U.S. v. Johnson

• Decision Date: 26 May 1993
• Docket Number: D,No. 948,948
• Citation: 994 F.2d 980
• Parties: UNITED STATES of America, Appellee, v. D.K. JOHNSON, Defendant-Appellant. ocket 92-1494.
• Court: U.S. Court of Appeals — Second Circuit

Page 980

994 F.2d 980

UNITED STATES of America, Appellee, v. D.K. JOHNSON, Defendant-Appellant.

No. 948, Docket 92-1494.

United States Court of Appeals Second Circuit.

Argued Feb. 18, 1993.

Decided May 26, 1993.

Jeremy Gutman, New York City, for defendant-appellant.

Peter A. Norling, Leslie R. Caldwell, Asst. U.S. Attys., Eastern District of New York (Mary Jo White, U.S. Atty., E.D. of N.Y., of counsel), for appellee.

Before: OAKES, ALTIMARI, and MAHONEY, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant D.K. Johnson appeals from a judgment entered on August 7, 1992 after a jury trial in the United States District Court for the Eastern District of New York (Raggi, J.), convicting him of attempted murder, assault with intent to commit murder, and assault causing serious bodily injury. All of these acts occurred within the special maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. §§ 1113, 113(a), 113(f) (1988). Johnson was also convicted of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (1988). Johnson was sentenced principally to concurrent terms of five years' imprisonment on the attempted murder and assault counts, to be followed by a consecutive term of five years' imprisonment on the weapons conviction.

Johnson appeals on four grounds. First, he argues that the district court lacked subject matter jurisdiction over his case, since the Brooklyn Navy Yard, where Johnson's offense took place, was not within the jurisdiction of the United States. Second, Johnson contends that the district court erred in admitting audio tapes under the independent source exception. Third, he asserts that the district court failed to instruct the jury properly on his theory of defense that he was in a dissociative state when he committed his offenses. Lastly, he challenges a two-level enhancement of his sentence by the district For the following reasons, we affirm the judgment of the district court.

court based on the court's finding that he had perjured himself during trial.

BACKGROUND

D.K. Johnson was a civilian employee of the United States Navy from 1982 to November 1989. He had previously been a lieutenant in the Army, and had served two tours of duty in Vietnam. Johnson worked as a manager of an officers' club and fast food service at the Brooklyn Navy Yard ("the Navy Yard"), under the supervision of Floyd Dennis Roberts.

Roberts and Johnson had a history of personal and professional conflicts, problems which led Johnson to file numerous complaints against Roberts. To obtain evidence to support his grievances against Roberts, Johnson began wearing a miniature tape recorder under his shirt. Using this recorder, Johnson taped many conversations between himself and others, as well as statements made by him alone.

As the problems with Roberts continued to grow, and the resultant pressures at work began to escalate, Johnson became increasingly distressed. On November 2, 1989, Johnson accosted Roberts in Roberts's office while wielding a sawed-off shotgun. There was a scuffle and a chase, resulting in Johnson shooting and severely wounding Roberts. Johnson also shot Naval officer Carl Peach, who tried to intervene on Roberts's behalf. The entire episode took place inside a building at the Brooklyn Navy Yard, which at the time housed the command and other offices of the Navy's New York area operations.

Following the shooting, federal officers arrested Johnson, seized his shotgun, and searched his pockets. In his pockets were the tape recorder, a microphone, and several of Johnson's audio cassette tapes. Agents for the Naval Investigative Service ("NIS") then obtained search warrants for Johnson's quarters and van signed by a Navy captain. After executing the warrants, the agents seized more audio tapes made by Johnson.

Prior to trial, Johnson moved to suppress the evidence taken from his quarters and van pursuant to the command-issued search warrants. The United States District Court for the Eastern District of New York (Raggi, J.) granted the motion, finding that the search warrants were unsupported by probable cause and were unduly broad. Johnson also moved to suppress the tapes seized from his pockets incident to arrest. Those tapes had remained unplayed for almost six months, when federal agents listened to them without obtaining a warrant authorizing their review. On the tapes, Johnson could be heard making various comments about his co-workers and about himself that reflected his state of mind prior to the shooting. In his suppression motion, Johnson argued that, although the initial seizure of the tapes was lawful, NIS agents had unlawfully "searched" the tapes by listening to them six months later without a warrant. The district court expressed concern that the review of the tapes might not be allowed as incident to arrest, prompting the government to apply for a warrant to review the tapes.

The government introduced an affidavit of the supervising NIS agent, Kenneth P. Rodgers, who stated that there was independent probable cause for searching the tapes apart from the fact that the agents had already listened to them and knew what they contained: namely, that two of the tapes were labelled with the names of people to whom Johnson had complained about Roberts, and witnesses had heard Johnson talk about taping conversations due to his problems with Roberts. Upon reviewing the affidavit and accompanying documents, the district court denied Johnson's suppression motion and issued the search warrant under the "independent source" exception to the Fourth Amendment. The court ruled that the affidavit established probable cause independent of what had been gleaned from the prior listening to the tapes, and that the prior review had not been the basis for the warrant application.

At trial, Johnson's defense was based on the theory that at the time of the attack he was in a "dissociative state" that led him to believe that he was in a Vietnam firefight. Johnson's counsel argued that this dissociative state vitiated the mens rea requirement Johnson's testimony was supported by the testimony of a psychiatrist, who attested that Johnson had been suffering a dissociative disorder when he attacked Roberts. The psychiatrist analogized the disorder to sleepwalking, and stated that Johnson could not have been responsible for his actions.

                of intent for the offenses with which Johnson was charged.   To support the argument, Johnson testified about his Vietnam experience at length.   Specifically, he recounted an episode involving a murdered soldier who had died in his presence.   He then told about how his problems with Roberts had caused him to lose sleep and become distraught.   He testified that when he approached Roberts, things "went hazy" and he saw "a scene in Vietnam" involving a battle
                

The government countered Johnson's case with testimony from a Vietnam veteran who disputed Johnson's recollections about the injured soldier, stating that Johnson had never been in the dying man's presence. Furthermore, evidence indicated that Johnson's only involvement with the soldier was transporting evidence of the soldier's murder to a lab. The government also introduced expert testimony from a psychiatrist who opined that Johnson was malingering and not suffering from a dissociative state the day of the attack.

The jury found Johnson guilty of attempted murder, assault with intent to commit murder, and assault causing serious bodily injury, all within the special maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. §§ 1113, 113(a), 113(f) (1988). Johnson was also convicted of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (1988). The district court sentenced Johnson to concurrent terms of five years' imprisonment on the attempted murder and assault counts, to be followed by a consecutive term of five years' imprisonment on the weapons count. The sentence was enhanced by two levels pursuant to U.S.S.G. § 3C1.1 for what the district court found was Johnson's perjurious testimony regarding his Vietnam experience with the murdered soldier.

Following trial, the government received additional information regarding the jurisdictional status of the Brooklyn Naval Yard. This information was disclosed to the court and to Johnson, who subsequently moved to dismiss the indictment for lack of subject matter jurisdiction. Johnson asserted that the federal government had never obtained jurisdiction over the relevant part of the Navy Yard because it had failed to file a formal notice of its acceptance of legislative authority in accordance with 40 U.S.C. § 255 (1988). Moreover, Johnson claimed that any jurisdiction obtained reverted to the state by operation of law in 1966, when the Navy ceased traditional ship-building and repair work at the yard. Johnson argued that the termination of traditional navy yard functions had violated conditions placed on the cession by the state.

The district court held a post-trial hearing on the issue and elicited the following relevant facts. In 1941, the United States acquired title to parcel "M-494," the parcel of land on which Johnson's attack on Roberts took place, for the purpose of expanding the Navy Yard. At the time M-494 was acquired, New York State had already transferred exclusive jurisdiction over all other areas of the then-existing Navy Yard to the federal government.

On February 16, 1944, the Acting Secretary of the Navy formally requested cession of exclusive jurisdiction over M-494. The application was made pursuant to New York State law, and included documents required by state law for cession of exclusive jurisdiction. See N.Y. State Law § 52 (McKinney 1984). On May 10, 1944, the governor of New York executed a deed ceding exclusive jurisdiction to the federal government for M-494. This was also accomplished...