U.S. v. Johnson

• Decision Date: 04 November 2004
• Docket Number: No. 03-4066.,03-4066.
• Citation: 388 F.3d 96
• Parties: UNITED STATES of America v. Stanley JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

388 F.3d 96

UNITED STATES of America v. Stanley JOHNSON, Appellant.

No. 03-4066.

United States Court of Appeals, Third Circuit.

Argued September 23, 2004.

Filed November 4, 2004.

Appeal from the United States District Court for the Eastern District of Pennsylvania, Petrese B. Tucker, J Patrick L. Meehan, United States Attorney, Laurie Magid, Deputy United States Attorney for Policy and Appeals, Robert A. Zauzmer, Assistant United States Attorney, Senior Appellate Counsel, Curtis R. Douglas (argued), Assistant United States Attorney, Philadelphia, PA, for Appellee.

Elizabeth K. Ainslie, Anne E. Kane (argued), Schnader Harrison Segal & Lewis LLP, Philadelphia, PA, for Appellant.

Before McKEE, ALDISERT and GREENBERG, Circuit Judges.

GREENBERG, Circuit Judge.

I. FACTUAL AND PROCEDURAL HISTORY

This matter comes on before this court on Stanley Johnson's appeal from a judgment of conviction and sentence entered in this criminal case on October 27, 2003. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.¹

The background of the case is as follows. On May 2, 2000, a grand jury returned a three-count indictment against Johnson charging him with conspiracy to commit carjacking, in violation of 18 U.S.C. § 371, carjacking, in violation of 18 U.S.C. § 2119, and using and carrying a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1). The indictment named Willie Ingram and Anthony Milton as co-conspirators. In particular, it charged that on July 2, 1998, Johnson, Ingram and Milton approached Donald Foster and Sonia Smith-Burgest as they exited Smith-Burgest's 1995 Chevy Blazer and that the three co-conspirators forced Smith-Burgest to remove her jewelry and then stole the vehicle.² The indictment alleges that all three men were armed and that Johnson acted as a lookout.

At the outset of the trial, Johnson's attorney sought to prevent the government from introducing evidence related to Johnson's 1995 conviction for theft for impeachment purposes pursuant to 18 Pa. Cons.Stat. Ann. § 3921 (West 1983).³ The government argued on alternative grounds that the evidence of the prior conviction could be used for impeachment purposes under Federal Rule of Evidence 609. First, it maintained that the evidence was admissible pursuant to Rule 609(a)(1) as a crime punishable by imprisonment in excess of one year and whose probative value outweighed its prejudicial effect on Johnson. Second, the government asserted that the evidence of the prior conviction was admissible as a crime involving dishonesty or false statement pursuant to Rule 609(a)(2).

After hearing argument, the district court found that the evidence was admissible under Rule 609(a)(2) stating:

I think that if you take something with the intent to benefit yourself and you know you're not entitled to it, that is a sufficient element of dishonesty to bring it within the rule. And it is my opinion that it would be appropriate to cross examine Mr. Johnson as to the theft.

AP at 34.⁴ In view of that ruling the court did not consider whether the evidence was admissible under Rule 609(a)(1).

At the trial, Smith-Burgest positively identified Johnson and testified that he stood off to the side during the carjacking and never said anything and that she did not see any gun in his hand. Foster also testified, but was able to identify only Ingram as one of the carjackers, as he did not get a good look at the faces of the other two perpetrators. He indicated, however, that Smith-Burgest did get a good look at them. Foster explained that he could not identify the man who ordered Smith-Burgest to remove her jewelry, but that he was "the short guy." AP at 127. He further testified that the two taller men, Ingram and another individual, pointed guns at him. Of the three men, Ingram and Johnson were significantly taller than Milton. Both Ingram and Milton pled guilty to carjacking and, pursuant to plea agreements, testified against Johnson. Ingram and Milton testified that Johnson was armed at the time of the carjacking and that he participated in the crime.

Johnson testified in his own defense. He said that on the evening of July 2, 1998, he had gone out around midnight to try to buy some marijuana for personal use and that while he was on the street he saw Milton and Ingram. According to Johnson, Ingram was holding a gun and asked him to "watch for cops." AP at 155. Johnson explained at trial that Ingram had a bad reputation in the neighborhood and had "shot at people." Id. He testified that he acted as a lookout during the robbery and carjacking because he was afraid that Ingram might shoot him if he did not participate. Johnson testified that, after the completion of the robbery, Ingram yelled at him to get into the stolen car and that he did so. Johnson testified that he did not have a weapon during the carjacking. On cross-examination, the prosecutor questioned Johnson regarding his 1995 theft conviction for purposes of impeachment.

The district court gave the following instruction to the jury regarding Johnson's theft conviction:

The testimony of a witness may be discredited or impeached by evidence showing that the witness has been convicted of a felony, a crime for which a person may receive a prison sentence of more than one year.⁵ Prior conviction of a crime that is a felony is one of the circumstances which you may consider in determining the credibility of that witness.

It is the sole and exclusive right of you, the jury, to determine the weight to be given to any prior conviction as impeachment and the weight to be given to the testimony of anyone who has previously been convicted of a felony.

You have heard that the defendant Stanley Johnson was convicted of a crime. You may consider that evidence as [sic] deciding, as you do with any other evidence, how much weight to give the defendant's testimony. This earlier conviction was brought to your attention only as one way of helping you decide how believable his testimony was. You must not use his prior conviction as proof of the crimes charged in this case or for any other purpose. It is not evidence that he is guilty of the crimes that he is on trial for in this case.

AP at 251-52. The jury found Johnson guilty on all three counts. The district court subsequently sentenced him to concurrent terms of 100 months in prison to be followed by three years of supervised release. He timely appealed his conviction.⁶

II. DISCUSSION

Johnson maintains that the district court erred in allowing the government to impeach his testimony with his 1995 theft conviction. He argues that the theft conviction was not admissible under Rule 609(a)(2) because it is not a crime that "involved dishonesty or false statement." Johnson further contends that the admission of his theft conviction was reversible rather than harmless error and therefore we must reverse his convictions on all three counts.⁷

The government concedes that the district court erred in allowing it to impeach Johnson as to his prior theft conviction as a crime involving dishonesty or false statement under Rule 609(a)(2). Appellee's br. at 12. It maintains, however, as it did in the district court, that the conviction was admissible under Rule 609(a)(1) as a crime punishable by imprisonment in excess of one year whose probative value outweighed its prejudicial effect on Johnson. The government recognizes that the district court "did not explicitly address" this argument, yet it contends that "the court arguably did address the argument, when it stated: `And it is my opinion that it would be appropriate to cross examine Mr. Johnson as to the theft.'" Appellee's br. at 16. The government then argues that given the absence of explicit findings we may conduct a plenary review and, under that standard of review, we should find that the probative value of the theft conviction outweighed its prejudicial impact on Johnson. The government contends that, in any event, even if evidence of the conviction for theft should not have been admitted the error was harmless.

We review a district court's decision to admit evidence for abuse of discretion but we exercise plenary review over a district court's construction of the Federal Rules of Evidence. United States v. Brown, 254 F.3d 454, 458 (3d Cir.2001). Rule 609 provides, in relevant part:

(a) General rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

As we have indicated, the government now concedes that the district court erred in admitting the prior conviction as impeachment evidence under Rule 609(a)(2). Appellee's br. at 11; see Cree v. Hatcher, 969 F.2d 34, 37 (3d Cir.1992) ("Because the district court lacks discretion to engage in balancing, Rule 609(a)(2) must be interpreted narrowly to apply only to those crimes that, in the words of the Conference Committee, bear on a witness's propensity to testify truthfully."); Gov't of V.I. v. Toto, 529 F.2d 278, 280 (3d Cir.1976) ("[A] witness may be impeached by evidence of a prior conviction only if the conviction is for a felony or for a misdemeanor in the nature of crimen falsi."). But as we also have indicated, the government maintains that the evidence was admissible under Rule 609(a)(1) and that, in the alternative, we should find that any error in admitting...