NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 20-3138 ________________
UNITED STATES OF AMERICA
v.
ANTHONY JOHNSON, Appellant _____________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-17-cr-00123-001) District Judge: Honorable Sylvia H. Rambo ________________
Submitted Pursuant to Third Circuit L.A.R. 34.1 on October 5, 2021
Before: SHWARTZ, RESTREPO, and SCIRICA, Circuit Judges.
(Opinion Filed: November 19, 2021)
________________
OPINION* ________________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge
Anthony Johnson was convicted of Hobbs Act Robbery under 18 U.S.C. § 1951
(Count I) and Using, Carrying, Brandishing and Discharging a Firearm During and in
Relation to a Crime of Violence under 18 U.S.C. § 924(c)(1)(A) (Count II), as well as
aiding and abetting on both Counts. Johnson appeals his conviction, contending the
District Court’s decision to admit his statement to the police regarding his “history of
doing stick-ups” violated Federal Rules of Evidence 403 and 404(b). Johnson claims the
statement’s probative value was substantially outweighed by its prejudicial effect and the
Government sought to introduce the statement for the sole purpose of proving his
propensity to commit the crime. Because the court properly admitted the statement, we
will affirm Johnson’s conviction and sentence.
I.
On January 9, 2016, police were dispatched to a shooting at the 300 block of
Girard Avenue, York, Pennsylvania. Upon arriving at 325 Girard Avenue, an officer
observed an 18-year-old male, Shyhiem McDowell, lying in the backyard with a gunshot
wound to the left side of his head. McDowell was brought to York Hospital where he
was treated for a life-threatening head wound.
A surveillance video from a homeowner in the area showed Johnson, 16-year-old
Hydiea Banks, and McDowell meeting outside Pak’s convenience store and walking
down Euclid Alley toward Girard Avenue. At the time, Johnson was Banks’ mother’s
live-in-boyfriend. Johnson, Banks, and McDowell turned onto Girard Avenue and
entered a breezeway between two houses on Girard Avenue. Shortly after they entered,
2 the surveillance video showed Johnson exiting the breezeway and running down Euclid
Alley. Banks was then observed running in the same direction as Johnson.
Police detectives interviewed Johnson on January 11, 2016. Johnson stated he
thought the purpose of the meeting with McDowell was to purchase “bud” (marijuana).
He claimed that Banks kept her hands in her pocket while discussing the bud purchase
and never brandished a gun while he was in the breezeway. Johnson insisted he left the
breezeway because he felt “something [was] just not right.” Gov. Exh. 50.
Later in the same interview, Johnson admitted the purpose of the meeting was to
rob McDowell. Johnson told detectives that on the morning of January 9, 2016, Banks
asked him to help her rob someone who she knew carried cash and drugs. Johnson
agreed to join her in exchange for money. Johnson initially confessed to searching
McDowell while in the breezeway, but later claimed only Banks searched McDowell.
Johnson further claimed he left the breezeway when Banks told McDowell “you already
know what this is,” referring to the robbery. Johnson maintained he never saw Banks
brandish a gun.
Banks was arrested on January 13, 2016. During her arrest, officers recovered the
pistol used in the McDowell shooting.
During a second interview with police on January 14, 2016, Johnson repeated his
claim that he never saw a gun while in the breezeway. Later in the interview, Johnson
admitted he saw Banks holding the gun but insisted he fled before she fired it because he
was “scared to death.” Detectives told Johnson they did not believe his story because he
would not have been scared if he intended to assist with the robbery. Johnson responded
3 “It’s just – I am telling you. Look, my job is over. I don’t see nothing. Like I said, from
my history of doing stick-ups, get the f… out of here. I am out. I am out. There is no
need for me to stay here. You got this secured.” Gov. Exh. 51. At the time of the
interview, McDowell was lying in a coma, so detectives only had Johnson’s version of
the events.
McDowell spent several months in a coma but eventually recovered. At trial,
McDowell testified that after entering the breezeway he bent down to tie his shoe, at
which time Banks pointed a gun at him and stated, “I need everything.” When
McDowell refused to give them his property, Johnson attempted to remove McDowell’s
LA Lakers chain from his neck but was unsuccessful. McDowell further testified that,
after attempting to remove the chain, Johnson told Banks “you know what to do then”
and exited the breezeway. After Johnson left, Banks shot McDowell in the head.
Johnson did not testify at trial, but the Government played the audio and video
recordings of Johnson’s two interviews with the police. The second interview included
Johnson’s statement “from my history of doing stick-ups.” The jury found Johnson
guilty under 18 U.S.C. § 1951 and 2 and 18 U.S.C. § 924(c)(1)(A) and 2. On February
20, 2020, Johnson was sentenced to 110 months in prison for Count 1 and 120 months in
prison for Count 2, to run consecutively.
II.1
1 The trial court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
4 Johnson seeks to vacate his sentence and obtain a new trial. He contends the court
abused its discretion by admitting his statement he had a “history of doing stick-ups.”
We will affirm the court’s decision to admit the statement under Federal Rules of
Evidence 403 and 404(b).2
A.
Rule 404(b) bars evidence of a crime or other act “to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). The evidence, however, “may be admissible for
another purpose.” Fed. R. Evid. 404(b)(2). “The threshold inquiry a court must make
before admitting similar acts evidence under Rule 404(b) is whether that evidence is
probative of a material issue other than character.” Huddleston v. United States, 485 U.S.
681, 686 (1988).
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 20-3138 ________________
UNITED STATES OF AMERICA
v.
ANTHONY JOHNSON, Appellant _____________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-17-cr-00123-001) District Judge: Honorable Sylvia H. Rambo ________________
Submitted Pursuant to Third Circuit L.A.R. 34.1 on October 5, 2021
Before: SHWARTZ, RESTREPO, and SCIRICA, Circuit Judges.
(Opinion Filed: November 19, 2021)
________________
OPINION* ________________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge
Anthony Johnson was convicted of Hobbs Act Robbery under 18 U.S.C. § 1951
(Count I) and Using, Carrying, Brandishing and Discharging a Firearm During and in
Relation to a Crime of Violence under 18 U.S.C. § 924(c)(1)(A) (Count II), as well as
aiding and abetting on both Counts. Johnson appeals his conviction, contending the
District Court’s decision to admit his statement to the police regarding his “history of
doing stick-ups” violated Federal Rules of Evidence 403 and 404(b). Johnson claims the
statement’s probative value was substantially outweighed by its prejudicial effect and the
Government sought to introduce the statement for the sole purpose of proving his
propensity to commit the crime. Because the court properly admitted the statement, we
will affirm Johnson’s conviction and sentence.
I.
On January 9, 2016, police were dispatched to a shooting at the 300 block of
Girard Avenue, York, Pennsylvania. Upon arriving at 325 Girard Avenue, an officer
observed an 18-year-old male, Shyhiem McDowell, lying in the backyard with a gunshot
wound to the left side of his head. McDowell was brought to York Hospital where he
was treated for a life-threatening head wound.
A surveillance video from a homeowner in the area showed Johnson, 16-year-old
Hydiea Banks, and McDowell meeting outside Pak’s convenience store and walking
down Euclid Alley toward Girard Avenue. At the time, Johnson was Banks’ mother’s
live-in-boyfriend. Johnson, Banks, and McDowell turned onto Girard Avenue and
entered a breezeway between two houses on Girard Avenue. Shortly after they entered,
2 the surveillance video showed Johnson exiting the breezeway and running down Euclid
Alley. Banks was then observed running in the same direction as Johnson.
Police detectives interviewed Johnson on January 11, 2016. Johnson stated he
thought the purpose of the meeting with McDowell was to purchase “bud” (marijuana).
He claimed that Banks kept her hands in her pocket while discussing the bud purchase
and never brandished a gun while he was in the breezeway. Johnson insisted he left the
breezeway because he felt “something [was] just not right.” Gov. Exh. 50.
Later in the same interview, Johnson admitted the purpose of the meeting was to
rob McDowell. Johnson told detectives that on the morning of January 9, 2016, Banks
asked him to help her rob someone who she knew carried cash and drugs. Johnson
agreed to join her in exchange for money. Johnson initially confessed to searching
McDowell while in the breezeway, but later claimed only Banks searched McDowell.
Johnson further claimed he left the breezeway when Banks told McDowell “you already
know what this is,” referring to the robbery. Johnson maintained he never saw Banks
brandish a gun.
Banks was arrested on January 13, 2016. During her arrest, officers recovered the
pistol used in the McDowell shooting.
During a second interview with police on January 14, 2016, Johnson repeated his
claim that he never saw a gun while in the breezeway. Later in the interview, Johnson
admitted he saw Banks holding the gun but insisted he fled before she fired it because he
was “scared to death.” Detectives told Johnson they did not believe his story because he
would not have been scared if he intended to assist with the robbery. Johnson responded
3 “It’s just – I am telling you. Look, my job is over. I don’t see nothing. Like I said, from
my history of doing stick-ups, get the f… out of here. I am out. I am out. There is no
need for me to stay here. You got this secured.” Gov. Exh. 51. At the time of the
interview, McDowell was lying in a coma, so detectives only had Johnson’s version of
the events.
McDowell spent several months in a coma but eventually recovered. At trial,
McDowell testified that after entering the breezeway he bent down to tie his shoe, at
which time Banks pointed a gun at him and stated, “I need everything.” When
McDowell refused to give them his property, Johnson attempted to remove McDowell’s
LA Lakers chain from his neck but was unsuccessful. McDowell further testified that,
after attempting to remove the chain, Johnson told Banks “you know what to do then”
and exited the breezeway. After Johnson left, Banks shot McDowell in the head.
Johnson did not testify at trial, but the Government played the audio and video
recordings of Johnson’s two interviews with the police. The second interview included
Johnson’s statement “from my history of doing stick-ups.” The jury found Johnson
guilty under 18 U.S.C. § 1951 and 2 and 18 U.S.C. § 924(c)(1)(A) and 2. On February
20, 2020, Johnson was sentenced to 110 months in prison for Count 1 and 120 months in
prison for Count 2, to run consecutively.
II.1
1 The trial court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
4 Johnson seeks to vacate his sentence and obtain a new trial. He contends the court
abused its discretion by admitting his statement he had a “history of doing stick-ups.”
We will affirm the court’s decision to admit the statement under Federal Rules of
Evidence 403 and 404(b).2
A.
Rule 404(b) bars evidence of a crime or other act “to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). The evidence, however, “may be admissible for
another purpose.” Fed. R. Evid. 404(b)(2). “The threshold inquiry a court must make
before admitting similar acts evidence under Rule 404(b) is whether that evidence is
probative of a material issue other than character.” Huddleston v. United States, 485 U.S.
681, 686 (1988). Rule 404(b) provides a list of permissible uses, but this list is not
exclusive. United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992). Moreover, Rule
404(b) favors admissibility. Id.
2 We review the court’s decision to admit evidence for abuse of discretion. United States v. Higdon, 638 F.3d 233, 238 (3d Cir. 2011); Complaint of Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir. 1997). We exercise plenary review over rulings interpreting the Federal Rules of Evidence. United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010). Accordingly, “[t]o the extent that our review of the district court's Rule 404(b) ruling requires us to interpret the rules of evidence our review is plenary.” United States v. Lee, 612 F.3d 170, 186 (3d Cir. 2010) (quoting United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006)). But “if the evidence could be admissible in some circumstances, we review the district court's determination allowing it to be admitted for abuse of discretion.” United States v. Cruz, 326 F.3d 392, 394 (3d Cir. 2003). Our decision would be the same even if we exercised plenary review.
5 We apply a four-part test to determine the admissibility of evidence of prior bad
acts. United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003). The evidence must: (1)
have a proper evidentiary purpose under Rule 404(b); (2) be relevant to that purpose
under Rule 402; (3) pass the balancing test under Rule 403; and (4) be accompanied by a
limiting instruction, upon request. Huddleston, 485 U.S. at 691-92; United States v.
Green, 617 F.3d 233, 249 (3d Cir. 2010); Sampson, 980 F.2d at 886. Johnson contests
only the first and third prongs.
To prove a proper evidentiary purpose, the government must “clearly articulate
how that evidence fits into a chain of logical inferences” without inferring the defendant
has a propensity to commit the crime. Cruz, 326 F.3d at 395 (quoting United States v.
Mastrangelo, 172 F.3d 288, 295 (3d Cir. 1999)). But the government’s burden is not
onerous, and we require only “some showing of a proper relevance.” Sampson, 980 F.2d
at 888.
Johnson contends the statement lacked a proper evidentiary purpose because the
government’s true purpose in seeking to admit his statement was to prove his bad
character and propensity to commit the crime. According to Johnson, because his
statement served to substantiate his defense that he ran away before Banks shot
McDowell, there was no logical reason, other than propensity, for the Government to use
his statement.
Johnson claimed he left the scene of the robbery before his co-conspirator, Banks,
shot McDowell in the head, and that he abandoned his involvement in the crime when he
thought something bad was about to take place. The crux of Johnson’s defense was to
6 distance himself from the near fatal shooting by trying to convince the police, and then
the jury, that he had nothing to do with the shooting. As part of his defense, Johnson told
police he had a “history of doing stick-ups” and knew when to leave a robbery depending
on how events transpired. This was relevant to the shooting and probative to providing
context and background to the investigation and factual development of the case.
The Government asserted Johnson’s statement would help the jury better
understand his involvement in the crime and would also explain the detectives’
skepticism of Johnson’s claims, giving context to their decision to move forward with the
investigation and charges. Providing the finder of fact with helpful background
information meets the proper purpose requirement under Rule 404(b). Green, 617 F.3d at
250. Accordingly, because this evidence provided helpful context to the case, the use of
Johnson’s statement served a proper evidentiary purpose under Rule 404(b).
Johnson further contends the statement was unfairly prejudicial under Rule 403,
both as part of his Rule 404(b) argument and as an independent ground for overturning
the trial court’s decision to admit the statement. Rule 403 requires a balancing test and
permits the court to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. The trial court has
broad discretion over a Rule 403 judgment and is in the best position to assess the extent
of the prejudice caused by specific evidence. See Cruz, 326 F.3d at 396. Therefore,
“[w]hen a court engages in a Rule 403 balancing and articulates on the record a rational
explanation, we will rarely disturb its ruling.” Sampson, 980 F.2d at 889. “Where,
however, the court failed to perform this analysis, or where its rationale is not apparent
7 from the record, there is no way to review its discretion.” Id. “In that instance, we may
review the record and conduct the obligatory weighing ourselves.” United States v.
Sriyuth, 98 F.3d 739, 745 n.9 (3d Cir. 1996).
There is sufficient evidence to find the court engaged in a Rule 403 analysis. The
trial judge heard arguments from both sides regarding possible prejudice and rejected
Defendant’s argument that Johnson’s statement was unfairly prejudicial. The court’s
decision to allow the statement after engaging with the parties in this discussion
implicitly demonstrates its rationale under a Rule 403 balancing test.
The trial judge properly concluded the statement’s probative value was not
substantially outweighed by a danger of unfair prejudice against Defendant. The
statement served as Johnson’s attempt to clarify to the detectives why he voluntarily
participated in the robbery yet fled when Banks produced a gun. Although Johnson did
not testify at trial, this explanation was an integral part of his defense that he was not
involved in the shooting of McDowell. Indeed, the statement also shed light on
Johnson’s mens rea. See United States v. Repak, 852 F.3d 230, 247 (3d Cir. 2017)
(holding that evidence of mens rea had “significant” probative value when the defendant
disputed that element). Offering the statement in Johnson’s own words was relevant to
discredit his defense that he did not participate in the shooting. Any prejudice from his
statement about having done other stick-ups was not unfair because Johnson himself
offered the statement to law enforcement as an explanation to further his own narrative of
why he was not guilty of attempted murder. Accordingly, it was not error to admit the
statement.
8 B.
Even if admitting the statement was in error, it did not violate Johnson's
substantial rights. A Rule 404(b) violation is subject to harmless error review. Fed. R.
Evid. 103. An error is harmless where it does not violate a party’s substantial rights, such
as where there is “a ‘high probability’ that the discretionary error did not contribute to the
verdict.” Langbord v. U.S. Dep't of Treasury, 832 F.3d 170, 196 (3d Cir. 2016) (quoting
McQueeney v. Wilmington Tr. Co.,779 F.2d 916, 924–25 (3d Cir. 1985)). There is ample
evidence supporting Johnson’s conviction that does not implicate Rule 404(b). Such
evidence includes Johnson’s two videotaped interviews, including his admission that he
and Banks planned to rob McDowell, the undisputed fact that Banks shot McDowell, and
McDowell’s testimony against Johnson. As we have noted, McDowell testified that
Johnson attempted to remove McDowell’s jewelry, was present when Banks brandished
the gun, and told Banks “you know what to do then” after McDowell refused to give
them his property. It is highly probable the admission of the statement did not contribute
to the outcome of the trial, even if it was erroneous.
III.
For the foregoing reasons, we will affirm Johnson’s conviction.