United States v. Johnson

concurring in part and dissenting in part.

I respectfully dissent from those portions of the disposition holding that there is insufficient evidence to support the conviction on Count Three and that the prosecutor engaged in improper vouching.

In determining whether there is sufficient evidence to support a conviction, we view the evidence in the light most favorable to the prosecution’s case. United States v. Bailon-Santana, 429 F.3d 1258, 1262 (9th Cir.2005). The conviction must be sustained if any reasonable juror could have found the defendant guilty beyond a reasonable doubt. Id. As the majority opinion outlined, the pertinent statute punishes one who threatens to retaliate against any person for information “given by a person to a law enforcement officer.” 18 U.S.C. § 1513 (b)(2) (emphasis added). Whether the probation officer gave information directly to the law enforcement officers who arrested the defendant, or gave the information to her supervisor, a law enforcement officer, who relayed it to a judge who relayed it to law enforcement, the fact remains that the defendant threatened to retaliate against the victim for information given by a person to a law enforcement…

MEMORANDUM **

Connie Larrett Johnson was convicted by a jury of threatening to retaliate against his Pretrial Services Officer, resisting arrest, and making a false statement to his Pretrial Services Officer. He now appeals his convictions for threatening to retaliate and for making a false statement. We reverse as to the retaliation count, 18 U.S.C. § 1513 (b)(2) (Count Three), on the basis of insufficiency of the evidence, but affirm as to the false statement count, 18 U.S.C. § 1001 (Count Five). Johnson does not contest the resisting arrest conviction (Count Four). As to Counts Four and Five, we grant a limited remand of the sentence pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

As to Count Three, § 1513(b)(2) punishes anyone who “knowingly engages in any conduct and thereby causes bodily injury to another person ... or threatens to do so, with intent to retaliate against any person for ... any information relating to the ... violation of conditions of ... release pending judicial proceedings given by a person to a law enforcement officer.” 18 U.S.C. § 1513 (b). Under the statute, the retaliation must have been motivated by a belief that the…