                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-2-1999

United States v Johnson
Precedential or Non-Precedential:

Docket 98-2012




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation
"United States v Johnson" (1999). 1999 Decisions. Paper 316.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/316


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 1999 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed December 2, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-2012

UNITED STATES OF AMERICA

v.

KENNETH JOHNSON

       Appellant.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 97-cr-00241-1)
District Judge: Honorable Clarence C. Newcomer

Submitted Under Third Circuit LAR 34.1(a)
September 30, 1999

BEFORE: NYGAARD, ALITO and ROSENN, Circuit Judges.

(Filed December 2, 1999)
       Peter A. Levin, Esq.
       1927 Hamilton Street
       Philadelphia, PA 19130

       Counsel for Appellant Kenneth
       Johnson

       Anthony J. Wzorek, Esq.
       Office of United States Attorney
       615 Chestnut Street
       Suite 1250
       Philadelphia, PA 19106

       Counsel for Appellee United States
       of America

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant, Kenneth Johnson, was convicted of two counts
of conspiracy to interfere with interstate commerce by
robbery, see 18 U.S.C. S 1951, and one count of use of a
firearm during a crime of violence, see 18 U.S.C. S 924(c)(1).

The first robbery occurred on December 23, 1995, at
Littman Jewelers in Cheltenham, Pennsylvania. An
employee testified that he was at the front of the store
placing jewelry in display cases when he saw three males
enter the store (although more were implicated in this
robbery). Two of the three, Nafis Murray and Darrell
Williams, pleaded guilty to this robbery and testified
against the third, appellant Johnson. They testified that
Murray was armed with a bat, as was another co-
defendant, William Cole. Cole stood near the entrance,
while Johnson and Williams wielded sledgehammers to
break open the jewelry display cases. After smashing the
two jewelry display cases, they took diamond rings. During
the robbery, Murray threatened to hit an employee with the
baseball bat unless she put the phone down.

The second robbery took place on March 19, 1996, at the
Best Products, Inc., store located in Hampton, Virginia. An
employee there testified that he saw four males enter the

                                2
store. One of them put a gun to the employee's head and
told him not to say anything. The other three broke open
jewelry display cases and stole jewelry before fleeing. Three
co-defendants, Nafis Murray, Darrell Williams, and Ferrus
Riddick, pleaded guilty to this robbery and testified against
the fourth, Johnson. Williams testified that it was he who
put a gun, owned by Johnson, to a security guard's head
while Johnson smashed a jewelry display case with a
sledgehammer.

Johnson was tried for both robberies before a jury in the
Eastern District of Pennsylvania. He was found guilty on all
counts, and was sentenced to 146 months in prison. He
appeals, arguing that the district court erred by: (1)
enhancing his sentence four levels for use of a dangerous
weapon during a robbery, see U.S.S.G. S 2B3.1(b)(2)(D); (2)
declining to conduct an in camera review of the presentence
reports for Murray and Williams to check for impeachment
material; (3) restricting defense questioning of Murray and
Williams regarding other robberies they have participated
in; (4) ruling the government's failure to disclose certain
exculpatory material under Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) until after trial
was harmless error; (5) admitting testimony of Murray and
Williams when special treatment they received might
amount to payment in violation of the criminal gratuity
statute, 18 U.S.C. S 201(c)(2); (6) allowing testimony of an
uncharged robbery allegedly involving Johnson; and (7)
instructing the jury that it could consider Johnson's
"immediate flight" following his indictment.

We review the court's factual findings for clear error and
have plenary review over conclusions of law. Our review of
a district court's interpretation of the sentencing guidelines
is de novo. See United States v. Weadon, 145 F.3d 158, 159
(3d Cir. 1998). We review the court's decisions on in camera
review, admission of evidence, and instructions to the jury
for abuse of discretion. We will affirm.

I.

A.

The district court calculated Johnson's sentence using
the 1997 Sentencing Guidelines, which provide a base

                               3
offense for robbery of 20. See U.S.S.G.S 2B3.1(a). This base
level may be enhanced if a weapon was used during the
robbery. U.S.S.G. S 2B3.1(b)(2) provides:

       (A) If a firearm was discharged, increase by 7 levels; (B)
       if a firearm was otherwise used, increase by 6 levels;
       (C) if a firearm was brandished, displayed, or
       possessed, increase by 5 levels; (D) if a dangerous
       weapon was otherwise used, increase by 4 levels; (E) if
       a dangerous weapon was brandished, displayed, or
       possessed, increase by 3 levels; or (F) if a threat of
       death was made, increase by 2 levels.

The terms "brandished," "dangerous weapon," and
"otherwise used" are defined in the commentary to U.S.S.G.
S 1B1.1. See U.S.S.G. S 2B3.1, Commentary, application
note 1.

       (c) "Brandished" with reference to a dangero us weapon
       (including a firearm) means that the weapon was
       pointed or waved about, or displayed in a threatening
       manner.

       (d) "Dangerous weapon" means an instrument c apable
       of inflicting death or serious bodily injury. Where an
       object that appeared to be a dangerous weapon was
       brandished, displayed, or possessed, treat the object as
       a dangerous weapon.

       (g) "Otherwise used" with reference to a dan gerous
       weapon (including a firearm) means that the conduct
       did not amount to the discharge of a firearm but was
       more than brandishing, displaying, or possessing a
       firearm or other dangerous weapon.

U.S.S.G. S 1B1.1, commentary, application note 1.

When the district court enhanced Johnson's sentence
four levels because he "otherwise used" a dangerous
weapon pursuant to U.S.S.G. S 2B3.1(b)(2)(D), it only
considered the conduct in the Littman Jewelers robbery,
where no guns were used. Johnson argues that no
enhancement was warranted because no dangerous
weapons were used in this robbery, or in the alternative
that the proper enhancement was three and not four levels
under U.S.S.G. S 2B3.1(b)(2)(E) because he merely

                                4
"brandished" a sledgehammer, but did not "otherwise use"
it during the robbery.

B.

As an initial matter, we reject Appellant's contention that
a sledgehammer, wielded in the course of a robbery and
used to smash open display cases in front of bystanders,
cannot be considered a dangerous weapon. Under the
circumstances, it clearly was "an instrument capable of
inflicting death or serious bodily injury." U.S.S.G. S 1B1.1,
application note 1(d). So was the baseball bat carried by
one of Johnson's co-defendants. Appellant argues that
because any object may conceivably be used to harm
someone, we would render the definition of a "dangerous
weapon" devoid of meaning if we extended it to a
sledgehammer. However, a common-sense look shows this
is not true.

A baseball bat, carried onto the baseball diamond, is
clearly a sport implement and not a dangerous weapon.
Likewise, a sledgehammer, properly employed on a
construction site, is clearly a tool. But when these items are
carried into the scene of a robbery, and employed to
threaten bystanders, they just as clearly become dangerous
weapons. Put another way, does it matter if a robber uses
a switch-blade knife or a steak knife? We think not and
opine that the distinction would likely not be significant to
any potential victims of either. Both are dangerous weapons
when used in a robbery. In the context of this case, the
sledgehammer and the baseball bat both fit the definition of
a "dangerous weapon" contained in U.S.S.G.S 1B1.1,
application note 1(d), and the circumstances demonstrate it
was reasonable for the District Court to treat them as such.

C.

We turn next to the question of whether these dangerous
weapons were merely "brandished," justifying a three level
sentence enhancement under S 2B3.1(b)(2)(E), or whether
they were "otherwise used" in the course of the robbery,
warranting a four level enhancement under S 2B3.1(b)(2)(D).
Whether Johnson's sentence should have been enhanced

                               5
by three or four levels depends on how one interprets the
Guidelines.

Courts of Appeals have generally distinguished between
the general pointing or waving about of a weapon, which
amounts to "brandishing," and the pointing of a weapon at
a specific victim or group of victims to force them to comply
with the robber's demands. In essence, "brandishing"
constitutes an implicit threat that force might be used,
while a weapon is "otherwise used" when the threat
becomes more explicit. See United States v. Gilkey, 118
F.3d 702, 705-06 (10th Cir. 1997) (gun was "otherwise
used" to force victims to move, despite lack of evidence
regarding physical contact with victims or use of verbal
threats); United States v. Elkins, 16 F.3d 952 (8th Cir.
1994) (knife was "otherwise used" to force victim to move);
United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.
1991) (knife was "otherwise used" when intentionally held
to victim's throat as robber made verbal threats); United
States v. Burton, 126 F.3d 666, 669 (5th Cir. 1997) (gun
was "otherwise used" when pointed at victims during bank
robbery to ensure their compliance). But see United States
v. Matthews, 20 F.3d 538 (2d Cir. 1994) (pointing firearms
at customers during bank robbery, ordering them tofloor,
and threatening to kill them if they did not comply
amounted to "brandishing").

We too, have considered the question of whether a
firearm was "otherwise used" during a robbery, or merely
"brandished." We reasoned that a firearm is "brandished"
when it is waved about in a generally menacing manner
during a robbery. See United States v. Johnson, 931 F.2d
238, 240-41 (3d Cir. 1991). When, however, that firearm is
leveled at the head of a victim, and especially when this act
is accompanied by explicit verbal threats, we have had no
difficulty determining that the firearm was"otherwise
used." Id.

We agree with the Court of Appeals for the First Circuit,
which held that

       a person may "brandish" a weapon to "advise" those
       concerned that he possesses the general ability to do
       violence, and that violence is imminently or

                               6
       immediately available. . . . Altering this general display
       of weaponry by [for instance] specifically leveling a
       cocked firearm at the head or body of a bank teller or
       customer, ordering them to move or be quiet according
       to one's direction, is a cessation of "brandishing" and
       the commencement of "otherwise used."

United States v. LaFortune, ___ F.3d ___, No. 99-1059, 1999
WL 701674, at *4 (1st Cir. Sept. 15, 1999). Pointing a
weapon at a specific person or group of people, in a manner
that is explicitly threatening, is sufficient to make out
"otherwise use" of that weapon. We hold this is true when
any dangerous weapon is employed: It need not be a
firearm.

Other courts have held that verbal threats are not always
required to make out "otherwise use" of a weapon. Some
have held that explicit threats may be made either verbally,
or through conduct alone. See United States v. Nguyen, ___
F.3d ___, No. 98-40066, 1999 WL 740439, at * 5 (5th Cir.
Sept. 22, 1999). Here, however, Johnson's sentence was
properly enhanced even were we to require verbal threats.
In addition to Johnson's use of a sledgehammer to smash
open display cases, one of the co-defendants wielded a
baseball bat in a threatening manner and testified that he
used it to intimidate people in the store. This co-defendant
testified that on one occasion he held the baseball bat up
high and told an employee to put the phone down or he
would break her neck, or "knock her damn head off."
Johnson's co-defendant with the baseball bat thus clearly
"otherwise used" that dangerous weapon to facilitate the
robbery when he told a specific employee to put the phone
down, and backed up his command by raising the bat and
threatening to harm or kill her with it.

The District Court was entitled, for sentencing purposes,
to consider Johnson's behavior and that of his co-
defendants. See United States v. Nguyen, ___ F.3d ___, No.
98 40066, 1999 WL 740439, at *4 (5th Cir. Sept. 22, 1999)
(Sentencing adjustments may include "all reasonably
foreseeable acts and omissions in furtherance of the jointly
undertaken criminal activity.") (citing clarification in
U.S.S.G. S 1B1.3(a)(1)(B), effective Nov. 1, 1998); United
States v. Missick, 875 F.2d 1294, 1301 (7th Cir. 1989)

                               7
("[Defendant] may still have been properly subject to an
enhanced sentence based on the possession of firearms by
[co-defendants] without individually possessing a firearm
under the theory of co-conspirator liability.") (citing
Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90
L. Ed. 1489 (1946)). Cf. United States v. Gonzalez, 918 F.2d
1129, 1135 n.3 (3d Cir. 1991) (noting in context of finding
criminal liability that facts of case would also allow
sentence enhancement of one defendant based on firearm
possession by another). We hold that from the combination
of factors we have described, a dangerous weapon was
"otherwise used" at the robberies, giving sufficient support
to the District Court's decision to enhance Johnson's
sentence to level 4.

In addition, the District Court may enhance Johnson's
sentence because he "otherwise used" a weapon, even
though he did not make the explicit verbal threat, because
his conduct was "equally coercive and threatening."
LaFortune, 1999 WL 701674 at *3, citing United States v.
Wooden, 169 F.3d 674, 676 (11th Cir. 1999). Johnson did
not merely stand at the front of the store holding the
sledgehammer for some legitimate purpose. He used it to
smash jewelry cases in front of customers and employees,
while his co-defendant held a baseball bat aloft to"break
necks" or "knock heads off." We have no doubt that the
customers and employees might well have felt coerced and
threatened by this conduct. And, we have no doubt at all,
that it amounted to more than the mere brandishing,
display or possession of a dangerous weapon. See U.S.S.G.
S 1B1.1, application note 1(g). The District Court was
entitled to give, and Johnson richly deserved, the four level
enhancement he received under U.S.S.G. S 2B3.1 (b)(2)(D).

II.

None of the remaining issues raised have merit, and we
will dispose of them summarily. First, the government
provided Johnson with large amounts of potentially
exculpatory material prior to trial, as required by Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963). The defense was allowed to cross-examine
prosecution witnesses on many areas affecting credibility.

                               8
Despite an unexplained late Brady disclosure, there is no
reasonable probability that it would have changed the
trial's outcome. See United States v. Bagley, 473 U.S. 667,
682, 105 S. Ct. 3375, 3383-84, 87 L. Ed. 2d 481 (1985).
The additional impeachment evidence would not have put
the whole case in such a different light as to undermine
confidence in the verdict, and would have been merely
cumulative. See Hollman v. Wilson, 158 F.3d 177 (3d Cir.
1998), cert. denied, ___ U.S. ___, 119 S. Ct. 1035, 143 L.
Ed. 2d 44 (1999). Thus, the decision on whether or not to
hold an in camera review of this material was well within
the district court's discretion.

Next, Johnson's arguments regarding the criminal
gratuity statute, 18 U.S.C. S 201 (c) (2), are without
foundation, and we have already rejected them in United
States v. Hunte, ___ F.3d ___, No. 97-1987, 1999 WL
649627 (3d Cir. Aug. 26, 1999).

The government offered evidence of the prior robbery for
the purpose of showing a common plan under Fed. R. Evid.
404(b). This is a legitimate reason to introduce this
evidence, and the prior robbery was clearly established. We
favor the admission of such evidence, "if relevant for any
other purpose than to show a mere propensity or
disposition on the part of the defendant to commit the
crime." United States v. Long, 574 F.2d 761, 766 (3d Cir.),
cert. denied, 439 U.S. 985, 99 S. Ct. 577, 58 L. Ed. 2d 657
(1978); see also United States v. Simmons, 679 F.2d 1042,
1050 (3d Cir. 1982), cert. denied, 462 U.S. 1134, 103 S. Ct.
3117, 77 L. Ed. 2d 1370 (1983). Johnson's bad acts were
used for a proper purpose that was not substantially
outweighed by a risk of unfair prejudice under Fed. R. Evid.
403. "In weighing the probative value of evidence against
the dangers . . . in Rule 403, the general rule is that the
balance should be struck in favor of admission." United
States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980). Once
again, the decision whether to admit it was within the
district court's considerable discretion.

Finally, there was both direct and circumstantial
evidence of Johnson's immediate flight. Following Johnson's
indictment, Special Agent Stephen J. Heaney of the FBI
began searching for him. While visiting the homes of

                               9
Johnson's friends and relatives, Agent Heaney advised
these people that a warrant had been issued for Johnson.
Indeed, appellant's own words indicated a conscious
awareness of the crimes with which he was charged -- he
admitted to one David Barberich, a police dispatcher, that
he knew he was sought by the FBI. Johnson even told
Barberich that Agent Heaney was the contact person for his
case. Thus, it was well within the district court's discretion
to give the immediate flight instruction.

III.

In sum, we reject appellant's arguments on every
allegation of error and conclude that the District Court did
not err. We will affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               10
