1

The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

2

A second count in the indictment, for possession of cocaine, was dropped. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2819

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Western District of Missouri.

*

Anthony Eugene Johnson, *

*

Appellant. *

___________

Submitted: December 12, 2002

Filed: January 29, 2003

___________

Before BOWMAN, RILEY, and SMITH, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Anthony Johnson appeals from the sentence the District Court1

 imposed upon

him after he pleaded guilty to one count of an indictment charging him with being a

felon in possession of a firearm.2

 We affirm.
3

The court nevertheless adjusted Johnson's base offense level downward by

three levels for acceptance of responsibility.

4

A copy of the original letter is not in the designated record on appeal or in the

Joint Appendix. The text of the letter (copied accurately, we assume, since neither

-2-

Under the Sentencing Guidelines, a two-level adjustment to a defendant's base

offense level is warranted if "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." U.S.

Sentencing Guidelines Manual § 3C1.1 (2001). The adjustment applies to conduct

that includes "committing, suborning, or attempting to suborn perjury." Id. cmt. n.

4(b). The enhancement was recommended in this case based on the contents of a

letter Johnson wrote to Lloyd McCawley while McCawley was incarcerated in a

Missouri state correctional facility. The District Court found that the letter's "context

and syntax" reflected an attempt to suborn perjury. Transcript of Sentencing

Proceedings at 14. The court further noted, "[T]here was an attempt to create

testimony. And when one is attempting to create testimony it's because it's not true."

Id. The court found that Johnson's attempt was willful and that the testimony he

attempted to induce would have been material to his sentencing had the relevant

sentencing reductions (for diminished capacity and for possessing a firearm only for

sporting purposes) been pursued. The court therefore concluded that the facts

supported a finding of an attempt to obstruct justice and increased Johnson's base

offense level by two levels.3

 Johnson contends that the letter alone is insufficient

evidence that he attempted to suborn perjurious testimony from McCawley. "An

enhancement for obstruction of justice is based on findings of fact, which we review

for clear error." United States v. Vaca, 289 F.3d 1046, 1049 (8th Cir. 2002).

The letter in question opens with Johnson telling McCawley that "they got me"

and that he, Johnson, would plead guilty and seek a reduced sentence for diminished

mental capacity. Letter from Anthony Johnson to Lloyd McCawley (Jan. 2000).4

 He
of the parties has indicated otherwise) appears in paragraph 15 of the Presentence

Investigation Report (PSR) prepared by the probation office. Because we do not have

a copy of the original letter, we will quote it here exactly as it appears in the PSR,

without ourselves noting errors or emphasis.

-3-

tells McCawley, "I'm going to need you to testify to the following for me at

sentencing. Read this over and over good before you come to court. Stories have to

match - OK!" Id. What follows then is a chronology of their alleged activities just

prior to Johnson's arrest on the firearms charge. Johnson uses phrases such as "You

drove me," "You and Maurice carried me," "Say you told Maurice to tell me." Id.

The letter recounts events and conversations that Johnson could not have witnessed,

as they would have occurred, if at all, when Johnson was passed out or not present.

See, e.g., id. ("About an hour later [after Johnson had left the apartment] you started

to worry about me and the telephone rang. . . . After Maurice hung up the telephone

you asked Maurice what I was in jail for.") Regarding the gun found on the

floorboard of the car that Johnson was driving when he was arrested, Johnson directs

McCawley:

(Say Maurice asked you why you let me take his car, I said I was going

to walk) It is Maurice's Target Pistol a 32. Caliber R.G. Modle (sic)

revover (sic), black with a brown handle with tape on it. Make sure you

say it was a TARGET PISTOL AND Maurice had it for target shooting

only "not for self defense" because I can get my sentence reduced if also

if I obtained or possessed the firearm or ammunition soley for lawful

sporting purposes or collection. They got me cause the bullets I had in

my coat pocket carry the same time as the gun. I'm sending a copy of

the police report so you will understand what and why to say (unknown)

above. I am writing Maurice and getting him to say the same thing.

Id. Finally, Johnson asks McCawley to "[t]ell them I have the same mental

impairment as Mahummad Ali. Brain Syndrome, and I need Adult Supervision." Id.

That is followed by a detailed list of the purported manifestations of his

"impairment," including, "I don't think clearly and make logical and rantional choices
-4-

and decisions. . . . I forget simple stuff . . . . Slow on thinking. Can't keep up with

dates, events, appointments and stuff." Id. Yet Johnson wrote a detailed description

of events that would have occurred two years earlier in order to have McCawley

assist his attempt to get his sentence reduced—behavior that is neither illogical nor

irrational. The letter itself reflects clear thinking and great attention to detail and

belies Johnson's alleged "impairment." And notwithstanding Johnson's claim that the

facts set out in the letter are true, he did not argue at his sentencing for reductions in

his sentence on the grounds of diminished capacity or possession of a firearm or

ammunition only for sporting purposes.

We do not think the court erred in relying solely on the letter in finding by a

preponderance of the evidence the necessary factual predicate for a § 3C1.1

adjustment. We do not say that it would not have been preferable for the government

to have provided the court with additional evidence, as Johnson proposes. But given

the deferential standard of review in this case (and being in any event in agreement

with the District Court's finding that the letter constituted an attempt to suborn

perjury), we see no basis for reversal.

Johnson's sentence is affirmed and his pro se motion for Leave to File

Deposition is denied.

RILEY, Circuit Judge, dissenting.

The district court found Johnson attempted to suborn perjury based solely upon

the "context and syntax" of Johnson's letter to McCawley. The government did not

offer any evidence, other than the letter itself, to prove any of the statements in the

letter were false. The district court theorized, "this may very well fall into the

category 'you know it when you see it.'" Because I do not "see it" and because a

fundamental principle of our judicial system requires that the government prove its

case, I respectfully dissent.
5

After the sentencing hearing, Johnson submitted an affidavit from McCawley

verifying the accuracy of the statements contained in the letter. McCawley is now

deceased.

-5-

No presumption of falsity worked in the government’s favor when it offered

Johnson’s letter. The government still bore the burden to prove by a preponderance

of the evidence that Johnson willfully attempted to suborn perjury. See United States

v. O’Dell, 204 F.3d 829, 836 (8th Cir. 2000). Perjury occurs when a "witness

testifying under oath . . . 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." United States v. Dunnigan, 507 U.S. 87, 94 (1993)

(citing 18 U.S.C. § 1621(1)) (citations omitted) (emphasis added). See also U.S.S.G.

§ 3C1.1, cmt. n.2 (When applying section 3C1.1 to a defendant's statements, "the

court should be cognizant that inaccurate testimony or statements sometimes may

result from confusion, mistake, or faulty memory and, thus, not all inaccurate

testimony or statements necessarily reflect a willful attempt to obstruct justice.").

These essential elements of perjury cannot be presumed, but must be proved.

The district court's reliance on "you know it when you see it" either presumes

materiality, willfulness and falseness or relies on judicial intuition. Judicial intuition

is helpful, but intuition alone is not enough to increase punishment. Proof is. By

simply offering the letter, the government did not prove Johnson willfully intended

to elicit materially false testimony, rather than being confused, mistaken or subject

to a faulty memory.

The probation office suggested the court evaluate the letter by obtaining the

direct testimony of McCawley at the sentencing hearing. PSR at 22. The government

chose not to call McCawley at the sentencing hearing, which may have been based

on the assumption McCawley would have substantiated the truthfulness of the letter's

statements.5

 At oral argument, our court asked government counsel to identify any
6

An obstruction of justice enhancement for perjury should be based on findings

of fact, which are reviewed for clear error. United States v. Farmer, 312 F.3d 933,

937 (8th Cir. 2002); but see United States v. Cox, 985 F.2d 427, 433 (8th Cir. 1993)

(materiality is a question of law based on the factual situation). However, the district

court made no factual findings and simply interpreted an uncontested letter, which

does not warrant a clearly erroneous standard of review. See United States v. Tilford,

224 F.3d 865, 867 (6th Cir. 2000) (de novo standard of review applies to uncontested

-6-

evidence that shows any material statement in the letter was false. Counsel relied

solely on the "context and syntax" of the letter and could not identify one false

statement through independent evidence. Only a presumption of falsity could

substantiate the government’s interpretation of the letter.

Although Johnson's letter creates a natural suspicion that he attempted to

suborn perjury, the government presented absolutely no evidence to substantiate that

natural suspicion. The assertions in the letter are the same assertions Johnson

professed in his interview for the presentence investigation. The PSR did not refute

Johnson’s assertions. Johnson did not deny writing the letter and was "adamant that

the events on which he was 'coaching' McCawley are accurate." PSR at 7, ¶ 16.

"Coaching" witnesses is a practice (or an art) regularly used by lawyers. Coaching

a witness by refreshing one's memory or informing the witness what others recall is

not suborning perjury unless the information is materially false and knowingly so.

Johnson is not a lawyer. He has only an eighth grade education and a borderline IQ

of 71. His attempt to coach McCawley should not be judged by the same standard as

a lawyer's preparation of a witness.

In finding Johnson attempted to suborn perjury, the district court did not hear

testimony, make credibility determinations, or consider independent evidence, but

simply read Johnson’s jailhouse letter. Because the district court made no factual

findings and simply reviewed an uncontested letter, as we are capable of doing, our

review should be de novo.6

 The letter alone does not support a finding of false
facts); United States v. Nguyen, 190 F.3d 656, 660 (5th Cir. 1999) (same); McGurk

v. Stenberg, 163 F.3d 470, 473 (8th Cir. 1998) ("We review questions of ineffective

assistance of counsel based on an undisputed factual record de novo."); United States

v. Gomez, 38 F.3d 1031, 1036 (8th Cir. 1994) (application of law to “historical facts”

reviewed de novo). Furthermore, the district court’s “findings” here are more akin

to contract interpretation than a factual finding of perjury, which would also mandate

a de novo review. See, e.g., United States v. Austin, 255 F.3d 593, 596 (8th Cir.

2001) (issues regarding interpretation of plea agreement are reviewed de novo

according to general contract interpretation principles). This case simply does not

lend itself to a deferential standard of review. 

7

The letter in full reads (PSR at 5, ¶ 15):

Dear Mac, Well buddy they got me. I am going to have to plead guilty

and try and get a reduced sentence under “diminished mental capacity.”

I have to show that although I am convicted, I have a significantly

impaired ability to (A) understand the wrongfulness of the behavior

comprising the offense or to exercise the power of reason. To think

clearly and to make logical and rational choices and decisions. I’m

going to need you to testify to the following for me at sentencing. Read

this over and over good before you come to court. Stories have to match

– OK!

On January 23, 2000, You came down to stay at my apartment with me

and Maurice. Maurice was living with [me] because he had been

evicted from his apartment a week or 2 earlier.

On January 24, 2000, You drove me down to Clifton Hill in your

mother’s car and brought a bottle of zanax from a guy in Cliffton Hill

On the way back to Columbia I took a bunch of them and passed out.

When we got back to the apartment You and Maurice carried me into the

-7-

testimony and a willful attempt to suborn perjury. I respectfully dissent and would

reverse the obstruction of justice enhancement based on the government's failure to

meet its burden of proof.7
house and placed me into my bed. Hours later I woke up and ran out of

ciggaretts (sic). You were washing dishes. I came into the kicthen (sic)

wearing Black sweat pants with no pockets and a dark blue tea (sic)

shirt. I asked you for $3 to go buy some ciggeretts (sic) out of $512 of

my mental disability check you were keeping for me. Because I loose

[sic] money, hid it and can not find it and people steal my money from

be [sic] because of my mental disability you all do not let me keep

money or drive cars. You gave me $3 and I placed it in my sock and

told you I was going to walk up to brake time a block up the street and

buy ciggretts (sic). Maurice was on the living room couch asleep. I

seemed groggy and unstable on my feet and impaired, you asked me if

I was alright and you thought the walk up to brake time would do me

some good cause it was cold and snowing outside. I said I’m alright. I

grabbed my coat and the apartment key which had Maruices [sic] car

keys on it and left the apartment and locked the sliding glass door from

outside. No gun was in my coat cause you placed it on the back of the

kitchen chair when you were cleaning up. About an hour later you

started to worry about me and the telephone rang. Maurice woke up and

answered the telephone and told yo [sic] I was in jail and that I need you

to bond me out of jail with my mental disability money you were

keeping for me from my SSI check. Say you told Maurice to tell me

what money? Cause you all play with me about my money all the time

and I get mad. Maurice told me what money and I asked Maurice why

you didn’t have my money (P.S. J.P. NEVER SAID A WORD). Then

you told Maurice (sic) to tell me you all were just playing around with

me and would sen [sic] the Bondswoman Miss Jerri right down to get

me out. After Maurice hung up the telephone you asked Maurice what

I was in jail for. Maurice said I took his car and the police stopped it

and found Maurices [sic] target pistol in it that Maurice had left under

a newspaper on the floor board of the front drivers [sic] side. That I did

not know the gun was in the car. (Say Maurice asked you why you let

me take his car, I said I was going to walk) It is Maurice’s Target Pistol

a 32. [sic] Caliber R.G. Modle (sic) revover (sic), black with a brown

handle with tape on it. Make sure you say it was a TARGET PISTOL

AND Maurice had it for target shooting only “not for self defense”

because I can get my sentence reduced if also I obtained or possessed

-8-
the firearm or ammunition soley [sic] for lawful sporting purposes or

collection. They got me cause the bullets I had in my coat pocket carry

the same time as the gun. I’m sending a copy of the police report so you

will understand what and why to say (unknown) above. I am writing

Maurice and getting him to say the same thing. The attorney may ask

you about my mental condition. Tell them I have the same mental

impairment as Mahummad [sic] Ali. Brain Syndrome, and I need Adult

Supervision. I am not violent. I don’t think clearly and make logical

and rantional choices and decisions. I cannot control my behavior that

I know is wrongful. I forget simple stuff – use alcohol and drugs. Slow

on thinking. Can’t keep up with dates, events, appointments and stuff.

Can’t shop alone, Ill (sic) buy stuff I already got or don’t need. I get lost

in the Mall parking lots stuff like that. Don’t pay bills. Loose [sic]

keys. I’m too nice I give away stuff I shouldn’t and people easily take

advantage of me. Can’t count money properly. My attorney or his

investorgator (sic) will be down there to see you and I will have him

send you a copy of the police report. I will not be back until this is over.

They will be writting [sic] you to court. They wouldn’t let me bring

stamps with or your number, just legal papers. I get one stamp a week.

Write back. Love, Thanks, Tony

-9-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.