U.S. v. Johnson, No. 96-4313

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: Before MURNAGHAN, Circuit Judge, and BUTZNER and PHILLIPS; MURNAGHAN
• Citation: 114 F.3d 435
• Parties: 47 Fed. R. Evid. Serv. 153 UNITED STATES of America, Plaintiff-Appellee, v. James Larry JOHNSON, Defendant-Appellant.
• Docket Number: No. 96-4313
• Decision Date: 22 May 1997

Page 435

114 F.3d 435 47 Fed. R. Evid. Serv. 153 UNITED STATES of America, Plaintiff-Appellee,
v.
James Larry JOHNSON, Defendant-Appellant. No. 96-4313. United States Court of Appeals,
Fourth Circuit. Argued April 11, 1997.
Decided May 22, 1997.

Page 436

ARGUED: Eric A. Bach, Charlotte, NC, for Appellant. David Culver Keesler, Assistant United States Attorney, Charlotte, NC, for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, Charlotte, NC, for Appellee.

Before MURNAGHAN, Circuit Judge, and BUTZNER and PHILLIPS, Senior Circuit Judges.

Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Senior Judge BUTZNER and Senior Judge PHILLIPS joined.

OPINION

MURNAGHAN, Circuit Judge:

In the instant case, James Larry Johnson, challenges his conviction in the district court. On appeal, Johnson asserts that the district court erred in denying his motion to suppress the evidence found in his automobile and the

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in-court identification of Johnson by his codefendant Bobby Lee Campbell. Johnson also assigns error to the district court's failure to allow his counsel to withdraw, the district court's admission of his Georgia prison identification card, and the district court's designation of Johnson as a career offender pursuant to U.S.S.G. § 4B1.1.

I.

FACTS AND PROCEDURAL HISTORY

On January 15, 1995, Johnson and his co-defendant, Bobby Lee Campbell, met at a hotel in Charlotte, North Carolina to discuss robbing a bank. On January 17, 1995, at about 10:35 a.m., Johnson and Campbell entered the Centura Bank in Charlotte, North Carolina. Once inside, Johnson pointed his gun at bank employees, and Campbell, carrying a canvas bag, jumped over the teller counter.

Charlotte-Mecklenburg Police Officer Joey Hovis, who was working as an off-duty security officer at the bank, drew his weapon, pointed it at Johnson, and told Johnson to drop his gun. Hovis also commanded Campbell to get on the floor and to drop his weapon. While continuing to point his gun at Officer Hovis, Johnson slowly backed out of the bank and fled the scene. Campbell remained in the bank's lobby, and Officer Hovis placed him under arrest. After his arrest, Campbell provided the police with a detailed statement about the robbery, and testified at Johnson's trial.

A. Automobile Search

On the evening of January 20, 1995, Deputy Ronald Poole of the Cabarrus County Sheriff's Department received a radio call concerning a suspicious black male possibly with a gun at the local Food Lion grocery store. Soon thereafter, Deputy Poole arrived at the Food Lion store, where he observed persons pointing toward the corner of the building. Deputy John Wilson and Deputy Paul Harris, who were eating at a deli, also received the radio call, and proceeded to the Food Lion. As Wilson and Harris arrived they observed a vehicle pull around the corner of the building and proceed to the back of the shopping center.

Thereafter, Wilson and Harris activated their blue lights and followed the vehicle. Deputy Poole pulled his vehicle behind Wilson and Harris' car. Because the car did not stop immediately, Deputy Wilson employed the loudspeaker to order the car to stop. Johnson exited his vehicle. Deputy Poole ran a license check and determined that Johnson's license had been revoked in both Georgia and North Carolina. Deputies Wilson and Harris conducted a patdown of Johnson, but no weapon or contraband was found. The deputies then asked Johnson if they could search his car. He consented.

Deputy Wilson began the search of the passenger compartment of Johnson's car. Sometime during the search, Johnson stated "wait a minute", and the deputies stopped their search. During the search, Deputy Poole informed Deputies Wilson and Harris about Johnson's revoked license, and Johnson was placed under arrest. Instead of taking Johnson's car to the impound lot, the car was pulled around to the front of the shopping center and locked. After Johnson was removed from the scene, Deputy Wilson again searched Johnson's car and found a loaded handgun under the seat. Based upon Deputy Wilson's discovery, Deputy Poole also charged Johnson with carrying a concealed weapon.

B. Identification

On January 23, 1995, six days after the bank robbery, Johnson's co-defendant, Campbell appeared in federal court. FBI Special Agent Mark Rozzi was also present. On behalf of Campbell, his attorney Douglas Hill, informed Agent Rozzi that his client was willing to assist the government in its investigation. Agent Rozzi then presented Campbell with a single photograph of Johnson, and Campbell identified Johnson as the man who had robbed the bank with him. On the back of the photograph, Campbell wrote "[t]his is the guy that robbed the Centura Bank at 2600 [Sharon] Road West with me, Bobby Lee Campbell."

Prior to Campbell's identification of Johnson in court, Agent Rozzi met with Campbell

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after his arrest on the day of the robbery. During that time, Agent Rozzi requested that Campbell describe the person who robbed the bank with him. Campbell stated that he only knew the person as Rico, and that Rico was approximately 32 years old, six feet two inches tall, that he had a box haircut, weighed approximately 225 pounds, was dark complected and had a gold front tooth.

C. Withdrawal of Counsel

On June 6, 1995, Johnson mailed a letter to the clerk of the district court requesting a new attorney because he did not feel his present attorney, Eric Bach, was adequately preparing his case. For some unknown reason, the clerk's office never forwarded the letter to the district judge assigned to the case, the Assistant United States Attorney (AUSA) or Mr. Bach.

On July 18, 1995, Johnson asked Mr. Bach to withdraw, and on the next day, Mr. Bach filed a motion to withdraw. On July 20, 1996, the district court held a hearing on Bach's motion. After hearing from all sides, the district court determined the Johnson had not been prejudiced by any of his attorney's actions, and declined to grant Mr. Bach's motion to withdraw. The district court, however, noted that he would revisit the issue if the case was not reached because of unseen delay.

D. Evidence Offered at Trial

At trial, having pled to bank robbery charges, Campbell testified against Johnson. Campbell explained that he knew Johnson as Rico, and he spent time with Johnson at the Villager Lodge in Charlotte, North Carolina, and on Craighead Avenue. During his testimony, Campbell testified that as the two were planning the robbery, Johnson stated that he "had done some time in Georgia." After Campbell's statement, the district judge gave a limiting instruction that the testimony concerning Johnson's incarceration in Georgia was being admitted for the purposes of identification only. Campbell was also asked to identify the person that robbed the bank with him, and over the objection of defense counsel, Campbell identified Johnson.

The government also called Special FBI Agent Richard Womble who testified that he and other law enforcement officers arrested Johnson on bank robbery charges at the Continental Inn in Charlotte. The agents searched Johnson's hotel room and his vehicle. During the search, the agents recovered a Georgia prison identification card bearing the name James Johnson. Over defense counsel's objection, the district court admitted the identification card. Again, the district court gave a limiting instruction concerning the limited admissibility of the evidence. The handgun recovered from Johnson's car by Deputy Wilson was also admitted.

E. Sentencing

Following Johnson's conviction, the probation officer prepared a Presentence Report (PSR). Based upon Johnson's prior convictions in North Carolina state court for felony breaking and entering, assault on a female, and assault by pointing a gun, ¹ the PSR recommended that Johnson be sentenced as a career offender under U.S.S.G. § 4B1.1. Johnson objected to the use of the assault on a female conviction charge.

In 1994, North Carolina reduced the statutory maximum for assault on a female from two years to 120-150 days. Johnson contended that the conviction could not be used for the career offender calculation because the crime was no longer a felony. The probation office recommended no changes. The district court accepted the PSR recommendations, and sentenced Johnson as a career offender.

On February 15, 1995, a federal grand jury indictment had charged Johnson and Campbell, with conspiracy to commit bank robbery under 18 U.S.C. § 371 (Count One); bank robbery under 18 U.S.C. § 2113(a) (Count Two); use and carrying a firearm during a crime of violence under 18 U.S.C. § 924

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(Count Three); armed bank robbery under 18 U.S.C. § 2113(d) (Count Four); and possession of a firearm by a convicted felon under 18 U.S.C. § 922(g) (Count Five).

Johnson filed motions to suppress the gun recovered from his automobile and Campbell's identification of him. The magistrate judge recommended both motions be denied, and the district court acting on that recommendation denied the motions.

On July 24, 1995, Johnson's case proceeded to trial. ² The jury returned guilty verdicts on Counts, One, Two, Three, and Four. On April 1, 1996, the district court sentenced Johnson to 322 months of imprisonment, to be followed by five years of supervised release. Johnson filed his notice of appeal on April 9, 1996.

II.

DISCUSSION

Johnson raises five challenges on appeal: (1) the gun recovered from his automobile should have been suppressed; (2) Campbell's in-court identification should have been suppressed; (3) the district court erred in denying Johnson's counsel's motion to withdraw; (4) the district court erred in admitting into evidence Johnson's Georgia prison identification card; and (5) the district court improperly sentenced Johnson as a career offender. We address each issue in seriatim.

A. Suppression of Gun Found in Johnson's Car

In reviewing a denial of a...