United States Court of Appeals
Fifth Circuit
F I L E D
REVISED DECEMBER 19, 2003
November 24, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
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No. 03-30152
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VERONA L. JOHNSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
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Before DeMOSS, DENNIS and PRADO, Circuit Judges.
PRADO, Circuit Judge.
The above numbered and styled appeal arose from the
sentencing of the appellant, Verona L. Johnson (Johnson), for
being a felon in possession of a firearm. In this appeal,
Johnson challenges a two-level enhancement for obstruction of
justice.
Background of the Appeal
Johnson was indicted for being a felon in possession after
police officers from the Shreveport Police Department responded
to a call about a domestic disturbance at Johnson’s home. When
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the officers arrived, the person who placed the call had left the
house, but someone outside the house told the officers that
Johnson had threatened her with a gun. The officers went to
Johnson's home and told Johnson they were looking for a firearm
and asked to search the house. Johnson consented to the search.
During the search, the officers found two 9mm rounds on a dresser
and a firearm between the mattress and box spring of a bed.
During trial, Johnson’s twin sister testified that she had
placed the firearm in a gun case between the mattress and the box
spring, but that she had not left any bullets outside the case.
A rebuttal witness, however, testified that Johnson’s twin sister
told her that she was going to take the blame for Johnson’s gun
charge. Although Johnson testified she did not know the firearm
was in the house, a jury convicted her of being a felon in
possession of a firearm.
At sentencing, Johnson objected to the probation officer’s
recommendation for a two-level enhancement for obstruction of
justice. The trial judge indicated he believed the sister
perjured herself and that Johnson knew her sister lied. Based on
that belief, the district court granted the Government’s motion
for a two-level enhancement for obstruction of justice and
sentenced Johnson to 41 months in prison. Johnson challenges the
enhancement in this appeal.
Standard of Review for an Enhancement
2
This Court ordinarily reviews an enhancement based on an
obstruction of justice for clear error. See United States v.
Graves, 5 F.3d 1546, 1555 (5th Cir. 1993). To satisfy the clear
error test, the district court’s finding of obstructive conduct
must be plausible in light of the record as a whole. See United
States v. Edwards, 303 F.3d 606, 645 (5th Cir. 2002). This
appeal, however, presents a question about the applicable
standard of review.
Enhancement Based on Obstruction of Justice
On appeal, Johnson maintains the district erred because the
court’s finding that Johnson knew about her sister’s perjury is
insufficient to support the obstruction of justice adjustment.
Johnson argues that mere knowledge of the falsity of a witness’s
testimony is not enough to justify the enhancement. In addition,
Johnson maintains that no evidence exists that Johnson procured
her sister’s testimony.
Section 3C1.1 of the Sentencing Guidelines authorizes a two-
level enhancement if
(A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the course of the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to
(i) the defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related offense....
Suborning perjury is one type of obstructive conduct contemplated
by the drafters of this section. See U.S.S.G. §§ 3C1.1 app. note
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4(b).
If a defendant objects to a sentence enhancement based on
perjured testimony, the “‘district court must review the evidence
and make independent findings necessary to establish a willful
impediment to or obstruction of justice, or an attempt to do the
same, under the perjury definition . . . .’” United States v.
Storm, 36 F.3d 1289, 1295 (quoting United States v. Dunnigan, 113
S. Ct. 1111, 1117 (1993)). “When the district court is making
such a finding, the preferable practice is to address each
element of the alleged perjury in a separate and clear finding.
The finding is sufficient, however, if the court makes a finding
of an obstruction or impediment of justice that encompasses all
of the factual predicates for a finding of perjury.” Storm, 36
F.3d at 1295.
Whether the District Court’s Findings Are Adequate
In this case, the presentence report (PSR) recommended
adjusting Johnson’s offense level because Johnson solicited her
sister’s assistance to testify that the firearm belonged to the
sister. The recommendation was based on the inconsistencies
between the testimonies of Johnson’s sister and the Government’s
rebuttal witness. Johnson objected to the recommendation on the
basis that her sister’s testimony was truthful, and
alternatively, that even if her sister’s testimony was
untruthful, Johnson had no knowledge of its falsity. Because
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Johnson objected, the district court was required to make
independent findings necessary to establish an obstruction of
justice. See Storm, 36 F.3d 1289, 1295. Because the district
court’s judgment implies an enhancement based on subornation of
perjury, the first question this Court must answer is whether the
district court’s findings encompassed all the factual predicates
for finding Johnson suborned perjury.
“A witness testifying under oath or affirmation [commits
perjury] if she gives false testimony concerning a material
matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory.”
Subornation occurs whenever the defendant “procures another to
commit any perjury.” 18 U.S.C. § 1622. United States v.
Dunnigan, 113 S. Ct. 1111, 1116 (1993). Thus, to be adequate,
the district court’s findings must identify false testimony
concerning a material matter, indicate the witness testified with
willful intent to provide false testimony, and indicate the
defendant procured the witness’s testimony. The district court,
however, did not make these explicit findings.
At sentencing, the trial judge advised Johnson’s attorney,
“I heard the evidence in trial, so I’m going to put the ball in
your court, because as of right now I firmly believe that – not
firmly, but I believe that the sister came in here and lied and
did it with your client’s knowledge. So it’s up to you.”
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Johnson’s attorney then asked for a recess to confer with his
client. After conferring with Johnson, the attorney advised the
trial judge that “we believe it would not accomplish anything,
though the sister is present today to put [sic] on the stand and
basically just have her say that she told the truth before, so we
have no evidence to adduce regarding that remark.” The trial
judge accepted the attorney’s explanation and stated, “[s]o we
won’t run into any perjury problems from anybody from anything
that is done today. Suffice it to say I heard the evidence and I
believe that the obstruction occurred.” Notably, the trial judge
did not identify the false testimony, identify a material issue,
find that the sister testified with willful intent, or find that
Johnson procured her sister’s false testimony. As a result, the
district court’s findings are not adequate because they do not
encompass the factual predicates for suborning perjury.1
The Remedy When the District Court's Findings Are Inadequate
Although Johnson’s attorney objected to the enhancement, the
attorney did not make a specific objection about the adequacy of
the district court’s findings. This Court has not addressed the
standard of review for this situation. Previously, however, the
1
The district court’s statement in regard to Johnson’s sister probably
referred to the testimony that the sister placed the firearm in Johnson’s
house, but the district court did not make such an explicit finding.
Likewise, the district court’s statement about Johnson’s knowledge of the
falsity of her sister’s testimony infers the district court found that Johnson
asked her sister to testify that she placed the firearm in the house, but
again the district court did not make such an explicit finding.
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Court considered a somewhat similar case and determined that the
case should be remanded.
In United States v. Humphrey, 7 F.3d 1186 (5th Cir. 1993),
the Government asked for a sentence enhancement under section
3C1.1 on grounds that the defendant perjured himself. The
district court denied the motion, but failed to make a finding
about whether the defendant committed perjury. On appeal, the
Government complained that the district court failed to make a
finding about whether the defendant committed perjury. Although
the Humphrey opinion does not indicate whether the Government
made this specific objection at trial, this Court observed that
the section 3C1.1 enhancement is mandatory, and determined it had
no basis for ascertaining whether the district court erred
because the district court had not indicated whether it had found
the defendant committed perjury about a material issue or whether
the court simply refused to apply the enhancement. Left without
a basis for considering the propriety of the district court’s
ruling, the Court vacated the defendant’s sentence and remanded
the case to the district court for a specific finding of whether
the defendant committed perjury.
Like the district court in Humphrey, the district court
failed to make a finding that Johnson procured her sister’s
testimony. Instead, the district court simply found that
Johnson’s sister lied and that Johnson knew her sister lied.
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With only those findings, this Court cannot determine whether the
district court found the sister lied about a material issue and
whether the district court found Johnson procured her sister’s
testimony. Because it was the district court’s duty in the first
instance to make the findings in support of the enhancement, it
is appropriate to vacate Johnson’s sentence and remand the case
for specific findings.2 As a result, this Court VACATES
Johnson's sentence and REMANDS this case to the district court.
If, on remand, the district court finds Johnson's sister wilfully
lied about a material issue and that Johnson procured her
sister's false testimony, and imposes the enhancement, the Court
would review a second challenge under the clear-error standard.
SENTENCE VACATED AND CASE REMANDED.
2
The United States Court of Appeals for the Seventh Circuit
addressed a similar situation in United States v. Holman, 314 F.3d 837, 846
(7th Cir. 2002), and applied the plain-error standard. Under the plain-error
analysis, the court of appeals may only reverse when: (1) there was an error,
(2) the error was clear and obvious, and (3) the error affected the
defendant's substantial rights. See United States v. Hayes, 342 F.3d 385, 388
(5th Cir. 2003); FED. R. CRIM. P. 52(b). As here, the attorney in Holman
objected to the section 3C1.1 enhancement, but did not object to the findings
of fact made during the sentencing hearing. On appeal, the defendant
complained that the district court failed to make proper findings. As a
result, the court of appeals applied the plain-error standard and determined
the district court’s findings were adequate. Although plain-error departs
from the clear-error standard ordinarily applied to enhancements based on
obstruction of justice, applying the plain-error would be consistent with the
way this Court ordinarily reviews unobjected-to error. This approach is not
appropriate, however, because Johnson does not complain on appeal about the
specificity of the district court’s findings and because the district court’s
findings are not adequate.
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