United States v. Stephen Johnson , 812 F.3d 757 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10113
Plaintiff-Appellee,
D.C. No.
v. 1:08-cr-00224-
LJO-DLB-12
STEPHEN J. JOHNSON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
August 13, 2015—San Francisco, California
Filed February 5, 2016
Before: Alex Kozinski and Richard C. Tallman, Circuit
Judges, and Lee H. Rosenthal, District Judge.*
Opinion by Judge Rosenthal
*
The Honorable Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.
2 UNITED STATES V. JOHNSON
SUMMARY**
Criminal Law
The panel vacated a sentence and remanded for
resentencing in a case in which the defendant, who was
convicted of committing perjury before a grand jury, received
an obstruction-of-justice enhancement under U.S.S.G.
§ 3C1.1 for committing perjury at trial on the underlying
perjury charge.
The panel agreed with the parties that the district court
erred by applying the § 3C1.1 enhancement without making
the requisite express findings that the trial testimony was
willfully and materially false.
The panel rejected the defendant’s request to instruct the
district court that, even if his trial testimony was perjurious,
the obstruction enhancement cannot be applied.
The panel wrote that the record does not support the
defendant’s argument that his trial testimony largely repeated
the false grand jury testimony that led to the underlying
perjury conviction, and concluded that inconsistencies
between the grand jury and trial testimony could make the
trial testimony (if found to be willfully and materially false)
a “significant further obstruction” under Application Note 7
to 3C1.1. The panel explained that perjury does not have to
actually impede a prosecution or trial to be a “significant
further obstruction” under Application Note 7. The panel
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. JOHNSON 3
rejected the defendant’s contention that applying the
enhancement would constitute impermissible
double-counting.
The panel remanded for the district court to make express
findings as to the willfulness and materiality of the
defendant’s trial testimony in order to determine whether the
obstruction enhancement applies, and to resentence
accordingly.
The panel rejected the defendant’s request to remand to
a different district judge.
COUNSEL
Jerald Brainin (argued), Los Angeles, California, 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, California, for Plaintiff-Appellee.
4 UNITED STATES V. JOHNSON
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”
UNITED STATES V. JOHNSON 5
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
6 UNITED STATES V. JOHNSON
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
UNITED STATES V. JOHNSON 7
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
8 UNITED STATES V. JOHNSON
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:
O b stru cti n g or I mp e d i n g the
Administration of Justice
If (1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede,
UNITED STATES V. JOHNSON 9
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. 7.1
1
Johnson argues that the government waived its arguments on this issue
by failing to raise them in its answering brief. Although the government’s
failure to assert an available argument in its answering brief generally
waives that argument, “we may consider an issue regardless of waiver if
10 UNITED STATES V. JOHNSON
The record does not support Johnson’s argument. While
his trial testimony repeated some of the grand jury testimony
that was the basis for the five counts of conviction at trial, it
also introduced new falsehoods. Contrary to his grand jury
testimony that he warned a gang member of an impending
police raid as a joke, Johnson testified at trial that he used the
raid threat to persuade the gang member to sign a contract for
Johnson’s canine drug-sniffing services. Contrary to his
grand jury testimony and to his statements on the wiretap
recordings, Johnson testified at trial that he was never on the
phone call that Ermoian, one of the codefendants, made to
pass along Johnson’s warning about the police raid. These
and other inconsistencies between the grand jury and trial
testimony could make the trial testimony (if found to be
wilfully and materially false) a “significant further
obstruction.”2
Johnson also claims that the enhancement cannot apply
because his trial testimony, even if perjurious, “could not
have hindered the jury’s deliberations or otherwise impeded
the government’s prosecution of the underlying perjury
the issue is purely one of law and the opposing party will suffer no
prejudice . . . .” Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.
2003); see also United States v. Mi Kyung Byun, 539 F.3d 982, 987 (9th
Cir. 2008); United States v. Berger, 473 F.3d 1080, 1100 n.5 (9th Cir.
2007). When, as here, the issue not raised in the government’s answering
brief is a question of law, the relevant record is fully developed, and the
parties have responded to requests for additional briefs, there is no
prejudice.
2
Because Johnson’s trial testimony differed from his grand jury
testimony, we need not reach the issue of whether identical false
testimony qualifies as a “significant further obstruction.” On this record,
the district court need only find that Johnson’s statements—both before
the grand jury and at trial—were wilfully false and material.
UNITED STATES V. JOHNSON 11
charges in any significant or meaningful way.” Johnson
points out that the petit jury had a copy of his grand jury
testimony and of the recordings of the two phone
conversations and would not have been led astray by his trial
testimony. But perjury does not have to actually impede a
prosecution or trial to be a “significant further obstruction”
under Application Note 7 to § 3C1.1. Johnson’s argument to
the contrary misconstrues the exception, which has only two
requirements. First, the defendant’s obstructing conduct must
be “significant,” that is, meaningful or notable, as lying under
oath often will be. See United States v. Dunnigan, 507 U.S.
87, 97 (1993) (defendant who commits perjury “def[ies] the
trial process”). Second, the conduct must be “further,” that
is, in addition to the underlying offense. Neither “significant”
nor “further” adds a requirement that the defendant’s
obstructive conduct succeed in impeding “the investigation,
prosecution, or sentencing of the obstruction offense itself.”
U.S.S.G. § 3C1.1 cmt. 7.
Application Note 4 to § 3C1.1 cites “examples of the
types of conduct to which [the obstruction] enhancement
applies.” Id. § 3C1.1 cmt. 4. Some of these examples
expressly require a finding that the defendant’s conduct
actually hindered the government’s efforts. Destroying or
concealing evidence “contemporaneously with arrest” does
not “warrant an adjustment for obstruction unless it results in
a material hindrance to the official investigation or
prosecution of the instant offense or the sentencing of the
offender.” Id. § 3C1.1 cmt. 4(D). Making “a materially false
statement to a law enforcement officer” may be enhanced
only if the statement “significantly obstructed or impeded the
official investigation or prosecution of the instant offense.”
Id. § 3C1.1 cmt. 4(G); see also United States v. Solano-
Godines, 120 F.3d 957, 964 (9th Cir. 1997) (“[A]ctual,
12 UNITED STATES V. JOHNSON
significant hindrance to investigation is necessary when false
aliases are given, not under oath, during the investigation.”
(emphasis added) (quoting United States v. Urbanek,
930 F.2d 1512, 1515 n.2 (10th Cir. 1991))).
Critically, the Application Notes to § 3C1.1 also give
examples of conduct warranting the enhancement without a
finding of actual hindrance. Providing “materially false
information to a judge or magistrate judge” or “to a probation
officer in respect to a presentence or other investigation for
the court” may warrant enhancement without showing actual
hindrance. See U.S.S.G. § 3C1.1 cmt. 4(F), (H). The
example of a “significant further obstruction” in Application
Note 7—“threaten[ing] a witness during the course of the
prosecution for the obstruction offense”—contains no
requirement that the witness’s testimony have changed
because of the threats. See id. § 3C1.1 cmt. 7. Similarly,
perjured testimony can be the basis for the enhancement
without a showing that the testimony actually impeded the
government’s prosecution or the trial. See id. § 3C1.1 cmt.
4(B) (allowing the enhancement for committing perjury).
The Guidelines do not limit the exception to Application Note
7 to a later perjury that actually impedes an investigation,
prosecution, or sentencing.
The out-of-circuit cases Johnson cites are inapposite. In
each case, the uncharged conduct for the obstruction
enhancement involved using a false name or identification.3
3
See United States v. Elliott, 467 F.3d 688, 691 (7th Cir. 2006); United
States v. Williams, 288 F.3d 1079, 1080 (8th Cir. 2002); United States v.
Manning, 955 F.2d 770, 774–75 (1st Cir. 1992), abrogated on other
grounds by United States v. Gonsalves, 435 F.3d 64 (1st Cir. 2006);
United States v. Robinson, 978 F.2d 1554, 1566 (10th Cir. 1992).
UNITED STATES V. JOHNSON 13
The Guidelines instruct courts not to apply the § 3C1.1
enhancement when a defendant “provid[es] a false name or
identification document at arrest, except where such conduct
actually resulted in a significant hindrance.” Id. § 3C1.1 cmt.
5(A). This case, by contrast, involves lying under oath,
which is not so limited.
Johnson also argues that applying the enhancement to his
trial perjury in a sentencing for his grand jury perjury would
penalize him twice for the same conduct. “Impermissible
double counting occurs when one part of the Guidelines is
applied to increase a defendant’s punishment on account of
a kind of harm that has already been fully accounted for by
application of another part of the Guidelines.” United States
v. Pham, 545 F.3d 712, 717 (9th Cir. 2008) (quoting United
States v. Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008)). But
Johnson testified before two separate tribunals, the grand jury
and the petit jury. As noted, his trial testimony not only
repeated much of his grand jury testimony but also introduced
new statements inconsistent with what he was recorded as
saying, what he told law enforcement, and what he testified
to before the grand jury. Applying the enhancement to his
trial testimony does not penalize him twice for the same
perjury. The trial testimony was separate and distinct from
the grand jury testimony, given in a different forum and at a
later time. See United States v. Holt, 510 F.3d 1007, 1012
(9th Cir. 2007) (affirming the district court’s application of
“two enhancements account[ing] for . . . distinct wrongs”).
The Seventh Circuit agrees that applying the § 3C1.1
enhancement in a case like this does not amount to double
counting. In United States v. Lueddeke, the court rejected the
defendant’s argument that an upward adjustment “for
obstructing the investigation of the initial perjury offense by
14 UNITED STATES V. JOHNSON
continuing to lie to the grand jury and by producing false
documents before the grand jury . . . was neither appropriate
nor available in a case of multiple acts involving the same
kind of misconduct.” 908 F.2d 230, 234 (7th Cir. 1990). The
court explained that “the Guidelines clearly call for two
adjustments in a case where . . . a defendant interferes with
one investigation and then also interferes with a resulting
investigation of the interference.” Id. at 234 n.2.
Allowing an obstruction enhancement for subsequent
perjury is also consistent with United States v. Dunnigan, in
which the Supreme Court upheld the constitutionality of
applying § 3C1.1. 507 U.S. 87, 94 (1993). The Court noted
that “[i]t is rational for a sentencing authority to conclude that
a defendant who commits a crime and then perjures herself in
an unlawful attempt to avoid responsibility is more
threatening to society and less deserving of leniency than a
defendant who does not so defy the trial process.” Id. at 97.
That is no less true when, as here, the underlying crime is
perjury.
Under Johnson’s approach, a defendant who commits
perjury to try to avoid responsibility for a previous perjury
would escape any consequences unless there was a separate
prosecution for that second perjury. Applying the § 3C1.1
enhancement to the second perjury could “deter false
testimony in much the same way as a separate prosecution for
perjury.” Id. “[M]ore than a mere surrogate for a perjury
prosecution,” the enhancement “furthers legitimate
sentencing goals relating to the principal crime, including the
goals of retribution and incapacitation.” Id. Applying the
obstruction enhancement to Johnson’s false trial testimony
does not impermissibly penalize him twice for the same
UNITED STATES V. JOHNSON 15
conduct if the district court finds that his trial testimony was
false, willful, and material.4
We remand for the district court to make express findings
as to the willfulness and materiality of Johnson’s trial
testimony in light of Castro-Ponce in order to determine
whether the obstruction enhancement applies, and to
resentence accordingly.5
4
Our conclusion is consistent with that of other circuits. See United
States v. McCoy, 316 F.3d 287, 288–89 (D.C. Cir. 2003) (per curiam)
(“Lying under oath to protect oneself from punishment for lying under
oath seems to us—and to the Supreme Court—to be precisely the sort of
‘significant further obstruction’ to which Note 7 refers.” (citing Dunnigan,
507 U.S. at 97)); United States v. Pattan, 931 F.2d 1035, 1043 (5th Cir.
1991) (affirming under plain-error review enhancing the sentence under
a conviction for perjury before the grand jury based on “evidence in the
record of [the defendant’s] further false statements to the trial jury, to the
FBI investigator, and to his attorney after trial”); see also United States v.
Fernandez, 389 F. App’x 194, 203–04 (3d Cir. 2010) (the defendant’s
“perjury at trial constitutes a ‘significant further obstruction’ during the
prosecution of his perjury before the grand jury.” (citing McCoy, 316 F.3d
at 289)); United States v. Brewer, 332 F. App’x 296, 310 n.9 (6th Cir.
2009) (“[T]he district court properly concluded that the exception to
Application Note 7 applied in situations, such as this, where a defendant
took the stand in a perjury trial.” (citing McCoy, 316 F.3d at 289)).
5
Johnson also argues that the district court erred in failing to recognize
its discretion to apply both an obstruction enhancement and an
acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1, failing to
consider his relative culpability argument, and imposing a custodial
sentence that was longer than necessary. We leave these arguments for
the district court to consider on remand.
16 UNITED STATES V. JOHNSON
B. Reassignment on Remand
Johnson argues that we should assign this case to a
different judge on remand. He points to the sentencing
judge’s denial of his motion for bail pending appeal before he
could file a reply and to statements made during sentencing.6
“Absent personal bias, remand to a new judge is
warranted only in rare circumstances.” United States v.
6
Johnson cites the following statements:
• “I don’t understand why [Johnson’s trial testimony]
is not further—why that furtherance of the perjury is
not obstruction.”
• “If [the jury] conclude[s] that it’s not truthful, they
rely on it in a different manner and they deal with it
in a different manner. But it is certainly further
obstruction.”
• “But when you get up and lie again in front of a jury
in a courtroom, that’s not the same thing [as lying
before a grand jury]. You may tell the same lie, but
it is not the same thing. It is further obstruction and
it is significant further obstruction.”
• After Johnson told the court that he “just came up
with this wild-ass story” about the impending law
enforcement raid to scare the Hells Angels into
signing a contract with him for more canine-sniff
work, the court responded that the story “turned out
to be true.”
• “I don’t think that there is acceptance of
responsibility when you lie before a jury. I’m talking
about not the Grand Jury. I’m talking about the jury
in criminal.”
UNITED STATES V. JOHNSON 17
Huckins, 53 F.3d 276, 280 (9th Cir. 1995); see also
Krechman v. Cty. of Riverside, 723 F.3d 1104, 1112 (9th Cir.
2013). We consider “(1) whether the original judge would
reasonably be expected upon remand to have substantial
difficulty in putting out of his or her mind previously-
expressed views or findings determined to be erroneous or
based on evidence that must be rejected, (2) whether
reassignment is advisable to preserve the appearance of
justice, and (3) whether reassignment would entail waste and
duplication out of proportion to any gain in preserving the
appearance of fairness.” Krechman, 723 F.3d at 1111–12
(internal quotation marks omitted). “The first two factors are
equally important and a finding of either is sufficient to
support reassignment on remand.” Id. at 1112.
The sentencing judge’s comments about Johnson’s trial
testimony and the denial of Johnson’s motion for bail pending
appeal did not demonstrate personal bias or suggest that the
judge would have substantial difficulty putting out of his
mind any previously expressed erroneous views. See id.
(rejecting the plaintiff’s reassignment request even though the
presiding judge “made several off-color comments that may
not have been well-received” because “the record [did] not
suggest that he was unfair”). Reassignment is not needed to
preserve justice or the appearance of justice and would entail
unnecessary waste and duplication. We deny Johnson’s
request to reassign this case to a different judge on remand.
IV. CONCLUSION
We vacate Johnson’s sentence and remand for the district
court to make explicit findings on the willfulness and
materiality of Johnson’s false trial testimony. We do not
reach Johnson’s additional arguments about applying the
18 UNITED STATES V. JOHNSON
acceptance-of-responsibility adjustment, his relative
culpability, or substantive reasonableness. The sentence is
reversed, and this action is remanded to the district court for
resentencing.
VACATED and REMANDED for resentencing.