United States v. Johnson , 247 F. App'x 547 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 07-60176 F I L E D
Summary Calendar
September 14, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REGINALD LEVAND JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
No. 4:06-CR-63-1
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Reginald Johnson was convicted under the Armed Career Criminal Act.
He raises four issues on appeal: (1) that prosecutors made prejudicial and un-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-60176
supported comments during closing arguments which denied him a right to a fair
trial; (2) that the evidence was insufficient to support the verdict; (3) that the
district court erred in allowing prejudicial evidence of his past criminal conduct;
and (4) that the court improperly instructed the jury on deliberate indifference
and flight. We affirm.
I.
After receiving several suspicious reports regarding a black Ford Explorer,
a police officer observed Johnson and another individual enter a black Explorer
backed into a residential carport. The officer followed the Explorer, and after
noticing suspicious movement inside the vehicle activated his lights. A high-
speed chase ensued, with the vehicle careening into an apartment complex after
both passengers had leaped out and fled on foot. The officer caught up with
Johnson, who continued to resist arrest but was eventually subdued. The other
passenger, Bernard Ferguson, was also detained.
In the back of the Explorer, among other items, officers found a television,
a computer, two rifles, and a handgun. An officer testified that the items were
found in the open and were not shielded by blankets or wrapping. All the items,
including the guns, were reported stolen by the owner of the residence and were
returned. Although Johnson claimed the Explorer, the license plates were reg-
istered to another vehicle. Ferguson was separately charged in state court and
convicted of residential burglary.
Johnson was indicted in federal court for possession of a firearm by a con-
victed felon. He stipulated to a prior felony conviction but contended that he had
only agreed to pick up Ferguson, had not participated in the burglary, and was
unaware of the presence of the guns. At trial, Ferguson took the stand for the
defense and testified that he alone had burglarized the residence and that John-
son remained in the car while Ferguson loaded the contents into the truck. On
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No. 07-60176
cross-examination, Ferguson testified that Johnson had not backed the car into
the carport and had not come near the house.
In rebuttal, the government called Sheldon Brady, who testified regarding
a residential burglary he had committed with Johnson seven years earlier. The
government also called probation officer Melvin Edwards, who had prepared the
pre-sentence report for Johnson’s 1996 conviction and who testified that Johnson
had denied knowledge of that burglary and sought to blame it on Brady, who
Johnson claimed had merely asked for a ride. The jury returned a guilty verdict
and found a violation of the Armed Career Criminal Act.
II.
Where a defendant fails to object contemporaneously to a prosecutor’s
remarks, we review for plain error. United States v. Mares, 402 F.3d 511, 515
(5th Cir. 2005). When reviewing whether the evidence is sufficient to sustain a
verdict, we examine “all the evidence in the light most favorable to the verdict”
and affirm if “the evidence is such that a rational trier of fact could have found
the requisite elements of the offence beyond a reasonable doubt.” United States
v. Thomas, 120 F.3d 564, 569 (5th Cir. 1997). We review the district court’s evi-
dentiary rulings for abuse of discretion, see United States v. Fields, 483 F.3d 313,
341 (5th Cir. 2007), and, if the defense fails to object, for plain error. United
States v. Smith, 354 F.3d 390, 396 n.7 (5th Cir. 2003). In light of district court’s
substantial latitude in formulating jury charges, we review for abuse of discre-
tion. United States v. Webster, 162 F.3d 308, 321-22 (5th Cir. 1998).
III.
Johnson argues that several comments by the prosecutor in closing argu-
ment had a prejudicial effect on the jury. The prosecutor argued that Ferguson,
the defense’s lone witness, had perjured himself from the stand. He also sought
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No. 07-60176
to tie Ferguson to the burglary and allegedly vouched for the credibility of Depu-
ty Ricky Spratlin, a government witness.
Counsel is afforded great latitude in making closing argument, and “[w]e
do not lightly make the decision to overturn a criminal conviction on the basis
of a prosecutor’s remarks alone.” United States v. Virgin-Moreno, 265 F.3d 276,
290 (5th Cir. 2001) (citing United States v. Iredia, 866 F.2d 114, 117 (5th Cir.
1989)). In reviewing allegedly improper closing arguments, the determinative
question is “whether the prosecutor’s remarks cast serious doubt on the cor-
rectness of the jury’s verdict.” Mares, 402 F.3d at 515 (citing Virgin-Moreno, 265
F.3d at 290). As an initial matter, the defendant must show that the pro-
secutor’s remarks were improper. See id.The remarks were unobjectionable. Ferguson’s testimony was contradict-
ed by numerous other witnesses, and it was appropriate for the prosecutor to
stress that all accounts could not be true. Evidence of the burglary was intrinsic
to the charged offense, and Johnson’s principal defense was to deny knowledge
of or participation in the burglary, thus inviting argument that his participation
had been established. Finally, defense counsel accused Deputy Spratlin of over-
zealous investigation during his closing remarks, inviting the prosecutor’s re-
joinder emphasizing Spratlin’s distinguished service. The prosecutor’s closing
remarks did not deny Johnson a fair trial.
IV.
Johnson argues that the evidence was insufficient to demonstrate that he
had knowing possession of the firearms. He relies on Ferguson’s testimony that
Johnson did not participate in the burglary and on the absence of any eyewitness
account of Johnson carrying the guns.
Given the inconsistencies between Ferguson’s testimony and numerous
government witnesses, the jury was entitled to disbelieve Ferguson’s statement
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No. 07-60176
that he was the sole burglar. The government presented evidence that Johnson
was present in the area of the residence before the burglary and was seen walk-
ing from behind the Explorer before entering the driver’s seat under the carport.
The jury also heard evidence that Johnson fled on seeing the police, first en-
gaging in an automobile chase and later fleeing on foot and physically resisting
arrest. The evidence supports a finding both that Johnson participated in the
burglary and that he fled because he was aware of the stolen goods and weapons
in the back of the car. A reasonable fact-finder could determine beyond a reason-
able doubt that Johnson knew he was in possession of weapons.
V.
Johnson contends that evidence of the residential burglary was admitted
in violation of Rule 404(b) of the Federal Rules of Evidence. “Evidence of an un-
charged offense arising out of the same transactions as the offences charged in
the indictment is not extrinsic evidence within the meaning of Rule 404(b), and
is therefore not barred by the rule.” United States v. Maceo, 947 F.2d 1191, 1199
(5th Cir. 1991) (citing United States v. Simpson, 709 F.2d 903, 907 (5th Cir.
1983). Johnson was indicted for possession of a firearm, which allegedly oc-
curred during the course of a residential burglary. Evidence of the residential
burglary was intrinsic and is not governed by rule 404(b).
Evidence of the earlier burglary was presented in rebuttal, after Ferguson
had testified for the defense that Johnson did not participate in the robbery and
was not aware of the contents of the Explorer. The district court and defense
counsel warned Johnson that evidence of the prior offense might be admissible
if Ferguson took the stand. The court determined that the prior offense was pro-
bative as to lack of mistake and as to common scheme or plan, because the prior
burglary was carried out in a very similar manner to the instant burglary and
contradicted Johnson’s argument that he had no knowledge of the burglary.
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No. 07-60176
The “balancing of probative value against prejudicial effect is committed
to the sound discretion of the trial judge,” United States v. Thompson, 837 F.2d
673, 677 (5th Cir. 1988), and we cannot say that he abused his discretion. Dis-
trict courts generally should give a limiting instruction when rule 404(b) evi-
dence is admitted, but the failure to do so here did not rise to the level of plain
error. Cf. United States v. Cooper, 577 F.2d 1079, 1088 (6th Cir. 1978).
VI.
Although Johnson argues that a “willful blindness” instruction was inap-
propriate on the facts of this case, the record demonstrates that the district
court delivered the instruction in response to the exculpatory testimony of de-
fense witness Ferguson. The instruction was not plain error.
Johnson also assigns error to the court’s use of a “flight” instruction, which
informs the jury that an accused’s flight or resistance to arrest can be probative
of consciousness of guilt. “A flight instruction is proper when the evidence sup-
ports four inferences: 1) the defendant’s conduct constituted flight; 2) the de-
fendant’s flight was the result of consciousness of guilt; 3) the defendant’s guilt
related to the crime with which he was charged; and, 4) the defendant felt guilty
about the crime charged because he, in fact, committed the crime.” United
States v. Murphy, 996 F.2d 94, 97 (1993). Johnson claims the government has
failed to establish the third prong of the test, because his guilt may have related
to the crime of burglary rather than possession of a firearm.
Johnson is accused of possessing a firearm stolen from a residence. In
these circumstances, where the two crimes are intrinsically linked, conscious-
ness of guilt relating to the burglary also implies consciousness of guilt linked
to the possession of the guns. It was not an abuse of discretion to include a
“flight” instruction.
AFFIRMED.
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