t know” is

responsive. Id. So the literal-truth defense doesn’t help Milliron.

Nor does Milliron’s case fit neatly into our fundamental- and arguableambiguity defenses. Those defenses require a question to be so unclear that

reasonable people would not know what the prosecutor is asking. See Farmer,

137 F.3d at 1268–69. But the questions leading to the statements in Count Six

were not confusing. They were just imprecise. They asked a witness to report

from inside another person’s head. And unless the government can show that

the witness has a firm foundation for that knowledge, it shouldn’t indict a

witness for saying that he or she doesn’t know.

* * *

Because there was insufficient evidence for a reasonable jury to find that

Milliron’s statements in Count Six were knowingly false, we vacate her

conviction on that count.

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B. Count Nine

We again start with the indictment:

Count 9

On or about January 5, 2022, in the State and District of Colorado,

the defendant LORI MILLIRON, having taken an oath to testify

truthfully in a proceeding before a grand jury of the United States

sitting in the District of Colorado, knowingly made false material

declarations, that is, MILLIRON gave the following underlined false

testimony:

Q: Did [Rudolph] say anything about the merits of an

investigation?

A: I don’t recall.

Q: Did he say anything about whether [Bianca’s death] was an

accident?

A: No. He had told me previously it was an accident.

Q: Did he proclaim his innocence?

A: He probably did. I don’t really recall that.

Q: What do you recall?

A: I really don’t recall.

Q: As you sit here today with the members of the Grand Jury, you

don’t recall a conversation with Mr. Rudolph about an FBI

investigation?

A: There has been conversation about that, but I think he was

aggravated. I can’t give you specifics.

Q: Can you give me generalities?

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A: Irritated that there was an FBI investigation because he felt he

was innocent.

J. App. vol. 1, at 102.

Milliron argues that the government didn’t provide sufficient evidence

that either of Count Nine’s statements were knowingly false or material to the

grand jury’s proceedings. We disagree. A reasonable jury could find Milliron’s

statement, “He probably did,” to be both knowingly false and material. And

because Milliron’s argument doesn’t address the latter part of the statement—“I

don’t really recall that”—we consider only “He probably did.” See Op. Br. at

23–26.

1. Knowingly False

The prosecutor’s question focused on a specific conversation between

Rudolph and Milliron months after he told her that he had killed his wife. For a

reasonable jury to find Milliron’s statement knowingly false, the government

had to prove, beyond a reasonable doubt, that Milliron knew that Rudolph

didn’t proclaim his innocence to her in that conversation. So we first establish

the timing of when Rudolph and Milliron spoke. We then consider the

circumstances that a reasonable jury could have considered.

First, we lay out a timeline to find when the relevant conversation took

place. Start back in January or February 2020, when a bartender and patrons at

the steakhouse heard Rudolph say to Milliron, “I killed my fucking wife for

you.” Rudolph, 152 F.4th at 1211 (citation modified). Fast-forward to August

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2020, when the FBI approached Rudolph’s son to talk about the investigation,

after which the son told Rudolph about the visit. Finally, fast-forward again to

May 2021, when Milliron took an unplanned flight away from Pittsburgh

because FBI agents showed up at her house and she “didn’t want to speak with

them.” Supp. App. vol. 2, at 386–87.

Now refocus on the grand-jury testimony that was the subject of Count

Nine. The prosecutor asked Milliron, “Who told you that there was an FBI

investigation?” Id. at 387. Milliron answered that Rudolph had told her and that

he had known about the investigation from “when the FBI knocked” on his

son’s door. Id. at 388. Then the prosecutor asked Milliron, “Did you have a

conversation with Mr. Rudolph about the FBI’s investigation?” Id. at 389.

Milliron said yes. Drawing reasonable inferences from the evidence above, this

conversation happened after the FBI spoke with Rudolph’s son but before May

2021, when Milliron left Pittsburgh to avoid speaking to the FBI.

The prosecutor kept asking Milliron about the conversation. He asked if

Rudolph “proclaim[ed] his innocence.” Id. at 390. Milliron responded, “He

probably did. I don’t really recall that.” Id.

Now we can consider the circumstances from which a jury could infer—

beyond a reasonable doubt—that Milliron’s statement was knowingly false.

Rudolph and Milliron’s relationship differed from Rudolph’s relationship with

anyone else in two key respects.

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First, by the time of her grand-jury testimony, Milliron had been

Rudolph’s trusted confidante and mistress for over fifteen years. At Rudolph’s

instruction, she had ordered the propofol that he wanted in case of an

“accident” on Bianca’s penultimate safari. J. App. vol. 14, at 3510. She

received Rudolph’s first communique about Bianca’s death—that “there had

been an accident”—which a reasonable jury could interpret as, “it’s done.” See

J. App. vol. 18, at 4561. And Milliron didn’t respond. In sum, the jury could

infer that long before her grand-jury testimony, Milliron knew that Rudolph

planned to kill Bianca.

Second, before their conversation, Rudolph had told Milliron—in

public—that he was guilty. In this respect, Milliron was unlike Rudolph’s

hunting guides, Zambian law enforcement, American consular officials, the

insurance investigators, Bianca’s brothers, the FBI, the jury, the judge at

sentencing, and Rudolph’s own children. Rudolph may well have scrupulously

maintained his innocence with everyone else, but he told Milliron he was

guilty.

So with these two conclusions, the jury could reasonably infer that

Milliron knew that Rudolph hadn’t proclaimed his innocence to her. The

longtime affair; the propofol; the unanswered, post-murder text message from

Zambia; Milliron’s move to Rudolph and Bianca’s Paradise Valley house; and

Rudolph’s financing of a separate Paradise Valley house with Bianca’s lifeinsurance proceeds—all of this furnished the jury more than enough to find that

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Milliron knew Rudolph planned to and actually did kill Bianca. And Rudolph’s

steakhouse utterance that he killed Bianca for Milliron cements the inference

that, with Milliron, Rudolph didn’t need to—and didn’t—pretend innocence. A

reasonable jury could conclude that Rudolph’s utterance wasn’t just an

accidentally public confession; it was a reminder to Milliron that she owed him

for murdering Bianca so they could be together.

Still, Milliron argues that the steakhouse statement “furnishes no factual

basis for inferring that he could not . . . have proclaimed his innocence.” Op.

Br. at 24. And if we were to ignore the context of the prosecutor’s question,

that would be correct. If the prosecutor had asked, “did Rudolph ever proclaim

his innocence to anyone,” as the partial dissent interprets the question,

Milliron’s answer wouldn’t support a perjury conviction.

But we may not “isolate[e] a question from its context . . . to give it a meaning

entirely different from that which it has when considered in light of the testimony as

a whole.” See Farmer, 137 F.3d at 1269. Consider the examination leading up to

the questions in the indictment: “Did you have a conversation with Mr.

Rudolph about the FBI’s investigation? . . . Was this conversation in person or

over the phone? . . . Did he try to put you at ease?” Supp. App. vol. 2, at 389–

90 (emphasis added). 7 Viewed in the light most favorable to the verdict, the

The partial dissent states that “nothing . . . indicates that the prosecutor focused on one specific conversation between Rudolph and [Milliron] when asking whether Rudolph proclaimed his innocence.” We disagree.

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prosecutor asked whether Rudolph proclaimed his innocence to Milliron during

a specific conversation.

That conversation occurred sometime after the steakhouse statement but

before Milliron flew from Pittsburgh. And Rudolph’s wielding the murder

against Milliron at the steakhouse sufficed for the jury to infer that he didn’t

proclaim his innocence to her in their later conversation. In other words, a

reasonable jury could infer, beyond a reasonable doubt, that Milliron lied when

she said that he “probably” proclaimed his innocence.

Arguing from “experience” in the law, Milliron states that “guilty people

proclaim their actual innocence all the time.” Id. Fair enough. But guilty people

don’t typically proclaim their innocence to people who know of their guilt. It

makes no sense that Rudolph would proclaim his innocence to Milliron after

reminding her that he murdered Bianca for her. “Experience” gives us no

reason to think that’s what happened, much less to say that no reasonable jury

could find otherwise. 8

Milliron also argues that the government changed its Count Nine theory

between trial and appeal. But upon review of the trial record and the

government’s briefing on appeal, we see no difference.

The partial dissent posits that Rudolph may have told Milliron he was innocent even though she knew of his guilt, “to get his story straight.” And perhaps Milliron could have argued that Rudolph would have told her something like “you know I’m guilty, but in case you’re ever asked, I’m telling you now so you can quote me, I’m innocent. So remember to tell them I proclaimed my innocence.” But she hasn’t hazarded such a view.

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In sum, the jury had sufficient evidence to conclude beyond a reasonable

doubt that Milliron’s statement about Rudolph’s “probably” proclaiming his

innocence was knowingly false.

2. Materiality

Milliron next argues that the statements charged as perjurious were not

material to the grand-jury proceedings. We review for sufficiency of the

evidence, meaning we look to whether “a reasonable jury could conclude that

[Milliron’s statements] were material.” Strohm, 671 F.3d at 1186 (citation

omitted). Our standard for materiality is “conspicuously low.” United States v.

Fernandez-Barron, 950 F.3d 655, 658 (10th Cir. 2019) (citation modified). A

false statement is material if it might have influenced the grand jury’s

decisions. See Strohm, 671 F.3d at 1186. “The testimony need not have an

actual effect; it merely must be capable of influencing the decision-making

body.” Id. (citation modified). And if later circumstances render the statement

immaterial, that doesn’t change our analysis—we ask only whether the false

statement was material when it was made. See Fernandez-Barron, 950 F.3d at

660.

Milliron argues that her testimony was immaterial to the grand jury’s

decision to indict Rudolph because (1) guilty people regularly proclaim their

innocence, and (2) the grand jury had plenty of other evidence to indict him.

But those arguments miss the mark. On Milliron’s first argument, the

grand jury knew that Milliron was Rudolph’s intimate confidante. So Rudolph’s

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proclaiming his innocence to Milliron might have carried more weight with the

grand jury than his proclaiming it to the world at large—which is certainly

enough weight to meet our “conspicuously low” standard. Id. at 658.

On Milliron’s second argument, we reiterate that we look at the

materiality of the false testimony. See Strohm, 671 F.3d at 1186. That is, we

need not weigh its materiality relative to the other evidence presented. Cf.

United States v. Williams, 934 F.3d 1122, 1129 (10th Cir. 2019) (holding in a

false-statement prosecution that a “statement can be objectively material even

if the decision maker did not consider it” (citation omitted)). So we reject that

argument.

* * *

Because there was sufficient evidence for the jury to find that one of

Milliron’s statements in Count Nine was knowingly false and material, we

affirm her perjury conviction on that count. 9

II. Accessory-After-the-Fact Conviction

Milliron argues that her accessory-after-the-fact conviction fails because

that crime cannot rest on perjury alone. First, she argues that based on the plain

language of the accessory statute, 18 U.S.C. § 3, Congress intended accessory

Because we affirm Milliron’s perjury conviction on Count Nine, we

need not address her arguments that depend on our vacating both perjury convictions.

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liability to require more than just perjury. Second, she argues the same based

on the statutes’ different sentencing ranges.

We review de novo a defendant’s challenge to the interpretation of a

federal criminal statute. United States v. Davey, 151 F.4th 1249, 1253 (10th

Cir. 2025). Generally, when a statute is unambiguous, we apply its plain

meaning. United States v. Hopson, 150 F.4th 1290, 1302 (10th Cir. 2025).

A. Plain Language

Milliron first argues that the government reads the accessory-after-thefact statute too broadly. Here’s the statute:

Whoever, knowing that an offense against the United States has been

committed, receives, relieves, comforts or assists the offender in

order to hinder or prevent his apprehension, trial or punishment, is

an accessory after the fact.

18 U.S.C. § 3. To Milliron, the terms “receives, relieves, comforts or assists the

offender” “suggest” “affirmative conduct” beyond “simply making statements

to . . . a grand jury.” Op. Br. at 35–36 (citation modified).

We could just say that lying to a grand jury to prevent someone who

committed a crime from going to trial “assists [that] offender.” 18 U.S.C. § 3.

That said, if we were writing on a blank slate, we might take a hard look at the

words around “assists” to avoid giving it “a meaning so broad that it is

inconsistent with its accompanying words, thus giving unintended breadth to

the Acts of Congress.” Yates v. United States, 574 U.S. 528, 543 (2015) (plurality

opinion) (citation omitted).

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But we aren’t writing on a blank slate. Instead, we’re bound by United

States v. Day, 533 F.2d 524 (10th Cir. 1976). In Day, we held that false

statements to an investigator about details of a crime sufficed to prove

accessory after the fact. Id. at 526. The defendant was one of three inmates

planning to kill another inmate. Id. at 525. The defendant lured the victim into

the prison chapel, and another inmate killed him. Id. Later, the defendant

falsely told an FBI interrogator that the victim had been attacked by three

people in masks whom the defendant could not identify. Id. at 525–26. But, in

fact, he knew each of the participants’ identities. Id. at 526. He was charged

and convicted of accessory after the fact. Id. at 525.

On appeal, the defendant argued that the government didn’t introduce

sufficient evidence that he “assisted the participants in order to hinder or

prevent their apprehension, trial, or punishment.” Id. at 526. We disagreed,

holding that the investigator’s testimony explaining the defendant’s lies served

as this element’s “substantial proof.” See id. So Day tells us that making false

statements to an investigator to cover up someone else’s crime can prove

accessory after the fact. See id.; see also United States v. Roach, 502 F.3d 425,

445 (6th Cir. 2007) (affirming a police officer’s conviction for accessory after

the fact based on his lying to an investigator).

Milliron argues that Day did not explicitly reject the argument she makes

here. Maybe so, but it got close enough. The defendant in Day argued that there

was no proof that he “in some way assisted the participants in order to hinder

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or prevent their apprehension, trial, or punishment.” 533 F.2d at 526. We then

held that his lying to the investigator satisfied this element. Id. Milliron hasn’t

distinguished how the defendant’s lying to an investigator to protect his

associates in Day differs from her lying to a grand jury to protect Rudolph, so

we reject her argument.

Next, Milliron points to United States v. Lepanto, in which we said we

were “not convinced that Congress intended” the accessory statute to require

“enthusiastic cooperation with investigating authorities” “on pain of

imprisonment in every instance.” 817 F.2d 1463, 1468 (10th Cir. 1987). In

Lepanto, the defendant knew that his brother was making bombs in their shared

apartment. Id. The local police and the United States Postal Inspection Service

interviewed the defendant, asking if his brother lived with him. Id. at 1464 n.1.

The defendant lied and said his brother lived in another city. See id. Partly on

that basis, the defendant was convicted as an accessory after the fact. Id. at

1464 & n.1.

Though we affirmed that conviction based on other evidence, we doubted

whether Congress intended the accessory statute to mandate “enthusiastic

cooperation with investigating authorities.” Id. at 1464, 1468. Our doubt arose

from fear of “imposing a criminal penalty for . . . every false unsworn

statement . . . to a federal officer.” See id. at 1468 (citation omitted).

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Lepanto doesn’t control here. To start, Milliron testified under oath, not

in an “unsworn statement.” 10 Id. Next, earlier panel decisions bind later panels

unless there’s “en banc reconsideration or a superseding contrary decision by

the Supreme Court.” United States v. Reed, 39 F.4th 1285, 1295 (10th Cir.

2022). And Lepanto came after and even cited Day. 817 F.2d at 1467. So if

Lepanto aimed to limit Day’s holding, we’d expect it to say so—and it doesn’t.

Finally, we aren’t bound by an earlier panel’s dicta—as in, reasoning not

essential to the panel’s holding. Tokoph v. United States, 774 F.3d 1300, 1303

(10th Cir. 2014). And in Lepanto, our remark about “enthusiastic cooperation”

was necessarily dicta because we affirmed the defendant’s accessory conviction

on other grounds and expressly chose “not [to] decide the issue.” See 817 F.2d

at 1468.

Milliron also points to our decision in McFarland v. Childers, 212 F.3d

1178 (10th Cir. 2000). Though McFarland mentions Lepanto while discussing a

state’s accessory statute, it otherwise interprets state law. Id. at 1189. Plus,

Also, Milliron knew of the proceedings in advance from her subpoena. She had the right to challenge her subpoena through judicial review. See, e.g., In re Grand Jury Proc., 616 F.3d 1186, 1191 (10th Cir. 2010). And she knew what the grand-jury proceedings were about from attending the hearing on Rudolph’s motion to dismiss. When she entered the grand-jury proceedings, she was put under oath, and she learned of her rights to pause the proceedings, consult counsel, and refuse to answer incriminating questions. She was told that false statements could result in charges against her. In short, she received many procedural protections that the defendant in Lepanto likely did not.

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McFarland supports Milliron’s conviction. As we then wrote, “there are

arguably some false statements that may conceal or aid offenders.” Id.

Next, Milliron points to the Seventh Circuit’s decision in United States v.

Osborn, 120 F.3d 59 (7th Cir. 1997). But Osborn only reiterates that courts,

including the Lepanto court, have doubted, but never held, that the accessory

statute allows “a simple lie to authorities” to prove accessory after the fact. Id.

at 64. So Osborn, too, doesn’t distinguish Day.

Finally, Milliron points to a federal district court’s decision in Ortega v.

Evans, No. 08-CV-00894, 2009 WL 1085483 (E.D. Cal. Apr. 22, 2009). She

quotes the decision’s excerpt from a state court’s ruling that “[a] mere

withholding of information is not equivalent to supplying affirmative and

deliberate falsehoods.” Op. Br. at 35 (citing Ortega, 2009 WL 1085483, at *8).

But Milliron’s Count Nine statement was an affirmative and deliberate

falsehood. And before excerpting the state court’s reasoning, the district court

explained that under that state’s law, “affirmative and deliberate falsehoods”

can prove accessory after the fact. Id. at *7 (citations omitted). So Ortega

doesn’t help Milliron, either.

B. Different Sentencing Ranges

Milliron next argues that because accessory after the fact’s maximum

sentence is fifteen years, while perjury’s is only five, Congress didn’t want

accessory and perjury convictions for the same conduct. The government

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responds that this discrepancy makes sense because the accessory statute

contemplates a wide range of conduct.

We agree with the government that there are many ways to be an

accessory after the fact. See e.g., Day, 533 F.2d at 526 (lying to an

investigator); United States v. Martinez, 342 F.3d 1203, 1204 (10th Cir. 2003)

(disposing of a shotgun); United States v. Henning, 77 F.3d 346, 348, 350 (10th

Cir. 1996) (moving and disposing of a victim’s body). Yet Milliron’s argument

highlights a valid concern. Were the government to add an accessory charge to

almost every indictment for perjury before a grand jury, it might present an

overcharging problem. 11

Still, beyond pointing to this discrepancy in maximum sentences,

Milliron hasn’t developed this argument. So we reject it.

* * *

Because Milliron’s conduct fell within our circuit’s interpretation of

18 U.S.C. § 3, we affirm her conviction under that statute.

III. Double Jeopardy

Milliron challenges her obstruction conviction on double-jeopardy

grounds. To her, obstruction of justice is a lesser-included offense of perjury,

This is not to say that every perjury indictment could carry accessory charges. That’s because a witness before a grand jury may commit perjury without intending to assist another person. For example, a witness may intend to help only himself. See, e.g., United States v. Hasan, 609 F.3d 1121, 1124– 25, 1128, 1133, 1138 (10th Cir. 2010).

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so the Fifth Amendment’s Double Jeopardy Clause protects her from being

sentenced for both. The government responds that Milliron waived this

argument by not raising it in the district court and that she has not argued for

plain-error review on appeal.

We need not decide waiver because there’s no error. Milliron’s doublejeopardy argument is a multiplicity challenge, which we review de novo.

United States v. Benoit, 713 F.3d 1, 12 (10th Cir. 2013). Though indictments

may contain multiplicitous charges—for example, lesser-included offenses—

separate sentences for multiplicitous convictions violate the Double Jeopardy

Clause. See id.; United States v. Morris, 247 F.3d 1080, 1083 n.2 (10th Cir.

2001).

To decide whether one offense is a lesser-included offense of another, we

apply the test from Blockburger v. United States, 284 U.S. 299 (1932). See

United States v. Isabella, 918 F.3d 816, 848 (10th Cir. 2019). Under

Blockburger, if one offense requires proof of a fact that another does not, then

the first is not a lesser-included offense of the second. See id. And “proof of a

fact” means the “elements of the crimes, not the acts charged in the

indictment.” See United States v. Angilau, 717 F.3d 781, 787 (10th Cir. 2013)

(citation omitted); accord United States v. Dixon, 509 U.S. 688, 704 (1993).

Obstruction of justice under 18 U.S.C. § 1503(a) requires (1) a

proceeding pending before a federal court or grand jury; (2) that the defendant

knew of the proceeding and “influenced,” “obstructed,” or “impeded” the “due

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administration of justice in that proceeding,” or else “endeavored” to do so; and

(3) “that the defendant acted knowingly and dishonestly, with the specific

intent to subvert or undermine the due administration of justice.” See 10th Cir.

Crim. Pattern Jury Instruction 2.62 (rev. Mar. 11, 2026); United States v.

Erickson, 561 F.3d 1150, 1160 (10th Cir. 2009).

Perjury under 18 U.S.C. § 1623(a) requires (1) that a defendant made a

statement under oath before a court or grand jury, (2) that was false, (3) that the

defendant knew that the statement was false, and (4) that the statement was

material to the proceeding. See 10th Cir. Crim. Pattern Jury Instruction 2.66;

see Leifson, 568 F.3d at 1220.

The difference lies in the two crimes’ intent requirements. For

obstruction, the government must prove a defendant’s specific intent to subvert

or undermine the administration of justice. E.g., United States v. Williams, 874

F.2d 968, 980 (5th Cir. 1989). But for perjury, it need prove only the

defendant’s intent to make a knowingly false statement. See id. Put differently,

perjury doesn’t require an intent to obstruct a proceeding. See United States v.

Langella, 776 F.2d 1078, 1082 (2d Cir. 1985). And because obstruction

requires proof of a fact that perjury does not, obstruction (§ 1503) is not a

lesser-included offense of perjury (§ 1623). Other circuits that have considered

this question have held the same. See, e.g., id. at 1079, 1082; United States v.

Rankin, 870 F.2d 109, 111 (3d Cir. 1989); United States v. Bridges, 717 F.2d

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1444, 1449 & n.30 (D.C. Cir. 1983); see also United States v. Hill, 442 F.

App’x 811, 814 (4th Cir. 2011).

To Milliron, “since a statement has to be knowingly—that is,

intentionally—false to constitute perjury,” that statement “will always” show

an intent “to influence, obstruct, or impede” a proceeding. Op. Br. at 41

(citation modified).

We disagree. Though intending to lie and intending to obstruct a

proceeding might be “quite similar, they are not identical.” Williams, 874 F.2d

at 980. For obstruction based on false statements, and unlike for perjury, the

government must prove an intent to obstruct. See id.; see also United States v.

Grubb, 11 F.3d 426, 437 (4th Cir. 1993).

In sum, we reject Milliron’s double-jeopardy argument, and we affirm

her conviction on Count Four.

* * *

Milliron’s remaining arguments hinged on our either overturning

Rudolph’s convictions or both of her perjury convictions. Another panel

affirmed Rudolph’s convictions. Rudolph, 152 F.4th at 1239. And we just

affirmed one of Milliron’s perjury convictions. So we need not consider her

remaining arguments.

CONCLUSION

We affirm the jury’s verdict except for Milliron’s conviction on Count

Six, which we vacate. We remand to the district court for further proceedings.

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United States v. Milliron, 23-1217

CARSON, J., concurring in part and dissenting in part.

I agree with the majority that the evidence was insufficient for a reasonable jury to

find that Defendant Lori Milliron’s statements in Count Six were knowingly false. I also

agree with the majority’s rejection of Defendant’s double jeopardy argument and its

conclusion regarding the accessory after the fact conviction.

But I respectfully part ways with the majority on whether the evidence was

sufficient for a reasonable jury to find that Defendant’s statements in Count Nine were

knowingly false. They weren’t.

Recall the following exchange that underlies Count Nine:

Q: Did he proclaim his innocence?

A: He probably did. I don’t really recall that.

…

Q: …you don’t recall a conversation with Mr. Rudolph about

an FBI investigation?

A: There has been a conversation about that, but I think he

was aggravated. I can’t give you specifics.

Q: Can you give me generalities?

A: Irritated that there was an FBI investigation because he felt

he was innocent.

Recall, too, that the government traces the knowing falsity of the above answers to the

argument Rudolph and Defendant had at that steakhouse bar where one witness testified

that Rudolph said, “I killed my fucking wife for you.” The government argues Rudolph

admitted to killing his wife. Because he admitted to killing her, the government reasons,

he would never have proclaimed his innocence. Thus, according to the government,

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Defendant had to be lying when she said in “generalities” that Rudolph told her “he felt

he was innocent.”

But guilty people often proclaim their innocence. And indeed, the record contains

at least forty-five instances of Rudolph proclaiming his innocence:

1. Criminal Complaint (Rudolph told Zambian police that he was in the bathroom

when Bianca shot herself and he tried to resuscitate her, telling Zambian police

that he suspected that she discharged it while trying to pack it). J.A. Vol. 1 at 51.

2. Criminal Complaint (Rudolph told the consular chief that Bianca died of an

accidental gunshot wound). Id. at 53.

3. Criminal Complaint (Rudolph told consular chief that he was in the shower when

Bianca was packing and he heard the discharge and came running out of the

shower). Id. at 55.

4. Criminal Complaint (Rudolph told the consular chief that Bianca may have

committed suicide). Id. at 56.

5. Criminal Complaint (Insurance companies retained Diligence International to

conduct due diligence related to the circumstances of Bianca’s death and

Diligence’s report included the following statements by Rudolph: Rudolph was in

the bathroom, heard a gunshot, and then heard his wife scream. He found her on

the floor and performed CPR). Id. at 57–58.

6. Criminal Complaint (FBI agent believed that Rudolph’s claims filed in connection

with the life insurance policies were part of a scheme to defraud because Rudolph

claimed, either explicitly or implicitly through the submission of his account of the

death in the Zambian Police Service reports, that Bianca’s death was the result of

an accident). Id. at 60.

7. Criminal Complaint (Rudolph caused to be mailed a packet of documents to the

insurance company that included a statement that he had not withheld any material

facts from Great Western). Id.

8. Indictment (Rudolph represented and promised that Bianca had died as the result

of the accidental discharge of a firearm). Id. at 93.

9. Superseding Indictment (Rudolph represented and promised that Bianca had died

as the result of the accidental discharge of a firearm). Id. at 97.

10. One of several places the United States discusses the forfeiture in this case, noting

that Rudolph represented that Bianca’s death was an accident. The entire

forfeiture order is based on this representation. J.A. Vol. 3 at 726–28.

11. Transcript of Rudolph’s detention hearing (The government asked the investigator

whether he gave different accounts to different people about where he was at the

time of the shotgun firing, and the investigator said yes). J.A. Vol. 4 at 960–61.

• What he told Mark Swanepoel – That he was in the bathroom using the

restroom.

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• What he told the consular official in Zambia – That he was in the shower at

the time of the discharge.

• What he told Bianca’s brother – That he was outside the lodge at the time

of the discharge.

12. Transcript of Rudolph’s detention hearing (Attorney said that he had been trying

to reach the prosecutors through the investigator because he wanted to present to

them evidence to show Rudolph was innocent). Id. at 994.

13. Transcript of Rudolph’s detention hearing (Rudolph, on cross-examination, stated

that he told the Zambian authorities that he was in the bathroom when the shooting

occurred and that was written in the Zambian reports). Id. at 1004–05. 14. Sentencing Hearing Transcript (stating that what happened in Zambia “was a

terrible, tragic accident. Nothing more. This was not a murder . . . .). J.A. Vol. 5

at 1236.

15. Sentencing Hearing Transcript (Judge told Rudolph that he understood that

Rudolph continued to maintain his innocence). Id.

16. Sentencing Hearing Transcript (“I do reassert my innocence . . . And I did not

murder her.”). Id. at 1238.

17. Bianca’s brother, Ralph, testified at trial about what Rudolph said happened to his

sister (Rudolph told him that he was outside of the tent and he heard a gunshot and

he ran in and Bianca was on the floor). J.A. Vol. 8 at 1829.

18. Bianca’s brother, Vincent, testified at trial about what Rudolph said happened to

his sister (Rudolph told him that they were packing up to leave and Bianca was

packing her gun and it went off). Id. at 1852–53.

19. Bianca’s cousin, Anthony, testified at trial about what Rudolph said happened to

his cousin (Rudolph told him that he was outside and he heard a shot. He ran into

the room where Bianca was and found her with a chest wound.). Id. at 1874. 20. Trial testimony of Swanepoel of what Rudolph said happened (Rudolph told him

that he was in the bathroom and heard the shot and Bianca was on the floor). Id. at

1980.

21. Trial testimony of Swanepoel of what Rudolph said happened (Rudolph told him

that Bianca probably tried to pack the guns away herself while he was in the

bathroom). Id. at 1984.

22. Trial testimony of Malama, Zambian law enforcement, of what Rudolph said

happened (Rudolph said that he was in the bathroom when Bianca was shot). J.A.

Vol. 10 at 2466.

23. Trial testimony of Malama, Zambian law enforcement (said that Rudolph said he

was in the bathroom during the shooting and that others heard him say that too).

Id. at 2474.

24. Trial testimony of Mwiinga, Zambian funeral home director (said Rudolph

introduced himself as the husband of Bianca, who died accidently while packing

and cleaning her gun). Id. at 2488.

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25. Trial testimony of Musese, Zambian national park investigator (said Rudolph said

that he was taking a shower in the bathroom when he heard the gunshot, walked

in, and found Bianca had accidently shot herself). Id. at 2511–12. 26. Trial testimony of Musese, Zambian national park investigator (said Rudolph said

that he was taking a shower in the bathroom when he heard the gunshot). Id. at

2517. There are more mentions of this on cross. The “shower” thing is a big deal

because it’s inconsistent with what he told others—that he was in the bathroom. 27. Trial testimony of Jani, Zambian law enforcement (said Rudolph said he was in

the bathroom when the gun fired and maybe Bianca was forcing the gun into the

gun case). Id. at 2533.

28. Trial testimony of Jani, Zambian law enforcement (going over Rudolph’s

statement that he suspected the firearm must have been left loaded from the

previous day’s activities). Id. at 2542.

29. Trial testimony of Westhassel, consular official (Rudolph told him it could have

been suicide or accident). J.A. Vol. 11 at 2606–07.

30. Trial testimony of Westhassel, consular official (going over the call the embassy

received where Rudolph explained to Westhassel that there was an accidental

discharge of a firearm and that the shooting was an accident). Id. at 2626. 31. Trial testimony of Meyer, Bianca’s friend (Rudolph told her at Bianca’s memorial

service that Bianca died in an accidental discharge of a firearm and that he said he

was in the other room at the time). Id. at 2663–64.

32. Trial testimony of Calgaro, with Fidelity Life Insurance (noting that Rudolph said

the cause of death on the claim form for Bianca was accident). Id. at 2686. 33. Trial testimony of Loosle, with Ameritas Life Insurance (stating that Rudolph said

the cause of death on the claim form for Bianca was accident). Id. at 2711–12. 34. Trial testimony of Loosle, with Ameritas Life Insurance (stating Rudolph

submitted a letter detailing the death, which said he was in the bathroom when he

heard the gunshot). Id. at 2714.

35. Trial testimony of Mirabelli, with MetLife (stating that Rudolph said Bianca told

him she intended to pack the firearms while he was in the bathroom). Id. at 2730. 36. Trial testimony of Wagner, with Great-West (stating that Rudolph’s attorney

informed them that the discharge of firearm was accidental). Id. at 2784. 37. Trial testimony of Arnold, with Genworth Financial (stating that Rudolph checked

the box for accidental death). J.A. Vol. 12 at 2987.

38. Trial testimony of Siebels, with TransAmerica (stating that Rudolph listed the

cause of death as accident). Id. at 2997.

39. Trial testimony of Lawrence Rudolph (stating he absolutely did not shoot his

wife). J.A. Vol. 17 at 4476.

40. Trial testimony of Lawrence Rudolph (recounting the events and that he was in the

bathroom when Bianca was shot). J.A. Vol. 18 at 4548.

41. Trial testimony of Lawrence Rudolph (stating that he has always told everybody

that he was in the bathroom when Bianca was shot, including the police). Id. at

4551.

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42. Trial testimony of Lawrence Rudolph (stating that he has never confessed to

killing his wife and that he has always maintained that this was an accident). Id. at

4581.

43. Trial testimony of Lawrence Rudolph (reiterating to the jury that he did not kill his

wife). Id. at 4582.

44. Trial testimony of Lawrence Rudolph (stating that he said he was in the bathroom

when she was shot). Id. at 4665.

45. Trial testimony of Lawrence Rudolph (stating that he absolutely did not kill his

wife and that he is completely innocent). J.A. Vol. 19 at 4844.

To the majority, Defendant’s literally true statement that Rudolph probably proclaimed

his innocence constitutes perjury. The majority says for Defendant’s answer not to

support a perjury conviction, the prosecutor would have had to have asked, “Did Rudolph

ever proclaim his innocence to anyone?” But the majority, to affirm the perjury

conviction, essentially rewrites the prosecutor’s question to state, “Did he proclaim his

innocence to you during this specific conversation?”

The majority asserts that we must read the prosecutor’s statement in context. And

to the majority, the question of whether Rudolph proclaimed his innocence had to be in

reference to this specific conversation—an argument the government did not make. I

disagree with the majority. Not knowing when this conversation happened, the majority

first lays out a timeline “to find when the relevant conversation took place.” It draws

reasonable inferences to conclude that this conversation happened after the FBI spoke

with Rudolph’s son but before Defendant left Pittsburgh to avoid speaking with the FBI.

Using two conclusions, the majority determines that Rudolph could not have proclaimed

his innocence to Defendant because: (1) long before her grand-jury testimony, Defendant

knew that Rudolph intended to kill his wife, and (2) unlike all the other people to whom

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he professed his innocence, Rudolph had previously admitted his guilt to Defendant at the

bar.

I have three problems with the majority’s analysis. First, the prosecutor did not

adequately ask the question whether Rudolph pronounced his innocence to her in that

specific conversation. Second, Defendant’s response to the prosecutor was literally

true—as shown in at least forty-five different places in this record. Third, even if the

prosecutor aimed his question at a specific conversation, a reasonable jury could not infer

that Defendant knew that Rudolph hadn’t proclaimed his innocence to her.

First, the prosecutor did not ask the question the majority seems to think the

prosecutor asked. The indictment and the majority both end the quote from the transcript

at the same place, with Defendant answering: “Irritated that there was an FBI

investigation because he felt he was innocent.” The prosecutor continued as follows:

Q. Did he ever tell you that he was just going to go and speak

with the FBI?

A. No.

Q. Have you heard Mr. Rudolph discussing Bianca’s death

with anyone else?

A. No, I have not.

Q. Does Mr. Rudolph keep firearms in the home you have in

Arizona?

A. Yes.

Q. What kind of firearms?

A. I’m not good at firearms. He has a couple of pistols.

Actually, one is mine. I’m not sure. I think he has some kind

of a rifle.

Q. Does he have a shotgun?

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A. I don’t know.

Q. Does Mr. Rudolph have an injury to his left hand?

This exchange follows what the majority tells us is the prosecutor questioning Defendant

about a specific conversation Defendant had with Rudolph. There’s no transition away

from that conversation. Rather, just questions about whether Rudolph discussed his

wife’s death with anyone, about Rudolph’s firearms, and about an injury to Rudolph’s

left hand—none of which involve a specific conversation between Rudolph and

Defendant. Nothing to me indicates that the prosecutor focused on one specific

conversation between Rudolph and Defendant when asking whether Rudolph had

proclaimed his innocence.

A literal reading of the transcript shows that the prosecutor simply asked whether

Rudolph had proclaimed his innocence. The record demonstrates that he had. Over fifty

years ago, the Supreme Court tackled the issue of “whether a witness may be convicted

of perjury for an answer, under oath, that is literally true but not responsive to the

question asked and arguably misleading by negative implication.” Bronston v. United

States, 409 U.S. 352, 352–53 (1973). A person under oath does not commit perjury when

he or she willfully states “any material matter that implies any material matter that he

does not believe to be true.” Id. at 357–58. Put simply, the “jury should not be permitted

to engage in conjecture whether an unresponsive answer, true and complete on its face,

was intended to mislead or divert the examiner . . . .” Id. at 359. Any “problems arising

from the literally true but unresponsive answer are to be remedied through the

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‘questioner’s acuity’ and not by a federal perjury prosecution.” Id. at 362. The

government should have followed up with a more specific question to Defendant, not this

perjury prosecution.

Even assuming the prosecution asked Defendant about whether Rudolph had

pronounced his innocence in a specific conversation, Defendant makes the argument that

guilty people proclaim their actual innocence all the time. I echo the majority here: “fair

enough.” But the majority says that guilty people don’t typically proclaim their

innocence to people who know of their guilt. It can’t fathom that a person would

proclaim his innocence to someone he had already given a confession. I’m not so sure.

Rudolph has forty-five instances of proclaiming his innocence in the record. To me, it’s

reasonable he would want to get his story straight and he just might have told her that he

was innocent in that conversation. I worry about the implications of the majority’s result.

Will the government be free to pursue perjury charges against any family member, friend,

or colleague who says that a target has proclaimed his innocence when asked the question

directly by a prosecutor and a jury later ends up convicting the target? Under the

majority’s logic, yes.

Finally, although the majority does not base its holding on this portion of the

exchange, I also want to point out my discomfort with the government specifically asking

Defendant if she could speak in generalities and then opting to pursue her for perjury.

Let’s review the relevant exchange again:

Q: …you don’t recall a conversation with Mr. Rudolph about

an FBI investigation?

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A: There has been a conversation about that, but I think he

was aggravated. I can’t give you specifics.

Q: Can you give me generalities?

A: Irritated that there was an FBI investigation because he felt

he was innocent.

Because Defendant did not know an answer, the prosecutor asked her to give him

“generalities.” Defendant then answered in a most cryptic fashion: “Irritated that there

was an FBI investigation because he felt he was innocent.” So a question where the

witness said she couldn’t give specifics and the prosecutor asked her to speak in

generalities led to this perjury charge and conviction. The result cannot be squared with

our case law. “Precise questioning is imperative as a predicate for the offense of

perjury.” Bronston, 409 U.S. at 362. Indeed, courts require “near-absolute clarity from

the questioner in order to support a perjury charge.” United States v. Strohm, 671 F.3d

1173, 1178 (10th Cir. 2011) (quoting Linda F. Harrison, The Law of Lying: The

Difficulty of Pursuing Perjury Under the Federal Perjury Statutes, 35 U. TOL. L. REV.

397, 403 (2003)). “An answer is not a knowing false statement if the witness responds to

an ambiguous question with what he or she believes to be a truthful answer.” Id. (citing

United States v. Hilliard, 31 F.3d 1509, 1519 (10th Cir. 1994)). Thus, “the premium is

on clear, precise questioning” and the remedy here is for the prosecutor to ask better

questions, not follow up a poor question with a perjury prosecution. Id.

Put simply, the jury convicted Defendant for perjury because she gave a vague

answer to a poor question that specifically asked only for generalities. Crossexamination—the greatest truth-seeking function known to the legal system—exists for

this very reason. If the prosecutor believed something was amiss, he could have followed

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up in any number of ways. He could have asked when the conversation took place;

where the conversation took place; whether it was before or after Rudolph told her that he

“killed his fucking wife for [her]”; or whether she believed him. 1 The possibilities are

endless. But, instead, the government ignores our well-established body of caselaw in

asking us to uphold a perjury conviction based upon a cryptic answer to a poor question

that asked only for “generalities.”

And where is the evidence that the answer is a lie? Maybe it was, but how can

anyone know without relying on pure speculation and surmise? To be sure, the record

contains overwhelming evidence that Rudolph proclaimed his innocence to many people.

He maintained his innocence from the first statement in Africa to his own jury trial.

Perhaps the better question to ask Defendant was whether she believed him. Maybe if

she said yes to that question, the government could catch her in a lie. But here, we have a

bad question with a vague answer that is not clearly a lie. Without speculation, there is

not sufficient evidence to even show she was lying.

Because the jury did not have sufficient evidence to conclude beyond a reasonable

doubt that Defendant’s statement about Rudolph’s “probably” proclaiming his innocence

was knowingly false, I would vacate Defendant’s conviction on Count Nine. 2

Had the prosecutor asked questions like these and received the same answer,

perhaps the majority’s theory that the prosecutor was referencing a specific conversation would work better.

As to Defendant’s conviction for accessory after the fact, even if we vacated the perjury convictions, Defendant still would not prevail on this count. Defendant admits that, before the jury, the government argued that the accessory after the fact count was not limited to the perjury counts. It told the jury that a person may make statements that

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For these reasons, I respectfully dissent from the majority’s treatment of Count

Nine but join in the remainder of the majority’s opinion.

mislead the grand jury that aren’t technically lies. So even though I dissent on the majority’s treatment of Count Nine, I concur with the majority on the accessory after the fact count.

United States v. Milliron

Authorities cited

Opinion · public domain