U.S. v. Johnson

• Citation: 519 F.3d 478
• Decision Date: 11 March 2008
• Docket Number: No. 06-3167.,06-3167.
• Parties: UNITED STATES of America, Appellee v. Abdul C. JOHNSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

519 F.3d 478

UNITED STATES of America, Appellee v. Abdul C. JOHNSON, Appellant.

No. 06-3167.

United States Court of Appeals, District of Columbia Circuit.

Argued December 11, 2007.

Decided March 11, 2008.

Appeal from the United States District Court for the District of Columbia, (No. 03cr00211-01).

Jenifer Wicks argued the cause and filed the briefs for appellant.

John P. Mannarino, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S. Attorney.

Before SENTELLE, Chief Judge, GARLAND, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Defendant Abdul Johnson appeals from his conviction on firearms and narcotics charges. He contends that the gun and drug evidence that the government used against him was the fruit of an unlawful detention, that the improper admission of a previous firearms conviction prejudiced the outcome of his trial, that the government did not introduce sufficient evidence to prove that the cocaine base the police seized from him was crack cocaine, and that the district court erred in not granting a new trial on the grounds of newly discovered evidence and nondisclosure of Brady material. We reject Johnson's challenges and affirm the judgment of the district court.

I

On May 20, 2003, a grand jury charged Johnson with four illegal acts: (1) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); (2) possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii); (3) using, carrying, and possessing a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1); and (4) simple possession of marijuana, in violation of 21 U.S.C. § 844(a). In the fall of 2003, the district court held a hearing on Johnson's motion to suppress evidence arising out of the stop that led to his arrest. At the hearing, the government introduced the testimony of Metropolitan Police Department (MPD) Officer Jason Pearce, who stated as follows.

On April 9, 2003, Pearce and Officer Steven Franchak, Investigator Steven Manley, and Detective David Dessin were patrolling a high-crime area in Northeast Washington, D.C., in an unmarked Jeep. An undercover officer patrolling in the same area radioed to inform them that a blue Buick was "driving crazy" and was heading toward 2nd and Bryant streets. Shortly thereafter, the officers saw defendant Johnson pull up in the Buick, double-park, get out of the car while leaving it idling, and approach an unoccupied green Chrysler that was parked on the other side of the street.

As the officers pulled up in their Jeep, they saw Johnson get into the Chrysler's driver's seat, lean over, and begin examining something in the vicinity of the passenger's seat, with six inches of his arm extended underneath the dashboard. When the officers got out of their car, Johnson looked up and noticed them. His eyes then "widen[ed] and his mouth kind of f[ell] half open and he start[ed] fumbling with the driver's side door." Mot. Hr'g Tr. 15 (Oct. 16, 2003). He "looked very shocked and ... it took him several spastic actions to get the door open and he darted up out of the car." Id. at 55. Pearce then directed Johnson to sit back down in the car. As he did so, Johnson began reaching quickly around his waist area. Concerned, Pearce asked him to step out of the car, and when he did, Pearce smelled alcohol on his breath. Johnson then reached toward his waistband again, and Pearce directed him to put his hands on top of the car. Johnson, who seemed unsteady on his feet, complied. Pearce then saw a plastic cup of reddish amber liquid on the passenger side of the Chrysler. At almost the same time, Pearce heard Investigator Manley say that he could see an open container of alcohol inside the blue Buick.

Pearce handcuffed Johnson and informed him that he was being arrested for "POCA" (possession of an open container of alcohol in an automobile). When Pearce asked Johnson to turn around, Johnson pressed his right side against the car. Manley then approached to assist Pearce; after a short struggle, Manley lifted Johnson's shirt, revealing a semiautomatic handgun in his waistband. Franchak ran over to grab the gun, and Johnson exclaimed: "Yeah, I carry a gun. I got shot in my neck. They killed my man. You guys never found who did that. I'll carry a gun for the rest of my life." Id. at 21.

Officer Pearce searched Johnson and found two ziplocks of a "green plantlike substance" in his breast pocket. Pearce also recovered $1883 in cash from Johnson's pockets and several ziplocks containing "white chunks of rocklike substance" from the Chrysler's glove compartment. When Pearce called to another officer that he had found some "crazy candy" in the car, Johnson immediately yelled out: "Crack, I know we didn't find any crack in my car. I know we didn't find any crack in my car. I bought that car from my dad three years ago. There's no crack in that car." Id. at 22-24.

Because a crowd had started to gather, the officers decided to remove Johnson from the scene in their Jeep. At one point, Johnson complained that the handcuffs were too tight, and Manley, who was sitting next to him, shifted their position. During the ride to MPD's major narcotics branch, Johnson "start[ed] moving and talking and [was] animated." Id. at 26. When they arrived at the branch, the officers removed Johnson from the Jeep and discovered four ziplocks containing a white, rock-like substance and one ziplock containing a green, plant-like substance in the seatbelt reservoir where he had been sitting. Franchak then searched the area behind Johnson's seat and recovered 15 more bags filled with a white, rock-like substance and one more bag filled with a green, plant-like substance. The ziplock bags containing the white substance later field-tested positive for cocaine, and those containing the green substance tested positive for THC, the active ingredient in marijuana.

On the second day of the suppression hearing, the defense introduced the testimony of Nancy Jones, a resident of the area where Johnson was arrested. Jones stated that Johnson was a friend of her niece and that she had known him for seven or eight years. She testified that, on April 9, 2003, she saw him driving his blue Buick. The police then "came up with their guns drawn on both sides and made him get out of his car." Mot. Hr'g Tr. 82 (Nov. 10, 2003). "They took him over directly across the street on another car and ... his pants had fell down and they were searching him." Id. Jones told one of the officers, "you all don't have to do him that rough." Id.

After listening to the testimony of both Pearce and Jones, the district court credited Pearce. The court concluded that neither the stop nor the search violated the Fourth Amendment, and it denied Johnson's motion to suppress evidence. Id. at 107.

At Johnson's trial, which began on April 23, 2004, the government offered testimony from Pearce, Manley, Franchak, and Dessin that was in accord with Pearce's testimony at the suppression hearing. Pearce also testified that the substance he found in the glove compartment was "crack cocaine." Trial Tr. 75 (Apr. 26, 2004). Pearce, Manley, and Franchak testified that they saw a total of 19 ziplocks of a rock-like substance and two ziplocks of a weed-like substance in the Jeep after Johnson had been removed. The jury also heard from a narcotics expert, Detective Tyrone Thomas, who stated that the white, rock-like substance recovered in this case was street-level crack cocaine and that it had a total street value of $6660.

In addition to this testimony, the parties stipulated that a DEA chemist had determined that the controlled substances seized on April 9, 2003 were cocaine base and marijuana. The chemist analyzed 5.8 grams of cocaine base (from the three ziplocks seized from the Chrysler's glove compartment), 7.9 grams of cocaine base (from the four ziplocks seized from the Jeep's seatbelt reservoir), 34.1 grams of cocaine base (from the 15 ziplocks seized from the area of the Jeep behind Johnson's seat), and 5.73 grams of marijuana. The parties further stipulated that Johnson had previously been convicted of a crime punishable by more than one year's imprisonment and that the seized handgun was operable and had an interstate nexus.

The government also introduced testimony, from MPD fingerprint examiner Diane Downing, that Johnson's fingerprint was on the magazine of the gun taken from his waistband. Finally, pursuant to a pretrial ruling by the court, the parties stipulated that "on August 25, 1997, the defendant Abdul Johnson was convicted of carrying a pistol without a license and possession of cocaine in the Superior Court of the District of Columbia," and that Johnson had also been convicted of possession with intent to distribute cocaine in 1992. Trial Tr. 4-5 (Apr. 27, 2004).

Johnson did not testify or call any witnesses. On April 28, 2004, the jury convicted him on all counts. Thereafter, the district court denied his motion for a new trial and sentenced him to 136 months' imprisonment. Johnson timely appealed and now raises four challenges to his conviction.

II

Johnson's first contention is that the district court erred in denying his motion to suppress the gun and drug evidence because the stop that led to his arrest violated the Fourth Amendment. The stop in question began with Officer Pearce's direction to Johnson to "sit back down" as he tried to dart out of the Chrysler. Mot. Hr'g Tr. 16 (Oct. 16, 2003). Johnson does not separately challenge the searches that yielded the gun and drugs; he contends only that these items were the unlawful fruits of a stop that was unreasonable under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Appellant...