United States v. Johnson

• Decision Date: 03 March 2021
• Docket Number: No. 19-30921,19-30921
• Citation: 990 F.3d 392
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. David Ray JOHNSON ; Lakendria Nicole Goings, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

990 F.3d 392

UNITED STATES of America, Plaintiff—Appellee,

v.David Ray JOHNSON ; Lakendria Nicole Goings, Defendants—Appellants.

No. 19-30921

United States Court of Appeals, Fifth Circuit.

FILED March 3, 2021

Carol Mignonne Griffing, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA, for Plaintiff-Appellee.

Christopher Albert Aberle, Mandeville, LA, for Defendant-Appellant David Ray Johnson.

Elizabeth Cary Dougherty, Esq., Dougherty Law Firm, L.L.C., Baton Rouge, LA, for Defendant-Appellant Lakendria Nicole Goings.

Before Dennis, Higginson, and Willett, Circuit Judges.

James L. Dennis, Circuit Judge:

David Ray Johnson and Lakendria Nicole Goings were charged with the armed robbery of two banks and one credit union and with related firearms offenses. After a four-day jury trial, they were found guilty on all counts. Johnson was sentenced to 498 months and Goings to 339 months. On appeal, Johnson challenges the sufficiency of the evidence supporting his conviction for brandishing a firearm during the armed robbery of the credit union, as well as the sufficiency of the evidence supporting his two convictions for being a felon in possession of a firearm. He also challenges the district court's application of a sentencing enhancement. Goings challenges the sufficiency of the evidence supporting her convictions for armed robbery of the credit union and for brandishing a firearm during that robbery, and also argues that the district court's answer to a jury note violated her due process rights. For the following reasons, we reject all five challenges and AFFIRM both Johnson's and Goings's convictions and sentences.

I. Factual and procedural background

On November 10, 2017, Johnson and Goings robbed the Guaranty Bank & Trust in Epps, Louisiana.¹ The sole teller on duty buzzed Goings into the small bank lobby while waiting on another customer.

Goings pointed a gun at the clerk, gave her a bag and ordered her to fill it with money, and told her to buzz Johnson, who also had a gun, into the bank. The pair fled with $17,307. Police recovered a cotton glove and a handgun along their escape route, and Johnson's DNA was later found on the glove. The robbery was captured on security camera footage and audio was picked up on the bank's ATM machine.

On November 27, 2017, the pair robbed the Barksdale Federal Credit Union (FCU) in Cotton Valley, Louisiana. This robbery was also captured on security camera footage. Goings, unarmed, entered the credit union first, went to the teller window with a bag, and yelled at teller Dodie Carter to fill the bag. Johnson, armed with a handgun, tried to enter supervisor Sharon Hedrick's office, but Hedrick had closed and locked her door after hearing shouting in the lobby. Johnson then went toward the teller station and pointed his gun at Carter. After Carter emptied her cash drawer, Goings told her to move to the adjacent teller window to empty a second cash drawer. Johnson and Goings fled with $12,756. Coin rolls with account numbers and customer names from the credit union were later found in Goings's SUV.

On December 18, 2017, the pair robbed the Winnsboro Bank in Gilbert, Louisiana. Goings was armed with a handgun and Johnson with a rifle. They fled in Goings's Toyota SUV with $28,447. Corporal Daniel Raley of the Franklin Parish Sheriff's Office was alerted of the robbery by radio, saw the SUV driving erratically, and gave chase. During the chase, Johnson aimed, but did not fire, an AR-15 assault rifle at Raley out of the driver side window of the SUV. Johnson then pulled the rifle back into the SUV and fired a handgun at Raley out of the same window, but did not hit him. The Toyota eventually crashed, and Johnson emerged from the driver side armed with a handgun that became stuck in the door frame and fell on the ground. Goings was in the passenger seat.

In June 2019, Johnson and Goings were each charged in a nine-count superseding indictment. Both were charged with three counts of armed robbery in violation of 18 U.S.C. § 2113(a), (d) & § 2 and three counts of using, brandishing, or discharging a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii), (iii) & § 2. Johnson was also charged with two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Johnson and Goings were also charged with one count of firearm conspiracy in violation of 18 U.S.C. § 924(c), (o) ; this count was quashed prior to trial.

At trial, both Carter and Hedrick—the Barksdale FCU employees—testified they did not see Johnson with a gun during the robbery, and that they only realized Johnson had a gun upon viewing security camera footage after the incident. Carter, the teller, testified that she was so focused on Goings that she did not see Johnson at all. Security camera footage taken from a vantage point behind the teller windows appeared to show the following: When Johnson abruptly entered the line of vision of the teller window and pointed his gun at Carter, she took a quick step or two backwards and raised her hands briefly, before she rushed over to the adjacent teller window where Goings had moved with the bag in order to get Carter to empty the second cash drawer. The Government introduced this video at trial and also introduced as an exhibit a "freeze frame" capturing Carter with her hands raised and Johnson pointing a gun at her. There is no sound on this video.

At trial, the Government also introduced the following documents relevant to Johnson's prior criminal history: (1) a North Carolina state court criminal judgment showing that Johnson pleaded guilty in 2012 to three counts of felony financial card theft and was sentenced to a suspended term of imprisonment ranging from 6 to 17 months; (2) additional state court documents that indicated in 2013 he violated the terms of his supervised probation, his probation was revoked, and he was ordered to serve his sentence; and (3) North Carolina state probation paperwork, which included an acknowledgement form, signed by Johnson, stating that he was not allowed to possess a firearm under state law because he was a convicted felon.

Both defendants moved for judgment of acquittal on all counts at the close of the Government's case and again at the close of evidence. The motions were denied.

During deliberations, the jury sent the district court a note that read:

- We would like to see Epps ATM audio of Going's [sic] voice during robbery.

- Also we would like to see Johnson's cellphone video where he is bragging and talking about not getting caught & going to jail. Going's [sic] voice is in this video.

- Also need to see body cam video at the end when Going's [sic] mentions calling to get a ride for her kids.

These audio and video clips previously had been played for the jury without objection.

Because of technology constraints, the jury had to be brought into the courtroom to review the requested exhibits. Out of the presence of the jury, Goings objected to the second item on the list, asserting that no one had identified her as the speaker. The court responded that it planned to grant the jury's request. Goings's counsel replied, "I'm just afraid that ... if we play it without some caveat, it's almost endorsing their statement that it is her voice." The court overruled the objection, reiterating that it would play the exhibit and let the jury decide if the voice belonged to Goings. Goings also objected to playing the first item, on the grounds that "it appears that the jury is wanting to conduct its own testing by comparing voices" between that item and the other two. That objection was also overruled. After the jury returned to the courtroom, the district court informed the jurors that "[w]e're going to play for you the information you requested." The exhibits were then played for the jury.

The jury convicted both Johnson and Goings on all counts. Johnson's Presentence Report (PSR) recommend a six-level increase to his base offense level for the Winnsboro/Gilbert armed robbery under United States Sentencing Guideline (U.S.S.G.) § 3A1.2(c)(1) for assaulting a police officer because he fired a handgun at Corporal Raley's car while fleeing. Johnson objected that (1) he did not shoot at the police and (2) the same conduct was used to apply a two-level reckless flight enhancement under § 3C1.2. The objections were overruled and both adjustments were applied.

The district court sentenced Johnson to 498 months total imprisonment: 210 months for each of the three armed robbery convictions, to run concurrently, and 120 months for each of the two felon-in-possession convictions, also to run concurrently with the armed robbery sentences, followed by an 84-month consecutive sentence for brandishing during the first robbery, an 84-month consecutive sentence for brandishing during the second robbery, and a 120-month consecutive sentence for discharging a firearm during the third robbery. The district court sentenced Goings to 339 months total imprisonment: 87 months for each of the three armed robbery convictions, to run concurrently, followed by three consecutive terms of 84 months for each of her three brandishing convictions.

II. Legal standards

Because Johnson and Goings preserved their sufficiency of the evidence claims by moving for a judgment of acquittal at the close of the Government's case and at the close of the evidence, our review is de novo . See FED. R. CRIM. P. 29(a) ; United States v. Frye , 489 F.3d 201, 207 (5th Cir. 2007). We review the evidence, both direct and circumstantial, as well as all reasonable inferences from that evidence, in the light most favorable to the verdict. United States v. Rose , 587 F.3d 695, 702 (5th Cir. 2009). We will uphold the jury's verdict if a rational trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Jury...