                      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.




      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.
       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


      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-
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

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-
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.

                                           -4-
       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


      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-
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


      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-
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

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-
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-
A true copy.

      Attest:

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




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-
