United States v. Johnson , 247 F. App'x 357 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-19-2007
USA v. Johnson
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2145
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2145
UNITED STATES OF AMERICA
v.
JECONA JOHNSON,
Appellant
On Appeal from the United States District Court
for the District of Delaware
(D.C. Crim. No. 04-cr-00057-1)
District Judge: Honorable Joseph J. Farnan, Jr.
Submitted Under Third Circuit LAR 34.1(a)
September 17, 2007
Before: SLOVITER, SMITH, and WEIS, Circuit Judges
(Filed: September 19, 2007)
OPINION
SLOVITER, Circuit Judge.
Appellant Jecona Johnson appeals his conviction for possession of a firearm by a
felon. He raises several issues that we discuss herein. We have jurisdiction pursuant to
28 U.S.C. § 1291.
I.
Jecona Johnson was arrested on July 13, 2004, pursuant to a warrant alleging
various drug offenses. During questioning by officers of the Drug Enforcement
Administration, he agreed to answer the officers’ questions. An officer told him, as a
ruse, that he knew Johnson had a handgun and asked where it was located. Johnson
eventually informed the officers that he had two handguns at his residence, which they
could find in a book bag (backpack) that he said belonged to a friend, Gary Haile, who
told him that the two guns were in the bag when he dropped it off at Johnson’s house on
June 28. After receiving Johnson’s permission to search his house, the officers found the
backpack which contained, among other things, a .22 caliber gun with ammunition, a
loaded .25 caliber gun, and a silencer for the .22 caliber gun.
A superseding indictment charged Johnson with three counts for cocaine base
(crack) distribution in violation of 21 U.S.C. § 841(a)(1), one count for conspiracy to
distribute cocaine base in violation of 21 U.S.C. § 846, one count for possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and one count for possession of
an unregistered firearm (the silencer) in violation of 26 U.S.C. § 5861(d).
The District Court bifurcated the trial on Johnson’s motion to sever the drug
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charges and the charges for firearm possession. On July 29, 2005, the first jury acquitted
Johnson of all drug charges. Following that trial, Johnson moved in limine to exclude
certain evidence from the second trial. In response, the Court barred the government
from introducing evidence (1) related to parts of the interview on July 13, 2004 that were
unrelated to the charges of firearm possession, though it could introduce the redacted
report and notes of the investigators; (2) related to Johnson’s detention in El Paso, Texas,
in March 2004 or the seizure of $23,000 from him; (3) related to the government’s
investigation of Johnson before July 13, 2004; or (4) about the nature of Johnson’ prior
felony conviction. The Court denied Johnson’s request to exclude testimony about an
officer’s statement to him during questioning that he knew of his possession of a
handgun.
At the second trial, which began on November 21, 2005, the parties stipulated that
Johnson had been convicted of a felony in November 1999 and that the silencer found in
the backpack was not registered to Johnson. During the opening statements, counsel for
the government referred to Johnson’s arrest on July 13, 2004, and Johnson moved for a
mistrial. The Court denied this motion.
At the trial, the government asked Johnson during cross-examination whether he
had ever carried “large sums of cash,” and specifically whether he had carried more than
$10,000. App. Vol. II at 279. Johnson’s counsel objected to this question as precluded
by the motion in limine. The Court overruled the objection because the question did not
specifically refer to the March 2004 seizure and was relevant to Johnson’s motive to have
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a gun: specifically, for the protection of such sums. At sidebar, when Johnson’s counsel
argued that “when [Johnson] had large sums of cash on him, the evidence shows he didn’t
have a gun,” the District Court commented, “He’s having a bad day that day. He forgot
to bring his gun to protect his cash. He can do a little bit of this, get into it.” App. Vol. II
at 282.
Later during the same cross-examination, the government asked Johnson “if
someone had asked you on July 5th, 2004, Hey, can I take that backpack, your response
would have been what?” App. Vol. II at 292. Johnson’s counsel objected to this question
as requiring a speculative answer, but the government’s counsel explained it as relating to
Johnson’s state of mind. The Court overruled the objection. Johnson answered, stating
“No. I would have told them to leave it alone,” and he explained his answer: “Because
that’s Gary’s gun.” App. Vol. II at 293.
Before sending the jury to deliberate, the Court instructed the jury that for
constructive possession, “the [g]overnment must prove that Mr. Johnson had the power
and intent to exercise the dominion and control over the firearms he is charged with
possessing.” App. Vol. II at 364. It continued:
Dominion and control are not established by mere proximity to the firearms
or mere presence in the house where the firearms are located, or mere
association with the person who does control the firearms. For example, if
you left something with a friend intending to come back later and pick it up,
or intending to send someone else to pick it up for you, you would have
constructive possession of it while it was in the actual possession of your
friend.
Id.4
After the jury had been sent to deliberate, it returned with a question seeking a
better definition of “the power and intent to exercise dominion and control” and requested
“a few more examples.” App. Vol. I at 18. Johnson’s counsel agreed that it would be
appropriate to provide the jury with a definition but initially expressed uncertainty as to
whether it was appropriate to provide examples. After discussing the appropriate
response with counsel, the Court repeated its original instruction to the jury and then
offered the following example:
I am now in actual possession of my yellow marker. I hold it, so I have
dominion and control. . . . Now, if I stand up and I put my yellow marker
over here, and then I come back over to my chair . . . and I start to do
something else . . . Do I now have constructive possession of that marker?
. . . Do you find that there were facts or evidence that would support that I
intend to continue to control that marker?
App. Vol. II at 394. The Court provided an additional example:
[I]f I take my magic marker and I give it to my law clerk, and now my law
clerk has actual possession. But, under all the circumstances, could you
find I still intend to exercise dominion and control over that, even though
it’s in his possession? . . . And it depends on what the circumstances were
of my laying it there or giving it to him, and what surrounds that . . . .
App. Vol. II at 396.
Following the example, the jury responded that it was more confused. In response,
the Court continued:
In deciding constructive possession, you have to look at the evidence of the
placing and all the other evidence around that, and then determine, for
instance, whether you thought I was going to go back and get it. . . . Is
there evidence that shows that I intended to continue to have dominion,
control, exercise my authority over it, even if I give it to another person?
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App. Vol. II at 397-98. Following this explanation, the jury responded that it was “okay.”
App. Vol. II at 398. The government, but not Johnson’s counsel, excepted to the
explanation.
The jury later returned a verdict of guilty on the charge of possession of a firearm
by a felon and not guilty for the charge of possession of an unregistered firearm. The
Court sentenced Johnson to fifty months in prison to be followed by three years of
supervised release. He filed a timely notice of appeal.
II.
An appellate court exercises plenary review over the legal standard stated in a jury
instruction, but the wording or expression of the instruction is reviewed for abuse of
discretion. United States v. Williams, 344 F.3d 365, 377 (3d Cir. 2003). However,
because Johnson did not object to the jury instructions that were given at his trial, we
review the instructions for plain error only. Fed. R. Crim. P. 52(b); Williams, 344 F.3d at
378-79.
Johnson argues that the examples provided to the jury in the District Court’s
supplemental instruction were erroneous, confusing, and prejudicial. He correctly
describes these instructions on possession as going to the heart of the case.
The District Court’s initial jury instruction was based directly on Third Circuit
precedent and was a proper statement of the law about constructive possession. See
United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999); United States v. Iafelice, 978
F.2d 92, 96 (3d Cir. 1992). It was also proper for the Court to provide supplemental
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instructions in response to the jury’s question after conferring with counsel. See Gibson
v. Mayor & Council of Wilmington, 355 F.3d 215, 231 (3d Cir. 2004). The example used
by the District Court, illustrating the concept of constructive possession for the jury using
a marker, was essentially the same as the example it described in its initial jury
instruction. Both examples conveyed the instruction that constructive possession can be
found where an individual did not have actual physical possession of an object but had
the intention and ability to gain actual possession of it later. Although the jury expressed
its confusion following the Court’s examples using the marker, it stated that it had
reached an understanding following the Court’s further clarification.
The examples given by the Court were not prejudicial or misleading because they
merely provided tangible illustrations of the definitions that it had previously given the
jury and of the distinction between actual and constructive possession. Johnson’s
suggestion that the examples given presupposed his actual possession of the illegal
materials is unpersuasive.
III.
Johnson next challenges his cross-examination regarding how he would have
responded if someone asked to take Haile’s backpack. Johnson’s counsel objected at trial
on the ground that the question required a speculative answer. We review the decision to
overrule this objection for abuse of discretion. Citizens Fin. Group, Inc. v. Citizens Nat’l
Bank of Evans City, 383 F.3d 110, 133 (3d Cir. 2004).
We reject Johnson’s argument that the government posed an improper hypothetical
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question. The government’s question was not the type of hypothetical question that a lay
witness may not be asked. See Fed. R. Evid. 705; Wilburn v. Maritrans GP, 139 F.3d
350, 356 (3d Cir. 1998). Instead, the government explained, and the District Court
agreed, that it was asking about Johnson’s state of mind, as to which he alone had
personal knowledge.
Johnson also argues that the District Court erred in allowing the government’s
question because its probative value was substantially outweighed by its prejudicial
nature in violation of Federal Rule of Evidence 403. Because no objection to this
testimony was made on this basis at the time of trial, we review for plain error. Fed. R.
Crim. P. 52(b); Williams, 344 F.3d at 378-79. The question related to Johnson’s state of
mind, which was directly relevant to whether he intended to exercise dominion and
control over the contents of Haile’s bag, an intent necessary to establish Johnson’s guilt.
With respect to the issue of prejudice, although the government’s question may
have been a “trap,” as Johnson argues, in the sense that it sought a damaging answer from
him, it was not an unfair question that would require him to incriminate himself. Even if
Johnson’s response could have been construed as implying he had control of Haile’s bag,
such questioning is not comparable to that in Stewart v. United States, 366 U.S. 1 (1961),
where a prosecutor’s question about a defendant’s decision not to testify in previous trials
infringed his Fifth Amendment right against self-incrimination. Id. at 10. We cannot
agree that the District Court’s decision to allow the questioning amounted to plain error.
IV.
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Johnson next challenges the trial references to his arrest. He moved for a mistrial
because the government’s opening statement referred to the fact of Johnson’s arrest on
July 13, 2004. Johnson argues that the reference to the arrest violated the District Court’s
in limine ruling. However, that order stated that “[t]he Government shall not introduce
evidence relating to the Government’s investigation of Defendant prior to July 13, 2004.”
App. Vol. I at 21. The bare reference to Johnson’s arrest, which did not occur “prior to”
July 13, without reference to the events and investigation leading to the arrest, did not
violate the order.
Johnson also argues that the reference to the arrest, as well as two questions posed
to law enforcement personnel regarding the arrest, were irrelevant and unfairly
prejudicial. The decision to admit or exclude testimony under Federal Rule of Evidence
403 is subject to review for abuse of discretion and may only be reversed where a court’s
decision was irrational or arbitrary. Robert S. v. Stetson School, Inc., 256 F.3d 159, 170
(3d Cir. 2001).
Without the foundational fact of Johnson’s arrest, the jury may have been left with
an incomplete picture of why Johnson was in a position to tell the officers about the guns.
This court has previously held that a court acted within its discretion when it admitted
evidence of how a crime was discovered for the limited purpose of providing “a
foundation for an understanding of the sequence of events.” United States v. McCalla, 38
F.3d 675, 680 (3d Cir. 1994). The mention of Johnson's arrest did nothing to give the
jury any indication of why Johnson was arrested, so any prejudicial effect was minimal.
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We conclude that permitting references to the fact of Johnson’s arrest was not an abuse of
discretion.
V.
Johnson also argues that the government’s cross-examination of him about his past
possession of large quantities of money violated the District Court’s order prohibiting the
government from introducing evidence about the seizure of $23,000 from Johnson in
March 2004. The government’s question did not ask about the $23,000 in particular, but
rather about Johnson’s possession of “large sums of cash” in general. App. Vol. II at 279.
As such, it did not violate the District Court’s order.
The District Court agreed with Johnson that his general possession of large sums
of cash could be relevant to establish a motive for his possession of a gun. Johnson
argues that the government was not using its question for this purpose because it never
explicitly drew a connection for the jury between possession of large amounts of cash and
possession of a gun. Instead, he contends that the government’s purpose was to suggest
to the jury that Johnson was involved in drug activity. However, the government never
made any reference to drugs, and the question about money was asked during a line of
questioning about whether Johnson feared for his safety, implying that he might want a
gun to protect himself and any money he carried.
Reference to the seizure of $23,000 from Johnson was originally barred because of
the unfair prejudice that could result from reference to the unrelated El Paso detention,
which occurred at the time of the seizure. In allowing the government’s question about
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the cash, the District Court concluded that mere reference to an instance where Johnson
possessed large amounts of money did not carry the same risk of prejudice, absent
reference to the El Paso detention. This balancing of the relevance and prejudicial nature
of Johnson’s testimony was rational. See Robert S., 256 F.3d at 170.
Finally, Johnson contends that the District Court’s sidebar comment about Johnson
“having a bad day that day” demonstrated the trial court’s bias. In reviewing the District
Court’s comment in context, we see no bias. There is no indication here that the jury
overheard the comment or that it could have influenced their conclusions. Furthermore,
in the jury instructions the court explicitly stated that “[a]ny . . . comments I made to the
lawyers are not evidence,” App. Vol. II at 351, and that “[t]his case is for you to decide
for yourselves. I absolutely have no opinion about this case.” App. Vol. II at 377. We
see no abuse of discretion.
VI.
Finally, Johnson argues that the fact that the jury found him guilty of possession of
the guns found in the bag but not guilty of possession of the silencer found in the same
bag is illogical and evidence of the jury’s confusion. However, as the Supreme Court
explained, it is improper for courts to speculate about how a jury reached inconsistent
verdicts, for it may be just as likely that the jury made a mistake in favor of the defendant
in its verdict of acquittal as it is that it made a mistake in favor of the government in its
verdict of guilty. United States v. Powell, 469 U.S. 57, 65-66 (1984). It would be equally
improper for us to second-guess the jury by concluding that it was confused after it stated,
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following the District Court’s clarification of its supplemental instructions, that it was not
confused. We reject any argument to the contrary.
VII.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
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