U.S. v. Johnson

Decision Date18 September 2009
Docket NumberNo. 08-1662.,08-1662.
Citation581 F.3d 320
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Earl JOHNSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Before NORRIS and COLE, Circuit Judges; ADAMS, District Judge.*

OPINION

COLE, Circuit Judge.

Defendant-Appellant Earl Johnson appeals his conviction by a jury of bank robbery and conspiracy to commit bank robbery in violation of 18 U.S.C. § § 371 and 2113(a) and (e) and premeditated murder in violation of 18 U.S.C. § 924(j). Johnson seeks reversal of his conviction, claiming that: (1) the admission of tape-recorded statements by a non-testifying co-defendant violated the Confrontation Clause; (2) his counsel provided ineffective assistance by failing to prevent the admission of these statements; (3) the prosecution committed misconduct; and (4) the district court improperly admitted hearsay. For the following reasons, we AFFIRM.

I. BACKGROUND
A. Factual background

At approximately 3:50 a.m. on December 14, 2001, several hooded males wearing black clothing and masks robbed an armored truck that was delivering cash to the Dearborn Federal Credit Union ("DFCU") in Dearborn, Michigan. As two guards were replenishing the automated teller machines ("ATMs") in the bank's parking lot and foyer, the robbers approached and began firing shots. One of the guards was killed, and the robbers left with $204,000 in cash and the deceased guard's .38 caliber revolver.

The DFCU robbery remained unsolved for several years, but in August of 2004, the Detroit office of the Federal Bureau of Investigation ("FBI") received a letter from Baron Nix-Bey, an inmate at the Ryan Correctional Facility of the Michigan Department of Corrections. The letter stated that Timothy O'Reilly, another inmate whom Nix-Bey had assisted with "legal work," had been bragging about participating in the DFCU robbery. FBI Agent Barry Higginbotham contacted Nix-Bey and asked him to take notes on his conversations with O'Reilly. Agent Higginbotham testified that he told Nix-Bey to be a good, active listener.

In October or November of 2004, Agent Higginbotham asked Nix-Bey if he would be willing to use a recording device in his conversations with O'Reilly. Higginbotham explained at trial that he "thought that would serve as the best evidence in later on criminal proceedings against Mr. O'Reilly and others, if we were successful in determining they had committed these crimes that they were bragging about doing." (Record on Appeal ("ROA") Vol. 4 at 139.) Nix-Bey agreed. When Nix-Bey was later moved to the Macomb Correctional Facility, the FBI arranged for O'Reilly to be transferred there as well, and the two men were placed in the same cell.

On December 14, 2004, using a recording device disguised as a radio, Nix-Bey recorded a conversation with O'Reilly in the yard of the Macomb prison in which he asked O'Reilly for details about the DFCU robbery. O'Reilly provided extensive information, including the full names of the other participants in the crime. Using this information, Higginbotham contacted and obtained the cooperation of two of the other DFCU robbers, Johnson's co-defendants Khayyam Wilson and Henry Matthews. Through them, he confirmed O'Reilly's statements about the crime and learned more about the roles of the participants. Wilson and Matthews informed Higginbotham that Johnson had recruited them to participate. Johnson was arrested in December of 2004.

B. Procedural background

A grand jury returned a second superseding indictment of Johnson and five others: O'Reilly, Wilson, Kevin Watson, Norman Duncan, and Archie Broom. Matthews was charged separately with one count of conspiracy to defraud the United States. The indictment charged Johnson with three counts: (1) conspiracy to commit bank robbery in violation of 18 U.S.C. §§ 371 and 2113(a); (2) bank robbery in violation of 18 U.S.C. § 2113(a) and (e); and (3) premeditated murder with a firearm in violation of 18 U.S.C. § 924(j). Johnson's case was severed, and he was tried first.

Johnson's trial lasted eight days. Wilson and Matthews, who pleaded guilty, testified that Johnson had surveilled the DFCU prior to the robbery, participated in the robbery, and allowed the group to return to his house to divide the cash and listen to a police scanner for reports about the robbery. Matthews also testified that he, Johnson, Wilson, O'Reilly, and Duncan each received about $30,000 in cash from the robbery. Nix-Bey testified in detail about what O'Reilly had told him, and the district court admitted the tape-recording of their conversation into evidence over Johnson's objection. The jury found Johnson guilty of all three counts, and the district court sentenced him to sixty months of imprisonment on Count 1 and life imprisonment on Counts 2 and 3, all to be served concurrently. Johnson now appeals his conviction.

II. ANALYSIS
A. The tape-recording was properly admitted

Prior to trial, Johnson moved to exclude the tape-recording, arguing that its admission would violate the Confrontation Clause, that O'Reilly's statements were not sufficiently against his penal interest to be admissible under Federal Rule of Evidence 804(b)(3), and that the statements were more prejudicial than probative in violation of Federal Rule of Evidence 403. The district court denied the motion, holding that the Confrontation Clause was not implicated because the statements were not testimonial and that the statements were admissible under Rule 804(b)(3).

1. The content of the tape-recorded statements

On the recording, O'Reilly speaks at length about the robbery, naming each of his five co-defendants and identifying Watson as the killer of the armed guard. He states that it was Johnson's idea to rob the ATMs, which were near the headquarters of Ford Motor Company, because Johnson (a Ford employee) thought the ATMs would contain large amounts of cash shortly after Ford issued certain profit-sharing checks to its employees. O'Reilly states that Johnson surveilled the DFCU prior to the robbery and recruited two of his Ford co-workers to participate. O'Reilly also refers to Johnson as "expendable" and a "dumb-ass" because Johnson underestimated the number of guards who would be in the armored truck and the amount of money that would be in the ATMs.

2. O'Reilly's statements were not testimonial

The Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." We review de novo claims that the admission of evidence violated the Confrontation Clause. See United States v. Mayberry, 540 F.3d 506, 515 (6th Cir.2008).

In determining whether statements are testimonial, we ask whether the declarant "intend[ed] to bear testimony against the accused." United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004). This, in turn, depends on "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Id. Because O'Reilly did not know that his statements were being recorded and because it is clear that he did not anticipate them being used in a criminal proceeding against Johnson, they are not testimonial, and the Confrontation Clause does not apply. See United States v. Johnson, 440 F.3d 832, 843 (6th Cir.2006) (holding that an unwitting declarant's secretly recorded statements to a close friend were nontestimonial); see also United States v. Mooneyham, 473 F.3d 280, 286-87 (6th Cir.2007) (stating that co-defendant's out-of-court statements to an undercover officer whose status was unknown to the declarant were nontestimonial); United States v. Watson, 525 F.3d 583, 589 (7th Cir.2008) ("[A] statement unwittingly made to a confidential informant and recorded by the government is not `testimonial' for Confrontation Clause purposes."); United States v. Hendricks, 395 F.3d 173, 182 n. 9, 184 (3d Cir.2005) (same); United States v. Saget, 377 F.3d 223, 229 (2d Cir.2004) (same). Johnson argues that our inquiry into whether the statements are testimonial should focus on Nix-Bey and the FBI's encouragement of his questioning, but our precedent makes clear that the intent of O'Reilly, the declarant, determines whether the statements on the tape-recording are testimonial.

Although Crawford clarified the requirements of the Confrontation Clause with respect to testimonial statements, it left open the question of whether nontestimonial statements continued to be governed by the test set forth in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). See United States v. Arnold, 486 F.3d 177, 192-93 (6th Cir.2007) (en banc). Roberts held that statements by an unavailable declarant were nonetheless admissible under the Confrontation Clause if they either fell into a firmly rooted hearsay exception or bore "particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66, 100 S.Ct. 2531. In the recent cases of Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) and Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007), the Supreme Court answered this question and explained that the Confrontation Clause has no bearing on nontestimonial out-of-court statements. Thus, R...

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