United States v. Johnson , 261 F. App'x 611 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4106
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON SHERRARD JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:05-cr-00062-1)
Argued: September 25, 2007 Decided: January 16, 2008
Before MICHAEL and MOTZ, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Colin R. Stockton, MOORE & VAN ALLEN, Charlotte, North
Carolina, for Appellant. David Alan Brown, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Paul J. Peralta, MOORE & VAN
ALLEN, Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant Jason Sherrard Johnson appeals his conviction and
sentence in the Western District of North Carolina for aggravated
identity theft. On appeal, defendant makes two contentions: (1)
that his conviction must be reversed because the government failed
to prove that the alleged crimes involved stealing the means of
identification of a person, and (2) that the court erroneously
enhanced his sentence by two levels for subornation of his
witness’s perjured trial testimony. For the reasons that follow,
we reject defendant’s contentions and affirm the conviction and
sentence.
I.
On February 7, 2005, a homeless man, Lee Thomas Jones, walked
into a bank in Concord, North Carolina, and told the bank manager
that he was being forced to cash checks by two men awaiting him in
a blue rental car. The bank called the police, and one of the
first officers to arrive on the scene spotted a car matching the
description given by Jones pulling out of the bank’s parking lot.
The officer followed the car and confirmed that its two occupants
matched the general description of the suspects given by Jones.
When the occupants noticed the police car behind them, they began
making evasive lane changes. The police forced the car to stop and
removed defendant from the passenger seat and Bradley Thomas
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Wallace from the driver’s seat. After obtaining Wallace’s consent,
the police searched the car and found thirteen counterfeit or
altered checks under the passenger seat where defendant had been
sitting.
Defendant and Wallace were arrested, and the following day
they were interviewed by United States Postal Inspector Justin G.
Crooks. During the interview, defendant admitted that after his
release from prison on charges similar to those here, he and
Wallace needed money and decided to get back in the business of
stealing, altering, and cashing checks through homeless people.
Wallace, on the other hand, denied any involvement in the check-
cashing scheme and pointed the finger at defendant instead.
Defendant and Wallace were indicted on March 2, 2005, in a
twenty-six count indictment that included possession of
counterfeit/forged securities (Counts 1–13), in violation of 18
U.S.C. § 513(a), and possession of stolen mail (Counts 14–26), in
violation of 18 U.S.C. § 1708. The grand jury issued a superseding
bill of indictment on June 28, 2005, which included an additional
charge for aggravated identity theft (Count 27), in violation of 18
U.S.C. § 1028A(a)(1) and (2).
After jury selection, but prior to the start of the evidence,
Wallace pled guilty, without the benefit of a plea agreement, to
all counts in the indictment. At trial, Jones testified that
during a two-week period defendant and Wallace drove to banks in
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South Carolina and North Carolina where Jones attempted to cash
counterfeit checks made out to himself.
Two of the checks found under defendant’s seat were
counterfeits of checks issued by Gail Brinn Wilkins. Ms. Wilkins
testified at trial that she is the owner of a business called Gail
Brinn Wilkins, Incorporated. She described the two counterfeit
checks as bearing the same check numbers, company names and
purported signatures of two legitimate checks that she had issued
to other payees, but which were instead made payable to Lee Thomas
Jones.
At the conclusion of the government’s case, the district court
dismissed Counts 14–23 based on a lack of evidence establishing the
use of the mails. For his defense on the remaining counts,
defendant called Wallace as his lone witness. The district court
granted defense counsel’s request for an opportunity to interview
Wallace during the lunch break before calling him to the witness
stand. Wallace testified, admitting his own guilt and exonerating
defendant. His testimony acknowledged his own and defendant’s
statements made the day after they were arrested. However, Wallace
stated that he could not provide an explanation for the
inconsistency between his trial testimony and the pre-trial
statements.
The jury returned a guilty verdict on all remaining counts of
the indictment. The United States Probation Office prepared a pre-
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sentence report, to which the government filed an objection,
arguing that defendant should receive a two-level enhancement for
obstruction of justice for suborning the perjurious testimony of
Wallace. A revised pre-sentence report was prepared adjusting
defendant’s guidelines offense level upward by two levels for
obstruction of justice for subornation of Wallace’s perjury.
During the sentencing hearing, the district court found that
Wallace testified falsely. The court also found that because
defendant’s attorney was given the opportunity to interview Wallace
during the lunch recess before calling him to the stand, it was
reasonable to infer that the attorney discussed Wallace’s
anticipated exculpatory testimony with the defendant, and that the
defendant knew such testimony would be false. The court inferred
that the defendant encouraged his attorney to call Wallace with
knowledge that his expected testimony would be false. The court
noted that defendant and Wallace were arrested at the same time
after having committed the crime together, supporting the inference
that the defendant knew that any exculpatory testimony from Wallace
would be false.
The district court sentenced defendant to the maximum term of
imprisonment provided under the sentencing guidelines: 46 months
in prison on Counts 1–13 and Counts 24–26 to run concurrently, with
a consecutive sentence of 24 months on Count 27. The court
specifically found that “the only way to prevent future crimes of
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this nature by the defendant is to incarcerate him. The public
will be safe from these crimes only so long as the defendant is in
custody. . . . And it would be the same sentence that I imposed
regardless of the guidelines.” (J.A. 531).
II.
Defendant first challenges the sufficiency of the evidence
underlying his conviction for aggravated identity theft.
Specifically, defendant argues that the government failed to
establish that he had assumed the identity or otherwise used the
means of identification of a natural person in violation of 18
U.S.C. § 1028A.
The court reviews de novo the district court’s denial of a
motion for judgment of acquittal. See United States v. Ryan-
Webster, 353 F.3d 353, 359 (4th Cir. 2003). The district court’s
determination of the ambit of a criminal statute is also reviewed
de novo. Id.
The issue at trial and on appeal is whether the aggravated
identity theft statute, 18 U.S.C. § 1028A, requires a criminal
defendant to have attempted to steal the identity of a natural
person, or whether “person” can mean a corporation. The statute
provides, in relevant part
Whoever, during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to
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the punishment provided for such felony, be sentenced to
a term of imprisonment of 2 years.
18 U.S.C. § 1028A(a)(emphasis added). The term “means of
identification” is defined as “any name or number that may be used,
alone or in conjunction with any other information, to identify a
specific individual.” 18 U.S.C. § 1028(d)(7).
Defendant argues that Congress meant to limit aggravated
identity theft to those involving natural persons, not companies.
The government argues that Ms. Wilkins’s name as part of the
company name was sufficient to identify a specific individual under
the statute.
The court agrees with the government that use of Ms. Wilkins’s
name as part of the company name was sufficient to satisfy the
means of identification element in 18 U.S.C. § 1028A.
Independently, the court finds that use of Ms. Wilkins’s name as
the signatory on the checks is sufficient to identify a specific
individual under the statute.
For the foregoing reasons, we affirm defendant’s conviction on
Count 27.
III.
Defendant next challenges the district court’s sentencing
enhancement for obstruction of justice, U.S. Sentencing Guidelines
Manual § 3C1.1, based on subornation of Wallace’s perjury.
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The court reviews the enhancement on a mixed standard of
review: the findings of fact are subject to a clearly erroneous
standard, and the court’s interpretation of the sentencing
guidelines is reviewed de novo. See United States v. Moreland, 437
F.3d 424, 433 (4th Cir. 2006), United States v. Jones, 308 F.3d
425, 427 (4th Cir. 2002).
Obstruction of justice is not defined in the guidelines, but
includes “committing, suborning, or attempting to suborn perjury.”
U.S. Sentencing Guidelines Manual § 3C1.1 cmt. n.4(b). Subornation
of perjury consists of three elements: the suborner (1) “should
have known or believed or have had good reason to believe that the
testimony given would be false”; (2) “should have known or believed
that the witness would testify willfully and corruptly, and with
knowledge of the falsity”; and (3) have “knowingly and willfully
induced or procured the witness to give false testimony.” Petite v.
United States, 262 F.2d 788, 794 (4th Cir. 1959), vacated on other
grounds, 361 U.S. 529, 80 S. Ct. 450, 4 L. Ed. 2d 490 (1960); see
also United States v. Heater, 63 F.3d 311, 320 (4th Cir. 1995)
(“Subornation of perjury consists of procuring or instigating
another to commit perjury.”).
Although defendant also questions the falsity and materiality
of Wallace’s testimony, defendant primarily objects to the
enhancement on the ground that there was no evidence that he
willfully procured the false testimony. Defendant asserts that
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knowledge of false testimony alone is insufficient, as there must
be evidence that he induced or procured the false testimony.
Defendant suggests that, at most, he merely allowed Wallace to give
perjured testimony, which he argues does not constitute a
sufficient basis for the enhancement. For support, defendant cites
this court’s unpublished opinion in United States v. Lesczynski, 86
Fed. App’x 551 (4th Cir. 2004), which held that the fact that
defendant allowed his brother-in-law to testify did not establish
the element of procurement necessary for obstruction of justice.
Subornation is but one example of the type of conduct that
constitutes obstruction. As we recognized in United States v.
Washington, 171 Fed. App’x 986, 988 (4th Cir. 2006)(unpublished),
“the calling of a witness whom the defendant knows will testify
falsely could constitute obstruction of justice” even if it does
not necessarily constitute subornation of perjury. This holding is
consistent with the majority of circuits that have considered the
issue.*
*
See United States v. Livotti, 196 F.3d 322, 327 (2d Cir.
1999)(holding that obstruction of justice enhancement based on
district court’s finding that defendant called trial witnesses
knowing they would offer false testimony was not clearly
erroneous); United States v. Lowder, 148 F.3d 548, 552–53 (5th Cir.
1998)(finding enhancement for obstruction of justice proper where
plausible inference that defendant counseled or induced attorney to
call perjurious witness supported district court’s factual finding
of subornation of perjury); United States v. Miller, 159 F.3d 1106,
1112–13 (7th Cir. 1998)(holding that obstruction of justice
enhancement based on evidence that defendant suborned perjury by
calling sole witness to contradict testimony of government
witnesses was not clearly erroneous); United States v. Calderon-
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We therefore conclude that the district court's determination
that defendant obstructed justice by knowingly calling his co-
defendant to give perjured testimony could be affirmed if the
court's factual finding is supported by the record.
Based on the facts of this case, the district court did not
clearly err in applying the enhancement. As the district court
stated, whether the defendant encouraged his attorney to call the
witness with knowledge of his expected false testimony is an
inference not subject to direct proof. The inference drawn by the
district court that defendant either directed or encouraged his
attorney to call Wallace as a witness is a reasonable one
circumstantially supported by logic.
At least with respect to Wallace's testimony regarding whether
defendant was a participant in the check cashing scheme, there is
a clear basis in the record to find that defendant obstructed
justice. First, defendant had personal knowledge of the truth or
falsity of Wallace's testimony because Wallace described an event
at which both he and defendant were present. Second, defendant had
knowledge of Wallace's testimony prior to calling him as a witness
Avila, 322 F.3d 505, 507 (8th Cir. 2003)(upholding application of
obstruction of justice enhancement based on district court’s
finding that defendant suborned perjurious testimony to obstruct
government’s prosecution efforts); United States v. Bradberry, 466
F.3d 1249 (11th Cir. 2006)(upholding obstruction of justice
enhancement and holding that defendant suborns, aids or abetts,
procures, or willfully causes perjury by calling witness to testify
on defendant’s behalf knowing the witness will testify falsely).
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because his attorney requested, and was given, the opportunity to
interview Wallace during the lunch recess before calling him to the
stand. The district court found that “it’s reasonable to infer
that the attorney discussed Wallace’s anticipated exculpatory
testimony with the defendant, and that the defendant knew such
testimony would be false.” (J.A. 515).
Furthermore, logic dictates that defendant would not have
consented to calling Wallace as a witness to corroborate the
government’s case against him and to have him testify consistently
with their pretrial confessions. Instead, the district court
reasonably inferred that defendant called Wallace with the
expectation that his testimony would exonerate defendant. By
knowing that Wallace's testimony was false, but choosing to call
Wallace in his defense, defendant either obstructed justice
directly or, at the very least, “aided or abetted” Wallace's
perjury before the district court. U.S. Sentencing Guidelines
Manual § 3C1.1 cmt. n.9.
The court's conclusion that defendant also knew how Wallace
would testify is not clearly erroneous. Wallace's testimony was
defendant’s sole defense and contradicted the testimony of witness
Lee Jones, who testified that defendant held the envelope
containing the counterfeit checks, handed him the counterfeit check
to cash at the bank, and instructed him that “[t]his is the check
that I want you to take to this bank.” (J.A. 162). Wallace’s
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testimony also contradicted his own and defendant’s statements,
made the day after their arrests, that they had decided to get back
in the business of cashing counterfeit checks through homeless
people. The court finds that these plausible inferences, taken
together, sufficiently support the district court's factual
finding, particularly in light of defendant's failure to submit any
sworn rebuttal to Wallace’s false testimony.
The court rejects defendant’s alternative argument that
enhancing his sentence for presenting perjured testimony would have
a chilling effect on a defendant’s right to defend himself and
confront his accusers. We believe that “just as ‘a defendant’s
right to testify does not include a right to commit perjury,’” see
Lowder, 148 F.3d at 553 (quoting United States v. Dunnigan, 507
U.S. 87, 96, 113 S. Ct. 1111, 1117, 122 L. Ed. 2d 445 (1993)),
similarly, a defendant’s right to present witnesses in his own
defense does not include the right to deliberately present false
testimony. See id. at 552-53.
The court is not establishing a broad-brush rule that a
defendant is subjected to a sentencing enhancement for obstruction
of justice every time the defense calls a witness to give
exculpatory testimony which is later determined to be false. The
record of the district court’s findings must reveal some necessary
link such as showing that the defendant knew in advance that the
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testimony would be false, yet chose to make it a part of his
defense. That link was established in this case.
In light of the foregoing, we find no reversible error in the
district court’s two-level enhancement for obstruction of justice.
Accordingly, defendant's conviction and sentence are affirmed.
AFFIRMED
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