United States v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-50101
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
Cross-Appellee,

versus

SKIRVIN GEORGE JOHNSON,

Defendant-Appellee,
Cross-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
(A-90-CR-191)
_________________________________________________________________
August 12, 1996
Before KING, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM*:

The United States appeals from the district court’s order

granting a new trial to Skirvin George Johnson on the basis that

the admission of illegally seized evidence in Johnson’s first

trial was not harmless error. We reverse the district court’s

order granting a new trial and, after reviewing the arguments

raised by Johnson on his first appeal which were not addressed by

*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
the earlier panel of this court, we reinstate Johnson’s

convictions and sentence.

I. BACKGROUND

A. PROCEDURAL HISTORY

On February 14, 1991, Skirvin George Johnson was convicted

by a jury of one count of theft from a federally funded program

in violation of 18 U.S.C. § 666 and two counts of money

laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i).

A panel of this court initially vacated Johnson’s

convictions and remanded the case for a new trial based upon a

violation of Johnson’s Fourth Amendment right to be free from

unreasonable searches and seizures. United States v. Johnson, 16

F.3d 69, 72 (5th Cir. 1994). This court determined that law

enforcement officers obtained certain items, two of which were

admitted into evidence at trial, from Johnson’s briefcase at the

time of his arrest in the course of a search that exceeded the

scope of a proper search incident to arrest. Id.

In response to a motion for clarification by the government,

this court issued a revised opinion indicating that it had not

intended to order a new trial, but rather was remanding the case

for the district court to determine (1) whether the admission of

two illegally seized documents at trial was harmless error, and

2
(2) whether any other evidence admitted at trial was excludable

as the fruit of the illegal search. United States v. Johnson, 18

F.3d 293, 294 (5th Cir. 1994).

Accordingly, the district court held an evidentiary hearing,

and determined that (1) the government had not proven that the

admission of the two illegally obtained documents at trial was

harmless error beyond a reasonable doubt, and (2) no other

evidence admitted at trial was excludable as the fruit of the

illegal search.

On December 20, 1994, the district court granted Johnson a

new trial based upon its finding that the admission of tainted

evidence was not harmless beyond a reasonable doubt. The

government timely filed a notice of appeal from this order.

B. FACTS

From October 1984 until June 1988, Johnson worked as a loan

officer in the Community Development Department of the City of

Phoenix, Arizona, which typically funded block grants from the

Department of Housing and Urban Development (“HUD”) to minority

businesses. During his tenure there, he made four suspicious

loans, two of which are relevant to this appeal.

In March 1988, Johnson agreed to buy a park concession stand

business with outlets in three Phoenix city parks from Everett

Rand. To pay for the business, Johnson funded a $42,000 loan

3
from the City of Phoenix in the name of Rand d/b/a Cortez

Distributing. Rand had never applied for a loan with the city in

the amount of $42,000, and testified that he knew nothing about

the loan.

At Johnson’s direction, Rand opened a series of bank

accounts at a Phoenix bank, into which the loan funds were

deposited. Rand presigned a series of checks from the bank

accounts to allow Johnson to cover his expenses in running the

concessions business. Johnson paid Rand $25,000 for the

business, which he subsequently renamed Combined Concessions, and

he spent the remaining $17,000 of the loan proceeds operating the

concessions business.

The concessions business’s contracts with the city parks as

well as all permits remained in Rand’s name. Johnson instructed

his employees, including Betty Hoover and Victor Montgomery, not

to reveal his ownership of the business to the City of Phoenix,

admonishing them never to mention his name to a city employee.

In April 1988, Johnson funded a $58,000 loan from the City

of Phoenix in the name of Wendell Wilson d/b/a American Products.

Although the documentation of this loan is sketchy, the entire

loan proceeds appeared to have been deposited into one of the

accounts that Johnson had previously instructed Rand to open in

connection with the loan for the purchase of the concessions

business. Of the loan proceeds, $50,500 was then transferred into

Johnson’s personal account at First National Bank of Austin,

4
Texas, where Johnson established a $30,000 certificate of

deposit, a $17,500 performance fund account, and a $3,000

personal account, all in his own name.

In June 1988, Johnson began working for the City of Austin

as the Deputy Director of the Planning and Economic Development

Department, and acted as a servicing officer in loan programs

primarily financed by HUD. While so employed, he funded a

$250,000 loan on behalf of the City of Austin in the name of

Hillary Richard Wright Industries, Inc. (“HRW”). The purported

principals of HRW were Wendell Wilson and Eddie Manley, Johnson’s

brother-in-law. Investigators determined that HRW was conducting

no business, and was in essence an empty corporate shell.

Johnson delivered a $250,000 check from the City of Austin

to Bank of the Hills, which, at Johnson’s request, had agreed to

service the HRW loan for the city. This transaction was the

basis for Johnson’s indictment for theft from a federally funded

program in violation of 18 U.S.C. § 666.

Johnson also delivered to the bank a letter containing

disbursement instructions, pursuant to which the bank issued two

cashier’s checks. One check, in the amount of $94,323.16, was

made payable to J. McGee Co., and the second check, in the amount

of $86,045.11, was made payable to Dunn’s International Group.

The remainder of the $250,000 was deposited in an HRW account at

Bank of the Hills. The disbursements to J. McGee Co. and Dunn’s

International Group served as the basis for Johnson’s first count

5
of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i).

The check payable to J. McGee Co. was deposited at the Petra

International Bank in Washington, D.C. in an account styled

Johnson McGee Co., to which Johnson was the only signator. On

January 29, 1990, Johnson had Louise Dagher, a longtime family

friend, purchase a $44,205.00 cashier’s check with money from the

Johnson McGee Co. account. Johnson delivered this check to the

City of Phoenix along with a cover letter that he signed in an

alias, Emmet Reed, indicating that the check was for payment in

full of the loan that he had funded in the name of Rand d/b/a

Cortez Distributing.

The cashier’s check payable to Dunn’s International Group

was deposited in an account controlled by Wendell Wilson. Within

two days of the deposit, $62,000 was used for the purchase of a

cashier’s check which was sent to the City of Phoenix as payment

in full of the loan to Wilson d/b/a American Products.

Finally, in February 1990, $39,339.27 was transferred from

the HRW account at Bank of the Hills to the Johnson McGee Co.

account at Petra International Bank. Johnson had arranged for

these funds to be used by his friend, Emmanuel Reeves, to

purchase a parcel of real estate on behalf of Johnson McGee Co.

This transfer was the basis of Johnson’s second count of money

laundering.

On May 16, 1990, Johnson was arrested in his Austin office

by the Phoenix police. During the course of his arrest, eight

6
items were seized illegally from his briefcase. After Johnson’s

arrest, computer disks containing documents connecting Johnson to

the Phoenix concessions business and establishing Johnson’s

connection to HRW were discovered in Johnson’s office and

confiscated.1

Two of the items seized from Johnson’s briefcase were

entered into evidence: the government’s Exhibit 110, a subpoena

duces tecum for Gregory Rand d/b/a Cortez Distributing, and the

government’s Exhibit 111, a letter from the Arizona Department of

Revenue regarding taxes due by Rand that included a photocopy of

a check signed by Coy Curtis, an accountant for Cortez

Distributing. As stated above, we concluded on Johnson’s first

appeal that the search of Johnson’s briefcase was unlawful, and

we remanded for harmless error and fruit of the poisonous tree

analysis. On remand, the district court determined that

admission of government’s Exhibits 110 and 111 was not harmless

error and therefore granted a new trial. Additionally, the

district court found that no other evidence admitted at trial was

derived from or tainted by the illegal search.

II. THE GOVERNMENT’S APPEAL

1
In Johnson’s first appeal, this court held that the
seizure of the computer disks did not violate his Fourth
Amendment rights. United States v. Johnson, 16 F.3d at 73.

7
 The government appeals from the district court’s order

granting Johnson a new trial on the basis that the admission of

the government’s Exhibits 110 and 111 at his trial was not

harmless beyond a reasonable doubt. Johnson filed a motion to

dismiss the government’s appeal for lack of appellate

jurisdiction. We shall first address the jurisdictional

question, and then the merits of the government’s appeal.

A. JURISDICTION

The government contends that this court possesses

jurisdiction over its appeal pursuant to 18 U.S.C. § 3731.

Section 3731 provides in pertinent part:

In a criminal case an appeal by the United States shall
lie to a court of appeals from a decision, judgment, or
order of a district court dismissing an indictment or
information or granting a new trial after verdict or
judgment, as to any one or more counts, except that no
appeal shall lie where the double jeopardy clause of
the United States Constitution prohibits further
prosecution.

18 U.S.C. § 3731 (emphasis added).

Johnson argues that this provision does not provide

jurisdiction over the government’s appeal, contending that the

district court’s new trial order was not entered “after verdict

or judgment” because Johnson’s convictions were vacated by this

court before the new trial order was entered. Johnson, 16 F.3d

at 74. We conclude that Johnson’s argument lacks merit and that

we possess jurisdiction over the government’s appeal pursuant to

8
18 U.S.C. § 3731.

“[T]he legislative history [of § 3731] makes it clear that

Congress intended to remove all statutory barriers to Government

appeals and to allow appeals whenever the Constitution would

permit.” United States v. Wilson, 420 U.S. 332, 337 (1975). The

only constitutional barrier to a potential government appeal is

the possibility of implicating the Double Jeopardy Clause. See

United States v. Leal, 781 F.2d 1108, 1110 (5th Cir.),(noting

that “[t]he availability of an appeal [by the government] depends

not on statutory restrictions; rather only the double jeopardy

clause of the Fifth Amendment limits the government’s power to do

so”), cert. denied, 479 U.S. 831 (1986); United States v. Aslam,

936 F.2d 751, 754 (2nd Cir. 1991)(holding that § 3731 is “a broad

authorization [for the government] to appeal unless prohibited by

the Double Jeopardy Clause”).

A verdict was entered against Johnson by the jury at trial.

The fact that his convictions were vacated on appeal does not

change the fact that a verdict was rendered. The district court

entered an order granting Johnson a new trial after rendition of

a verdict, from which the government appeals. Therefore, the

government’s appeal comes within the plain language of section

3731. See 18 U.S.C. § 3731 (allowing appeal by the government

from an order “granting a new trial after verdict or judgment”).

Furthermore, no double jeopardy concerns are raised by the

government’s appeal because the government is trying to prevent

9
the grant of a second trial--i.e., it seeks to have Johnson’s

convictions reinstated--which in no sense places Johnson in

jeopardy for a second time. “[W]here a Government appeal

presents no threat of successive prosecutions, the Double

Jeopardy Clause is not offended.” United States v. Martin Linen

Supply Co., 430 U.S. 564, 569-70 (1977); see Wilson, 420 U.S. at

344. Thus, if a reversal of the district court’s order will

simply result in a reinstatement of a jury verdict, then the

Double Jeopardy Clause is not implicated. Leal, 781 F.2d at

1110. A successful appeal by the government in this case would

merely result in reinstatement of the jury verdict; therefore,

appellate review of the district court’s order granting a new

trial does not offend the Double Jeopardy Clause. Accordingly,

we conclude that we possess jurisdiction over the government’s

appeal under 18 U.S.C. § 3731.

B. HARMLESS ERROR

At trial, the government admitted into evidence two

documents found during the illegal search of Johnson’s briefcase:

the government’s Exhibit 110, a subpoena duces tecum from the

Arizona Department of Revenue for Rand d/b/a Cortez Distributing,

and the government’s Exhibit 111, a letter from the Arizona

Department of Revenue regarding taxes due by Rand that included a

photocopy of a check signed by Coy Curtis, an accountant for

10
Cortez Distributing. On remand and after an evidentiary hearing,

the district court concluded that the admission of these two

exhibits could not be considered harmless error, reasoning that

the exhibits were “direct evidence taken from the defendant’s

possession, and no other evidence offered at trial was of like

character.”2 The district court stated that it could not

possibly determine that Exhibits 110 and 111 did not contribute

to the jury’s verdict because the court believed that Exhibits

110 and 111 were the only documentary evidence found in Johnson’s

possession which connected Johnson to Rand after Johnson had

moved from Austin to Phoenix.

The government contends that the district court erred in

2
The district court explained why it considered these two
exhibits to be of a different character than the remainder of the
government’s evidence:

Further, the character of the evidence at issue is
different from the testimony and other documentation
the government offered. Exhibits 110 and 111, although
only two of the 102 exhibits admitted at trial, were
found in the defendant’s possession and, indeed,
comprised the only evidence actually found in the
defendant’s possession. The documents provided a
direct connection between Everett Rand and the
defendant after the defendant had moved to Austin from
Phoenix. Such a connection was necessary to establish
the money laundering charge, that is, that the Cortez
loan was paid off through the Petra account with
proceeds derived from the HRW loan in Austin. The
testimony of witnesses, although corroborating the
connection between the defendant and the Phoenix
transactions, was subject to credibility determinations
made by the jury. Actual documents found in the
possession of a defendant reflected concrete
affirmation of the live testimony.

11
concluding that the admission of Exhibits 110 and 111 was not

harmless beyond a reasonable doubt. Specifically, the government

challenges the district court’s conclusion that Exhibits 110 and

111 were the only evidence of a connection between Johnson and

Rand found in Johnson’s possession. First, the government claims

that the computer disks, which were also seized from Johnson’s

office, contain letters discussing the concessions business, thus

establishing the same facts as Exhibits 110 and 111 were offered

to prove--i.e., that Johnson was participating in the Phoenix

concessions business while living in Austin. Additionally, the

government maintains that Exhibits 110 and 111 could not have

contributed to the verdict because they were cumulative of other

evidence establishing the same facts, and formed a minimal part

of the prosecution’s case against Johnson. The government argues

that the computer documents and Johnson’s own admissions upon

questioning by Officer Sterrett, as testified to by Sterrett,

established that Johnson continued to participate in the Phoenix

concessions business while in Austin. Finally, the government

argues that the testimony of witnesses Rand, Betty Hoover, and

Victor Montgomery also established the same facts which Exhibits

110 and 111 were offered to prove.

We review the grant or denial of a motion for a new trial

under an abuse of discretion standard. United States v. Cooks,

52 F.3d 101, 103 (5th Cir. 1995). However, we conduct a de novo

review of the record to determine whether constitutional trial

12
error is harmless beyond a reasonable doubt. Arizona v.

Fulminante, 499 U.S. 279, 295-96 (1991); Lowery v. Collins, 988

F.2d 1364, 1372 (5th Cir. 1993). “An order granting a new trial

will . . . be reversed when it is not supported by the reasons

given . . . .” Fontenot v. Cormier, 56 F.3d 669, 676 (5th Cir.

1995). Therefore, if we find that the district court incorrectly

concluded that the admission of Exhibits 110 and 111 was not

harmless error, we shall also find that it abused its discretion

in granting a new trial, as the reason for the new trial was the

finding that the admission of the tainted evidence was harmful.

“A constitutional error may be found harmless if the

beneficiary of a constitutional error proves beyond a reasonable

doubt that the error complained of did not contribute to the

verdict obtained.” United States v. Dotson, 817 F.2d 1127, 1135

(5th Cir. 1987) (citing Chapman v. California, 386 U.S. 18, 24

(1967)) (internal quotations and alterations omitted). “The

question is not whether there was sufficient evidence on which

the petitioner could have been convicted without the evidence

complained of; rather, the question is whether there is a

reasonable possibility that the evidence complained of might have

contributed to the conviction.” Id. (citing Fahy v. Connecticut,

375 U.S. 85, 86-87 (1963)) (internal quotations and alterations

omitted); see Satterwhite v. Texas, 486 U.S. 249, 258 (1988).

In analyzing the record to determine whether the erroneous

admission of Exhibits 110 and 111 was harmless, we must first

13
determine the purpose for which the tainted evidence was

introduced. See United States v. Scarfo, 685 F.2d 842, 846 (3rd

Cir.), cert. denied, 459 U.S. 1170. Both parties agree that

Exhibits 110 and 111--both items of correspondence from the

Arizona Department of Revenue to Rand dated 1990 and found in

Johnson’s possession--were offered by the government to

demonstrate that Johnson was involved with Rand in the operation

of the concessions business after he had moved from Phoenix to

Austin. The government needed this connection to prove an

element of the money laundering counts--i.e., that Johnson acted

with the intent to promote the carrying on of specified unlawful

activity. The government’s theory was that Johnson used the

$250,000 Austin loan proceeds to pay off his two fraudulent

Phoenix loans--the $58,000 loan to American Products and the

$42,000 loan to Rand d/b/a Cortez Distributing, which later

became Combined Concessions. Thus, the government had to prove

the existence of the two Phoenix loans and the connection between

Johnson and the businesses to whom those loans were made.

In addition to Exhibits 110 and 111, the government offered

other evidence establishing a connection between Johnson and Rand

and the Phoenix concessions business. However, the district

court concluded that the admission of Exhibits 110 and 111 was

harmful because these exhibits were different in character from

the other evidence presented on this issue. After reviewing the

remainder of the evidence offered to prove the connection between

14
Johnson and the Phoenix concessions business, we conclude that

there is no reasonable possibility that Exhibits 110 and 111

contributed to the jury’s verdict; thus, the admission of the

tainted exhibits is harmless beyond a reasonable doubt.

First, the district court incorrectly concluded that

Exhibits 110 and 111 were different in character from the other

evidence offered to show Johnson’s continuing involvement with

the Phoenix activities. The district court distinguished

Exhibits 110 and 111 because (1) they were discovered in

Johnson’s possession--in his briefcase in his office, and (2)

they were tangible documents not subject to credibility

determinations. However, the government also admitted into

evidence computer discs found in Johnson’s office and a print-out

of the documents found on these discs. The discs contained a

1989 letter from Rand to the City of Phoenix concerning the

concessions business. The untainted computer discs and the

documents contained thereon share the “unique” characteristics of

Exhibits 110 and 111: (1) the discs were discovered in Johnson’s

possession--on his desk in his office; and (2) the discs and the

print-outs were also tangible evidence not subject to credibility

determinations. Therefore the computer discs and documents

constitute evidence of the same character as Exhibits 110 and 111

establishing the same facts--that Johnson was involved with Rand

in the operation of the concessions business after he moved from

Phoenix to Austin.

15
 Second, Johnson’s own admissions to Officer Sterrett, as

testified to by Sterrett, established the necessary connection

between Johnson and the operation of the concessions business.

Sterrett testified that Johnson admitted that he had forged

Rand’s signature on the documents necessary to obtain the loan

from the City of Phoenix in the name of Rand d/b/a Cortez

Distributing. He also admitted that he purchased and took

control of the concessions business and renamed it Combined

Concessions. He admitted that although he ran and owned the

concessions business, it was still held in Rand’s name. Johnson

admitted that he used money from the Petra bank account to pay

off the loan from the City of Phoenix to Combined Concessions.

The significance of Exhibits 110 and 111 pales in comparison to

Johnson’s admissions that he forged Rand’s signature to obtain

the concessions loan and that he owned and operated the Phoenix

concessions business. See Fulminante, 499 U.S. at 296 (stating

that “[a] confession is like no other evidence. Indeed, the

defendant’s own confession is probably the most probative and

damaging evidence that can be admitted against him . . . ”).

Third, the testimony of three witnesses also established

that Johnson procured the fraudulent Phoenix loans and operated

the Phoenix concessions business. Rand testified that Johnson

agreed to purchase the concessions business from him, and that

Johnson paid for the business with a check from the City of

Phoenix. Rand stated that he knew nothing about the loan and

16
that he never gave Johnson permission to sign his name on the

loan documents. Betty Hoover, an employee of the concessions

business, also testified that Johnson was the owner of the

business, although she testified that Johnson instructed his

employees not to reveal his ownership to the City of Phoenix.

Hoover testified that Johnson managed the daily affairs of the

concessions business. She testified that while Johnson was

living in Austin, he called her three times a week to discuss the

business operations of the concession stands and that he would

travel to Phoenix about once a month to check on the concession

stands. Victor Montgomery, another employee of the concessions

business, testified that Rand sold the concessions business to

Johnson in 1988. Montgomery also testified that Johnson operated

the concessions business and communicated with the employees at

least a couple of times a week while he was in Austin and Johnson

would travel to Phoenix a couple of times a month. This

testimony clearly establishes the same facts for which Exhibits

110 and 111 were offered.

Finally, we note that Exhibits 110 and 111 were identified

by Officer Sterrett during his testimony, but were not discussed

or explained at that time. The tainted exhibits were mentioned

on only two pages of the over 1000-page trial transcript and they

were not mentioned by the government during closing argument.

Exhibits 110 and 111 clearly did not constitute evidence relied

on heavily by the prosecution. Cf. Fleming v. Collins, 917 F.2d

17
850 (5th Cir. 1990)(holding the admission of defendant’s

statement without Miranda warnings not harmless because the

statements were “the core of the government’s case against” the

defendant, were relied on heavily by the prosecution during

closing argument, and were obviously central to his conviction).

Considering the other evidence offered by the prosecution

for the same purpose as Exhibits 110 and 111, and the fact that

these exhibits were of minimal significance to the government’s

case against Johnson, we conclude that the admission of Exhibits

110 and 111 was harmless beyond a reasonable doubt. Accordingly,

the district court abused its discretion in granting Johnson a

new trial.

III. JOHNSON’S ARGUMENTS ON APPEAL

Having concluded that the district court abused its

discretion in granting Johnson a new trial, our next step would

ordinarily be to reinstate Johnson’s convictions. However, on

his original appeal, Johnson raised several arguments which the

earlier panel did not address. Johnson, 16 F.3d at 74.

Additionally, as a result of this court’s order directing the

district court to conduct a “fruit of the poisonous tree

analysis” on remand, Johnson raises an additional argument that

the district court erred in conducting this analysis.

Accordingly, we shall address Johnson’s outstanding appellate

18
issues before deciding whether to reinstate his convictions.

A. FRUIT OF THE POISONOUS TREE

Johnson contends that the district court erred in

determining on remand that no other evidence admitted against him

at trial should have been excluded as the fruit of the illegal

search of his briefcase. Specifically, Johnson claims that the

testimony of Louise Dagher and all evidence pertaining to Petra

International Bank, Johnson McGee Co., Coy Curtis and First City

Visa was derived from and tainted by the illegal search of

Johnson’s briefcase.

At the evidentiary hearing, the government presented

testimony of its investigating officers to demonstrate that each

item of evidence introduced at trial other than Exhibits 110 and

111 was derived from some source other than the illegal search of

Johnson’s briefcase. Based on this testimony and the notes of

the investigating officers, the district court ruled that no

evidence other than Exhibits 110 and 111 was tainted by the

illegal search.

We review a district court’s conclusions of law relating to

a motion to suppress de novo. United States v. Seals, 987 F.2d

1102, 1106 (5th Cir.), cert. denied, 114 S. Ct. 155 (1993). We

will accept the district court’s findings of fact unless they are

clearly erroneous. Id. In this case, the district court’s

19
conclusion that no evidence admitted at trial should have been

excluded as fruit of the illegal search is functionally

equivalent to a denial of a motion to suppress; therefore, we

shall review it as such.

“The derivative evidence rule, also known as the ‘fruit of

the poisonous tree doctrine,’ requires exclusion of evidence that

is the indirect product or ‘fruit’ of unlawful police conduct.”

United States v. Tedford, 875 F.2d 446, 450 (5th Cir. 1989). The

purpose of the exclusionary rule is “to deter future unlawful

police conduct and thereby effectuate the guarantee of the Fourth

Amendment against unreasonable searches and seizures.” United

States v. Houltin, 566 F.2d 1027, 1030 (5th Cir.), cert. denied,

439 U.S. 826 (1978). The question asked in determining whether

evidence is the fruit of an illegal search is “whether, granting

establishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploitation of

that illegality or instead by means sufficiently distinguished to

be purged of the primary taint.” Wong Sun v. United States, 371

U.S. 471, 488 (1963); United States v. Caldwell, 750 F.2d 341,

343 (5th Cir. 1984), cert. denied, 471 U.S. 1007 (1985).

There are three situations in which evidence which is

derived from illegal police conduct is “purged of its taint” and

therefore admissible. United States v. Parker, 722 F.2d 179, 184

(5th Cir. 1983). First, derivative evidence should not be

suppressed when “the connection between the illegal police

20
conduct and the discovery and seizure of the evidence is ‘so

attenuated as to dissipate the taint.’” Segura v. United States,

468 U.S. 796, 805 (1984)(citations omitted); see United States v.

Brookins, 614 F.2d 1037, 1041 (5th Cir. 1980). Second, under the

independent source exception to the fruit of the poisonous tree

doctrine, evidence is admissible if it was discovered by means

wholly independent of the constitutional violation, even if the

same evidence was also discovered during or as a consequence of

illegal police conduct. Murray v. United States, 487 U.S. 533,

537 (1988); Nix v. Williams, 467 U.S. 431, 443 (1984). Finally,

if the prosecution demonstrates by a preponderance of the

evidence that tainted derivative evidence ultimately or

inevitably would have been discovered by lawful means, the

evidence is admissible. Murray, 487 U.S. at 539; Nix, 467 U.S.

at 444.

After reviewing the record of the evidentiary hearing, we

are persuaded that all evidence related to Petra International

Bank, the Johnson McGee Co., the First City Visa account, Coy

Curtis, and the testimony of Louise Dagher was derived from a

source independent of the illegal search of Johnson’s briefcase

or inevitably would have been discovered.3

3
Johnson argues that the government has waived its
independent source and inevitable discovery arguments because
they were not raised before trial in relation to the motion to
suppress. However, this argument lacks merit because the
government did not have a meaningful opportunity to present these
arguments prior to the evidentiary hearing on remand. See United

21
 With regard to Johnson McGee Co. and the Johnson McGee

account at Petra International Bank, Johnson contends that the

government learned of Johnson McGee Co. and was directed to the

Petra account by three blank checks off of that account that were

discovered in his briefcase during the illegal search. However,

Officer Sterrett testified that he knew of the Johnson McGee Co.

on March 14, 1990--two months before the May 16, 1990 illegal

search--when Rand faxed to him the purchase agreement covering

the sale of the concessions business by Rand to Johnson McGee Co.

Sterrett also testified that he had acquired a signature card on

the Petra account, a corporate resolution statement from Petra

International Bank, and an account agreement from Petra through a

subpoena issued nearly a month before the search. Additionally,

Officer Pardinek, who investigated the HRW loan in Austin, based

his subpoena of records of the Petra account on references

obtained through Bank of the Hills, which had issued a check to

Johnson McGee Co. Pardinek testified that he did not review

Officer Sterrett’s list of items seized from Johnson’s briefcase

until May 31, 1990, after Pardinek had subpoenaed the Johnson

States v. Martinez, 974 F.2d 589, 591-92 (5th Cir. 1992) (the
failure to advance a legal argument constitutes waiver only if
the party has a meaningful opportunity to develop the theory and
fails to do so). The government had no reason to argue that the
evidence admitted at trial was not tainted by the illegal search
before the evidentiary hearing on remand because Johnson’s motion
to suppress did not seek to exclude any derivative evidence but
only the items seized from his briefcase and the computer discs
subsequently seized from his desk.

22
McGee Co. account records from Petra.

Johnson also contends that the government derived evidence

of his First City Visa account from a statement seized during the

illegal search of his briefcase. Although Officer Sterrett

testified that he did not know of Johnson’s First City Visa

account prior to the illegal search of Johnson’s briefcase, the

Visa account was discovered from an independent source by Officer

Pardinek. Alternatively, the First City Visa account inevitably

would have been discovered from an independent source through

Pardinek’s investigative efforts. Pardinek testified that he

discovered a check payable to First City Visa for Johnson’s

account in the HRW bank records that he subpoenaed from Bank of

the Hills before the illegal search. Also, Pardinek testified

that during a lawful search of Johnson’s residence after the

illegal search, he discovered a receipt from a purchase made on

the Visa account in Johnson’s trash can. Pardinek then phoned

the credit card company and determined which bank issued the card

and then subpoenaed the First City Visa records.

As to the testimony of Louise Dagher, Johnson contends that

the government became aware of her existence during the search of

his safety deposit box, and that the affidavit supporting the

warrant for the safety deposit box referred to items illegally

seized from Johnson’s briefcase. However, Officer Pardinek

testified that he learned of Louise Dagher through some canceled

checks payable to her which were included in the records that he

23
obtained from Petra International Bank. Pardinek also testified

that he learned of Louise Dagher from the canceled checks before

he reviewed Sterrett’s inventory of the briefcase on May 31,

1990. Pardinek’s daily notes corroborate this testimony.

Therefore, we conclude that the testimony of Louise Dagher was

obtained independently of the illegal search.

Finally, Johnson contends that the government discovered

the existence of Coy Curtis and his address and telephone number

from a check and telephone records seized from his briefcase.

However, Sterrett testified that he learned Coy Curtis’s identity

and whereabouts from interviews with Betty Hoover and Victor

Montgomery. Sterrett also testified that he obtained Curtis’s

street address through a driver’s license check. Additionally,

Curtis did not testify at trial and Sterrett testified that no

evidence was obtained from Curtis. Any evidence obtained from

Coy Curtis was discovered independently of the illegal search.

Accordingly, we affirm the district court’s holding that no

other evidence admitted at trial should have been excluded as the

fruit of the illegal search.

B. SUFFICIENCY OF THE EVIDENCE

Johnson argues that the evidence was insufficient to support

his convictions for one count of theft from a federally funded

program in violation of 18 U.S.C. § 666 and two counts of money

24
laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). The

government responds that sufficient evidence supports Johnson’s

theft and money laundering convictions.

1. Standard of Review

The scope of our review of the sufficiency of the evidence

after conviction by a jury is narrow. United States v. Salazar,

66 F.3d 723, 728 (5th Cir. 1995). We must affirm if a reasonable

trier of fact could have found that the evidence established

guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979); United States v. Harris, 25 F.3d 1275, 1279 (5th

Cir.), cert. denied, 115 S. Ct. 458 (1994). We must consider all

the evidence, all reasonable inferences drawn therefrom, and all

credibility determinations, in the light most favorable to the

verdict. United States v. Resio-Trejo, 45 F.3d 907, 911 (5th

Cir. 1995).

2.Theft from a Federally Funded Program

Johnson was convicted of one count of theft from a federally

funded program in violation of 18 U.S.C. § 666 (count one).4 For

4
Section 666 provides in relevant part:

(a) Whoever, if the circumstance described in
subsection (b) of this section exists--
(A) embezzles, steals, obtains by fraud, or
otherwise without authority knowingly converts to
the use of any person other than the rightful
owner or intentionally misapplies property that--
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care,
custody or control of such organization,
government, or agency; or

25
the jury to find Johnson guilty on this count, the government had

to prove that: (1) the City of Austin is a local government; (2)

on or about October 12, 1989, Johnson was an agent of the City of

Austin; (3) from January 1, 1989 to January 1, 1990, the City of

Austin received more than $10,000 in federal assistance; and (4)

on or about October 12, 1989, Johnson embezzled, stole, obtained

by fraud or otherwise without authority converted to the use of

any other person than the rightful owner, or intentionally

misapplied property worth greater than $5,000 owned by the City

of Austin. Johnson argues that the government failed to prove

the fourth element of count one.5 He argues that the evidence

did not establish a connection between Johnson and HRW or the HRW

account at Bank of the Hills.

After reviewing the record, we conclude that sufficient

. . . .

shall be fined under this title, imprisoned not more
than 10 years, or both.
(b) The circumstance referred to in subsection (a) of
this section is that the organization, government, or
agency receives, in any one year period, benefits in
excess of $10,000 under a Federal program involving a
grant, contract, subsidy, loan, guarantee, insurance,
or other form of Federal assistance. . . .

18 U.S.C. § 666 (Supp. 1996).

5
Although Johnson does not argue otherwise, we note that
the government produced sufficient evidence supporting the first
three elements: that Johnson was an agent of the City of Austin,
which was a local government receiving over $10,000 in federal
funds in the year 1989.

26
evidence exists upon which the jury could find that Johnson

embezzled, stole or obtained by fraud $250,000 owned by the City

of Austin. Johnson prepared a loan application to the City of

Austin in the name of Hilary Richard Wright Industries, Inc.

(HRW), a company purportedly owned by Eddie Manly and Wendell

Wilson. However, several of the loan documents, such as HRW’s

business plan, were discovered on a computer disc in Johnson’s

office which also contained personal papers of Johnson’s related

to Combined Concessions--the Phoenix business which Johnson

purchased from Rand with the proceeds of a loan the City of

Phoenix had extended to Rand’s business, Cortez Distribution.

Additionally, the address listed on HRW’s loan application was

the address of Arthur Moseley’s woodworking business. Moseley

testified that no company named HRW existed at that address. In

addition, the inventory list contained in HRW’s loan file is

absolutely identical to a list of the inventory of Moseley’s

woodworking business. Moseley testified that Johnson had

previously handled Moseley’s application for a minority business

loan from the City of Austin, and that Moseley had given Johnson

a detailed list of his inventory to support his loan application.

Investigation by the City of Austin internal auditors, Austin

Police Officer Pardinek, and IRS Agent Trevino could not locate

an existing, operating business called HRW and could not locate

either Manly or Wilson. There was ample evidence that HRW was

not an existing business, and that Johnson created the

27
information on the HRW loan file to make it look legitimate.

David Kreider, Johnson’s supervisor at the City of Austin,

testified that he signed the HRW check request and approved the

loan without reviewing the loan file because he trusted Johnson

completely in the handling of minority business loans.

Additionally, the evidence indicated that Wendell Wilson,

the purported principal of HRW, was previously involved with a

loan handled by Johnson on behalf of the City of Phoenix to a

company called American Products. Tracing of the funds of the

American Products loan revealed that Johnson received these

funds. Investigation by the City of Phoenix into the American

Products loan also suggested that American Products was a

fictitious business. From the evidence of Wendell Wilson’s

connection with both American Products and HRW, the jury could

have reasonably inferred that Johnson intended to obtain and/ or

retain the $250,000 proceeds of the HRW loan.

The fact that the proceeds of the HRW loan were eventually

deposited into an account on which Johnson was the sole signator

also indicate that Johnson embezzled, stole or obtained by fraud

the $250,000 belonging to the City of Austin. When the City of

Austin prepared the check for the HRW loan, Johnson brought the

check to Bank of the Hills and deposited it with the assistance

of Powell Thompson, a vice-president of the bank. Thompson

testified that Johnson handed him written instructions to use the

$250,000 to obtain two cashier’s checks and to open a checking

28
account at Bank of the Hills in the name of HRW. After doing so,

Thompson testified that he gave Johnson possession of the two

cashier’s checks.

Bank records indicate that one of the cashier’s checks, made

out to J. McGee Co., was eventually deposited into an account

under the name of Johnson McGee Co. at Petra International Bank

in Washington, D.C., on which Johnson was the sole signator.

Several witnesses testified either that Johnson McGee Co. was a

name under which Johnson did business, or that Johnson was the

sole owner of that company. The fact that Johnson had Thompson

prepare the cashier’s check to J. McGee Co., rather than Johnson

McGee Co., suggests that Johnson was trying to conceal from Bank

of the Hills that a company bearing his name would receive the

proceeds of the HRW loan. This suggestion is further evidence of

Johnson’s intent to steal, embezzle or obtain by fraud the

$250,000. Additionally, a few months later, an approximately

$39,000 check written on the HRW account at Bank of the Hills was

deposited into the Johnson McGee account at Petra International

Bank. Because the evidence demonstrates that Johnson prepared

the HRW loan application with false information in the name of a

nonexistent company, and because Johnson ultimately received the

proceeds of the HRW loan, the jury could have reasonably

concluded that Johnson stole, embezzled or obtained by fraud the

$250,000 which the City of Austin loaned to HRW. Therefore,

sufficient evidence exists to support the jury’s verdict as to

29
count one.

3. Money Laundering

Johnson was convicted of two counts of money laundering in

violation of 18 U.S.C. § 1956(a)(1)(A)(i)(counts two and three).6

To convict Johnson of money laundering, the government must prove

that Johnson: “(1) knew that the property involved in a financial

transaction represented the proceeds of unlawful activity; (2)

conducted or attempted to conduct a financial transaction which

in fact involved the proceeds of specified unlawful activity; and

(3) did so with the intent to promote the carrying on of the

unlawful activity.” United States v. Restive, 8 F.3d 274, 280

(5th Cir. 1993), cert. denied, 115 S. Ct. 54 (1994).

Johnson argues that the government failed to prove each

element of count two-- that Johnson had committed money

laundering in obtaining two cashier’s checks from Bank of the

Hills with the proceeds of the HRW loan on October 12, 1989.

6
Section 1956 provides in relevant part:

(a)(1) Whoever, knowing that the property involved in a
financial transaction represents the proceeds of some
form of unlawful activity, conducts or attempts to
conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity--
(A)(i) with the intent to promote the carrying on
of specified unlawful activity;
. . . shall be sentenced to a fine of not more than
$500,000 or twice the value of the property involved in
the transaction, whichever is greater, or imprisonment
for not more than twenty years, or both.

18 U.S.C. § 1956(a)(1)(A)(i) (Supp. 1996).

30
Johnson argues that the evidence shows that HRW purchased the

cashier’s checks through Manly and Wilson and that the City of

Austin authorized the transfer of funds to the HRW account at

Bank of the Hills.

After reviewing the record, we conclude that the evidence

supports Johnson’s conviction on count two. First, the evidence

demonstrates that Johnson conducted a financial transaction on

October 12, 1989, namely, that he caused Wilson to purchase two

cashier’s checks from Bank of the Hills on behalf of HRW in the

amounts of approximately $94,000 and $86,000. Thompson testified

that he issued these two checks per written instructions handed

to him by Johnson, and that he delivered the cashier’s checks to

Johnson’s possession. Second, the evidence indicates that the

financial transaction involved the proceeds of unlawful activity

and that Johnson knew that the property involved was the proceeds

of unlawful activity. In response to Johnson’s argument that the

City of Austin authorized the issuance of the $250,000 check to

Bank of the Hills, we note that the City of Austin’s

authorization of the $250,000 loan was based entirely on

Johnson’s representations to Kreider concerning HRW and its loan

application. The evidence supporting count one also demonstrates

that the money used to purchase the cashier’s checks was the

proceeds of unlawful activity--namely, Johnson’s theft of

$250,000 from the City of Austin in violation of 18 U.S.C. § 666.

The jury could reasonably have inferred that Johnson knew that

31
the $250,000 was the proceeds of unlawful activity from the

evidence establishing that Johnson stole, embezzled or obtained

by fraud the $250,000.

Finally, the evidence demonstrates that Johnson purchased

the cashier’s checks with the specific intent to promote or carry

on the unlawful activity of theft from a federally funded

program. The tracing of the funds from the cashier’s checks

indicates that Johnson purchased the cashier’s checks in an

attempt to conceal the loan proceeds from the City of Austin, and

also indicates that Johnson wanted to use the funds to pay off

two of the Phoenix loans which were being questioned by his

successor at the City of Phoenix economic development department.

The first cashier’s check was in the amount of approximately

$94,000 and was made out to J. McGee Co. This check was

deposited into the Johnson McGee Co. account at Petra

International Bank in D.C., an account on which Johnson was the

sole signator. From the Johnson McGee Co. account, a $44,205

cashier’s check made out to the City of Phoenix was obtained.

This cashier’s check was received by the City of Phoenix with a

letter signed by Emmet Reed indicating that it was to be used to

pay off the $42,000 loan to Cortez Distributing. The evidence

established that Johnson had been the loan officer for the City

of Phoenix on the Cortez Distributing loan, that he personally

had received the proceeds of the Cortez Distributing loan, and

that Johnson had used these funds to purchase the concessions

32
business from Rand. Johnson previously had told Victor

Montgomery that he sometimes used the name Emmet Reed. Johnson

also admitted to Officer Sterrett that he had sent this check to

Phoenix to pay off the Cortez Distributing Loan.

The second cashier’s check was in the amount of

approximately $86,000 and was made out to Dunn International

Group. The evidence showed that Wendell Wilson deposited this

amount in a bank account in the name of Dunn International in

California. The evidence also suggested that Dunn International

was a fictitious business, as neither it nor Wilson could be

found by investigators at the listed address of the business nor

anywhere else. No deposits of more than one or two hundred

dollars were ever made into the Dunn International account other

than the $86,000 cashier’s check. Soon after the cashier’s check

from the HRW loan was deposited into the Dunn International

account, a cashier’s check for $62,000 made out to the City of

Phoenix was purchased with funds from the Dunn International

account. This $62,000 check was sent to the City of Phoenix with

a letter purportedly signed by Wilson stating that the check was

to be used to pay off the $58,000 American Products loan. The

evidence indicated that American Products was a fictitious

company, that Johnson had received at least some of the proceeds

of this loan, and that the City of Phoenix was inquiring into the

business operations of American Products and the status of the

loan three days before the two cashier’s checks from the HRW

33
account at Bank of the Hills were purchased. The evidence

regarding Johnson’s involvement with the Phoenix loan

transactions as well as the bank records tracing the two

cashier’s checks demonstrates that Johnson obtained the cashier’s

checks with the proceeds of unlawful activity and with the intent

to promote or carry on the unlawful activity by concealing the

proceeds of the HRW loan and by paying off the Phoenix loans to

foreclose the City of Phoenix’s investigation into those loans.

Therefore, we conclude that sufficient evidence exists to support

the jury’s verdict as to count two.

As to count three, Johnson argues that the government failed

to prove that Johnson transferred funds from the HRW account at

Bank of the Hills to the Johnson McGee Co. and then to the City

of Phoenix, that the funds were proceeds of theft, that Johnson

knew the funds were proceeds of theft, and that Johnson had the

specific intent to promote or carry on a specified unlawful

activity. Johnson maintains that there is no evidence that he

signed any HRW checks or caused them to be issued.

We conclude that the evidence is sufficient to support

Johnson’s conviction on count three. First, the evidence

demonstrates that Johnson caused a $39,000 check to be issued

from the HRW account at Bank of the Hills to Johnson McGee Co.

The jury could reasonably infer that Johnson caused the $39,000

check to be issued, although Johnson did not sign the check, from

fact that Johnson obtained the proceeds of the check. Second,

34
Bank of the Hills’ records indicate that the $39,000 came from

the proceeds of the $250,000 loan to HRW from the City of Austin.

The evidence supporting count one also demonstrates that Johnson

knew this money was the proceeds of unlawful activity and that it

in fact was the proceeds of unlawful activity. Finally, the

evidence that Johnson intended to use this $39,000 to purchase a

parcel of real estate in the D.C. area demonstrates that Johnson

participated in this financial transaction with the specific

intent to promote or carry on unlawful activity. Bank records

and the testimony of Emmanuel Reeves and Kashaka Kieta indicate

that Johnson used these funds to pay a retainer to Kieta, a real

estate broker, for his assistance in finding a parcel of real

estate to be purchased by Johnson McGee Co. The purchase of real

estate would have concealed the unlawfully obtained proceeds of

the City of Austin $250,000 loan to HRW. Therefore, we conclude

that there is sufficient evidence to support Johnson’s conviction

under count three.

C. EVIDENTIARY RULINGS

Johnson argues that the district court erred in admitting

evidence of the Phoenix loans because these were extraneous

offenses for which Johnson was not charged. Johnson also argues

that the probative value of this evidence is outweighed by its

prejudicial effect. The government maintains that the district

35
court correctly admitted evidence relating to the Phoenix loans

under Federal Rule of Evidence 404(b) because the Phoenix loans

were relevant to proving Johnson’s intent to keep the proceeds of

the HRW loan, as well as, on the money laundering charges,

Johnson’s specific intent to promote or carry on the specified

unlawful activity of theft from a federally funded program.

Additionally, the government argues that the evidence of the

Phoenix loans was inextricably intertwined with the evidence of

the charged offenses, thus, it is admissible and not subject to

rule 404(b) analysis.

We review the district court’s rulings on the admissibility

of evidence for abuse of discretion. United States v. McAfee, 8

F.3d 1010, 1017 (5th Cir. 1993); United States v. Jardina, 747

F.2d 945, 950 (5th Cir. 1984), cert. denied, 470 U.S. 1058

(1985). Federal Rule of Evidence 404(b) provides:

Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in
advance of trial . . . of the general nature of any
such evidence it intends to introduce at trial.

Fed. R. Evid. 404(b) (1996). We review alleged violations of

Rule 404(b) under the two-pronged test of United States v.

Beechum, 582 F. 2d 898, 911 (5th Cir. 1978) (en banc), cert.

36
denied, 440 U.S. 920 (1979). That test requires us to verify (1)

that the evidence of extraneous conduct is relevant to an issue

other than a defendant’s character, and (2) that the evidence

possesses probative value that is not substantially outweighed by

its undue prejudice and is otherwise admissible under Rule 403.

Id.

After reviewing the record, we conclude that the district

court did not abuse its discretion in concluding that evidence of

Johnson’s participation in the Phoenix loans was admissible as

relevant evidence of his intent on the charged crimes, as well as

his motive, particularly in light of the fact that the proceeds

of the HRW loan were used by Johnson to pay off two of the

Phoenix loans. Additionally, we conclude that the probative

value of this evidence was not substantially outweighed by any

unfair prejudice to Johnson.7

D. MOTION FOR CONTINUANCE

Johnson next argues that the district court’s denial of his

motion for a continuance deprived Johnson of his constitutional

right to adequate time to prepare a defense. The government

responds that the district court did not abuse its discretion in

7
We note that the district court instructed the jury very
clearly that the evidence of the Phoenix loans should be
considered only in determining state of mind, intent, motive,
opportunity, plan, preparation, accident or mistake, and not used
to determine whether Johnson committed the acts charged in the
indictment.

37
denying Johnson’s motion for a continuance.

The denial of a motion for continuance will be reversed only

if the appellant demonstrates an abuse of discretion resulting in

serious prejudice. United States v. Correa-Ventura, 6 F.3d 1070,

1074 (5th Cir. 1993); United States v. Webster, 734 F.2d 1048,

1056 (5th Cir.), cert. denied, 469 U.S. 1073 (1984).

Johnson was indicted on December 18, 1990 and John Emerson

was appointed as counsel for Johnson on February 6, 1991. After

several pre-trial proceedings and reschedulings of the trial,

Johnson’s trial was set for October 7, 1991. On October 3, 1991,

Johnson moved for a continuance arguing that, because he believed

the government intended to present evidence related to the

Phoenix loans, he needed time to investigate, compile evidence,

and prepare to defend against the Phoenix allegations. The

district court granted Johnson’s motion for continuance and reset

trial for December 2, 1991. After two days of trial, the

district court granted Johnson’s motion for a mistrial in order

for Johnson to obtain witnesses to defend against the Phoenix

evidence.

Prior to the second trial, on January 27, 1991, Johnson sent

a letter to Judge Sparks, indicating that, although he wished for

additional preparation time to investigate and put on evidence

defending against the Phoenix allegations, his attorneys

disagreed that this was their best strategy and refused to file a

motion for continuance. Judge Sparks treated Johnson’s letter as

38
a motion for continuance.

At the hearing on Johnson’s motion for continuance,

Johnson’s counsel indicated that he could not represent to the

court that the witnesses Johnson wished to subpoena were

necessary to present an adequate defense, as required by Federal

Rule of Criminal Procedure 17(b). Further, Johnson’s counsel

explained to the court that, after considerable effort, he was

unable to locate some of the witnesses Johnson wanted to testify,

such as Eddie Manly and Wendell Wilson. Johnson’s counsel told

Judge Sparks that he did not file a motion for a continuance

because he “felt like [he] ethically could not do so because [he]

did not believe that there was a sufficient basis for [him] to

ask the Court to continue this case . . . .”

Judge Sparks then denied Johnson’s motion for continuance,

reasoning that, although Johnson would have liked additional

time, he did not need additional time, as his attorneys were

prepared to proceed with trial and the government had disclosed

all relevant discovery materials to Johnson and his attorneys.

After reviewing these facts and circumstances surrounding

Johnson’s request for a continuance, we conclude that the

district court did not abuse its discretion by denying the

motion.

E. PROSECUTOR’S COMMENTS

39
 Johnson also argues that the prosecutor’s comments during

closing argument deprived him of a fair trial. Johnson complains

that (1) the prosecutor referred to him as a “white collar

criminal,”8 (2) the prosecutor shifted the burden of proof onto

the defense, and (3) the prosecutor misrepresented to the jury

Johnson’s ability to subpoena witnesses.9

“In reviewing a claim of prosecutorial misconduct, [we]

first determine whether the prosecutor’s remarks were improper

8
Johnson challenges the following statement in the
prosecutor’s argument:

A criminal--Mr. Drug Kingpin in a drug case never puts
his hands on the dope, but that doesn’t mean he’s not
the one that sells it. Mister white collar criminal
may not put his hands on all of the checks that are
moving the money around the country . . . .

9
Johnson claims that the following argument by the
prosecutor shifted the burden of proof and misrepresented
Johnson’s ability to subpoena witnesses:

You can see [that defense counsel] are very well
prepared. You can see the boxes they have. They get
discovery from the Government. They had Sterrett’s
report. They had Trevino’s reports. They had all of
the documents way ahead of time. There is no
sandbagging here. They also have subpoena power like
the Government. If he wanted the tax returns of
Everett Rand, he knew he was going to be a witness; why
didn’t he subpoena them? If he wanted Victor
Montgomery’s records, whey didn’t he subpoena them.
You are entitled to ask yourself why he didn’t do that.
They have got every bit of the subpoena power that the
United States Government has. They have the power of
the United States District Court.

40
and, second, whether they prejudicially affected the substantive

rights of the defendant.” United States v. Fields, 72 F.3d 1200,

1207 (5th Cir. 1996), petition for cert. filed, 64 U.S.L.W. 3709

(U.S. Apr. 8, 1996)(No. 95-1639); United States v. Lokey, 945

F.2d 825, 837 (5th Cir. 1991). We consider: “(1) the magnitude

of the prejudicial effect of the statements; (2) the efficacy of

any cautionary instruction given; and (3) the strength of the

evidence of the defendant’s guilt.” Fields, 72 F.3d at 1207;

Lokey, 945 F.2d at 837. “[R]eversal for improper prosecutorial

statements is required only where the statements cast ‘serious

doubt on the jury’s verdict.’” Lokey, 945 F.2d at 838 (citations

omitted).

Johnson first contends that he was deprived of a fair trial

because the prosecutor referred to him as a white collar criminal

during closing argument. Although this argument may have been

improper, we conclude that it did not prejudice Johnson’s

substantial rights. The “white collar criminal” comment was one

isolated reference to which defense counsel immediately objected.

The district court sustained the objection and instructed the

jury to disregard. The district court also, during its charge,

instructed the jury that the lawyer’s arguments are not evidence.

As recited above, ample evidence supports Johnson’s convictions.

The prosecutor’s statement does not cast serious doubt on the

jury’s verdict. Therefore, we conclude that the prosecutor’s

reference to Johnson as a white collar criminal was not

41
prejudicial and does not require reversal.

We conclude that Johnson’s second and third contentions,

that he was deprived of a fair trial because the prosecutor’s

argument shifted the burden of proof and misrepresented his

ability to subpoena witnesses, are without merit. We note that

Johnson did not object to these prosecutorial statements at

trial; therefore, we review them for plain error. See United

States v. Robles-Pantoja, 887 F.2d 1250, 1256 (5th Cir. 1989).

First, as to Johnson’s contention that the prosecutor

shifted the burden of proof, we note that the prosecutor

explained to the jury immediately before the challenged argument

that the defendant has no burden and need not put on any

evidence.10 The prosecutor also properly described the burden of

proof earlier in his closing argument.11 Furthermore, the

10
The portion of the prosecutor’s argument challenged by
Johnson and cited in his brief was immediately preceded by the
following statements by the prosecutor:

Mr. Emerson said he didn’t have the tax return of
Everett Rand, and he didn’t have Mr. Montgomery’s
records. He pointed that out to you. I want to be
very careful here. The defendant in a case has no
burden. He doesn’t have to produce any evidence, and
that should not be held against him; and if you do, you
cause problems for everybody. So don’t do that. . . .
11
The prosecutor acknowledged to the jury that he had the
burden to prove guilt beyond a reasonable doubt:

First, the Court will tell you that the Government has
the burden of proof to prove the elements of the
offenses alleged . . . It’s a burden that the
Government has to get the witnesses in here, find out
they are witnesses, get them here, present them to you

42
district court properly instructed the jury that the prosecution

bears the entire burden of proof and that the defendant need not

present any evidence. See United States v. Jordan, 49 F.3d 152,

158-59 (5th Cir. 1995). Therefore, Johnson’s argument that the

prosecutor’s comments shifted the burden of proof is meritless.

Second, as to the prosecutor’s comments regarding Johnson’s

ability to subpoena witnesses, those statements were responsive

to Johnson’s counsel’s closing argument. We examine “the

prosecutor’s remarks in the context of the trial in which they

were made and attempting to elucidate their intended effect.”

Fields, 72 F.3d at 1207. During Johnson’s counsel’s closing

argument, he challenged Rand’s and Montgomery’s credibility and

told the jury that he was unable to cross-examine Rand and

Montgomery on key points because he did not have Rand’s tax

returns or Montgomery’s bank records. The challenged

prosecutorial comments were clearly an attempt to rebut this

argument by pointing out that Johnson’s counsel could have

obtained those records if he wished. Because we conclude that

these comments do not cast serious doubt on the jury’s verdict,

we find that the prosecutor’s comments regarding Johnson’s

ability to subpoena witnesses do not require reversal.

Johnson finally argues that even if the three allegedly

improper portions of the prosecutor’s argument individually do

. . . .

43
not require reversal, cumulatively they denied Johnson a fair

trial. We conclude that even considered cumulatively, the

challenged portions of the prosecutor’s argument do not cast

serious doubt on the jury’s verdict so as to require reversal.

See United States v. Neal, 27 F.2d 1035, 1051-52 (5th Cir.),

cert. denied, 115 S. Ct. 530 (1994), and cert. denied, 115 S. Ct.

1165 (1995).; United States v. Moye, 951 F.2d 59, 63 n.7 (5th

Cir. 1992) (holding that “[b]ecause we find no merit to any of

Moye’s arguments of error, his claim of cumulative error must

also fail”).

Accordingly we conclude that the prosecutor’s statements

challenged by Johnson do not require reversal.

IV. CONCLUSION

We conclude that: (1) the district court erred in finding

that the admission of Exhibits 110 and 111 at trial was harmful

error requiring a new trial; (2) the district court correctly

determined that no other evidence admitted at Johnson’s trial was

fruit of the illegal search of Johnson’s briefcase; (3) there was

sufficient evidence to support Johnson’s convictions; (4) the

district court did not err in admitting evidence related to the

Phoenix loans; (5) the district court did not err in denying

Johnson’s motion for continuance; and (6) the prosecutor’s

closing argument did not deprive Johnson of his right to a fair

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trial. For the foregoing reasons, we REVERSE the district

court’s motion for new trial, and we REINSTATE Johnson’s

convictions and sentence.

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