United States v. Johnson
| Citation | 943 F.3d 214 |
| Decision Date | 05 November 2019 |
| Docket Number | No. 17-11452,17-11452 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Laroy Damont JOHNSON, Defendant - Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Leigha Amy Simonton, Emily Baker Falconer, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff - Appellee.
Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant - Appellant.
Laroy Damont Johnson, Pro Se.
Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
A jury convicted Laroy Johnson of illegally possessing drugs and guns. On appeal, Johnson raises several evidentiary issues, including whether incriminating jail phone recordings were improperly authenticated, whether two officers wrongly testified about why drug dealers typically use guns to ply their trade, and whether the prosecutor improperly argued that an officer had no reason to lie on the stand. We affirm.
On April 26, 2016, Irving County narcotics officers broke down the door of Room G1086 at the Budget Suites Hotel to find Laroy Johnson sitting on a couch amidst a cornucopia of drug-dealing paraphernalia. The officers found 20 grams of heroin in the refrigerator (enough for 100-200 street-level "sells"); a heroin-dusted digital scale, a razor blade, and a baggie of Xanax on the table; six cell phones; $5,000 cash (mostly in twenties); several gift cards in various places; and a loaded Glock handgun under the bedroom mattress. They arrested Johnson and a grand jury later indicted him for one count of possessing heroin with intent to distribute, one count of being a felon in possession of a firearm, and one count of possessing a firearm in furtherance of drug trafficking.
While awaiting trial at the Irving County Jail, Johnson made several phone calls to loved ones that the government later introduced at trial. During those calls, Johnson stated that he had previously planned to take a gun to his grandmother's house and that his child's mother had likely informed the police that he was selling drugs at the hotel. He also talked to a woman who had planned to stop by his hotel room on the day he was arrested and told her that police would not have arrested her because "[e]verything in there is mine."
To authenticate the recordings, the government presented two witnesses—James Ryan, a technician employed by Securus Technologies who maintained the jail's phone equipment, and Detective Tim Hilton, a police officer who identified Johnson on the calls. First, Ryan testified that he personally installed the jail's phone system, monitored it, and repaired it when necessary. Ryan also described the automated recording and storage process. The jail assigns inmates an individual pin number they must enter to make a call. When an inmate picks up the phone and enters his pin, the system automatically records his call and digitally stores the call on a secure data server in Atlanta. Specifically, Ryan explained:
[The call] goes through a series of servers that collects the voice, the called party information, and combines that information and then it records it at that data center and then the data center streams it out to the public switch telephone network like AT&T or Southwestern Bell, and then it hits the calling party phone.
Ryan further testified that the system produced accurate recordings because "the voice recording and data stream all with the call information is all recorded at the same time." Second, Detective Hilton searched for Johnson's phone recordings by name and date in the Securus database, burned them to a CD, listened to the calls, and identified Johnson as the speaker. Hilton testified that he could correctly identify Johnson because he had spoken with him in person and because in one of the calls Johnson was identified by name.
At trial, Johnson objected to the admission of the phone recordings, arguing they had not been properly authenticated because the government had not shown the recording equipment was in "good working order and capable of producing an accurate recording" at the precise time the recordings were made. The judge overruled the objection, stating (outside the jury's hearing) that "between [Detective Hilton] and Mr. James Ryan, I think the proper predicate has been established ... as to authenticity."
Detective Hilton and another law enforcement officer, DEA Special Agent James Henderson, testified at trial that drug dealers routinely use guns as part of their operations. When the prosecutor asked Hilton why drug dealers have firearms, Johnson objected (unsuccessfully) on speculation and relevance grounds. Hilton then answered:
Well, the main reason is in the criminal world, drug rip offs are big business for them, so drug dealers know people know they have drugs and they know they have cash. On the other hand, customers need to know that the drug dealers are armed so they don't try and steal from them or try and come back and rob them, so it is something that is common. It is very typical.
Agent Henderson similarly testified:
In my experience, drug traffickers use firearms primarily for protection, protection of their products[,] their drugs or their money, the revenue. And they also use it for intimidation in my experience, that is why they have the firearm.
Johnson did not object to Henderson's statement.
Detective Kyle Fleischer testified at trial that during the hotel room search Johnson admitted he had drugs in the fridge and a gun under the mattress. Fleischer stated that Johnson told him something to the effect that, On cross examination, Johnson questioned Fleischer about why that statement was not in the original police report. Fleischer responded that he had not written the report and that a supplemental police report did include the statement. Johnson pointed out that the supplemental report contained only part of the statement: it described Johnson's admission about the heroin but did not mention the gun. Fleischer replied that this was due to a mistake in communication and the length of time between the incident and when he was asked to review the report. Fleischer also testified that police reports are summaries and not word-for-word transcriptions.
Later, during closing argument, Johnson's attorney suggested that Detective Fleischer had lied about Johnson's hotel room admission. Johnson's attorney stated:
Isn't it interesting that a year-and-a-half later, two weeks before trial, this statement somehow gets reduced to writing and the only thing that is written down is something about drugs. ... You don't write that down. Isn't that convenient? If you come in later on, that is what he said. Did you write it down. No, I didn't write a report. Well, I just kind of do a summary. Give me a break. If he said he killed five people, they would write it down. It is no different. ... They want to say I didn't write it down it is just a summary. They know that is what he said. Gee, that is pretty convenient. ... So I don't think you can give that any weight whatsoever that [Johnson] made that statement ....
The prosecutor retorted during his own closing by pointing to Fleischer's lack of motive to lie:
Ladies and gentlemen, [Johnson's] case is a serious uphill battle in this case. When you come in to court and you have evidence both direct and circumstantial that is overwhelming against your client, what do you do? You say law enforcement could have done more and you call into question their credibility. Think about what he is telling you. Officer Fleischer is not the lead agent on this case. You think this is a huge big case that he is willing to put his career on the line. He is suggesting to you when he came in this court and looked you in the eye and took an oath to tell the truth and completely fabricated a statement.
Johnson did not object.
The jury subsequently convicted Johnson on all three counts, and the district court sentenced him to 96 months imprisonment. Johnson timely appealed his conviction.
On appeal, Johnson contests two of the district court's evidentiary rulings and, further, claims that prosecutorial misconduct requires reversal. Specifically, Johnson contends the court erred in admitting the jail phone recordings, which he claims were not properly authenticated. Johnson also contends the court erred in admitting the officers' testimony about why drug dealers typically carry guns, which Johnson characterizes as prohibited expert mens rea testimony. Finally, Johnson contends the prosecutor's closing argument suggesting that Detective Fleischer had no reason to lie constituted impermissible witness bolstering. We examine each argument in turn.
Johnson first challenges admission of the jail phone recordings, arguing they were not properly authenticated. We review a district court's evidentiary rulings for abuse of discretion subject to harmless error analysis. United States v. Morgan , 505 F.3d 332, 339 (5th Cir. 2007). "For any of the evidentiary rulings to be reversible error, the admission of the evidence in question must have substantially prejudiced the defendant's rights." Id.
Johnson claims the district court abused its discretion in admitting the jail phone recordings because the government failed to show the recording equipment was in "good working order and capable of producing an accurate recording" at the precise time the recordings were made. He further maintains that this error substantially prejudiced him, and that no harmless error exists. In Johnson's view, the government did not meet its burden to show the recordings were properly authenticated because it did not "produce evidence sufficient to support a finding that the item[s] [are] what the proponent claims [they are]." Fed. R. Evid. 901(a).
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