United States v. Peter Johnson (1992)

See United States v. Vampire Nation, 451 F.3d 189, 194 (3d Cir.2006) (defendant encouraged witness to give a false explanation for a transaction); United States v. Johnson, 968 F.2d 208, 209 (2d Cir.1992) (defendant urged witness to "change his story and tell them that he didn't know what he was talking about") (alterations omitted).

See United States v. Vampire Nation, 451 F.3d 189, 194 (3d Cir.2006) (defendant encouraged witness to give a false explanation for a transaction); United States v. Johnson, 968 F.2d 208, 209 (2d Cir.1992) (defendant urged witness to “change his story and tell them that he didn’t know what he was talking about”) (alterations omitted).

See United States v. Vampire Nation, 451 F.3d 189, 194 (3d Cir.2006) (defendant encouraged witness to give a false explanation for a transaction); United States v. Johnson, 968 F.2d 208, 209 (2d Cir.1992) (defendant urged witness to “change his story and tell them that he didn’t know what he was talking about”) (alterations omitted).

Therefore, we look to that phrase’s ordinary meaning—use that is “conformable to law” or “allowed or permitted by law.” United States v. Johnson, 968 F.2d 208, 212 (2d Cir.), cert. denied, 506 U.S. 964 , 113 S.Ct. 436 , 121 L.Ed.2d 355 (1992).

We reject these arguments for the reasons stated in United States v. Johnson, 968 F.2d 208, 213-215 (2d Cir.1992).

“A threat is an expression of intention to do harm,” and “[t]o intimidate means to discourage someone by threats or by a threatening manner or to make someone fearful,” an element that requires the Government to prove “that the defendant’s threatening words or conduct created a reasonable likelihood that the person would be in fear of harm.” United States v. Johnson, 968 F.2d 208, 211 (2d Cir. 1992).

Ed. 2d 267 , 107 S. Ct. 1098 (1987) (holding that placement of burden of proof for self-defense affirmative defense to aggravated murder on defendant did not unconstitutionally shift the burden of proof of any element of the offense to defendant); United States v. Thompson, 76 F.3d 442, 453 (2d Cir. 1996) (holding same with regard to "false testimony" affirmative defense to federal witness tampering offense); United States v. Johnson, 968 F.2d 208, 213-14 (2d Cir. 1992) (sam…

For these reasons, we have never conflated an affirmative defense as the functional equivalent of an element of an offense, even when, as here, an element of the crime and the affirmative defense “overlap in the sense that evidence to prove the latter will often tend to negate the former.” Martin v. Ohio, 480 U.S. 228, 234 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987) (holding that placement of burden of proof for self-defense affirmative defense to aggravated murder on defendant…

Therefore, we look to that phrase's ordinary meaning -- use that is "conformable to law" or "allowed or permitted by law." United States v. Johnson, 968 F.2d 208, 212 (2d Cir.), cert. denied, 506 U.S. 964 (1992).

We have held that it does not violate the Due Process Clause to allocate to defendants the burden of proving affirmative defenses so long as the defense does not, “in operation, negate an element of the crime which the government is required to prove.” United States v. Johnson, 968 F.2d 208, 213-14 (2d Cir.), cert. denied, 506 U.S. 964 , 113 S.Ct. 436 , 121 L.Ed.2d 355 (1992); see also Walton v. Arizona, 497 U.S. 639, 650 , 110 S.Ct. 3047, 3055 , 111 L.Ed.2d 511 (1990) (plur…

We have held that it does not violate the Due Process Clause to allocate to defendants the burden of proving affirmative defenses so long as the defense does not, "in operation, negate an element of the crime which the government is required to prove." United States v. Johnson, 968 F.2d 208, 213-14 (2d Cir.), cert. denied, 506 U.S. 964 , 113 S.Ct. 436 , 121 L.Ed.2d 355 (1992); see also Walton v. Arizona, 497 U.S. 639, 650 , 110 S.Ct. 3047, 3055 , 111 L.Ed.2d 511 (1990) (plur…

We considered such a challenge in United States v. Johnson, 968 F.2d 208, 214 (2d Cir.), cert. denied 506 U.S. 964 , 113 S.Ct. 436 , 121 L.Ed.2d 355 (1992), a prosecution under § 1512(b) for use of threats and intimidation with intent to cause witnesses to withhold testimony from an official proceeding, and we concluded» that § 1512(d) does not place an unconstitutional burden on the defendant: True, the elements of the crime and of the affirmative defense overlap, “in the s…

United States v. Johnson, 968 F.2d 208, 216 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 436 , 121 L.Ed.2d 355 (1992).

Otherwise put, "an affirmative defense may not, in operation, negate an element of the crime which the government is required to prove." United States v. Johnson, 968 F.2d 208, 213 (2d Cir.), cert. denied, 506 U.S. 964 (1992).

Witness tampering by intimidation or threats further requires proof that “a normal, reasonable person to whom the defendant’s conduct and language were addressed [] might reasonably be put in fear of violence.” United States v. Johnson, 968 F.2d 208, 211 (2d Cir. 1992).

Thus, if a defendant asserts a defense that has the effect of negating any element of the offense, the prosecution must disprove that defense beyond a reasonable doubt." (citations omitted); United States v. Unser, 165 F.3d 755, 764 (10th Cir.1999) ("[Wlhen evidence has been produced of a defense which, if accepted by the trier of fact, would negate an element of the offense, the government must bear the ultimate burden of persuasion on that element, including disproving the…

Mem. 21-22.) When Congress fails to define a statutory term, the Court interprets the statutory subsection by “giving the words used their ordinary meaning.” United States v. Johnson, 968 F.2d 208, 212 (2d Cir.1992) (citations and quotations omitted).

Cf. United States v. Johnson, 968 F.2d 208, 213-14 (2d Cir.), cert. denied, 506 U.S. 964 , 113 S. Ct. 436 , 121 L.

Application Note 3(b) to § 3C1.1 states that the two-level enhancement applies to “committing, suborning, or attempting to suborn perjury.” See also United States v. Johnson, 968 F.2d 208, 215-16 (2d Cir.1992) (two-level enhancement imposed based on defendant’s subornation of perjury).

Id. at 209 , 97 S.Ct. 2319 ; see also United States v. Johnson, 968 F.2d 208, 213-14 (2d Cir.1992) (observing that “an affirmative defense may not, in operation, negate an element of the crime which the government is required to prove; otherwise, there would be too great a risk that a jury, by placing undue emphasis on the affirmative defense, might presume that the government had already met its burden of proof’).

See U.S. v. Johnson, 968 F.2d 208, 213 (2d Cir.1992) (quoting legislative history). 5 .

See United States v. Johnson, 968 F.2d 208, 216 (2d Cir.1992) (holding that Application Note 1 applies only to perjury by defendant, not subornation of perjury).

See United States v. Johnson, 968 F.2d 208, 215 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 436 , 121 L.Ed.2d 355 (1992); United States v. Cunavelis, 969 F.2d 1419, 1423 (2d Cir.1992); Onumonu, 999 F.2d at 45 . 6.

See United States v. Johnson, 968 F.2d 208, 215-16 (2d Cir.1992). 16 Accordingly, Vassar's conviction under 18 U.S.C.

See United States v. Johnson, 968 F.2d 208, 215-16 (2nd Cir.1992) 3 We have not yet determined with respect to section 3B1.2(b) whether the "average participant" is one for purposes of this particular offense or for purposes of this type of crime in general.

Fuller v. State, 860 A.2d 324, 333 (Del. 2004); see United States v. Johnson, 968 F.2d 208, 216 (2d Cir. 1992) (holding that federal sentencing guidelines allow sentencing court to enhance sentence based on finding of suborned perjury even if there is no necessary inconsistency between jury verdict and alleged perjured testimony); Fabiano v. Wheeler, 583 F.2d 265, 270 (6th Cir. 1978) (holding, in pre-guideline decision, that “[i]t is one thing to say that a defendant may not…

See United States v. Johnson, 968 F.2d 208, 211-12 (2d Cir. 1992) (defining intimidation and threatening); United States v. Quattrone, 441 F.3d 153, 176 (2d Cir. 2006) (defining corrupt persuasion).