United States v. Antoine Johnson , 767 F.3d 815 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50401
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-00920-
RSWL-2
ANTOINE LAMONT JOHNSON, AKA
O Killer, AKA OK,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50407
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-00920-
RSWL-1
MICHAEL DENNIS WILLIAMS, AKA
Baby Treystone, AKA Treystone,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted
February 3, 2014—Pasadena, California
Filed September 12, 2014
2 UNITED STATES V. JOHNSON
Before: Mary M. Schroeder and Richard R. Clifton, Circuit
Judges, and John R. Tunheim, District Judge.*
Opinion by Judge Schroeder
SUMMARY**
Criminal Law
The panel affirmed Antoine Johnson’s and Michael
Williams’s convictions for armed robbery and murder in a
case in which the district court admitted, pursuant to the
forfeiture exception to the Confrontation Clause, an
unavailable witness’s out-of-court testimonial statements to
the police.
The forfeiture exception applies when the defendant is
responsible for the witness being unavailable. The panel held
that preponderance of the evidence remains, after Crawford
v. Washington, 541 U.S. 36 (2004), the standard by which the
Government must prove that the defendant intentionally
secured the witness’s absence. The panel therefore rejected
Johnson’s contention that the applicable standard is clear and
convincing evidence. The panel held that the district court
did not err in concluding that the Government produced
*
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. JOHNSON 3
sufficient evidence to demonstrate that Johnson had
intentionally prevented the witness from testifying.
The panel held that the district court did not abuse its
discretion in denying Williams’s request for severance before
Johnson’s attorney elicited testimony from the investigating
officer that the witness had identified Williams, where the
witness’s statements were not strongly inculpatory of
Williams and there is no reason to conclude that the district
court’s limiting instruction was insufficient.
The panel rejected as meritless the defendants’ claims of
several additional trial errors.
COUNSEL
Benjamin L. Coleman, Coleman & Balogh LLP, San Diego,
California; Ethan A. Balogh (argued), Coleman & Balogh
LLP, San Francisco, California, for Defendant-Appellant
Antoine Lamont Johnson.
John C. Lemon (argued), San Diego, California, for
Defendant-Appellant Michael Dennis Williams.
André Birotte Jr., United States Attorney, Robert E. Dugdale,
Karen I. Meyer, and Elizabeth R. Yang (argued), Assistant
United States Attorneys, Los Angeles, California, for
Plaintiff-Appellee United States of America.
4 UNITED STATES V. JOHNSON
OPINION
SCHROEDER, Circuit Judge:
The world of evidence was shaken about ten years ago
when the Supreme Court ruled that out-of-court “testimonial”
statements of unavailable witnesses can be admitted only if
they have been subject to cross-examination, regardless of the
indicia of reliability. Crawford v. Washington, 541 U.S. 36(2004). This criminal appeal presents an issue of first
impression for our circuit, post-Crawford.
The issue concerns the so-called “forfeiture exception” to
the Confrontation Clause of the Sixth Amendment. That
exception applies when the defendant is responsible for the
witness being unavailable. We must decide whether proof of
the defendant’s responsibility for the witness’s absence must
be shown by a preponderance of the evidence, as provided by
Rule 804(b)(6) of the Federal Rules of Evidence, or, in light
of Crawford and its progeny, by clear and convincing
evidence.
The appellants are Antoine Johnson and Michael
Williams, who appeal their convictions for armed robbery
and murder. They each raise a number of issues from their
joint trial for the robbery of an armored truck and murder of
a guard, for which each received a life sentence. We affirm.
With respect to the forfeiture exception, we join the
circuits that have decided the issue since Crawford in holding
that the standard has not changed and the provisions of the
Rule continue to apply. See Perkins v. Herbert, 596 F.3d
161, 167 (2d Cir. 2010); see also United States v. Dinkins,
691 F.3d 358, 383 (4th Cir. 2012). That is the clear
UNITED STATES V. JOHNSON 5
implication of the Supreme Court’s post-Crawford opinion in
Davis v. Washington, 547 U.S. 813, 833 (2006),
acknowledging that the circuits are following the standard set
forth in the evidentiary rule. It is also the assumption
underlying Giles v. California, 554 U.S. 353 (2008), as
expressly noted in Justice Souter’s concurrence, 554 U.S. at
379.
FACTS
On March 1, 2004, four assailants ambushed an armored
truck as it was making a cash delivery to a Bank of America
in South Central Los Angeles. One of the assailants was
wearing a Rastafarian wig and at least one was wearing
gloves. During the robbery, one of the armored truck security
guards was shot and killed. On June 19, 2007, appellants
Antoine Johnson and Michael Williams, both of whom had
affiliations with a group known as the Hoover Street Gang,
were indicted by a grand jury for their involvement in the
robbery and murder. The charges carried a maximum
possible penalty of death.
At trial, the Government introduced several out-of-court
statements made by an informant, Veronica Burgess. These
statements form the basis for the Sixth Amendment issues in
this appeal.
Burgess had come forward to police in 2004, claiming
that, while eating lunch at a restaurant in Watts, she had
overheard several Hoover gang members planning an
armored truck heist. She identified Johnson from a photo
spread as one of the participants, and later testified to this
effect before the grand jury. Burgess also picked Williams
out of a photo-lineup on one occasion, although in a later
6 UNITED STATES V. JOHNSON
interview, she confused him with a different individual.
Burgess was to be an important witness at trial, but shortly
before trial the Government was unable to locate her, even
after checking her public records and conducting extensive
surveillance of her known residences.
The district court in this case permitted the Government,
after a pretrial hearing, to introduce her statements against
Johnson under the forfeiture exception to the hearsay rule.
To support admissibility, the Government contended that
Johnson had threatened Burgess in order to prevent her from
testifying. In the pretrial hearing, the Government presented
evidence that Burgess had received death threats from
members of the Hoover gang. Her live-in boyfriend, Patrick
Smith, told police that the Hoovers had placed a “hit” on
Burgess for “snitching on a boy fighting death.” Smith also
told police that the “mother of one of the guys in jail looking
at death” had contacted Smith trying to find Burgess.
Burgess then disappeared and had no more contact with
police until after the trial.
The Government’s position in the pretrial hearing was
that there was sufficient evidence to infer that the “boy
fighting death” was in fact Johnson, who had informed
members of the Hoover gang that Burgess was set to testify
against him. Burgess began receiving threats the day after
defense attorneys were permitted to disclose the identity of
the witnesses to the defendants. On that same day, Johnson’s
counsel visited him in prison. Johnson’s attorney had stated
in a previous pretrial conference that Johnson was aware of
the fact that his counsel could disclose the identities of
witnesses forty-five days prior to trial and was eager to have
this information.
UNITED STATES V. JOHNSON 7
The Government posited that, once Johnson learned from
his lawyer of Burgess’s intent to testify, he informed
members of the Hoover gang who then threatened Burgess in
order to prevent her from testifying. Though Johnson was
confined in a “Special Housing Unit” at the time and had lost
his phone privileges, a prison guard declared that inmates in
the Special Housing Unit routinely communicate with each
other by speaking through the air vents and passing written
messages, called “kites,” through the plumbing system. The
guard also noted that he had seen Johnson communicate with
other inmates in this manner and that he was “constantly”
doing so. The Government presented further evidence
demonstrating that inmates are generally able to communicate
with those on the outside by various means.
The Government pointed out that Johnson not only had
the means to threaten Burgess, but that he alone had the
motive. Burgess had consistently identified Johnson as being
present at the meeting in Watts where the robbery was
planned, but she failed to consistently identify Williams.
Accordingly, Williams had little reason to threaten her.
While Burgess had identified other individuals whom the
government was pursuing as suspects, only Johnson was
currently facing the death penalty. Finally, the Government
established that Johnson’s mother was involved with a known
Hoover gang member, suggesting not only that Johnson had
close ties to the Hoover gang, but also that his mother was the
person looking for Burgess who had contacted Patrick Smith.
Johnson, in response, denied that he threatened Burgess.
His counsel insisted that, while in confinement, he had no
means of communicating with Burgess, or anyone else on the
outside. Counsel also noted that there were several other
suspects, and they also had a motive to threaten Burgess.
8 UNITED STATES V. JOHNSON
Johnson speculated that these other suspects had learned of
Burgess’s identity when his lawyers began conducting
interviews within the community in preparation for his trial.
Johnson also questioned whether Burgess had actually been
threatened. Johnson’s private investigator independently
interviewed Burgess and testified that she recanted her
identification of Johnson, claiming that she only implicated
him to collect reward money.
The district court found the Government had established
that Johnson was responsible for Burgess’s absence. When
Johnson argued it had not been established by clear and
convincing evidence, the district court ruled the
preponderance standard of Rule 804 applied. The
Government wisely does not contend that the clear and
convincing standard was satisfied.
In Williams’s appeal, he contends there should have been
a severance. The Government introduced Burgess’s
statements at trial only against Johnson, not Williams. This
was because Williams was not found to have participated in
the coercion of Burgess. On cross-examination of one of the
Government’s witnesses, however, Johnson’s attorney
elicited statements indicating that Burgess had also identified
Williams, albeit not consistently. Williams requested a
severance. The district court denied this request and elected
instead to give the jury a limiting instruction, admonishing
them not to consider Burgess’s testimony when assessing
Williams’s guilt.
The evidence at trial incriminating both Johnson and
Williams was strong. Jamal Dunagan, a former Hoover gang
member, testified that both Johnson and Williams had
confessed to having participated in the robbery-murder. He
UNITED STATES V. JOHNSON 9
also testified that Derrick Maddox, an uncharged co-
conspirator, had given him a detailed account of the robbery
and subsequent shootout, including the extent of Johnson and
Williams’s involvement. In addition, the Government
introduced evidence that DNA recovered from a wig and
latex gloves that were found on the scene matched the DNA
profiles of Johnson and Williams respectively.
After nearly four days of deliberation, the jury convicted
both defendants for conspiracy, robbery, and discharging a
firearm causing death. They each received life sentences.
CONFRONTATION CLAUSE
Johnson argues that the introduction of Burgess’s out-of-
court statements to the police violated his confrontation rights
because the government failed to produce clear and
convincing evidence that he intentionally secured her
absence. The Confrontation Clause bars the admission of
“testimonial” hearsay when the defendant has not had the
opportunity to confront and cross-examine the declarant, but
the bar is subject to certain limited exceptions. Crawford,
541 U.S. at 59. Burgess’s statements in this case were
“testimonial” because they were given in front of a grand jury
and to police who were conducting an investigation in
preparation for trial. See id. at 51–52. They were meant to
describe what happened. Ordinarily they would not be
admissible under the hearsay rules and the protections of the
Confrontation Clause, which guarantees a defendant the right
“to be confronted with the witnesses against him.” U.S.
Const. amend. VI; see Crawford, 541 U.S. at 51–52.
A defendant may forfeit confrontation rights and render
hearsay rules inapplicable if the defendant is responsible for
10 UNITED STATES V. JOHNSON
the witness’s unavailability, i.e., if the defendant “engaged or
acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness.”
Giles, 554 U.S. at 367 (quoting Fed. R. Evid. 804(b)(6)).
The district court found that the government in this case
had proven forfeiture by a preponderance of the evidence,
referring to the applicable Rule of Evidence, 804(b)(6).
Johnson contends that the court should have applied the more
demanding clear and convincing standard. Our research tells
us that while the history of the exception began on his side,
it did not stay there.
The Supreme Court in Ohio v. Roberts, 448 U.S. 56(1980), held that the Confrontation Clause does not bar the
admission of hearsay statements that bear the “adequate
‘indicia of reliability.’” Crawford, 541 U.S. at 40 (quoting
Roberts, 448 U.S. at 66). The first federal appellate court,
after Roberts, to consider what standard of proof governs
admissibility under the forfeiture exception was the Fifth
Circuit in United States v. Thevis, 665 F.2d 616 (5th Cir.
1982). There, the court held that, because the clear and
convincing standard generally applies whenever the reliability
of the evidence is at issue, it should therefore apply in the
forfeiture context as well. Id. at 631.
Since then, however, every other circuit to consider the
issue has declined to follow the Fifth Circuit’s reasoning.
See, e.g., United States v. White, 116 F.3d 903, 912 (D.C. Cir.
1997) (holding that the government must demonstrate
forfeiture by a preponderance of the evidence); United States
v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996) (same). The
Second Circuit reasoned in United States v. Mastrangelo,
693 F.2d 269 (2d Cir. 1982), that a heightened standard of
UNITED STATES V. JOHNSON 11
admissibility is not necessary under the forfeiture exception
because a claim that the defendant intentionally prevented a
witness from testifying is not “unusually subject to
deception.” Id. at 273. It further held that the preponderance
standard should apply because a more demanding standard
would encourage defendants to harm and intimidate
witnesses, a “behavior which strikes at the heart of the system
of justice itself.” Id.In 1997, the Federal Rules of Evidence were amended to
include the forfeiture by wrongdoing exception. Fed. R.
Evid. 804(b)(6). The Advisory Committee adopted the
preponderance standard in order to deter defendants from
trying to prevent witnesses from testifying, noting that this
was the majority rule among the circuits. The advisory
committee note provides: “[t]he usual Rule 104(a)
preponderance of the evidence standard has been adopted in
light of the behavior the new Rule 804(b)(6) seeks to
discourage.” Fed. R. Evid. 804(b)(6) advisory committee’s
note.
In 2004, the Supreme Court issued its seminal opinion in
Crawford. In Crawford, the Court rejected the “indicia of
reliability” test in favor of a general rule that testimonial
hearsay is not admissible under the Confrontation Clause
unless the defendant had a prior opportunity to confront the
witness. Id. at 59. The Court, however, clarified that it was
not also dispensing with the forfeiture exception that it
recognized was well established, because that principle is
based on equitable concerns and not on measuring the
reliability of the evidence. Id. at 62.
Johnson argues that, after Crawford, the Confrontation
Clause requires that there be clear and convincing evidence
12 UNITED STATES V. JOHNSON
of forfeiture before testimonial hearsay may be introduced
under the forfeiture exception. Johnson points out that
Crawford had the effect of limiting the admissibility of
testimonial hearsay, so he argues further limitations are
appropriate to ensure that constitutional rights are properly
protected. Johnson relies on the Fifth Circuit’s reasoning in
Thevis. See 665 F.2d at 631. The Court’s discussion of the
forfeiture exception in Crawford, however, is directly
contrary to Thevis. After Crawford, reliability is no longer
the touchstone of confrontation analysis. As the Court made
clear, the forfeiture exception is consistent with the
Confrontation Clause, not because it is a means for
determining whether hearsay is reliable, but because it is an
equitable doctrine designed to prevent defendants from
profiting from their own wrongdoing. See Crawford,
541 U.S. at 62. There is no suggestion in Crawford that the
Court was heightening the standard of proof for exceptions to
confrontation guarantees.
The Court’s subsequent opinions interpreting the scope of
the forfeiture exception also strongly suggest, if not squarely
hold, that the preponderance standard applies. In Davis, the
Court declined to decide the issue of the applicable standard.
547 U.S. at 833. It acknowledged, however, that “federal
courts using Federal Rules of Evidence 804(b)(6), which
codifies the forfeiture doctrine, have generally held the
Government to the preponderance-of-the-evidence standard.”
Id. It further emphasized that Crawford “did not destroy the
ability of courts to protect the integrity of their proceedings.”
Id. at 834. This sends a strong message that the
preponderance standard remains applicable.
The Court most recently addressed the forfeiture
exception in Giles. The issue was whether the statements of
UNITED STATES V. JOHNSON 13
a defendant who had killed the declarant were admissible
under the forfeiture doctrine in the defendant’s murder trial.
There, the Court concluded that a murder victim’s out-of-
court statements could not be admitted under the forfeiture
exception solely upon a showing that the defendant had
caused the victim’s death. The Court held that the
Confrontation Clause additionally requires “a showing that
the defendant intended to prevent a witness from testifying.”
Giles, 554 U.S. at 361. The Government must therefore show
that the defendant committed the murder specifically for the
purpose of silencing the victim. Id. at 361–62. Importantly,
the Court reiterated its prior observation in Davis that Federal
Rules of Evidence 804(b)(6) codifies the forfeiture exception.
Id. at 367. Its advisory notes tell us to apply the
preponderance standard. Fed. R. Evid. 804(b)(6) advisory
committee’s note.
As Justice Souter’s concurrence makes clear, the principle
underlying Giles was to preserve the distinct functions of the
judge in making evidentiary rulings and the jury in
determining guilt or innocence. See Giles, 554 U.S. at 379(Souter, J., concurring). The judge determines admissibility
by a preponderance of the evidence whereas the jury
determines guilt by proof beyond a reasonable doubt. Id.Without the need to find an intent to make a witness
unavailable, however, the judge in a hearsay ruling could
usurp the role of the jury and determine guilt in the first
instance by applying the less demanding preponderance
standard. See id. (“Equity demands something more than this
near circularity before the right to confrontation is forfeited,
and more is supplied by showing intent to prevent the witness
from testifying.”). The intent requirement thus ensures that
the judge’s inquiry is focused on whether the defendant
14 UNITED STATES V. JOHNSON
intended to compromise the integrity of the proceedings, not
on whether the defendant committed the underlying offense.
After Giles, the Circuit courts that have addressed the
forfeiture exception have continued to apply the
preponderance standard. In Perkins v. Herbert, 596 F.3d 161,
167 (2d Cir. 2010), the Second Circuit reiterated its prior
holding that the forfeiture exception is governed by the
preponderance standard, although it recognized that the issue
was not necessarily dispositive in the case before it, id. at 173
n. 9. More recently, the Fourth Circuit stressed that the
forfeiture exception should be read broadly in order to
prevent defendants from undermining the integrity of the
judicial process. United States v. Jackson, 706 F.3d 264, 268
(4th Cir. 2013). It has applied the preponderance standard
accordingly. See United States v. Dinkins, 691 F.3d 358, 383
(4th Cir. 2012) (“Before applying the forfeiture-by-
wrongdoing exception, a trial court must find, by a
preponderance of the evidence, that . . . the defendant
engaged or acquiesced in wrongdoing . . . that was intended
to render the declarant . . . .”) (internal quotation marks
omitted). We agree with these circuits in holding that, in
order to introduce evidence under the forfeiture exception, the
Government must demonstrate by a preponderance of the
evidence that the defendant intentionally secured the
declarant’s absence.
The district court applied the preponderance standard
here. The court did not err in concluding that the
Government produced sufficient evidence to demonstrate that
Johnson had intentionally prevented Burgess from testifying.
There is no serious dispute that the government wanted
Burgess to testify and was unable to locate her. The district
court concluded that, based on Johnson’s actions and the
UNITED STATES V. JOHNSON 15
timing of Burgess’s disappearance, it could reasonably be
inferred that Johnson had informed other Hoover gang
members of Burgess’s identity so that they could threaten her
against testifying. As the district court noted, Burgess began
receiving threats one day after the defense attorneys were
permitted to disclose the witness lists to their clients.
Johnson’s attorney visited him on that same day, and Johnson
had previously expressed interest in receiving the witness list.
Johnson contends that Williams could also have been
responsible for Burgess’s disappearance, but Williams did not
receive a visit from his attorney on that day. Further,
Williams did not have as strong a motive to threaten Burgess,
because she had not consistently identified him. Johnson
correctly points out that Burgess had identified others as
conspirators. None of them had been charged, however, and
there was no evidence that they knew about Burgess.
Johnson also suggests that other members of the Hoover gang
could have been responsible because knowledge of Burgess’s
identity may have spread throughout the community upon his
counsel’s initiation of interviews with witnesses. But
presenting a plausible alternative for her disappearance does
not negate the government’s affirmative evidence that
independently supported a determination that the
preponderance of the evidence indicates that Johnson was the
most likely suspect. On this record, Johnson is clearly the
most likely suspect.
Johnson tries to rely on the Second Circuit’s opinion in
Perkins, 596 F.3d 161, where the Second Circuit emphasized
that the state had failed to demonstrate forfeiture by a
preponderance because it could not explain how the
defendant, while incarcerated, had intimidated the witness.
Id. at 173. Here, however, the Government produced
16 UNITED STATES V. JOHNSON
declarations from a prison guard and an ATF agent describing
how inmates communicate with each other and relay those
communications to those on the outside. The prison guard
further declared that he had seen Johnson engage in such
communications. The requisite piece of the puzzle that was
missing in Perkins was thus present here.
In short, the evidence tended to show that Johnson alone
had the means, motive, and opportunity to threaten Burgess,
and did not show anyone else did. This was sufficient to
satisfy the preponderance standard.
WILLIAMS’S CONFRONTATION CLAUSE CLAIM
Williams contends a severance was required. The
government sought to introduce Burgess’s out-of-court
statements against Johnson, but not Williams, as there was no
evidence that Williams had tried to prevent Burgess from
testifying. On cross-examination, however, Johnson’s
attorney elicited testimony from the investigating officer
indicating that Burgess had also identified Williams. Prior to
the introduction of this testimony Williams requested a
severance on the grounds that this testimony would violate
his confrontation rights. The trial judge denied this request
and gave the jury a limiting instruction instead. The jury was
told, “[y]ou may not consider this evidence in any way as to
Defendant Michael Williams. . . . Burgess’s testimony
through these witnesses are only to be used against Defendant
Johnson.”
We review this decision for abuse of discretion. United
States v. Stinson, 647 F.3d 1196, 1205 (9th Cir. 2011). There
was none. Johnson’s attorney’s cross-examination revealed
that Burgess’s statements regarding Williams were
UNITED STATES V. JOHNSON 17
inconsistent, and she was unable accurately to identify him in
a photo-spread. To the extent that there was any risk that the
jury might rely on Burgess’s statements when deciding
Williams’s guilt, the trial judge properly gave a limiting
instruction, informing the jury that Burgess’s statements were
admissible against Johnson only. There is a strong
presumption that jurors follow a court’s instructions. Escriba
v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247 (9th Cir.
2014). While some hearsay statements are so “powerfully
incriminating” that juries cannot be expected to ignore them,
Bruton v. United States, 391 U.S. 123, 135 (1968), that is not
the case with the statements at issue here. Burgess’s
statements were not strongly inculpatory of Williams given
their inconsistency, and there is no reason to conclude the
limiting instruction was insufficient. Severance was not
required.
REMAINING ISSUES
Johnson and Williams raised claims of several additional
trial errors, but none have merit. During its rebuttal, the
prosecution tried repeatedly to elicit testimony from one of
the investigating officers regarding out-of-court statements
made by Larry “Big Al” Jordan, one of Johnson’s co-
conspirators, regarding a possible lead. The district court
sustained the defense’s repeated objections to this line of
questioning as leading and on hearsay and relevancy grounds.
Johnson argues that the prosecutor’s leading questions
violated his Sixth Amendment confrontation rights and Fifth
Amendment due process rights. Yet no out-of-court
statement was ever admitted. See Mason v. Yarborough,
447 F.3d 693, 696 (9th Cir. 2006). The district court
sustained Johnson’s objections before the witness could
18 UNITED STATES V. JOHNSON
answer and then later instructed the jury that questions by
counsel are not evidence.
The government concedes that the prosecutor should not
have pursued leading questions, but Johnson must show more
than mere impropriety. He must demonstrate that the
prosecutor’s actions “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal
quotation marks omitted). Here, the prosecutor’s questions
did not come close to doing so.
Johnson also claims that the prosecution made comments
at trial that infringed on his Fifth Amendment right to silence.
In its closing argument, the prosecution commented on
Johnson’s failure to explain the presence of his DNA on a
wig that was purportedly worn by one of the assailants.
Johnson argues that, in doing so, the prosecution improperly
commented on his failure to testify because he was the only
one who could have provided such an explanation.
It is well established that a defendant’s right to silence
prohibits the Government from commenting on his or her
decision not to testify. Griffin v. California, 380 U.S. 609,
615 (1965). The Government, however, may “call attention
to the defendant’s failure to present exculpatory evidence
more generally.” United States v. Mayans, 17 F.3d 1174,
1185 (9th Cir. 1994). Here, the prosecution’s comments
focused on Johnson’s failure to present evidence, not his
failure to testify. We recognize the difference. See United
States v. Sehnal, 930 F.2d 1420, 1424 (9th Cir. 1991) (“Our
court has developed a fine line separating comment on the
defendant’s failure to testify and the failure of the ‘defense’
to explain the evidence.”).
UNITED STATES V. JOHNSON 19
Moreover, there were other ways in which Johnson could
have rebutted the government’s DNA evidence without
taking the stand himself. For example, he could have
presented expert testimony describing how hair can be easily
transferred from one item to another. In fact, Johnson’s
counsel questioned the government’s expert on this very
issue. He also could have presented evidence that the
government’s DNA collection procedures were flawed, or
that its tests were inaccurate. The prosecution’s comments
were therefore not “of such a character that the jury would
naturally and necessarily take [them] to be a comment on the
failure to testify.” Lincoln v. Sunn, 807 F.2d 805, 809 (9th
Cir. 1987).
Finally, Williams argues that the district court
erroneously admitted inculpatory hearsay statements of a
former gang member. The district court permitted Jamal
Dunagan to testify about statements allegedly made by
Derrick Maddox, an uncharged co-conspirator. Dunagan
testified that Maddox had informed him that he was
organizing an armored truck heist. The day after the armored
truck incident, Maddox again confided in Dunagan and
explained how the robbery had been botched after Williams
became “trigger happy” and “opened fire on the security
guards.” The district court concluded that Maddox’s out-of-
court statements were admissible under the statement against
interest exception to the hearsay rule. Fed. R. Evid.
804(b)(3).
Under Rule 804(b)(3), hearsay statements made by an
unavailable witness are admissible if they “tended to subject
the declarant to criminal liability . . . [and] corroborating
circumstances clearly indicate [their] trustworthiness.”
United States v. Paguio, 114 F.3d 928, 932 (9th Cir. 1997).
20 UNITED STATES V. JOHNSON
Williams argues that Maddox’s statements were not self-
incriminating because Maddox was trying to shift the blame
for the killing of the security guard onto Williams. The
district court found, however, that Maddox’s statements
clearly had the potential to expose him to criminal liability.
The finding was not clearly erroneous.
The statements did not lack trustworthiness. As the
district court noted, Maddox had personal knowledge of the
robbery, his statements to Dunagan were given voluntarily
and in confidence, and he made them shortly after the robbery
had occurred. We have said that similar factors tend to
establish statements are sufficiently trustworthy. See United
States v. Boone, 229 F.3d 1231, 1234 (9th Cir. 2000). The
district court did not abuse its discretion.
CONCLUSION
For the reasons above, the convictions of Johnson and
Williams are AFFIRMED.