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United States v. Johnson

United States District Court, M.D. Pennsylvania

August 29, 2017



          William W. Caldwell United States District Judge

         I. Introduction

         Before the court is Defendant Jwane Johnson's motion for a new trial. (Doc. 76). After careful consideration of the applicable law, and because the interests of justice warrant it, we will grant Defendant's motion and will order a new trial.

         II. Background

         On June 22, 2016, Defendant was indicted on charges of attempted distribution of cocaine base, 21 U.S.C. § 846 (Count One); being a felon in possession of a firearm, 18 U.S.C. § 922(g) and 924(e) (Count Two); possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) (Count Three); and possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1) (Count Four). (Doc. 1 at 1-4). The charges on Counts One, Two, and Three relate to a traffic stop by police on December 8, 2015. (Doc. 37). The charge on Count Four stems from a separate and unrelated traffic stop on January 2, 2016.[1] (Doc. 30).

         Defendant filed motions to suppress evidence from each traffic stop, and to sever Counts One, Two, and Three from Count Four of the indictment. (Docs. 18-19, & 32-33). In the severance motion, Defendant argued that even if both traffic stops involved drug-related offenses, “they are clearly not based on the same act or transaction nor are they part of a common scheme or plan.” (Doc. 19 at 7). After examining the events of each stop, we denied Defendant's motions to suppress. (Docs. 30-31 & 37-38). In a one-page order, we also denied Defendant's severance motion, noting: “Because [Rule] 8(a) permits joinder of two or more offenses if they ‘are of the same or similar character, ' we will deny Defendant's request for severance of Counts One and Four, which may be tried together.” (Doc. 24 n.1). Trial began on December 5, 2016. (Doc. 65). In an in-chambers conference before trial, Defendant requested reconsideration of the court's denial of his severance motion. (Doc. 66 at 220). We denied that motion and proceeded to trial on all counts. (See Docs. 65-66). We recount the trial testimony and evidence.

         As to the traffic stop on December 8, 2015, Officer Christopher Auletta of the Harrisburg Police Department (HPD) testified that, at approximately 1:00 a.m., he was patrolling the Allison Hill section of the city-a high crime and drug area-in a marked police vehicle when he observed a black Mazda sedan with two occupants parked on the street. The sedan was in an unlit area with its lights off. Auletta activated his takedown lights, and the sedan pulled away from the curb. Auletta followed the vehicle and ran its license plate through a database, which revealed that its registration was suspended. Auletta then executed a traffic stop of the sedan and informed its driver, Yvette Smith, why he had stopped the vehicle.

         Auletta obtained the credentials of Smith and her passenger, the Defendant, and checked their names through a database. Auletta learned that Smith had an outstanding summary warrant for her arrest. Auletta asked Smith and Defendant to exit the vehicle, and proceeded to inform them that, per HPD policy, he would be conducting an inventory search of the vehicle, confiscating its registration, and towing the vehicle. When Defendant was told that officers would be searching the vehicle, he “appeared nervous.” Backup officers patted down Defendant, but found no weapons or contraband.

         Auletta searched the car and found a broken glass crack pipe in a tray under the steering wheel. Auletta arrested Smith and then asked her if there was anything else in the car, at which point Smith requested to speak privately with Auletta. She informed Auletta that Defendant “had something in the car.” As Auletta spoke with Smith, Defendant fled from the scene. Auletta continued to search the vehicle and found a semiautomatic handgun under the front passenger seat.

         Following Officer Auletta's testimony, the Government called Smith, who testified to the events leading up to the stop on December 8th. Smith testified that, after having a bad day at work, she went to Allison Hill to purchase crack cocaine. Smith retrieved a crack pipe from a friend and parked her car, at which point she saw Defendant. Smith did not know Defendant, but approached him to purchase drugs. Defendant entered the passenger side of Smith's vehicle and told Smith that he had to adjust “his waist because his gun was slipping.” Defendant pulled out a plastic bag of what he said to be crack cocaine, at which point Smith saw Officer Auletta's lights come on and pulled away from the curb. Smith then testified to the ensuing traffic stop. On cross examination, Smith testified that she signed an agreement with the Government, which generally provided that she agreed to cooperate in exchange for the Government not charging her with any federal crimes. Pursuant to the agreement, the Government relayed Smith's cooperation to the Dauphin County District Attorney's Office.

         As to the traffic stop on January 2, 2016, the Government called HPD Officers Darren Bates and Anthony Fiore. Officer Bates testified that he was on uniformed patrol in an unmarked police car at approximately 2:00 p.m. in the Allison Hill area, just blocks away from where the December 8th stop occurred, when he observed a black male driving a red 2006 Buick. Based on previously obtained information, Bates believed the vehicle belonged to Alfonso Carter, an individual who was wanted by police. Bates followed the vehicle and radioed its location to State Parole Agent Allen Shipley and Officer Fiore, hoping that they could assist in identifying the driver. Officer Fiore's testimony largely confirmed these events.

         After the Buick stopped, Bates parked his vehicle and waited for the other officers to arrive. Agent Shipley and Officer Fiore, travelling in their unmarked police vehicle, stopped near the Buick. Fiore and Shipley exited their vehicle, at which point the Buick backed up, hit a tree, and took off. Officer Bates pursued the Buick for several blocks, at which point an obstruction in the street caused the vehicle to stop. Defendant, who was the driver of the Buick, exited the vehicle and fled, but was soon apprehended. Defendant was arrested and searched by police, who found two cell phones on his person and, later, plastic bags containing 2.45 grams of cocaine base. As to this stop, the Government's expert witness opined that, based on his review of the police reports and the way the bags were packaged, the cocaine was packaged for distribution.

         On December 6, 2016, the jury found Defendant guilty on all counts in the indictment. (Doc. 57-58). On April 13, 2017, Defendant filed the instant motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. (76-77). Defendant asks the court to vacate the jury's verdict “in light of the prejudicial impact of trying two totally separate and unrelated cases together.” (Doc. 76 ¶ 8). The Government filed its opposition brief on May 25, 2017. (Doc. 82). Defendant's motion is ripe for disposition.

III. Discussion

Federal Rule of Criminal Procedure 33 provides that “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33. “[W]hen a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case.” United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). “[E]ven if a district court believes that the jury verdict is contrary to the weight of the evidence, it can order a new trial ‘only if it believes that there is a serious danger that a miscarriage of justice has occurred-that is, that an innocent person has been convicted.'” United States v. Silveus, 542 F.3d 993, 1004-05 (3d Cir. 2008).

         In his motion for a new trial, Defendant argues: (1) that the court erred in denying severance of Counts One, Two, and Three from Count Four; and (2) that, during trial, the Government made impermissible statements during closing arguments by using the two separate traffic stops interchangeably to argue Defendant's guilt on all counts.

         A. Defendant's Severance Motion

         Federal Rule of Criminal Procedure 8(a) provides for joinder of offenses. An “indictment or information may charge a defendant in separate counts with [two] or more offenses if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Rule 8(a) applies to “cases involving a single defendant charged with multiple offenses.” United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003). The purpose of Rule 8(a) is “to promote economy of judicial and prosecutorial resources.” United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987).

         “Joinder of charges is the rule rather than the exception, and Rule 8 is construed liberally in favor of initial joinder.” United States v. Lee, No. 4:14-CR-0254, 2015 WL 12631238, at *1 (M.D. Pa. June 2, 2015) (quoting United States v. Brown, No. 1:CR02-146-02, 2002 WL 32739530, at *3 (M.D. Pa. Dec. 17, 2002)). Rule 8(a) allows “joinder of offenses that ‘are of the same or similar character, ' even if such offenses do not arise at the same time or out of the same series of acts or transactions.” United States v. Hersh, 297 F.3d 1233, 1241 (11th Cir. 2002); see also United States v. Niederberger, 580 F.2d 63, 66 (3d Cir. 1978). “Indeed, Rule 8(a) is not limited to crimes of the ‘same' character but also covers those of ‘similar' character, which means ‘[n]early corresponding; resembling in many respects; somewhat alike; having a general likeness.'” Hersh, 297 F.3d at 1241 (quoting United States v. Walser, 3 F.3d 380, 385 (11th Cir.1993)); see also Irizarry, 341 F.3d at 312 n.4.

         Conversely, Federal Rule of Criminal Procedure 14(a) provides that “[i]f the joinder of offenses . . . appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). Severing offenses charged in the same indictment under Rule 14 is within “the sound discretion of the district courts.” United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005). “[A] district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right . . . or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 540 (1993).

         “[D]efendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials, ” United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005) (quoting Zafiro, 506 U.S. at 540), and “[m]ere allegations of prejudice are not enough, ” id. at 775-76. A defendant seeking severance under Rule 14(a) “bear[s] a ‘heavy burden' and must demonstrate not only that the court would abuse its discretion if it denied severance, ‘but also that the denial of severance would lead to clear and substantial prejudice resulting in a manifestly unfair trial.'” Lore, 430 F.3d at 205 (quoting Urban, 404 F.3d at 776). “[T]he question of prejudice hinges upon ‘whether the jury will be able to compartmentalize the evidence as it relates to separate [offenses] in view of its volume and limited admissibility.'” United States v. Walker, 657 F.3d 160, 170 (3d Cir. 2011) (quoting United States v. Davis, 397 F.3d 173, 182 (3d Cir.2005)); United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981) (“Of primary concern . . . is ‘whether the jury can reasonably be expected to compartmentalize the evidence, ' as it relates to each count by following the instructions of the trial court.”). “Where additional charges against a single defendant are ‘relatively straightforward and discrete, ' we have ‘not doubt[ed] that the jury reasonably could have been expected to compartmentalize the evidence . . . and actually did so.” Walker, 657 F.3d at 170 (quoting Lore, 430 F.3d at 205).

         Here, when Defendant initially requested severance of the offenses as to each traffic stop at issue, he provided no authority, outside of generally citing Rules 8(a) and 14(a), for why severance was necessary. Defendant devoted only two sentences of argument to that portion of his motion, arguing: (1) that “even though both arrests involved drugs, they are clearly not based on the same act or transaction nor are they part of a common scheme or plan”; and (2) that a “jury would be swayed” if a joint trial were held on the traffic stops because Defendant “had two police contacts close in time involving drugs and in the one, a gun.” (Doc. 19 at 7).

         As to the first argument, it is of little consequence that the two traffic stops were not part of the same transaction, as joinder under Rule 8(a) is permitted where the offenses charged “are of the same or similar character.” Fed. R. Crim. P. 8(a). We denied Defendant's severance motion because each traffic stop here was straightforward, discrete, and involved offenses that were either part of the same transaction or were similar in character. Defendant was charged with attempted distribution of cocaine base, being a felon in possession of a firearm, and possession of a firearm in furtherance of a drug trafficking crime as to the December 8th traffic stop, and charged with possession with intent to distribute cocaine base as to the January 2nd traffic stop. The firearms charges were sufficiently connected to the attempted distribution charge, as they all stemmed from the December 8th traffic stop; likewise, the attempted distribution offense on December 8th was similar in character to the possession with intent to distribute charge on January 2nd, even if both charges stemmed from different, unrelated stops. At the time, and under the circumstances, each offense was part of a drug-related crime and could be properly joined. See Gorecki, 813 F.2d at 41 (noting that “drug and weapons offenses were properly joined under [Rule] 8(a) and that the defendant has not advanced sufficient proof of prejudice from the joinder under [Rule] 14 to justify a new trial”).

         Moreover, contrary to Defendant's argument that we did not address prejudice in trying the offenses for each traffic stop together, (Doc. 77 at 2), in our denial of his severance motion, we relied on United States v. Rich, 326 F.Supp.2d 670 (E.D. Pa. 2004), a case involving joinder of multiple firearms and drug charges occurring months apart, not only to support our finding that the offenses here were similar in character, but also that “there was no prejudice from joining the separate offenses” because “each of the offenses was relatively short and simple.” In Defendant's severance motion, he provided no support, beyond speculation that a jury “would be swayed, ” as to how joinder would result in substantial prejudice, and had not met his heavy burden of showing that joinder ...

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