United States v. Johnson ( 2004 )

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Precedential or Non-Precedential: Precedential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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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. § 3231and we have jurisdiction under 28 U.S.C.
§ 1291.1Patrick 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
11