United States v. Johnson , 415 F. App'x 495 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4280
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH J. JOHNSON, a/k/a K-9,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:07-cr-00924-DCN-3)
Argued: October 28, 2010 Decided: January 31, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: John Christopher Mills, Columbia, South Carolina, for
Appellant. Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee. ON BRIEF: William N.
Nettles, United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case arises out of the conviction of Defendant Kenneth
Johnson for 1) conspiring to distribute and distributing five
kilograms or more of cocaine and fifty grams or more of cocaine
base in violation of 21 U.S.C. § 846; and 2) possession with
intent to distribute and distribution of cocaine, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Johnson comes before
this Court to contest the trial court’s consideration of various
pieces of evidence and the court’s ultimate sentencing
determination. For the reasons discussed below, we AFFIRM the
trial court’s decision.
BACKGROUND
On January 15, 2005, Kenneth Johnson, a South Carolina,
resident, was released from federal prison, after being
incarcerated for drug and firearms offenses committed in 1992
and a subsequent conviction for distributing cocaine, committed
while he was imprisoned.
Shortly after midnight on November 5, 2006, Obie Pittman, a
deputy with the Berkeley County, Sherriff’s Office approached a
Hardee’s/Hot Spot restaurant/gas station. The building had a
Hardee’s Restaurant (“Hardee’s”) on one side of the building and
a Hot-Spot gas station on the other side. The Hardee’s had
closed, but as the Hot-Spot was open 24 hours, it remained open.
2
Pittman observed two cars parked side by side in the parking
lot, near the entrance to the Hardee’s. Upon further inspection
Pittman saw that the two cars were parked crookedly in a manner
which conflicted with the parking spots delineated by the lines
drawn in the parking lot. Though both of the cars’ motors were
running, two individuals were seated in one car, while the other
was empty. Pittman later testified that he was aware of at
least two other drug transactions that had taken place in the
same parking lot.
Pittman, shortly thereafter, pulled into the lot, parking
his vehicle behind the two cars in such a manner that Johnson
attests he could not have moved his car if he tried. Shortly
after Pittman parked his vehicle, Johnson exited the vehicle in
which he and John Belton had been sitting. Johnson informed
Pittman that he was taking care of some business and that their
activities were legitimate. When asked by Pittman as to the
nature of the business, Johnson provided him a card with the
name “Affordable Car Wash” written on it. Pittman exited his
car and walked over to the vehicle in which Belton remained
seated. Upon reaching the car, Pittman asked Belton for
identification. When Belton was unable to present any, Pittman
asked him to exit the car. As Belton exited the car, Pittman
observed a sum of money on the floor of the car between the
3
passenger seat and the door. When questioned as to its source,
Belton stated that it must have fallen out of his pocket.
Pittman then performed a brief pat down search of both
Johnson and Belton. In Johnson’s pocket, Pittman felt a large
sum of money which Pittman stated was approximately $2,000.
Pittman additionally felt two other lumps on Johnson which he
also believed were money. Nothing was seized from Johnson at
the time.
Pittman then asked Johnson for his consent to search his
vehicle – the car in which Johnson and Belton had been seated.
When Johnson refused, Pittman obtained from his car a police
detection dog. Upon being walked around Johnson’s car, the dog
signaled the presence of unlawful substances inside the
passenger-side door. Pittman additionally observed clear
plastic wrap partially hidden underneath the floorboard between
the front passenger seat and the rear passenger seat.
Pittman conducted a search of the vehicle and located a
package under the front passenger seat. The package contained
nine individual plastic bags of cocaine, wrapped in plastic wrap
and dryer sheets, with a total approximate weight of 276.1
grams. Pittman subsequently arrested Belton and Johnson. A
search of their persons revealed $432.22 in cash on Belton and
$3,957.50 on Johnson.
4
A subsequent search of Johnson’s house, performed pursuant
to a search warrant, revealed $9,768 in a small, draw-string bag
in a closet of the home’s master bedroom. The money was in the
following denominations: 208 one-dollar bills, 3 twenty-dollar
bills, 48 fifty-dollar bills, and 71 one-hundred dollar bills.
The money found constituted almost half of Johnson’s annual
reported income of $21,000 per year.
After he was indicted, Johnson, via a pre-trial motion,
challenged both his stop on the morning of November 5 and the
sufficiency of the evidence supporting the warrant to search his
house. The court rejected both motions finding that Pittman had
reasonable cause for the stop and, while the application
requesting the warrant included an error, it was minor and
therefore, did not affect the warrant’s validity.
At trial, the prosecution presented multiple witnesses who
stated that they purchased cocaine and other drugs from the
defendant. Belton testified that he had purchased marijuana and
multiple kilograms of cocaine from Johnson. He specifically
posited that on the night in question, he had arranged to meet
with Johnson to repay him for a drug related debt he had built
during the process of purchasing drugs from Johnson. Rias
Richardson similarly testified that he regularly bought drugs
from an individual he believed worked for Johnson. According to
Richardson, on one occasion, Johnson directly sold him four and
5
one-half ounces of cocaine. Anthony Gordon testified that he
regularly purchased drugs for Henry Bennett from Johnson. On
one occasion, acting on behalf of Bennett, he purchased twelve
kilograms of cocaine. He testified that Bennett had
specifically sent him to Johnson when Bennett’s usual source did
not have drugs. Juan Brown testified regarding a number of
purchases of cocaine, ranging in quantities of nine ounces to
multiple kilograms, from Johnson. Benjamin Jenkins testified
that he, likewise, had received three or four kilograms from
Johnson on one occasion at Bennett’s home.
Johnson called Drug Enforcement Agent Brendan McSheehy as a
witness and questioned him regarding his investigation of the
drug conspiracy. On cross examination, McSheehy stated that the
cell phone seized from Johnson’s home included contact
information for Gordon, Brown, and Bennett. Additionally, he
stated that an address book found in a duffel bag belonging to
Bennett included Johnson’s telephone number. McSheehy also
provided testimony regarding statements Gordon had made
indicating that he had previously failed to implicate Johnson
because he feared for his and his family’s safety.
Johnson additionally testified in his own defense. On the
stand, Johnson denied that the drugs found in his car on
November 5 were his or that he was involved in a conspiracy to
distribute cocaine. He asserted that Belton planted the drugs
6
found in his car. Furthermore, he denied that he agreed to meet
Belton so that he could pay back a drug-related debt.
The jury found Johnson guilty. After considering Johnson’s
string of prior convictions for drug-related offenses, the trial
judge sentenced Johnson to life in prison. Johnson timely
appealed his conviction raising a variety of evidentiary and
sentencing-related issues.
DISCUSSION
Johnson raises seven arguments on appeal. He specifically
asserts that the trial court erroneously: 1) denied his motion
to suppress the results of Pittman’s November 5, 2006 search of
his car; 2) denied his motion to suppress the results of the
search of his home; 3) admitted McSheehy’s testimony regarding
Gordon’s out of court statements; 4) admitted Johnson’s prior
convictions; 5) admitted evidence regarding Johnson’s
distribution of marijuana and heroin; 6) denied his motion for a
new trial as a result of statements the prosecutor made during
trial; and 7) sentenced him to life in prison.
I. PITTMAN HAD REASONABLE CAUSE TO STOP JOHNSON ON THE MORNING OF NOVEMBER 5,
2006.
Johnson, on appeal, argues that Pittman violated his Fourth
Amendment rights on the morning of November 5 when Pittman
7
parked his car behind Johnson’s. For the reasons discussed
below, the district court correctly denied Johnson’s motion.
A. Standard of Review
In reviewing a district court’s denial of a pretrial motion
to suppress evidence, this Court reviews the district court’s
factual findings for clear error and its legal conclusions de
novo. Ornelas v. United States, 517 U.S. 690, 695-96 (1996);
United States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998).
The evidence is construed in the light most favorable to the
government. United States v. Perkins, 363 F.3d 317, 320 (4th
Cir. 2004).
B. Analysis
1. A Seizure Occurred When Pittman Blocked Johnson’s
Car.
The parties initially dispute at what point Pittman was
required to have had a reasonable suspicion that Johnson was
involved in criminal activity. Johnson asserts that he was
seized for the purposes of the Fourth Amendment once Pittman
parked his car behind Johnson’s and therefore, Pittman must have
had reasonable suspicion at that point to have acted within the
confines of the Fourth Amendment. The government raises two
arguments in Pittman’s defense. First, it argues that no
seizure occurred until Pittman frisked Johnson. Alternatively,
it argues that even if a seizure occurred, no reasonable
8
suspicion was required given the circumstances. We find neither
argument persuasive.
"[A] Fourth Amendment seizure [occurs] . . . when there is
a governmental termination of freedom of movement through means
intentionally applied." Brower v. County of Inyo, 489 U.S. 593,
596-597 (1989) (emphasis deleted). The government presents no
argument in response to Johnson’s assertion that Pittman, by
pulling in behind him, blocked Johnson’s car from leaving.
Rather, in response it relies solely on the Fourth Circuit’s
decision in United States v. McCoy, 513 F.3d 405 (4th Cir. 2008)
in which the court held that the defendant in the case was not
seized until he was frisked. McCoy is clearly distinguishable.
Unlike this case, the officer, in McCoy, had taken no actions
prior to the frisk to prevent the defendant from believing he
was not “free to leave”. Id. at 411-412.
Nor do we accept the government’s arguments that the Fourth
Amendment does not require “reasonable suspicion” under the
circumstances in this case. The government in support of its
argument relies on a series of “special circumstances” cases in
which courts have held that reasonable suspicion is not
required. Examples of such circumstances include check points
set up to catch drunk drivers and undocumented immigrants.
Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450,
(1990); United States v. Martinez-Fuerte, 428 U.S. 543, 556
9
(1976). The government presents no case, nor can I find any
that allows the government to conduct such seizures outside of
the context of traffic checkpoints or some other “special
circumstance” (airports, schools, the border, etc.). See e.g.,
United States v. Brugal, 209 F.3d 353 (4th Cir. 2000) (“The
Supreme Court has also recognized that a state has a substantial
interest in enforcing licensing and registration laws, though
that interest is not substantial enough to justify roving patrol
stops as an enforcement mechanism.”).
2. The Seizure Was Supported by Reasonable Suspicion.
Whether there is reasonable suspicion to justify the stop
depends on the totality of the circumstances, including the
information known to the officer and any reasonable inferences
he could have drawn at the time of the stop. United States v.
Sokolow, 490 U.S. 1, 8 (1989). Reasonable suspicion may exist
even if "each individual factor 'alone is susceptible of
innocent explanation.'" United States v. Black, 525 F.3d 359,
366-67 (4th Cir.) (quoting United States v. Arvizu, 534 U.S.
266, 277 (2002)), cert. denied, 129 S. Ct. 182 (2008). The
reasonable suspicion determination is a "commonsensical
proposition," and deference should be accorded to police
officers' determinations based on their experience of what
transpires on the streets. United States v. Foreman, 369 F.3d
10776, 782 (4th Cir. 2004); United States v. Lender, 985 F.2d 151,
154 (4th Cir. 1993).
The Supreme Court has recognized that factors consistent
with innocent travel can, when taken together, give rise to
reasonable suspicion. Sokolow, 490 U.S. at 9 ("Any one of these
factors is not by itself proof of any illegal conduct and is
quite consistent with innocent travel. But we think taken
together they amount to reasonable suspicion."). The
articulated factors together must serve to eliminate a
substantial portion of innocent travelers before the requirement
of reasonable suspicion will be satisfied. Foreman, 369 F.3d at
781.
This admittedly is a close case. Of particular concern is
the short period of time Pittman waited before blocking
Johnson’s car. However, we agree that the circumstances viewed
in the light most favorable to the government support the
conclusion that Pittman had reasonable suspicion to stop
Johnson. It is undisputed that Pittman saw two cars after
midnight sitting together in a dark area of a parking lot, next
to a closed restaurant. Additionally, while the motors were
running in both cars, both individuals were seated in one of
them. Furthermore, Pittman had reason to believe criminal
activity was afoot as he was personally aware of drug
transactions having taken place in the specific parking lot on
11
at least two prior occasions. See United States v. Lender, 985
F.2d 151, 154 (4th Cir. 1993). (“[A]n area's propensity toward
criminal activity is something that an officer may consider.").
The Fourth Circuit has found reasonable suspicion based on less.
See United States v. Whitney, 2010 U.S. App. LEXIS 17300, *12
(4th Cir. Aug. 17, 2010) (“[G]iven Whitney's nervous demeanor
and the large amount of cash found in his pockets, Agent Canady
possessed sufficient reasonable suspicion.”).
Johnson, on appeal, relies primarily on United States v.
McCoy. The McCoy court found that reasonable suspicion existed
where the officer: 1) saw the defendant sit in his car for
several minutes; 2) saw the defendant arrange to meet a tow-
truck driver at another location; 3) saw the defendant enter the
tow truck; and 4) saw the tow-truck drive away quickly when the
officer motioned for him to stop. 513 F.3d at 412-13. Johnson
posits that unlike in McCoy, Pittman did not observe any evasive
behavior nor did Pittman wait long enough to see if Johnson or
Belton took any actions indicative of criminal activity. While
these are important points, there were other circumstances in
this case, such as the fact that the store was closed, both
persons were parked in a dark area of the lot away from the open
store, both persons were seated in one car despite the fact that
both engines were running and the time of day, which together
12
were sufficient to support a reasonable suspicion of criminal
activity.
II. THE WARRANT FOR THE SEARCH OF JOHNSON’S HOME WAS PROPERLY ISSUED.
Johnson argues, as a contingent matter, that because
Pittman’s stop of Johnson was unlawful and the evidence that was
found during the stop constituted the basis for the warrant to
search his house, the warrant was likewise erroneously granted.
As noted, because we find no merit to Johnson’s argument
regarding the legitimacy of the stop, we likewise, find no merit
to his objection to the evidence supporting the warrant to
search his home.
III. MCSHEEHY’S TESTIMONY RECOUNTING ANTHONY GORDON’S STATEMENTS WAS
PROPERLY ADMITTED.
Johnson additionally appeals the district court’s admission
of McSheehy’s testimony regarding statements by Anthony Gordon,
one of Johnson’s co-conspirators, that he previously failed to
admit that he purchased drugs from Johnson because he feared for
his family’s safety. Johnson contests the admission of
McSheehy’s testimony on the grounds that the government failed
to notify Johnson before trial that he sought to introduce the
evidence and, accordingly, the court never had the proper
opportunity to determine whether the evidence was unfairly
13
prejudicial. Johnson, alternatively, argues that had the court
considered the evidence it would have determined that it was
impermissible character evidence in violation of Rule 404(b) of
the Federal Rules of Evidence.
A. Standard of Review
Johnson concedes he failed to object to the admission of
the aforementioned evidence at trial. When a party fails to
object to the admission of evidence, Rule 103(d) of the Federal
Rules of Evidence requires that the Court review the admission
for plain error. Cook v. American Steamship Co., 53 F.3d 733,
742 (6th Cir. 1995); United States v. Brown, 287 U.S. App. D.C.
316, 921 F.2d 1304, 1308 n.4 (D.C. Cir. 1990); FED.R.EVID. 103(d).
B. Analysis
1. The Court Properly Admitted the Testimony Despite
the Fact that the Government Did not Notify the Court
Before Trial.
Johnson initially complains that the government improperly
admitted McSheehy’s testimony regarding Gordon’s statements
despite informing the court before trial that it would not
present police testimony of co-conspirators’ out of court
statements. Accordingly, Johnson argues, the government should
have been estopped from presenting such evidence at trial.
As the government correctly notes, the prosecution
introduced the contested evidence only after Johnson raised the
issue during his direct examination of McSheehy. During
14
Johnson’s direct examination of McSheehy, Johnson’s counsel
asked McSheehy: “Did you ever have the opportunity to talk to
Anthony Gordon? . . . [D]id he ever mention Kenneth Johnson?”
J.A. at 412. Later, Johnson’s counsel asked McSheehy whether
any of the co-conspirators outside of Belton or Richardson “had
ever mentioned Kenneth Johnson?” J.A. at 421.
The prosecution on cross-examination closely limited its
questioning of McSheehy regarding Gordon’s statements to the
scope of Johnson’s direct – it simply allowed McSheehy the
opportunity to present Gordon’s explanation as to why he had not
mentioned Johnson previously.
Accordingly, given that Johnson opened the door for such
evidence, we do not believe that the court’s admission of it was
in “plain error.”
2. The Testimony Was Not “Character” Evidence.
Johnson alternatively, argues that had the court weighed
the evidence it would have determined it was inadmissible under
Rule 404(b) of the Federal Rules of Evidence.
Rule 404(b) forbids the admission of evidence of "other
crimes, wrongs, or acts . . . to prove the character of a person
in order to show action in conformity therewith." FED. R. EVID.
404(b). This prohibition reflects the
underlying premise of our criminal justice system,
that the defendant must be tried for what he did, not
for who he is. Thus, guilt or innocence of the accused
15
must be established by evidence relevant to the
particular offense being tried, not by showing that
the defendant has engaged in other acts of wrongdoing.
United States v. Bradley, 5 F.3d 1317, 1320 (9th Cir. 1993)
(internal quotation marks and citations omitted). Because such
evidence may be highly relevant, however, the Rule does permit
its admission "for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident . . . ." FED. R. EVID. 404(b).
Rule 404(b) is inapplicable to McSheehy’s testimony. As
noted above, the rule relates to “other crimes, wrongs, or
acts.” McSheehy introduced no evidence of acts, words or
threats in other forms by Johnson, but merely provided Gordon’s
statements regarding his personal feelings of fear.
Furthermore, the testimony was not introduced to prove Johnson’s
character, but rather to explain why Gordon lied. See United
States v. Green, No. 08-2330, 2010 U.S. App. LEXIS 16431, *46,
n.16 (3rd Cir. Aug. 9, 2010) (“The required proper purpose was
the rehabilitation of Stahl's credibility, in light of Green's
suggestions that she was motivated by money and cooperated
solely for selfish reasons.”). *
*
At the end of the relevant section of his brief, Johnson
throws in a one-line argument that the statement was hearsay.
An out of court statement is only hearsay if it is presented to
prove the truth of the matter asserted. FED. R. EVID. 801(c). As
noted above, in this case, the statement was not presented to
(Continued)
16
IV. THE DISTRICT COURT DID NOT ERR IN ADMITTING EVIDENCE OF JOHNSON’S PRIOR
CONVICTIONS FOR COCAINE DISTRIBUTION.
Johnson also argues that the court erroneously admitted
evidence of his previous cocaine distribution convictions. He
specifically argues: 1) that the evidence served no legitimate
purpose other than defaming his character; and 2) was unduly
prejudicial.
A. Standard of Review
The court reviews a district court’s determination
regarding the admissibility of evidence under Rule 404(b) for
abuse of discretion. United States v. Greenwood, 796 F.2d 49(4th Cir. 1996); United States v. Hodge, 354 F.3d 305, 312 (4th
Cir. 2004). A court abuses its discretion when it “act[s]
arbitrarily or irrationally in admitting evidence." United
States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009) (internal
quotation marks omitted).
B. Analysis
The Fourth Circuit has set out a four part test courts must
use when determining whether evidence of prior bad acts may be
admitted. The prior act must: 1) be relevant to an issue other
than character, such as intent, motive or knowledge; 2) be
prove that Johnson was in fact dangerous but merely to explain
why Gordon had previously provided inconsistent testimony.
17
necessary to prove an element of the crime charged; 3) be
reliable; and 4) not be substantially outweighed by its
prejudicial nature. United States v. Queen, 132 F.3d 991, 995
(4th Cir. 1997). This court has held that “Rule 404(b) is ‘an
inclusive rule, admitting all evidence of other cimes or acts
except that which tends to prove only criminal disposition.’”
United States v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010)
(quoting United States v. Young, 248 F.3d 260, 271-72 (4th Cir.
2001)). As noted, Johnson specifically challenges prongs one and
four of this analysis.
The government asserted and the court below agreed that the
evidence was relevant to Johnson’s intent upon arriving at the
parking lot on the morning of November 5th; his knowledge of the
drug trade; absence of mistake; plan; and opportunity. The
district court’s rulings with regard to intent and knowledge
were consistent with the law of this Circuit. Rooks, 596 F.3d at
211 (affirming admission of evidence of prior narcotics
conviction to establish the defendant's knowledge of drug
trafficking and intent to distribute drugs found at the crime’s
scene).
Likewise, because the statements were accompanied by
limiting instructions, under the Fourth Circuit’s jurisprudence
the convictions’ admission was not unduly prejudicial. Id.(“[T]he evidence [of prior convictions] was neither unreliable
18
nor unfairly prejudicial, especially in light of the court's
limiting instruction to the jury.”). See United States v.
White, 405 F.3d 208, 213 (4th Cir. 2005) ("[A]ny risk of such
prejudice was mitigated by a limiting instruction from the
district court clarifying the issues for which the jury could
properly consider [the] evidence.").
V. THE TRIAL COURT DID NOT COMMIT PLAIN ERROR IN ALLOWING TESTIMONY THAT
JOHNSON DEALT HEROIN AND MARIJUANA.
Johnson, likewise, challenges the admission of testimony
that he also distributed marijuana and heroin as improper
character evidence.
A. Standard of Review
Johnson failed to object to the government's statement
below. Accordingly, this Court's review is limited to the plain
error standard discussed above.
B. Analysis
Johnson alleges that testimony regarding him dealing other
drugs constituted impermissible character evidence.
Rule 404(b) protects only against the introduction of
extrinsic act evidence when offered to prove character. Evidence
when not part of the crime charged but pertaining to the chain
of events explaining the context, motive and set-up of the
crime, is properly admitted if it forms an integral and natural
19
part of an account of the crime, or is necessary to complete the
story of the crime for the jury. United States v. Powers, 59
F.3d 1460 (4th Cir. 1994). In such a situation, because the
evidence is intrinsic, not extrinsic, we do not engage in a Rule
404(b) analysis.
Here, it is clear that the testimony concerning other drugs
Johnson was distributing while distributing cocaine was
intrinsic to the crime. Belton testified that when he was
introduced to Johnson, it was for the purpose of conducting drug
transactions and while he initially purchased marijuana, they
gradually moved on to other drugs such as heroin and cocaine.
Given that the testimony showed that Johnson was distributing
heroin and marijuana to many of his co-conspirators during the
course of the cocaine conspiracy, the evidence was intrinsic
and, therefore, not subject to analysis under 404(b).
Such evidence is, of course, nevertheless subject to a
Rule 403 balancing. See United States v. Huppert, 917 F.2d 507(11th Cir. 1990). "[T]he court's discretion to exclude evidence
under Rule 403 is narrowly circumscribed. 'Rule 403 is an
extraordinary remedy which should be used only sparingly since
it permits the trial court to exclude concededly probative
evidence.'" United States v. Norton, 867 F.2d 1354, 1361 (11th
Cir.), cert. denied, 491 U.S. 907 (1989). Beyond blank
accusations that the evidence was prejudicial, Johnson presents
20
no specific argument in support of his assertion that the
prejudicial effect of this information outweighed its relevance.
Accordingly, we cannot find that the court’s admission of such
was clear error.
VI. THE TRIAL COURT PROPERLY DENIED JOHNSON’S MOTION TO OVERTURN HIS
CONVICTION AS A RESULT OF THE PROSECUTOR’S STATEMENT.
Johnson additionally challenges the trial court’s refusal
to grant Johnson a new trial as a result of the prosecutor’s
statement during closing arguments referring to Johnson as the
devil.
A. Standard of Review
Johnson failed to object to the government’s statement
below. Accordingly, this Court’s review is limited to the plain
error standard discussed above.
B. Analysis
The court examines a claim of prosecutorial misconduct to
determine whether the alleged misconduct "so infected the trial
with unfairness as to make the resulting conviction a denial of
due process." United States v. Scheetz, 293 F.3d 175, 185 (4th
Cir. 2002) (addressing prosecution's improper reference to
evidence admitted only against one defendant in closing argument
arguing that another defendant was guilty) (citations and
internal quotation marks omitted). "The test for reversible
21
prosecutorial misconduct has two components; first, the
defendant must show that the prosecutor's remarks or conduct
were improper and, second, the defendant must show that such
remarks or conduct prejudicially affected his substantial rights
so as to deprive him of a fair trial." Id.The Fourth Circuit has set out a variety of factors that
courts must consider when evaluating the prejudicial effect of a
statement. These include: (1) the degree to which the
prosecutor's remarks have a tendency to mislead the jury and to
prejudice the accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of competent
proof introduced to establish the guilt of the accused; and (4)
whether the comments were deliberately placed before the jury to
divert attention to extraneous matters. United States v.
Mitchell, 1 F.3d 235, 241 (4th Cir. 1993).
At issue on appeal is the prosecutor’s statement during
closing arguments that “when you put the devil on trial, you’ve
got to go to hell to get your witnesses.” The government
defends the statement on the grounds that it was merely a
“colorful” way of saying that the prosecution had to use
unsavory witnesses to convict the defendant.
We cannot accept the government’s argument that the
statement was merely a colorful statement. It is clear from the
record that the government was specifically referring to Johnson
22
when it made the statement. While the prosecution may have been
trying to defend its use of certain witnesses, inherent in the
statement was an emotional characterization of the defendant.
See Fahy v. Horn, 516 F.3d 169, 202 (3rd Cir. 2008) (“We do not
condone the characterization of [the defendant] as demonic, nor
consider it a proper form of argument.”); United States v.
Whittington, 269 Fed. Appx. 388, 410 (5th Cir. 1998) (“The
prosecutor's remarks cannot be characterized as simply a
colloquialism because he appeared to be referring to [the
defendant] in each statement. We assume without deciding that
referring to a defendant as ‘the devil’ is improper.”).
That said, we do not find that the single remark, by
itself, rendered the trial fundamentally unfair. Given that the
statement’s principal function was to explain the witnesses’
criminal backgrounds and it was an isolated remark, we cannot
find the trial court’s allowance of the statement constituted
plain error. See Whittington, 269 Fed. Appx. at 411-12
(finding similar statement negatively impacted the jury, but
because “the specific wording of the statement was designed to
explain the plea agreements that the government made with
unsavory characters that testified against [the defendant],”
allowing the statement did not constitute clear error).
23
VII. THE TRIAL COURT DID NOT ERR BY SENTENCING JOHNSON TO A LIFE SENTENCE.
Finally, Johnson alleges the trial court’s sentence of life
in prison for Johnson violated the Eighth Amendment’s
prohibition on cruel and unusual punishment. Johnson asserts
that the trial court failed to conduct the appropriate
proportionality analysis set out in United States v. Kratsas, 45
F.3d 63 (4th Cir. 1995) and Solem v. Helm, 463 U.S. 277 (1983).
Had the court conducted the proper balancing, Johnson continues,
it would have found that given the small amount of cocaine at
issue in his prior sentence and the length of the sentence, a
life sentence was not appropriate.
A. Standard of Review
The Court reviews de novo an appellant’s constitutional
challenge to the proportionality of his sentence. United States
v. Meyers, 280 F.3d 407, 416 (4th Cir. 2002).
B. Analysis
Section 841(b) of Title 21 of the United States Code
provides for a mandatory life sentence without release for
participants in certain drug offenses involving five or more
kilograms of cocaine. Specifically, the statute provides:
If any person commits a violation of this subparagraph
or of section 859, 860, or 861 of this title after two
or more prior convictions for a felony drug offense
have become final, such person shall be sentenced to a
mandatory term of life imprisonment without release .
. . .
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21 U.S.C. § 841(b)(1)(A).
Johnson does not dispute having two applicable prior felony
convictions for the purposes of section 841(b). Rather, he
asserts that given the small amount of drugs and how old the
conviction was, a sentence of life was disproportionate under
the Eighth Amendment.
Johnson misreads the Fourth Circuit’s decision in United
States v. Kratsas. The court not only did not find that a
proportionality balancing was not required, but in fact held the
opposite – a court need not consider any mitigating factors when
issuing a sentence under section 841(b). See Kratsas, 45 F.3d at
69 (“[I]t is clear that a sentence of life without parole does
not require the consideration of mitigating factors, as is
required in the death penalty context, in order to pass
constitutional muster. Thus, the mere fact that the life
sentence was mandatorily imposed does not render it "cruel and
unusual." (citations omitted)).
Accordingly, the sentence did not violate the Eighth
Amendment under the Fourth Circuit’s jurisprudence.
CONCLUSION
For the aforementioned reasons, the trial court’s
conviction and sentence of Johnson is, hereby,
AFFIRMED.
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