United States v. Ronnie Johnson ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50205
Plaintiff-Appellee, D.C. No. 8:13-cr-00190-CJC-1
v.
RONNIE JOSEPH JOHNSON, AKA Joker,
Defendant-Appellant. MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted April 10, 2019
Pasadena, California
Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
On October 15, 2008, a Citibank in Orange, California was robbed (“Citibank
Robbery”). A bank robbery in La Palma, California (“La Palma Robbery”) was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
conducted in a similar manner earlier that year. After trial for the Citibank Robbery,
Ronnie Johnson was convicted on one count of armed robbery and one count of use
and carrying of a firearm during commission of a crime of violence, in violation of
18 U.S.C. §§ 2113(a), (d) and 924(c). This appeal ensued. We affirm.
1. Johnson argues that the La Palma Robbery evidence should have been
excluded because there were not sufficiently distinctive similarities between the La
Palma and Citibank Robberies to establish identity for purposes of Federal Rule of
Evidence 404(b). Additionally, Johnson contends that this other bad act evidence
was more prejudicial than probative under Federal Rule of Evidence 403.
Generally, evidence of “other bad acts” cannot be used to suggest that a
defendant had the propensity to commit a charged crime. Fed. R. Evid. 404(b)(1).
However, under Rule 404(b), evidence of other crimes or acts is admissible to
establish “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. 404(b)(2). In cases where the evidence
is used to establish identity, a prior act must be sufficiently similar to the charged
offense to support an inference of identity. United States v. Luna, 21 F.3d 874, 878
(9th Cir.), as amended (May 4, 1994). Common, generic features of robberies --
such as wearing black clothing or a mask -- alone are not enough to establish
similarity for purposes of Rule 404(b); the similarities must be distinctive somehow.
United States v. Ezzell, 644 F.2d 1304, 1306 (9th Cir. 1981); see also Luna, 21 F.3d
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at 881. Distinctiveness can be achieved through unusual characteristics, such as
peculiar clothing or vehicles. See Luna, 21 F.3d at 882 (noting that distinctive
headwear supported an inference of identity).
Here, several commonalities between the Citibank and La Palma Robberies
were generic features of robberies: for instance, the robbers conducted them in
“takeover style” and wore dark clothing. However, in both robberies, one of the
robbers wore an unusual floppy-brimmed black bucket hat, and the robbers used a
light-blue, older model Toyota Camry as an approach vehicle and a Chevy Tahoe as
a getaway car. Taken together, these characteristics established that the robberies
were both similar and distinctive enough such that the district court did not abuse its
discretion in admitting evidence of the La Palma Robbery under Rule 404(b). Since
identity -- i.e., whether it was Johnson who participated in the Citibank Robbery --
was the primary issue at trial, this evidence was also highly probative for purposes
of Rule 403. Moreover, the district court gave a limiting instruction on the
appropriate use of this other crimes evidence, which mitigated any potential unfair
prejudice. See United States v. Arambula-Ruiz, 987 F.2d 599, 604 (9th Cir. 1993).
Thus, the district court did not abuse its discretion by admitting the La Palma
Robbery evidence.
2. Johnson also contends that jail calls discussing other robberies should have
been excluded under Rules 404(b) and 403. As discussed above, using other bad
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acts to suggest that a defendant had the propensity to commit the charged crime is
impermissible. Fed. R. Evid. 404(b)(1). However, establishing a criminal
relationship between defendants is an acceptable, non-propensity use of “other bad
acts” evidence. See United States v. Beckman, 298 F.3d 788, 794 (9th Cir. 2002).
Here, the purpose of introducing the jail calls was to establish the ongoing criminal
relationship among Johnson, Darrell Weisner, and Demetrius Holton.1 Moreover,
since Weisner was a cooperating witness testifying against Johnson as his alleged
fellow Citibank robber, establishing this criminal relationship was highly probative
for purposes of Rule 403. For these reasons, the district court did not abuse its
discretion by admitting the jail calls.
3. Lastly, Johnson argues that evidence that he was arrested for a crime --
other than those committed with Weisner -- should have been excluded because it
was not “inextricably intertwined” with other admissible evidence. Even assuming
the district court erred, the error was harmless as “it is more probable than not that
the error did not materially affect the verdict.” United States v. Liera, 585 F.3d 1237,
1244 (9th Cir. 2009) (quoting United States v. Seschillie, 310 F.3d 1028, 1214 (9th
Cir. 2002)).
AFFIRMED.
1
Weisner and Holton were alleged participants in the La Palma and Citibank
Robberies.
4