                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-21-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1347




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"USA v. Johnson" (2005). 2005 Decisions. Paper 1556.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1556


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 2005 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                                            NOT PRECEDENTIAL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. 04-1347


                   UNITED STATES OF AMERICA

                                  v.

                     ODELL ROBERT JOHNSON

                              Appellant



            On Appeal from the United States District Court
               for the Eastern District of Pennsylvania
                  (D.C. Criminal No. 02-cr-00656-1)
              District Judge: Honorable Cynthia M. Rufe



        Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                       December 6, 2004
   Before: AMBRO and VAN ANTWERPEN, Circuit Judges, and
                   SHADUR, District Judge.*

                       (Filed: January 21, 2005)

                              _________

                              OPINION


 VAN ANTWERPEN, Circuit Judge.

           Appellant Odell Robert Johnson was convicted of numerous


       *
       Hon. Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.
 drug offenses following a jury trial before the Honorable Cynthia M.
 Rufe. Appellant now challenges the admissibility of incriminating
 tape recordings that were played for the jury during his trial.
 Specifically, Appellant claims that the admission of recorded
 conversations between himself and co-conspirators violated his Sixth
 Amendment right to confront witnesses where the co-conspirators did
 not testify and the government did not show that the co-conspirators
 were unavailable.1

         Appellant argues that we should extend the Supreme Court’s
 recent holding in Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
 1354 (2004), to create an unavailability requirement in all cases
 where the prosecution wishes to admit out-of-court statements.
 Because the Supreme Court limited its holding in Crawford to
 testimonial statements, see United States v. Hendricks, No. 04-2465,
 2005 WL 81899 (3d Cir. 2005) at *5, previous jurisprudence
 allowing the admission of non-testimonial statements remains
 untouched. We therefore affirm the District Court’s decision to admit
 the non-testimonial statements that are challenged in this case.

                                  I.

         On October 8, 2002, a federal grand jury indicted Appellant,
 alleging the following federal crimes: conspiracy to possess with the


       1
        Appellant challenges the admission of two sets of recordings.
The first set consisted of interactions between Appellant and a
government informant. The second set consisted of drug-related
telephone conversations between Appellant and a number of co-
conspirators that were recorded by a court-authorized wiretap.

                                  2
intent to distribute 500 grams or more of cocaine in violation of 21
U.S.C. § 846; use of a telephone to facilitate drug distribution in
violation of 21 U.S.C. § 843(b); six counts of distribution of cocaine
in violation of 21 U.S.C. § 842(a)(1); and two counts of interference
with interstate commerce by robbery in violation of 18 U.S.C. § 1951.
A jury trial commenced in the Eastern District of Pennsylvania on
June 25, 2003.

       During the trial, the government presented the testimony of
Terrence Perkins and Derek Wayns, two cooperating co-defendants.
Both witnesses testified regarding various drug transactions involving
Appellant. Their testimony indicated that Appellant had been
involved in a scheme to steal cocaine from another drug dealer in
Philadelphia in August to September 2000, and had made two trips
to Houston to obtain cocaine in June to July 2001 and December
2001.

         The government also played a number of video and audio
tapes and distributed transcripts of some of the recordings to the jury.
One set of audio tapes consisted of telephone conversations between
Johnson and a confidential government informant in which the two
were arranging for particular drug transactions. The government also
played videotapes for the jury which showed Appellant selling drugs
to the informant. Pennsylvania State Trooper Tyson Havens testified
that the confidential source had consented to being recorded. He also
identified the voices on the audio tapes and testified regarding the
procedures he followed in making and collecting the tapes. The
confidential informant did not testify at trial.

       Another set of recordings included various drug-related


                                   3
 telephone conversations that were obtained during the course of a
 court-authorized wiretap. None of the individuals whose voices
 appear on the wiretap recordings testified at trial. The government
 offered all of the recordings into evidence without objection.2

        The jury convicted Appellant of all charges except the two
 counts of interference with interstate commerce by robbery. On
 February 3, 2004, the District Court entered the judgment and
 imposed a sentence of 360 months in prison, followed by 8 years of
 supervised release, a fine of $2,500, and a special assessment of $800.

                                   II.

         Pursuant to 18 U.S.C. § 3231, the District Court properly
 exercised subject matter jurisdiction over the federal criminal charges
 arising under 21 U.S.C. §§ 841(a)(1), 843(b), and 846 as well as 18
 U.S.C. § 1951. Appellant filed a timely Notice of Appeal on
 February 10, 2004, and this Court has jurisdiction over the appeal
 pursuant to 28 U.S.C. § 1291.

        Where the appellant failed to object to the admission of
 evidence during trial, this Court reviews the decision to admit that
 evidence for plain error. United States v. Adams, 252 F.3d 276, 278-
 79 (3d Cir. 2001) (citing Johnson v. United States, 520 U.S. 461, 466


       2
         Appellant initially objected to the recordings of conversations
and meetings between himself and the confidential source on the basis
that they may not have been taken voluntarily. However, after hearing
the informant state on tape that the recordings were voluntary, Appellant
withdrew the objection. App. at A154.

                                   4
(1997)); see also Fed. R. Crim. P. 52(b). This Court recently
explained our role in exercising plain error review:

       Under plain error review, we may grant relief if (1)
       the District Court committed an “error,” (2) it was
       “plain,” and (3) it affected “substantial rights” of the
       defendant. United States v. Olano, 507 U.S. 725, 732
       (1993). “A deviation from a legal rule is [an] ‘error.’”
       United States v. Russell, 134 F.3d 171, 180 (3d Cir.
       1998) (citation omitted). It is “plain” when “‘clear’ or
       ‘obvious.’” Id. (citation omitted). In order for an error
       to affect “substantial rights,” it must have been
       “prejudicial”; in other words, “it must have affected
       the outcome of the district court proceedings.” Olano,
       507 U.S. at 734. If these requirements are satisfied,
       we should exercise our discretion to grant relief if the
       error “‘seriously affects the fairness, integrity or
       public reputation of judicial proceedings.’” Id. at 736
       (citation omitted); see also Adams, 252 F.3d at 284-
       85.

United States v. Plotts, 359 F.3d 247, 249 (3d Cir. 2004).

                                 III.

        Appellant argues that admitting the recordings into evidence
constituted plain error and violated his Sixth Amendment rights
because they contained hearsay statements of individuals who did not
testify at trial and were admitted without a showing that the
declarants were unavailable. The government states in its brief that


                                  5
there were three types of statements found on the tapes, all of which
are admissible under the federal hearsay and nonhearsay rules. First,
the statements of Appellant himself are admissible as party
admissions under Fed. R. Evid. 801(d)(2)(A). Second, the statements
of individuals other than Appellant recorded from the wiretap are co-
conspirator statements, admissible under Fed. R. Evid. 801(d)(2)(E).
Finally, the statements of the confidential informant do not fit within
the definition of hearsay provided in Fed. R. Evid. 801(c) because
they were not offered for the truth of the matter asserted; they were
offered to provide context to Appellant’s admissions.

        While we may agree with the government’s assertions with
respect to the Federal Rules of Evidence, it should be noted that
Appellant does not challenge the admissibility of the tapes under
those rules; this appeal focuses on the rights conferred by the
Confrontation Clause of the Sixth Amendment. The Confrontation
Clause confers rights that cannot be satisfied merely by meeting the
technical requirements of the Federal Rules of Evidence. In Crawford
v. Washington, the Court cautioned that “[l]eaving the regulation of
out-of-court statements to the law of evidence [alone] would render
the Confrontation Clause powerless to prevent even the most flagrant
inquisitorial practices.” 541 U.S. 36, __, 124 S. Ct. 1354, 1364
(2004). As such, the question of whether or not the recordings were
admissible under the Federal Rules of Evidence is separate from our
Sixth Amendment Inquiry.

       Supreme Court precedent prior to Crawford clearly allows for
non-testimonial co-conspirator statements to be admitted over Sixth
Amendment challenges. United States v. Inadi, 475 U.S. 387, 106 S.
Ct. 1121 (1986). Inadi, like the case at bar, involved the admissibility


                                   6
of wiretap recordings that included statements by co-conspirators who
did not testify at trial. The Court held that the Confrontation Clause
does not require a showing that the co-conspirators were unavailable
as a condition for admitting the recordings. Id. at 400, 106 S. Ct. at
1129. In so holding, the Court drew a clear line between the
admissibility of statements made during prior testimony and non-
testimonial co-conspirator statements. Id. at 394-95, 106 S. Ct. at
1126.

         The Court noted that the requirement of establishing
unavailability was developed in cases involving former testimony,
which “seldom has independent evidentiary significance on its own,
but is intended to replace live testimony.” Id. at 394, 106 S. Ct. at
1126. The Court then distinguished non-testimonial co-conspirator
statements, noting that “[b]ecause they were made while the
conspiracy is in progress, such statements provide evidence of the
conspiracy’s context that cannot be replaced, even if the declarant
testifies to the same matters in court.” Id. at 395, 106 S. Ct. at 1126.
Moreover, “co-conspirator statements derive much of their value
from the fact that they are made in a context very different from trial,
and therefore are usually irreplaceable as substantive evidence.” Id.
at 395-96, 106 S. Ct. at 1126.

         Appellant now urges us to reconsider the ruling in Inadi in
light of the Supreme Court’s recent decision in Crawford. In
Crawford, the Court held that out-of-court statements which qualify
as testimonial are inadmissible under the Confrontation Clause unless
the declarant is unavailable and the defendant had the opportunity to
cross-examine the declarant. 541 U.S. at __, 124 S. Ct. at 1374.
Appellant argues that this ruling should be extended to apply to all


                                   7
out-of-court statements, not only testimonial statements.

        This Court recently decided a very similar issue in United
States v. Hendricks. In that case, the trial court assumed that
Crawford only applied to testimonial statements but nevertheless
excluded wiretap statements on the theory that they “qualified as
testimonial statements and thus fell within the rule of Crawford.”
Hendricks, 2005 WL 81899 at *2. We reversed the trial court’s
ruling, concluding that wiretap statements are not “testimonial,” and
that the Supreme Court in Crawford intended to maintain the
distinction between testimonial and non-testimonial hearsay. Id. at
*5.

        As we noted in Hendricks, Crawford involved only
testimonial statements, and the Court had no reason to reconsider
previous jurisprudence concerning non-testimonial statements.
However, Appellant would have us treat Crawford as an invitation to
ignore Inadi and create, for the first time, an unavailability
requirement in all cases where the prosecution wishes to admit out-
of-court statements. Appellant ignores the fact that the Supreme
Court’s reasoning in Crawford actually relies on the traditional
distinction between testimonial and non-testimonial statements. In
his majority opinion, Justice Scalia traced the history of the
confrontation requirement and found that “the principal evil at which
the Confrontation Clause was directed was the civil-law mode of
criminal procedure, and particularly its use of ex parte examinations
as evidence against the accused. Crawford, 541 U.S. at __, 124 S.
Ct. at 1364. In drafting the Sixth Amendment right to confront
“witnesses,” the Framers were creating a right to confront “those who
‘bear testimony.’” Id. “The constitutional text, like the history


                                 8
underlying the common-law right of confrontation, thus reflects an
especially acute concern with a specific type of out-of-court
statement.” Id. (emphasis added).

        The holding in Crawford was thus confined to the question of
whether testimonial statements could be admitted without first
showing unavailability and a prior opportunity to cross-examine, and
that case has no impact on the Court’s prior decisions regarding non-
testimonial statements. Moreover, the Court reaffirmed that the Sixth
Amendment allows for different treatment of testimonial and non-
testimonial statements:

       Where nontestimonial hearsay is at issue, it is wholly
       consistent with the Framers’ design to afford the
       States flexibility in their development in hearsay
       law.... Where testimonial evidence is at issue,
       however, the Sixth Amendment demands what the
       common law required: unavailability and a prior
       opportunity to cross-examine.

Id. at __, 124 S. Ct. At 1374. This is a clear expression of the
Supreme Court’s intent to retain the distinction between testimonial
and non-testimonial statements in our Sixth Amendment
jurisprudence.     Therefore, Appellant’s argument that the
Confrontation Clause necessarily imposes the same requirements for
admitting non-testimonial statements as it does for testimonial
statements is misguided.

        None of the statements contained in the recordings at issue in
this case were testimonial. Hendricks, 2005 WL 81899 at *7-*9


                                  9
(holding that wiretap statements and statements of defendants or their
co-conspirators made in the conversations with confidential
informants are non-testimonial). Therefore, the District Court’s
decision to admit the recordings without first requiring a showing of
unavailability did not violate Appellant’s Sixth Amendment right to
confront witnesses and did not constitute plain error.

       For the foregoing reasons, we affirm Johnson’s conviction.




                                 10
