United States v. Dominique Johnson , 899 F.3d 191 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 11-1615
______
UNITED STATES OF AMERICA
v.
DOMINIQUE JOHNSON,
Appellant
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-09-cr-00685-002)
District Judge: Honorable Mary A. McLaughlin
______
On Remand from the Supreme Court of the United States on
March 24, 2014
Argued on Remand: February 20, 2018
Before: JORDAN, SCIRICA and FISHER, Circuit Judges
(Filed: August 7, 2018)
Zane David Memeger, United States Attorney
Alicia M. Freind, Assistant United States Attorney
Nancy B. Winter, Assistant United States Attorney
Robert A. Zauzmer, Assistant United States Attorney
[ARGUED]
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
James V. Wade, Federal Public Defender
Ronald A. Krauss, Assistant Federal Public Defender
[ARGUED]
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Dominique Johnson
Allenwood USP
P.O. Box 3000
White Deer, PA 17887
Pro Se Appellant
______
OPINION OF THE COURT
______
2
FISHER, Circuit Judge.
Dominique Johnson was convicted of crimes related to
his participation in a string of bank robberies and sentenced to
835 months’ imprisonment. After we affirmed his conviction,
Johnson filed a petition for writ of certiorari. The Supreme
Court granted the petition, vacated our judgment, and
remanded for reconsideration in light of Alleyne v. United
States, 570 U.S. 99 (2013). After reviewing Johnson’s
arguments under Alleyne—as well as other arguments he
raises—we will affirm.
I.
During the late spring and summer of 2009, Dominique
Johnson participated in five bank robberies in the Philadelphia
area. In early May, Johnson committed the first robbery by
himself, carrying a BB gun. In late May, he committed the
second robbery, again carrying a BB gun, but this time assisted
by two others: Gregory Lawrence and Jerry Taylor.
In June, Johnson bought a .40 caliber Glock pistol.
Johnson, Lawrence, and Taylor discussed another bank
robbery, with the plan being that Taylor would commit the
robbery using Johnson’s newly-acquired pistol. Johnson and
Lawrence advised Taylor on how to commit the robbery.
In early July, the three friends (joined by a fourth who
served as the getaway driver) executed their plan and
committed the third robbery. Johnson served as the lookout
while Taylor ran into the bank and demanded money. During
the robbery, Taylor pointed his gun at one teller and hit another
teller with it. In mid-July, the same group committed the fourth
robbery in the same fashion: Taylor robbed the bank while
brandishing the pistol, and Johnson served as the lookout.
3
After that, Lawrence and Taylor decided not to
participate in any more robberies. Johnson recruited two
others, Amin Dancy and Christopher Montague, to commit a
fifth robbery at the end of July. As before, Johnson served as
the lookout, and someone else (this time Dancy) went into the
bank and demanded money while brandishing Johnson’s
pistol.
The FBI investigated the robberies and eventually
arrested Johnson. A jury convicted him of two counts of
conspiracy to commit armed bank robbery, 18 U.S.C. § 371;
one count of armed bank robbery, 18 U.S.C. § 2113(d); four
counts of aiding and abetting armed bank robbery, 18 U.S.C.
§§ 2 and 2113(d); and three counts of aiding and abetting the
use and carrying of a firearm during a crime of violence, 18
U.S.C. §§ 2 and 924(c)(1).
For the first count of using a firearm during a crime of
violence, the District Court imposed a sentence of seven years
pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), which provides that
if a person “uses or carries a firearm . . . in furtherance of” a
“crime of violence” and “the firearm is brandished,” the
minimum sentence is seven years. For the second and third
firearm counts, the court imposed two 25-year sentences
pursuant to 18 U.S.C. § 924(c)(1)(C), which provides that “[i]n
the case of a second or subsequent conviction under this
subsection, the person shall . . . be sentenced to a term of
imprisonment of not less than 25 years.” Johnson’s total
sentence for all ten counts was 835 months of imprisonment,
or nearly seventy years.
Johnson appealed, and we affirmed his convictions and
sentence in a non-precedential opinion. United States v.
Johnson, 515 F. App’x 183, 186-88 (3d Cir. 2013). Johnson
then petitioned the Supreme Court for a writ of certiorari,
4
which was granted. Johnson v. United States, 134 S. Ct. 1538
(2014). The Court entered a “grant, vacate, and remand” order
stating: “Judgment vacated, and case remanded to the United
States Court of Appeals for the Third Circuit for further
consideration in light of Alleyne v. United States, 570 U.S. ___
(2013).” Alleyne had been decided three months after
Johnson’s appeal to this Court concluded.
On remand, we granted Johnson’s motion to proceed
pro se and he filed a brief raising numerous points of error,
including that his § 924(c) sentences should be vacated under
Alleyne. In its response, the Government relied heavily on our
post-Alleyne opinion, United States v. Lewis, 766 F.3d 255 (3d
Cir. 2014). However, before we heard Johnson’s appeal, we
reheard Lewis en banc and decided it differently. United States
v. Lewis, 802 F.3d 449 (3d Cir. 2015) (en banc). In light of
Lewis, we determined that Johnson needed counsel after all.
We appointed counsel and asked for supplemental briefing.
Johnson’s counseled brief raised four issues: two relating to
Alleyne, and two relying on other Supreme Court cases issued
during the pendency of his appeal. We address those four
issues first, and then turn to the arguments in Johnson’s pro se
brief.
II.1
A. Alleyne Arguments
Johnson argues that the District Court committed
Alleyne errors by not submitting to the jury the question of
1
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction to review the District Court’s final
order under 28 U.S.C. § 1291, and to review Johnson’s
sentence under 18 U.S.C. § 3742.
5
brandishing or the question of whether two of the three
§ 924(c) convictions were second or subsequent convictions.
To explain the significance of Alleyne, we begin with
Apprendi v. New Jersey, 530 U.S. 466 (2000). There, the
Supreme Court ruled that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Id. at 490.
Subsequently, in Harris v. United States, 536 U.S. 545, 567-69
(2002), the Court ruled that Apprendi did not apply to facts that
increased the mandatory minimum—only the maximum.
Finally, in Alleyne, the Court concluded that Harris was
inconsistent with Apprendi and overruled it, holding that “there
is no basis in principle or logic to distinguish facts that raise
the maximum from those that increase the minimum.” Alleyne,
570 U.S. at 116.
The jury “indicated on the verdict form that Alleyne had
used or carried a firearm during and in relation to a crime of
violence, but did not indicate a finding that the firearm was
brandished.” Id. at 104 (internal quotation marks, alterations,
and citation omitted). The using-or-carrying finding triggered
the five-year mandatory minimum under § 924(c)(1)(A)(i). Id.
The judge at sentencing found, by a preponderance of the
evidence, that the firearm was brandished, and sentenced
Alleyne to the seven-year mandatory minimum for brandishing
under § 924(c)(1)(A)(ii). Id. The Supreme Court vacated and
remanded. Id. at 117. The Court ruled that because “a fact
increasing either end of the range produces a new penalty and
constitutes an ingredient of the offense,” it must be found by a
jury beyond a reasonable doubt. Id. at 112.
6
1. Brandishing
Here, the issue of brandishing was not submitted to the
jury, but determined by the judge at sentencing. The seven-year
mandatory minimum for brandishing, 18 U.S.C.
§ 924(c)(1)(A)(ii), is two years longer than for using and
carrying, id. at § 924(c)(1)(A)(i). The parties agree that this
was error under Alleyne. When analyzing Alleyne error, we
first “address . . . whether the error was a sentencing error or a
trial error.” Lewis, 802 F.3d at 453. We then determine whether
the defendant preserved his objection to the Alleyne error. If he
did, the standard of review is plain error; if not, the harmless
error doctrine applies. Id. at 456-57.
a. Trial Error Versus Sentencing Error
Sentencing error occurs when a defendant is charged
with and convicted of one crime, but sentenced for another.
According to the plurality opinion, that happened in Lewis: the
defendant was charged with using or carrying a firearm in
relation to a crime of violence in violation of § 924(c)
generally, but the judge sentenced him for brandishing in
violation of § 924(c)(a)(A)(ii) specifically. Lewis, 802 F.3d at
455. The error occurred at sentencing, because “the defendant
was sentenced for a crime for which he was neither indicted
nor tried.” Id. at 455 n.6.
Trial error, by contrast, occurs when the defendant is
charged with, convicted of, and sentenced for a crime, but one
of the elements of that crime is not submitted to the jury. That
occurred in United States v. Vazquez: the defendant was
charged with conspiracy to possess and distribute more than
five kilograms of cocaine, the jury was not instructed to make
factual findings regarding the amount of drugs, and the
defendant was sentenced based on drug quantities the judge
found at sentencing. 271 F.3d 93, 96-97 (3d Cir. 2001) (en
7
banc). The error occurred at trial, because the jury was given
incomplete instructions. Id. at 101.2
Here, determining whether the Alleyne error was trial or
sentencing error requires a close reading of the indictment.
Johnson was convicted of using or carrying a firearm without
a jury finding of brandishing, but he was sentenced for
brandishing. If the indictment charged brandishing, there was
trial error. Vazquez, 271 F.3d at 101-02. If the indictment did
not charge brandishing, there was sentencing error. Lewis, 802
F.3d at 458.
The indictment count at issue, Count Five, charged
Johnson with aiding and abetting a violation of 18 U.S.C.
§ 924(c)(1) during the early-July bank robbery, but did not
specify how the violation was committed—i.e., using or
carrying a firearm in relation to a crime of violence under
(c)(1)(A)(i), brandishing it under (c)(1)(A)(ii), or discharging
it under (c)(1)(A)(iii). However, Count Five expressly
incorporated specific paragraphs of Count One alleging that
Johnson’s co-defendant “brandished a .40 caliber
semiautomatic firearm” during the bank robbery.
The rules provide that “[a] count may incorporate by
reference an allegation made in another count.” Fed. R. Crim.
P. 7(c)(1). Therefore, brandishing was charged in the
2
We have sometimes referred to this second type of
error as “trial and sentencing” error, reflecting the fact that
two “inextricably intertwined” errors occurred—at trial
(failing to charge the jury with a required element) and at
sentencing (imposing a sentence based on an element not
found by the jury). Vazquez, 271 F.3d at 101. In this opinion,
we use the simpler term, “trial error,” to highlight the contrast
between this type of error and pure sentencing error.
8
indictment, which distinguishes this case from Lewis. The
Lewis indictment implied brandishing without using the word:
it alleged that the defendants “burst through the front door . . .
armed with handguns and a shotgun, announced a robbery,
forced customers and employees to the floor, threatened to
shoot them, herded the victims into the basement and again
forced them onto the floor, and stole money, wallets and cell
phones.” 802 F.3d at 460 (Smith, J., concurring). While those
allegations were “clearly consistent with brandishing,” the
Government apparently “deci[ded] not to charge Lewis with
brandishing.” Id. (Smith, J., concurring). Here, by contrast, the
§ 924(c)(1) charge incorporated the allegation that a gun was
“brandished.” That is a distinction with a difference; the
wording of the indictment matters. See id. at 461 (Smith, J.,
concurring) (“a defendant has the ‘substantial right to be tried
only on charges presented in an indictment returned by a grand
jury’” (quoting Stirone v. United States, 361 U.S. 212, 217
(1960))).
Because Johnson was charged with and sentenced for
brandishing, but the element of brandishing was not submitted
to the jury, the Alleyne error was trial error. See Vazquez, 271
F.3d at 101-02.
b. Standard Of Review
The standard of review is determined by the fact that
Johnson relies on Supreme Court case law issued during his
direct appeal. “[T]he general rule . . . is that an appellate court
must apply the law in effect at the time it renders its decision.”
Henderson v. United States, 568 U.S. 266, 271 (2013) (quoting
Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281 (1969)).
Therefore, when a Supreme Court decision “results in a ‘new
rule,’ that rule applies to all criminal cases still pending on
direct review.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004)
9
(quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).
However, while the new rule applies, Federal Rule of Criminal
Procedure 52(b) limits our review to plain errors. Henderson,
568 U.S. at 270; United States v. Pervez, 871 F.2d 310, 314 (3d
Cir. 1989). Here, although we had rendered our decision in
Johnson’s appeal before Alleyne was decided, the case
remained on direct review because our mandate had not yet
issued. See infra note 5 and accompanying text.
Under the plain error standard, an appellate court may
exercise its discretion to correct (1) an error (2) that was
plain—i.e., “clear or obvious, rather than subject to reasonable
dispute”—and (3) that “affected the appellant’s substantial
rights”—i.e., there is “a reasonable probability” that it affected
the outcome of the proceedings. United States v. Marcus, 560
U.S. 258, 262 (2010) (quoting United States v. Puckett, 556
U.S. 129, 135 (2009)). Even if the appellant meets those
requirements, we will not remedy the error unless the appellant
can show that it (4) “seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.” Id. at 265
(quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).3
c. Application Of The Standard Of Review To The Error
A court’s failure to instruct on an element listed in the
indictment is not plain error if we determine that it is “clear
beyond a reasonable doubt that a rational jury” would have
found the element in question “absent the error.” Lewis, 802
F.3d at 456 (quoting Neder v. United States, 527 U.S. 1, 18
(1999)). “[W]e properly consider the trial record on plain error
review” of a trial error like this one. Vazquez, 271 F.3d at 102.
Therefore, we will review the record of Johnson’s trial to
The Supreme Court’s coincidentally-captioned 1997
3
Johnson decision did not involve the defendant in this case.
10
determine whether the District Court committed plain error
when it failed to submit the issue of brandishing to the jury.
The first two plain-error factors are necessarily met—
i.e., there is an error that is plain—where, as here, a District
Court’s ruling contravenes a later-issued Supreme Court
opinion. See Johnson, 520 U.S. at 467-68. However, the third
factor is not met in this case because there is not “a reasonable
probability” that the court’s failure to instruct the jury
regarding brandishing “affected the outcome of the district
court proceedings.” Marcus, 560 U.S. at 262 (quoting Puckett,
556 U.S. at 135). Bank employees testified that Johnson’s
confederate, Taylor, brandished the gun during the robbery in
question (the third robbery in early July). Johnson did not
present evidence to the contrary. See Vazquez, 271 F.3d at 101
(“[S]ubstantial rights will be affected if, for example, ‘the
defendant contested the omitted element and raised evidence
sufficient to support a contrary finding.’” (quoting Neder, 527
U.S. at 19)). In short, there is no reasonable probability that a
properly-instructed jury would not have found brandishing.
See Vazquez, 271 F.3d at 103-05 (third plain-error factor not
met where “there [was] never . . . any question” that evidence
supported element not submitted to the jury).
Because the first three plain-error prongs are not all met,
we need not reach the fourth. Marcus, 560 U.S. at 265. If we
did reach the fourth prong, however, we would not exercise our
discretion to correct the error. Both we and the Supreme Court
have concluded that where the jury is not instructed on an
element of a crime, but the evidence of that element is
overwhelming and uncontroverted, the fourth prong is not met:
the error does not “seriously affect[] the fairness, integrity or
public reputation” of the proceedings. Vazquez, 271 F.3d at
106; Johnson, 520 U.S. at 470.
11
Johnson points to the Lewis plurality opinion, which
says that “[t]he motivating principle behind Apprendi and
Alleyne is that judges must not decide facts that change the
mandatory maximum or minimum; juries must do so. If we
affirm because the evidence is overwhelming, then we are
performing the very task that Apprendi and Alleyne instruct
judges not to perform.” 802 F.3d at 456. However, the context
was different in Lewis; the error there was sentencing error.
The plurality refused to examine the trial record to determine
whether there was evidence of a crime Lewis had not been
charged with. Here, brandishing was charged, and the error
was the failure to submit brandishing to the jury. Supreme
Court precedent establishes that we review the trial record in
cases like this one. See Johnson, 520 U.S. at 470. We follow
the dictates of Apprendi and Alleyne by asking whether a
properly instructed jury would have found, given the
opportunity, that the gun was brandished (as charged in the
indictment). In this case, the jury would have so found.
2. Second Or Subsequent Conviction
Johnson argues that the District Court committed a
second Alleyne error because it did not ask the jury to
determine whether two of his three § 924(c) convictions were
second or subsequent convictions, but nevertheless imposed
mandatory twenty-five year minimum sentences for “second or
subsequent conviction[s]” under 18 U.S.C. § 924(c)(1)(C)(i).
This was not error. The fact of a second or subsequent
conviction is not an element of the offense and therefore need
not be submitted to the jury. Almendarez-Torres v. United
States, 523 U.S. 224, 247 (1998). Even if there is tension
between Almendarez-Torres and Alleyne, as Johnson argues,
we lack the power to resolve it. Agostini v. Felton, 521 U.S.
203, 237 (1997) (“[I]f a precedent of this Court has direct
12
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court
the prerogative of overruling its own decisions.” (quoting
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989))).
Moreover, the language of Apprendi forecloses
Johnson’s argument. Its key holding is that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime . . . must be submitted to a jury . . . .” 530 U.S. at
490 (emphasis added). We have observed that Alleyne did not
alter the Almendarez-Torres rule. United States v. Burnett, 773
F.3d 122, 136 (3d Cir. 2014). Almendarez-Torres is good law,
and the District Court did not err by following it.
B. Arguments Based On Other Supreme Court Cases
Besides his Alleyne arguments, Johnson makes
arguments based on Supreme Court cases that were issued
during the pendency of his appeal: Rosemond v. United States,
134 S. Ct. 1240 (2014), and Johnson v. United States, 135 S.
Ct. 2551 (2015).4 The Government contends that Johnson
forfeited these arguments because he did not raise them in his
opening brief at the outset of this appeal (that is, his brief filed
before the Supreme Court’s “grant, vacate, and remand”
order). The Government also argues that we should not
consider these arguments because they are “outside the scope
of the Supreme Court’s remand.” Gov’t Second Supp. Br. 29;
id. at 40-41. Neither argument is persuasive.
4
The Supreme Court’s 2015 Johnson decision is
another coincidentally-captioned case that did not involve the
defendant in this case.
13
The Government wisely refrains from making a frontal
attack on the settled proposition that “[w]hen a decision of [the
Supreme] Court results in a ‘new rule,’ that rule applies to all
criminal cases still pending on direct review.” Schriro, 542
U.S. at 351 (quoting Griffith, 479 U.S. at 328). Instead, the
Government asserts that the Schriro rule “has nothing to do
with whether the underlying issue was preserved.” Gov’t
Second Supp. Br. 30. In other words, the Government posits
that Johnson was required to include his arguments in his
opening appellate brief, even though the law supporting them
did not yet exist. The brief was filed in 2011, and the cases he
relies on were issued in 2014 and 2015.
At oral argument, the Government was unable to
explain how its proposed rule could co-exist with Schriro, and
indeed, co-existence is impossible. Supreme Court decisions
apply to “all criminal cases still pending on direct review,”
Schriro, 542 U.S. at 351, not just appeals in which the opening
brief has not yet been filed. To be sure, Johnson’s direct appeal
has been extraordinarily lengthy, giving him a longer-than-
usual window in which to potentially reap the benefit of new
law. But a case is still pending on direct review until our
mandate finally issues, Finberg v. Sullivan, 658 F.2d 93, 99 (3d
Cir. 1980), regardless of the amount of time that elapses. And
here, the mandate has not finally issued.5
The Government’s proposed rule is not only
inconsistent with controlling precedent, it is unworkable.
Lawyers cannot be required to advance arguments in opening
5
The mandate was issued once in error, but recalled
because Johnson had filed a timely petition for rehearing. It
was later issued again, but was once again recalled in light of
the Supreme Court’s order granting certiorari, vacating, and
remanding.
14
appellate briefs that are contingent on a possible future change
in the law. See Johnson, 520 U.S. at 468 (rejecting similar
proposed rule for trial objections because it “would result in
counsel’s inevitably making a long and virtually useless
laundry list of objections to rulings that were plainly supported
by existing precedent”).
The Government’s other contention—that the Johnson
and Rosemond arguments are outside the scope of the remand
order—is also unsuccessful. The Supreme Court’s order
remanding this case to us does not speak to issues other than
Alleyne, and we will not interpret it as wiping away, sub
silentio, the well-established rule of Schriro.6 Therefore, we
will consider Johnson’s arguments based on case law issued
during the pendency of his appeal.
1. Bank Robbery Is A Crime Of Violence
Three of Johnson’s convictions were for violations of
§ 924(c), which prohibits brandishing a firearm “during and in
relation to any crime of violence.” 18 U.S.C. § 924(c)(1)(A).
The predicate crime of violence was bank robbery, 18 U.S.C.
§ 2113(d). Johnson argues that bank robbery is not a crime of
violence under Johnson, 135 S. Ct. at 2551, and therefore his
§ 924(c) convictions should be vacated. We disagree.
To determine whether § 2113(d) bank robbery is a
crime of violence, we employ the categorical approach, which
“requires us to compare the elements of the statute under which
6
The Government cites cases ruling that issues outside
the scope of a “grant, vacate, and remand” order cannot be
addressed. Only one appears to involve arguments based on
cases issued during the pendency of the appeal. See United
States v. Duarte-Juarez, 441 F.3d 336, 340 (5th Cir. 2006).
Duarte-Juarez is not binding and we decline to follow it.
15
the defendant was convicted to the [§ 924(c)] definition of
‘crime of violence.’” United States v. Wilson, 880 F.3d 80, 83
(3d Cir. 2018). Courts “may ‘look only to the statutory
definitions’—i.e., the elements—of a defendant’s prior
offenses, and not ‘to the particular facts underlying those
convictions.’” Descamps v. United States, 570 U.S. 254, 261
(2013) (quoting Taylor v. United States, 495 U.S. 575, 600
(1990)). A crime is only a “crime of violence” if “the least
culpable conduct hypothetically necessary to sustain a
conviction under the statute” meets the definition. Wilson, 880
F.3d at 84 (quoting United States v. Dahl, 833 F.3d 345, 350
(3d Cir. 2016)).
Turning to the statutory definition at issue here, a “crime
of violence” is a felony offense:
(A) [that] has as an element the use, attempted
use, or threatened use of physical force against
the person or property of another, or
(B) that by its nature, involves a substantial risk
that physical force against the person or property
of another may be used in the course of
committing the offense.
18 U.S.C. § 924(c)(3). Thus, a crime can be classified as a
crime of violence under either the elements clause,
§ 924(c)(3)(A), or the residual clause, § 924(c)(3)(B).
In Johnson, the Supreme Court considered the residual
clause of a different portion of § 924—the Armed Career
Criminal Act, § 924(e)—that defines “violent felony” to
include felonies that “otherwise involve[] conduct that presents
a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). The Court ruled the ACCA residual clause
void for vagueness because it does not clarify “how to estimate
the risk posed by a crime” or “how much risk it takes for a
16
crime to qualify as a violent felony.” Johnson, 135 S. Ct. at
2557-58.
Johnson argues that the § 924(c) residual clause is
essentially the same as the ACCA residual clause, and
therefore, the § 924(c) residual clause is also void for
vagueness. However, as Johnson recognizes, our agreement on
this point would not be enough to vacate his convictions. A
crime is a “crime of violence” if it meets either the elements
clause or the residual clause. Therefore, in order to reach
Johnson’s residual-clause argument, we would need to agree
with him that § 2113(d) bank robbery is not a crime of violence
under the elements clause.
Johnson focuses on § 2113(a), and specifically the fact
that it proscribes bank robbery “by force and violence, or by
intimidation.” 18 U.S.C. § 2113(a). Intimidation, Johnson
argues, does not necessarily require the “use, attempted use, or
threatened use of physical force” under the § 924(c) elements
clause definition. However, Johnson was not convicted under
§ 2113(a), but rather § 2113(d), which provides penalties for
any person who, “in committing . . . any offense defined in
subsections (a) and (b) of this section, assaults any person, or
puts in jeopardy the life of any person by the use of a dangerous
weapon or device.” 18 U.S.C. § 2113(d). And “assault[ing]”
someone or putting a life in “jeopardy . . . by the use of a
dangerous weapon,” id., meets the elements clause: it “has as
an element the use, attempted use, or threatened use of physical
force,” id. at § 924(c)(3)(A). One cannot assault a person, or
jeopardize his or her life with a dangerous weapon, unless one
uses, attempts to use, or threatens physical force.
Moreover, even if Johnson’s sole focus on § 2113(a)
were analytically sound, it would be unavailing. We recently
held that § 2113(a) bank robbery by intimidation—the least
17
culpable conduct contemplated in subsection (a)—is a “crime
of violence” under a clause in the Sentencing Guidelines that
is worded “nearly identically” to the § 924(c) elements clause.
Wilson, 880 F.3d at 83. The Guideline at issue in Wilson
provides that a “crime of violence” is one that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 4B1.2(a);
compare 18 U.S.C. § 924(c)(3)(A) (crime of violence is one
that “has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another”).
We held that “[u]narmed bank robbery by intimidation
clearly does involve the ‘threatened use of physical force
against the person of another.’” Wilson, 880 F.3d at 84-85. Our
conclusion was based on “a common sense understanding of
the word ‘intimidation.’” Id. at 85. We also relied on our
precedent, which “establishes that § 2113(a)’s prohibition on
taking . . . ‘property or money or any other thing of value’
either ‘by force and violence, or by intimidation’ has as an
element the ‘threat of force.’” Id. (quoting United States v.
Askari, 140 F.3d 536, 541 (3d Cir. 1998) (en banc), vacated on
other grounds, 159 F.3d 774 (3d Cir. 1998)).
Wilson forecloses Johnson’s argument that bank
robbery is not crime of violence under the § 924(c)(3) elements
clause. Therefore, we do not reach the question of whether the
residual clause is void for vagueness.
2. The Aiding And Abetting Instruction Did Not Amount To
Plain Error
Johnson argues that his aiding and abetting convictions
should be vacated because the jury instruction on aiding and
abetting violated Rosemond, 134 S. Ct. at 1243. We conclude
that any such error does not survive plain error review.
18
In order to aid and abet a § 924(c) offense (brandishing
of a firearm), the defendant must know beforehand that a gun
will be used. Rosemond, 134 S. Ct. at 1249.7 The Supreme
Court ruled that a defendant like Johnson, who actively
participates in a crime, “has the intent needed to aid and abet a
§ 924(c) violation when he knows that one of his confederates
will carry a gun.” Id. The “defendant’s knowledge of a firearm
must be advance knowledge” because that “enables him to
make the relevant legal (and indeed, moral) choice.” Id. With
advance knowledge, a defendant can try to persuade his
confederates to alter the plan, or he can withdraw from it. Id.
Becoming aware of the gun as the crime is unfolding is not
enough: the defendant “may already have completed his acts
of assistance; or even if not, he may at that late point have no
realistic opportunity to quit the crime.” Id.
Here, the jury was instructed that “[t]he second element
of aiding and abetting is that the defendant . . . knew that the
offense charged was going to be committed or was being
committed by the principal.” Supp. App. 1444 (emphasis
added). Therefore, the jury could have convicted Johnson
either on the basis that he knew the gun “was going to be”
brandished, or that it “was being” brandished. See id. The
second alternative—that Johnson was aware of the brandishing
only as it occurred—is erroneous under Rosemond.
7
Section 924(c) penalizes using or carrying,
brandishing, or discharging a gun in relation to either a
“crime of violence” or a “drug trafficking crime.” 18 U.S.C.
§ 924(c)(1)(A). In Rosemond, the predicate crime was drug
trafficking, while here, the predicate crime is a crime of
violence. For the purposes of this opinion, we accept
Johnson’s implicit argument that the distinction is not
material.
19
Johnson argues that the aiding and abetting instruction
was also erroneous as applied to his bank robbery convictions.
Although Johnson does not articulate his logic, we infer that it
goes as follows. A § 924(c) violation consists of a predicate act
(a crime of violence) and the use or carrying of a firearm.
Similarly, a § 2113(d) violation consists of a predicate act
(bank robbery) and the use of a dangerous weapon. Arguably,
therefore, because the two statutes are similar in structure, the
Rosemond advance knowledge requirement applies to
§ 2113(d) as well.
Stated this way, Johnson’s reading of Rosemond has an
appealing consistency. However, we need not decide whether
Rosemond extends beyond § 924(c) because the plain-error
standard is not met with regard to either the § 924(c) or
§ 2113(d) convictions. Although the first two factors—error
that is plain, see Johnson, 520 U.S. at 467-68—are present for
the § 924(c) convictions and possibly also for the § 2113(d)
convictions, the third factor is not met. There is not “a
reasonable probability” that the error “affect[ed] the outcome
of the . . . proceedings.” Marcus, 560 U.S. at 262 (quoting
Puckett, 556 U.S. at 135). If the jury had been properly
instructed, there is not a reasonable probability that Johnson
would have been acquitted, because there was ample evidence
that he knew in advance that the firearm would be brandished
(as § 924(c) puts it), and that a dangerous weapon would be
used (as § 2113(d) puts it).
The overwhelming and uncontroverted evidence
showing Johnson’s foreknowledge of his confederates’ use of
the weapon begins with his first solo bank robbery. There,
Johnson brandished what appeared to be a pistol (actually a BB
gun), at one point putting it to the head of one of the tellers.
Later, Johnson described the first bank robbery to Lawrence,
who wanted to commit a bank robbery too, because he needed
20
money. The two men planned and executed the second robbery
together. As they were driving to the bank, Johnson gave
Lawrence the same BB gun Johnson had used during the first
robbery. When Lawrence entered the bank, he immediately
pulled the gun from his pocket, jumped up on the bank counter,
and demanded money.
Lawrence testified that he, Johnson, and Taylor planned
the third robbery and that Taylor was to go in the bank, hop
over the counter, and get the money while carrying a gun—this
time, the real gun that Johnson had bought. The getaway driver
also testified that the plan was for Taylor to use the gun. Taylor
executed the robbery as planned. During the robbery, he
pointed the gun at a teller’s head.
The same group of individuals then planned the fourth
robbery. The morning of the robbery, Johnson got his gun and
brought it to where the friends met up. During the robbery,
Taylor held the gun to a teller’s head.
For the fifth robbery, Amin Dancy was to be the stickup
man, so Johnson gave him the gun. Dancy carried the gun into
the bank, and during the robbery, he put the gun to a teller’s
ribs.
At trial, Johnson admitted the essential facts of the five
bank robberies, but argued that he was not the ringleader and
that the cooperating witnesses’ testimony lacked credibility.
He did not present any evidence that would contradict the
ample evidence showing that he helped plan each robbery, that
the plan for each robbery included using and brandishing a gun,
and that he provided the gun for each robbery. We therefore
conclude that the third required factor of the plain-error
analysis is not present: even if the jury had been instructed that
Johnson needed to know in advance that the gun would be
brandished, there is not a reasonable probability that it would
21
have acquitted Johnson of the aiding and abetting charges. See
Vazquez, 271 F.3d at 104 (third plain-error factor not met
where “there [was] never . . . any question” about the element
that was not submitted to the jury).8 Therefore, the Rosemond
error does not meet the plain-error standard, and we will affirm
the aiding and abetting convictions.
C. Johnson’s Pro Se Arguments
The history of Johnson’s representation on appeal is
recounted above. See Section I., supra. To recap: Johnson was
represented and lost his appeal; the Supreme Court granted his
pro se petition for certiorari and issued its “grant, vacate, and
remand” order; Johnson proceeded pro se with our permission
and filed a brief; we appointed a new attorney to represent him;
and the new attorney filed a brief as well. Thus, on remand
from the Supreme Court, we have before us both pro se and
counseled briefs.
The Government argues that we should not address the
arguments in Johnson’s pro se brief because they were not
presented in his opening brief (i.e., the one filed before the
Supreme Court remanded the case to us). The Government also
argues that addressing Johnson’s pro se arguments would
violate our rule forbidding pro se filings by represented parties.
8
If we were to reach the fourth plain-error factor, we
would not exercise our discretion to remedy the error. Where
the jury is not instructed on an element of a crime, but the
evidence of that element is overwhelming and
uncontroverted, the error does not “seriously affect[] the
fairness, integrity or public reputation” of the proceedings.
Vazquez, 271 F.3d at 105-06; see also Johnson, 520 U.S. at
470.
22
The rule against hybrid representation forbids a party to
file a pro se brief supplementing his counseled brief. United
States v. Turner, 677 F.3d 570, 578 (3d Cir. 2012); 3d Cir.
L.A.R. 31.3. However, there is no hybrid-representation case
involving an appellant who, like Johnson, filed a pro se brief
with our permission and later filed a counseled brief after we
appointed an attorney. Therefore, the usual rule against hybrid
representation does not apply. In addition, the record does not
show that Johnson was advised that the counseled brief would
supersede his pro se brief, so it would be unfair to rule after the
fact that his pro se arguments were for naught.
The rule requiring appellants to raise all arguments in
their opening briefs “yields in ‘extraordinary circumstances.’”
United States v. Andrews, 681 F.3d 509, 532 (3d Cir. 2012)
(quoting United States v. Albertson, 645 F.3d 191, 195 (3d Cir.
2011)). To weigh whether the circumstances are extraordinary,
we consider “(1) ‘whether there is some excuse for the
[appellant’s] failure to raise the issue in the opening brief’;
(2) the extent to which the opposing party would be prejudiced
by our considering the issue; and (3) ‘whether failure to
consider the argument would lead to a miscarriage of justice or
undermine confidence in the judicial system.’” Id. (quoting
Albertson, 645 F.3d at 195). The factors need not all be met;
instead, we balance them to determine whether to consider
newly-raised arguments. See Albertson, 645 F.3d at 195
(“Applied to the facts of [this] case, we believe the balance [of
the three factors] weighs in favor of reviewing the merits
. . . .”).
Given that Johnson requested to proceed pro se because
of his prior counsel’s failure to raise issues he believed
meritorious, there is some excuse for the waiver under the first
factor. Under the second factor, there is no prejudice to the
Government because it filed a responsive brief addressing the
23
pro se arguments it now says we should ignore. The third
factor, miscarriage of justice, is “somewhat similar to the ‘plain
error’ rule, which allows appellate courts to correct an error” if
it “affected the defendant’s substantial rights and ‘seriously
affect[ed] the fairness, integrity or public reputation of judicial
proceedings.’” Andrews, 681 F.3d at 532 (quoting Albertson,
645 F.3d at 196). As we will explain below, none of Johnson’s
pro se arguments are meritorious, and therefore the asserted
errors do not affect his substantial rights or the fairness or
integrity of the proceedings. But because the first two factors
weigh in favor of review, we will reach his pro se arguments.9
1. Double Jeopardy Under Diaz
Johnson argues that one of his convictions for
brandishing a firearm under § 924(c) violates the Double
Jeopardy clause under United States v. Diaz, 592 F.3d 467 (3d
Cir. 2010). Because this error was not raised at trial, we apply
the plain-error standard. Fed. R. Crim. P. 52(b); Marcus, 560
U.S. at 262.
In Diaz, we held that the Double Jeopardy Clause
requires each § 924(c) conviction to be tied to a separate
predicate offense. 592 F.3d at 474-75. Here, Counts Five and
Seven each charge Johnson with a § 924(c) violation. For
Count Five, the predicate crimes are conspiracy (Count One)
9
According to the Government, none of Johnson’s pro
se arguments were raised at trial, which means the plain error
standard applies. We will address the standard of review as
follows. For the double jeopardy argument, which is
colorable, we will explicitly apply the plain-error test. For the
remaining pro se arguments, we will simply explain why each
asserted error was not an error at all—and, thus, why the
argument fails, regardless of the standard of review.
24
and the July 3 bank robbery (Count Four). For Count Seven,
the predicate crimes are conspiracy (Count One) and the July
17 bank robbery (Count Six). The Government concedes “the
possibility of [Diaz] error” because “[i]t is . . . theoretically
possible that a jury could convict for both Counts Five and
Seven on the basis of the same predicate offense (Count One).”
Gov’t Supp. Br. 22.
The first two prongs of the plain error standard are met:
there is error that was plain, as the Government agrees.
However, the third prong is not met—the error did not affect
Johnson’s substantial rights. See Marcus, 560 U.S. at 262. The
jury convicted him of the unique predicate crimes (the two
bank robberies, Counts Four and Six) as well as the common
predicate crime (the conspiracy, Count One). As the
Government points out, “it would have been irrational for a
jury to . . . find Johnson guilty of [the two] [§] 924(c) offenses
. . . by concluding that the predicate for each was only the
conspiracy charge . . . .” Gov’t Supp. Br. 22.
Even if the first three prongs of the plain error test were
met, we would not exercise our discretion to reverse because
the error does not affect the fairness and integrity of the
proceedings. See Marcus, 560 U.S. at 265. Johnson was found
guilty of two offenses that constitute unique predicate crimes
for the two § 924(c) counts.
2. FBI Agent’s Alleged Perjury
Johnson argues that the only witness at the suppression
hearing, FBI Agent Donald Asper, committed perjury, and asks
us to remand for an evidentiary hearing on this topic. We have
carefully reviewed Johnson’s lengthy argument, as well as
Agent Asper’s testimony, and there is no need for an
evidentiary hearing.
25
Agent Asper testified that a witness to one of the
robberies observed the license plate number of the getaway car,
a silver Buick. The getaway car was registered to a man named
William Childs, whom Agent Asper found and interviewed.
Childs provided Asper with an abundance of information.
Among other things: Childs told Agent Asper that Johnson
bought the Buick and asked Childs to register it in Childs’
name; he identified photos of Taylor, Lawrence, and Johnson;
and he said that Taylor, Lawrence, and Johnson had been
involved in bank robberies and had told Childs to take the heat
for the car. Agent Asper then set up surveillance to find
Lawrence. The surveillance was doubly successful, locating
not only Lawrence, but also Johnson, who was in the silver
Buick at the time. Agents arrested both men. A few hours
later—unrelated to the arrest—a witness to one of the robberies
identified Johnson in a photo array.
Johnson contends there was no probable cause to arrest
him, but instead of a traditional Fourth Amendment argument,
he attacks Agent Asper’s honesty on the witness stand. In
doing so, Johnson ignores every fact except that the photo
identification took place after his arrest. The judge’s ruling at
the evidentiary hearing puts this issue to rest:
Mr. Johnson, I say some of this for your benefit,
sir, because I can appreciate your thinking,
honestly, because you’re thinking, you know, but
they didn’t have the ID until later . . . . And I
think here with the . . . getaway car, Mr.
Johnson’s connection to that car, ownership of
the car, Mr. Childs’ report to the Special Agent
as to Mr. Johnson’s comments, . . . Mr. Childs
picking out Mr. Johnson . . . , Mr. Johnson being
in the car when they go to arrest Mr. Lawrence,
and then Mr. Johnson getting out of the car and
26
together they go into the house, I think when you
put all of that together . . . I do think that there is
ample probable cause for the arrest of Mr.
Johnson . . . before the ID . . . .
Supp. App. 44-45. Johnson’s self-serving version of the facts
does not undermine Agent Asper’s testimony. That testimony,
which we have only partially recounted, outlines how the
investigation unfolded and why the agents had probable cause
to arrest Johnson.
3. Tenth Amendment
Johnson argues that “if a search warrant was required
then the 10th Amendment requires the Department of Justice
to obtain subject matter jurisdiction because the administration
of criminal justice under our federal system has rested with the
States.” Pro Se Supp. Br. 26. However, Johnson cites only
Fourth Amendment case law, and cites no authorities to
support his reading of the Tenth Amendment. We note that
“[t]he FBI is authorized ‘to detect and prosecute crimes against
the United States.’” United States v. Rodgers, 466 U.S. 475,
481 (1984) (quoting 28 U.S.C. § 533(1)).
4. Sufficiency Of Aiding And Abetting Evidence
Johnson argues that the trial evidence was insufficient
to support his aiding and abetting convictions. However, we
determined—in the initial phase of this appeal, before the
Supreme Court’s “grant, vacate, and remand” order—that the
evidence was sufficient. Johnson, 515 F. App’x at 187-88.
Under the law of the case doctrine, “that decision should
continue to govern” unless there are “extraordinary
circumstances such as where the initial decision was ‘clearly
erroneous and would work a manifest injustice.’” Christianson
v. Colt Indus. Operating Corp., 486 U.S. 800, 816-17 (1988)
(quoting Arizona v. California, 460 U.S. 605, 618 n.8 (1983)).
27
There are no extraordinary circumstances. We have
already explained, in our discussion of Rosemond, that
overwhelming and uncontroverted evidence showed Johnson’s
prior knowledge that the gun would be used in the bank
robberies. See Section III.B.2., supra. Viewed in the light most
favorable to the Government, that same evidence permitted a
rational trier of fact to convict Johnson of aiding and abetting.
See United States v. Caraballo-Rodriguez, 726 F.3d 418, 430
(3d Cir. 2013) (en banc). Johnson’s argument ignores much of
the evidence and rests on his insistence that he was not present
inside the banks, a fact that does not carry the legal weight he
wishes to attribute to it.
5. Effect On Interstate Commerce
Johnson argues that the indictment needed to allege, and
the jury needed to find, that his crimes affected interstate
commerce. He relies on Bond v. United States, 564 U.S. 211
(2011), but that case stands only for the proposition that a
defendant has standing to challenge the statute of conviction
on Tenth Amendment grounds. Id. at 225-26. Bond says
nothing about the requirements for the indictment or the proof
at trial. In addition, Johnson contends that the FDIC does not
replace money lost to bank robbery, and without FDIC loss,
there is no effect on interstate commerce. However, we have
ruled that § 2113 bank robbery “is an economic activity that
. . . substantially affects interstate commerce and, thus, is an
activity that Congress was well within its rights to criminalize
pursuant to its power under the Commerce Clause.” United
States v. Spinello, 265 F.3d 150, 159 (3d Cir. 2001). We lack
the power to revisit this conclusion. Blair v. Scott Specialty
Gases, 283 F.3d 595, 610-11 (3d Cir. 2002) (“It is this court’s
tradition that a panel may not overrule or disregard a prior
panel decision unless that decision has been overruled by the
28
Supreme Court or by our own court sitting en banc.”) (internal
quotation marks and citation omitted).
6. Motion In Limine
Johnson argues that the District Court violated his
constitutional rights by granting a motion in limine that would
have allowed the Government to rebut Johnson’s testimony (if
he had testified) with evidence of his statements to
investigators. Johnson clearly feels that this ruling constrained
his defense. However, the authorities he cites do not show
error. For example, Sullivan v. Louisiana, 508 U.S. 275 (1993),
deals with deficient instructions regarding guilt beyond a
reasonable doubt, and United States v. Gaudin, 515 U.S. 506
(1995), deals with failure to submit the element of materiality
to the jury in a perjury prosecution.
7. “Interlocking” Errors
Johnson argues that the District Court committed five
interlocking, reversible errors. We address these in turn.
First, Johnson argues that he was prevented from
testifying because he feared for his family and was assaulted in
pretrial detention. However, the facts he relies on either are
outside the record or constitute a continuation of his self-
serving (and unsupported) version of events.
Second, Johnson argues that the District Court should
have severed the first, second, and fifth robberies and tried each
one individually. Joinder was appropriate, however, because
the five bank robberies were a “series of acts or transactions.”
Fed. R. Crim. P. 8(b); see United States v. Irizarry, 341 F.3d
273, 287 (3d Cir. 2003) (Rule 8(b) governs joinder of multiple
offenses). A defendant arguing for severance “must ‘pinpoint
clear and substantial prejudice resulting in an unfair trial.’”
United States v. Riley, 621 F.3d 312, 335 (3d Cir. 2010), as
29
amended (Oct. 21, 2010) (quoting United States v. McGlory,
968 F.2d 309, 340 (3d Cir. 1992)). Johnson argues generally
that the joint trial exposed the jury to evidence of his other bad
acts in violation of Federal Rule of Evidence 404. However, he
fails to identify any clear and substantial prejudice, and we
perceive none.
Third, Johnson attacks the testimony of FBI agents and
a cooperating witness. Johnson declares that Agent Shute
relied on inaccurate data when testifying about cell site
analysis, but he never hints at what the inaccuracies were. He
argues that Agent Banis, who presented call detail records, had
no independent evidence that Johnson’s cell phone number
was really his. However, Agent Banis testified that Lawrence
and Johnson’s sister identified the number as Johnson’s.
Finally, Johnson argues that Lawrence offered improper expert
testimony about the meaning of a phone call between Johnson
and Amin Dancy. Such testimony offered by a cooperating
witness is lay opinion testimony, not expert testimony. See
United States v. Anderskow, 88 F.3d 245, 250 (3d Cir. 1996).
Lawrence’s testimony was a proper lay opinion: it was
rationally based on his perception (he was present during the
phone call), was helpful to the jury, and was not based on
specialized knowledge. Fed. R. Evid. 701.
Fourth, Johnson argues that certain evidence—video,
pictures, and bank teller testimony—was cumulative and
should not have been admitted under Federal Rule of Evidence
403. However, evidence about what took place inside the banks
does not fail the Rule 403 balancing test merely because
Johnson was the lookout, while his confederates—not Johnson
himself—went into the banks. Nor is it needlessly cumulative
to present evidence of the predicate crimes that Johnson
conspired to commit and then aided and abetted.
30
Fifth, Johnson argues that the cumulative weight of the
errors rendered his trial unfair. This argument fails because his
other assignments of error fail.
III.
For the reasons stated above, we will affirm.
31