UNITED STATES OF AMERICA v. DOMINIQUE JOHNSON
No. 11-1615
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
August 7, 2018
PRECEDENTIAL
On Appeal from the United States District Court for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-09-cr-00685-002)
District Judge: Honorable Mary A. McLaughlin
On Remand from the Supreme Court of the United States on March 24, 2014
Argued on Remand: February 20, 2018
Before: JORDAN, SCIRICA and FISHER, Circuit Judges
(Filed: August 7, 2018)
Zane David Memeger, United States Attorney
Alicia M. Freind, Assistant United States Attorney
Nancy B. Winter, Assistant United States Attorney
Robert A. Zauzmer, Assistant United States Attorney
[ARGUED]
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
James V. Wade, Federal Public Defender
Ronald A. Krauss, Assistant Federal Public Defender
[ARGUED]
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Dominique Johnson
Allenwood USP
P.O. Box 3000
White Deer, PA 17887
Pro Se Appellant
FISHER, Circuit Judge.
Dominique Johnson was convicted of crimes related to his participation in a string of bank robberies and sentenced to 835 months’ imprisonment. After we affirmed his conviction, Johnson filed a petition for writ of certiorari. The Supreme Court granted the petition, vacated our judgment, and remanded for reconsideration in light of Alleyne v. United States, 570 U.S. 99 (2013). After reviewing Johnson‘s arguments under Alleyne—as well as other arguments he raises—we will affirm.
I.
During the late spring and summer of 2009, Dominique Johnson participated in five bank robberies in the Philadelphia area. In early May, Johnson committed the first robbery by himself, carrying a BB gun. In late May, he committed the second robbery, again carrying a BB gun, but this time assisted by two others: Gregory Lawrence and Jerry Taylor.
In June, Johnson bought a .40 caliber Glock pistol. Johnson, Lawrence, and Taylor discussed another bank robbery, with the plan being that Taylor would commit the robbery using Johnson‘s newly-acquired pistol. Johnson and Lawrence advised Taylor on how to commit the robbery.
In early July, the three friends (joined by a fourth who served as the getaway driver) executed their plan and committed the third robbery. Johnson served as the lookout while Taylor ran into the bank and demanded money. During the robbery, Taylor pointed his gun at one teller and hit another teller with it. In mid-July, the same group committed the fourth robbery in the same fashion: Taylor robbed the bank while brandishing the pistol, and Johnson served as the lookout.
After that, Lawrence and Taylor decided not to participate in any more robberies. Johnson recruited two others, Amin Dancy and Christopher Montague, to commit a fifth robbery at the end of July. As before, Johnson served as the lookout, and someone else (this time Dancy) went into the bank and demanded money while brandishing Johnson‘s pistol.
The FBI investigated the robberies and eventually arrested Johnson. A jury convicted him of two counts of conspiracy to commit armed bank robbery,
For the first count of using a firearm during a crime of violence, the District Court imposed a sentence of seven years pursuant to
Johnson appealed, and we affirmed his convictions and sentence in a non-precedential opinion. United States v. Johnson, 515 F. App‘x 183, 186-88 (3d Cir. 2013). Johnson then petitioned the Supreme Court for a writ of certiorari,
which was granted. Johnson v. United States, 134 S. Ct. 1538 (2014). The Court entered a “grant, vacate, and remand” order stating: “Judgment vacated, and case remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Alleyne v. United States, 570 U.S. 99 (2013).” Alleyne had been decided three months after Johnson‘s appeal to this Court concluded.
On remand, we granted Johnson‘s motion to proceed pro se and he filed a brief raising numerous points of error, including that his
II.1
A. Alleyne Arguments
Johnson argues that the District Court committed Alleyne errors by not submitting to the jury the question of
brandishing or the question of whether two of the three
To explain the significance of Alleyne, we begin with Apprendi v. New Jersey, 530 U.S. 466 (2000). There, the Supreme Court ruled that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Subsequently, in Harris v. United States, 536 U.S. 545, 567-69 (2002), the Court ruled that
The jury “indicated on the verdict form that Alleyne had used or carried a firearm during and in relation to a crime of violence, but did not indicate a finding that the firearm was brandished.” Id. at 104 (internal quotation marks, alterations, and citation omitted). The using-or-carrying finding triggered the five-year mandatory minimum under
1. Brandishing
Here, the issue of brandishing was not submitted to the jury, but determined by the judge at sentencing. The seven-year mandatory minimum for brandishing,
a. Trial Error Versus Sentencing Error
Sentencing error occurs when a defendant is charged with and convicted of one crime, but sentenced for another. According to the plurality opinion, that happened in Lewis: the defendant was charged with using or carrying a firearm in relation to a crime of violence in violation of
Trial error, by contrast, occurs when the defendant is charged with, convicted of, and sentenced for a crime, but one of the elements of that crime is not submitted to the jury. That occurred in United States v. Vazquez, 271 F.3d 93, 96-97 (3d Cir. 2001) (en
banc). The error occurred at trial, because the jury was given incomplete instructions. Id. at 101.2
The indictment count at issue, Count Five, charged Johnson with aiding and abetting a violation of
The rules provide that “[a] count may incorporate by reference an allegation made in another count.”
indictment, which distinguishes this case from Lewis. The Lewis indictment implied brandishing without using the word: it alleged that the defendants “burst through the front door . . . armed with handguns and a shotgun, announced a robbery, forced customers and employees to the floor, threatened to shoot them, herded the victims into the basement and again forced them onto the floor, and stole money, wallets and cell phones.” 802 F.3d at 460 (Smith, J., concurring). While those allegations were “clearly consistent with brandishing,” the Government apparently “deci[ded] not to charge Lewis with brandishing.” Id. (Smith, J., concurring). Here, by contrast, the
Because Johnson was charged with and sentenced for brandishing, but the element of brandishing was not submitted to the jury, the Alleyne error was trial error. See Vazquez, 271 F.3d at 101-02.
b. Standard Of Review
The standard of review is determined by the fact that Johnson relies on Supreme Court case law issued during his direct appeal. “[T]he general rule . . . is that an appellate court must apply the law in effect at the time it renders its decision.” Henderson v. United States, 568 U.S. 266, 271 (2013) (quoting Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281 (1969)). Therefore, when a Supreme Court decision “results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004)
(quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). However, while the new rule applies,
Under the plain error standard, an appellate court may exercise its discretion to correct (1) an error (2) that was plain—i.e., “clear or obvious, rather than subject to reasonable dispute“—and (3) that “affected the appellant‘s substantial rights“—i.e., there is “a reasonable probability” that it affected the outcome of the proceedings. United States v. Marcus, 560 U.S. 258, 262 (2010) (quoting United States v. Puckett, 556 U.S. 129, 135 (2009)). Even if the appellant meets those requirements, we will not remedy the error unless the appellant can show that it (4) “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 265 (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).3
c. Application Of The Standard Of Review To The Error
A court‘s failure to instruct on an element listed in the indictment is not plain error if we determine that it is “clear beyond a reasonable doubt that a rational jury” would have found the element in question “absent the error.” Lewis, 802 F.3d at 456 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). “[W]e properly consider the trial record on plain error review” of a trial error like this one. Vazquez, 271 F.3d at 102. Therefore, we will review the record of Johnson‘s trial to
determine whether the District Court committed plain error when it failed to submit the issue of brandishing to the jury.
The first two plain-error factors are necessarily met—i.e., there is an error that is plain—where, as here, a District Court‘s ruling contravenes a later-issued Supreme Court opinion. See Johnson, 520 U.S. at 467-68. However, the third factor is not met in this case because there is not “a reasonable probability” that the court‘s failure to instruct the jury regarding brandishing “affected the outcome of the district court proceedings.” Marcus, 560 U.S. at 262 (quoting Puckett, 556 U.S. at 135). Bank employees testified that Johnson‘s confederate, Taylor, brandished the gun during the robbery in question (the third robbery in early July). Johnson did not present evidence to the contrary. See Vazquez, 271 F.3d at 101 (“[S]ubstantial rights will be affected if, for example, ‘the defendant contested the omitted element and raised evidence sufficient to support a contrary finding.‘” (quoting Neder, 527 U.S. at 19)). In short, there is no reasonable probability that a properly-instructed jury would not have found brandishing. See Vazquez, 271 F.3d at 103-05 (third plain-error factor not met where “there [was] never any question” that evidence supported element not submitted to the jury).
Because the first three plain-error prongs are not all met, we need not reach the fourth. Marcus, 560 U.S. at 265. If we did reach the fourth prong, however, we would not exercise our discretion to correct the error. Both we and the Supreme Court have concluded that where the jury is not instructed on an element of a crime, but the evidence of that element is overwhelming and uncontroverted, the fourth prong is not met: the
Johnson points to the Lewis plurality opinion, which says that “[t]he motivating principle behind Apprendi and Alleyne is that judges must not decide facts that change the mandatory maximum or minimum; juries must do so. If we affirm because the evidence is overwhelming, then we are performing the very task that Apprendi and Alleyne instruct judges not to perform.” 802 F.3d at 456. However, the context was different in Lewis; the error there was sentencing error. The plurality refused to examine the trial record to determine whether there was evidence of a crime Lewis had not been charged with. Here, brandishing was charged, and the error was the failure to submit brandishing to the jury. Supreme Court precedent establishes that we review the trial record in cases like this one. See Johnson, 520 U.S. at 470. We follow the dictates of Apprendi and Alleyne by asking whether a properly instructed jury would have found, given the opportunity, that the gun was brandished (as charged in the indictment). In this case, the jury would have so found.
2. Second Or Subsequent Conviction
Johnson argues that the District Court committed a second Alleyne error because it did not ask the jury to determine whether two of his three
This was not error. The fact of a second or subsequent conviction is not an element of the offense and therefore need not be submitted to the jury. Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). Even if there is tension between Almendarez-Torres and Alleyne, as Johnson argues, we lack the power to resolve it. Agostini v. Felton, 521 U.S. 203, 237 (1997) (“[I]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))).
Moreover, the language of Apprendi forecloses Johnson‘s argument. Its key holding is that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime . . . must be submitted to a jury . . . .” 530 U.S. at 490 (emphasis added). We have observed that Alleyne did not alter the Almendarez-Torres rule. United States v. Burnett, 773 F.3d 122, 136 (3d Cir. 2014). Almendarez-Torres is good law, and the District Court did not err by following it.
B. Arguments Based On Other Supreme Court Cases
Besides his Alleyne arguments, Johnson makes arguments based on Supreme Court cases that were issued during the pendency of his appeal: Rosemond v. United States, 134 S. Ct. 1240 (2014), and Johnson v. United States, 135 S. Ct. 2551 (2015).4 The Government contends
The Government wisely refrains from making a frontal attack on the settled proposition that “[w]hen a decision of [the Supreme] Court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review.” Schriro, 542 U.S. at 351 (quoting Griffith, 479 U.S. at 328). Instead, the Government asserts that the Schriro rule “has nothing to do with whether the underlying issue was preserved.” Gov‘t Second Supp. Br. 30. In other words, the Government posits that Johnson was required to include his arguments in his opening appellate brief, even though the law supporting them did not yet exist. The brief was filed in 2011, and the cases he relies on were issued in 2014 and 2015.
At oral argument, the Government was unable to explain how its proposed rule could co-exist with Schriro, and indeed, co-existence is impossible. Supreme Court decisions apply to “all criminal cases still pending on direct review,” Schriro, 542 U.S. at 351, not just appeals in which the opening brief has not yet been filed. To be sure, Johnson‘s direct appeal has been extraordinarily lengthy, giving him a longer-than-usual window in which to potentially reap the benefit of new law. But a case is still pending on direct review until our mandate finally issues, Finberg v. Sullivan, 658 F.2d 93, 99 (3d Cir. 1980), regardless of the amount of time that elapses. And here, the mandate has not finally issued.5
The Government‘s proposed rule is not only inconsistent with controlling precedent, it is unworkable. Lawyers cannot be required to advance arguments in opening
appellate briefs that are contingent on a possible future change in the law. See Johnson, 520 U.S. at 468 (rejecting similar proposed rule for trial objections because it “would result in counsel‘s inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent“).
The Government‘s other contention—that the Johnson and Rosemond arguments are outside the scope of the remand order—is also unsuccessful. The Supreme Court‘s order remanding this case to us does not speak to issues other than Alleyne, and we will not interpret it as wiping away, sub silentio, the well-established rule of Schriro.6 Therefore, we will consider Johnson‘s arguments based on case law issued during the pendency of his appeal.
1. Bank Robbery Is A Crime Of Violence
Three of Johnson‘s convictions were for violations of
To determine whether
the defendant was convicted to the [
Turning to the statutory definition at issue here, a “crime of violence” is a felony offense:
(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
In Johnson, the Supreme Court considered the residual clause of a different portion of
crime to qualify as a violent felony.” Johnson, 135 S. Ct. at 2557-58.
Johnson argues that the
Johnson focuses on
Moreover, even if Johnson‘s sole focus on
culpable conduct contemplated in subsection (a)—is a “crime of violence” under a clause in the Sentencing Guidelines that is worded “nearly identically” to the
We held that “[u]narmed bank robbery by intimidation clearly does involve the ‘threatened use of physical force against the person of another.‘” Wilson, 880 F.3d at 84-85. Our conclusion was based on “a common sense understanding of the word ‘intimidation.‘” Id. at 85. We also relied on our precedent, which “establishes that
Wilson forecloses Johnson‘s argument that bank robbery is not crime of violence under the
2. The Aiding And Abetting Instruction Did Not Amount To Plain Error
Johnson argues that his aiding and abetting convictions should be vacated because the jury instruction on aiding and abetting violated Rosemond, 134 S. Ct. at 1243. We conclude that any such error does not survive plain error review.
In order to aid and abet a
Here, the jury was instructed that “[t]he second element of aiding and abetting is that the defendant . . . knew that the offense charged was going to be committed or was being committed by the principal.” Supp. App. 1444 (emphasis added). Therefore, the jury could have convicted Johnson either on the basis that he knew the gun “was going to be” brandished, or that it “was being” brandished. See id. The second alternative—that Johnson was aware of the brandishing only as it occurred—is erroneous under Rosemond.
Johnson argues that the aiding and abetting instruction was also erroneous as applied to his bank robbery convictions. Although Johnson does not articulate his logic, we infer that it goes as follows. A
Stated this way, Johnson‘s reading of Rosemond has an appealing consistency. However, we need not decide whether Rosemond extends beyond
The overwhelming and uncontroverted evidence showing Johnson‘s foreknowledge of his confederates’ use of the weapon begins with his first solo bank robbery. There, Johnson brandished what appeared to be a pistol (actually a BB gun), at one point putting it to the head of one of the tellers. Later, Johnson described the first bank robbery to Lawrence, who wanted to commit a bank robbery too, because he needed
money. The two men planned and executed the second robbery together. As they were driving to the bank, Johnson gave Lawrence the same BB gun Johnson had used during the first robbery. When Lawrence entered the bank, he immediately pulled the gun from his pocket, jumped up on the bank counter, and demanded money.
Lawrence testified that he, Johnson, and Taylor planned the third robbery and that Taylor was to go in the bank, hop over the counter, and get the money while carrying a gun—this time, the real gun that Johnson had bought. The getaway driver also testified that the plan was for Taylor to use the gun. Taylor executed the robbery as planned. During the robbery, he pointed the gun at a teller‘s head.
The same group of individuals then planned the fourth robbery. The morning of the robbery, Johnson got his gun and brought it to where the friends met up. During the robbery, Taylor held the gun to a teller‘s head.
For the fifth robbery, Amin Dancy was to be the stickup man, so Johnson gave
At trial, Johnson admitted the essential facts of the five bank robberies, but argued that he was not the ringleader and that the cooperating witnesses’ testimony lacked credibility. He did not present any evidence that would contradict the ample evidence showing that he helped plan each robbery, that the plan for each robbery included using and brandishing a gun, and that he provided the gun for each robbery. We therefore conclude that the third required factor of the plain-error analysis is not present: even if the jury had been instructed that Johnson needed to know in advance that the gun would be brandished, there is not a reasonable probability that it would have acquitted Johnson of the aiding and abetting charges. See Vazquez, 271 F.3d at 104 (third plain-error factor not met where “there [was] never . . . any question about the element that was not submitted to the jury“).8 Therefore, the Rosemond error does not meet the plain-error standard, and we will affirm the aiding and abetting convictions.
C. Johnson‘s Pro Se Arguments
The history of Johnson‘s representation on appeal is recounted above. See Section I., supra. To recap: Johnson was represented and lost his appeal; the Supreme Court granted his pro se petition for certiorari and issued its “grant, vacate, and remand” order; Johnson proceeded pro se with our permission and filed a brief; we appointed a new attorney to represent him; and the new attorney filed a brief as well. Thus, on remand from the Supreme Court, we have before us both pro se and counseled briefs.
The Government argues that we should not address the arguments in Johnson‘s pro se brief because they were not presented in his opening brief (i.e., the one filed before the Supreme Court remanded the case to us). The Government also argues that addressing Johnson‘s pro se arguments would violate our rule forbidding pro se filings by represented parties.
The rule against hybrid representation forbids a party to file a pro se brief supplementing his counseled brief. United States v. Turner, 677 F.3d 570, 578 (3d Cir. 2012);
The rule requiring appellants to raise all arguments in their opening briefs “yields in ‘extraordinary circumstances.‘” United States v. Andrews, 681 F.3d 509, 532 (3d Cir. 2012) (quoting United States v. Albertson, 645 F.3d 191, 195 (3d Cir. 2011)). To weigh whether the circumstances are extraordinary, we consider “(1) ‘whether there is some excuse for the [appellant‘s] failure to raise the issue in the opening brief‘; (2) the extent to which the opposing party would be prejudiced by our considering the issue; and (3) ‘whether failure to consider the argument would lead
Given that Johnson requested to proceed pro se because of his prior counsel‘s failure to raise issues he believed meritorious, there is some excuse for the waiver under the first factor. Under the second factor, there is no prejudice to the Government because it filed a responsive brief addressing the pro se arguments it now says we should ignore. The third factor, miscarriage of justice, is “somewhat similar to the ‘plain error’ rule, which allows appellate courts to correct an error” if it “affected the defendant‘s substantial rights and ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.‘” Andrews, 681 F.3d at 532 (quoting Albertson, 645 F.3d at 196). As we will explain below, none of Johnson‘s pro se arguments are meritorious, and therefore the asserted errors do not affect his substantial rights or the fairness or integrity of the proceedings. But because the first two factors weigh in favor of review, we will reach his pro se arguments.9
1. Double Jeopardy Under Diaz
Johnson argues that one of his convictions for brandishing a firearm under
In Diaz, we held that the Double Jeopardy Clause requires each
The first two prongs of the plain error standard are met: there is error that was plain, as the Government agrees. However, the third prong is not met—the error did not affect Johnson‘s substantial rights. See Marcus, 560 U.S. at 262. The jury convicted him of the unique predicate crimes (the two bank robberies, Counts Four and Six) as well as the common predicate crime (the conspiracy, Count One). As the Government points out, “it would have been irrational for a jury to . . . find Johnson guilty of [the two] [§] 924(c) offenses by concluding that the predicate for each was only the conspiracy charge . . . .” Gov‘t Supp. Br. 22.
Even if the first three prongs of the plain error test were met, we would not
2. FBI Agent‘s Alleged Perjury
Johnson argues that the only witness at the suppression hearing, FBI Agent Donald Asper, committed perjury, and asks us to remand for an evidentiary hearing on this topic. We have carefully reviewed Johnson‘s lengthy argument, as well as Agent Asper‘s testimony, and there is no need for an evidentiary hearing.
Agent Asper testified that a witness to one of the robberies observed the license plate number of the getaway car, a silver Buick. The getaway car was registered to a man named William Childs, whom Agent Asper found and interviewed. Childs provided Asper with an abundance of information. Among other things: Childs told Agent Asper that Johnson bought the Buick and asked Childs to register it in Childs’ name; he identified photos of Taylor, Lawrence, and Johnson; and he said that Taylor, Lawrence, and Johnson had been involved in bank robberies and had told Childs to take the heat for the car. Agent Asper then set up surveillance to find Lawrence. The surveillance was doubly successful, locating not only Lawrence, but also Johnson, who was in the silver Buick at the time. Agents arrested both men. A few hours later—unrelated to the arrest—a witness to one of the robberies identified Johnson in a photo array.
Johnson contends there was no probable cause to arrest him, but instead of a traditional Fourth Amendment argument, he attacks Agent Asper‘s honesty on the witness stand. In doing so, Johnson ignores every fact except that the photo identification took place after his arrest. The judge‘s ruling at the evidentiary hearing puts this issue to rest:
Mr. Johnson, I say some of this for your benefit, sir, because I can appreciate your thinking, honestly, because you‘re thinking, you know, but they didn‘t have the ID until later . . . . And I think here with the . . . getaway car, Mr. Johnson‘s connection to that car, ownership of the car, Mr. Childs’ report to the Special Agent as to Mr. Johnson‘s comments, . . . Mr. Childs picking out Mr. Johnson . . ., Mr. Johnson being in the car when they go to arrest Mr. Lawrence, and then Mr. Johnson getting out of the car and together they go into the house, I think when you put all of that together . . . I do think that there is ample probable cause for the arrest of Mr. Johnson . . . before the ID . . . .
Supp. App. 44-45. Johnson‘s self-serving version of the facts does not undermine Agent Asper‘s testimony. That testimony, which we have only partially recounted, outlines how the investigation unfolded and why the agents had probable cause to arrest Johnson.
3. Tenth Amendment
Johnson argues that “if a search warrant was required then the 10th Amendment requires the Department of Justice to obtain subject matter jurisdiction because the administration of criminal justice under our federal system has rested with the States.” Pro Se Supp. Br. 26. However, Johnson cites only Fourth Amendment case law, and cites no authorities to support his reading of the Tenth Amendment. We note that “[t]he FBI is authorized ‘to detect and prosecute crimes against the United States.‘” United States v. Rodgers, 466 U.S. 475, 481 (1984) (quoting
Johnson argues that the trial evidence was insufficient to support his aiding and abetting convictions. However, we determined—in the initial phase of this appeal, before the Supreme Court‘s “grant, vacate, and remand” order—that the evidence was sufficient. Johnson, 515 F. App‘x at 187-88. Under the law of the case doctrine, “that decision should continue to govern” unless there are “extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.‘” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816-17 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 n.8 (1983)). There are no extraordinary circumstances. We have already explained, in our discussion of Rosemond, that overwhelming and uncontroverted evidence showed Johnson‘s prior knowledge that the gun would be used in the bank robberies. See Section III.B.2., supra. Viewed in the light most favorable to the Government, that same evidence permitted a rational trier of fact to convict Johnson of aiding and abetting. See United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc). Johnson‘s argument ignores much of the evidence and rests on his insistence that he was not present inside the banks, a fact that does not carry the legal weight he wishes to attribute to it.
5. Effect On Interstate Commerce
Johnson argues that the indictment needed to allege, and the jury needed to find, that his crimes affected interstate commerce. He relies on Bond v. United States, 564 U.S. 211 (2011), but that case stands only for the proposition that a defendant has standing to challenge the statute of conviction on Tenth Amendment grounds. Id. at 225-26. Bond says nothing about the requirements for the indictment or the proof at trial. In addition, Johnson contends that the FDIC does not replace money lost to bank robbery, and without FDIC loss, there is no effect on interstate commerce. However, we have ruled that
6. Motion In Limine
Johnson argues that the District Court violated his constitutional rights by granting a motion in limine that would have allowed the Government to rebut Johnson‘s testimony (if he had testified) with evidence of his statements to investigators. Johnson clearly feels that this ruling constrained his defense. However, the authorities he cites do not show error. For example, Sullivan v. Louisiana, 508 U.S. 275 (1993), deals with deficient instructions regarding guilt beyond a reasonable doubt, and United States v. Gaudin, 515 U.S. 506 (1995), deals with failure to submit the element of materiality to the jury in a perjury prosecution.
Johnson argues that the District Court committed five interlocking, reversible errors. We address these in turn.
First, Johnson argues that he was prevented from testifying because he feared for his family and was assaulted in pretrial detention. However, the facts he relies on either are outside the record or constitute a continuation of his self-serving (and unsupported) version of events.
Second, Johnson argues that the District Court should have severed the first, second, and fifth robberies and tried each one individually. Joinder was appropriate, however, because the five bank robberies were a “series of acts or transactions.”
Third, Johnson attacks the testimony of FBI agents and a cooperating witness. Johnson declares that Agent Shute relied on inaccurate data when testifying about cell site analysis, but he never hints at what the inaccuracies were. He argues that Agent Banis, who presented call detail records, had no independent evidence that Johnson‘s cell phone number was really his. However, Agent Banis testified that Lawrence and Johnson‘s sister identified the number as Johnson‘s. Finally, Johnson argues that Lawrence offered improper expert testimony about the meaning of a phone call between Johnson and Amin Dancy. Such testimony offered by a cooperating witness is lay opinion testimony, not expert testimony. See United States v. Anderskow, 88 F.3d 245, 250 (3d Cir. 1996). Lawrence‘s testimony was a proper lay opinion: it was rationally based on his perception (he was present during the phone call), was helpful to the jury, and was not based on specialized knowledge.
Fourth, Johnson argues that certain evidence—video, pictures, and bank teller testimony—was cumulative and should not have been admitted under
Fifth, Johnson argues that the cumulative weight of the errors rendered his trial unfair. This argument fails because his other assignments of error fail.
III.
For the reasons stated above, we will affirm.