United States v. Johnson

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

11-4-2004

USA v. Johnson Precedential or Non-Precedential: Precedential

Docket No. 03-4066

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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Senior Appellate Counsel Curtis R. Douglas (argued) UNITED STATES COURT OF Assistant United States Attorney APPEALS 615 Chestnut Street FOR THE THIRD CIRCUIT Philadelphia, Pa. 19106

Attorneys for Appellee No. 03-4066 Elizabeth K. Ainslie Anne E. Kane (argued) UNITED STATES OF AMERICA Schnader Harrison Segal & Lewis LLP 1600 Market Street, Suite 3600 v. Philadelphia, Pa. 19103

STANLEY JOHNSON, Attorneys for Appellant

Appellant OPINION OF THE COURT

On Appeal from the United States District Court GREENBERG, Circuit Judge. for the Eastern District of Pennsylvania (D.C. Crim. No. 00-00231) Honorable Petrese B. Tucker, I. FACTUAL AND PROCEDURAL District Judge HISTORY

Argued September 23, 2004 This matter comes on before this court on Stanley Johnson’s appeal from a BEFORE: MCKEE, ALDISERT and judgment of conviction and sentence GREENBERG, Circuit Judges entered in this criminal case on October 27, 2003. The district court had (Filed: November 4, 2004) jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.1 Patrick L. Meehan United States Attorney Laurie Magid 1 This case previously reached our Deputy United States Attorney court after Johnson’s conviction at his for Policy and Appeals first trial in January 2001. In February Robert A. Zauzmer 2001, the district court granted Johnson a Assistant United States Attorney new trial because the government had not The background of the case is as then stole the vehicle.2 The indictment follows. On May 2, 2000, a grand jury alleges that all three men were armed and returned a three-count indictment against that Johnson acted as a lookout. Johnson charging him with conspiracy to commit carjacking, in violation of 18 At the outset of the trial, U.S.C. § 371, carjacking, in violation of Johnson’s attorney sought to prevent the 18 U.S.C. § 2119, and using and carrying government from introducing evidence a firearm in furtherance of a crime of related to Johnson’s 1995 conviction for violence, in violation of 18 U.S.C. § theft for impeachment purposes pursuant 924(c)(1). The indictment named Willie to 18 Pa. Cons. Stat. Ann. § 3921 (West Ingram and Anthony Milton as co- 1983). 3 The government argued on conspirators. In particular, it charged alternative grounds that the evidence of that on July 2, 1998, Johnson, Ingram the prior conviction could be used for and Milton approached Donald Foster impeachment purposes under Federal and Sonia Smith-Burgest as they exited Rule of Evidence 609. First, it Smith-Burgest’s 1995 Chevy Blazer and maintained that the evidence was that the three co-conspirators forced admissible pursuant to Rule 609(a)(1) as Smith-Burgest to remove her jewelry and a crime punishable by imprisonment in excess of one year and whose probative value outweighed its prejudicial effect on Johnson. Second, the government asserted that the evidence of the prior conviction was admissible as a crime provided his attorney with notice that one involving dishonesty or false statement of the victims in the carjacking would pursuant to Rule 609(a)(2). identify Johnson as one of the perpetrators. Johnson then filed a motion After hearing argument, the for judgment of acquittal in the district district court found that the evidence was court, arguing that the evidence presented at the first trial was not sufficient to support a conviction. After 2 The indictment does not charge that the district court denied his motion, the jewelry was stolen. Johnson appealed. In a not precedential 3 opinion dated May 7, 2002, exercising The district court previously had jurisdiction under 28 U.S.C. § 1291 denied Johnson’s motion to preclude pursuant to the collateral order doctrine, introduction of the prior conviction on we affirmed the district court’s denial of cross-examination and thus his attorney the motion for judgment of acquittal and was asking the court to revisit this issue. remanded the case to the district court for We do not know the basis for the earlier a second trial. United States v. Johnson, ruling. The appeal here, however, 35 Fed. Appx. 358 (3d Cir. 2002) (table). challenges only the second ruling.

2 admissible under Rule 609(a)(2) stating: anything and that she did not see any gun in his hand. Foster also testified, but was I think that if you take able to identify only Ingram as one of the something with the intent carjackers, as he did not get a good look to benefit yourself and you at the faces of the other two perpetrators. know you’re not entitled to He indicated, however, that Smith- it, that is a sufficient Burgest did get a good look at them. element of dishonesty to Foster explained that he could not bring it within the rule. identify the man who ordered Smith- And it is my opinion that it Burgest to remove her jewelry, but that would be appropriate to he was “the short guy.” AP at 127. He cross examine Mr. Johnson further testified that the two taller men, as to the theft. Ingram and another individual, pointed guns at him. Of the three men, Ingram AP at 34.4 In view of that ruling the and Johnson were significantly taller court did not consider whether the than Milton. Both Ingram and Milton evidence was admissible under Rule pled guilty to carjacking and, pursuant to 609(a)(1). plea agreements, testified against Johnson. Ingram and Milton testified At the trial, Smith-Burgest that Johnson was armed at the time of the positively identified Johnson and carjacking and that he participated in the testified that he stood off to the side crime. during the carjacking and never said Johnson testified in his own defense. He said that on the evening of 4 July 2, 1998, he had gone out around AP refers to Johnson’s appendix. The midnight to try to buy some marijuana government has contended that the for personal use and that while he was on district court also found that the evidence the street he saw Milton and Ingram. was admissible under Rule 609(a)(1) but According to Johnson, Ingram was we reject that argument as the court’s holding a gun and asked him to “watch reference to the crime having an for cops.” AP at 155. Johnson explained “element of dishonesty to bring it within at trial that Ingram had a bad reputation the rule” plainly tracks the language of in the neighborhood and had “shot at Rule 609(a)(2) that the crime have people.” Id. He testified that he acted as “involved dishonesty.” Moreover, the a lookout during the robbery and argument of the attorneys prior to the carjacking because he was afraid that district court announcing its Ingram might shoot him if he did not determination centered on whether participate. Johnson testified that, after Johnson’s offense involved “dishonesty” the completion of the robbery, Ingram within Rule 609(a)(2).

3 yelled at him to get into the stolen car circumstances which you and that he did so. Johnson testified that may consider in he did not have a weapon during the determining the credibility carjacking. On cross-examination, the of that witness. prosecutor questioned Johnson regarding his 1995 theft conviction for purposes of It is the sole and impeachment. exclusive right of you, the jury, to determine the The district court gave the weight to be given to any following instruction to the jury prior conviction as regarding Johnson’s theft conviction: impeachment and the weight to be given to the The testimony of a testimony of anyone who witness may be discredited has previously been or impeached by evidence convicted of a felony. showing that the witness has been convicted of a You have heard that felony, a crime for which a the defendant Stanley person may receive a Johnson was convicted of a prison sentence of more crime. You may consider than one year.5 Prior that evidence as [sic] conviction of a crime that deciding, as you do with is a felony is one of the any other evidence, how much weight to give the defendant’s testimony. 5 This earlier conviction was We realize that the district court’s brought to your attention reference to “a prison sentence of more only as one way of helping than one year” tracks the language of you decide how believable Rule 609(a)(1). Nevertheless, we do not his testimony was. You believe that the court by the use of that must not use his prior language intended to suggest that it conviction as proof of the admitted the evidence under that rule as crimes charged in this case the jury was not concerned with the or for any other purpose. It distinction between Rules (a)(1) and is not evidence that he is (a)(2). Of course, if we are wrong as to guilty of the crimes that he the district court’s intentions it may say is on trial for in this case. so on the remand we are ordering when it engages in the weighing process under AP at 251-52. The jury found Johnson Rule 609(a)(1), which in any event will guilty on all three counts. The district be required.

4 court subsequently sentenced him to The government concedes that the concurrent terms of 100 months in prison district court erred in allowing it to to be followed by three years of impeach Johnson as to his prior theft supervised release. He timely appealed conviction as a crime involving his conviction.6 dishonesty or false statement under Rule 609(a)(2). Appellee’s br. at 12. It maintains, however, as it did in the district court, that the conviction was II. DISCUSSION admissible under Rule 609(a)(1) as a crime punishable by imprisonment in Johnson maintains that the district excess of one year whose probative value court erred in allowing the government to outweighed its prejudicial effect on impeach his testimony with his 1995 Johnson. The government recognizes theft conviction. He argues that the theft that the district court “did not explicitly conviction was not admissible under address” this argument, yet it contends Rule 609(a)(2) because it is not a crime that “the court arguably did address the that “involved dishonesty or false argument, when it stated: ‘And it is my statement.” Johnson further contends opinion that it would be appropriate to that the admission of his theft conviction cross examine Mr. Johnson as to the was reversible rather than harmless error theft.’” Appellee’s br. at 16. The and therefore we must reverse his government then argues that given the convictions on all three counts.7 absence of explicit findings we may conduct a plenary review and, under that 6 standard of review, we should find that The district court sentenced Johnson the probative value of the theft on October 8, 2003, but the judgment conviction outweighed its prejudicial was not entered on the district court impact on Johnson. The government docket until October 27, 2003. contends that, in any event, even if 7 evidence of the conviction for theft Johnson also mounts a constitutional should not have been admitted the error challenge to his conviction under 18 was harmless. U.S.C. § 924(c) for using and carrying a firearm in furtherance of a crime of We review a district court’s violence, which carries with it a five-year decision to admit evidence for abuse of mandatory minimum sentence. Johnson discretion but we exercise plenary review asserts that, as applied to prosecutions under the carjacking statute, section 924(c) violates the constitutional principles providing for the separation of sentence. We are satisfied that Johnson’s powers because the executive branch’s constitutional argument clearly is without charging decision determines the merit so we do not discuss it.

5 over a district court’s construction of the in admitting the prior conviction as Federal Rules of Evidence. United impeachment evidence under Rule States v. Brown, 254 F.3d 454, 458 (3d 609(a)(2). Appellee’s br. at 11; see Cree Cir. 2001). Rule 609 provides, in v. Hatcher, 969 F.2d 34, 37 (3d Cir. relevant part: 1992) (“Because the district court lacks discretion to engage in balancing, Rule (a) General rule. For the 609(a)(2) must be interpreted narrowly to purpose of attacking the apply only to those crimes that, in the credibility of a witness, words of the Conference Committee, bear on a witness’s propensity to testify (1) evidence that a truthfully.”); Gov’t of V.I. v. Toto, 529 witness other than an F.2d 278, 280 (3d Cir. 1976) (“[A] accused has been convicted witness may be impeached by evidence of a crime shall be of a prior conviction only if the admitted subject to Rule conviction is for a felony or for a 403, if the crime was misdemeanor in the nature of crimen punishable by death or falsi.”). But as we also have indicated, imprisonment in excess of the government maintains that the one year under the law evidence was admissible under Rule under which the witness 609(a)(1) and that, in the alternative, we was convicted, and should find that any error in admitting evidence that an accused Johnson’s 1995 theft conviction was has been convicted of such harmless. a crime shall be admitted if the court determines that Inasmuch as the district court held the probative value of that Johnson’s 1995 conviction for theft admitting this evidence was admissible under Rule 609(a)(2) as a outweighs its prejudicial crime involving dishonesty or false effect to the accused; and statement, it did not determine whether the conviction was admissible under (2) evidence that Rule 609(a)(1). 8 In order for any witness has been impeachment evidence of a prior crime convicted of a crime shall to be admissible against an accused be admitted if it involved under that rule: (1) the crime must be dishonesty or false statement, regardless of the punishment. 8 As we have indicated we might be wrong about this point, see n.5, supra, As we have indicated, the government but if we are the district court may say so now concedes that the district court erred on the remand.

6 punishable by death or imprisonment in contends that the court “arguably” excess of one year under the law under engaged in that process when it stated which the witness was convicted; and (2) that “it is my opinion that it would be the court must determine that the appropriate to cross examine Mr. probative value of admitting the evidence Johnson as to the theft.” AP at 34. The outweighs its prejudicial effect. government asks us to find that this statement satisfies the balancing process The court’s decision to admit the and contends that we owe deference to evidence under Rule 609(a)(2) obviated the district court’s decision. But we the need for it to determine whether the cannot accept this argument as we have conviction qualifies as a crime concluded that the district court allowed punishable by imprisonment in excess of the impeachment evidence under Rule one year under the law of Pennsylvania.9 609(a)(2) and that, therefore, it did not At oral argument we noted this omission reach nor did it attempt to address the and asked Johnson’s attorney if there was alternative ground for admission under any dispute over whether his 1995 Rule 609(a)(1). Thus, the court’s conviction for purse snatching was statement that it would be appropriate to punishable by imprisonment for a term in cross examine Johnson as to the excess of one year. The attorney conviction related to its conclusion that responded that there was no dispute on the crime reflected dishonesty as that this point and that Johnson agreed that term is used in Rule 609(a)(2) rather than the one-year statutory threshold in Rule being the result of the court’s balancing 609(a)(1) had been satisfied. Thus, it of interests under Rule 609(a)(1). was possible for the conviction to be used for impeachment purposes Ordinarily we review an depending on the district court’s evidentiary ruling of a district court resolution of the weighing question. involving a balancing of interests for abuse of discretion, but if the district As we have explained, the court does not articulate the reasons government acknowledges that the underlying its decision there is no way to district court did not explicitly engage in review its exercise of discretion. See the balancing process required by Rule United States v. Agnew, No. 03-2654, 609(a)(1) for impeachment evidence to 2004 WL 21202662, at * 3, F.3d be admitted under that rule. Instead it (3d Cir. Sept. 22, 2004). Nevertheless, a failure by a district court to articulate its basis for its exercise of discretion might 9 not preclude us from determining The district court’s charge to the jury whether we must remand a matter. As suggests it believed that the one-year we explained in Becker v. ARCO requirement had been satisfied but it did Chemical Co., 207 F.3d 176, 181 (3d Cir. not say so expressly.

7 2000), if “the district court fails to discretion or plenary basis.10 explain its grounds for denying a [Federal Rule of Evidence 403 Furthermore, the record in this balancing] objection and its reasons for case does not permit us to assume that doing so are not otherwise apparent from admission of the prior conviction the record . . . we need not defer to the evidence would have been justified under district court’s ruling, and we may a Rule 609(a)(1) balancing analysis. undertake to examine the record and Thus, we treat the admission of the perform the required balancing evidence on the basis used by the trial ourselves.” While Becker was concerned court as erroneous and undertake the with Rule 403, we recently applied the harmless error analysis that the same principle under Federal Rule of government contends should lead us to Evidence 609(b) as an alternative ruling uphold Johnson’s convictions. in Agnew and we similarly could apply it under Rule 609(a)(1). Quoting the Supreme Court’s decision in Kotteakos v. United States, Here, however, inasmuch as the 328 U.S. 750, 765, 66 S.Ct. 1239, 1248 district court never ruled on nor (1946), we previously have explained addressed the government’s argument that, “[i]f one cannot say, with fair that the 1995 theft conviction was assurance, after pondering all that admissible under Rule 609(a)(1), the happened without stripping the erroneous quoted statement from Becker is action from the whole, that the judgment inapposite. Becker cannot be applicable was not substantially swayed by the here because we are not dealing with a error, it is impossible to conclude that situation in which the district court substantial rights were not affected.” 11 simply failed to explain its reasoning under Rule 609(a)(1) but in which we 10 nevertheless could infer that the court We are not suggesting that a court of balanced the interests in favor of the appeals must reverse whenever it appears admission of the evidence. Rather, the that the district court did not rule on a district court had no reason to consider question in a case. But here we are whether the probative value of the concerned with an unusual situation in conviction outweighed its prejudicial which there is a balancing analysis effect under Rule 609(a)(1). Therefore required on a very important question we have no decision on this point to that the district court should undertake in review, whether on an abuse of the first instance and on which we cannot be certain that there is a clearly preferable answer. 11 An analysis of whether the substantial rights of a defendant were

8 Toto, 529 F.2d at 283. After reviewing the probative value of admitting the the record we cannot say that the evidence outweighed its prejudicial admission of the 1995 theft conviction effect on Johnson it should reinstate the did not affect Johnson’s substantial rights conviction and sentence. Otherwise it as it may have led the jury to disbelieve should grant a new trial. In this regard Johnson’s testimony that he did not have we point out that even though we are a weapon and only remained at the crime holding that the impeachment evidence scene because he feared Ingram. Indeed, was admitted improperly and that the the government concedes that “[i]n this error was not harmless, the district court case, the defendant’s credibility was is not precluded from finding its central to the case.” Appellee’s br. at 19. probative value outweighed its Therefore, the conviction cannot stand. prejudicial effect on Johnson.

In reaching our result we have not overlooked Johnson’s argument that we III. CONCLUSION should not remand the matter for the district court to determine whether the Because the district court erred in evidence is admissible under Rule admitting Johnson’s prior theft 609(a)(1) because the district court conviction on the basis that it did and we would abuse its discretion if it admitted cannot uphold its admission at this time the evidence under that rule. While we on a different basis and such error was do not preclude Johnson on a further not harmless, we will vacate the appeal from raising that argument if the judgment of conviction and sentence, and court does admit the evidence and then will remand this case for further reinstates the conviction and sentence, proceedings. We will not, however, we are not convinced on the current order a new trial but instead we will record that admitting the evidence would instruct the district court on the remand be an abuse of discretion. Thus, the to undertake the weighing analysis that district court should engage in the Rule 609(a)(1) requires. If the court weighing process in the first instance. determines after making that analysis that The judgment of conviction and sentence entered on October 27, 2003, will be vacated and the case will be affected by the admission of evidence remanded to the district court for further includes consideration of a factor similar proceedings in accordance with this to one factor in the balancing test in opinion. which a district court engages under Rule 609(a)(1), namely, the gravity of the prejudice that the admission of the evidence would have on a defendant.

9 United States v. Stanley Johnson, No. 03- routine. Johnson’s prior purse snatch 4066 involved the theft of $15.00 three years before the instant offense. Nothing about McKee, Circuit Judge, Concurring it suggests the kind of callous violence that is endemic in carjacking. See 18 I join the opinion of my U.S.C. § 2119 (defining “carjacking” as colleagues because I agree that admitting the use of force, violence or intimidation evidence of Johnson’s prior theft to take a vehicle transported in interstate conviction constituted error under Rule or foreign commerce from the person of 609(a)(2). I write separately because, in another with “intent to cause death or remanding for further proceedings, we serious bodily harm”). are allowing the District Court discretion to open the record for additional Unlike an armed carjacking, a testimony on the admissibility of the purse snatch is frequently an “impulse 1995 theft conviction (purse snatch) crime” devoid of the viciousness that so under Rule 609(a)(1). At oral argument, often characterizes a carjacking. See defense counsel did not object to a United States v. Lipscomb, remand to allow the District Court an 702 F.2d 1049, 1058 (D.C. Cir. 1983) opportunity to balance the potential (referring to purse snatching and prejudice against the probative value, shoplifting as impulse crimes). although she did strenuously argue that Nevertheless, a purse snatch is similar to admitting the prior conviction on this a carjacking insofar as both are crimes record would be reversible error. My that jurors can readily relate to given the colleagues state that “the record in this familiar precautions that must be case does not permit us to assume that employed to guard against one’s purse admission of the prior conviction being stolen. However, it suggests evidence would have been justified under neither the force nor the confrontation a Rule 609(a)(1) balancing analysis.” involved in a carjacking. Given the three Maj. Op. at 12. I agree. However, I do years that lapsed between the two crimes, not think that this record, absent more, the extent to which the two crimes could support a conclusion that the differed, and the potential for jurors to probative value of Johnson’s conviction doubt Johnson’s testimony because they for a purse snatching outweighs the could so easily relate to the victim of the prejudicial value of that conviction. prior offense and the victims of the carjacking, I do not think that this record Carjacking is, of course, a would allow a court to conclude that the particularly shocking crime because we probative value of the purse snatch can all relate to an innocent victim who outweighed its prejudicial effect. is suddenly snatched from his/her car at gunpoint while in the midst of some daily In balancing prejudice against

10 probative value under Rule 609(a)(1) a the first place. court must consider the nature of the prior crime, the age of the prior Therefore, I doubt that a proper conviction, the importance of the balancing of prejudice and probative defendant’s testimony, and the value can tip in favor of admission importance of the defendant’s credibility. without more being placed on the Government of the Virgin Islands v. admission side of the scale. However, Bedford, 571 F.2d 758, 761 n.4 (3d Cir. inasmuch as defense counsel did not 1982). Having urged the District Court object to our remanding for further to admit Johnson’s prior offense under proceedings when that was suggested an incorrect theory, the government now during oral argument, that possibility is argues that “the evidence against not foreclosed. If the District Court Johnson was consistent and persuasive, decides to allow additional testimony in contrast to which Johnson’s testimony before making a ruling under Rule was dubious on its face.” Br. at 22 609(a)(1), the record may, at that point, (emphasis added). In contrast, the support a determination that the government argues that “the testimony of probative value of the 1995 purse snatch [the prosecution witnessses] was outweighs its prejudicial impact. consistent, and at odds with Johnson’s seemingly contrived account.” Id. Thus, Johnson’s prior conviction was not crucial to the government’s case. Yet, it was crucial to the defense. The only evidence of Johnson’s innocence was Johnson’s own explanation of his presence at the scene of this carjacking. Nevertheless, the government argues that “the defendant’s credibility was central to the case.” Br. at 19. It was certainly central to the defendant’s case, but the government’s brief suggests that it was not very important to the government’s case. Given the government’s contentions regarding Johnson’s “seemingly contrived account” that was “dubious on its face,” and the “consistent and persuasive” evidence against him, it is difficult to understand why the government insisted on eliciting problematic testimony under Rule 609 in