Hells Angels Tipster Gets Sentence Reversed

SAN FRANCISCO (CN) - The Ninth Circuit on Friday vacated the sentence of a man who lied under oath about tipping off Hells Angels gang members about a police raid on their motorcycle shop.

Stephen Johnson was initially sentenced to 21 months for conspiracy and giving false testimony about his role in obstructing an investigation into Hells Angels gang members in Modesto, California.

On a previous appeal, the Ninth Circuit overturned Johnson's conspiracy conviction, but left intact his convictions for making false statements. Johnson was later re-sentenced to 15 months but appealed that decision, claiming the judge improperly applied an obstruction enhancement to his sentence.

Johnson, a former law enforcement officer, ran a business in Modesto, Calif. raising and training drug- and bomb-sniffing dogs for hire by the police, military and private clients, according to the ruling.

Hells Angels gang members hired Johnson to have his dogs perform "preventative canine searches" of their motorcycle shop so they could identify and dispose of any drugs or contraband found on the premises, the ruling states.

Believing the gang had moles in law enforcement, a federal task force put out a fake bulletin announcing a planned police raid on the motorcycle shop in order to pinpoint the source of the leaks.

In September 2007, Johnson made two phone calls to a suspected gang member and the gang's private investigator warning about an imminent police raid on the motorcycle shop.

When interviewed by federal agents, Johnson denied tipping off the gang, but the phone calls he made were recorded.

In testimony before a grand jury, Johnson said he passed the information to bikers as a "joke" to "fuel paranoia."

Later during trial testimony, he said he "just came up with this wild-ass story" about the raid to scare the bikers into singing a new contract with him for more canine-sniffing work.

Because his testimony "did not hinder the jury's deliberations or impede the prosecution in any meaningful way," Johnson argued the judge improperly enhanced his sentence for committing perjury at trial.

But the panel found perjury does not have to impede a prosecution or trial in order to be considered a "significant further obstruction" under the enhanced sentencing guidelines.

Johnson also claimed that applying the enhancement to both his trial perjury and grand jury perjury would punish him twice for the same conduct.

The Ninth Circuit panel disagreed.

"Applying the enhancement to his trial testimony does not penalize him twice for the same perjury," wrote U.S. Circuit District Lee Rosenthal, who was sitting by designation. "The trial testimony was separate and distinct from the grand jury testimony."

The three-judge panel cited the 1993 U.S. Supreme Court ruling, United States v. Dunnigan, which found a defendant that commits a crime and then perjures oneself in an attempt to avoid responsibility "is more threatening to society and less deserving of leniency."

However, the panel still reversed Johnson's sentence, finding U.S. District Judge Lawrence O'Neill failed to first determine whether his trial testimony was "willfully and materially false" before enhancing his sentence.

Johnson asked that if his case was remanded back to district court, that the panel re-assign it to a different judge, claiming O'Neill was biased and could not put aside his previously wrong-headed views on the sentencing.

The panel disagreed, finding re-assignment of the case unwarranted.

"The sentencing judge's comments about Johnson's trial testimony and the denial of his motion for bail pending appeal did not demonstrate personal bias or suggest that the judge would have substantial difficulty putting out of his mind any previously expressed erroneous views," Rosenthal wrote for the panel.

The Ninth Circuit ordered that Johnson's sentence be vacated and that the case be remanded back to O'Neill to decide if the perjured testimony was "willfully and materially false."

Johnson's attorney, Jerald Brainin of Los Angeles, did not immediately return a phone call requesting comment Friday afternoon.

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