U.S. v. Johnson
| Decision Date | 26 August 2002 |
| Docket Number | No. 00-2165.,No. 01-2529.,00-2165.,01-2529. |
| Citation | 302 F.3d 139 |
| Parties | UNITED STATES of America v. Gene Barrett JOHNSON, a/k/a Gexex Johnson, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph R. D'Andrea, Scranton, PA, for Appellant in No. 00-2165.
James A. Swetz, Cramer, Swetz & McManus, Stroudsbrug, PA, for Appellant in No. 01-2529.
William S. Houser, Office of the United States Attorney, Scranton, PA, for Appellee.
Before: SLOVITER, and AMBRO, Circuit Judges, SHADUR*, District Judge.
In these consolidated appeals arising from two separate trials, Gene Barrett Johnson appeals his conviction and sentence on four counts (one in his first trial, three in his second) of violating 21 U.S.C. § 841(a)(1) by possessing drugs with the intent to distribute them. In No. 00-2165, Johnson contends that the District Court should have ordered the Government to reveal the identity of a confidential informant who did not participate in or witness the offense. In No. 01-2529, Johnson argues that: (1) the evidence was insufficient to support his conviction on any of the three counts; (2) the District Court abused its discretion by refusing to grant his new trial motion; (3) the prosecutor violated his right to due process by asking a question that may have implicated his right to remain silent after being arrested and given Miranda warnings; (4) the prosecutor committed misconduct by asking a defense witness about Johnson's prior bad acts; (5) the prosecutor improperly commented on Johnson's status as a fugitive in response to defense counsel's argument that it made no sense that he would leave drug-filled bags at the residence of a woman he met at a nightclub; (6) the Court abused its discretion by allowing the prosecutor to impeach Johnson and another defense witness with evidence that they were convicted felons; (7) the Court improperly imposed a two-level sentencing enhancement for obstruction of justice after finding that Johnson committed perjury during several portions of his trial testimony; and (8) the Court mistakenly imposed a two-level sentencing enhancement for possession of a firearm because Johnson had a loaded revolver in the same bag as his drugs.
We conclude that the District Court correctly rejected eight of Johnson's nine claims. However, the Court overlooked Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), in finding that a due process violation — which it ultimately deemed harmless — occurred when the prosecutor asked a question that implicated Johnson's post-arrest, post-Miranda-warnings silence. Under Greer, the prosecutor's question did not violate due process. On that understanding, we affirm.
On June 26, 1998, as part of a joint investigation conducted by the Drug Enforcement Agency ("DEA") and the Pennsylvania State Troopers into crack cocaine dealing in Lackawanna County, Pennsylvania, an undercover trooper and a confidential informant visited the residence of Sandra Osborne, a suspected crack user and seller, to make a purchase. After the confidential informant introduced Osborne to the trooper, Osborne and the trooper drove away in the trooper's unmarked vehicle, and the informant stayed at Osborne's residence to babysit her young child. Following unsuccessful searches for crack cocaine at a residence and mall in Scranton, Osborne met two men, who were later identified as Johnson and Jamahl Simmons, on the street near the mall. Osborne and the two men got into the trooper's vehicle.
At Osborne's request, the undercover trooper drove them to a nearby strip club. On the way, the trooper saw and heard Johnson counting out fourteen bags of crack cocaine. When Osborne complained that the rocks of crack were too small, Johnson replied that "these are the biggest [expletive] rocks in Scranton." Johnson then handed the fourteen bags to Osborne in exchange for $200 in cash that the trooper gave her earlier. Osborne took four of the bags and gave the other ten to the trooper. The trooper's ten bags were later found to contain .81 gram of crack cocaine. Upon arriving at the strip club, Johnson gave his pager number to the trooper and Osborne. Johnson told the trooper he wanted to give him a "deal" for $300 in cash. Johnson and Simmons then left the vehicle, and the trooper drove Osborne back to her home.
After Johnson and Simmons exited the vehicle, a DEA agent approached them on the street and identified himself as a law enforcement officer. Johnson and Simmons attempted to flee. As they ran, Johnson threw money and a cigarette pack on the ground, and Simmons threw a bag on the ground. The money was later determined to contain identifiable bills used to purchase the crack cocaine, and the cigarette pack was found to contain .35 gram of cocaine and 1.69 grams of marijuana. The bag that Simmons threw on the ground contained 1.76 grams of crack cocaine, 2.19 grams of cocaine, and 2.93 grams of marijuana. DEA agents quickly caught Johnson and Simmons and arrested them. A search of Johnson's person incident to the arrest uncovered nineteen ziplock bags containing 1.96 grams of crack cocaine. Johnson falsely identified himself as "Gexex Johnson" to the agents, and later to probation officers and the District Court.
On June 30, 1998, a federal grand jury indicted Johnson and Simmons for conspiracy to distribute and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846, and also indicted Johnson for possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). On July 14, 1998, Johnson was released on his own recognizance. He signed "Gexex Johnson" on his conditions of release form. On March 10, 1999, Johnson was scheduled to appear before the District Court to enter a guilty plea. When he failed to appear, the Court issued a warrant for the arrest of "Gexex Johnson."
On May 27, 1999, United States Marshals went to a residence in Edwardsville, Pennsylvania, upon receiving information that Johnson was there. When the marshals arrived, they saw Johnson entering a taxi outside the residence. A woman later identified as Jozette Sey was sitting in the back seat. The marshals approached the taxi with their guns drawn and ordered Johnson and Sey to show their hands and exit the vehicle. Sey immediately raised her hands, but Johnson, despite being ordered four or five times by the marshals to display his hands, did not comply. Instead, he turned his back to the marshals and appeared to move his hand either inside his jacket or toward the back seat cushions. Eventually, Johnson displayed his hands, but still failed to raise them. A marshal opened the taxi door and ordered Johnson to come out, but he refused. The marshals then physically removed him from the taxi, restrained him on the ground, and handcuffed him. They told Johnson that he was being arrested pursuant to a warrant for the arrest of "Gexex Johnson." Johnson told the marshals they had the wrong man. Knowing that "Gexex Johnson's" left foot was partially amputated, the marshals removed Johnson's left shoe and confirmed his identity.
Johnson was taken to the Edwardsville Police Department, where officers found sixty-two small plastic bags containing 5.7 grams of crack cocaine in his coat pocket. At the scene of the arrest, marshals discovered fifteen small, yellow plastic bags containing marijuana in the back seat cushions of the taxi. A marshal asked Sey if the marijuana was hers, and she said no. The marshals determined that Sey lived in the residence and asked her whether Johnson left any belongings there. Sey said Johnson left two bags, and let the marshals search her residence to retrieve them. The marshals found the bags on the floor of a bedroom. One bag contained men's clothing. The other contained a loaded .32 caliber revolver, hundreds of empty small plastic bags matching the drug-laden bags found in the back seat of the taxi and in Johnson's coat pocket, approximately twenty-five small bags containing marijuana, approximately forty-five small bags containing crack cocaine, six small bags containing cocaine, three plastic bags containing three "cutting" agents (procaine, lidocaine, and niacinamide), a sifter, a mini-scale capable of ascertaining weight by grams or ounces, and about three hundred dollars in cash. The bag also contained a number of documents, including rap lyrics that Johnson admitted he wrote, and on which a fingerprint of his right index finger was found, a Western Union receipt listing Johnson as the sender and listing the sender's address as his mother's home (where Johnson was supposed to be residing while on pretrial release), credit card applications in various names, and an identification card for "Erica Gray."1
On August 10, 1999, a federal grand jury returned a five-count superseding indictment. Count I, which arose from the events of June 26, 1998, charged Johnson with possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). Counts II through V arose from the events of May 27, 1999. Counts II through IV charged Johnson with possessing crack cocaine, cocaine, and marijuana with intent to distribute in violation of § 841(a)(1). Count V charged Johnson with possessing a firearm in furtherance of a drug trafficking felony in violation of 18 U.S.C. § 924(c).
Johnson's trial on Count I began on February 15, 2000. He admitted selling crack cocaine to Osborne, but claimed she entrapped him. He said he sold her crack only because she was "extremely persistent" in attempting to buy the drug from him.2 On February 17, 2000, the jury found Johnson guilty of violating § 841(a)(1). On July 14, 2000, the District Court sentenced him to fifty-one months in prison.
Johnson's trial on Counts II through V began on September 5, 2000. During the trial, Count V, the § 924(c) count, was dismissed...
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