                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2007

USA v. Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2145




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Johnson" (2007). 2007 Decisions. Paper 421.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/421


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                              NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 06-2145



         UNITED STATES OF AMERICA

                         v.

               JECONA JOHNSON,
                         Appellant



   On Appeal from the United States District Court
             for the District of Delaware
           (D.C. Crim. No. 04-cr-00057-1)
   District Judge: Honorable Joseph J. Farnan, Jr.



     Submitted Under Third Circuit LAR 34.1(a)
                September 17, 2007

Before: SLOVITER, SMITH, and WEIS, Circuit Judges

            (Filed: September 19, 2007)



                     OPINION
SLOVITER, Circuit Judge.

       Appellant Jecona Johnson appeals his conviction for possession of a firearm by a

felon. He raises several issues that we discuss herein. We have jurisdiction pursuant to

28 U.S.C. § 1291.

                                              I.

       Jecona Johnson was arrested on July 13, 2004, pursuant to a warrant alleging

various drug offenses. During questioning by officers of the Drug Enforcement

Administration, he agreed to answer the officers’ questions. An officer told him, as a

ruse, that he knew Johnson had a handgun and asked where it was located. Johnson

eventually informed the officers that he had two handguns at his residence, which they

could find in a book bag (backpack) that he said belonged to a friend, Gary Haile, who

told him that the two guns were in the bag when he dropped it off at Johnson’s house on

June 28. After receiving Johnson’s permission to search his house, the officers found the

backpack which contained, among other things, a .22 caliber gun with ammunition, a

loaded .25 caliber gun, and a silencer for the .22 caliber gun.

       A superseding indictment charged Johnson with three counts for cocaine base

(crack) distribution in violation of 21 U.S.C. § 841(a)(1), one count for conspiracy to

distribute cocaine base in violation of 21 U.S.C. § 846, one count for possession of a

firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and one count for possession of

an unregistered firearm (the silencer) in violation of 26 U.S.C. § 5861(d).

       The District Court bifurcated the trial on Johnson’s motion to sever the drug

                                              2
charges and the charges for firearm possession. On July 29, 2005, the first jury acquitted

Johnson of all drug charges. Following that trial, Johnson moved in limine to exclude

certain evidence from the second trial. In response, the Court barred the government

from introducing evidence (1) related to parts of the interview on July 13, 2004 that were

unrelated to the charges of firearm possession, though it could introduce the redacted

report and notes of the investigators; (2) related to Johnson’s detention in El Paso, Texas,

in March 2004 or the seizure of $23,000 from him; (3) related to the government’s

investigation of Johnson before July 13, 2004; or (4) about the nature of Johnson’ prior

felony conviction. The Court denied Johnson’s request to exclude testimony about an

officer’s statement to him during questioning that he knew of his possession of a

handgun.

       At the second trial, which began on November 21, 2005, the parties stipulated that

Johnson had been convicted of a felony in November 1999 and that the silencer found in

the backpack was not registered to Johnson. During the opening statements, counsel for

the government referred to Johnson’s arrest on July 13, 2004, and Johnson moved for a

mistrial. The Court denied this motion.

       At the trial, the government asked Johnson during cross-examination whether he

had ever carried “large sums of cash,” and specifically whether he had carried more than

$10,000. App. Vol. II at 279. Johnson’s counsel objected to this question as precluded

by the motion in limine. The Court overruled the objection because the question did not

specifically refer to the March 2004 seizure and was relevant to Johnson’s motive to have

                                             3
a gun: specifically, for the protection of such sums. At sidebar, when Johnson’s counsel

argued that “when [Johnson] had large sums of cash on him, the evidence shows he didn’t

have a gun,” the District Court commented, “He’s having a bad day that day. He forgot

to bring his gun to protect his cash. He can do a little bit of this, get into it.” App. Vol. II

at 282.

          Later during the same cross-examination, the government asked Johnson “if

someone had asked you on July 5th, 2004, Hey, can I take that backpack, your response

would have been what?” App. Vol. II at 292. Johnson’s counsel objected to this question

as requiring a speculative answer, but the government’s counsel explained it as relating to

Johnson’s state of mind. The Court overruled the objection. Johnson answered, stating

“No. I would have told them to leave it alone,” and he explained his answer: “Because

that’s Gary’s gun.” App. Vol. II at 293.

          Before sending the jury to deliberate, the Court instructed the jury that for

constructive possession, “the [g]overnment must prove that Mr. Johnson had the power

and intent to exercise the dominion and control over the firearms he is charged with

possessing.” App. Vol. II at 364. It continued:

          Dominion and control are not established by mere proximity to the firearms
          or mere presence in the house where the firearms are located, or mere
          association with the person who does control the firearms. For example, if
          you left something with a friend intending to come back later and pick it up,
          or intending to send someone else to pick it up for you, you would have
          constructive possession of it while it was in the actual possession of your
          friend.

Id.

                                                 4
       After the jury had been sent to deliberate, it returned with a question seeking a

better definition of “the power and intent to exercise dominion and control” and requested

“a few more examples.” App. Vol. I at 18. Johnson’s counsel agreed that it would be

appropriate to provide the jury with a definition but initially expressed uncertainty as to

whether it was appropriate to provide examples. After discussing the appropriate

response with counsel, the Court repeated its original instruction to the jury and then

offered the following example:

       I am now in actual possession of my yellow marker. I hold it, so I have
       dominion and control. . . . Now, if I stand up and I put my yellow marker
       over here, and then I come back over to my chair . . . and I start to do
       something else . . . Do I now have constructive possession of that marker?
       . . . Do you find that there were facts or evidence that would support that I
       intend to continue to control that marker?

App. Vol. II at 394. The Court provided an additional example:

       [I]f I take my magic marker and I give it to my law clerk, and now my law
       clerk has actual possession. But, under all the circumstances, could you
       find I still intend to exercise dominion and control over that, even though
       it’s in his possession? . . . And it depends on what the circumstances were
       of my laying it there or giving it to him, and what surrounds that . . . .

App. Vol. II at 396.

       Following the example, the jury responded that it was more confused. In response,

the Court continued:

       In deciding constructive possession, you have to look at the evidence of the
       placing and all the other evidence around that, and then determine, for
       instance, whether you thought I was going to go back and get it. . . . Is
       there evidence that shows that I intended to continue to have dominion,
       control, exercise my authority over it, even if I give it to another person?


                                              5
App. Vol. II at 397-98. Following this explanation, the jury responded that it was “okay.”

App. Vol. II at 398. The government, but not Johnson’s counsel, excepted to the

explanation.

       The jury later returned a verdict of guilty on the charge of possession of a firearm

by a felon and not guilty for the charge of possession of an unregistered firearm. The

Court sentenced Johnson to fifty months in prison to be followed by three years of

supervised release. He filed a timely notice of appeal.

                                             II.

       An appellate court exercises plenary review over the legal standard stated in a jury

instruction, but the wording or expression of the instruction is reviewed for abuse of

discretion. United States v. Williams, 344 F.3d 365, 377 (3d Cir. 2003). However,

because Johnson did not object to the jury instructions that were given at his trial, we

review the instructions for plain error only. Fed. R. Crim. P. 52(b); Williams, 344 F.3d at

378-79.

       Johnson argues that the examples provided to the jury in the District Court’s

supplemental instruction were erroneous, confusing, and prejudicial. He correctly

describes these instructions on possession as going to the heart of the case.

       The District Court’s initial jury instruction was based directly on Third Circuit

precedent and was a proper statement of the law about constructive possession. See

United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999); United States v. Iafelice, 978

F.2d 92, 96 (3d Cir. 1992). It was also proper for the Court to provide supplemental

                                              6
instructions in response to the jury’s question after conferring with counsel. See Gibson

v. Mayor & Council of Wilmington, 355 F.3d 215, 231 (3d Cir. 2004). The example used

by the District Court, illustrating the concept of constructive possession for the jury using

a marker, was essentially the same as the example it described in its initial jury

instruction. Both examples conveyed the instruction that constructive possession can be

found where an individual did not have actual physical possession of an object but had

the intention and ability to gain actual possession of it later. Although the jury expressed

its confusion following the Court’s examples using the marker, it stated that it had

reached an understanding following the Court’s further clarification.

       The examples given by the Court were not prejudicial or misleading because they

merely provided tangible illustrations of the definitions that it had previously given the

jury and of the distinction between actual and constructive possession. Johnson’s

suggestion that the examples given presupposed his actual possession of the illegal

materials is unpersuasive.

                                             III.

       Johnson next challenges his cross-examination regarding how he would have

responded if someone asked to take Haile’s backpack. Johnson’s counsel objected at trial

on the ground that the question required a speculative answer. We review the decision to

overrule this objection for abuse of discretion. Citizens Fin. Group, Inc. v. Citizens Nat’l

Bank of Evans City, 383 F.3d 110, 133 (3d Cir. 2004).

       We reject Johnson’s argument that the government posed an improper hypothetical

                                              7
question. The government’s question was not the type of hypothetical question that a lay

witness may not be asked. See Fed. R. Evid. 705; Wilburn v. Maritrans GP, 139 F.3d

350, 356 (3d Cir. 1998). Instead, the government explained, and the District Court

agreed, that it was asking about Johnson’s state of mind, as to which he alone had

personal knowledge.

       Johnson also argues that the District Court erred in allowing the government’s

question because its probative value was substantially outweighed by its prejudicial

nature in violation of Federal Rule of Evidence 403. Because no objection to this

testimony was made on this basis at the time of trial, we review for plain error. Fed. R.

Crim. P. 52(b); Williams, 344 F.3d at 378-79. The question related to Johnson’s state of

mind, which was directly relevant to whether he intended to exercise dominion and

control over the contents of Haile’s bag, an intent necessary to establish Johnson’s guilt.

       With respect to the issue of prejudice, although the government’s question may

have been a “trap,” as Johnson argues, in the sense that it sought a damaging answer from

him, it was not an unfair question that would require him to incriminate himself. Even if

Johnson’s response could have been construed as implying he had control of Haile’s bag,

such questioning is not comparable to that in Stewart v. United States, 366 U.S. 1 (1961),

where a prosecutor’s question about a defendant’s decision not to testify in previous trials

infringed his Fifth Amendment right against self-incrimination. Id. at 10. We cannot

agree that the District Court’s decision to allow the questioning amounted to plain error.

                                            IV.

                                             8
       Johnson next challenges the trial references to his arrest. He moved for a mistrial

because the government’s opening statement referred to the fact of Johnson’s arrest on

July 13, 2004. Johnson argues that the reference to the arrest violated the District Court’s

in limine ruling. However, that order stated that “[t]he Government shall not introduce

evidence relating to the Government’s investigation of Defendant prior to July 13, 2004.”

App. Vol. I at 21. The bare reference to Johnson’s arrest, which did not occur “prior to”

July 13, without reference to the events and investigation leading to the arrest, did not

violate the order.

       Johnson also argues that the reference to the arrest, as well as two questions posed

to law enforcement personnel regarding the arrest, were irrelevant and unfairly

prejudicial. The decision to admit or exclude testimony under Federal Rule of Evidence

403 is subject to review for abuse of discretion and may only be reversed where a court’s

decision was irrational or arbitrary. Robert S. v. Stetson School, Inc., 256 F.3d 159, 170

(3d Cir. 2001).

       Without the foundational fact of Johnson’s arrest, the jury may have been left with

an incomplete picture of why Johnson was in a position to tell the officers about the guns.

This court has previously held that a court acted within its discretion when it admitted

evidence of how a crime was discovered for the limited purpose of providing “a

foundation for an understanding of the sequence of events.” United States v. McCalla, 38

F.3d 675, 680 (3d Cir. 1994). The mention of Johnson's arrest did nothing to give the

jury any indication of why Johnson was arrested, so any prejudicial effect was minimal.

                                              9
We conclude that permitting references to the fact of Johnson’s arrest was not an abuse of

discretion.

                                              V.

       Johnson also argues that the government’s cross-examination of him about his past

possession of large quantities of money violated the District Court’s order prohibiting the

government from introducing evidence about the seizure of $23,000 from Johnson in

March 2004. The government’s question did not ask about the $23,000 in particular, but

rather about Johnson’s possession of “large sums of cash” in general. App. Vol. II at 279.

As such, it did not violate the District Court’s order.

       The District Court agreed with Johnson that his general possession of large sums

of cash could be relevant to establish a motive for his possession of a gun. Johnson

argues that the government was not using its question for this purpose because it never

explicitly drew a connection for the jury between possession of large amounts of cash and

possession of a gun. Instead, he contends that the government’s purpose was to suggest

to the jury that Johnson was involved in drug activity. However, the government never

made any reference to drugs, and the question about money was asked during a line of

questioning about whether Johnson feared for his safety, implying that he might want a

gun to protect himself and any money he carried.

       Reference to the seizure of $23,000 from Johnson was originally barred because of

the unfair prejudice that could result from reference to the unrelated El Paso detention,

which occurred at the time of the seizure. In allowing the government’s question about

                                              10
the cash, the District Court concluded that mere reference to an instance where Johnson

possessed large amounts of money did not carry the same risk of prejudice, absent

reference to the El Paso detention. This balancing of the relevance and prejudicial nature

of Johnson’s testimony was rational. See Robert S., 256 F.3d at 170.

       Finally, Johnson contends that the District Court’s sidebar comment about Johnson

“having a bad day that day” demonstrated the trial court’s bias. In reviewing the District

Court’s comment in context, we see no bias. There is no indication here that the jury

overheard the comment or that it could have influenced their conclusions. Furthermore,

in the jury instructions the court explicitly stated that “[a]ny . . . comments I made to the

lawyers are not evidence,” App. Vol. II at 351, and that “[t]his case is for you to decide

for yourselves. I absolutely have no opinion about this case.” App. Vol. II at 377. We

see no abuse of discretion.

                                              VI.

       Finally, Johnson argues that the fact that the jury found him guilty of possession of

the guns found in the bag but not guilty of possession of the silencer found in the same

bag is illogical and evidence of the jury’s confusion. However, as the Supreme Court

explained, it is improper for courts to speculate about how a jury reached inconsistent

verdicts, for it may be just as likely that the jury made a mistake in favor of the defendant

in its verdict of acquittal as it is that it made a mistake in favor of the government in its

verdict of guilty. United States v. Powell, 469 U.S. 57, 65-66 (1984). It would be equally

improper for us to second-guess the jury by concluding that it was confused after it stated,

                                               11
following the District Court’s clarification of its supplemental instructions, that it was not

confused. We reject any argument to the contrary.

                                             VII.

       For the foregoing reasons, we will affirm the judgment of conviction and sentence.




                                              12
