CARLOS JOHNSON, APPELLANT, v. UNITED STATES, APPELLEE.
No. 18-CF-1183
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided March 9, 2023
Before EASTERLY and MCLEESE, Associate Judges, and GLICKMAN,* Senior Judge.
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
(Hon. Robert Salerno, Trial Judge)
(Argued June 3, 2021
Deborah A. Persico for appellant. Anne Keith Walton also entered an appearance.
Ethan L. Carroll, Assistant United States Attorney, with whom Timothy J. Shea, United States Attorney at the time, and Elizabeth Trosman, John P. Mannarino, Bryan Han, and Julia Cosans, Assistant United States Attorneys, were on the brief, for appellee.
* Judge Glickman was an Associate Judge at the time of argument.
Seeking reversal, appellant claims that the trial court erred in admitting evidence from the records of his Instagram account, presented as part of the government‘s proof that he committed the charged offenses, and that there was
I. Trial
At approximately 6:30 in the morning on April 25, 2018, Metropolitan Police Department (MPD) officers executed a search warrant at appellant‘s two-bedroom apartment. In one of the bedrooms, the officers found appellant and his former girlfriend, Shaquice Campbell. Ms. Campbell, whom the government called as a witness at trial, was asleep in the bed. Appellant was lying on the floor next to the bed. In a corner of the room by the closet, less than a foot away from appellant, lay a black, .40-caliber M&P Smith & Wesson handgun with a red laser sight attached to it. The gun had one .40-caliber round in the chamber and nineteen .40-caliber rounds in an attached large capacity extended magazine.
Underneath the bed, which the officers had to lift up in order to search the area, they found eight rounds of 9-mm ammunition inside a sock, and two handgun magazines, one with a 12-round capacity that was loaded with nine .40-caliber rounds of ammunition, and the other with a 15-round capacity loaded with fifteen
Ms. Campbell testified at trial that she had gone to the apartment a few hours earlier that morning to visit appellant. She said she did not know where the gun came from and that she had not seen it before she fell asleep on appellant‘s bed.
Appellant was not wearing pants when the police entered his bedroom. A pair of jeans was lying on the floor beside the firearm. In the jeans the police found a wallet containing appellant‘s D.C. identification card. Elsewhere in the bedroom, the officers found a folder containing appellant‘s birth certificate and resume. The information on the resume included appellant‘s name, his home address, his phone numbers, and his email address. The police also found other paperwork in appellant‘s name in the bedroom, and photographs of appellant and his mother.
In the second bedroom, the officers found appellant‘s sister, Lashawn Johnson, asleep in bed. Ms. Johnson was the only other person in the apartment. The police did not find firearms, ammunition, or ammunition magazines in her bedroom or anywhere else in the apartment but appellant‘s bedroom.
Prior to trial, the government moved in limine to admit some of the account records produced by Instagram in response to that warrant, including video clips, photographs, and textual messages. The government proffered this material as direct and substantial proof that appellant possessed the Smith & Wesson handgun recovered from his bedroom.5 Appellant opposed the motion, contending among other things that the government could not attribute the Instagram account or its contents to him, and that even if it could, the messages and videos the government wished to introduce were not probative of the crimes with which he was charged.
After reviewing the evidence and hearing the parties’ arguments, the trial judge ruled that, subject to being properly authenticated at trial, the proffered
At trial, the government called Facebook‘s custodian of records, Amy Servas. Facebook had acquired Instagram, and Ms. Servas testified that she could authenticate both Facebook and Instagram records. Ms. Servas explained that Instagram is a social media network where account holders can share photos, videos, and textual messages with other Instagram account holders. These include what Ms. Servas referred to as “direct shares,” which are private communications between account holders that are not publicly available. Ms. Servas explained that Instagram maintains exact electronic copies of all this material in its business records for each account, along with other data including the email address, cell phone number, user/screen name, and profile picture provided by the account holder who opened the account.
The records produced by Instagram and identified by Ms. Servas included four short video clips sent to Being Loyal on February 18, 2018, from another
Ms. Servas also identified an exchange of private direct share messages on April 17, 2018 (one week before the police executed the search warrant at appellant‘s apartment) between the Being Loyal and No Respect accounts. The exchange of messages was set forth verbatim in Instagram‘s account records. During that exchange, No Respect sent Being Loyal a photo of an extended ammunition magazine with the label “ProMag S&W M&P 40” and asked whether that was what Being Loyal had. (The photo also was included in the account records.) In response,
An employee in the MPD‘s gun registration unit testified that appellant did not have a registration certificate entitling him to possess a firearm in the District of
Called as a defense witness, appellant‘s sister, Lashawn Johnson, testified that the .40-caliber handgun found beside appellant in his bedroom was actually hers.10 She said she bought it in December of 2017 and had kept it under her pillow in her bedroom. However, she said, because she planned to leave the apartment early on the morning of April 25, 2018, for an appointment, she took the gun to appellant‘s bedroom and left it there with him while he was still asleep. She said she did this “[s]o he could feel safe” when he awoke and saw the weapon there with him. Ms. Johnson explained that appellant had recently been the victim of a shooting, and that the “only way” he felt “okay” in her absence was if he had guns around; “[t]he guns around make him feel safe,” she said. Ms. Johnson further testified that she had 9-mm and .40-cal. ammunition and ammunition magazines in the apartment on April 25. She said she kept her ammunition in a box in appellant‘s bedroom dresser and in a sock under his bed, and the magazines on the floor in his bedroom. However,
On cross-examination, government counsel questioned Ms. Johnson about the Being Loyal Instagram account. Ms. Johnson denied knowing that appellant had an Instagram account, and she initially denied having an Instagram account of her own. Thereafter, however, she testified that she had used the Being Loyal account herself, as (she said) did “[a] lot of people” including appellant‘s friends. Ms. Johnson identified appellant as the individual waving the object with the red laser sight in the four videos posted in the Being Loyal account.11
II. Authentication and Admission of the Instagram Records
Appellant argues that the trial court erred in ruling that the videos showing him waving a handgun and the direct share exchange concerning his possession of a large capacity magazine were properly authenticated, and in admitting that evidence as direct proof of the charged crimes. Although these contentions overlap, we address them separately.
Regarding the authenticity of the evidence from the Being Loyal Instagram account, appellant claims that “at best, the government proffered that appellant may have at times had access to the Instagram account which contained posts of the videos, messages and photo[s] admitted into evidence.” But, appellant continues, the government provided “no evidence” that he was the only person who had access to the Being Loyal account, and he cites the testimony of his sister and Instagram‘s records custodian that others used or (if possessed of his password and account name) could have used the account. In addition, appellant argues that the government failed to present evidence establishing that the videos were not “doctored” to falsely show him in possession of a firearm he did not actually have, that the objects in the videos were “actual firearms as opposed to a replica or a toy,” or that the videos were created around the time they were uploaded. Appellant further asserts that the government provided no evidence that he actually possessed the extended magazine depicted in the April 17 direct share exchange between Being Loyal and No Respect, that he was the author of any of the messages in that exchange, or that the messages had not been altered. Consequently, appellant contends, “the government failed to proffer sufficient evidence of the authenticity,
Authenticity — whether an item of evidence is genuinely what its proponent claims it is — is a component of relevance. Evidence must be relevant to be admissible. “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.‘”12 Thus, “‘[t]he test for relevance is not a particularly stringent one,’ requiring only a ‘reasonable possibility’ of a link between the contested evidence and the crime.”13 Accordingly, this court has held that authenticity need not be established with certainty as a “condition precedent” to the admission of evidence as relevant; rather, in general, “all that must be shown” is a “reasonable possibility” that the evidence is “what it purports to be.”14
We conclude that the judge did not abuse his discretion in ruling the Instagram evidence authenticated and admissible against appellant in this case. The government provided sufficient proof for the jury to find that the video clips and direct share exchange constituted genuine evidence of what the government claimed they showed — appellant‘s recent actual possession of a firearm like the one the police found in his bedroom, and appellant‘s recent admission to possession of a large capacity ammunition feeder for that firearm.
To begin with, the government presented substantial evidence that appellant was in fact the holder and a current user of the Being Loyal account from which the video clips and direct share communications were exchanged. The email address and phone number provided when the account was opened matched those found on
Similarly, the jury reasonably could find that it was appellant who admitted possessing the large capacity magazine shown in the photo that No Respect sent to Being Loyal on April 17 (which the government contended was the magazine found
Appellant argues that the government presented no proof that the Instagram videos had not been doctored in some way and uploaded to falsely incriminate him. But appellant is demanding that the government had to disprove a phantom of his own imagination. There was no evidence that the videos had been doctored or faked in any way. Appellant offered no reason to think it at all likely that someone had fabricated and sent him video evidence showing him dancing with a handgun. The same is true of appellant‘s argument that the government failed to prove the messages in the direct share exchange had not been materially altered. Appellant advanced no evidence of such alteration. Given that those messages were recorded
Appellant similarly objects that the government did not definitively prove that the object depicted in the videos was the firearm the police seized on April 25 (which was the weapon the prosecution needed to prove he possessed), and not a different but similar firearm, a replica, or a toy. (This contention overlaps with appellant‘s claim that the Instagram evidence was not “direct and substantial” proof of the charged weapons offenses, and we discuss it further infra.) Appellant posits (again, without evidentiary support) that it is possible the videos were created long before they were sent to him in February, in which case it might be less likely that they depicted the same firearm the police recovered at appellant‘s home in April.25
The short answer to all these objections is that they go to the weight, but not the admissibility, of the evidence. These objections do not undermine the trial
B. “Direct and Substantial Proof”
That brings us to appellant‘s contention that the trial court abused its discretion by admitting the Instagram evidence as direct proof of the charged crimes. Appellant argues that the Instagram evidence was not direct proof but rather “other crimes” evidence—what is commonly referred to as ”Drew evidence.” Appellant asserts that the government offered this evidence (improperly and prejudicially) for the sole purpose of proving his propensity to commit the charged offenses, and that it was properly admissible only on conditions not satisfied in this case.26 We reject appellant‘s contention (as did the trial court) because we conclude that the Instagram evidence was indeed admissible as direct and substantial proof of the crimes
The “strictures of Drew” do not apply to evidence of a defendant‘s uncharged criminal conduct that is “direct and substantial proof of the charged crime.”27 This court repeatedly has held “that evidence of a defendant‘s prior possession of the weapon or type of weapon used to commit a charged offense can be admitted as direct and substantial proof of the crime charged”28 so long as the weapon “is linked to both the defendant and the crime and the connection is not too remote or conjectural.”29 Accordingly, admissibility typically “turns on a consideration of the temporal proximity of the incidents of prior possession to the charged offense and a comparison of the appearance of the weapon previously possessed by the defendant with that of the weapon actually used in the charged offense.”30 These principles apply not only to weapon possession; they apply to evidence of the defendant‘s prior
“A trial judge has broad discretion to determine the admissibility of evidence of uncharged misconduct as direct and substantial proof of the crime charged under Johnson, and on appeal our review of a judge‘s ruling admitting such evidence is limited to a consideration of whether there has been an abuse of discretion.”32 We find no abuse of discretion in the judge‘s decision to admit the Instagram evidence as direct and substantial proof of the charges in this case.
Appellant was charged with possessing the .40-caliber M&P Smith & Wesson handgun bearing a distinctive red laser sight and a large capacity ammunition feeder that police found in his bedroom on April 25, 2018. Appellant denied possessing either item on that date; probative evidence showing his recent prior possession of those items would constitute direct and substantial proof of the charges and rebut appellant‘s denial. The judge reasonably found that the records of appellant‘s
Finally, the government did not urge the jury to draw an adverse propensity inference from the Instagram evidence. At appellant‘s request, as we discuss infra, the trial judge instructed the jury not to use the Instagram evidence “to conclude that [appellant] has a bad character or is likely to commit crimes.” We conclude that the record does not support appellant‘s objections to the admission of the Instagram
III. Sufficiency of the Evidence
Appellant argues that the evidence presented by the prosecution at trial was not sufficient to prove beyond a reasonable doubt that he possessed the .40-caliber M&P Smith & Wesson handgun and the associated 30-capacity extended magazine and .40-caliber ammunition.37 In evaluating this claim, we must view the evidence “in the light most favorable to the government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact.”38 We must deem the proof of guilt sufficient if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”39
We conclude that the evidence adduced at trial was sufficient to permit the jury to find appellant guilty beyond a reasonable doubt of possessing the .40-caliber Smith & Wesson handgun and ammunition, along with the large capacity
IV. Jury Instructions
Appellant argues that the trial court erred in responding to the deliberating jury‘s request for legal guidance and in later giving the jury an anti-deadlock instruction. We conclude that neither contention entitles appellant to relief.
A. The Supplemental Instructions in Response to Notes from the Jury
The jury began its deliberations on the morning of August 28, 2018. On the following morning, one of the jurors became unavailable. The court empaneled one of the alternate jurors and instructed the jury to begin its deliberations afresh. At 12:50 p.m., after the jury had deliberated for approximately an hour and a half, it sent a note saying: “What do we do if we cannot agree? We are at an impass[e].” Appellant moved for a mistrial, which the court denied. The court instead instructed the jury to continue deliberating.
At 4:10 that afternoon, the jury sent another note, which asked, in relevant part: “Is . . . the possession we are to determine exclusively limited to the time of the
The next morning, the judge reviewed his proposed response to the jury‘s note with the parties. The proposed response stated that each charge required the government to prove possession by appellant “on or about April 25, 2018,” and that the jury “cannot find Mr. Johnson guilty of a charged offense based on possession at some other time.” Referring to the Instagram video clips, the proposed response
Granting appellant‘s request for a limiting instruction against drawing adverse propensity inferences, the judge next included the following passage:
Mr. Johnson is only on trial for the crimes charged. He is not charged in this case with any offense relating to possession of firearms or ammunition at any other time, and you may not use this evidence [of previous possession] to conclude that he has a bad character or is likely to commit crimes. The law does not allow you to convict Mr. Johnson simply because you believe he may have done other things not specifically charged as crimes in this case at other times.
The government asked the court to delete this passage, but the judge declined to do so, saying it was “important limiting language to make sure that the jury does not misuse the video evidence.” The judge noted that the language tracked “very closely” the standard pattern jury instruction on “other bad acts.”
The court overruled the objection and granted the government‘s request. It explained that defining “on or about” answered the jury‘s question as to the relevant time period, which the indictment stated was “on or about” April 25, 2018. As to appellant‘s concern that “on or about” might mislead the jury into convicting appellant on the basis of his possession shown in the video clips, the court reasoned that its limiting instructions ensured against that possibility.
With that issue resolved, the jury was called back into the courtroom to hear the court‘s supplemental instructions in response to their note.48
The jury then resumed its deliberations at 10:34 a.m. At 11:45 a.m., it sent a note stating: “Having discussed at length, we do not believe we will ever be able to come to a unanimous decision. We do not see the point in continuing deliberation. Please advise.” The government requested the court to give the Winters49 anti-
Following that instruction, at 12:21 p.m., the jury returned to its deliberations. At 12:55 p.m., it reported that it had reached verdicts on all counts. The jury returned to the courtroom, rendered its verdicts, was polled without incident, and was found to be unanimous.
B. The “On or About” Instruction
Appellant argues that the trial court erred by instructing the jury in accordance with Criminal Jury Instruction 3.103 that the government did not have to prove the “exact date” of the alleged offenses, but only that the offenses were committed on a date reasonably near the date alleged in the indictment. We are persuaded that it was
The “decision on what further instructions, if any, to give in response to a jury question lies within the sound discretion of the trial court.”51 “Nevertheless, ‘[w]here a jury has demonstrated confusion, . . . the trial judge may not allow that confusion to continue, but must make an appropriate and effective response.‘”52
Because the indictment alleged that the charged offenses were committed “on or about” April 25, 2018, it is understandable that the judge felt obliged in this case to grant the government‘s request for Instruction 3.103. But at trial there was no question regarding the exact and only date on which the government sought to prove appellant committed those offenses. It was the date the police searched his
Under these circumstances, the “on or about” instruction was inappropriate; it was unhelpful to the jury and served no useful purpose, and it had the potential to lead the jury to convict appellant improperly for previous possession indicated by the Instagram evidence. As the comment to Instruction 3.103 explains,
This instruction should be given where an issue of fact as to the date of the offense is presented by the evidence, or where there is a variance between the date alleged in the information or indictment and the date proved by the evidence. Generally, there is little purpose in giving this instruction when the government‘s proof has focused on a specific date, or specific dates for multiple offenses. . . . [N]ormally the giving of the instruction under such circumstances would be harmless error since there is little likelihood that the jury will speculate that the offense or offenses occurred on a different date or dates. But see U[nited] S[tates] v. Thomas, 459 F.2d 1172, 1177 (D.C. Cir. 1972) (where government permitted to introduce evidence of prior acts of cruelty to support case on charged offense, it was error to give “on or about” instruction
which might have permitted jury to convict on basis of prior acts).53
Although it was a mistake to give the “on or about” instruction, we do not evaluate it in a vacuum, ignoring what else the court told the jury at the same time. The rest of the supplemental instruction dispelled the risk that the jury would convict appellant for possession prior to April 25 (which was the reason the judge himself gave for overruling appellant‘s objection to Instruction 3.103). The judge emphatically told the jury that it could use the evidence that appellant possessed the firearm “at some point prior to April 25th, 2018,” “only for the limited purpose of deciding whether . . . [appellant] possessed the firearm, ammunition, and large-capacity feeding devices that are the subjects of Counts 1 through 6 on or about April 25th of 2018,” and not “for any other purpose.” The judge reiterated that appellant was “not charged in this case with any offense relating to possession of firearms or ammunition at any other time,” and that the law did not allow the jury to convict him for possession “at other times.” The jurors could only have understood these admonitions as meaning they could not find appellant guilty for any prior possession
We think the verdict itself provides some additional assurance that the jurors complied with this limitation and convicted appellant based on what they found he possessed on April 25. One of the counts on which the jurors convicted appellant charged him with possession of .40-caliber ammunition. The only evidence at trial that he possessed such ammunition was what the police found in his bedroom on April 25; the Instagram records contained no evidence that he possessed ammunition
We conclude that the supplemental instruction as a whole mitigated the “on or about” mistake and effectively advised the jury that the government had to prove appellant possessed the contraband that the police found in his bedroom on April 25, 2018. We therefore are satisfied that the trial court did not abuse its discretion, and that the instructional “error was sufficiently insignificant to give us fair assurance that the judgment was not substantially swayed by it.”56
Appellant contends the court committed reversible error by giving the Winters anti-deadlock instruction, over his objection, after the jury had deliberated approximately five and a half hours and twice declared itself at an impasse. He contends the instruction‘s coerciveness was shown by “the speedy shift” to a guilty verdict it produced just 34 minutes after the court delivered it.
Whether to give an anti-deadlock instruction when a jury reports itself at an impasse, and which approved instruction to give, are questions committed to the discretion of the trial judge.57 “It is, of course, an abuse of that discretion to give an anti-deadlock instruction under circumstances creating a substantial risk of juror coercion.”58 We evaluate that risk by assessing “the inherent coercive potential of the situation before the court” and examining whether the actions of the trial judge
We examine the question of coercion from the jurors’ perspective. Coercion of a verdict does not mean simple pressure to agree. Rather, pressure to agree is impermissibly coercive when it is likely to force a juror to abandon his or her honest conviction as a pure accommodation to the majority of jurors or the court. The question is one of probabilities, not certainties; from our review of the record, we must be able to say with assurance that the jury arrived at its verdict freely and fairly.
As a rule, it is not coercive to give a standard anti-deadlock instruction when a jury has declared itself unable to agree after having deliberated for a considerable length of time. Typically, where the jury‘s numerical division and leaning have not been disclosed and no juror has been singled out, no members of the jury have any reason to suppose the anti-deadlock instruction is aimed at them (or at their position). As a result, no juror would have a reason to feel forced to abandon his or her conviction.60
We do not perceive a significant degree of coercive potential in the record before us in this case. The jury‘s initial impasse note was received by the trial court
In those circumstances, the judge reasonably could believe that, with proper encouragement and guidance from the court in the form of a non-coercive anti-deadlock instruction, the jury might work productively through its impasse.61 And
Appellant‘s argument for the existence of coercion comes down to the simple fact that the jury agreed on its verdict only 34 minutes after receiving the Winters instruction. If half an hour seems relatively quick, that “may be some indication of the anti-deadlock instruction‘s effectiveness, but we do not think it implies coerciveness,”64 particularly in light of the short total duration of the deliberations and the uncomplicated facts of the case. “Countering such an implication is the fact that no juror hesitated to assent to the verdict when the jury was polled.”65
We conclude that the trial judge did not abuse his discretion in giving the jurors a Winters instruction.
For the foregoing reasons, we affirm appellant‘s convictions.
Notes
| Time | Author | Text |
|---|---|---|
| 4:03:47 | No Respect | “What ur shit look like” |
| 4:04:03 | Being Loyal | “Look it up” |
| 4:04:37 | No Respect | “U playing but what its it again” |
| 4:07:17 | [No Respect sends photograph of an extended magazine labelled “ProMag S&W M&P40“] | |
| 4:07:28 | No Respect | “Thats urs” |
| 4:07:31 | Being Loyal | “Yea” |
The indictment charges that the offenses in this case were committed “on or about” April 25, 2018. The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.
The government has the burden of proving beyond a reasonable doubt every element of the offenses with which Mr. Johnson is charged. Each of the charged offenses is alleged to have occurred on or about April 25th, 2018, and possession is an element of each charged offense. Accordingly, to find Mr. Johnson guilty of a charged offense, the government must prove beyond a reasonable doubt that he possessed the item that is the subject of that offense on or about April 25th, 2018. You cannot find Mr. Johnson guilty of a charged offense based on his possession at some other time. The proof need not
establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged. The government has presented evidence that the government contends shows Mr. Johnson with the firearm at issue in Count 1 at some point prior to April 25th, 2018. It is up to you to decide whether to accept that evidence. If you find that Mr. Johnson possessed the firearm at issue in Count 1 at an earlier time, you may use this evidence only for the limited purpose of deciding whether the government has proved beyond a reasonable doubt that Mr. Johnson possessed the firearm, ammunition, and large-capacity feeding devices that are the subjects of Counts 1 through 6 on or about April 25th of 2018. You may not use this evidence for any other purpose. Mr. Johnson is only on trial for the crimes charged. He is not charged in this case with any offense relating to possession of firearms or ammunition at any other time, and you may not use this evidence to conclude that he has a bad character or is likely to commit crimes. The law does not allow you to convict Mr. Johnson simply because you believe he may have done other things not specifically charged as crimes in this case at other times.
Appellant also objects to the statement in the supplemental instruction that proof of appellant‘s earlier possession of the firearm seized by the police on April 25 could be probative of his possession of the ammunition and large capacity feeding devices also seized at that time. This, too, was not an objection he raised at trial. We do not deem the statement erroneous, let alone plainly so. Evidence that a defendant possessed a firearm at a given time and place makes it at least slightly more probable that he also possessed the ammunition and feeding devices that were compatible with the firearm and that were found with it at same time and place.