U.S. v. Johnson
| Decision Date | 15 March 2006 |
| Docket Number | No. 04-6161.,No. 04-5146.,No. 04-5110.,04-5110.,04-5146.,04-6161. |
| Citation | 440 F.3d 832 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William Anthony JOHNSON (04-5110/6161) and Christopher L. Stone (04-5146), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Stuart A. Scherer, Smith & Helman, Louisville, Kentucky, for Appellants. Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellee. ON BRIEF: Stuart A. Scherer, John L. Smith, Smith & Helman, Louisville, Kentucky, Patrick J. Bouldin, Western Kentucky Federal Community Defender, Inc., Louisville, Kentucky, for Appellants. Terry M. Cushing, Monica Wheatley, James R. Lesousky, Jr., Assistant United States Attorneys, Louisville, Kentucky, for Appellee.
Before: GILMAN and COOK, Circuit Judges; CARR, Chief District Judge.*
A 10-count indictment charged William Anthony Johnson and Christopher L. Stone, among others, with various violations of federal law, including the Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy to violate RICO, and fraud. Stone was tried before a jury and convicted of violating RICO and of conspiring to violate RICO. He was sentenced to concurrent terms of 240 months' imprisonment on each count and ordered to pay $166,653.07 in restitution. In a separate jury trial, Johnson was tried on and convicted of four charges: RICO, conspiracy to violate RICO, uttering counterfeit obligations, and theft or receipt of stolen mail matter. He then pled guilty to three firearm and ammunition-related counts that had been previously severed from the other counts. The district court sentenced Johnson to life imprisonment for the RICO and RICO-conspiracy counts, 240 months for the uttering-counterfeit-obligations count, and 60 months for the theft-or-receipt-of-stolen-mail-matter count, to be served concurrently. On each of the firearms counts to which he pled guilty, he was sentenced to an additional 30 months of imprisonment, to be served concurrently with each other and with the other sentences. Finally, the district court ordered Johnson to pay $443,633.07 in restitution.
Both Johnson and Stone appeal their convictions on various grounds. Stone also challenges his sentence and restitution order. Johnson, however, did not appeal either his sentence or his restitution order. For the reasons set forth below, we AFFIRM the convictions of Johnson and Stone as well as the order requiring Stone to pay restitution, but VACATE Stone's sentence and REMAND his case for resentencing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Johnson and Stone raise various issues in this appeal. Stone argues that there was insufficient evidence for the jury to find a RICO "enterprise." Both Johnson and Stone claim that there was insufficient evidence that the RICO enterprise was engaged in or affected interstate commerce. Johnson claims that the admission of surreptitious recordings of conversations between Stone and another coconspirator violated Johnson's constitutional right of confrontation and was improper under the Federal Rules of Evidence. Finally, Stone argues that his sentence was invalid because it was based on facts not submitted to the jury, and that an improper amount of restitution was assessed against him.
Only Stone challenges the sufficiency of the evidence of a RICO enterprise. The indictment charged Johnson and Stone with, among other things, being employed by and associated with an enterprise that conducted its affairs through a pattern of racketeering activity. Several individuals were alleged to be involved in the criminal enterprise, including Johnson (whom the government claimed to be the leader), Stone, Curtis Hardin, and Sher Bolter.
Johnson, Stone, and Hardin met approximately five days per week for an hour to an hour and a half per meeting over an extended period of time. Occasionally others would attend these meetings as well. At the meetings, they would discuss the crimes that Johnson wanted the others to commit. This included talk about burning down houses to collect the insurance proceeds. Hardin testified that they discussed criminal schemes "just about everyday." He testified that his relationship with Johnson was for "business," and that the business was "crime." Hardin said the same relationship existed between Stone and Johnson.
The members of the alleged enterprise had different roles. Johnson made requests for certain items — like computers — that others would steal. Johnson was known as the "money man" who paid other members who did the "work" (often Stone and/or Hardin). After several burglaries, the stolen items would be delivered to Johnson's house. Johnson and Bolter would then sell the items. Although Johnson promised to pay them for their services, Stone and Hardin were rarely paid in full.
The government introduced evidence during the two trials to show that the following predicate acts alleged in the indictment were committed by members of the enterprise: nine acts of arson, one act of bank fraud, two acts of mail fraud, one act of tampering with a witness, and one murder. In committing the acts of arson, the general pattern was for Johnson to locate a house, make a down payment to the owner, sign a contract to purchase the property, obtain insurance, and then burn down the house himself or have others burn it down for him.
Both Johnson and Stone challenge the interstate-commerce aspect of their RICO convictions. Although all of the houses that were burned down were located in Kentucky, several of the predicate offenses alleged to have been committed by the RICO enterprise involved interstate transactions and communications. One house that was burned was insured by a contract between Johnson and an insurance company based in Chicago, Illinois. Another house was being sold by an Evansville, Indiana company called UC Lending. Faxes and telephone calls were made between the Indiana offices of UC Lending and Johnson in Kentucky regarding this purchase, and the insurance contract for this house and the associated mailings were between Johnson and a Fairfield, Ohio insurance company. A Columbus, Ohio insurance company insured another of the burned houses and corresponded by mail regarding the policy and loss. Still another house that was burned was insured by a Seattle, Washington insurance company.
In July of 1999, Hardin was arrested for stealing expensive Corvette wheels from coconspirator Sher Bolter's house. Hardin contacted the FBI after he was in prison and made a deal to become a government witness and confidential informant. As a result of this deal, he secretly recorded conversations with Johnson and Stone that ultimately filled 105 audio tapes. The government gave Hardin a recording device, instructed him in its use, and told him the subject matter that they wanted him to record.
In the proceedings against Johnson, the government moved for admission of the statements pursuant to Rule 804(b)(3) of the Federal Rules of Evidence, which is a hearsay exception for "statements against interest." Johnson contested the admission of Stone's statements at several stages of the proceedings. The district court ruled:
Here, after review of the tapes and the record created at co-Defendant Stone's trial, it is apparent that significant and particularized guarantees of reliability exist. Co-Defendant Stone had a long-standing and close association with Hardin. He had no reason to suspect Hardin's complicity with law enforcement officials. He had no reason, in other words, to lie to Hardin or attempt to deceive him about the role that he, or the Defendant [Johnson], played in the various activities alleged in this case. He spoke freely about a large number of subjects, many of which were self-incriminating, and only a few of which dealt with the Defendant's allegedly shared culpability. Given these facts, this Court concludes that there are sufficient and particularized guarantees of trustworthiness in co-Defendant Stone's statements such that they satisfy the tests under the Confrontation Clause and Rule 804(b)(3).
The government was therefore allowed to play substantial portions of the recorded conversations between Hardin and Stone at Johnson's trial.
Stone submitted proposed jury instructions and proposed jury-verdict forms relating to the RICO and RICO-conspiracy counts. The proposed verdict forms included a section where the jury could determine which, if any, of the four predicate acts attributable to Stone were proven beyond a reasonable doubt. Of those four acts, one was a murder, two were arsons, and the last was mail fraud. At Johnson's trial, which took place after Stone's trial, the government requested and the court utilized a similar verdict form that allowed the jury to determine which predicate acts were proven. The government did not make such a request at Stone's trial, however, and the district court denied Stone's proposed verdict forms. Instead, a general verdict form was submitted to the jury that simply asked whether Stone was "Guilty" or "Not Guilty" of the RICO and RICO-conspiracy offenses. The jury found Stone guilty of both, but did not specify which of the predicate acts they found that Stone had committed.
The Presentence Report (PSR) included all four of the predicate acts in its sentencing calculations: "As the jury verdict did not specify which of these underlying acts Mr. Stone was found to have...
To continue reading
Request your trial
-
Thermodyn Corp. v. 3M Co., No. 3:07 CV 2491.
... ... v. Chrysler Motors Co., 575 F.Supp.2d 837, 840 (N.D.Ohio 2008) (quoting Smith v. Howard Johnson, 67 Ohio St.3d 28, 29, 615 N.E.2d 1037 (1993)). "[W]illfulness contemplates not only an intentional commission of the act, but also a wrongful ... ...
-
U.S. v. Atlantic States Cast Iron Pipe Co.
... ... On the other hand, concerns of fairness require us to reject the unbridled but for causation standard that the government propounds. Under it, a court could impose restitution based on the most ... § 2259(b)(1)); ... United States v. Johnson, 816 F.2d 918, 924 (3d Cir.1987) (similar to Coates; bank robbery but restitution governed by VWPA) ... We are aware of only ... ...
-
In re National Century Financial Enterprises, Inc., Case No. 2:03-md-1565.
... ... Rogers, 89 F.3d 1326, 1337 (7th Cir.1996) (citations and quotation marks omitted) (quoted with ... Page 715 ... approval by U.S. v. Johnson, 440 F.3d 832, 840 (6th Cir.2006)) ... The UAT alleges that the enterprise consisted of Lance Poulsen, Donald Ayers, and Rebecca ... ...
-
U.S. v. Arnold
... ... Aarons, 718 F.2d 188, 189 n. 1 (6th Cir.1983) ("Where the sufficiency of the evidence is properly before us, we consider that issue first because it is determinative of whether" the Double Jeopardy Clause prevents "the appellant [from] be[ing] retried.") ... Johnson, 440 F.3d 832, 843-44 (6th Cir.2006); United States v. Franklin, 415 F.3d 537, 546 (6th Cir.2005); United States v. Gibson, 409 F.3d 325, 338 ... ...
-
Racketeer influenced and corrupt organizations.
...that the enterprise affects interstate commerce in order to successfully prosecute a RICO claim). (133.) See United States v. Johnson, 440 F.3d 832, 841 (6th Cir. 2006) (holding that "[o]nly a minimal impact on interstate commerce is necessary to support a RICO conviction" and that "the int......
-
Racketeer influenced and corrupt organizations.
...that the enterprise affects interstate commerce in order to successfully prosecute a RICO claim). (137.) See United States v. Johnson, 440 F.3d 832, 841 (6th Cir. 2006) (holding that "[o]nly a minimal impact on interstate commerce is necessary to support a RICO conviction" and that "the int......
-
Fraud and Misrepresentation
...purposes of subsection 1962(c), 205 but may be the same for purposes 198. Turkette, 452 U.S. at 583; see also United States v. Johnson, 440 F.3d 832, 840 (6th Cir. 2006) (“differentiation among roles can provide the requisite structure to prove the element of enterprise”) (citing United Sta......
-
Racketeer influenced and corrupt organizations.
...that the enterprise affects interstate commerce in order to successfully prosecute a RICO claim). (145.) See United States v. Johnson, 440 F.3d 832, 841 (6th Cir. 2006) (holding that "[o]nly a minimal impact upon interstate commerce is necessary to support a RICO conviction" and that "the i......