United States v. Johnson

Opinion

23-6258-cr United States v. Johnson

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of September, two thousand twenty-six.

PRESENT: GUIDO CALABRESI, SARAH A. L. MERRIAM,

Circuit Judges,

JED S. RAKOFF,

District Judge. *

__________________________________________

UNITED STATES OF AMERICA, Appellee, v. 23-6258-cr LAMONTE JOHNSON, Defendant-Appellant,

COREY MOBLEY; JOHN MARTIN, a/k/a John-John, a/k/a Little John, a/k/a Lil John, a/k/a LJ;

*

Judge Jed S. Rakoff of the United States District Court for the Southern District of New York, sitting by designation.

GABRIEL STROIA; BRANDON DANIELS; SHI ZHEN LIN, a/k/a Kevin Lin, a/k/a Kev,

Defendants.

__________________________________________

FOR APPELLEE: James R. Simmons, Michael W. Gibaldi, Jonathan Siegel, Assistant United States Attorneys, for Joseph Nocella, Jr., United States Attorney for the Eastern District of New York, Brooklyn, N.Y.

FOR DEFENDANT-APPELLANT: Susan C. Wolfe, Riverdale, N.Y.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Dearie, J.). 1 UPON DUE CONSIDERATION, the January 25, 2023, judgment of the District Court is AFFIRMED.

Defendant-appellant Lamonte Johnson (“Johnson”) appeals from a judgment of conviction, following a jury trial, of one count of conspiracy to commit Hobbs Act robbery (Count One), and one count of committing and threatening to commit physical violence in furtherance of a plan to commit Hobbs Act robbery (Count Two), both in violation of 18 U.S.C. §1951(a). Johnson was sentenced principally to 96 months of incarceration, to be followed by three years of supervised release. We previously issued a summary order affirming the judgment in part and remanding to the District Court to

1 This matter has since been reassigned to Judge Garaufis, who conducted an evidentiary hearing and issued the findings of fact now at issue.

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conduct further fact-finding relating to Johnson’s ineffective assistance of counsel claim. See United States v. Johnson, No. 23-6258, 2024 WL 5183333 (2d Cir. Dec. 20, 2024) (summary order). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal, to which we refer only as necessary to explain our decision.

On remand, the District Court held an evidentiary hearing and issued written findings of fact relating to this limited inquiry. Johnson then moved to recall the mandate issued by this Court and to restore this matter to the docket to permit this Court to address his claim of ineffective assistance of counsel. We granted the motion absent objection, recalled the mandate, and ordered supplemental briefing. Johnson argues that his trial counsel was constitutionally ineffective because neither of his attorneys objected to the District Court’s use of a “three-courtroom system” for trial to address concerns relating to COVID.

In our prior order, “[w]e assume[d], without deciding, that the District Court’s physical exclusion of the public from the courtroom and use of a separate viewing room for the public amounted to a closure.” Johnson, 2024 WL 5183333, at *2 n.4. Even with that assumption, on the record before us, we do not find that Johnson’s trial counsels’ failure to object to the District Court’s use of the three-courtroom system amounted to constitutionally ineffective assistance.

DISCUSSION

To prevail on an ineffective assistance of counsel claim, a defendant must satisfy

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the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). “Under Strickland, a defendant who claims ineffective assistance of counsel must prove (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that any such deficiency was prejudicial to the defense.” Garza v. Idaho, 586 U.S. 232, 237 (2019) (citation modified). “The ultimate question of counsel’s ineffectiveness is not a question of basic, primary, or historical fact, but rather is a mixed question of law and fact.” Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011) (citation modified). We review the District Court’s findings of fact for clear error. See id.; Fed. R. Civ. P. 52(a)(6) (“Findings of fact . . . must not be set aside unless clearly erroneous.”). Any conclusions of law, including the “ultimate decision as to whether counsel’s performance violated the defendant’s Sixth Amendment rights, are reviewed de novo.” Chhabra v. United States, 720 F.3d 395, 407 (2d Cir. 2013).

On remand, the District Court made findings of fact, including findings regarding the credibility of the witnesses. On appeal, Johnson does not argue that any of those findings are clearly erroneous, and we do not find any clear error. We conclude that counsels’ failure to object to the three-courtroom system did not fall outside of the “wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. We therefore need not address the second prong of the Strickland test concerning prejudice. See Bennett, 663 F.3d at 85 (“The [ineffective assistance of counsel] claim must be rejected if the defendant fails to meet either the performance prong or the prejudice prong.”).

We review a trial counsel’s performance under a deferential standard, with a

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“strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, which extends to counsel’s strategic decisions.” Carew v. Morton, 150 F.4th 150, 164 (2d Cir. 2025) (citation modified). “Unreasonable errors by counsel include omissions that cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude, or laziness.” Id. (citation modified).

Johnson argues that his trial counsel “did not know the jurisprudence of the Sixth Amendment right to a public trial,” and “did not advise [him] that a Constitutional right . . . was being taken away” by the District Court’s use of the three-courtroom system. Johnson Supp. Br. at 26. He argues that both counsels’ performances were deficient because had they “known the law, [they] would have proposed any number of alternative measures to ameliorate the absence of the public” from the courtroom. Id. at 32. The District Court’s unchallenged findings of fact contradict these assertions.

First, the District Court determined that at the time the decision to proceed with the three-courtroom system was made, both of Johnson’s trial counsel “were aware of [Johnson’s] Sixth Amendment right to a public trial and their right to object to [the] decision to use the three-courtroom system.” Supp. App’x at 134. The District Court found that lead counsel Montgomery made a “conscious decision not to object” because he saw no strategic benefit to doing so. Supp. App’x at 135 (citation modified). The District Court also found that co-counsel “White decided not to object” because he felt that the social distancing would reduce the risk that jurors would be dismissed due to

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illness, which in turn would reduce the risk of a mistrial. Supp. App’x at 135. “White identified two downsides of a potential mistrial: (1) [Johnson] had been incarcerated in a different case and his time was expiring such that if he were to be acquitted in the instant case, he would be coming home; and (2) White wanted to avoid forecasting their defense strategy to the Government.” Supp. App’x at 136 (citation modified).

To establish that counsel’s performance was deficient, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (citation modified). On the record before us, Johnson cannot overcome that presumption.

Second, the District Court found that Johnson’s testimony that neither Montgomery nor White had discussed the decision to use the three-courtroom system with him was not credible. The District Court found that Johnson’s testimony “flies in the face of his experienced trial counsel’s representations” at the evidentiary hearing, and that “it strains credulity to believe that after [the District Court] announced that [Johnson’s] family and friends would be physically excluded from the courtroom during [the] trial, that neither of his attorneys discussed this with him at any point before the trial.” Supp. App’x at 136 n.8. “Rule 52(a) emphasizes the special deference to be paid [to] credibility determinations,” and “where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Bennett, 663 F.3d at 85 (citation modified). We do not find the District Court’s findings concerning credibility to be clearly erroneous, and on the record before us, we therefore

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cannot conclude that Johnson’s trial counsel failed to advise him of his rights.

Given the level of deference with which we evaluate counsels’ performance under the first prong of the Strickland test, the District Court’s findings of fact compel our conclusion that the decision not to object to the three-courtroom system was not objectively unreasonable. See Strickland, 466 U.S. at 689.

Accordingly, for the foregoing reasons, the judgment of the District Court is AFFIRMED. 2

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

2 In his supplemental briefing, Johnson contends that “counsel’s failure to object” to the courtroom closure “was not the only instance of ineffective assistance of counsel.” Johnson Supp. Br. at 37. It may be that Johnson believes he has other arguments that his trial counsel were ineffective. But the only ineffectiveness claim he raised in his direct appeal to this Court – and thus the only such claim before us at this time – was that his counsel failed to “raise[] the public trial issue or . . . the exclusion of their client’s family” from proceedings. Johnson Orig. Br. at 36.