United States v. Johnson

• Decision Date: 23 January 2018
• Docket Number: No. 16-60574,16-60574
• Citation: 880 F.3d 226
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Lindsey JOHNSON, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

880 F.3d 226

UNITED STATES of America, Plaintiff–Appellee

v.Lindsey JOHNSON, Defendant–Appellant

No. 16-60574

United States Court of Appeals, Fifth Circuit.

FILED January 23, 2018

Gregory Layne Kennedy, Esq., Assistant U.S. Attorney, Abe McGlothin, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Mississippi, Jackson, MS, Gaines H. Cleveland, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Mississippi, Gulfport, MS, for Plaintiff–Appellee.

Michael L. Scott, Esq., Thomas Creagher Turner, Jr., Esq., Federal Public Defender's Office, Southern District of Mississippi, Jackson, MS, for Defendant–Appellant.

Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

In this appeal, Defendant Lindsey Johnson raises several challenges to his conviction and sentence for carjacking and two related firearm offenses. We affirm in full but remand for the district court to correct a clerical error in its judgment.

I.

On the afternoon of August 2, 2015, Johnson encountered Jeremy McNeal at an apartment complex in Jackson, Mississippi. The two men’s accounts of what happened next differ greatly, but it is undisputed that Johnson left the complex at the wheel of McNeal’s Lexus. Police soon spotted the car and, acting on a report that the vehicle had been stolen, began a pursuit. After a brief chase, Johnson surrendered and was arrested. A search of the Lexus yielded two firearms: a silver Rossi revolver under the driver’s seat and a black .40 caliber Smith & Wesson handgun under the passenger’s seat. Police also found a small quantity of marijuana. A drug-detecting K-9 unit was subsequently called to the scene and uncovered a larger quantity of marijuana in a hidden compartment under the car’s gearshift. Johnson was ultimately charged in a three-count indictment with: carjacking under 18 U.S.C. § 2119 (Count 1); being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 2); and brandishing a firearm in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3).

At trial, the Government presented the case as a straightforward carjacking. The Government’s principal witness was McNeal, who testified that he was talking to a friend named Jaron Thompson when Johnson walked up to McNeal’s Lexus, pulled out a handgun, and ordered McNeal to exit the car. McNeal complied, and Johnson left in the Lexus. The Government also called two other eyewitnesses, Thompson and Jamia Harney. Thompson stated that he was walking away from McNeal when he turned around to see Johnson standing near McNeal’s car. Johnson showed McNeal a small bag of marijuana, then pulled out a revolver and told McNeal to "get out of the car" and "give me everything you got." When McNeal exited the Lexus, Johnson got in and sped out of the apartment complex. Harney, a resident of the apartment complex, testified that she saw a young man pointing a silver gun at a car. The person in the car got out and ran off, and the man holding the gun pulled away in the vehicle.

The defense portrayed the incident as a drug deal gone bad. Johnson testified that he was visiting the apartment complex in order to obtain information about an assault he had suffered the previous night. Johnson and McNeal discussed the assault, after which Johnson sought to purchase drugs from McNeal. McNeal told Johnson to get into the Lexus. When Johnson did so, McNeal told him to put whatever money he wanted to spend in the center armrest. Johnson opened the armrest and saw a silver revolver, which McNeal then attempted to grab. Johnson pushed McNeal’s hand away, causing McNeal to drop the gun. McNeal said something like "I’m going to get you" and exited the Lexus, and Johnson immediately departed in the vehicle.

The jury convicted Johnson on all three counts, and the district court sentenced him to 180 months in prison and three years of supervised release.

II.

On cross-examination by the defense, McNeal denied ever owning a gun. Defense counsel then showed McNeal printouts of several posts from McNeal’s Facebook page. One post featured a photograph of a handgun on a nightstand near a large stack of cash; McNeal stated that he did not know who owned the gun in the picture. Other posts featured photos of McNeal and a young child holding large sums of cash, and one post appears to show marijuana. Upon further questioning, McNeal admitted that he only earned $250 a week from his employment but denied selling drugs. Defense counsel then sought to introduce the Facebook posts into evidence, arguing that they went to McNeal’s credibility. The district court, however, sustained the Government’s objection and denied admission of the posts. Johnson challenges that ruling.

We review a district court’s evidentiary rulings for abuse of discretion. United States v. Tuma , 738 F.3d 681, 687 (5th Cir. 2013) ; United States v. Lowery , 135 F.3d 957, 959 (5th Cir. 1998). "[A]ny error made in excluding evidence is subject to the harmless error doctrine and does not necessitate reversal unless it affected the defendant’s substantial rights." Tuma , 738 F.3d at 687–88 (internal quotation marks and citation omitted); accord Lowery , 135 F.3d at 959. "In assessing any error, we must consider the other evidence in the case and determine whether the improperly excluded evidence, if admitted, would have had a substantial impact on the jury’s verdict." Tuma , 738 F.3d at 688 (internal quotation marks and citation omitted).

We conclude that even if the district court erred by excluding McNeal’s Facebook posts, Johnson has failed to show that that error " ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ " Lowery , 135 F.3d at 959 (quoting Kotteakos v. United States , 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ). None of the posts directly contradicted any of McNeal’s testimony at trial. The photo of the firearm on the nightstand does not establish that McNeal ever owned a gun, nor do the photos of cash and marijuana show that McNeal was a drug dealer. The photos may have indirectly supported some aspects of Johnson’s testimony and diminished McNeal’s credibility to some extent. But when viewed in light of the evidence as a whole—especially Thompson and Harney’s independent eyewitness testimony and the undisputed facts surrounding Johnson’s arrest—we cannot conclude that admission of the Facebook posts would have had a "substantial impact" on the jury’s ultimate verdict.

III.

Subject to certain limitations not relevant to this case, 18 U.S.C. § 922(g)(1) prohibits any person who has been convicted of "a crime punishable by imprisonment for a term exceeding one year" from possessing "any firearm." To obtain a conviction under this provision, the Government must prove beyond a reasonable doubt "that the defendant previously had been convicted of a felony." United States v. Guidry , 406 F.3d 314, 318 (5th Cir. 2005) (citing United States v. Daugherty , 264 F.3d 513, 515 (5th Cir. 2001) ).

In connection with the Count 2 charge, Johnson and the Government agreed to a stipulation stating that Johnson "had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year, that is, a felony offense, on or before August 2, 2015." That stipulation was read to the jury and entered into evidence as an exhibit. Despite that stipulation, however, the Government opened its cross-examination of Johnson as follows:

Q: Mr. Johnson, you’ve been convicted of three prior felonies, have you not?

A: Yes, sir.

Q: Name them.

A: Two—

Defense counsel then objected. Citing the stipulation and the Supreme Court’s ruling in Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), the defense asked the district court to declare a mistrial. The court refused to do so but admonished the Government (outside of the jury’s presence) that if it "elicit[ed] anything else about the nature of these convictions," particularly the fact that they were for carjacking offenses, a mistrial would indeed result.

In general, "a defendant who takes the stand to testify in his own defense may be impeached by proof of prior felony convictions." United States v. Bray , 445 F.2d 178, 181 (5th Cir. 1971). In Old Chief , however, the Supreme Court held that when a defendant charged with violating § 922(g)(1) offers to concede the fact of a prior conviction and the "name or nature of the prior offense raises the risk of a verdict tainted by improper considerations," a court may not admit the full record of the prior judgment if the purpose of doing so "is solely to prove the element of prior conviction." 519 U.S. at 174, 117 S.Ct. 644. Johnson maintains that the Government’s questioning in the present case violated Old Chief and therefore mandated a mistrial. However, unlike Old Chief , the Government in this case only elicited testimony about the number of Johnson’s prior convictions. Due to defense counsel’s timely objection, the Government failed to elicit any information regarding the "name or nature" of Johnson’s prior convictions. Old Chief is therefore inapposite.

Johnson further contends that the Government’s reference to Johnson’s "three prior felonies" constitutes an improper prejudicial remark amounting to prosecutorial misconduct.

We apply a two-step analysis to claims of prosecutorial misconduct: First, we assess whether the prosecutor made an improper remark. If so, we determine whether the defendant was prejudiced—a "high bar." United States v. Davis, 609 F.3d 663, 677 (5th Cir. 2010) (internal quotation marks omitted). The prejudice prong turns on whether the prosecutor’s remarks "cast serious doubt on the correctness of the jury’s verdict." Id. (internal quotation marks omitted). We look to three factors in deciding whether the improper remarks "cast serious doubt": "(1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of

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