                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-4-2004

USA v. Johnson
Precedential or Non-Precedential: Precedential

Docket No. 03-4066




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                     PRECEDENTIAL           Senior Appellate Counsel
                                            Curtis R. Douglas (argued)
    UNITED STATES COURT OF                  Assistant United States Attorney
           APPEALS                          615 Chestnut Street
     FOR THE THIRD CIRCUIT                  Philadelphia, Pa. 19106

                                               Attorneys for Appellee
              No. 03-4066
                                            Elizabeth K. Ainslie
                                            Anne E. Kane (argued)
   UNITED STATES OF AMERICA                 Schnader Harrison Segal & Lewis LLP
                                            1600 Market Street, Suite 3600
                    v.                      Philadelphia, Pa. 19103

        STANLEY JOHNSON,                       Attorneys for Appellant

                            Appellant
                                                  OPINION OF THE COURT

    On Appeal from the United States
              District Court
                                            GREENBERG, Circuit Judge.
 for the Eastern District of Pennsylvania
        (D.C. Crim. No. 00-00231)
      Honorable Petrese B. Tucker,
                                              I. FACTUAL AND PROCEDURAL
              District Judge
                                                        HISTORY


      Argued September 23, 2004
                                                   This matter comes on before this
                                            court on Stanley Johnson’s appeal from a
  BEFORE: MCKEE, ALDISERT and
                                            judgment of conviction and sentence
    GREENBERG, Circuit Judges
                                            entered in this criminal case on October
                                            27, 2003. The district court had
       (Filed: November 4, 2004)
                                            jurisdiction pursuant to 18 U.S.C. § 3231
                                            and we have jurisdiction under 28 U.S.C.
                                            § 1291.1
Patrick L. Meehan
United States Attorney
Laurie Magid                                  1
                                                This case previously reached our
Deputy United States Attorney               court after Johnson’s conviction at his
for Policy and Appeals                      first trial in January 2001. In February
Robert A. Zauzmer                           2001, the district court granted Johnson a
Assistant United States Attorney            new trial because the government had not
        The background of the case is as          then stole the vehicle.2 The indictment
follows. On May 2, 2000, a grand jury             alleges that all three men were armed and
returned a three-count indictment against         that Johnson acted as a lookout.
Johnson charging him with conspiracy to
commit carjacking, in violation of 18                     At the outset of the trial,
U.S.C. § 371, carjacking, in violation of         Johnson’s attorney sought to prevent the
18 U.S.C. § 2119, and using and carrying          government from introducing evidence
a firearm in furtherance of a crime of            related to Johnson’s 1995 conviction for
violence, in violation of 18 U.S.C. §             theft for impeachment purposes pursuant
924(c)(1). The indictment named Willie            to 18 Pa. Cons. Stat. Ann. § 3921 (West
Ingram and Anthony Milton as co-                  1983). 3 The government argued on
conspirators. In particular, it charged           alternative grounds that the evidence of
that on July 2, 1998, Johnson, Ingram             the prior conviction could be used for
and Milton approached Donald Foster               impeachment purposes under Federal
and Sonia Smith-Burgest as they exited            Rule of Evidence 609. First, it
Smith-Burgest’s 1995 Chevy Blazer and             maintained that the evidence was
that the three co-conspirators forced             admissible pursuant to Rule 609(a)(1) as
Smith-Burgest to remove her jewelry and           a crime punishable by imprisonment in
                                                  excess of one year and whose probative
                                                  value outweighed its prejudicial effect on
                                                  Johnson. Second, the government
                                                  asserted that the evidence of the prior
                                                  conviction was admissible as a crime
provided his attorney with notice that one
                                                  involving dishonesty or false statement
of the victims in the carjacking would
                                                  pursuant to Rule 609(a)(2).
identify Johnson as one of the
perpetrators. Johnson then filed a motion
                                                          After hearing argument, the
for judgment of acquittal in the district
                                                  district court found that the evidence was
court, arguing that the evidence
presented at the first trial was not
sufficient to support a conviction. After           2
                                                     The indictment does not charge that
the district court denied his motion,             the jewelry was stolen.
Johnson appealed. In a not precedential
                                                    3
opinion dated May 7, 2002, exercising                 The district court previously had
jurisdiction under 28 U.S.C. § 1291               denied Johnson’s motion to preclude
pursuant to the collateral order doctrine,        introduction of the prior conviction on
we affirmed the district court’s denial of        cross-examination and thus his attorney
the motion for judgment of acquittal and          was asking the court to revisit this issue.
remanded the case to the district court for       We do not know the basis for the earlier
a second trial. United States v. Johnson,         ruling. The appeal here, however,
35 Fed. Appx. 358 (3d Cir. 2002) (table).         challenges only the second ruling.

                                              2
admissible under Rule 609(a)(2) stating:          anything and that she did not see any gun
                                                  in his hand. Foster also testified, but was
       I think that if you take                   able to identify only Ingram as one of the
       something with the intent                  carjackers, as he did not get a good look
       to benefit yourself and you                at the faces of the other two perpetrators.
       know you’re not entitled to                He indicated, however, that Smith-
       it, that is a sufficient                   Burgest did get a good look at them.
       element of dishonesty to                   Foster explained that he could not
       bring it within the rule.                  identify the man who ordered Smith-
       And it is my opinion that it               Burgest to remove her jewelry, but that
       would be appropriate to                    he was “the short guy.” AP at 127. He
       cross examine Mr. Johnson                  further testified that the two taller men,
       as to the theft.                           Ingram and another individual, pointed
                                                  guns at him. Of the three men, Ingram
AP at 34.4 In view of that ruling the             and Johnson were significantly taller
court did not consider whether the                than Milton. Both Ingram and Milton
evidence was admissible under Rule                pled guilty to carjacking and, pursuant to
609(a)(1).                                        plea agreements, testified against
                                                  Johnson. Ingram and Milton testified
        At the trial, Smith-Burgest               that Johnson was armed at the time of the
positively identified Johnson and                 carjacking and that he participated in the
testified that he stood off to the side           crime.
during the carjacking and never said
                                                           Johnson testified in his own
                                                  defense. He said that on the evening of
  4                                               July 2, 1998, he had gone out around
    AP refers to Johnson’s appendix. The
                                                  midnight to try to buy some marijuana
government has contended that the
                                                  for personal use and that while he was on
district court also found that the evidence
                                                  the street he saw Milton and Ingram.
was admissible under Rule 609(a)(1) but
                                                  According to Johnson, Ingram was
we reject that argument as the court’s
                                                  holding a gun and asked him to “watch
reference to the crime having an
                                                  for cops.” AP at 155. Johnson explained
“element of dishonesty to bring it within
                                                  at trial that Ingram had a bad reputation
the rule” plainly tracks the language of
                                                  in the neighborhood and had “shot at
Rule 609(a)(2) that the crime have
                                                  people.” Id. He testified that he acted as
“involved dishonesty.” Moreover, the
                                                  a lookout during the robbery and
argument of the attorneys prior to the
                                                  carjacking because he was afraid that
district court announcing its
                                                  Ingram might shoot him if he did not
determination centered on whether
                                                  participate. Johnson testified that, after
Johnson’s offense involved “dishonesty”
                                                  the completion of the robbery, Ingram
within Rule 609(a)(2).

                                              3
yelled at him to get into the stolen car                circumstances which you
and that he did so. Johnson testified that              may consider in
he did not have a weapon during the                     determining the credibility
carjacking. On cross-examination, the                   of that witness.
prosecutor questioned Johnson regarding
his 1995 theft conviction for purposes of                       It is the sole and
impeachment.                                            exclusive right of you, the
                                                        jury, to determine the
       The district court gave the                      weight to be given to any
following instruction to the jury                       prior conviction as
regarding Johnson’s theft conviction:                   impeachment and the
                                                        weight to be given to the
               The testimony of a                       testimony of anyone who
       witness may be discredited                       has previously been
       or impeached by evidence                         convicted of a felony.
       showing that the witness
       has been convicted of a                                  You have heard that
       felony, a crime for which a                      the defendant Stanley
       person may receive a                             Johnson was convicted of a
       prison sentence of more                          crime. You may consider
       than one year.5 Prior                            that evidence as [sic]
       conviction of a crime that                       deciding, as you do with
       is a felony is one of the                        any other evidence, how
                                                        much weight to give the
                                                        defendant’s testimony.
  5                                                     This earlier conviction was
    We realize that the district court’s
                                                        brought to your attention
reference to “a prison sentence of more
                                                        only as one way of helping
than one year” tracks the language of
                                                        you decide how believable
Rule 609(a)(1). Nevertheless, we do not
                                                        his testimony was. You
believe that the court by the use of that
                                                        must not use his prior
language intended to suggest that it
                                                        conviction as proof of the
admitted the evidence under that rule as
                                                        crimes charged in this case
the jury was not concerned with the
                                                        or for any other purpose. It
distinction between Rules (a)(1) and
                                                        is not evidence that he is
(a)(2). Of course, if we are wrong as to
                                                        guilty of the crimes that he
the district court’s intentions it may say
                                                        is on trial for in this case.
so on the remand we are ordering when it
engages in the weighing process under
                                                 AP at 251-52. The jury found Johnson
Rule 609(a)(1), which in any event will
                                                 guilty on all three counts. The district
be required.

                                             4
court subsequently sentenced him to                       The government concedes that the
concurrent terms of 100 months in prison          district court erred in allowing it to
to be followed by three years of                  impeach Johnson as to his prior theft
supervised release. He timely appealed            conviction as a crime involving
his conviction.6                                  dishonesty or false statement under Rule
                                                  609(a)(2). Appellee’s br. at 12. It
                                                  maintains, however, as it did in the
                                                  district court, that the conviction was
            II. DISCUSSION                        admissible under Rule 609(a)(1) as a
                                                  crime punishable by imprisonment in
        Johnson maintains that the district       excess of one year whose probative value
court erred in allowing the government to         outweighed its prejudicial effect on
impeach his testimony with his 1995               Johnson. The government recognizes
theft conviction. He argues that the theft        that the district court “did not explicitly
conviction was not admissible under               address” this argument, yet it contends
Rule 609(a)(2) because it is not a crime          that “the court arguably did address the
that “involved dishonesty or false                argument, when it stated: ‘And it is my
statement.” Johnson further contends              opinion that it would be appropriate to
that the admission of his theft conviction        cross examine Mr. Johnson as to the
was reversible rather than harmless error         theft.’” Appellee’s br. at 16. The
and therefore we must reverse his                 government then argues that given the
convictions on all three counts.7                 absence of explicit findings we may
                                                  conduct a plenary review and, under that
  6
                                                  standard of review, we should find that
   The district court sentenced Johnson           the probative value of the theft
on October 8, 2003, but the judgment              conviction outweighed its prejudicial
was not entered on the district court             impact on Johnson. The government
docket until October 27, 2003.                    contends that, in any event, even if
  7                                               evidence of the conviction for theft
    Johnson also mounts a constitutional
                                                  should not have been admitted the error
challenge to his conviction under 18
                                                  was harmless.
U.S.C. § 924(c) for using and carrying a
firearm in furtherance of a crime of
                                                         We review a district court’s
violence, which carries with it a five-year
                                                  decision to admit evidence for abuse of
mandatory minimum sentence. Johnson
                                                  discretion but we exercise plenary review
asserts that, as applied to prosecutions
under the carjacking statute, section
924(c) violates the constitutional
principles providing for the separation of        sentence. We are satisfied that Johnson’s
powers because the executive branch’s             constitutional argument clearly is without
charging decision determines the                  merit so we do not discuss it.

                                              5
over a district court’s construction of the       in admitting the prior conviction as
Federal Rules of Evidence. United                 impeachment evidence under Rule
States v. Brown, 254 F.3d 454, 458 (3d            609(a)(2). Appellee’s br. at 11; see Cree
Cir. 2001). Rule 609 provides, in                 v. Hatcher, 969 F.2d 34, 37 (3d Cir.
relevant part:                                    1992) (“Because the district court lacks
                                                  discretion to engage in balancing, Rule
       (a) General rule. For the                  609(a)(2) must be interpreted narrowly to
       purpose of attacking the                   apply only to those crimes that, in the
       credibility of a witness,                  words of the Conference Committee,
                                                  bear on a witness’s propensity to testify
               (1) evidence that a                truthfully.”); Gov’t of V.I. v. Toto, 529
       witness other than an                      F.2d 278, 280 (3d Cir. 1976) (“[A]
       accused has been convicted                 witness may be impeached by evidence
       of a crime shall be                        of a prior conviction only if the
       admitted subject to Rule                   conviction is for a felony or for a
       403, if the crime was                      misdemeanor in the nature of crimen
       punishable by death or                     falsi.”). But as we also have indicated,
       imprisonment in excess of                  the government maintains that the
       one year under the law                     evidence was admissible under Rule
       under which the witness                    609(a)(1) and that, in the alternative, we
       was convicted, and                         should find that any error in admitting
       evidence that an accused                   Johnson’s 1995 theft conviction was
       has been convicted of such                 harmless.
       a crime shall be admitted if
       the court determines that                         Inasmuch as the district court held
       the probative value of                     that Johnson’s 1995 conviction for theft
       admitting this evidence                    was admissible under Rule 609(a)(2) as a
       outweighs its prejudicial                  crime involving dishonesty or false
       effect to the accused; and                 statement, it did not determine whether
                                                  the conviction was admissible under
             (2) evidence that                    Rule 609(a)(1). 8 In order for
       any witness has been                       impeachment evidence of a prior crime
       convicted of a crime shall                 to be admissible against an accused
       be admitted if it involved                 under that rule: (1) the crime must be
       dishonesty or false
       statement, regardless of the
       punishment.                                  8
                                                     As we have indicated we might be
                                                  wrong about this point, see n.5, supra,
As we have indicated, the government
                                                  but if we are the district court may say so
now concedes that the district court erred
                                                  on the remand.

                                              6
punishable by death or imprisonment in            contends that the court “arguably”
excess of one year under the law under            engaged in that process when it stated
which the witness was convicted; and (2)          that “it is my opinion that it would be
the court must determine that the                 appropriate to cross examine Mr.
probative value of admitting the evidence         Johnson as to the theft.” AP at 34. The
outweighs its prejudicial effect.                 government asks us to find that this
                                                  statement satisfies the balancing process
       The court’s decision to admit the          and contends that we owe deference to
evidence under Rule 609(a)(2) obviated            the district court’s decision. But we
the need for it to determine whether the          cannot accept this argument as we have
conviction qualifies as a crime                   concluded that the district court allowed
punishable by imprisonment in excess of           the impeachment evidence under Rule
one year under the law of Pennsylvania.9          609(a)(2) and that, therefore, it did not
At oral argument we noted this omission           reach nor did it attempt to address the
and asked Johnson’s attorney if there was         alternative ground for admission under
any dispute over whether his 1995                 Rule 609(a)(1). Thus, the court’s
conviction for purse snatching was                statement that it would be appropriate to
punishable by imprisonment for a term in          cross examine Johnson as to the
excess of one year. The attorney                  conviction related to its conclusion that
responded that there was no dispute on            the crime reflected dishonesty as that
this point and that Johnson agreed that           term is used in Rule 609(a)(2) rather than
the one-year statutory threshold in Rule          being the result of the court’s balancing
609(a)(1) had been satisfied. Thus, it            of interests under Rule 609(a)(1).
was possible for the conviction to be
used for impeachment purposes                             Ordinarily we review an
depending on the district court’s                 evidentiary ruling of a district court
resolution of the weighing question.              involving a balancing of interests for
                                                  abuse of discretion, but if the district
        As we have explained, the                 court does not articulate the reasons
government acknowledges that the                  underlying its decision there is no way to
district court did not explicitly engage in       review its exercise of discretion. See
the balancing process required by Rule            United States v. Agnew, No. 03-2654,
609(a)(1) for impeachment evidence to             2004 WL 21202662, at * 3,          F.3d
be admitted under that rule. Instead it           (3d Cir. Sept. 22, 2004). Nevertheless, a
                                                  failure by a district court to articulate its
                                                  basis for its exercise of discretion might
  9                                               not preclude us from determining
   The district court’s charge to the jury
                                                  whether we must remand a matter. As
suggests it believed that the one-year
                                                  we explained in Becker v. ARCO
requirement had been satisfied but it did
                                                  Chemical Co., 207 F.3d 176, 181 (3d Cir.
not say so expressly.

                                              7
2000), if “the district court fails to          discretion or plenary basis.10
explain its grounds for denying a
[Federal Rule of Evidence 403                          Furthermore, the record in this
balancing] objection and its reasons for        case does not permit us to assume that
doing so are not otherwise apparent from        admission of the prior conviction
the record . . . we need not defer to the       evidence would have been justified under
district court’s ruling, and we may             a Rule 609(a)(1) balancing analysis.
undertake to examine the record and             Thus, we treat the admission of the
perform the required balancing                  evidence on the basis used by the trial
ourselves.” While Becker was concerned          court as erroneous and undertake the
with Rule 403, we recently applied the          harmless error analysis that the
same principle under Federal Rule of            government contends should lead us to
Evidence 609(b) as an alternative ruling        uphold Johnson’s convictions.
in Agnew and we similarly could apply it
under Rule 609(a)(1).                                   Quoting the Supreme Court’s
                                                decision in Kotteakos v. United States,
        Here, however, inasmuch as the          328 U.S. 750, 765, 66 S.Ct. 1239, 1248
district court never ruled on nor               (1946), we previously have explained
addressed the government’s argument             that, “[i]f one cannot say, with fair
that the 1995 theft conviction was              assurance, after pondering all that
admissible under Rule 609(a)(1), the            happened without stripping the erroneous
quoted statement from Becker is                 action from the whole, that the judgment
inapposite. Becker cannot be applicable         was not substantially swayed by the
here because we are not dealing with a          error, it is impossible to conclude that
situation in which the district court           substantial rights were not affected.” 11
simply failed to explain its reasoning
under Rule 609(a)(1) but in which we              10
nevertheless could infer that the court              We are not suggesting that a court of
balanced the interests in favor of the          appeals must reverse whenever it appears
admission of the evidence. Rather, the          that the district court did not rule on a
district court had no reason to consider        question in a case. But here we are
whether the probative value of the              concerned with an unusual situation in
conviction outweighed its prejudicial           which there is a balancing analysis
effect under Rule 609(a)(1). Therefore          required on a very important question
we have no decision on this point to            that the district court should undertake in
review, whether on an abuse of                  the first instance and on which we cannot
                                                be certain that there is a clearly
                                                preferable answer.
                                                  11
                                                    An analysis of whether the
                                                substantial rights of a defendant were

                                            8
Toto, 529 F.2d at 283. After reviewing            the probative value of admitting the
the record we cannot say that the                 evidence outweighed its prejudicial
admission of the 1995 theft conviction            effect on Johnson it should reinstate the
did not affect Johnson’s substantial rights       conviction and sentence. Otherwise it
as it may have led the jury to disbelieve         should grant a new trial. In this regard
Johnson’s testimony that he did not have          we point out that even though we are
a weapon and only remained at the crime           holding that the impeachment evidence
scene because he feared Ingram. Indeed,           was admitted improperly and that the
the government concedes that “[i]n this           error was not harmless, the district court
case, the defendant’s credibility was             is not precluded from finding its
central to the case.” Appellee’s br. at 19.       probative value outweighed its
Therefore, the conviction cannot stand.           prejudicial effect on Johnson.

                                                          In reaching our result we have not
                                                  overlooked Johnson’s argument that we
          III. CONCLUSION                         should not remand the matter for the
                                                  district court to determine whether the
       Because the district court erred in        evidence is admissible under Rule
admitting Johnson’s prior theft                   609(a)(1) because the district court
conviction on the basis that it did and we        would abuse its discretion if it admitted
cannot uphold its admission at this time          the evidence under that rule. While we
on a different basis and such error was           do not preclude Johnson on a further
not harmless, we will vacate the                  appeal from raising that argument if the
judgment of conviction and sentence, and          court does admit the evidence and then
will remand this case for further                 reinstates the conviction and sentence,
proceedings. We will not, however,                we are not convinced on the current
order a new trial but instead we will             record that admitting the evidence would
instruct the district court on the remand         be an abuse of discretion. Thus, the
to undertake the weighing analysis that           district court should engage in the
Rule 609(a)(1) requires. If the court             weighing process in the first instance.
determines after making that analysis that
                                                         The judgment of conviction and
                                                  sentence entered on October 27, 2003,
                                                  will be vacated and the case will be
affected by the admission of evidence
                                                  remanded to the district court for further
includes consideration of a factor similar
                                                  proceedings in accordance with this
to one factor in the balancing test in
                                                  opinion.
which a district court engages under Rule
609(a)(1), namely, the gravity of the
prejudice that the admission of the
evidence would have on a defendant.

                                              9
United States v. Stanley Johnson, No. 03-         routine. Johnson’s prior purse snatch
4066                                              involved the theft of $15.00 three years
                                                  before the instant offense. Nothing about
McKee, Circuit Judge, Concurring                  it suggests the kind of callous violence
                                                  that is endemic in carjacking. See 18
        I join the opinion of my                  U.S.C. § 2119 (defining “carjacking” as
colleagues because I agree that admitting         the use of force, violence or intimidation
evidence of Johnson’s prior theft                 to take a vehicle transported in interstate
conviction constituted error under Rule           or foreign commerce from the person of
609(a)(2). I write separately because, in         another with “intent to cause death or
remanding for further proceedings, we             serious bodily harm”).
are allowing the District Court discretion
to open the record for additional                         Unlike an armed carjacking, a
testimony on the admissibility of the             purse snatch is frequently an “impulse
1995 theft conviction (purse snatch)              crime” devoid of the viciousness that so
under Rule 609(a)(1). At oral argument,           often characterizes a carjacking. See
defense counsel did not object to a               United States v. Lipscomb,
remand to allow the District Court an             702 F.2d 1049, 1058 (D.C. Cir. 1983)
opportunity to balance the potential              (referring to purse snatching and
prejudice against the probative value,            shoplifting as impulse crimes).
although she did strenuously argue that           Nevertheless, a purse snatch is similar to
admitting the prior conviction on this            a carjacking insofar as both are crimes
record would be reversible error. My              that jurors can readily relate to given the
colleagues state that “the record in this         familiar precautions that must be
case does not permit us to assume that            employed to guard against one’s purse
admission of the prior conviction                 being stolen. However, it suggests
evidence would have been justified under          neither the force nor the confrontation
a Rule 609(a)(1) balancing analysis.”             involved in a carjacking. Given the three
Maj. Op. at 12. I agree. However, I do            years that lapsed between the two crimes,
not think that this record, absent more,          the extent to which the two crimes
could support a conclusion that the               differed, and the potential for jurors to
probative value of Johnson’s conviction           doubt Johnson’s testimony because they
for a purse snatching outweighs the               could so easily relate to the victim of the
prejudicial value of that conviction.             prior offense and the victims of the
                                                  carjacking, I do not think that this record
        Carjacking is, of course, a               would allow a court to conclude that the
particularly shocking crime because we            probative value of the purse snatch
can all relate to an innocent victim who          outweighed its prejudicial effect.
is suddenly snatched from his/her car at
gunpoint while in the midst of some daily                In balancing prejudice against

                                             10
probative value under Rule 609(a)(1) a            the first place.
court must consider the nature of the
prior crime, the age of the prior                        Therefore, I doubt that a proper
conviction, the importance of the                 balancing of prejudice and probative
defendant’s testimony, and the                    value can tip in favor of admission
importance of the defendant’s credibility.        without more being placed on the
Government of the Virgin Islands v.               admission side of the scale. However,
Bedford, 571 F.2d 758, 761 n.4 (3d Cir.           inasmuch as defense counsel did not
1982). Having urged the District Court            object to our remanding for further
to admit Johnson’s prior offense under            proceedings when that was suggested
an incorrect theory, the government now           during oral argument, that possibility is
argues that “the evidence against                 not foreclosed. If the District Court
Johnson was consistent and persuasive,            decides to allow additional testimony
in contrast to which Johnson’s testimony          before making a ruling under Rule
was dubious on its face.” Br. at 22               609(a)(1), the record may, at that point,
(emphasis added). In contrast, the                support a determination that the
government argues that “the testimony of          probative value of the 1995 purse snatch
[the prosecution witnessses] was                  outweighs its prejudicial impact.
consistent, and at odds with Johnson’s
seemingly contrived account.” Id. Thus,
Johnson’s prior conviction was not
crucial to the government’s case. Yet, it
was crucial to the defense. The only
evidence of Johnson’s innocence was
Johnson’s own explanation of his
presence at the scene of this carjacking.
Nevertheless, the government argues that
“the defendant’s credibility was central
to the case.” Br. at 19. It was certainly
central to the defendant’s case, but the
government’s brief suggests that it was
not very important to the government’s
case. Given the government’s
contentions regarding Johnson’s
“seemingly contrived account” that was
“dubious on its face,” and the “consistent
and persuasive” evidence against him, it
is difficult to understand why the
government insisted on eliciting
problematic testimony under Rule 609 in

                                             11
