United States v. Johnson , 75 F. App'x 296 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 17, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-11102
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARNELL DESHUN JOHNSON, also known as Deshawn
Conell Johnson III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CR-46-ALL-P
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Carnell Deshun Johnson was convicted by a jury for making a
false statement in connection with the acquisition of a firearm and
for being a felon in possession of a firearm. See 18 U.S.C.
§§ 922(a)(6), 922(g)(1), & 924(a)(2). Johnson has appealed,
challenging several of the district court’s evidentiary rulings.
Johnson contends that the district court abused its discretion
in permitting the prosecutor to question him during cross
*
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this opinion should not be published and is not precedent except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.
examination about two prior arrests for criminal impersonation and
domestic battery. Johnson complains also that the district court
abused its discretion in permitting him to be cross examined
regarding his marital infidelity and about false statements made by
him to his paramour.
“A defendant makes his character an issue when he testifies.”
United States v. Tomblin, 46 F.3d 1369, 1388 (5th Cir. 1995). “The
government is entitled to cross-examine properly and effectively a
witness in an effort to elicit the truth.” Id. “Prior bad acts
that have not resulted in a conviction are admissible under FED. R.
EVID. 608(b) if relevant to the witness’s character for truthfulness
or untruthfulness.” United States v. Parker, 133 F.3d 322, 327
(5th Cir. 1998). “Admission of the impeaching evidence is
discretionary with the trial judge.” United States v.
Farias-Farias, 925 F.2d 805, 809 (5th Cir. 1991). “The trial
judge’s discretion under Rule 608(b) is very substantial.” Id.Johnson testified that, during a post-arrest interview with
Bureau of Alcohol, Tobacco, and Firearms Special Agent Paul
Cavicchia, he had failed to disclose that he had a prior arrest for
the felony offense of second degree forgery because the offense had
“slipped” his mind. The evidence of Johnson’s prior arrests for
criminal impersonation and domestic battery were admissible for the
purpose of impeaching this testimony. See Farias-Farias, 925 F.2d
at 810. Similarly, Johnson testified that he had traveled in
interstate commerce for the purpose of moving his family from Texas
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to Arkansas. The evidence of Johnson’s marital infidelity was
admissible for the purpose of impeaching this testimony. Id.Moreover, evidence of Johnson’s arrest for criminal impersonation
and of the fact that Johnson had been unfaithful to his wife and
untruthful to his paramour was probative of Johnson’s character for
truthfulness or untruthfulness. See Tomblin, 46 F.3d at 1389.
Also, the foregoing evidence was directly probative of Johnson’s
guilty consciousness, as it tended to undermine Johnson’s
contentions that he was not aware that he had a felony conviction
and that he had not knowingly traveled in interstate commerce with
a firearm. See Farias-Farias, 925 F.2d at 810–11. No abuse of
discretion has been shown.
The Government’s theory of the case was that Johnson, knowing
he had been convicted of a felony, took steps over the years to
distance himself from that conviction. During his interview with
Agent Cavicchia, Johnson had provided an incorrect social security
number. The Government offered expert testimony at trial with
regard to the creation of false identities through the use of false
social security numbers. Johnson contends that the district court
abused its discretion in overruling his objection under FED. R.
EVID. 404(b) to the expert testimony.
“This Court reviews the admission of extrinsic acts evidence
for abuse of discretion.” United States v. Griffin, 324 F.3d 330,
359 (5th Cir. 2003). A two-part test is employed in determining
“whether evidence is admissible under Rule 404(b): (1) whether the
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evidence is relevant to an issue other than the defendant’s
character and (2) whether the evidence possesses probative value
that is not outweighed substantially by the danger of unfair
prejudice and is otherwise admissible under Rule 403.” Id.(internal quotation marks omitted).
The expert testimony was directly relevant to Johnson’s
consciousness of guilt because it tended to prove that Johnson was
aware that he was a convicted felon and that, as a felon, it was
illegal for him to possess a firearm. The evidence also tended to
show that Johnson knowingly made a false statement regarding the
felony conviction in attempting to obtain a firearm. The evidence
was not unfairly prejudicial. No abuse of discretion has been
shown. The convictions are
AFFIRMED.
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