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Shepard documents hearing. sentencing furnished America, STATES UNITED legal cites no basis Although Fraker Plaintiff-Appellee, unfair alleges general argument, this supple allowing government ness documents Shepard ment record JOHNSON, Jr., Audrey Louis after the PSR sentencing hearing, Defendant-Appellant. sentencing At objections filed. are 10-5290. summarized No. attorney hearing, Fraker’s argument as: Appeals, Court United States [Ijlfs have It would not a Catch-22. Circuit. Sixth just agreed [the if we been issue 31, 2012. Jan. an armed classification it, criminal], question but if career we So the record. they supplement he’s up bring don’t it
either we [criminal] career [an armed]
found to be they supple- up bring we do [an to be record and he’s found
ment the [criminal]. career
armed] *2 DAUGHTREY, MOORE,
BEFORE: McKEAGUE, Judges. Circuit OPINION McKEAGUE, Judge. Circuit Defendant-Appellant Audrey Louis Johnson, Jr. was convicted in a trial aiding abetting another with know- (“John- Johnson, Jr. Audrey in- showed intentionally possessing ingly son”) and that holder was the account grams than more to distribute tent Louisville, KY. Street on Dumesnil (“crack”), violation of lived base cocaine *3 Johnson’s obtained Congleton also 841(a) § 2. He Officer § and 18 U.S.C. U.S.C. information, re- which evi- license rests on driver’s conviction that his contends un- address. erroneously admitted vealed the same that was dence 404(b) and Rule of Evidence Federal der began Congleton Dominique and Officer remarks. closing improper prosecutor’s the In Do- purchase. arranging a controlled new remand for and reversal seeks He Duncan, calls to phone minique’s recorded properly court the district Because trial. referred Dominique to and both Duncan evidence, in admit- any error the admitted supply the crack. who party third would harmless, was ting the contested said, Duncan discussing price, While remarks were closing prosecutor’s and the him,” what he told “That’s see and go “We judgment of we AFFIRM flagrant, sale, Domi- up the setting me.” When court. at the said, you him meet “Have nique all the to make sure “Tell him shop,” and I. BACKGROUND trial, tes- Dominique At weight there.” Background A. Factual exactly know who he tified Duncan was, he understood just “him” pur- a controlled arises from case This from someone crack getting the would be a confiden- cocaine between of crack chase else. informant, Dominique Lee Walter tial Duncan Kenneth (“Dominique”) and Smith met Dominique with September On Septem- (“Duncan”), place on which took En- Drug and other Congleton Officer was a confiden- Dominique
ber prepare to for Agency agents forcement (“Cl”) with the Oldham informant tial two ounces crack. purchase of controlled Louisville, County Department Police surveillance, Do- searched up Officers set Larry was Officer Kentucky. His handler vehicle, out counted minique $1600 and his During summer Congleton. ounce), ($800 and outfitted Domi- for each with Dun- Dominique acquainted became records showed a wire. Phone nique with Ken- cut at the his hair getting while can number attributed that Duncan called (“the barber Barbering tucky College of day. times that Domi- three to Johnson student, awas where Duncan college”), college, barber at the nique met Duncan participation their through mutual Dominique’s inside men and the two went Dominique Anonymous. Narcotics he did perhaps Dominique joked car. dealing Duncan’s involvement learned all, upon after which not want crack conversa- through “general cocaine crack “no, do saying don’t upset, became informed Offi- Dominique him. tions” whip man, go man just had this you Duncan, and Duncan Congleton cer got out of then up.” Duncan this shit investigation. target of an became the Duncan meet car, Dominique observed a tall on a scooter green with a man Duncan used September On to the flag attached bearing orange pole cell call another phone cell to Dominique’s scooter, said, “He on Dominique back. provided Dominique number. phone building” at the end he on a scooter Agent to phone of the other cell number relay to the officers that wire to over the an adminis- Congleton, who obtained a third man. meeting with was in- Duncan the subscriber get to subpoena trative said, car, he Duncan returned information When The subscriber formation. butter, always baby.” “It’s Duncan testi- the evidence on the basis that it was rele- he referring identity, intent, fied that to the crack. vant to plan, and and con- Dominique Once saw that the substance cluded that the value of the evi- crack, appeared to be Duncan. paid outweighed dence the prejudicial value. up Duncan then went man trial, At the Government sought prove after, again, shortly scooter he drove that Duncan was not acting alone but had briefly off. Police followed him but broke supplier sale, the September began off the man suspect being after that supplier, and that John- Dominique, followed. followed Officer son was the man on green scooter that *4 Congleton, drove to a prearranged meet day. Dominique provided an account of location, where he handed over the crack the September 26 sale as related above. and was searched to ensure he did not Officer Congleton corroborated Domi- keep any the drugs money. of or Domi- account, nique’s testifying that he ob- nique received for his services. $500 served an exchange of something from the later, days on September
Three Duncan, man on the scooter to whereupon Congleton Officer went the Du- to immediately Duncan turned and walked There, mesnil Street address. in a parked back to Dominique’s car and consummated residence, carport behind the Officer Con- the sale. Officer Congleton said he knew gleton a green saw scooter an orange place took transaction once Duncan flag. reentered the car because Dominique was counting money, out the signaling that he Background B. Procedural drugs. had the Congleton Officer 4, 2007, On June observed get Duncan and Johnson Duncan out of Dominique’s car, were grand indicted walk aiding scooter, of back to the man on abetting again each other in and knowingly exchange or saw an of something intentionally possessing with from intent to dis- Duncan to the man on the scooter. and distributing fifty grams Congleton tribute testified that the scooter was base, green more of cocaine in lime with a large orange of 21 flag violation at- 841(a) § § tached to U.S.C. and 18 the back end. U.S.C. Dun- pled can guilty, but go Johnson elected to Duncan this sequence corroborated of Though trial. Duncan at first refused events and identified Johnson as the man Johnson, against he later wrote a on the supplier scooter and the for this Attorney’s letter to the offering Office He deal. testified that he be- “water-tight” conviction Johnson. acquainted came May with Johnson in Duncan admitted at trial that was testi- he college, at the where barber Johnson fying in exchange five-year for a sentence sale, was also a Regarding student. reduction, which original would halve his Duncan got confirmed when he first ten-year sentence. Johnson, out of Dominique’s car to meet trial, Before arguments court heard gave crack, Johnson him the two ounces of 404(b) on the introduction of approached and when he Johnson again prior drug sale, transactions in which Johnson after the he handed Johnson the mon- supplied crack to Duncan. ey. The Govern- Duncan just stated that he was ment submitted that the was rele- man middle and that he was not going vant to establish Johnson’s knowledge any money and make off the deal but was regarding drug intent trafficking. eventually paid Over He also stated that $50. objection, Defendant’s the court he green admitted had seen Johnson ride the same Johnson, he later said supply was before, source but admitted fewa times scooter April regularly began dealing would that he that Johnson examination on cross he met ride scooter a few weeks before let sometimes others part of in that were common counsel asked scooters defense May. When appeal, relevantly to this April, Most town. was supplier who his Duncan regular- had testified that Duncan named a man responded throughout crack him with ly supplied he dealt with Montgomery Robert or five of four period summer only once. Montgomery be- purchasing months. He described trial, prosecutor end of the At the ounce of crack to an a half ounce tween “The closing argument, his stated in basis, he weekly which from Johnson ... whether or case issue in this resell. would then actu- who person was the Audrey Johnson of the case was theory The defense’s day.” there that drugs over ally drove alone—that acting that Duncan statement, prosecutor In his rebuttal to consum- cocaine base enough possessed stated, “So, you take a look at when *5 man the sale himself—and mate here, absolutely no been there’s Audrey Johnson. the scooter was on puts in case that presented this but no presented witnesses The defense at the anywhere else but the defendant wit- Government impeaching on relied time.” shop at that college barber to its the Government putting and nesses Domi- showed that The defense burden. the follow- gave The court Cl, completely less than nique, instructions: ing limiting illegally copied person, as forthright un- testimony of other also heard Cl, You working as a and sold CDs while defendant, other the Gov- acts agreement charged of his violation illegal actually charged in any that are participate not to than those ernment prior approval. may without consider activities You the indictment. re- bootleg sold Dominique confirmed testimony only relates other pur- day of the controlled cordings on the identity, plan, or intent Officer cross examination of chase. In its may You charged crime. commit Officer focused on Congleton, defense of the other un- testimony not use man inability to describe the Congleton’s it, acts, as evi- you if believe charged any particularity be- the scooter on of the defendant of the character dence build, race, clothing, general yond his charged propensity or to commit his Johnson failure check whether and his words, just In other in this case. crime moped. registered purchased had ever something once someone Ken- also stated that Congleton Officer to do it they going mean are doesn’t certain mopeds above a tucky requires law testi- the first you if even believe again, orange flag on an an engine size bear mony. pointed out The defense also antenna. right not to has an absolute A defendant many phone other that Duncan called prove need not A defendant testify. were frequently, none which numbers Therefore, the fact anything. Congleton, by Officer investigated further call or did not did not defendant contact with Johnson that Duncan’s considered any cannot be witnesses only of voicemail consisted September 26 making your delibera- way by you in And, conversations. messages, actual in 2006 his tions. while Duncan insisted The jury guilty found Johnson aiding This Circuit has outlined a three-step pro- abetting trafficking grams of 50 cess to determine the admissibility of evi- 404(b). First, more of crack cocaine. dence under He was sentenced the district to a term court must of 120 months decide whether imprisonment there is suffi- cient evidence that years followed five the other acts supervised actually release. occurred. United States v. timely Haywood, appeals, arguing that the (6th Cir.2002). Second, admission of court must decide whether Johnson’s evidence of the prior drug deals and the prose- other “probative acts is of a material cutor’s issue closing comments regarding his other than character.” Id. (quoting lack of an alibi Unit- constitute reversible error. Johnson,
ed (6th Cir.1994)). Third, the court must ap- II. ANALYSIS ply Rule 403 to determine whether the 404(b) A. Rule probative value of the evidence is substan- tially outweighed by the danger of unfair Applica- Standard of Review and prejudice. Id. challenges ble Law district court’s determination at each step. This Court reviews district court’s evi- 404(b) Analysis 2. Rule 404(b) dentiary determinations under Rule We find at the outset that John abuse of discretion. United States son forfeited argument his that the other Jenkins, acts evidence supported was not by suffi (quoting Jenkins, United States v. *6 345 cient evidence because he did not contest it (6th 928, Cir.2003)). 936 “A trial in the district court. See United States v. court abuses its discretion ‘when it relies 143, Hardy, 643 F.3d 150 clearly fact, on findings erroneous or (finding the same argument forfeited be improperly when it applies the law or uses ” cause defendant did not raise it in district an erroneous legal standard.’ United court) Wade, (citing 774, Vance v. 546 F.3d (6th Spikes, 913, States v. 158 F.3d 927 (6th Cir.2008)). And, 781 event, in any we Cir.1998) (quoting Christian Schmidt find no error in the district court’s deter Brewing Co., v.Co. G. Heileman Brewing mination. Johnson’s are contentions based 1354, Cir.1985)). 753 F.2d 1356 “A on the fact that the district court did not new trial is not required unless the error explicitly consider sufficiency affects rights.” substantial United States evidence, focusing exclusively on whether Bell, 432, (6th Cir.2008). v. 516 F.3d 440 the evidence could be prop admitted for a (“Rule”) Federal Rule of Evidence purpose, er and that the evidence of 404(b) provides: those other acts came from an interested crime, witness,
Evidence of a wrong, or other act Duncan. This court does re is not admissible to prove person’s quire a district court explicit to make an character in order to show that on finding occurred, that prior acts stating particular occasion the person acted in that findings express, “[s]uch need not be accordance with rather, the character. may This ev- but implicit by be virtue of the may idence be admissible for another fact that the court admitted the evidence.” purpose, motive, such as proving oppor- Matthews, 818, 440 F.3d intent, tunity, Cir.2006) preparation, plan, knowl- 828 (quoting United States edge, identity, mistake, absence of Alford, or v. 1999 WL 1999) lack of accident. *1 June (unpublished Cir. 470 which it is for purpose regard on other decision)), abrogated
table Bell, at 441^2. Joiner, offered.” 522 Elec. Co. by grounds Gen. L.Ed.2d 136, 141, 139 ar- in issue identity put his Johnson (1997); also United see man on not the that he was at trial guing Cir. Wheeler, Fed.Appx. testimony scooter. Duncan’s 2009) conclusion supplier for (finding regular his had been was not error the con- preceding occurred prior act five the four or months “Re analy identity lack of any purported purchase gardless trolled en- that the sis”). also found it established has This court during the same time in similar acts gaged sufficient is testimony single of a witness as the partner same frame and that the to conclude jury reasonable offense, probable more making it acts, charged even prior committed defendant man on scooter was the that Johnson completely is than witness less where the 26. See Fed.R.Evid. September Matthews, F.3d at 828-29 reliable. (“Evidence any tenden- if it has is relevant admittance district court’s (affirming probable more or less make a fact cy to pur testimony prior drug witness evidence; and without the it would be than witness where chase from the defendant determining consequence is of fact or how exactly when remember could not action”). dis- purpose serves This drugs from purchased he had many times merely showing that Johnson from tinct had so done and whether the defendant bad act. conformity with a acted intermediary). through person sustained, ongo- Rather, aof the existence establishing a fact The between connection ing supplier-dealer does impeachable acts other relevant during the and Johnson insuf irrelevant or not render the evidence that it likely makes it more period time reasonably ficient, can long as “the as Johnson, another opposed fact was in that the act occurred conclude that motor individual, up on the who showed Huddleston v. actor.” defendant *7 v. In States day. that United scooter 689, States, 681, 485 U.S. United (6th Cir.1996), Thomas, abro- F.3d 74 676 (1988). 1496, 771 99 L.Ed.2d v. grounds other Morales gated on 500, Co., F.3d 151 Honda Motor American Second, that the evidence we find (6th Cir.1998), a co- we found that 515 of purpose for the admitted properly was the defendant testimony that identity. To be admissible establishing from powder cocaine regularly bought 404(b), acts evidence other under Rule crack, co-defendant, and it to converted substantially simi with conduct “must deal identity probative it resold was in time reasonably lar and near uncharged “the evidence being is which the defendant offenses for type the same involved drug transactions F.2d Wynn, v. 987 States tried.” United same during the of conduct occurred (6th Cir.1993) (quoting United 357 as the and in the same location time frame 735, 739 Blankenship, 775 F.2d States we find Similarly, charged[.]” offense Cir.1985)). is of other acts “Evidence identity testimony probative of Duncan’s other than issue of material probative here. (1) for is offered if the evidence character Third, district (2) we consider purpose purpose, an admissible fac “One Rule 403 determination. material or is is which the evidence offered against prejudice balancing (3) tor in unfair issue,’ probative ‘in the evidence
471
probative value under Rule 403 is the must have believed in order to convict.
availability of other
of proof.” Further,
means
the district court here carefully
Merriweather,
United States v.
78 F.3d
considered
significance
of the evidence
1070, 1077
Cir.1996);
also Huddle
see
on non-propensity grounds and arrived at
ston,
whether 380 California, v. facts of this on the improbable, find (1965)). Indirect 106 14 L.Ed.2d Dun case, who did not find juror that a failure to testi- references to defendant’s regarding testimony credible can’s Fifth Amendment violate the fy can also supplier as his of Johnson identification Collins, F.3d 209 Byrd privilege. convict nonetheless would September Cir.2000). re of Duncan’s Johnson because following remark here is At issue we do finding, In so garding deals. in his rebuttal prosecutor made jury’s preroga way impugn the “So, a look at you take when argument: all, none, a wit part believe tive to here, absolutely been there’s the evidence See, Young v. e.g., testimony. ness’s case that presented no 499, 504 Cir. Fed.Appx. Trombley, but at else anywhere defendant puts the that, 2011). as stat merely recognize We at time.” shop barber college above, reasoning propensity the risk ed sug- that these statements argues highly doubt facts was on these provided have that he should gested ful. on his infringed which by testifying, alibi The Govern- privilege. Fifth Amendment Closing Remarks Prosecutor’s B. com- prosecutor’s argues ment Applica- Review and 1. Standard coun- to defense proper ment was rebuttal Law ble and an accurate closing argument sel’s closing ar- government’s “Whether the presented of the evidence summation miscon- prosecutorial gument constitutes trial, failure on Johnson’s not a comment law and question of a mixed presents duct any evi- present or failure to review de novo.” United fact that we dence. Tarwater, 494, 510-11 noted, relying on has Cir.2002). This court claims of reviewing When Seventh, Fifth, Ninth misconduct, from the first cases this Court prosecutorial Circuits, against com the proscription state- prosecutor’s determines whether silence a criminal defendant’s menting on States v. improper. United ments were failure to to a “does not extend Tocco, present ex Krebs, or to otherwise call a witness (citing United *9 Cir.1986)). long prosecu as the (6th so, evidence so culpatory If this 1166, 1177 of the defen tax the exercise tor does not they whether then determine must Court Tarwater, to remain silent.” right dant’s reversal. Unit- warranting flagrant, were standard, the this Carroll, at 511. Under 308 F.3d 26 F.3d 1385-87 ed States may in this case Cir.1994). comment improper prosecutor’s if the Even bounds. permissible within may have fallen reversal flagrant, were statements However, dwell on the unnecessary to it is Id. in some instances. warranted still be technical propriety impropriety or of the A defendant has an right absolute not to because, remark assuming that it was im- testify. A defendant need not prove proper, it flagrant was not and thus does Therefore, anything. the fact that a not warrant reversal. defendant did or did not call any witnesses be cannot in considered To determine flagrancy, the Sixth Cir any way by you in your making delibera- “1) cuit considers: whether the statements tions. tended to jury mislead the or prejudice the 2) defendant; Three whether of the the four flagrancy statements factors lean were among heavily isolated or in favor series of of the improp prosecution, and the 3) statements; er one arguable whether the factor statements in favor of Johnson were deliberately (potential accidentally prejudice) before mitigated by the 4) jury; isolation total strength of the comment and the curative against Tocco, Thus, evidence instruction. the accused.” we do not find that the F.3d at prosecutor’s 420 (quoting United remarks flagrant. States v. were Francis, 549-50 Cir. Johnson argues that his conviction 1999)). Johnson concedes that alleged should be reversed his case remanded impropriety was unintentional and that the for new trial even if the statement is not statement was but argues isolated that the considered flagrant. Improper, non-fla- total strength of the against him grant may statements entitle a defendant was weak and the statement was prejudi to a new trial if “proof of [the defendant’s] cial and uncured by the cautionary guilt was not overwhelming, defen- [the instruction to the jury. objected dant] to remarks, the improper and the court failed to cure the error with
Regarding Johnson’s first point, we find an admonishment jury.” against him was substantial. Stover, As for his second in point, view of the Cir.2007) Carroll, 1390) (quoting record, entire F.3d at the remark was sufficiently (alterations Here, insulated, original). occurring in a brief moment dur- properly objected to ing a the statement. The trial lasting two and days. a half court also failed to cure the statement with This court has refused find reversible However, admonishment to jury. error in similar circumstances. See Unit- the court good and, did so for Sims, ed reason 1995 WL case, lack 1995) of an Oct.19, (un- at *6 admon- Cir. may ishment decision) (“Even have actually caused published less table cases prejudice to Johnson. flagrant Defense counsel prosecutorial misconduct, a re- conceded as much at trial. After the jury viewing court will refuse to find reversible excused, explained court error if de- circumstances occurred fense counsel: briefly during a trial long and the court sufficiently instructed jury to disre- I you noticed objection made an or were them.”) (internal gard alterations quo- going to make an objection during clos- omitted). Further, tations ing. Defendant’s I recognize what it was I about. concern that the prejudicial effect was en- really thought it was a transgres- minor hanced because this sion, remark was one of the if it was a transgression. say To last things heard is addressed something about it at the time would call instruction, district court’s firm which more attention to Iwhat sort of felt was the jury heard the closing argu- after really a very vague reference to the *10 ments: defendant failing prove to something.
474 Cir.1996) (6th (citing Huddle 1070, 1077 off, so to you why I waved that’s
So 688, States, 485 the v. it on ston United put are welcome to You speak. (1988)). In 99 L.Ed.2d like. would you if record case, relied on prosecution the Johnson’s “I think Your responded, counsel Defense con to identification eyewitness Duncan’s I think my objection. Honor understands Duncan Once the crime. to nect Johnson Honor, pro- trial as of light in the Your the the man on as identified the correctly.” Because ceeded, handled Duncan scooter, testimony from additional jury was an the to admonish failure court’s superflu identity was Johnson’s regarding did, minimize to, likely attempt to believe going was the ous—either to weight less give we potential prejudice, was accurate Duncan’s identification light case. In in this this factor Duncan’s Nothing about not. guilt they were of Johnson’s evidence strong of the bad prior funda- Johnson’s trial, testimony regarding that the we find at presented In credibility. compro- was not of trial acts bolstered fairness mental testi remark. fact, only way isolated that this additional prosecutor’s the by the mised to the connection made mony could have III. CONCLUSION imper bywas the plausible more above, the AFFIRM we the reasons For adage “once that suggestion missible district court. judgment [supplier]” always drug [supplier], drug v. States See United to Johnson. applied MOORE, Circuit KAREN NELSON Cir.2008). Bell, dissenting. Judge, Duncan did so This is because the district conclude Because I “signature” “distinctive” or anything concluding its discretion court abused acts, nor prior bad Johnson’s regarding impact of admit- prejudicial unfair to “agreement their testify as to prove bad-acts evidence ting prior provide so as of crimes” commit series probative its outweighed identity was v. Phil States context. United probative value,11 dissent. respectfully Cir.1979) 134, 136-37 lips, F.2d testi confederate’s (holding inadmissible majority that Although agree I prior participation of issue, mony I conclude identity was confederate). In robberies bank Rule 403 determination tes stead, “only general provided Duncan majority of discretion. As an abuse “repeated per Johnson’s timony” about identifies, consider- significant correctly This Id. prior bad acts. formance” “the avail- analysis is in the ation Rule bad-acts prior has deemed are Circuit proof’ ability of other means See circumstances. in similar at issue. inadmissible than prejudicial less Thus, unfairly prejudicial Merriweather, because the id.2 v. States Thomas, at issue was the evidence admitting tity. In impact prejudicial 1. The unfair identity is re- prove significantly prior bad acts to more selling See United crack for abuse of discretion. viewed the defendant bad acts involved 693-94 Clay, 667 F.3d exact in the location and at the exact same Cir.2012). alleged have done as he was same manner con- In charged Id. at offense. general nature of Duncan's 2. The stated, trast, testimony with previously distinguishable from this case also renders very past respect activities to Johnson’s Thomas, 74 holding in United States our testify that Johnson vague; did not Cir.1996), which involved at the same routinely a scooter arrived prove iden- prior bad acts to the admission *11 impact of the clearly outweighed minimal, minuscule,
its if probative light
value in of the “singularly persuasive” eyewitness
nature of Duncan’s identifica-
tion, I would hold that the district court WALKER, Lon S. Petitioner-Appellant,
abused its in determining discretion other- wise. MORROW, Jim Warden, Respondent-
Furthermore, I
any
cannot conclude that
Appellee.
error was harmless. With such minimal
evidence connecting Johnson to the crime
No. 09-6537.
and the influence of the inadmissible evi-
United States
Appeals,
Court of
dence
jury’s
on the
treatment of the prose-
Sixth Circuit.
key
unknown,
cution’s
witness
my confi-
dence in the validity of the conviction is
Feb.
2012.
Bell,
undermined. See
evidence was not overwhelming gov-
ernment had “only circumstantial” evi-
dence connecting crime); defendant to the Haywood,
724-25 (finding where defen- “guilt
dant’s was significantly contested”
error was not harmless even though the
“government proof’ offered sufficient
guilt). The fact that the jury was instruct-
ed on three separate impermissible pur-
poses for cure, admission3 does not but underscores,
only this conclusion. Accord-
ingly, I respectfully dissent. supply conclude, location to crack for sale. I do not majority nor does the Duncan testified supplied that Johnson urge, that the evidence was admissible for drugs him past. Consequently, purpose pursuant other to Federal Rule of as to Johnson’s bad 404(b). Evidence acts significantly less than the
testimony at issue in Thomas.