US v. Johnson, 98-3111

• Decision Date: 14 November 2000
• Docket Number: No. 98-3111,98-3111
• Citation: 231 F.3d 43,343 U.S.App. D.C. 409
• Parties: (D.C. Cir. 2000) UNITED STATES OF AMERICA, APPELLEE v. SPENCER L. JOHNSON, APPELLANT
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 43

231 F.3d 43 (D.C. Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE v. SPENCER L. JOHNSON, APPELLANT

No. 98-3111

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2000.

Decided November 14, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia. (No. 98cr00062-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender.

Valinda Jones, Assistant United States Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, United States Attorney, John R. Fisher and Darrell C. Valdez, Assistant United States Attorneys.

Before: EDWARDS, Chief Judge, GINSBURG and TATEL, Circuit Judges.

Opinion for the Court filed by Chief Judge EDWARDS.

EDWARDS, Chief Judge:

A jury convicted Spencer L. Johnson of possession with intent to distribute over 50 grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) & (b)(1)(A)(iii) (1994), and simple possession of marijuana, in violation of 21 U.S.C. 844(a) (1994). Judge Harold H. Greene sentenced Johnson to 121 months in prison and five years of supervised release on count one, and concurrent terms of 12 months in prison and one year of supervised release on count two.

Johnson appeals and requests a new trial. He asserts that the prosecutor substantially prejudiced the verdict by arguing to the jurors that their function included protecting the community from drugs. Defense counsel raised a timely objection to the prosecutor's comments at trial. Johnson is correct that the prosecutor's comments were error. However, the error was harmless. The improper comments did not substantially or injuriously affect the determination of the jury's verdict. As a result, we affirm the judgment.

In the alternative, Johnson argues that this court should remand the case for resentencing. Johnson has not been provided with a transcript of his sentencing proceedings in violation of the Court Reporter Act, 28 U.S.C. 753(b) (1994). The Miller Reporting Company lost the stenomask tape and any transcript that might have been prepared. Johnson asserts that without resentencing there can be no meaningful review. The Government argues that the likelihood of a lower sentence is small, but concedes that it is not out of the realm of possibility.

This case presents a highly unusual circumstance. Ordinarily, if a sentencing record is lost, the judge who sentenced the defendant makes definitive findings as to the content of the sentencing proceedings pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure. In this case, however, the judge who sentenced Johnson became seriously ill before the record could be reconstructed. The judge who succeeded the original trial judge issued an order stating that the record could not be reconstructed. Given what is known here about the sentencing proceedings before the original trial judge, it is possible that Johnson was entitled to a lesser sentence. In light of these unusual circumstances, and to ensure that all appropriate possibilities are considered, we remand the case for resentencing.

I. BACKGROUND

A. Trial

On February 24, 1998, a federal grand jury indicted Johnson for possession with intent to distribute over 50 grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) & (b)(1)(A)(iii), and simple possession of marijuana, in violation of 21 U.S.C. 844(a). Johnson's first trial ended in a mistrial when certain jurors became unavailable entering the fourth day of deliberations. During Johnson's second trial, the Government presented the testimony of five police officers involved in appellant's arrest: Investigator Tommy Miller, Sergeant Curt Sloan, and Officers John Branch, Devinci Wooden, and Andre Wright. The Government also presented the testimony of a chemist and a police detective with expertise in narcotics. The defense presented the testimony of Johnson, and Johnson's friend, Larry Holmes, who witnessed the arrest.

The officers testified to the following. On February 6, 1998, they were patrolling the neighborhood surrounding Clifton Street, N.W., Washington D.C. Around 5:00 p.m., Officer Tommy Miller, sitting with his partner in a police car, noticed a broken light on Johnson's car. They radioed the other officers that they were going to make a traffic stop. See Trial Transcript ("Tr.") 6/17/98 at 17. When they reached Johnson, he had driven around the corner, parked his car, and started walking towards an alley. See id. at 18-19.

Officer Branch pursued Johnson through the alley. Officer Branch wore a black police raid jacket with "Police" written on front. He wore a badge at his waistband and a gun on his hip. Officer Branch did not identify himself, but believed Johnson realized he was a police officer. See id. at 83-84. In the alley, Sergeant Sloan saw Johnson use a hook-shot twice to toss objects onto the roof. See Tr. 6/18/98 at 57. Officers Wooden and Wright saw Johnson throw two objects onto the roof. See id. at 95-96; Tr. 6/19/98 at 12. Officer Branch saw one of Johnson's throws. See Tr. 6/17/98 at 49-50. After the police reached Johnson, Officer Miller heard Johnson say he ran because he did not have his driver's license. See id. at 27. Officer Branch recovered two plastic bags from the roof containing 64 grams of cocaine. See id. at 51. A police detective with expertise in narcotics testified that this was more than an individual would normally possess for personal use. See Tr. 6/19/98 at 69. The officers also found a bag in Johnson's coat containing 26.5 grams of marijuana. See Tr. 6/17/98 at 62-63; Tr. 6/19/98 at 47.

Johnson's story was quite different from the testimony of the officers. He testified that on February 6, 1998, he parked near his former home on Chapin Street. See Tr. 6/19/98 at 105, 108-09. As he walked away from his car, a man jumped out of another car and chased him. Because his brother had been killed recently in crossfire in a drive-by shooting in the same area, Johnson feared for his life and ran instinctively. See id. at 106. He did not know the man chasing him was a police officer. See id. at 106-07. After he was stopped by the police in the alley, an officer told him the police were going to say he threw illegal drugs onto the roof. See id. at 118. Johnson testified that he could not have made a hookshot motion because of an injury to his right shoulder. See id. at 104. He testified that he did not possess any drugs. See id. at 112. Larry Holmes testified that he saw Johnson run down an alley before being stopped by police. He did not see Johnson throw anything. See id. at 86.

B. Prosecutor's Statement

In his rebuttal argument to the jury, the prosecutor stated:

You heard in his closing defense counsel make a lot about truth and justice and the Pledge of Allegiance. Well, ladies and gentlemen, justice does not have one eye; it's got two eyes. Justice protects not only the person who is accused, but it also protects persons like those individuals who--those 400-plus individuals that the crack cocaine were intended for. That is another person justice is intended to serve.

Tr. 6/22/98 at 48. Defense counsel requested curative instructions. Initially, Judge Greene did not remember the statement. After being reminded of the comment by both defense counsel and the prosecutor, Judge Greene denied the request explaining:

I don't think that is improper. It is a little of pressure on the jury, which is probably what Mr. Jones objected to, but I don't think it is improper enough that I should now tell the jury to forget about that. That is what you want me to do, right? That is reserved for a future time, for the third and fourth and fifth time.

Id. at 71. The jury subsequently returned guilty verdicts on all charges.

C. Sentencing

Judge Greene sentenced Johnson to 121 months in prison and five years of supervised release on count one, and concurrent terms of 12 months in prison and one year of supervised release on count two. Unfortunately, the official court reporter, Miller Reporting Company, lost the stenomask tape of the sentencing proceedings, so no transcript of the proceedings could be prepared. Subsequently, Johnson, pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure, served a statement of proceedings on the Government in which Johnson, his trial attorney, and his mother, attempted to reconstruct the sentencing proceedings. In response, the Government elected not to contest or supplement Johnson's statement.

Ordinarily the judge who presides at sentencing makes definitive findings regarding the content of the sentencing proceedings. Judge Greene, however, as a result of serious illness, was not available. In his absence, Chief Judge Norma Holloway Johnson entered an order finding that complete reconstruction and settlement of the sentencing record was not possible. See United States v. Johnson, Crim. No. 98-062, Order (D.D.C. Dec. 23, 1999) ("Order"), reprinted in Appellant's Appendix ("Appellant's App.") at 40.

II. Analysis

A. Prosecutor's Statement

Johnson raised a timely objection to the prosecutor's rebuttal argument to the jury; therefore, we review the contested remarks for harmless error. See United States v. Saro, 306 U.S. App. D.C. 277, 24 F.3d 283, 287 (D.C. Cir. 1994). In any invocation of the harmless error standard, the Government carries the burden of proof; and the measure of "harm" under the standard is whether the error had substantial and injurious effect or influence in determining the jury's verdict, not merely whether the record evidence is sufficient absent the error to warrant a verdict of guilt. See United States v. Smart, 321 U.S. App. D.C. 216, 98 F.3d 1379, 1390 (D.C. Cir. 1996).

In assessing claims of prosecutorial misstatements, the court is required to determine whether the disputed remarks constituted error and whether they...