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


4-20-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2880




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-2880


                           UNITED STATES OF AMERICA

                                            v.

                                 JAMES W. JOHNSON,
                                     Appellant




                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (Dist. Court No. 01-cr-00394)
                      District Judge: Honorable Sylvia H. Rambo


                       Submitted under Third Circuit LAR 34.1(a)
                                    April 2, 2004

               Before: ALITO, FISHER and ALDISERT, Circuit Judges.

                                 (Filed: April 20, 2004)


                              OPINION OF THE COURT


ALDISERT, Circuit Judge.

      Because we write only for the parties who are familiar with the facts, the

procedural history and the contentions presented, we will not recite them except as

necessary to the discussion. James W. Johnson, an inmate at FCI Schuylkill, was
charged with possession of a knife-like weapon while incarcerated in violation of 18

U.S.C. § 1791, and has been found guilty by a jury and sentenced. He raises two

arguments on appeal: (1) the district court erred in determining that he had not made out a

prime facie case of selective prosecution and (2) the court clearly erred in finding that he

understood and knowingly and voluntarily waived his Fifth Amendment right against

compulsory self-incrimination. For the reasons that follow we reject both of Appellant’s

contentions.

       As a general rule, so long as there is probable cause to believe that a defendant has

committed an offense, the decision to prosecute rests in the prosecutor’s discretion.

Wayte v. United States, 470 U.S. 598, 607 (1985). To sustain a claim of selective

persecution, Johnson must demonstrate, first, disparate treatment of similarly situation

persons and, second, that this disparate treatment is a product of prospective decisions

deliberately based on some unjustifiable standard such as race, religion or some other

arbitrary classification. See United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989).

We agree with the district court that Appellant did not carry his heavy burden of

demonstrating that he was improperly singled out for prosecution.

       Johnson has failed to point to any evidence to establish that other similarly situated

persons were not prosecuted by the government for possessing weapons in prison. The

decision to prosecute was made because the knife-like weapon was found in Appellant’s

shoe, and Appellant admitted the knife was his and not his cell mate’s. Moreover the



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impetus for the search that resulted in the seizure of the knife was the report that the

Appellant, not his cell mate, had brandished it threateningly at another inmate. The

Appendix to the government’s response to Appellant’s motion to dismiss disclosed that

the government does actively pursue prison contraband possession cases like this,

including cases arising out of SCI Schuylkill. We conclude that the district court did not

err in denying Appellant’s motion to dismiss based upon alleged selective prosecution.

       As to Johnson’s argument regarding compulsory self-incrimination, it is clear that

the government is entitled to admit a defendant’s statement when it can show by a

preponderance of the evidence that the defendant engaged in a valid waiver of his

Miranda rights. Colorado v. Connolly, 479 U.S. 157, 168 (1986) (citations omitted). The

cumulative experience of the judiciary demonstrates that Miranda waivers have been

sustained when engaged in by criminal felons like Johnson, who have significant prior

experience with the legal system. See e.g. United States v. Burrous, 147 F.3d 111, 116-

117 (2nd Cir. 1998). We have examined the record and conclude that Johnson expressly

waived his Miranda rights both orally and in writing, and therefore the district court did

not err in dismissing Appellant’s motion to suppress his inculpatory statement to the FBI.

       After correctional officers found a homemade knife-like weapon made of metal

concealed in Appellant’s shoe, an FBI agent interviewed Appellant. Before the Appellant

gave his incriminating statement, the agent informed Appellant that he was from the FBI,

explained that he was interviewing Appellant regarding Appellant’s possession of a knife,



                                              3
advised Appellant of his Miranda rights and obtained from Appellant an express written

waiver of those rights. In addition, in a taped prison telephone conversation Johnson

once again admitted to possessing a knife in prison. We reject Appellant’s argument that

he thought that he was being interviewed by the FBI only for administrative procedures,

as Appellant clearly reflected in this conversation that he understood that he was the

subject of a criminal investigation. Appellant acknowledged that authorities “might be

trying to take [him] down to court,” he hoped that if they did he would get “no more than

. . . an extra six months” and he recognized that it was a distinct possibility that

authorities would bring charges even though “the[y] ain’t acting like, they pressing

charges . . . .” We conclude that the district court did not clearly err in finding that

Appellant knowingly and voluntary waived his Miranda rights, and accordingly, we

affirm the court’s denial of Appellant’s motion to suppress his inculpatory statements.

       We have considered all of the contentions presented by the parties and conclude

that no additional discussion is necessary.

       The judgment of the district court will be affirmed.




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