United States v. James Lamont Johnson ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4004
JAMES LAMONT JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-98-137)
Submitted: August 31, 1999
Decided: September 20, 1999
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Paul A. Weinman,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
A jury found James Lamont Johnson guilty of bank robbery, bank
robbery by use of a dangerous weapon, and using and carrying a fire-
arm during a crime of violence. On appeal, Johnson argues that (1)
the evidence was insufficient to sustain his convictions and (2) the
district court erred by permitting the Government to refresh the recol-
lection of its witnesses. Finding no error, we affirm.
I.
On May 21, 1996, a black male, wearing a ski mask and latex
gloves, entered a First Citizens Bank in Rural Hall, North Carolina,
and stole over $100,000. The tellers described the robber as a black
male with graying hair. He was wearing latex gloves and described
as being in his forties or fifties. Bank surveillance photographs
showed the robber carrying a handgun in his left hand as he
approached the teller stations. Bait money and a dye pack were
included with the money given to the robber from the teller stations.
The dye pack was designed to explode and cover the stolen money
with a red dye.
Johnson is a black man with gray hair, who is left-handed and was
the approximate age described. When Johnson was arrested, latex
gloves were found in his pants pocket, and handgun ammunition was
found in his residence.
On May 24, 1996, Barbara Jones, Johnson's sister, purchased two
money orders for $250 each from a Handy Pantry and paid for the
money orders with twenty-five $20 bills that had red stains on them.
After the receipts of the Handy Pantry were deposited at Nations-
Bank, the bank staff notified the FBI of the red stains. The FBI deter-
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mined that a bait bill from the robbery was included among Handy
Pantry's deposit receipts.
Jones testified that Johnson had given her the money she used to
buy the money orders. Jones also testified that she had purchased
money orders at several other convenience stores on May 24, accom-
panied by and at the suggestion of Johnson. A search of Jones's resi-
dence revealed two $20 bills with red stains in her purse.
On June 10, 1996, Dorothy Williams, Johnson's girlfriend, pur-
chased several money orders at a food store. The cash used to pur-
chase the orders was stained pink and red.
In August 1996, Salisa Johnson, Johnson's niece, spent around
$800 in cash at two stores in Winston-Salem. The money was covered
with red stains and also appeared to have been washed. Salisa testified
at trial that Johnson had given her $2000 in May 1996 that had red
stains on it and that she used this money in August to make the pur-
chases described.
Both Jones and Salisa testified in front of the grand jury and at trial
under immunity agreements. Both were represented by attorneys, par-
tially paid for by Johnson.
II.
Johnson first contends that the evidence was insufficient to support
his robbery convictions. The jury's verdict "must be sustained if there
is substantial evidence, taking the view most favorable to the Govern-
ment, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
The crux of the Government's case was Jones's and Salisa's testi-
mony that they received red-stained money from Johnson. Johnson
contends that corroborating evidence is required to substantiate and
support the inference of guilt of robbery from possession of recently
stolen property. See United States v. Jones, 418 F.2d 818, 827 (8th
Cir. 1969) (the inference from recent possession of stolen property
must in some way be corroborated by other circumstantial factors as
to the crime charged in order to sustain a finding of sufficiency of evi-
dence).
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We have recognized that a jury may permissibly draw an inference
of guilt of robbery from the unexplained possession of recently stolen
money. See United States v. Long, 538 F.2d 580, 581 (4th Cir. 1976).
Moreover, the following facts were developed to corroborate the
inference of Johnson's guilt of robbery from his possession of the
stolen money. Johnson encouraged Jones to purchase money orders
with the cash at several different stores. Then, when Jones was
arrested, Johnson paid a portion of the attorney's fees. Johnson also
paid the majority of Salisa's attorney's fees when she testified before
the grand jury. In addition, Johnson's girlfriend was identified as hav-
ing purchased money orders with red-stained money within a month
of the robbery. Finally, Johnson fit the general description of the rob-
ber, was left-handed like the robber, and when he was arrested, he
was found in possession of latex gloves and handgun ammunition. In
addition, there was no evidence excluding Johnson as the robber.
Viewing this evidence in the light most favorable to the Govern-
ment, we conclude that substantial evidence supported Johnson's con-
victions for robbery. We will not disturb the jury's verdict.
III.
Johnson next contends that the Government failed to prove that the
object carried by the robber was capable of "expelling a projectile by
an explosive action." Absent such proof, Johnson asserts that the evi-
dence was insufficient to support his firearm conviction.
A conviction under 18 U.S.C.A. § 924(c) (West Supp. 1999) can
be sustained solely on the strength of testimony of lay witnesses unfa-
miliar with firearms. See United States v. Jones , 907 F.2d 456, 460
(4th Cir. 1990). No expert testimony is needed. See id. In this case,
three bank employees testified that Johnson used a gun, and a gun
appears in the bank surveillance photographs. Thus, substantial evi-
dence supports Johnson's use of a firearm during the commission of
the robbery. See United States v. Redd, 161 F.3d 793, 797 (4th Cir.
1998), cert. denied, 119 S. Ct. 1371 (1999).
IV.
Next, Johnson asserts that the district court erred in allowing the
Government to use grand jury transcripts to refresh Jones's and Sali-
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sa's recollections. According to Johnson, the numerous times that this
was done resulted in the substitution of the grand jury testimony for
the actual testimony of the witnesses.
Grand jury testimony may properly be used for the purpose of
refreshing the recollection of a witness. See United States v. Socony-
Vacuum Oil Co., 310 U.S. 150, 233 (1940). The use of such testimony
for this purpose rests in the sound discretion of the trial judge. See id.Jones and Salisa testified that they had difficulty remembering
many relevant facts. After being shown their grand jury testimony,
they stated that their recollections had, indeed, been refreshed. In fact,
defense counsel used the same strategy to refresh the recollections of
these witnesses on cross-examination. The grand jury testimony was
not entered into evidence or read to the jury. It was merely shown to
the witnesses, who were free to testify that it did not refresh their rec-
ollections. Instead, they testified that the grand jury testimony had
aided their memory as to what had happened in the instant case. Fur-
thermore, defense counsel cross-examined the witnesses as to the
unreliability of their memories. This procedure was proper and did
not result in the improper admission of grand jury testimony.
V.
Based on the foregoing, we affirm Johnson's convictions. We deny
Johnson's motion to file a supplemental brief, because the claims
raised therein are either duplicative or frivolous. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court, and argument would not
aid the decisional process.
AFFIRMED
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