United States v. Johnson

812 F.3d 757

UNITED STATES of America, Plaintiff–Appellee,

v.Stephen J. JOHNSON, Defendant–Appellant.

No. 14–10113.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 13, 2015.

Filed Feb. 5, 2016.

Jerald Brainin (argued), Los Angeles, CA, for Defendant–Appellant.

Benjamin B. Wagner, United States Attorney, Camil A. Skipper, Assistant United States Attorney, Mark E. Cullers (argued) and Laurel J. Montoya, Assistant United States Attorneys, Fresno, CA, for Plaintiff–Appellee.

Before: ALEX KOZINSKI and RICHARD C. TALLMAN, Circuit Judges, and LEE H. ROSENTHAL, District Judge.^*

OPINION

ROSENTHAL, District Judge:

This case asks us to examine whether and when it is proper to enhance a defendant's sentence for obstructing justice by committing perjury during a trial on a charge that the same defendant had obstructed justice on an earlier occasion. Other circuits have addressed the sentencing consequences of committing perjury to try to avoid a perjury conviction, but we have not.

Stephen Johnson was indicted for obstructing justice by lying under oath to a grand jury about his role in impeding an investigation by warning the targets about an impending police raid. During the trial on that charge, Johnson testified and allegedly lied under oath again. The district judge applied the obstruction-of-justice enhancement under § 3C1.1 of the United States Sentencing Guidelines (U.S.S.G.) based on Johnson's trial testimony, without expressly finding that the testimony was willfully and materially false. Our precedent requires these findings before the sentencing enhancement can be applied. United States v. Castro–Ponce, 770 F.3d 819, 822 (9th Cir.2014).

The parties agree that we must vacate the sentence and remand for resentencing. The question is whether we should remand for the district court to decide whether the trial testimony was willfully and materially false, or whether we should instruct the district court that it cannot apply the enhancement as a matter of law. This in turn requires us to address Johnson's arguments that the sentencing enhancement is precluded because his allegedly perjurious trial testimony was not a "significant further obstruction" under Application Note 7 to U.S.S.G. § 3C1.1. Johnson claims that the trial testimony did not actually hinder or impede the government's investigation or prosecution of the underlying obstruction offense and that enhancing the sentence for the underlying grand-jury perjury conviction based on the later trial perjury is impermissible double counting.

We vacate the sentence and remand for resentencing without the limiting instructions Johnson seeks, and we reject his request that we remand to a different district judge.

I. BACKGROUND

Johnson retired from his law-enforcement career to own and run a business in Modesto, California raising and training drug- and bomb-sniffing dogs for hire by law enforcement, the military, and private clients. Johnson's private clients included suspected Hells Angels members who hired him "to perform preventative canine searches of [their motorcycle shop] so that they could locate and dispose of any drugs or other contraband found on the premises." United States v. Ermoian, 752 F.3d 1165, 1167 (9th Cir.2013). Johnson was not a gang member or closely affiliated with the gang.

The Central Valley Gang Impact Task Force, a federally funded group coordinating local efforts to eliminate gang-related crimes in California's Central Valley, began investigating Hells Angels members who it learned were trying to establish a Modesto chapter. The task force suspected that sources associated with local law enforcement were leaking confidential information to the Hells Angels members under investigation. The task force issued an "Officer Safety Bulletin" containing false information about a planned police raid to identify who was passing information to the suspected gang members. Johnson was among those who heard about the Bulletin and warned suspected Hells Angels members about an impending police raid.

Johnson was recorded in two telephone conversations on September 20, 2007. In one conversation, Johnson called Robert Holloway, a suspected Hells Angels member, and told him to leave the gang's motorcycle shop immediately. Later that same day, Johnson was on the phone during a call to Holloway from Gary Ermoian, a private investigator working for the Hells Angels. Johnson warned Holloway that law-enforcement surveillance vehicles were parked outside the gang's motorcycle shop.

When federal agents interviewed Johnson, he denied any involvement in tipping off Holloway, contrary to what the recorded telephone calls revealed. Johnson was subpoenaed to testify before the grand jury. He denied, under oath, any intent to leak information to the gang. Although Johnson admitted that he had called Holloway and had taken part in a second call with Ermoian and Holloway, he maintained that he did not intend to warn Holloway about police action against the gang. Johnson admitted giving Holloway information about the police but testified that he did it as a "joke" to "fuel [Holloway's] paranoia."

Johnson was indicted on one count of conspiring to obstruct, influence, or impede an official proceeding, in violation of 18 U.S.C. §§ 1512(c)(2) and (k) ; two counts of making false statements to law enforcement, in violation of 18 U.S.C. § 1001 ; and five counts of committing perjury before the grand jury, in violation of 18 U.S.C. § 1623. Johnson testified at trial, repeating some of what he had said to law-enforcement agents and to the grand jury, but also making statements inconsistent with what he had previously said. Contrary to his grand jury testimony, Johnson asserted that he had made everything up to induce Holloway into signing a new canine-search contract, and he denied any role at all in the second call.

The jury convicted Johnson on all counts, including the charge of obstructing justice by lying to the grand jury. The judge sentenced him to serve 21 months.

This is Johnson's second appeal. In the first appeal, the panel reversed Johnson's conspiracy conviction but did not disturb his convictions for making false statements and for committing perjury before the grand jury. See Ermoian, 752 F.3d at 1173 & n. 7. On remand, the district court grouped the false-statement and grand- jury perjury convictions under U.S.S.G. § 2J1.3 ; added a two-level enhancement for obstruction of justice under § 3C1.1 based on Johnson's trial testimony; and refused to apply a two-level reduction for acceptance of responsibility under § 3E1.1. The court nevertheless varied downward from the Guidelines range of 21–27 months and imposed a 15–month sentence. This second appeal is from that sentence. Johnson challenges it as procedurally erroneous and substantively unreasonable.

II. THE STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our review of a sentence is "for reasonableness; ‘only a procedurally erroneous or substantively unreasonable sentence will be set aside.’ " United States v. Christensen, 732 F.3d 1094, 1100 (9th Cir.2013) (quoting United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc)). "Procedural errors include, but are not limited to, incorrectly calculating the Guidelines range, treating the Guidelines as mandatory, failing to properly consider the [18 U.S.C.] § 3553(a) factors, using clearly erroneous facts when calculating the Guidelines range or determining the sentence, and failing to provide an adequate explanation for the sentence imposed."Id. (quoting United States v. Armstead, 552 F.3d 769, 776 (9th Cir.2008) ). "We review the district court's interpretation of the [G]uidelines de novo" and "the substantive reasonableness of the sentence for an abuse of discretion." United States v. Hurtado, 760 F.3d 1065, 1068 (9th Cir.2014).

III. DISCUSSION

Both sides ask us to vacate and remand for resentencing because the district court erred by enhancing the sentence without making the findings necessary to show that Johnson's trial testimony was, in fact, perjury. We agree. But Johnson goes further and asks us to remand with an instruction that even if his trial testimony was perjurious, the obstruction enhancement cannot be applied. We reject that request, as well as his request to remand to a different judge for resentencing.

A. The Obstruction Enhancement

Section 3C1.1 of the Sentencing Guidelines provides:

Obstructing or Impeding the Administration of Justice

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.

U.S.S.G § 3C1.1. A district court applying the enhancement based on perjury must expressly find that "(1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent." Castro–Ponce, 770 F.3d at 822 (internal quotation marks omitted). Because the district court did not make the required express findings, we must vacate the sentence and remand.

Johnson contends that even if the district court finds on remand that his trial testimony was willfully and materially false, that testimony cannot be the basis for the obstruction enhancement because it largely repeated the false grand jury testimony that led to the underlying perjury conviction. Johnson cites Application Note 7 to § 3C1.1, which precludes applying the enhancement to an underlying obstruction offense (such as perjury) unless "a significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself (e.g., if the defendant threatened a witness during the course of the prosecution for the obstruction offense)." U.S.S.G. § 3C1.1 cmt....