U.S. v. Johnson

• Decision Date: 25 June 1992
• Docket Number: No. 1548,D,1548
• Citation: 968 F.2d 208
• Parties: UNITED STATES of America, Appellee, v. Peter JOHNSON, Defendant-Appellant. ocket 92-1082.
• Court: U.S. Court of Appeals — Second Circuit

Page 208

968 F.2d 208

UNITED STATES of America, Appellee, v. Peter JOHNSON, Defendant-Appellant.

No. 1548, Docket 92-1082.

United States Court of Appeals Second Circuit.

Argued May 20, 1992.

Decided June 25, 1992.

Lorin L. Reisner, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Michael E. Horowitz, Miguel A. Estrada, Asst. U.S. Attys., S.D.N.Y., of counsel), for appellee.

Abraham L. Clott, Legal Aid Soc., Federal Defender Services Appeals Unit, New York City, for defendant-appellant.

Before PRATT and ALTIMARI, Circuit Judges, and Daniel M. FRIEDMAN, Circuit Judge of the United States Court of Appeals for the Federal Circuit, sitting by designation.

GEORGE C. PRATT, Circuit Judge:

A jury concluded that Peter Johnson had used intimidation and threatened two people with the intent to cause them to withhold testimony from an official proceeding, in violation of 18 U.S.C. § 1512(b)(2)(A). Johnson now appeals from the judgment of conviction and sentence entered on that verdict in the United States District Court for the Southern District of New York, Pierre N. Leval, Judge. Johnson's principal claim is that the district court's charge improperly nullified the statutory affirmative defense contained in 18 U.S.C. § 1512(d) by requiring him to disprove, by a preponderance of the evidence, the same conduct that the government was required to prove beyond a reasonable doubt. He also appeals his sentence. For the reasons that follow, we reject Johnson's contentions and affirm the judgment of the district court.

FACTS AND BACKGROUND

At the time of his arrest, on February 22, 1991, Johnson was employed by the United States Post Office in the Bronx, New York, where he operated a sorting machine. The complaint underlying his arrest charged him with stealing New York Giants football playoff tickets which had been sent to an address within the 10475 zip code, an area of the Bronx for which Johnson was assigned to sort mail. The complaint also disclosed that Joseph Maydwell, an insurance salesman in Westchester County, New York, who attempted to use the stolen tickets, had identified Johnson as the source of the tickets.

On March 21, 1991, Johnson, accompanied by a six-foot-plus-tall man wearing long black gloves, visited Maydwell's insurance office in New Rochelle, New York. Johnson pointed Maydwell out to his associate, and said: "Remember this guy's face, remember his face, because if something [i]f I get indicted and you testify, I'm going to take care of you, I'm going to get you. You don't know what you're dealing with. But if you don't, everything will be fine, everything will be okay.

                happens to me I want you to take care of this guy."   Johnson then told Maydwell that he had "better go to the postal inspector and change [his] story and tell them that [he] didn't know what [he] was talking about".   Johnson further informed Maydwell that
                

Johnson also told Maydwell that he had "guns and he could take care of it any time."

Maydwell's secretaries, Monique Smith and Lucretia Siaharis, witnessed this encounter. Before he left, Johnson approached Smith, and in a tone described by Smith as "threatening" and "very harsh", told her: "Sister, the 2 or $300 that you're making here is not worth it. Because whatever goes down, and whoever is here is going down with it." Later that same evening, Johnson returned to Maydwell's office, but only Smith was still at work. After she told Johnson that Maydwell was not there, Johnson shook his head and told Smith: "Sister, I'm telling you, it's not worth it."

At trial, Johnson called Richard Mirando, a tattoo artist, who testified that he had been tattooing Johnson at the same time that the government claimed he had made the later threatening statements to Monique Smith. Johnson also argued to the jury that although he and Maydwell had had words in their earlier encounter, the incident had been "blown out of proportion". Johnson further argued that he had carried his burden of proof under the affirmative defense to the witness-tampering statute. Although the jury acquitted Johnson on the underlying mail-theft count, the jury convicted him of two counts of witness-tampering based on his separate threats of Smith and of Maydwell.

At sentencing, the government introduced transcripts of phone calls Johnson had made to Mirando from jail. The government argued that these transcripts showed that Johnson had suborned perjury in encouraging Mirando's trial testimony. Judge Leval calculated Johnson's base offense level as 24, a figure which included a two-point enhancement for suborning perjury, as allowed by U.S.S.G. § 3C1.1 (obstruction of justice), and imposed a guideline sentence of 72 months' imprisonment.

DISCUSSION

A. The witness-tampering convictions.

Johnson's first contention is that the district court's charge on the witness-tampering counts was both erroneous as a matter of statutory interpretation and violative of due process.

1. The statute and the jury charge.

Section 1512 of title 18 of the United States Code was passed by congress as part of the Victim and Witness Protection Act, Pub.L. No. 97-291, 96 Stat. 1248 (1982), which sought to strengthen the then-existing legal protections for victims and witnesses of federal crimes. See United States v. Hernandez, 730 F.2d 895, 898 (2d Cir.1984) (quoting S.Rep. No. 532, 97th Cong., 2d Sess. 9, reprinted in 1982 U.S.C.C.A.N. 2515). Recognizing that the law up to that point had given a witness or potential witness "little hope of protection from the government if he is harassed [sic ] or threatened by the defendant", 1982 U.S.C.C.A.N. at 2516, and further noting that the absence of such protections was "a tragic failing in our criminal justice system, one which hurts the whole society", id., congress included a prohibition on tampering with witnesses, a provision which is now codified at 18 U.S.C. § 1512.

Johnson was convicted of two counts of violating subparagraph (b)(2)(A) of that section. That subparagraph reads, in pertinent part:

(b) Whoever knowingly uses intimidation or physical force, threatens * * * another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--

* * * * * *

(2) cause or induce any person to--

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding * * *

shall be fined not more than $250,000 or imprisoned not more than ten years, or both.

18 U.S.C. § 1512(b)(2)(A). As the structure of § 1512 indicates, the government must prove both conduct and intent, i.e., that a defendant (1) knowingly used intimidation or physical force, or threatened or attempted to do so, (2) with the intent to cause or induce any person to withhold testimony or other evidence from an official proceeding.

Congress also provided for an affirmative defense:

In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully.

18 U.S.C. § 1512(d) (emphasis added). Like the portions of § 1512 which define the offense of witness-tampering, this affirmative defense also involves both conduct and intent. To carry his burden under this subsection, a defendant must prove by a preponderance of the evidence (a) that his conduct was entirely lawful, and (b) that his sole intent was to encourage, induce, or cause the other person to testify truthfully.

Judge Leval gave a jury charge which, inter alia, included this language:

The first element the government must prove beyond a reasonable doubt is that the defendant threatened or intimidated someone. A threat is an expression of intention to do harm. It may be communicated by word or by gesture or by a combination of words and gestures.

The government is not required to prove that the defendant used words that expressly stated that he would do harm. It is sufficient if his words or conduct were designed to arouse fear that the defendant would do harm or cause harm to be done.

To intimidate means to discourage someone by threats or by a threatening manner or to make someone fearful. The government is not required to prove that the defendant intended to carry out the threat. Nor is the government required to prove that the person against whom the threat is made was actually frightened or actually believed he or she was in danger.

But the government must prove that the defendant's threatening words or conduct created a reasonable likelihood that the person would be in fear of harm.

* * * * * *

The defendant also offers a second defense in connection with Counts 3 and 4. This is a defense expressly provided by the statute--Section 1512(d). I will refer to this as the defense of truth seeking.

You must find the defendant not guilty if the defendant proves to you, by a preponderance of the evidence, two things:

(1) that the defendant's sole intention was to encourage or induce the other person to testify truthfully or not to testify falsely; and

(2) that the defendant's conduct toward the other person was lawful.

Those are the two elements of the defense of truth seeking. I will say a few more words to describe each of those two elements of the defense of truth seeking.

First, the defendant must convince you that his actions toward Maydwell or Smith on March 21 were designed to bring out the truth. If the defendant believed that Maydwell had falsely named the defendant as the person he got the Giants tickets from, and the defendant intended to induce Maydwell to tell the truth, or in any event to stop falsely naming the defendant, the defendant would satisfy this element.

The second element of the defense of truth seeking is the following. The defendant must prove by a preponderance...