United States v. William Johnson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1322
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UNITED STATES OF AMERICA
v.
WILLIAM JOHNSON,
Appellant.
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On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2:19-cr-00606-001)
District Court Judge: Honorable Harvey Bartle III
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 19, 2022
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BEFORE: JORDAN, RESTREPO and PORTER, Circuit Judges
(Filed: March 23, 2022)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RESTREPO, Circuit Judge
Following a jury trial, appellant William Johnson was convicted of possessing a
firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). During his trial, the
District Court denied Johnson's request to cross-examine the arresting officer about two
prior incidents of untruthfulness, citing Federal Rule of Evidence 403. The District Court
subsequently denied Johnson’s motion for a new trial, and he appealed to this Court. For
the reasons that follow, we will affirm the District Court’s rulings and Johnson’s
conviction.
I. Facts and Procedural History
On September 2, 2019, at approximately 6:30 pm, four Philadelphia Police
Officers responded to a 911 call about a man with a gun and found Johnson and another
man outside at the reported location. As two officers exited their patrol cars and
approached the men, Johnson grabbed his waistband and fled. The two officers pursued
him on foot, while another officer and Officer Matthew Lally followed in their cars.
Officer Lally left the three pursuing officers and blocked Johnson from using a shortcut
through a vacant lot. Johnson was cornered by Officer Lally and the trailing officers, and
he pulled a handgun from his waistband and tossed it. Only Officer Lally saw Johnson
throw the gun. Officer Lally then detained Johnson and collected the gun, which another
officer took into evidence.
A grand jury in the Eastern District of Pennsylvania indicted and charged Johnson
with one count of possessing a firearm as a convicted felon, a violation of 18 U.S.C. §
2922(g)(1). After his first trial ended in a mistrial, Johnson successfully moved to proceed
pro se for his second trial. He sought to cross-examine Officer Lally about two prior
investigations conducted by the Internal Affairs Division (“IAD”) of the Philadelphia
Police Department, both involving alleged untruthfulness by Officer Lally. The first
incident occurred in 2012, when Officer Lally stated in an interview with the IAD that he
did not search a suspect’s residence. After an investigation, IAD determined that he
conducted an improper search and issued him a written reprimand. In 2020, the IAD
found that Officer Lally had violated Philadelphia Police Department Policy by failing to
notify his superiors that he attended court proceedings where he was not a necessary
witness. IAD determined that Officer Lally received 36.5 hours of unauthorized overtime
for attending these proceedings.
The District Court denied Johnson’s request to cross-examine Officer Lally about
the IAD investigations. The court first ruled that Federal Rule of Evidence 608(b)
prevented Johnson from introducing extrinsic evidence or eliciting the findings of the
IAD investigations, which limited the potential scope of the cross-examination to asking
Officer Lally about his actions. The court then ruled that the potential for misleading the
jury, confusing the issues, and unfairly prejudicing the government outweighed the
sought testimony’s probative value under Rule 403. Johnson was convicted and
sentenced to 180 months in prison. He subsequently filed a motion for a new trial under
Federal Rule of Criminal Procedure 33, arguing that denying him the ability to cross-
examine Officer Lally about the IAD investigations violated his right to confrontation
under the Sixth Amendment. The District Court denied this motion, ruling again that the
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potential for prejudice and confusing the jury outweighed the minimal probative value of
the cross-examination. Johnson timely appealed to this Court.
II. Legal Standard
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s ruling
regarding the admissibility of evidence for abuse of discretion. United States v. Green,
617 F.3d 233, 239 (3d Cir. 2010) (citations omitted). A district court abuses its discretion
only if its ruling is “arbitrary, fanciful or clearly unreasonable”—where “no reasonable
person would adopt the district court's view.” United States v. Starnes, 583 F.3d 196, 214
(3d Cir. 2009). We afford the District Court “broad discretion” to determine the
admissibility of evidence under Rule 403. United States v. Balter, 91 F.3d 427, 442 (3d
Cir. 1996); United States v. Guerrero, 803 F.2d 783, 785 (3d Cir. 1986) (“[T]he Rule 403
standard is inexact, requiring . . . considerable deference on the part of the reviewing
court to the hands-on judgment of the trial judge.”).
III. Discussion
We hold that the District Court did not abuse its discretion and did not violate
Johnson’s Sixth Amendment rights by denying his request to cross-examine Officer Lally
about the IAD investigations.
A. The District Court Did Not Abuse Its Discretion.
The District Court acted well within its discretion in limiting the scope of Officer
Lally’s cross-examination. Federal Rule of Evidence 608(b) allows prior acts to “be
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inquired into on cross-examination, at the discretion of the court, if they are probative of
a witness’s truthfulness or untruthfulness.” United States v. Davis, 183 F.3d 231, 257 (3d
Cir. 1999). However, “extrinsic evidence is not admissible to prove specific instances of
a witness's conduct.” United States v. Georgiou, 777 F.3d 125, 144 (3d Cir. 2015)
(quoting Fed. R. Evid. 608(b)).1 We therefore agree with the District Court that, under
Rule 608(b), Johnson’s questions to Officer Lally about the IAD investigations would
have been limited to asking about his actions and whether he lied. If Officer Lally denied
being untruthful, Rule 608(b) prohibited Johnson from asking questions about the
consequences and findings of the IAD investigations. Id. at 145.2
The District Court was reasonable to deny Johnson this limited cross-examination
under Federal Rule of Evidence 403.3 First, the court’s finding that the sought testimony
had little probative value is sound. The 2012 investigation “offers little insight into
1
Rule 608(b) provides:
Except for a criminal conviction under Rule 609, extrinsic evidence is not
admissible to prove specific instances of a witness’s conduct in order to attack
or support the witness’s character for truthfulness. But the court may, on cross-
examination, allow them to be inquired into if they are probative of the
character for truthfulness or untruthfulness of [the witness].
Fed. R. Evid. 608(b).
2
See Davis, 183 F.3d at 257 n.12 (holding that the government could not cross-examine a
police officer about the findings of IAD investigations and his subsequent suspension
under Rule 608(b) because these facts were impermissible extrinsic evidence).
3
Rule 403 provides that a court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403.
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[Officer Lally’s] character for truthfulness” because it occurred more than seven years
earlier and involved different circumstances. App. 12. The 2020 incident was not relevant
because it was unclear “whether this infraction was an intentional violation of police
directives and whether the infraction involved a lack of truthfulness.” Id. Further, neither
investigation involved untruthfulness about the actions of a criminal suspect. The District
Court reasonably concluded that cross-examining Officer Lally about unrelated
investigations into factually dissimilar matters had little probative value.4
The District Court’s determination that the testimony at issue would confuse the
issues and mislead the jury was also reasonable. Because Rule 608(b) prohibited Johnson
from eliciting the findings or consequences of the IAD investigations, the limited
possible questioning could have led to speculation and confused the jury as to why the
IAD investigations were relevant. The potential for confusing issues and misleading the
jury is high when a witness’s prior actions are factually dissimilar to their actions in the
current case and they cannot be presented to the jury with “reasonable certainty.”
Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 156 (3d Cir. 2002).5
4
See United States v. Casoni, 950 F.2d 893, 919 (3d Cir. 1991) (affirming district court’s
ruling to deny cross-examination about a witness’ unrelated and factually distinct prior
actions because they had little probative value and could confuse the jury).
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In Johnson, this Court explained:
Where a past act cannot be shown with reasonable certainty, its probative
value is reduced and it may prejudice the defendant unfairly, confuse the
issues, mislead the jury, and result in undue delay and wasted time—all
reasons for excluding evidence under Rule 403. The same can be said of
evidence of past acts that are dissimilar to the act for which the defendant is
being tried; in particular, the introduction of dissimilar past acts runs the
risk of confusing the issues in the trial and wasting valuable time. Also
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Officer Lally’s past actions had no factual similarity to this case because neither
investigation involved him being untruthful about a criminal suspect or arrest.6 Moreover,
Rule 608(b) prevented Johnson from inquiring into IAD’s findings, making it impossible
for the jury to clearly understand these collateral matters. Johnson argues that the District
Court could have eliminated the potential for confusion with a limiting instruction that
directed the jury only to consider the IAD investigations in weighing Officer Lally’s
credibility for truthfulness. However, this instruction may not have eliminated the jury’s
confusion about the results of the investigations and why they were relevant to this case.
Thus, we conclude that the District Court did not abuse its discretion to deny Johnson the
cross-examination about the IAD investigations.7
relevant to the Rule 403 balancing analysis are . . . the closeness in time of
the prior acts to the charged acts, the frequency of the prior acts, the
presence or lack of intervening events, and the need for evidence beyond
the testimony of the defendant and alleged victim.
Johnson, 283 F.3d at 156 (quotations and citations omitted).
6
Johnson’s reliance on United States v. Davis, 183 F.3d 231 (3d Cir. 1999) and United
States v. Sullivan, 803 F.2d 87 (3d Cir. 1986) as factual comparators is unavailing. Both
cases involved police officers as criminal defendants on trial for crimes related to
untruthful police conduct. See Davis, 183 F.3d at 257; Sullivan, 803 F.2d at 91. Here,
Officer Lally’s credibility was a collateral issue and the IAD matters were of only
marginal relevance to his credibility regarding Johnson’s arrest.
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Johnson also argues that the District Court is not entitled to the normal deference
afforded in abuse of discretion review because the District Court failed to explain its
reasoning on the record and merely performed a “bare recitation of Rule 403.” United
States v. Caldwell, 760 F.3d 267, 284 (3d Cir. 2014). The record belies this argument,
however, because the District Court explained its reasoning and balanced the
considerations in Rule 403 to reach its conclusion, as discussed above.
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B. Johnson Is Not Entitled to a New Trial.
Because we conclude that the District Court did not abuse its discretion in
limiting the scope of the cross-examination, we hold it did not err in denying Johnson’s
motion for a new trial. Pursuant to Federal Rule of Criminal Procedure 33, a court may
grant a new trial “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). In
weighing a Rule 33 motion, the Court decides whether there exists “a serious danger that
a miscarriage of justice has occurred—that is, that an innocent person has been
convicted.” United States v. Silveus, 542 F.3d 993, 1004–05 (3d Cir. 2008).
No miscarriage of justice occurred here because the District Court acted within its
discretion to exclude the cross-examination about the IAD investigations. District courts
have wide discretion in limiting cross-examination under Rule 403, and Johnson’s Sixth
Amendment right to confrontation was not violated by the District Court’s reasoned
denial of his desired cross-examination.8 Further, Johnson’s guilt was not based solely on
Officer Lally’s testimony but also on the testimony of three other officers who
participated in the arrest. Therefore, Johnson’s conviction is not a miscarriage of justice
and does not warrant a new trial.
8
The right to cross-examination in the Sixth Amendment’s Confrontation Clause is
subject to a district court’s discretion to exclude certain matters under Rule 403. The
Sixth Amendment guarantees an opportunity for cross-examination, “not cross-
examination that is effective in whatever way, and to whatever extent, the defense might
wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (citations omitted).
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IV. Conclusion
We conclude that the District Court did not abuse its discretion and thus did not
commit error. We need not consider whether this was harmless error. The District Court’s
rulings and Johnson’s conviction are affirmed.
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