USA. v. Johnson
| Citation | 216 F.3d 1162 |
| Decision Date | 14 July 2000 |
| Docket Number | No. 99-3045,99-3045 |
| Parties | (D.C. Cir. 2000) United States of America, Appellee v. Michael Johnson,Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia. No. 91cr00142-01
Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.
Amul R. Thapar, Assistant United States Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown, and Ronald L. Walutes, Assistant U.S. Attorneys.
Before: Sentelle, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
In 1991, defendant Michael Johnson was convicted of violating 18 U.S.C. § 924(c)(1), which imposes a prison term on any person who "uses or carries" a firearm "during and in relation to" a drug trafficking crime.Johnson argues that his conviction must be vacated in light of the Supreme Court's subsequent decision in Bailey v. United States, 516 U.S. 137 (1995), which clarified the meaning of "uses" under that statute. We conclude that the evidence was sufficient to sustain Johnson's conviction, and that the district court's erroneous, pre-Bailey instruction constituted harmless error.
On February 22, 1991, District of Columbia police officers arrived at Johnson's apartment building with a warrant authorizing them to search his apartment for evidence of drug trafficking. As Officer James Flynn approached the door, defendant emerged from his apartment with a .380 semiautomatic pistol in his right hand. Flynn identified himself as a police officer. In response, Johnson raised his gun, pointed it directly at the officer, slowly retreated back into his apartment, and slammed the door.
Within minutes, the police broke down the door to Johnson's apartment. As they entered, they heard someone running through the apartment and then heard loud "crashing sounds." Although the officers did not find Johnson, they did find an air shaft that was accessible through a window in his bathroom. Hanging on a nail in the air shaft was a plastic bag containing several small packets of crack cocaine and a loaded .357 revolver with an obliterated serial number. The officers then detected "something down in the bottom of the shaft moving around," and immediately called for a canine unit. Upon placing the call, the officers began hearing "loud smashing noises coming from the shaft."
A few minutes later, a resident of one of the building's basement apartments informed the police that he had an intruder. The officers entered the man's apartment and found Johnson in a child's bedroom, lying on the child's bed. Defendant was clad only in his underwear. On the bed were the same clothes Johnson had worn when he pointed the gun at Officer Flynn, and in the clothes were over thirty packets of crack cocaine and $700 in cash. The ceiling of the dining room adjacent to the child's bedroom had been "completely smashed out." Officer Flynn testified at trial that "[t]here was plaster all over the floor" of the dining room and "a large hole in the ceiling" leading up into the air shaft. The police found a .380 semiautomatic pistol--the same one Johnson had pointed at Officer Flynn--resting on the lip of the hole in the ceiling.
Johnson was charged with four felonies: possessing with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1); using or carrying a firearm--both the .380 semiautomatic pistol and the .357 revolver--during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); receiving in interstate commerce a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k); and assaulting a police officer with a deadly or dangerous weapon--specifically, the .380 semiautomatic--in violation of D.C. Code § 22-505(b). At trial, Johnson claimed that he had been sleeping in his bed when the police broke down his bedroom door, woke him up, and hit him on the head with a piece of wood. He testified that he did not own any guns, had nothing to do with illegal drugs, and had not known about the air shaft until the trial.
The district court instructed the jury that to establish a violation of 18 U.S.C. § 924(c)(1), the government was required to prove beyond a reasonable doubt: (1) "That the defendant knowingly and intentionally carried or used a firearm"; and (2) "That the defendant did so during and in relation to a drug trafficking crime." Tr. at 342. Consistent with the then-prevailing law of the circuit, the court defined the first element of the offense as follows:
In order to prove the first element of this offense, the government must prove the defendant carried or used a firearm. The government does not have to show that the defendant bore the firearm on his person, or actively employed the firearm in any manner. To satisfy this first element of the offense, it is sufficient if you find that at a given time the defendant had both the power and theintention to exercise dominion and control over the fire-arm .
Id.; see, e.g., United States v. Harrison, 931 F.2d 65, 71 (D.C. Cir. 1991) (). Because Johnson was charged with using or carrying both the semiautomatic and the revolver, the jury instruction did not distinguish between the two weapons.Johnson raised no objection.
On May 31, 1991, Johnson was convicted on all counts. He appealed on a number of grounds, but again did not question the validity of the section 924(c)(1) instruction. This court affirmed the convictions. See United States v. Johnson, No. 91-3227, 1993 WL 390062 (D.C. Cir. Sept. 30, 1993).
Two years later, the Supreme Court held in Bailey v. United States that mere possession is insufficient to establish "use" of a firearm under section 924(c)(1), and that the government must instead prove the defendant's "active employment" of the weapon. 516 U.S. 137, 150 (1995). On April 22, 1996, Johnson filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The district court denied the section 2255 motion, but granted Johnson's request for a certificate of appealability under 28 U.S.C. § 2253(c)(1)(B).
On appeal, Johnson argues that the evidence at his trial was insufficient to support a conviction for violating section 924(c)(1), and that even if the evidence was sufficient, the jury instructions were erroneous under Bailey. We consider each contention below.
Evidence is sufficient to sustain a conviction if, "viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Teffera, 985 F.2d 1082, 1085 (D.C. Cir. 1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).1 The government concedes that, after Bailey, the evidence was insufficient to establish using or carrying with respect to the .357 revolver, which was found in a bag hanging on a nail at the top of the air shaft. See Gov't Opp'n to Mot. to Vacate at 4. Defendant, however, was charged with using or carrying both the revolver and the semiautomatic. See Indictment, Count 2.When a defendant is charged on the basis of multiple acts, a verdict cannot be overturned on the ground that the evidence is insufficient as to one of them. See Griffin v. United States, 502 U.S. 46, 56-57 (1991) () (quoting Turner v. United States, 396 U.S. 398, 420 (1970)).2
Here, there is no question that the evidence was sufficient to support a conviction for using or carrying the .380 semiautomatic, as Officer Flynn testified that Johnson held it in his hand and pointed it at him. See Muscarello v. United States, 524 U.S. 125, 130 (1998) (); Bailey, 516 U.S. at 148 (). Indeed, defendant conceded below that there was sufficient evidence to support his conviction with respect to the semiautomatic. See Def. Supp. to Mot. to Vacate at 4. Accordingly, we reject defendant's sufficiency challenge.3
Defendant also contends, and the government again concedes, that in light of the Supreme Court's subsequent decision in Bailey, the district court erred by conflating the terms "use" and "carry" and instructing the jury that it could convict defendant under section 924(c)(1) if it found he had merely possessed a weapon constructively. See Gov't Br. at 22; see also In re Sealed Case, 153 F.3d 759, 770-72 (D.C. Cir. 1998) (); United States v. Kennedy, 133 F.3d 53, 58 (D.C. Cir. 1998). The remaining question is whether we have authority to correct the error. See United States v. Olano, 507 U.S. 725, 727 (1993); United States v. Perkins, 161 F.3d 66, 71 (D.C. Cir. 1998). "Ordinarily, where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Perkins, 161 F.3d at 71 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal quotations omitted). In this case, however, the government did not assert defendan...
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