United States v. Johnson

76 F. App'x 737
Court of Appeals for the Seventh Circuit·Decided August 21, 2003·No. No. 02-3020·Published

Opinion

ORDER

A jury found Myrtle Mae Johnson guilty of bank robbery, 18 U.S.C. § 2113(a), conspiring to commit bank robbery, 18 U.S.C. §§ 371, 2113(a), possessing a firearm after a felony conviction, 18 U.S.C. § 922(g)(1), possessing ammunition after a felony conviction, id., possessing cocaine base, 21 U.S.C. § 844(a), and possessing a firearm during a crime of vio[739] lence, 18 U.S.C. § 924(c). The district court sentenced her to a total of 156 months’ imprisonment and 5 years’ supervised release, a fine of $2,500, restitution of $1,722, and a special assessment of $100 for each of the six counts. Johnson appeals, but her appointed counsel seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he believes all potential appellate issues are frivolous. Pursuant to Circuit Rule 51(b), Johnson filed a response to her counsel’s Anders motion, but that response-which consists solely of summaries of other cases-does not identify any potential issues separate from those considered by counsel. We thus confine our review to the potential issues counsel identifies. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). We agree with counsel that all identified issues would be frivolous, and therefore grant counsel’s motion to withdraw and dismiss the appeal.

Counsel first considers whether Johnson could argue that the district court should have granted her pretrial motion to find § 922(g)(1) unconstitutional. Johnson contended that § 922(g)(1) is unconstitutional because it prohibits a felon from possessing a firearm or ammunition “in or affecting commerce” rather than “in or affecting interstate commerce.” Thus, argued Johnson, § 922(g)(1) exceeds Congress’s powers under the Commerce Clause of the Constitution.

As counsel notes, the Supreme Court long ago rejected such attacks on Congress’s power to outlaw the possession of weapons by felons. See United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (holding that statutory predecessor to § 922(g)(1) required government to prove that firearm had traveled in interstate commerce; statute was thus constitutional). Nothing in recent years has called into question the constitutionality of § 922(g)(1). See United States v. Harris, 325 F.3d 865, 873-74 (7th Cir. 2003); United States v. Lemons, 302 F.3d 769, 770-71 (7th Cir.2002). We therefore agree with counsel that an appeal of this issue would be frivolous.

Counsel next considers whether he could argue that the government’s evidence was insufficient to sustain any of the counts of conviction. Appellate review of such sufficiency-of-the-evidence claims is highly deferential; we view the evidence in the light most favorable to the government, and reverse a conviction only if no rational trier of fact could have found the defendant guilty of the crime charged. See United States v. Brown, 328 F.3d 352, 355 (7th Cir.2003).

Reviewing the government’s evidence, counsel notes that a bank teller who worked at a federally insured bank testified at trial that two people-an older woman and a younger man-approached her teller station and demanded that money be placed in their blue nylon bag; the demand made the teller fear for her life, especially since the woman had her hand tucked under her arm as if she was carrying a gun. The teller complied with the request, but also slipped an explosive dye pack-which failed to activate as the robbers left the bank-into the couple’s bag. The teller later identified Johnson in a photo line-up as the female half of the pair. Furthermore, two of Johnson’s neighbors testified that they spoke with Johnson and her son just one hour after the robbery; mother and son bragged that they had successfully robbed the bank as they dumped money and a .38 caliber pistol out of a blue bag similar to the one used by the robbers. One of the neighbors also testified that Johnson had been asking for [740] bullets for the pistol for weeks, explaining that she wanted to rob a bank. Police located an unexploded dye pack outside Johnson’s apartment, and when Johnson and her son were later arrested, officers located in the son’s socks three twenty-dollar bills with serial numbers matching bills stolen from the bank. Officers also recovered a .38 caliber pistol and crack cocaine-which Johnson elaimed-from the car in which she and her son were traveling.

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United States v. Johnson, 76 F. App'x 737 (7th Cir. 2003).

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Bass
404 U.S. 336 (Supreme Court, 1971)
United States v. James R. Wagner
103 F.3d 551 (Seventh Circuit, 1996)
United States v. Shane Buchmeier
255 F.3d 415 (Seventh Circuit, 2001)
United States v. Donald K. Lane
267 F.3d 715 (Seventh Circuit, 2001)
United States v. Lester Lemons
302 F.3d 769 (Seventh Circuit, 2002)
United States v. Roy Young
316 F.3d 649 (Seventh Circuit, 2002)
United States v. Barbara A. Harris
325 F.3d 865 (Seventh Circuit, 2003)
United States v. Timothy Brown, Jr.
328 F.3d 352 (Seventh Circuit, 2003)