United States v. Morris Johnson ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 2021 Decided July 13, 2021
No. 19-3094
UNITED STATES OF AMERICA,
APPELLEE
v.
MORRIS GEMAL JOHNSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cr-00125-1)
Virginia A. Williamson argued the cause for appellant.
With her on the briefs were Adam Margulies, Kevin King,
Alexander Schultz, and Nicole Antoine.
Nicholas P. Coleman, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief was Elizabeth
Trosman, Assistant U.S. Attorney.
Before: SRINIVASAN, Chief Judge, ROGERS, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN.
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SRINIVASAN, Chief Judge: Morris Gemal Johnson was
convicted of multiple counts under federal and D.C. law for
making, possessing, and smuggling firearms or destructive
devices. The bulk of those charges concerned two improvised
explosive devices found in Johnson’s home. We hold that his
two federal firearm possession convictions are “multiplicitous”
of—i.e., impermissibly duplicative of—his two federal firearm
manufacturing convictions, in violation of the Double Jeopardy
Clause. We further hold that his two D.C. law convictions for
possessing a weapon of mass destruction are multiplicitous of
each other. We also remand his claim that he received
constitutionally ineffective assistance of trial counsel in
connection with his decision to reject the government’s offer
of a plea agreement.
I.
A.
On January 23, 2014, agents from the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) executed a search
warrant at Johnson’s home. The agents recovered explosive
powder and various other items associated with the production
of explosive devices. They also found cardboard boxes
containing several 37-millimeter ammunition shells—most of
them empty—with caps and primers on them. (Primers
detonate explosive material around them when hit with force.)
One of those 37-millimeter shells had been assembled as an
improvised explosive device (IED) using, among other things,
explosive powder, hobby fuse, and a primer. ATF Agent
Richard Campbell was the agent who looked through the boxes
and disassembled and later examined the IED.
In September 2017, while reviewing photos of the
evidence with the prosecutor, Agent Campbell “saw in those
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photographs additional items that [he] had not examined yet”
within the seized boxes. Trial Tr. 332:20–22, J.A. 205. The
prosecutor asked Campbell to review that evidence, and in
doing so, Campbell discovered that one of the 37-millimeter
shell casings left in the boxes “had some weight to it and
appeared to be loaded with something.” Id. at 340:4–5, J.A.
213. Campbell disassembled and examined it, concluding that
it, like the shell casing discovered on the day of the search of
Johnson’s home, had been converted into an IED.
In January 2018, a grand jury returned the operative
indictment in this case. The indictment contained eight counts
alleging violations of federal and D.C. law: (1) Unlawful
Receipt or Possession of an Unregistered Firearm and
Destructive Device, 26 U.S.C. §§ 5861(d), 5871; (2) Unlawful
Making of a Firearm, 26 U.S.C. §§ 5822, 5861(f), 5871; (3)
Possession of a Weapon of Mass Destruction, D.C. Code § 22-
3154(a); (4) Unlawful Receipt or Possession of an Unregistered
Firearm and Destructive Device, 26 U.S.C. §§ 5861(d), 5871;
(5) Unlawful Making of a Firearm, 26 U.S.C. §§ 5822, 5861(f),
5871; (6) Possession of a Weapon of Mass Destruction, D.C.
Code § 22-3154(a); (7) Conspiracy to Smuggle Goods into the
United States, 18 U.S.C. § 371; and (8) Conspiracy to Engage
in the Interstate Transportation of Unregistered Machine Guns
and Silencers, 18 U.S.C. § 371.
Of relevance to this appeal, Counts One through Three
pertained to one of the two 37 mm shell IEDs, and Counts Four
through Six contained parallel charges pertaining to the second
such device. All told, there was a federal possession, federal
manufacture, and D.C. possession charge for each of the two
IEDs (Counts One through Six), along with two conspiracy
charges (Counts Seven and Eight). The district court later
asked the parties to consider whether the two conspiracy counts
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were duplicative, and the government subsequently dismissed
Count Eight.
B.
Before trial, the government made Johnson a plea offer
under which he would plead guilty on two of the federal counts
in exchange for the government’s dropping the remaining
charges. Johnson rejected the proposed plea agreement.
The trial took place in April 2019. During the trial, the
defense introduced evidence about ATF Agent Campbell, the
agent who had disassembled and examined both IEDs. The
evidence concerned Campbell’s involvement in a case in the
Eastern District of Kentucky in which Campbell had submitted
an affidavit that, according to the Kentucky trial judge, “had
grossly overstated the amount of fireworks that were visibly
damaged.” Trial Tr. 342, J.A. 215.
Before the close of evidence in Johnson’s trial, the
government asked the court to bar the defense from suggesting
that Agent Campbell had tampered with evidence in Johnson’s
case. The court permitted the defense to argue that the
evidence had been mishandled by the government and that
Campbell was not a credible witness because of the Kentucky
judge’s statement, but the court declined to permit any
suggestion that Campbell had tampered with the evidence. The
court found that there was “no record evidence” of tampering.
Id. at 1312:19, J.A. 290. Defense counsel preserved an
objection on the ground that a jury could reasonably infer
tampering from the evidence.
The jury found Johnson guilty on all seven counts
submitted to it. Johnson now appeals.
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II.
Johnson makes four arguments on appeal. First, he
contends that his two federal possession counts are
multiplicitous of his two federal manufacturing counts, in
violation of the Fifth Amendment’s Double Jeopardy Clause.
Second, he argues that his two D.C. law convictions are
multiplicitous of each other. Third, he urges us to find that the
district court abused its discretion when it prevented his
counsel from arguing that Agent Campbell had tampered with
the evidence. Fourth, he claims that that his trial counsel
rendered him constitutionally ineffective assistance by failing
to advise him that his preferred defense would not be presented
at trial.
We grant Johnson relief on first and second challenges,
reject his third challenge, and remand for the district court to
consider his fourth challenge in the first instance.
A.
Johnson first argues that his federal possession convictions
(Counts One and Four) must be vacated as duplicative of his
federal manufacturing convictions (Counts Two and Five).
The government agrees with Johnson, and so do we.
The parties nominally view the issue under different
conceptual frameworks. The government analyzes the issue as
one of merger—i.e., whether a lesser-included offense merges
with a greater offense. See Rutledge v. United States, 517 U.S.
292, 305–06 (1996). Johnson characterizes the issue as one of
multiplicity—i.e., whether one offense is repetitive of another.
See United States v. Cooper, 886 F.3d 146, 153 (D.C. Cir.
2018). Either conceptual formulation implicates the Double
Jeopardy Clause’s prohibition against “multiple punishments
6
for the same offense.” North Carolina v. Pearce, 395 U.S. 711,
717 (1969). And the parties agree that, regardless of the
conceptual framework, the question to be asked is ultimately
the same: “whether each [offense] requires proof of a fact
which the other does not.” Blockburger v. United States, 284
U.S. 299, 304 (1932); see United States v. Weathers, 186 F.3d
948, 951 (D.C. Cir. 1999). In other words, if one offense does
not require proof of any facts beyond what is required to prove
a second offense, a conviction of the first offense would be
impermissibly duplicative of a conviction of the second.
Here, as Johnson contends and the government concedes,
Johnson’s federal possession charges (Counts One and Four),
see 26 U.S.C. § 5861(d), did not require proof of any additional
facts beyond that required to prove his guilt on his federal
manufacturing charges (Counts Two and Five), see id. §§ 5822,
5861(f). Johnson’s convictions on Counts One and Four thus
must be vacated.
B.
We next consider Johnson’s contention that his two D.C.
law convictions for possession of a weapon of mass destruction
are multiplicitous of each other. Each of those two counts is
tied to one of the two modified 37mm shell IEDs discovered in
the cardboard boxes found in Johnson’s home.
Johnson’s multiplicity challenge regarding those D.C. law
counts, like his multiplicity challenge regarding the federal
possession and manufacturing counts, concerns the Double
Jeopardy Clause’s bar against multiple punishments for the
same offense. But the two challenges differ in the following
respect: the challenge to the federal convictions asks whether
two charges arising under different federal statutes are
duplicative of one another, whereas the challenge to the D.C.
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convictions asks whether two ostensibly distinct violations of
the same D.C. statute are duplicative of one another. And
“[w]here two violations of the same statute rather than two
violations of different statutes are charged, courts determine
whether a single offense is involved not by applying the
Blockburger test, but by asking what act the legislature
intended as the ‘unit of prosecution’ under the statute.”
Weathers, 186 F.3d at 952.
Here, the relevant statute is D.C. Code § 22-3154(a),
which bars possessing weapons of mass destruction. If the unit
of prosecution under that statute is possession, then Johnson’s
two convictions were multiplicitous because there was only
one act of possession—that is, a single, simultaneous
possession of two IEDs. If, on the other hand, the unit of
prosecution is the weapon, then Johnson’s two convictions
were not multiplicitous because there were two IEDs in his
possession. We review the question of multiplicity de novo,
Cooper, 886 F3d at 152, despite Johnson’s failure to raise it at
or before trial, because the government has not made, and
therefore forfeits, any forfeiture argument, see United States v.
Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996).
Identifying the unit of prosecution under D.C. Code § 22-
3154(a) requires us to interpret the D.C. Code, and it is the
province the D.C. Court of Appeals to determine the meaning
of D.C. Code provisions. See Abbas v. Foreign Pol’y Grp.,
LLC, 783 F.3d 1328, 1335 & n.3 (D.C. Cir. 2015). We thus
aim “to achieve the same outcome we believe would result if
the District of Columbia Court of Appeals considered this
case.” Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902,
907 (D.C. Cir. 2006). The question for us, then, is how would
the D.C. Court of Appeals view the application of D.C. Code
§ 22-3154(a) to circumstances involving possession of two of
8
the same weapon, at the same time, and in the same place: is
that one violation of the statute or two?
The D.C. Court of Appeals has issued a line of decisions
addressing fundamentally the same issue in closely comparable
situations. Like this case, each of those decisions addressed a
statute prohibiting possession of some sort of item, and the
circumstances involved a defendant’s possession of more than
one of the prohibited items at the same time and in essentially
the same place.
In the first case, Cormier v. United States, 137 A.2d 212(D.C. 1957), the defendant simultaneously carried two pistols
in his pockets, and he was charged with, and convicted of, two
counts of possessing a pistol without a license. Id. at 213. The
D.C. Court of Appeals, however, held that he had committed
only one offense, not two. Id. at 217. According to the court,
“[n]othing in the statutes defining the crime of carrying a pistol
and fixing the punishment discloses that Congresses intended
that there be multiple prosecutions in the type of situation
presented here.” Id. The court observed that the “problem is
doubtful,” and held that it “must resolve that doubt in favor of
[the defendant].” Id.The D.C. Court of Appeals later ruled the same way in
Briscoe v. United States, 528 A.2d 1243 (D.C. 1987). There,
the defendant concurrently possessed PCP-laced marijuana in
a kitchen trash bag and untreated marijuana in a bedroom. Id.
at 1244. He was charged with two counts of possessing
marijuana with intent to distribute it, with one count concerning
the marijuana found in the kitchen and the other count
concerning the marijuana found in the bedroom. The court
sought to “determine whether the Council of the District of
Columbia intended to permit multiple punishments for
possession of the same drug at the same time and at
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approximately the same place.” Id. at 1245. The court
emphasized that “the applicable language of the statute
criminalizes ‘possession,’ which is more appropriately
described as a course of conduct than an act.” Id. at 1246. The
court held that, when the defendant’s “constructive possession
occurred at the same time in his apartment, multiple
punishments are not authorized.” Id.The D.C. Court of Appeals again confronted the same sort
of issue in Bean v. United States, 576 A.2d 187 (D.C. 1990),
and again reached the same result. The defendant was found
in possession of both a knife and rifle in his car, and he was
charged with two counts of violating a statute barring carrying
either a pistol without a license or a dangerous weapon capable
of being concealed. Id. at 188. The court invoked the principle
espoused in Cormier that, “in the absence of clear legislative
intent, any doubt as to whether a single statute creates a single
or multiple offense will be resolved against turning a single
transaction into multiple offenses.” Id. at 190 (internal
quotation marks omitted). The court saw “nothing in the
relevant language of the statute . . . to indicate that [multiple]
convictions are allowed” in the circumstances. Id.While Cormier, Briscoe, and Bean each ruled against
multiple convictions in circumstances involving simultaneous
possession of two prohibited items in the same place, the D.C.
Court of Appeals subsequently reached a different conclusion
in Hammond v. United States, 77 A.3d 964 (D.C. 2013). There,
the defendant was found in possession of two rifles in his car.
Id. at 966. Significantly, he was charged with two counts of
possessing an unregistered firearm. The court held that “the
unit of prosecution under the statute is each individual
unregistered firearm.” Id. at 967. The court emphasized that
“the statute’s plain language defines the unit of prosecution as
‘the firearm’ that is possessed, but not validly registered.” Id.
10at 967–68 (quoting D.C. Code § 7-2502.01 (2001)). And the
court explained that “the statute’s clear purpose,” achieved
through a complex registration scheme, “is to collect
information on each firearm possessed in the District of
Columbia in order to be able to identify and track that firearm.”
Id. at 968.
This case is of a piece with Cormier, Briscoe, and Bean,
and materially differs from Hammond. In circumstances like
the ones in this case, the D.C. Court of Appeals generally asks
whether “the legislature expressed a clear intention in the
language of [the relevant statute] that does allow multiple
convictions.” Bean, 576 A.2d at 190 (discussing Cormier). As
in Cormier, Briscoe, and Bean—and unlike in Hammond—the
statute at issue in this case contains no such clear indication.
The statute reads as follows: “A person who . . . possesses
a weapon of mass destruction capable of causing multiple
deaths, serious bodily injuries to multiple persons, or massive
destruction of property may, upon conviction, be punished by
imprisonment for life.” D.C. Code § 22-3154(a). That
language contains no clear indication of an intention to allow
multiple convictions for possession of two of the same devices
in the same place at the same time. To the contrary, the
possibility of a life sentence for a single act of possession raises
the question whether multiple convictions for multiple
weapons would serve a meaningful purpose.
If anything, the statutory language is less amenable to a
conclusion that the unit of prosecution is each weapon (as
opposed to each act of possession) than was the statute in Bean
in the circumstances of that case. The law in Bean prohibited
“carry[ing] . . . [outside the home] a pistol, without a license
therefor issued as hereinafter provided, or any deadly or
dangerous weapon capable of being . . . concealed.” 576 A.2d
11at 188–89 (quoting D.C. Code § 22-3204 (1989)). The Bean
court rejected the idea that simultaneous possession of a
firearm and a knife supported multiple prosecutions, even
though the statutory text separately referenced each of those
items (“pistol, without a license,” on one hand, and “deadly or
dangerous weapon, capable of being . . . concealed,” on the
other hand). Here, the statute refers generally to “a weapon of
mass destruction,” and that language covers both IEDs
possessed by Johnson.
Hammond is markedly distinct for reasons emphasized by
the D.C. Court of Appeals in that decision. In holding that the
unit of prosecution was each firearm, Hammond, as noted,
stressed that the statute referred to the prohibited items
(unregistered firearms) with a definite article—i.e., “the
firearm.” Hammond, 77 A.3d at 967 (quoting D.C. Code § 7-
2502.01 (2001)). The statute in this case, like those in Cormier,
Briscoe, and Bean, contrastingly refers to the prohibited items
with the indefinite article “a.” See D.C. Code § 22-3154(a);
Bean, 576 A.2d at 188–89; Briscoe, 528 A.2d at 1245;
Cormier, 137 A.2d at 213 n.1 (same statute as Bean). And that
textual difference embodies a fundamental difference in the
statutory purpose: the object of the statute in Hammond was to
enable identifying, tracking, and “collect[ing] information on
each firearm possessed in the District of Columbia,” which
meant that “the unit of prosecution must be each individual
non-registered firearm in order to give effect to the legislature’s
intent.” Hammond, 77 A.2d at 968. There is no comparable
indication in this case—nor was there in Cormier, Briscoe, or
Bean—of a distinct legislative purpose connected to each
possessed item.
The government cites legislative history indicating that the
statute in this case aims “to provide for the stronger penalty
allowable for this crime if the weapon found in a defendant’s
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possession is truly capable of an act of terrorism.” Comm. On
Judiciary of D.C., Report: Bill 14-373, the “Omnibus Anti-
Terrorism Act of 2002,” at 18 (2002), https://lims.
dccouncil.us/downloads/LIMS/10484/Committee_Report/B14
-0373-CommitteeReport1.pdf. But while that history indicates
that the weapons covered by the statute—as a class—are
capable of mass destruction, it does not indicate a separate
legislative purpose connected to each distinct weapon in the
manner of the registration scheme in Hammond. Rather, the
legislative history cited by the government here resembles the
legislative purpose considered in Bean, where the statute in
question “intended to ‘drastically tighten the ban on carrying
dangerous weapons.’” 576 A.2d at 190 (quoting Bruce v.
United States, 471 A.2d 1005, 1007 (D.C. 1984)). The Bean
court concluded that the statute did not support multiple
convictions for possession of two weapons at the same time
and in the same place. The same conclusion obtains here.
In short, consistent with the D.C. Court of Appeals’s
decisions in Cormier, Briscoe, and Bean, one of Johnson’s two
D.C. law possession convictions must be vacated as
multiplicitous.
C.
Johnson also challenges the district court’s decision to bar
Johnson’s counsel from suggesting in closing argument that
Agent Campbell had tampered with evidence. We review the
trial court’s decision for abuse of discretion, United States v.
Borda, 848 F.3d 1044, 1062 (D.C. Cir. 2017), mindful of the
district court’s broad discretion in the area and superior vantage
point from which to assess the evidence, see United States v.
Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992). “Abuse of
discretion will only be found where the District Court’s ruling
prevented defense counsel from making an essential point.”
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Borda, 848 F.3d at 1062–63 (citing Hoffman, 964 F.2d at 24).
While “defense attorneys must be permitted to argue all
reasonable inferences from the facts in the record,” counsel
may not “premise arguments on evidence which has not been
admitted” or “make statements as to facts not proven.”
Hoffman, 964 F.2d at 24 (alteration omitted) (quoting Johnson
v. United States, 347 F.2d 803, 805 (D.C. Cir. 1965); then
quoting United States v. Latimer, 511 F.2d 498, 503 (10th Cir.
1975)).
Johnson argues that, contrary to the district court’s finding,
the jury reasonably could have inferred that Campbell
tampered with the physical evidence in his case. The evidence
that Johnson believes supports that inference is: “that Agent
Campbell alone disassembled the purported weapon, that he
had not videotaped the disassembly, and that he had in the past
been criticized by a federal court for exaggerating the state of
evidence in a case, like this one, involving explosive devices.”
Appellant Reply Br. 15–16.
We cannot say that the district court abused its discretion
in determining that “[t]here [wa]s nothing about Campbell’s
history, . . . nothing about the evidence in this case that
indicate[d] that Agent Campbell did anything to it, put it there,
planted it, changed it, did anything with it.” Trial Tr. 1321:12–
15, J.A. 299. The court reasonably distinguished between
suggesting that Agent Campbell was untruthful, which was
supported by the Kentucky judge’s criticism of him, and
suggesting that he had actively tampered with the evidence,
which was not. The fact that Campbell disassembled the
devices without videotaping himself does not support an
inference of any misconduct, let alone of tampering, especially
when the defense introduced no evidence that Campbell’s
actions in that regard deviated from standard procedure. Cf.
United States v. Stubblefield, 643 F.3d 291, 295 (D.C. Cir.
14
2011) (affirming district court’s refusal to permit defense
counsel to argue that photo array did not conform to “best
practices” when counsel had not introduced evidence
establishing such practices). Additionally, all the materials
needed to convert 37mm shells into IEDs were found in
Johnson’s home, and one of the shells was initially identified
as a possible IED by someone other than Agent Campbell.
D.
Fourth and finally, we consider Johnson’s claim that his
trial counsel rendered constitutionally ineffective assistance.
Johnson contends that he would have accepted the
government’s proposed plea agreement if his counsel had
informed him that Johnson’s preferred defense would not be
mounted at trial. Johnson and the government agree that the
claim should be remanded to the district court for further
proceedings. We agree as well.
“Due to the fact-intensive nature of the [ineffective-
assistance-of-counsel] inquiry and the likelihood, when a
defendant asserts his sixth amendment claim for the first time
on direct appeal, that the relevant facts will not be part of the
trial record, this court’s ‘general practice is to remand the
claim . . .’ unless ‘the trial record alone conclusively shows’
that the defendant either is or is not entitled to relief.” United
States v. Rashad, 331 F.3d 908, 909–10 (D.C. Cir. 2003)
(citation omitted) (quoting United States v. Fennell, 53 F.3d
1296, 1303–04 (D.C. Cir. 1995)). Here, the trial record alone
cannot resolve Johnson’s claim: the existing record does not
shed light on Johnson’s discussions with his trial counsel about
the defense Johnson wished to present or on Johnson’s thinking
in rejecting the government’s proposed plea agreement.
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* * * * *
For the foregoing reasons, we remand to the district court
to vacate Counts One and Four, to vacate either Count Three or
Count Six, and to hold further proceedings on Johnson’s claim
that his trial counsel rendered constitutionally ineffective
assistance. We otherwise affirm the judgment of the district
court.
So ordered.