United States v. Frederick Johnson

FILED
NOT FOR PUBLICATION MAR 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10025
Plaintiff - Appellee, D.C. No. 3:08-cr-00251-MMC-1
v.
MEMORANDUM *
FREDERICK LIM JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted March 14, 2011
San Francisco, California
Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.
Frederick Lim Johnson appeals from the district court’s conviction and
imposition of a life sentence. We have jurisdiction over this timely appeal under
28 U.S.C. § 1291 and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I.
“‘We review a district court’s finding that a pre-arraignment delay was
reasonable for clear error.’” United States v. Liera, 585 F.3d 1237, 1242 (9th Cir.
2009), quoting United States v. Padilla-Mendoza, 157 F.3d 730, 732 (9th Cir.
1998). There was no clear error. Even if there were, in light of the corroborated
independent evidence against Johnson, any error regarding the admission of the
statements was harmless; therefore, reversal on this ground is inappropriate. See
id. at 1244 (“An error is harmless if it is more probable than not that the error did
not materially affect the verdict” (internal quotations omitted)); Olivas v. State of
Ariz. ex rel. Eyman, 447 F.2d 974, 975–76 (9th Cir. 1971).
II.
We “review de novo whether references to a defendant’s silence violate his
Fifth Amendment right to remain silent.” United States v. Pino-Noriega, 189 F.3d
1089, 1098 (9th Cir. 1999). “[U]nder our precedent, prosecutorial comments on
failure to testify only require reversal ‘where such comment is extensive, where an
inference of guilt from silence is stressed to the jury as a basis for the conviction,
and where there is evidence that could have supported acquittal.’” Beardslee v.
Woodford, 358 F.3d 560, 587 (9th Cir. 2004), quoting Lincoln v. Sunn, 807 F.2d
805, 809 (9th Cir. 1987). Because there was extensive evidence in the record of
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Johnson’s guilt, very little evidence that supported acquittal, and because the trial
judge gave a curative instruction, any Doyle error was harmless. See Lincoln, 807
F.2d at 809.
III.
“We review the denial of a motion for a mistrial under the abuse of
discretion standard.” United States v. Fernandez, 388 F.3d 1199, 1240 (9th Cir.
2004). In light of the evidence supporting Johnson’s conviction, any error
regarding the three objected to brief statements suggesting Johnson’s prior
incarceration was harmless. See United States v. Guerrero, 756 F.2d 1342, 1347
(9th Cir. 1984). Similarly, any cumulative error that rendered Johnson’s trial
fundamentally unfair was harmless. See United States v. Berry, 627 F.2d 193, 201
(9th Cir. 1980).
AFFIRMED.
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