United States v. Earl Johnson ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0338p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-1662
v.
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Defendant-Appellant. -
EARL JOHNSON,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 05-80025—Victoria A. Roberts, District Judge.
Argued: July 31, 2009
Decided and Filed: September 18, 2009
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Before: NORRIS and COLE, Circuit Judges; ADAMS, District Judge.
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COUNSEL
ARGUED: Elizabeth L. Jacobs, LAW OFFICE, Detroit, Michigan, for Appellant.
Kevin M. Mulcahy, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan,
for Appellee. ON BRIEF: Elizabeth L. Jacobs, LAW OFFICE, Detroit, Michigan, for
Appellant. Kevin M. Mulcahy, ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee.
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OPINION
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COLE, Circuit Judge. Defendant-Appellant Earl Johnson appeals his conviction
by a jury of bank robbery and conspiracy to commit bank robbery in violation of
18 U.S.C. §§ 371 and 2113(a) and (e) and premeditated murder in violation of 18 U.S.C.
*
The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,
sitting by designation.
1
No. 08-1662 United States v. Johnson Page 2
§ 924(j). Johnson seeks reversal of his conviction, claiming that: (1) the admission of
tape-recorded statements by a non-testifying co-defendant violated the Confrontation
Clause; (2) his counsel provided ineffective assistance by failing to prevent the
admission of these statements; (3) the prosecution committed misconduct; and (4) the
district court improperly admitted hearsay. For the following reasons, we AFFIRM.
I. BACKGROUND
A. Factual background
At approximately 3:50 a.m. on December 14, 2001, several hooded males
wearing black clothing and masks robbed an armored truck that was delivering cash to
the Dearborn Federal Credit Union (“DFCU”) in Dearborn, Michigan. As two guards
were replenishing the automated teller machines (“ATMs”) in the bank’s parking lot and
foyer, the robbers approached and began firing shots. One of the guards was killed, and
the robbers left with $204,000 in cash and the deceased guard’s .38 caliber revolver.
The DFCU robbery remained unsolved for several years, but in August of 2004,
the Detroit office of the Federal Bureau of Investigation (“FBI”) received a letter from
Baron Nix-Bey, an inmate at the Ryan Correctional Facility of the Michigan Department
of Corrections. The letter stated that Timothy O’Reilly, another inmate whom Nix-Bey
had assisted with “legal work,” had been bragging about participating in the DFCU
robbery. FBI Agent Barry Higginbotham contacted Nix-Bey and asked him to take
notes on his conversations with O’Reilly. Agent Higginbotham testified that he told
Nix-Bey to be a good, active listener.
In October or November of 2004, Agent Higginbotham asked Nix-Bey if he
would be willing to use a recording device in his conversations with O’Reilly.
Higginbotham explained at trial that he “thought that would serve as the best evidence
in later on criminal proceedings against Mr. O’Reilly and others, if we were successful
in determining they had committed these crimes that they were bragging about doing.”
(Record on Appeal (“ROA”) Vol. 4 at 139.) Nix-Bey agreed. When Nix-Bey was later
No. 08-1662 United States v. Johnson Page 3
moved to the Macomb Correctional Facility, the FBI arranged for O’Reilly to be
transferred there as well, and the two men were placed in the same cell.
On December 14, 2004, using a recording device disguised as a radio, Nix-Bey
recorded a conversation with O’Reilly in the yard of the Macomb prison in which he
asked O’Reilly for details about the DFCU robbery. O’Reilly provided extensive
information, including the full names of the other participants in the crime. Using this
information, Higginbotham contacted and obtained the cooperation of two of the other
DFCU robbers, Johnson’s co-defendants Khayyam Wilson and Henry Matthews.
Through them, he confirmed O’Reilly’s statements about the crime and learned more
about the roles of the participants. Wilson and Matthews informed Higginbotham that
Johnson had recruited them to participate. Johnson was arrested in December of 2004.
B. Procedural background
A grand jury returned a second superseding indictment of Johnson and five
others: O’Reilly, Wilson, Kevin Watson, Norman Duncan, and Archie Broom.
Matthews was charged separately with one count of conspiracy to defraud the United
States. The indictment charged Johnson with three counts: (1) conspiracy to commit
bank robbery in violation of 18 U.S.C. §§ 371 and 2113(a); (2) bank robbery in violation
of 18 U.S.C. § 2113(a) and (e); and (3) premeditated murder with a firearm in violation
of 18 U.S.C. § 924(j). Johnson’s case was severed, and he was tried first.
Johnson’s trial lasted eight days. Wilson and Matthews, who pleaded guilty,
testified that Johnson had surveilled the DFCU prior to the robbery, participated in the
robbery, and allowed the group to return to his house to divide the cash and listen to a
police scanner for reports about the robbery. Matthews also testified that he, Johnson,
Wilson, O’Reilly, and Duncan each received about $30,000 in cash from the robbery.
Nix-Bey testified in detail about what O’Reilly had told him, and the district court
admitted the tape-recording of their conversation into evidence over Johnson’s objection.
The jury found Johnson guilty of all three counts, and the district court sentenced him
to sixty months of imprisonment on Count 1 and life imprisonment on Counts 2 and 3,
all to be served concurrently. Johnson now appeals his conviction.
No. 08-1662 United States v. Johnson Page 4
II. ANALYSIS
A. The tape-recording was properly admitted
Prior to trial, Johnson moved to exclude the tape-recording, arguing that its
admission would violate the Confrontation Clause, that O’Reilly’s statements were not
sufficiently against his penal interest to be admissible under Federal Rule of Evidence
804(b)(3), and that the statements were more prejudicial than probative in violation of
Federal Rule of Evidence 403. The district court denied the motion, holding that the
Confrontation Clause was not implicated because the statements were not testimonial
and that the statements were admissible under Rule 804(b)(3).
1. The content of the tape-recorded statements
On the recording, O’Reilly speaks at length about the robbery, naming each of
his five co-defendants and identifying Watson as the killer of the armed guard. He states
that it was Johnson’s idea to rob the ATMs, which were near the headquarters of Ford
Motor Company, because Johnson (a Ford employee) thought the ATMs would contain
large amounts of cash shortly after Ford issued certain profit-sharing checks to its
employees. O’Reilly states that Johnson surveilled the DFCU prior to the robbery and
recruited two of his Ford co-workers to participate. O’Reilly also refers to Johnson as
“expendable” and a “dumb-ass” because Johnson underestimated the number of guards
who would be in the armored truck and the amount of money that would be in the
ATMs.
2. O’Reilly’s statements were not testimonial
The Confrontation Clause guarantees a criminal defendant the right “to be
confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v.
Washington, 541 U.S. 36, 53-54 (2004), the Supreme Court held that the Confrontation
Clause bars the “admission of testimonial statements of a witness who did not appear at
trial unless he was unavailable to testify, and the defendant had a prior opportunity for
cross-examination.” We review de novo claims that the admission of evidence violated
No. 08-1662 United States v. Johnson Page 5
the Confrontation Clause. See United States v. Mayberry, 540 F.3d 506, 515 (6th Cir.
2008).
In determining whether statements are testimonial, we ask whether the declarant
“intend[ed] to bear testimony against the accused.” United States v. Cromer, 389 F.3d
662, 675 (6th Cir. 2004). This, in turn, depends on “whether a reasonable person in the
declarant’s position would anticipate his statement being used against the accused in
investigating and prosecuting the crime.” Id. Because O’Reilly did not know that his
statements were being recorded and because it is clear that he did not anticipate them
being used in a criminal proceeding against Johnson, they are not testimonial, and the
Confrontation Clause does not apply. See United States v. Johnson, 440 F.3d 832, 843
(6th Cir. 2006) (holding that an unwitting declarant’s secretly recorded statements to a
close friend were nontestimonial); see also United States v. Mooneyham, 473 F.3d 280,
286-87 (6th Cir. 2007) (stating that co-defendant’s out-of-court statements to an
undercover officer whose status was unknown to the declarant were nontestimonial);
United States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008) (“[A] statement unwittingly
made to a confidential informant and recorded by the government is not ‘testimonial’ for
Confrontation Clause purposes.”); United States v. Hendricks, 395 F.3d 173, 182 n.9,
184 (3d Cir. 2005) (same); United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004)
(same). Johnson argues that our inquiry into whether the statements are testimonial
should focus on Nix-Bey and the FBI’s encouragement of his questioning, but our
precedent makes clear that the intent of O’Reilly, the declarant, determines whether the
statements on the tape-recording are testimonial.
Although Crawford clarified the requirements of the Confrontation Clause with
respect to testimonial statements, it left open the question of whether nontestimonial
statements continued to be governed by the test set forth in Ohio v. Roberts, 448 U.S. 56,
66 (1980). See United States v. Arnold, 486 F.3d 177, 192-93 (6th Cir. 2007) (en banc).
Roberts held that statements by an unavailable declarant were nonetheless admissible
under the Confrontation Clause if they either fell into a firmly rooted hearsay exception
or bore “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66. In the
No. 08-1662 United States v. Johnson Page 6
recent cases of Davis v. Washington, 547 U.S. 813, 825 (2006) and Whorton v. Bockting,
549 U.S. 406, 420 (2007), the Supreme Court answered this question and explained that
the Confrontation Clause has no bearing on nontestimonial out-of-court statements.
Thus, Roberts no longer applies to statements such as O’Reilly’s, and their admissibility
is subject only to the Federal Rules of Evidence, which we analyze below. See Arnold,
486 F.3d at 192-93.
The Supreme Court’s recent clarification of the scope of the Confrontation
Clause also eliminates any need to analyze the admissibility of the tape-recording under
the rule established in Bruton v. United States, under which “[a]n accused is deprived
of his rights under the Confrontation Clause when the confession of a nontestifying
codefendant that implicates the accused is introduced into evidence at their joint trial . . .
even if the jury is instructed to consider the confession only as evidence against the
codefendant.” United States v. Cope, 312 F.3d 757, 780-81 (6th Cir. 2002) (citing
Bruton v. United States, 391 U.S. 123, 137 (1968)). Because it is premised on the
Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not
apply to nontestimonial statements. See United States v. Pugh, 273 F. App’x 449, 455
(6th Cir. 2008) (“[T]he statement at issue . . . is nontestimonial in nature, and therefore,
does not implicate the Confrontation Clause as analyzed under Bruton or otherwise.”);
see also United States v. Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009) (holding that
Bruton does not apply to nontestimonial co-defendant statements); United States v. Pike,
292 F. App’x 108, 112 (2d Cir. 2008) (“[B]ecause the statement was not testimonial, its
admission does not violate either Crawford [] or Bruton [].”). The inapplicability of
Bruton and the Confrontation Clause to O’Reilly’s statements also forecloses Johnson’s
argument that the tape-recording should have been redacted to eliminate the use of
Johnson’s name. Cf. Gray vs. Maryland, 523 U.S. 185, 191-92 (1998) (discussing when
statements otherwise inadmissible under Bruton may be cured by redaction).
Although the parties do not discuss it, we also note that the Bruton rule guards
against a risk that arises in joint trials, and Johnson and O’Reilly were not tried together.
Therefore, even if Bruton did apply to nontestimonial statements, it is unclear that it
No. 08-1662 United States v. Johnson Page 7
would apply to this case. See Adams v. Holland, 168 F. App’x 17, 19 (6th Cir. 2005)
(distinguishing Bruton because defendant and declarant were not tried jointly); see also
Hicks v. Straub, 377 F.3d 538, 554 (6th Cir. 2004) (distinguishing Bruton because in a
single-defendant trial the jury is not “‘asked to perform the mental gymnastics of
considering an incriminating statement against only one of two defendants’” (quoting
Frazier v. Cupp, 394 U.S. 731, 735 (1969))).
3. The recording was admissible under the Federal Rules of Evidence
Because O’Reilly’s statements on the tape-recording are nontestimonial, “the
only admissibility question . . . is whether the statement[s] satisf[y] the Federal (or State)
Rules of Evidence.” Arnold, 486 F.3d at 192-93 (citing Davis, 547 U.S. at 824). Our
standard of review of such issues is for abuse of discretion. See United States v.
Vasilakos, 508 F.3d 401, 406 (6th Cir. 2007). For a statement to be admitted under the
hearsay exception for statements against penal interest set forth in Rule 804(b)(3), the
declarant must be unavailable, the statements must, “from the perspective of the average,
reasonable person,” be adverse to the declarant’s penal interest, and corroborating
circumstances must “truly establish the trustworthiness of the statement.”1 See United
States v. Tocco, 200 F.3d 401, 414 (6th Cir. 2000); see also Williamson v. United States,
512 U.S. 594, 603-04 (1994) (discussing requirements for admission of evidence under
Rule 804(b)(3)). Here, the first prong of the analysis is satisfied because Johnson does
not challenge the district court’s conclusion that O’Reilly’s likelihood of invoking the
Fifth Amendment if called to testify rendered him unavailable as a witness. The second
prong is satisfied as well because from the perspective of an average, reasonable person
the statements were adverse to O’Reilly’s penal interest: they admitted his participation
1
Rule 804(b)(3) states that the following is not excluded by the hearsay rule if the declarant is
unavailable as a witness:
A statement which was at the time of its making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant against another, that a
reasonable person in the declarant’s position would not have made the statement unless
believing it to be true. A statement tending to expose the declarant to criminal liability
and offered to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
Fed. R. Evid. 804(b)(3).
No. 08-1662 United States v. Johnson Page 8
in an unsolved murder and bank robbery, exposing him to the possibility (and later, the
reality) of a prosecution seeking the death penalty.
The third prong of Rule 804(b)(3)’s trustworthiness analysis requires us to focus
not “on whether other evidence in the case corroborates what the statement asserts, but
rather on whether there are corroborating circumstances which clearly indicate the
trustworthiness of the statement itself.” See United States v. Franklin, 415 F.3d 537, 547
(6th Cir. 2005). In his briefs, Johnson erroneously advances his arguments about the
trustworthiness of O’Reilly’s statements under the no-longer-applicable Ohio v. Roberts
standard of “particularized guarantees of trustworthiness,” 448 U.S. at 65, rather than the
standard set forth in Rule 804(b)(3). However, the two analyses are similar, and under
either standard the circumstances in this case were sufficient to corroborate the reliability
of O’Reilly’s statement. The fact that the jury heard a recording of O’Reilly making his
statements eliminates the risk that the statements were inaccurately relayed to the jury
(Johnson does not challenge the authenticity of the recording). O’Reilly and Nix-Bey
were friends and confidants, as evidenced by testimony from Nix-Bey that even before
the two of them became cell-mates, they saw each other every day at meals, engaged in
numerous social activities together, and worked together on O’Reilly’s legal matters.
See Franklin, 415 F.3d at 548 (recognizing under Ohio v. Roberts analysis that closeness
of relationship between declarant and informant bolsters trustworthiness of statement
against penal interest). O’Reilly was unaware that he was being recorded and therefore
could not have made his statement in order to obtain a benefit from law enforcement.
See Williamson, 512 U.S. at 603 (“Even the confessions of arrested accomplices may be
admissible if they are truly self-inculpatory, rather than merely attempts to shift blame
or curry favor.”); see also Franklin, 415 F.3d at 548 (stating that the lack of such self-
interested motives bolsters trustworthiness). O’Reilly’s unflattering references to
Johnson as “expendable” and a “dumb-ass” also suggest that he was not attempting to
shift blame to Johnson. These circumstances adequately corroborate the trustworthiness
of O’Reilly’s statements and render them admissible under Rule 804(b)(3).
No. 08-1662 United States v. Johnson Page 9
Johnson also has not established that the recording was more prejudicial than
probative under Rule 403.2 “Unfair prejudice does not mean the damage to a
defendant’s case that results from the legitimate probative force of the evidence; rather
it refers to evidence which tends to suggest a decision on an improper basis.” See
Paschal v. Flagstar Bank, 295 F.3d 565, 579 (6th Cir. 2002) (quotation marks omitted).
The prejudice to Johnson caused by the recording was the result of the legitimately
probative force of the evidence, not anything improper or unfair about it. The district
court did not abuse its discretion in admitting the recording.
B. Ineffective assistance of counsel
Johnson contends that his trial counsel was ineffective because he failed to
challenge the admission of the tape-recording as a violation of the Confrontation Clause
under Bruton v. United States, 391 U.S. 123 (1968). We generally do not review
ineffective-assistance claims on direct appeal, but since the record is “adequate to assess
the merits” of Johnson’s claim, we will do so. See United States v. Steverson, 230 F.3d
221, 224 (6th Cir. 2000). As explained above, Bruton does not apply to the tape-
recording, so Johnson’s counsel’s failure to object to its admission on Bruton grounds
was not deficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
C. Prosecutorial misconduct
Johnson asserts two instances of prosecutorial misconduct that he claims require
a new trial.
1. Cross-examination of Johnson’s wife
Johnson asserts that the Government committed misconduct in its cross-
examination of his wife (at the time of trial, his girlfriend) Kena Johnson (“Mrs.
Johnson”). Johnson’s defense at trial was that he could not have participated in the
robbery, which took place in December of 2001, because he was still impaired by an
2
Rule 403 states: “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.
R. Evid. 403.
No. 08-1662 United States v. Johnson Page 10
Achilles-tendon injury sustained in April of that year. Johnson offered several witnesses
to testify about his injury, including Mrs. Johnson and the surgeon who operated on him
and monitored his recovery. Mrs. Johnson testified that Johnson was unable to drive a
car after the injury, and that he had moved to his parents’ one-story house from April of
2001 to February of 2002 to avoid climbing stairs.
The Government cross-examined Mrs. Johnson as follows:
Government: Do [sic] you ever work at the Black Orchid? . . .
Mrs. Johnson: No, I did not.
Government: Miss Johnson, isn’t it true that you have given
false names when you were contacted before by
police?
Mrs. Johnson: No.
Government: Have you used the name Marie Bush?
Mrs. Johnson: No.
Government: Have you used the name Chanille Johnson?
Mrs. Johnson: No.
Government: Do you know who those people are?
Mrs. Johnson: Have no idea.
Government: What about the name Tiffany Watson?
Mrs. Johnson: No.
Government: Have you used -- isn’t it true you’ve used a
number of different dates of birth?
Mrs. Johnson: No.
Government: Isn’t it true you’ve used at least three different
Social Security numbers?
No. 08-1662 United States v. Johnson Page 11
Mrs. Johnson: No. . . .
Government: One more thing. You were born in Pennsylvania,
correct?
Mrs. Johnson: No.
Government: Where were you born?
Mrs. Johnson: Reno, Nevada.
Government: You’re aware that your husband has friends in
Pennsylvania?
Mrs. Johnson: No, I’m not.
(ROA Vol. 5 at 75-76, 81.)
Johnson’s counsel objected to this line of questioning and asked the judge to
instruct the jury to disregard it. The Government claimed its questions were based in
good faith on a Law Enforcement Intelligence Network (“LEIN”) printout showing what
appeared to be a number of aliases for Mrs. Johnson. After examining the printout, the
judge observed:
The record reflects a LEIN search on a Kena Johnson. For this Kena
Johnson [i.e. the witness] it consistently has one date of birth, one
driver’s license number that are [sic] height and weight are 5'5, 125
pounds. Then there is a fourth record that does reflect a date of birth of
Pennsylvania, different aliases, different birth dates. This [other] Kena
Johnson is 5'1 and weighs a hundred and 60 pounds.
(ROA Vol. 5 at 85.) In an attempt to establish a good-faith basis for its questions, the
Government called Agent Kerry McCafferty, who testified that he thought the fourth
entry for “Kena Johnson” in the LEIN record referred to the witness, as well, because
a separate search of “Kena Johnson” in the National Crime Information Center (“NCIC”)
database resulted in a “possible association” with “Tiffany Watson,” who was one of the
aliases associated with the fourth “Kena Johnson” entry in the LEIN record and who had
the same birthdate as Mrs. Johnson. McCafferty found this connection persuasive
despite the inconsistent height and weight provided for the fourth “Kena Johnson” entry
No. 08-1662 United States v. Johnson Page 12
because “people generally do not give their correct height or their correct weight” during
a traffic stop. (ROA Vol. 5 at 91-96.) Despite this explanation, the district court found
that the Government’s questioning had not been in good faith, and it instructed the jury
as follows:
During the testimony of Kena Johnson, the last witness we had before the
lunch break, Mr. Bullotta made an effort to impeach her credibility by
asking her whether she had used three different names, three different
birth dates, three different Social Security numbers. I am instructing you
now to disregard that effort to impeach her credibility. Disregard the
questions and disregard the answers, all right?
(ROA Vol. 5 at 96.) Even in light of this instruction, Johnson argues that the
Government’s cross-examination of Mrs. Johnson was misconduct warranting a new
trial.
When addressing claims of prosecutorial misconduct, we first determine whether
the challenged conduct was improper, and if it was, we proceed to analyze whether it
was flagrantly improper, such that reversal is required. See United States v. White, 563
F.3d 184, 193 (6th Cir. 2009). To determine if improper statements were flagrant, we
ask (1) whether they tended to mislead the jury; (2) whether they were isolated or
pervasive; (3) whether they were deliberately made; and (4) whether the overall evidence
against the defendant is strong. Id. To require reversal, the prosecutor’s conduct must
have “‘so infected the trial with unfairness as to make the resulting conviction a denial
of due process.’” See Johnson v. Bagley, 544 F.3d 592, 598 (6th Cir. 2008) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). We review prosecutorial
misconduct claims for abuse of discretion. See White, 563 F.3d at 193-94.
Even assuming that the Government’s cross-examination of Mrs. Johnson was
improper, any impropriety was not flagrant. Although the statements could initially have
misled the jury about Mrs. Johnson’s credibility, the court quickly issued a curative
instruction, and nothing about this particular line of questioning suggests that the
misimpression it might have created was not effectively cured by the instruction. See
United States v. Wilson, 199 F. App’x 495, 498 (6th Cir. 2006) (recognizing that a
curative instruction may make it highly unlikely that improper comments misled the
No. 08-1662 United States v. Johnson Page 13
jury); see also United States v. Carter, 236 F.3d 777, 787 (6th Cir. 2001) (“Ordinarily,
a court should not overturn a criminal conviction on the basis of a prosecutor’s
comments alone, especially where the district court has given the jury an instruction that
may cure the error.”). The challenged conduct was isolated to the cross-examination of
one witness and related solely to her credibility. Although the questions were
deliberately placed before the jury, they were not the kind of repeated errors that we
have deemed “deliberate misconduct” in the past. Cf. Girts v. Yanai, 501 F.3d 743, 760
(6th Cir. 2007) (finding that prosecutor’s “repeated references” to Petitioner’s decision
to refrain from testifying at trial “demonstrate[d] that the errors were not inadvertent”).
Furthermore, the overall evidence against Johnson, including testimony by his co-
conspirators, was very strong. Therefore, the Government’s cross-examination of Mrs.
Johnson does not require a new trial.
2. The Government’s failure to notify defense counsel of impeachment
evidence relating to Frederick Gaines
Johnson also called Frederick Gaines, a friend, to testify about Johnson’s injury.
Gaines saw Johnson using crutches and wearing a “bandage” after the injury and visited
Johnson in his parents’ home. Gaines testified that in December of 2001, around the
time of the robbery, Johnson asked him to return a Christmas toy he had bought for one
of his children because Johnson was not mobile enough to do it himself. Following
direct examination of Gaines, the Government asked for a sidebar, during which the
following exchange occurred:
[Government]: Out of an abundance of caution, I’m approaching to tell
you that I plan on cross-examining this witness about his involvement in
the offense, and there’s two issues. One is to answer my questions, he
may need to have counsel appointed. He may need to have counsel
appointed to answer the questions that I want to pose.
The Court: What do you think his involvement is?
[Government]: He was asked to be the getaway driver and he had
discussions about planning with Earl Johnson, although [he] did not go
through with it and he told his girlfriend that he was that – went and
reported it to DPD; that he was going to come in and lie for Earl Johnson.
So we may call her as a rebuttal witness . . . . I asked Mr. Feinberg
No. 08-1662 United States v. Johnson Page 14
initially if he was going to call Frederick Gaines, and he said he wasn’t
so – and I didn’t want to turn that over before because I don’t want to
influence his testimony. It’s Cross-examination. I don’t have any duty
to disclose that. I certainly wanted to bring [it] to the Court’s attention
before I went into [it] out of an abundance of caution . . . .
(ROA Vol. 5 at 101, 103-04.)
The district court then appointed a lawyer for Gaines, and Gaines indicated that
he would invoke his right to remain silent if asked about the statements he had made to
his girlfriend. With the agreement of both parties, the district court struck Gaines’s
entire testimony and instructed the jury to disregard it. Johnson claims that the
Government committed prosecutorial misconduct by withholding evidence bearing on
whether Gaines would make a good witness in order to gain an unfair advantage at trial.
Johnson argues that his defense counsel looked suspicious for calling Gaines as a
witness only to have his testimony struck.
Because Johnson did not raise this issue below, we review it for plain error. See
United States v. Blood, 435 F.3d 612, 627 (6th Cir. 2006). Plain-error review involves
four steps:
First, there must be an error or defect -- some sort of deviation from a
legal rule -- that has not been . . . affirmatively waived by the appellant.
Second, the legal error must be clear or obvious . . . . Third, the error
must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the district court proceedings. Fourth and finally, if the above three
prongs are satisfied, the court of appeals has the discretion to remedy the
error -- discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (internal quotations marks and
citations omitted). “[S]uppression by the prosecution of evidence favorable to an
accused . . . violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v.
Maryland, 373 U.S. 83, 87 (1963). The prosecutor has a duty to disclose Brady material
even when the accused does not specifically request it. See United States v. Agurs, 427
U.S. 97, 107 (1976). This duty extends to impeachment evidence, but only if the
No. 08-1662 United States v. Johnson Page 15
evidence is favorable to the accused in the sense that it would allow him to impeach
government witnesses. See Harris v. Lafler, 553 F.3d 1028, 1033 (6th Cir. 2009) (citing
United States v. Bagley, 473 U.S. 667, 676 (1985)). “Brady generally does not apply to
delayed disclosure of exculpatory information, but only to a complete failure to
disclose.” Blood, 435 F.3d at 627 (quotation marks omitted).
Here, the Government did not violate Brady by not informing the defense of the
evidence it planned to use to impeach Gaines until after Gaines’s direct examination.
The evidence in question was not favorable to Johnson; rather, it called a defense
witness’s credibility into question. Nor did the Government completely fail to disclose
the evidence. Furthermore, the Government’s delay is understandable, given that
defense counsel initially told the prosecutor he was not planning to call Gaines as a
witness. Thus, the Government’s conduct was proper.
D. Hearsay
Johnson also argues that the district court erred in admitting hearsay through the
testimony of a Government witness, Tanisha Smith, Johnson’s close friend and the sister
of his co-defendant Matthews. At trial, Smith testified that while Johnson was visiting
her house in December of 2001, she overheard him talking on his cellular phone about
plans to rob the DFCU. Smith recalled that after Johnson ended the call, he “insinuated
[to her] that something was going to take place” and that he was planning to “do an
armed heist with an armed truck or a robbery” at the DFCU. (ROA Vol. 3 at 37.) Smith
testified that after learning of the DFCU robbery on the morning news on December 14,
2001, she called Johnson. He agreed to meet her for breakfast, where he appeared
nervous and indicated that Matthews had been involved in the robbery, though he
provided no other details.
On direct examination, Smith testified that she did not report what she had
learned to the police because certain statements her husband, Derek Smith, had made to
her led her to believe that doing so would place her in danger:
Government: Why were you scared?
No. 08-1662 United States v. Johnson Page 16
Mrs. Smith: Derek had informed me that – . . . Derek had informed me
that he heard someone mentioning that they were going to be killing
people . . . . They were saying that people were going to get killed if they
were running they [sic] mouth saying anything.
Government: You heard that from Derek[?]
Mrs. Smith: Yes.
(ROA Vol. 3 at 49-50.) Defense counsel objected to this testimony on hearsay grounds,
but the trial court admitted it, determining that it was not being offered for the truth of
the matter asserted but to explain why Mrs. Smith did not go to the police. On appeal,
Johnson claims that the admission of this evidence was reversible error.
As we noted earlier, we review a district court’s evidentiary rulings for abuse of
discretion. See Vasilakos, 508 F.3d at 406. Federal Rule of Evidence 801(c) defines
“hearsay” as a “statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.
Evid. 801(c). The district court concluded that the testimony at issue was offered to
explain why Smith did not report her knowledge to the police. In other cases, we have
affirmed the admission of similar evidence for background purposes. See, e.g., United
States v. Goosby, 523 F.3d 632, 638 (6th Cir. 2008) (DEA agent statements
reconstructing “the sequence of events” in the investigation); United States v. Aguwa,
123 F.3d 418, 421 (6th Cir. 1997) (statements by agents explaining how they came to
know of defendant).
We need not decide, however, whether the admission of Smith’s statements was
improper because even if it was, the error was harmless. See United States v.
Hernandez, 227 F.3d 686, 696 (6th Cir. 2000) (erroneously admitted hearsay is harmless
unless it is “more probable than not that the error materially affected the verdict”).
While the challenged testimony was prejudicial in that it portrayed Johnson and his co-
conspirators as violent and dangerous, it was cumulative of properly admitted testimony
by Derek Smith himself. At trial, Derek Smith recounted multiple conversations in
which Johnson referred to the possibility of killing one of the participants in the robbery
No. 08-1662 United States v. Johnson Page 17
who was “talking, showing off everything and [was] going to get [them] caught.” (ROA
Vol. 3 at 96). Describing an incident in February or March of 2002 in which Johnson
took him to the home of a man nicknamed “Beast,” Derek Smith stated:
Mr. Smith: After I left, me and Earl [Johnson] got back in the truck
and we were talking and he said how they were going to – you know, if
they could find the guy they were going to execute him.
Government: Did Earl say why they were going to execute this guy?
Mr. Smith: Because he was doing too much talking . . . .
Government: Did Earl say whether this man had killed anyone before?
Mr. Smith: Yeah he mentioned that.
Government: What did Earl say about that?
Mr. Smith: He said he was crazy, he don’t mind shooting and killing
anyone, so from the looks of it when I saw him I was like I can tell. He
looked kind of evil.
(ROA Vol. 3 at 99-100.) Derek Smith testified that he had not gone to the police with
his knowledge of the robbery because he was scared for himself and his family. In light
of this testimony, any error in admitting Mrs. Smith’s cumulative testimony could not
have materially affected the verdict. See, e.g., Hernandez, 227 F.3d at 696 (finding that
erroneous admission of hearsay was harmless because it was thoroughly corroborated
by properly admitted evidence).
III. CONCLUSION
For the foregoing reasons, we AFFIRM Johnson’s conviction.