United States v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4018
RONALD G. JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(CR-01-10019)
Submitted: September 30, 2002
Decided: October 10, 2002
Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Ronald G. Johnson, Appellant Pro Se. Ruth Elizabeth Plagenhoef,
Assistant United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JOHNSON
OPINION
PER CURIAM:
Ronald G. Johnson appeals his conviction after a jury trial of
twenty counts of preparing or aiding and abetting the preparation of
false claims against the United States, in violation of 18 U.S.C. §§ 2,
287 (2000). Finding no reversible error, we affirm.
Johnson contends that the indictment was defective because he was
accused of filing fraudulent tax returns and, therefore, he should have
been charged under Title 26 rather than Title 18, United States Code.
Johnson also asserts that the Government failed to present to the
grand jury evidence that he aided or abetted the preparation or filing
of false returns, which invalidates his indictment under 18 U.S.C. § 2.
Although the conduct alleged in the indictment arguably violated
both 18 U.S.C. § 287 and 26 U.S.C. § 7206(2) (2000), the charging
decision is committed to the discretion of the United States Attorney.
See United States v. Wilson, 262 F.3d 305, 315 (4th Cir. 2001), cert.
denied, ___ U.S. ___, 122 S. Ct. 1908 (2002). Johnson also argues
that, because there was no mention of 18 U.S.C. § 2 before the grand
jury and he was only convicted of aiding and abetting in violation of
§ 2, his convictions are invalid. We note that the jury verdict sheet
does not indicate whether the jury found that Johnson acted as a prin-
cipal or as an aider or abetter for any particular count of conviction.
A defendant bears an especially high burden in attacking an indict-
ment after conviction. See United States v. McDonald, 61 F.3d 248,
252 (4th Cir. 1995). Our review of the portion of the grand jury tran-
script Johnson attached to his appeal convinces us that the grand jury
was provided sufficient information to return an indictment of aiding
and abetting the preparation of false tax returns against Johnson.
Although the IRS agent did not specifically mention a citation to the
aiding and abetting statute, his testimony before the grand jury estab-
lished probable cause to believe that Johnson participated in the prep-
aration and submission of false claims both as a principal and as an
aider or abetter. Finally, any error in the presentation to the grand jury
is harmless in light of the trial jury’s finding that Johnson’s guilt was
UNITED STATES v. JOHNSON 3
established beyond a reasonable doubt. See United States v.
Mechanik, 475 U.S. 66, 70 (1986).
In a related argument, Johnson asserts that his arrest was invalid
under Fed. R. Crim. P. 40 and the charges against him should have
been dismissed. Johnson argues that he was not provided a copy of
the arrest warrant within ten days of his arrest, and that he was not
arrested based upon the indictment or warrant, but on a handwritten
piece of paper. The record, however, shows that a grand jury in the
Western District of Virginia returned an indictment charging Johnson,
and an arrest warrant was issued based upon the indictment. Subse-
quently, certified copies of the indictment and arrest warrant were
transmitted to the district court for the District of Delaware, where
Johnson then resided, and Johnson was arrested pursuant to the war-
rant. Johnson was brought before a magistrate judge the same day he
was arrested for an initial appearance and identity hearing. Contrary
to Johnson’s assertions, the arresting officer is not required to have
the warrant at the time of arrest. See Fed. R. Crim. P. 4(d)(3); United
States v. Salliey, 360 F.2d 699, 704 (4th Cir. 1966). We conclude that
the Government complied with Rule 40 and that Johnson’s arguments
for a dismissal of the charges are without merit.
Johnson next asserts that, because the crime of filing false tax
returns is not completed until the return is filed with the IRS, and the
filing occurred in Philadelphia, no criminal act occurred in the West-
ern District of Virginia. Therefore, the district court for the Western
District of Virginia did not have jurisdiction to conduct his trial, and
venue for his trial was proper only in Philadelphia. In support of this
argument, he also asserts that, because the gravamen of his crime was
a tax offense, he should have been given the benefit of the venue pro-
vision of 18 U.S.C. § 3237(b) to be tried in the district in which he
resided, Delaware. Accordingly, he asserts that venue for his trial
properly lay only in either Philadelphia or the district of Delaware,
but not in the Western District of Virginia. We find these arguments
without merit.
The jurisdiction of the district courts extends to "all offenses
against the laws of the United States." 18 U.S.C. § 3231 (2000); see
generally United States v. Cotton, ___ U.S. ___, 122 S. Ct. 1781,
1784-85 (2002) (discussing criminal jurisdiction of district courts).
4 UNITED STATES v. JOHNSON
Because the indictment properly alleged an offense against the laws
of the United States, the district court had jurisdiction over Johnson
and the charged crimes.
Johnson’s argument that venue was not proper in the Western Dis-
trict of Virginia has been rejected by this court. See United States v.
Blecker, 657 F.2d 629, 632-33 (1981). In Blecker, the court rejected
a venue challenge in a prosecution under 18 U.S.C. § 287, stating that
"venue lies to prosecute a violator of this statute in either the district
in which the claims were made or prepared, or the one in which they
were presented to the government." Id. at 632 (internal citations omit-
ted). Johnson’s attempt to invoke the choice of venue provisions in
18 U.S.C. § 3237(b) is likewise meritless. As discussed above, the
indictment validly charged Johnson with a violation of the false
claims statute, not a violation of the Internal Revenue Code. Finally,
the evidence produced at trial clearly established that Johnson pre-
pared, or assisted the preparation of, false tax returns in Lynchburg,
Virginia, satisfying the prosecution’s burden to prove venue by a pre-
ponderance of the evidence. See Blecker, 657 F.2d at 320.
Johnson next alleges that his right to a speedy trial was violated,
at least in part as a result of the district court assigning counsel to rep-
resent him. The Speedy Trial Act, 18 U.S.C. § 3161 (2000), requires
that the trial of a defendant charged in an indictment commence
within seventy days "from the date the defendant has appeared before
a judicial officer of the court in which such charge is pending." 18
U.S.C. § 3161(c)(1). Johnson first appeared before a judicial officer
in the Western District of Virginia on July 16, 2001. Without any
periods of exclusion, then, Johnson’s trial should have commenced on
or before September 24, 2001.
The Act excludes from the time in which trial must commence
periods of delay as a result of "any proceeding, including any exami-
nation, to determine the mental competency . . . of the defendant," and
"delay resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt dis-
position of, such motion." 18 U.S.C. § 3161(h)(1)(A), (F). On August
10, 2001, the district court granted the defense’s motion for a psychi-
atric examination of Johnson and a competency hearing. After the
examination was completed, a competency hearing was held on
UNITED STATES v. JOHNSON 5
November 14, 2001. Accordingly, the speedy trial deadline was
extended for over three months, which extended the permissible trial
date until December 24, 2001. Moreover, the plethora of pretrial
motions filed by Johnson provided excludable periods of delay. See
Henderson v. United States, 476 U.S. 321, 330 (1986); United States
v. Osteen, 254 F.3d 521, 525 (4th Cir. 2001). As Johnson’s trial com-
menced on December 19, 2001, we conclude that his right to a speedy
trial was not violated.
Nor was Johnson’s Sixth Amendment right to a speedy trial
impaired. This court considers four factors to determine whether a
defendant’s Sixth Amendment speedy trial right has been violated:
"whether the delay before trial was uncommonly long, whether the
government or the defendant is more to blame for that delay, whether
in due course, the defendant asserted his right to a speedy trial, and
whether he suffered prejudice as the delay’s result." United States v.
Thomas, 55 F.3d 144, 148 (4th Cir. 1995) (quoting Doggett v. United
States, 505 U.S. 647, 651 (1992)).
The delay between Johnson’s arrest and his trial, roughly eight
months, was not uncommonly long. See Doggett, 505 U.S. at 652. We
also conclude that Johnson is responsible for the majority of the delay
in this case. The combination of Johnson’s numerous pretrial motions
and the requested psychiatric evaluation caused significant pretrial
delay. The Government requested one continuance of slightly more
than thirty days, which the district court granted after finding "that the
ends of justice served by granting such continuance outweigh the best
interest of the public and the defendant in a speedy trial pursuant to
Title 18 U.S.C. Sections 3161(h)(7) and 3161(h)(8)(A)." Johnson
clearly fulfills the third Thomas factor, as he voiced his desire for a
speedy trial very early in the proceedings, prior to his transfer to the
Western District of Virginia. We conclude, however, that Johnson
cannot show that he suffered prejudice as a result of the delay. John-
son called no witnesses at his trial other than himself, and has not
asserted that any witness he might have called became unavailable as
a result of the delay in his trial. Moreover, this was in large part a
"paper" case in which witness testimony served primarily to authenti-
cate the documentary evidence and establish a link between Johnson
and those documents. We conclude that Johnson’s speedy trial rights
under the Sixth Amendment were not violated.
6 UNITED STATES v. JOHNSON
Johnson next argues that the district court erred in denying his
request for a bill of particulars and that the Government did not pro-
vide adequate pretrial discovery. The denial of a request for a bill of
particulars is reviewed for an abuse of discretion. See United States
v. Jackson, 757 F.2d 1486, 1491 (4th Cir. 1985). A bill of particulars
is granted in order to allow the defense additional information to pre-
pare for trial and avoid unfair surprise, but it "is not to be used to pro-
vide detailed disclosure of the government’s evidence in advance of
trial." United States v. Automated Med. Labs., Inc., 770 F.2d 399, 405
(4th Cir. 1985). Johnson’s requests for a bill of particulars did not
specify what information he sought that was not included in the
indictment. Moreover, at his arraignment, Johnson acknowledged that
he had received a copy of the indictment, and that he understood the
charges against him. We therefore conclude that the district court did
not err in denying Johnson’s request for a bill of particulars.
With regard to Johnson’s assertion that the Government did not
provide required discovery to him, we find that this claim is belied by
the record. At several points during his trial, Johnson objected to a
Government witness or evidence on the grounds that he was not
aware the witness would be called, the nature of the testimony, or the
nature of the evidence offered. The Government replied, and Johnson
often acknowledged, that he had been provided copies of witness
statements and documentary evidence. This court has held that the
decision whether to require an exchange of witness lists under Fed.
R. Crim. P. 16 is within the discretion of the trial court. See United
States v. Fletcher, 74 F.3d 49, 54 (4th Cir. 1996). In this case, the
joint discovery order was silent as to witness lists. Because Johnson
had no right to a list of witnesses the Government intended to call,
and he received the discovery to which he was entitled, his assertion
of error is baseless.
Johnson asserts the district court improperly instructed the jury, in
part by instructing the jury that his crimes were a "continualing [sic]
offense." "This court reviews jury instructions in their entirety and as
part of the whole trial" to determine "whether the court adequately
instructed the jury on the elements of the offense and the accused’s
defenses." United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995)
(quoting United States v. Fowler, 932 F.2d 306, 317 (4th Cir. 1991)).
Johnson asked the court to instruct the jury based upon case law he
UNITED STATES v. JOHNSON 7
presented that purportedly supported his theories that he was charged
under the incorrect section of the United States Code, that merely pre-
paring false claims was not a crime, that the crime of presenting false
claims was not completed until the claims were filed with the IRS,
and because the filing occurred in Philadelphia, the district court had
no jurisdiction over him. The district court rejected Johnson’s legal
theories and refused to allow him to present them to the jury, or to
instruct the jury on these theories.
As discussed above, the district court had jurisdiction over Johnson
and the crimes charged, and venue was proper in the Western District
of Virginia. Moreover, the evidence clearly demonstrated that the
claims in question were prepared in the Western District of Virginia
and were in fact presented to the IRS. Our review of the record dem-
onstrates that the instructions requested by Johnson were not correct
statements of the law and were not supported by the facts. The district
court properly rejected Johnson’s proffered instructions. We also con-
clude that the instructions given by the district court correctly stated
the elements of the offenses charged and were otherwise correct state-
ments of the law applicable to this case. Finally, Johnson’s contention
that the district court instructed the jury that the charged crimes were
a continuing offense is belied by the record.
Johnson asserts the evidence was insufficient to sustain his convic-
tion. He also alleges error in the purported fact that one juror refused
to sign the verdict sheet. A jury’s verdict must be upheld on appeal
if there is substantial evidence in the record to support it. See Glasser
v. United States, 315 U.S. 60, 80 (1942). In determining whether the
evidence in the record is substantial, this court views the evidence in
the light most favorable to the government, and inquires whether
there is evidence that a reasonable finder of fact could accept as ade-
quate and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). We do not review the credibility of the wit-
nesses, and we assume that the jury resolved all contradictions in the
testimony in favor of the government. See United States v. Romer,
148 F.3d 359, 364 (4th Cir. 1998).
We have carefully reviewed the record, which included lengthy and
detailed testimony against Johnson. We conclude that the evidence of
8 UNITED STATES v. JOHNSON
Johnson’s guilt was overwhelming. Johnson’s contention that a juror
refused to sign the verdict form is likewise baseless. The verdict sheet
in this case was properly signed by the jury foreperson, the only per-
son required to sign the verdict sheet. We also conclude that the dis-
trict court did not err in directing the jury to return to the deliberation
room when it was discovered that the verdict on Count Thirteen had
not been marked on the verdict sheet. The jury retired, marked the
verdict for Count Thirteen, and returned to the courtroom. Finally, the
jury was polled at Johnson’s request. We find no indication of any
improper conduct by the jury, and conclude this argument is without
merit.
We therefore deny Johnson’s motion for dismissal, motion for a
copy of his appeal, motion to expedite his appeal, and all other pend-
ing motions for general relief, and affirm his convictions and sen-
tence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED