                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4386


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ALAN JOHNSON, a/k/a LA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:11-cr-00153-BO-2)


Argued:   September 19, 2014                 Decided:   February 3, 2015


Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and DAVIS,
Senior Circuit Judge.


Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.


ARGUED: Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem,
North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Alan    Johnson    appeals     his    convictions       for    various   crimes

relating to two armed robberies and his subsequent possession of

a firearm.        We affirm the denial of his motion to withdraw his

guilty plea to one count, but we otherwise reverse Johnson’s

convictions and remand for a new trial.

                                            I.

       The    charges    in   this   case       stem   from    two   armed   robberies

committed in July 2011 and Johnson’s possession of a firearm at

the time of his arrest the following month.                           Concerning the

first robbery, the government sought to prove that Johnson and

others conspired to rob drug dealer Eric Davis of his marijuana,

shot Davis several times during the robbery, and escaped with

cash   and    a   quantity      of   marijuana,        which   they   divided    among

themselves.       Regarding the second robbery, the government sought

to show that Johnson and at least one other man conspired to rob

insurance      agency    Able    Auto   Insurance        (“AAI”),     robbed    AAI   at

gunpoint, and escaped with more than $5,000.

       Johnson was indicted on the following counts:

       - two counts of conspiring to rob a business engaged
       in interstate commerce, see 18 U.S.C. § 1951 (Counts
       Two and Seven);

       - two counts of robbing      a   business engaged in
       interstate commerce, see 18 U.S.C. §§ 2, 1951 (Counts
       Three and Eight);




                                            2
       - two counts of possessing a firearm in furtherance of
       a crime of violence, see 18 U.S.C. § 924(c)(1)(A)
       (Counts Four and Nine);

       - one count of possessing with the intent to
       distribute   a  quantity  of marijuana, see 21 U.S.C.
       § 841(a)(1) (Count Five);

       - one count of possessing a firearm in furtherance of
       a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)
       (Count Six); and

       - one count of being a felon in possession                                  of    a
       firearm, see 18 U.S.C. § 922(g)(1) (Count Ten).

       Johnson pled guilty to the § 922(g)(1) charge (Count Ten)

but proceeded to trial on the rest of the charges.                                  The jury

returned a verdict of guilty against Johnson on all counts.

       More than two months after the completion of the trial,

Johnson       moved    to    withdraw       his       guilty    plea       to    Count       Ten,

contending      that    the       weapon   he       possessed   at     the      time    of    his

arrest       actually       did     not    satisfy      the     applicable         statute’s

definition of a firearm.                The district court denied the motion.

       The court eventually imposed a 188-month sentence on Counts

Two,       Three,   Seven,        and   Eight;      concurrent       60-     and   120-month

sentences on Counts Five and Ten; and consecutive sentences of

120 months and 300 months on Counts Six and Nine, for a total

sentence of 608 months. 1



       1
       On the government’s motion, the district court arrested
judgment on Count Four since it was based on the same firearm
involved in Count Six.



                                                3
                                                   II.

        Johnson first contends that the district court abused its

discretion in denying his motion to withdraw his guilty plea to

illegally possessing a firearm in violation of § 922(g)(1) as

charged in Count Ten.               We disagree.

       Because         a     defendant    does       not      have   an    absolute      right    to

withdraw a guilty plea that the district court has accepted, the

defendant must show “a fair and just reason” for doing so.                                      Fed.

R. Crim. P. 11(d)(2)(B).                   We review the denial of a motion to

withdraw a guilty plea for abuse of discretion.                                       See United

States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).

       Here,       Johnson       moved    to       withdraw      his    guilty      plea   to    the

charge of being a felon in possession of a firearm on the basis

that    the    firearm         at   issue      –    a    Rossi,      model    68,    .38-caliber

revolver       −       was    excluded      from        the    applicable        definition      of

“firearm” by 26 U.S.C. § 5845(a) and thus could not serve as a

basis    for       a       conviction     under         18    U.S.C.      § 922(g).        As    the

government explained in its response to the motion, however, the

definition         of      “firearm”      in   § 5845(a)         does      not   apply     in    the

context of § 922(g).                 Section 5845 governs what firearms are

required      to       have     special     taxes        or    registration         by   the    very

nature of the firearm itself, see 26 U.S.C. § 5841, and the

statute specifically provides that its definitions are “[f]or

the purpose of this chapter,” 26 U.S.C. § 5845.

                                                    4
     Johnson     does     not     continue    to   assert   his     innocence

concerning Count Ten, but he argues that the district court, in

the colloquy preceding the court’s acceptance of Johnson’s plea,

did not advise Johnson of all of the rights described in Rule 11

of the Federal Rules of Criminal Procedure.                 Rule 11 notes,

however, that “[a] variance from the requirements of this rule

is harmless error if it does not affect substantial rights,”

Fed. R. Crim. P. 11(h), and indeed there is no basis in the

record for concluding that the brevity of the colloquy had any

effect   on   Johnson’s    plea    decision   whatsoever.      We   therefore

conclude that the district court was well within its discretion

in denying Johnson’s motion to withdraw his plea.

                                     III.

     Johnson argues that the district court committed reversible

error by admitting a video recording and a transcript of his

interrogation which included a series of accusations regarding

Johnson’s involvement in several unrelated violent crimes.                  We

agree.        Most   of   the     interrogation     evidence      was    highly

prejudicial and lacked any probative value whatsoever.                  Because

we are unable to conclude that the erroneous admission of this

evidence was harmless, we reverse and remand for a new trial.

     When Johnson was arrested, police officers interviewed him

for more than two hours.           The interview, which was videotaped,

included questions to Johnson about criminal activity completely

                                       5
unrelated    to    the     charges      under      consideration        by    the    jury.

Johnson    was    asked    about   a    gang-related        murder      and   about    his

high-level       position     in       the       Bloods’    hierarchy.          Johnson

specifically admitted that he had once been instructed to kill

an individual in connection with his gang membership.                               He was

also questioned about his alleged involvement in other armed

robberies and in the distribution of illegal narcotics.

     Over Johnson’s objection, the district court admitted into

evidence     a       DVD     containing            the     entire        two-hour-plus

interrogation. 2      Likewise, the court admitted into evidence a

written transcript of the entire interrogation as well as a CD

containing a digital version of the full transcript.                            Although

it appears that the district court redacted the voluminous paper

transcript of the full interview and sent back only 16 pages

specifically relating to the AAI and Davis robberies, the CD of

the entire transcript was in evidence.                       The DVD of the full

interview went back to the jury room; it is unclear whether the

CD containing the full transcript also went back with the jury.

     On    appeal,    the    government          wisely    does   not    suggest      that

either the portion of the DVD or the transcript in which Johnson


     2
       The government attempted to play for the jury a DVD that
contained only two short clips from the full interview relating
to the offenses charged in the indictment.    The audio on this
abridged DVD, however, was unintelligible.



                                             6
was interrogated about unrelated violent criminal activity had

any probative value.            Indeed, for much of the interrogation,

officers   directed       questions     to   Johnson    regarding    his    alleged

involvement in gang-related violence and other wrongdoing.                     Such

evidence obviously had no tendency to establish that Johnson was

guilty of the offenses charged in the indictment.                      See United

States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (evidence

is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence”).       We fail to see any purpose for which the evidence

of unrelated gang violence and murder would be relevant other

than to prove Johnson’s violent criminal disposition.                     This is a

prohibited purpose under Rule of Evidence 404(b).

       Although     the     portion     of    the     interrogation       involving

questions about the AAI and Davis robberies was relevant, this

was    apparently     a     relatively       small    part    of    the    two-hour

interrogation which was provided in its entirety to the jury.

Otherwise, this evidence regarding Johnson’s involvement in a

gangland   slaying        and   other   gang-related     violence     was    highly

prejudicial—indeed, there is little else that would qualify as

more inflammatory than accusations of homicide.                     We are forced

to    conclude    that    the   probative     value    of    this   evidence    was

substantially outweighed by the dramatic prejudicial effect of

                                         7
accusations regarding Johnson’s involvement in unrelated violent

crimes.      Under Rule 403, therefore, the admission of the full,

unredacted          recording      and           transcription              of         Johnson’s

interrogation was erroneous.                 See Fed. R. Evid. 403 (relevant

evidence     may     be    excluded     if       probative          value    substantially

outweighed by danger of unfair prejudice).

       The   government      insists      that,     even    assuming             the    district

court committed an error by admitting this evidence, any error

was    harmless.          Under   harmless-error           analysis,         we        will     not

reverse if we can “say, with fair assurance, after pondering all

that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error.”      Kotteakos v. United States, 328 U.S. 750, 765 (1946).

We    recognize     that    the   Government        has    a    strong           case    against

Johnson and the question of whether the errors made at trial

were harmless is for us a very close one.                       Despite the strength

of    the    prosecution’s        case,      however,          we     cannot           say     this

inflammatory evidence did not sway the jury in this case.                                      The

government argues that because the jury deliberated for only 38

minutes, it could not have viewed the video of the defendant’s

two-hour interrogation.           It is true that the jury could not have

viewed the entire two-hour DVD during its deliberations, but

this fact does not alleviate our concerns.                            Indeed, we cannot

conclude     with    any    assurance     that      the    jury       did    not        view    the

                                             8
portion    of    the    DVD       containing      the     irrelevant   and    highly

prejudicial series of questions about Johnson’s involvement in a

gang-related homicide. 3            The Government in essence asks us to

presume the jury did not look at any of the prejudicial portions

of the interview on the DVD.              This we cannot do.

                                           IV.

     Johnson also contends that there were numerous defects in

the jury instructions issued by the district court.                       At trial,

Johnson    agreed      to    the     government’s       proposed   jury      charges.

Despite telling the attorneys that it would give these proposed

instructions,     however,         the    court   later    surprised   counsel    by

using different, and greatly abbreviated, instructions.                      Johnson

argues these instructions contained numerous errors and vital

omissions.      We agree with Johnson that the court’s instructions

contained numerous errors, some of which were prejudicial and

provide an additional basis for reversal.

     For   example,         the    jury   instructions      were   erroneous    with

respect to both the substantive Hobbs Act robbery counts and the

Hobbs Act conspiracy counts.               To sustain a conviction under the


     3
       We note that the district court did not give a limiting
instruction to minimize any prejudice flowing from this
evidence.   See United States v. Queen, 132 F.3d 991, 997 (4th
Cir. 1997) (“In cases where the trial judge has given a limiting
instruction on the use of Rule 404(b) [evidence], the fear that
the jury may improperly use the evidence subsides.”).



                                            9
Hobbs    Act,    the    government        must     show    “(1)     that    the    defendant

coerced the victim to part with property; (2) that the coercion

occurred through the wrongful use of actual or threatened force,

violence or fear . . . ; and (3) that the coercion occurred in

such a way as to affect . . . interstate commerce.”                                   United

States v. Buffey, 899 F.2d 1402, 1403 (4th Cir. 1990) (internal

quotation marks omitted); see 18 U.S.C. § 1951.                                   Thus, “[a]

Hobbs     Act    violation        requires         proof”        that   “the      underlying

robbery” had “an effect on interstate commerce.”                            United States

v.   Strayhorn,        743    F.3d     917,    922    (4th       Cir.   2014)      (emphasis

added).     The district court, however, incorrectly instructed the

jury that the government was obligated to establish that “the

defendant, either alone or acting with others, knowingly and

deliberately          committed      a    robbery         that     affected       interstate

commerce,       and    the    effect     of   interstate         commerce    is    that   the

person or place that was robbed in some way has some connection

to something moving between one state and another.”                                J.A. 314.

And, with respect to the counts charging that Johnson was part

of   a   conspiracy      to    commit     Hobbs      Act    robberies,      the     district

court failed to give an instruction that included the elements

of conspiracy, particularly the requirement that Johnson knew

about, and voluntarily became a part of, the conspiracy.                                  See

United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en

banc).

                                              10
       Likewise,          the     district           court’s          charge     omitted         an

instruction      on       the    proper      use     of   a   confession.             “[W]hether

requested      or     not,      the    trial    court        should        instruct    the     jury

specifically upon the law governing the use of a confession and

a failure to do so is clear error.”                       United States v. Sauls, 520

F.2d    568,     570       (4th       Cir.     1975)      (internal          quotation       marks

omitted).

       Beyond    these        examples,       the    district         court’s    instructions

were at times confusing, garbled or incomplete.                                 For instance,

in instructing the jury regarding Johnson’s alleged violations

of 18 U.S.C. 924(c), the district court conflated the language

of   the   statute.             Section       924(c)      “criminalizes          the     use    or

carrying of a firearm during and in relation to either a crime

of   violence        or   a     drug    trafficking          crime,”        United    States     v.

Nelson, 484 F.3d 257, 260 (4th Cir. 2007), or the possession of

a firearm “in furtherance of” such a crime, United States v.

Pineda, 770 F.3d 313, 321 (4th Cir. 2014).                             The court, however,

instructed       that      the        government       had      to     prove    that     Johnson

“committed       a     crime      of     violence”        and        that    “during     and     in

relationship to the commission of that crime, the defendant . .

. knowingly used or carried a firearm in furtherance of the

commission of that crime.”                   J.A. 314-15.            Also, the jury charge

did not include standard instructions such as an instruction

that    the     jury      should       not    infer       from       the    district     judge’s

                                                11
extensive questioning of witnesses or comments to counsel that

the judge believed the defendant was guilty or an instruction

regarding   the   testimony      of   alleged     accomplices     and    witnesses

that had given inconsistent statements.

     We agree with Johnson that the jury instructions contained

prejudicial    errors    warranting      reversal.       Rather    than    address

each individual assignment of error by Johnson, we leave it to

the district court on remand to redraft its instructions with

more precision if Johnson is retried. 4

                                        V.

     In   sum,    we    affirm   the    denial     of    Johnson’s      motion   to

withdraw his guilty plea to Count 10.              However, in light of the

foregoing     errors,    we   reverse        Johnson’s   convictions      on     the

remaining counts and remand for further proceedings.

                                       AFFIRMED IN PART, REVERSED IN PART,
                                                              AND REMANDED

     4
       We note that Johnson challenges the sufficiency of the
evidence to establish Johnson’s identity as the perpetrator of
the charged crimes.    Unlike the government, we conclude that
Johnson preserved this issue via his Rule 29 motion for judgment
of acquittal.   See United States v. Jackson, 124 F.3d 607, 611
n.2 (4th Cir. 1997) (explaining that appellant preserved
sufficiency-of-the-evidence challenge through a Rule 29 Motion
for Judgment of Acquittal that was general in nature). Thus, we
review this claim de novo, not for plain error.       See United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). That said,
we agree with the government that the circumstantial evidence of
Johnson’s identity was sufficient to permit a reasonable jury to
find beyond a reasonable doubt that Johnson participated in the
robberies.   Accordingly, retrial is permissible.   See Lockhart
v. Nelson, 488 U.S. 33, 34 (1988).


                                        12
