United States v. Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4280

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH J. JOHNSON, a/k/a K-9,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:07-cr-00924-DCN-3)

Argued: October 28, 2010 Decided: January 31, 2011

Before NIEMEYER and GREGORY, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: John Christopher Mills, Columbia, South Carolina, for
Appellant. Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee. ON BRIEF: William N.
Nettles, United States Attorney, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

This case arises out of the conviction of Defendant Kenneth

Johnson for 1) conspiring to distribute and distributing five

kilograms or more of cocaine and fifty grams or more of cocaine

base in violation of 21 U.S.C. § 846; and 2) possession with

intent to distribute and distribution of cocaine, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Johnson comes before

this Court to contest the trial court’s consideration of various

pieces of evidence and the court’s ultimate sentencing

determination. For the reasons discussed below, we AFFIRM the

trial court’s decision.

BACKGROUND

On January 15, 2005, Kenneth Johnson, a South Carolina,

resident, was released from federal prison, after being

incarcerated for drug and firearms offenses committed in 1992

and a subsequent conviction for distributing cocaine, committed

while he was imprisoned.

Shortly after midnight on November 5, 2006, Obie Pittman, a

deputy with the Berkeley County, Sherriff’s Office approached a

Hardee’s/Hot Spot restaurant/gas station. The building had a

Hardee’s Restaurant (“Hardee’s”) on one side of the building and

a Hot-Spot gas station on the other side. The Hardee’s had

closed, but as the Hot-Spot was open 24 hours, it remained open.

2
Pittman observed two cars parked side by side in the parking

lot, near the entrance to the Hardee’s. Upon further inspection

Pittman saw that the two cars were parked crookedly in a manner

which conflicted with the parking spots delineated by the lines

drawn in the parking lot. Though both of the cars’ motors were

running, two individuals were seated in one car, while the other

was empty. Pittman later testified that he was aware of at

least two other drug transactions that had taken place in the

same parking lot.

Pittman, shortly thereafter, pulled into the lot, parking

his vehicle behind the two cars in such a manner that Johnson

attests he could not have moved his car if he tried. Shortly

after Pittman parked his vehicle, Johnson exited the vehicle in

which he and John Belton had been sitting. Johnson informed

Pittman that he was taking care of some business and that their

activities were legitimate. When asked by Pittman as to the

nature of the business, Johnson provided him a card with the

name “Affordable Car Wash” written on it. Pittman exited his

car and walked over to the vehicle in which Belton remained

seated. Upon reaching the car, Pittman asked Belton for

identification. When Belton was unable to present any, Pittman

asked him to exit the car. As Belton exited the car, Pittman

observed a sum of money on the floor of the car between the

3
passenger seat and the door. When questioned as to its source,

Belton stated that it must have fallen out of his pocket.

Pittman then performed a brief pat down search of both

Johnson and Belton. In Johnson’s pocket, Pittman felt a large

sum of money which Pittman stated was approximately $2,000.

Pittman additionally felt two other lumps on Johnson which he

also believed were money. Nothing was seized from Johnson at

the time.

Pittman then asked Johnson for his consent to search his

vehicle – the car in which Johnson and Belton had been seated.

When Johnson refused, Pittman obtained from his car a police

detection dog. Upon being walked around Johnson’s car, the dog

signaled the presence of unlawful substances inside the

passenger-side door. Pittman additionally observed clear

plastic wrap partially hidden underneath the floorboard between

the front passenger seat and the rear passenger seat.

Pittman conducted a search of the vehicle and located a

package under the front passenger seat. The package contained

nine individual plastic bags of cocaine, wrapped in plastic wrap

and dryer sheets, with a total approximate weight of 276.1

grams. Pittman subsequently arrested Belton and Johnson. A

search of their persons revealed $432.22 in cash on Belton and

$3,957.50 on Johnson.

4
 A subsequent search of Johnson’s house, performed pursuant

to a search warrant, revealed $9,768 in a small, draw-string bag

in a closet of the home’s master bedroom. The money was in the

following denominations: 208 one-dollar bills, 3 twenty-dollar

bills, 48 fifty-dollar bills, and 71 one-hundred dollar bills.

The money found constituted almost half of Johnson’s annual

reported income of $21,000 per year.

After he was indicted, Johnson, via a pre-trial motion,

challenged both his stop on the morning of November 5 and the

sufficiency of the evidence supporting the warrant to search his

house. The court rejected both motions finding that Pittman had

reasonable cause for the stop and, while the application

requesting the warrant included an error, it was minor and

therefore, did not affect the warrant’s validity.

At trial, the prosecution presented multiple witnesses who

stated that they purchased cocaine and other drugs from the

defendant. Belton testified that he had purchased marijuana and

multiple kilograms of cocaine from Johnson. He specifically

posited that on the night in question, he had arranged to meet

with Johnson to repay him for a drug related debt he had built

during the process of purchasing drugs from Johnson. Rias

Richardson similarly testified that he regularly bought drugs

from an individual he believed worked for Johnson. According to

Richardson, on one occasion, Johnson directly sold him four and

5
one-half ounces of cocaine. Anthony Gordon testified that he

regularly purchased drugs for Henry Bennett from Johnson. On

one occasion, acting on behalf of Bennett, he purchased twelve

kilograms of cocaine. He testified that Bennett had

specifically sent him to Johnson when Bennett’s usual source did

not have drugs. Juan Brown testified regarding a number of

purchases of cocaine, ranging in quantities of nine ounces to

multiple kilograms, from Johnson. Benjamin Jenkins testified

that he, likewise, had received three or four kilograms from

Johnson on one occasion at Bennett’s home.

Johnson called Drug Enforcement Agent Brendan McSheehy as a

witness and questioned him regarding his investigation of the

drug conspiracy. On cross examination, McSheehy stated that the

cell phone seized from Johnson’s home included contact

information for Gordon, Brown, and Bennett. Additionally, he

stated that an address book found in a duffel bag belonging to

Bennett included Johnson’s telephone number. McSheehy also

provided testimony regarding statements Gordon had made

indicating that he had previously failed to implicate Johnson

because he feared for his and his family’s safety.

Johnson additionally testified in his own defense. On the

stand, Johnson denied that the drugs found in his car on

November 5 were his or that he was involved in a conspiracy to

distribute cocaine. He asserted that Belton planted the drugs

6
found in his car. Furthermore, he denied that he agreed to meet

Belton so that he could pay back a drug-related debt.

The jury found Johnson guilty. After considering Johnson’s

string of prior convictions for drug-related offenses, the trial

judge sentenced Johnson to life in prison. Johnson timely

appealed his conviction raising a variety of evidentiary and

sentencing-related issues.

DISCUSSION

Johnson raises seven arguments on appeal. He specifically

asserts that the trial court erroneously: 1) denied his motion

to suppress the results of Pittman’s November 5, 2006 search of

his car; 2) denied his motion to suppress the results of the

search of his home; 3) admitted McSheehy’s testimony regarding

Gordon’s out of court statements; 4) admitted Johnson’s prior

convictions; 5) admitted evidence regarding Johnson’s

distribution of marijuana and heroin; 6) denied his motion for a

new trial as a result of statements the prosecutor made during

trial; and 7) sentenced him to life in prison.

I. PITTMAN HAD REASONABLE CAUSE TO STOP JOHNSON ON THE MORNING OF NOVEMBER 5,
2006.

Johnson, on appeal, argues that Pittman violated his Fourth

Amendment rights on the morning of November 5 when Pittman

7
parked his car behind Johnson’s. For the reasons discussed

below, the district court correctly denied Johnson’s motion.

A. Standard of Review

In reviewing a district court’s denial of a pretrial motion

to suppress evidence, this Court reviews the district court’s

factual findings for clear error and its legal conclusions de

novo. Ornelas v. United States, 517 U.S. 690, 695-96 (1996);

United States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998).

The evidence is construed in the light most favorable to the

government. United States v. Perkins, 363 F.3d 317, 320 (4th

Cir. 2004).

B. Analysis

1. A Seizure Occurred When Pittman Blocked Johnson’s
Car.

The parties initially dispute at what point Pittman was

required to have had a reasonable suspicion that Johnson was

involved in criminal activity. Johnson asserts that he was

seized for the purposes of the Fourth Amendment once Pittman

parked his car behind Johnson’s and therefore, Pittman must have

had reasonable suspicion at that point to have acted within the

confines of the Fourth Amendment. The government raises two

arguments in Pittman’s defense. First, it argues that no

seizure occurred until Pittman frisked Johnson. Alternatively,

it argues that even if a seizure occurred, no reasonable

8
suspicion was required given the circumstances. We find neither

argument persuasive.

"[A] Fourth Amendment seizure [occurs] . . . when there is

a governmental termination of freedom of movement through means

intentionally applied." Brower v. County of Inyo, 489 U.S. 593,

596-597 (1989) (emphasis deleted). The government presents no

argument in response to Johnson’s assertion that Pittman, by

pulling in behind him, blocked Johnson’s car from leaving.

Rather, in response it relies solely on the Fourth Circuit’s

decision in United States v. McCoy, 513 F.3d 405 (4th Cir. 2008)

in which the court held that the defendant in the case was not

seized until he was frisked. McCoy is clearly distinguishable.

Unlike this case, the officer, in McCoy, had taken no actions

prior to the frisk to prevent the defendant from believing he

was not “free to leave”. Id. at 411-412.

Nor do we accept the government’s arguments that the Fourth

Amendment does not require “reasonable suspicion” under the

circumstances in this case. The government in support of its

argument relies on a series of “special circumstances” cases in

which courts have held that reasonable suspicion is not

required. Examples of such circumstances include check points

set up to catch drunk drivers and undocumented immigrants.

Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450,

(1990); United States v. Martinez-Fuerte, 428 U.S. 543, 556

9
(1976). The government presents no case, nor can I find any

that allows the government to conduct such seizures outside of

the context of traffic checkpoints or some other “special

circumstance” (airports, schools, the border, etc.). See e.g.,

United States v. Brugal, 209 F.3d 353 (4th Cir. 2000) (“The

Supreme Court has also recognized that a state has a substantial

interest in enforcing licensing and registration laws, though

that interest is not substantial enough to justify roving patrol

stops as an enforcement mechanism.”).

2. The Seizure Was Supported by Reasonable Suspicion.

Whether there is reasonable suspicion to justify the stop

depends on the totality of the circumstances, including the

information known to the officer and any reasonable inferences

he could have drawn at the time of the stop. United States v.

Sokolow, 490 U.S. 1, 8 (1989). Reasonable suspicion may exist

even if "each individual factor 'alone is susceptible of

innocent explanation.'" United States v. Black, 525 F.3d 359,

366-67 (4th Cir.) (quoting United States v. Arvizu, 534 U.S.

266, 277 (2002)), cert. denied, 129 S. Ct. 182 (2008). The

reasonable suspicion determination is a "commonsensical

proposition," and deference should be accorded to police

officers' determinations based on their experience of what

transpires on the streets. United States v. Foreman, 369 F.3d

10
776, 782 (4th Cir. 2004); United States v. Lender, 985 F.2d 151,

154 (4th Cir. 1993).

The Supreme Court has recognized that factors consistent

with innocent travel can, when taken together, give rise to

reasonable suspicion. Sokolow, 490 U.S. at 9 ("Any one of these

factors is not by itself proof of any illegal conduct and is

quite consistent with innocent travel. But we think taken

together they amount to reasonable suspicion."). The

articulated factors together must serve to eliminate a

substantial portion of innocent travelers before the requirement

of reasonable suspicion will be satisfied. Foreman, 369 F.3d at

781.

This admittedly is a close case. Of particular concern is

the short period of time Pittman waited before blocking

Johnson’s car. However, we agree that the circumstances viewed

in the light most favorable to the government support the

conclusion that Pittman had reasonable suspicion to stop

Johnson. It is undisputed that Pittman saw two cars after

midnight sitting together in a dark area of a parking lot, next

to a closed restaurant. Additionally, while the motors were

running in both cars, both individuals were seated in one of

them. Furthermore, Pittman had reason to believe criminal

activity was afoot as he was personally aware of drug

transactions having taken place in the specific parking lot on

11
at least two prior occasions. See United States v. Lender, 985

F.2d 151, 154 (4th Cir. 1993). (“[A]n area's propensity toward

criminal activity is something that an officer may consider.").

The Fourth Circuit has found reasonable suspicion based on less.

See United States v. Whitney, 2010 U.S. App. LEXIS 17300, *12

(4th Cir. Aug. 17, 2010) (“[G]iven Whitney's nervous demeanor

and the large amount of cash found in his pockets, Agent Canady

possessed sufficient reasonable suspicion.”).

Johnson, on appeal, relies primarily on United States v.

McCoy. The McCoy court found that reasonable suspicion existed

where the officer: 1) saw the defendant sit in his car for

several minutes; 2) saw the defendant arrange to meet a tow-

truck driver at another location; 3) saw the defendant enter the

tow truck; and 4) saw the tow-truck drive away quickly when the

officer motioned for him to stop. 513 F.3d at 412-13. Johnson

posits that unlike in McCoy, Pittman did not observe any evasive

behavior nor did Pittman wait long enough to see if Johnson or

Belton took any actions indicative of criminal activity. While

these are important points, there were other circumstances in

this case, such as the fact that the store was closed, both

persons were parked in a dark area of the lot away from the open

store, both persons were seated in one car despite the fact that

both engines were running and the time of day, which together

12
were sufficient to support a reasonable suspicion of criminal

activity.

II. THE WARRANT FOR THE SEARCH OF JOHNSON’S HOME WAS PROPERLY ISSUED.

Johnson argues, as a contingent matter, that because

Pittman’s stop of Johnson was unlawful and the evidence that was

found during the stop constituted the basis for the warrant to

search his house, the warrant was likewise erroneously granted.

As noted, because we find no merit to Johnson’s argument

regarding the legitimacy of the stop, we likewise, find no merit

to his objection to the evidence supporting the warrant to

search his home.

III. MCSHEEHY’S TESTIMONY RECOUNTING ANTHONY GORDON’S STATEMENTS WAS
PROPERLY ADMITTED.

Johnson additionally appeals the district court’s admission

of McSheehy’s testimony regarding statements by Anthony Gordon,

one of Johnson’s co-conspirators, that he previously failed to

admit that he purchased drugs from Johnson because he feared for

his family’s safety. Johnson contests the admission of

McSheehy’s testimony on the grounds that the government failed

to notify Johnson before trial that he sought to introduce the

evidence and, accordingly, the court never had the proper

opportunity to determine whether the evidence was unfairly

13
prejudicial. Johnson, alternatively, argues that had the court

considered the evidence it would have determined that it was

impermissible character evidence in violation of Rule 404(b) of

the Federal Rules of Evidence.

A. Standard of Review

Johnson concedes he failed to object to the admission of

the aforementioned evidence at trial. When a party fails to

object to the admission of evidence, Rule 103(d) of the Federal

Rules of Evidence requires that the Court review the admission

for plain error. Cook v. American Steamship Co., 53 F.3d 733,

742 (6th Cir. 1995); United States v. Brown, 287 U.S. App. D.C.

316, 921 F.2d 1304, 1308 n.4 (D.C. Cir. 1990); FED.R.EVID. 103(d).

B. Analysis

1. The Court Properly Admitted the Testimony Despite
the Fact that the Government Did not Notify the Court
Before Trial.

Johnson initially complains that the government improperly

admitted McSheehy’s testimony regarding Gordon’s statements

despite informing the court before trial that it would not

present police testimony of co-conspirators’ out of court

statements. Accordingly, Johnson argues, the government should

have been estopped from presenting such evidence at trial.

As the government correctly notes, the prosecution

introduced the contested evidence only after Johnson raised the

issue during his direct examination of McSheehy. During

14
Johnson’s direct examination of McSheehy, Johnson’s counsel

asked McSheehy: “Did you ever have the opportunity to talk to

Anthony Gordon? . . . [D]id he ever mention Kenneth Johnson?”

J.A. at 412. Later, Johnson’s counsel asked McSheehy whether

any of the co-conspirators outside of Belton or Richardson “had

ever mentioned Kenneth Johnson?” J.A. at 421.

The prosecution on cross-examination closely limited its

questioning of McSheehy regarding Gordon’s statements to the

scope of Johnson’s direct – it simply allowed McSheehy the

opportunity to present Gordon’s explanation as to why he had not

mentioned Johnson previously.

Accordingly, given that Johnson opened the door for such

evidence, we do not believe that the court’s admission of it was

in “plain error.”

2. The Testimony Was Not “Character” Evidence.

Johnson alternatively, argues that had the court weighed

the evidence it would have determined it was inadmissible under

Rule 404(b) of the Federal Rules of Evidence.

Rule 404(b) forbids the admission of evidence of "other

crimes, wrongs, or acts . . . to prove the character of a person

in order to show action in conformity therewith." FED. R. EVID.

404(b). This prohibition reflects the

underlying premise of our criminal justice system,
that the defendant must be tried for what he did, not
for who he is. Thus, guilt or innocence of the accused

15
 must be established by evidence relevant to the
particular offense being tried, not by showing that
the defendant has engaged in other acts of wrongdoing.

United States v. Bradley, 5 F.3d 1317, 1320 (9th Cir. 1993)

(internal quotation marks and citations omitted). Because such

evidence may be highly relevant, however, the Rule does permit

its admission "for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity or

absence of mistake or accident . . . ." FED. R. EVID. 404(b).

Rule 404(b) is inapplicable to McSheehy’s testimony. As

noted above, the rule relates to “other crimes, wrongs, or

acts.” McSheehy introduced no evidence of acts, words or

threats in other forms by Johnson, but merely provided Gordon’s

statements regarding his personal feelings of fear.

Furthermore, the testimony was not introduced to prove Johnson’s

character, but rather to explain why Gordon lied. See United

States v. Green, No. 08-2330, 2010 U.S. App. LEXIS 16431, *46,

n.16 (3rd Cir. Aug. 9, 2010) (“The required proper purpose was

the rehabilitation of Stahl's credibility, in light of Green's

suggestions that she was motivated by money and cooperated

solely for selfish reasons.”). *

*
At the end of the relevant section of his brief, Johnson
throws in a one-line argument that the statement was hearsay.
An out of court statement is only hearsay if it is presented to
prove the truth of the matter asserted. FED. R. EVID. 801(c). As
noted above, in this case, the statement was not presented to
(Continued)
16
IV. THE DISTRICT COURT DID NOT ERR IN ADMITTING EVIDENCE OF JOHNSON’S PRIOR
CONVICTIONS FOR COCAINE DISTRIBUTION.

Johnson also argues that the court erroneously admitted

evidence of his previous cocaine distribution convictions. He

specifically argues: 1) that the evidence served no legitimate

purpose other than defaming his character; and 2) was unduly

prejudicial.

A. Standard of Review

The court reviews a district court’s determination

regarding the admissibility of evidence under Rule 404(b) for

abuse of discretion. United States v. Greenwood, 796 F.2d 49

(4th Cir. 1996); United States v. Hodge, 354 F.3d 305, 312 (4th

Cir. 2004). A court abuses its discretion when it “act[s]

arbitrarily or irrationally in admitting evidence." United

States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009) (internal

quotation marks omitted).

B. Analysis

The Fourth Circuit has set out a four part test courts must

use when determining whether evidence of prior bad acts may be

admitted. The prior act must: 1) be relevant to an issue other

than character, such as intent, motive or knowledge; 2) be

prove that Johnson was in fact dangerous but merely to explain
why Gordon had previously provided inconsistent testimony.

17
necessary to prove an element of the crime charged; 3) be

reliable; and 4) not be substantially outweighed by its

prejudicial nature. United States v. Queen, 132 F.3d 991, 995

(4th Cir. 1997). This court has held that “Rule 404(b) is ‘an

inclusive rule, admitting all evidence of other cimes or acts

except that which tends to prove only criminal disposition.’”

United States v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010)

(quoting United States v. Young, 248 F.3d 260, 271-72 (4th Cir.

2001)). As noted, Johnson specifically challenges prongs one and

four of this analysis.

The government asserted and the court below agreed that the

evidence was relevant to Johnson’s intent upon arriving at the

parking lot on the morning of November 5th; his knowledge of the

drug trade; absence of mistake; plan; and opportunity. The

district court’s rulings with regard to intent and knowledge

were consistent with the law of this Circuit. Rooks, 596 F.3d at

211 (affirming admission of evidence of prior narcotics

conviction to establish the defendant's knowledge of drug

trafficking and intent to distribute drugs found at the crime’s

scene).

Likewise, because the statements were accompanied by

limiting instructions, under the Fourth Circuit’s jurisprudence

the convictions’ admission was not unduly prejudicial. Id.

(“[T]he evidence [of prior convictions] was neither unreliable

18
nor unfairly prejudicial, especially in light of the court's

limiting instruction to the jury.”). See United States v.

White, 405 F.3d 208, 213 (4th Cir. 2005) ("[A]ny risk of such

prejudice was mitigated by a limiting instruction from the

district court clarifying the issues for which the jury could

properly consider [the] evidence.").

V. THE TRIAL COURT DID NOT COMMIT PLAIN ERROR IN ALLOWING TESTIMONY THAT
JOHNSON DEALT HEROIN AND MARIJUANA.

Johnson, likewise, challenges the admission of testimony

that he also distributed marijuana and heroin as improper

character evidence.

A. Standard of Review

Johnson failed to object to the government's statement

below. Accordingly, this Court's review is limited to the plain

error standard discussed above.

B. Analysis

Johnson alleges that testimony regarding him dealing other

drugs constituted impermissible character evidence.

Rule 404(b) protects only against the introduction of

extrinsic act evidence when offered to prove character. Evidence

when not part of the crime charged but pertaining to the chain

of events explaining the context, motive and set-up of the

crime, is properly admitted if it forms an integral and natural

19
part of an account of the crime, or is necessary to complete the

story of the crime for the jury. United States v. Powers, 59

F.3d 1460 (4th Cir. 1994). In such a situation, because the

evidence is intrinsic, not extrinsic, we do not engage in a Rule

404(b) analysis.

Here, it is clear that the testimony concerning other drugs

Johnson was distributing while distributing cocaine was

intrinsic to the crime. Belton testified that when he was

introduced to Johnson, it was for the purpose of conducting drug

transactions and while he initially purchased marijuana, they

gradually moved on to other drugs such as heroin and cocaine.

Given that the testimony showed that Johnson was distributing

heroin and marijuana to many of his co-conspirators during the

course of the cocaine conspiracy, the evidence was intrinsic

and, therefore, not subject to analysis under 404(b).

Such evidence is, of course, nevertheless subject to a

Rule 403 balancing. See United States v. Huppert, 917 F.2d 507

(11th Cir. 1990). "[T]he court's discretion to exclude evidence

under Rule 403 is narrowly circumscribed. 'Rule 403 is an

extraordinary remedy which should be used only sparingly since

it permits the trial court to exclude concededly probative

evidence.'" United States v. Norton, 867 F.2d 1354, 1361 (11th

Cir.), cert. denied, 491 U.S. 907 (1989). Beyond blank

accusations that the evidence was prejudicial, Johnson presents

20
no specific argument in support of his assertion that the

prejudicial effect of this information outweighed its relevance.

Accordingly, we cannot find that the court’s admission of such

was clear error.

VI. THE TRIAL COURT PROPERLY DENIED JOHNSON’S MOTION TO OVERTURN HIS
CONVICTION AS A RESULT OF THE PROSECUTOR’S STATEMENT.

Johnson additionally challenges the trial court’s refusal

to grant Johnson a new trial as a result of the prosecutor’s

statement during closing arguments referring to Johnson as the

devil.

A. Standard of Review

Johnson failed to object to the government’s statement

below. Accordingly, this Court’s review is limited to the plain

error standard discussed above.

B. Analysis

The court examines a claim of prosecutorial misconduct to

determine whether the alleged misconduct "so infected the trial

with unfairness as to make the resulting conviction a denial of

due process." United States v. Scheetz, 293 F.3d 175, 185 (4th

Cir. 2002) (addressing prosecution's improper reference to

evidence admitted only against one defendant in closing argument

arguing that another defendant was guilty) (citations and

internal quotation marks omitted). "The test for reversible

21
prosecutorial misconduct has two components; first, the

defendant must show that the prosecutor's remarks or conduct

were improper and, second, the defendant must show that such

remarks or conduct prejudicially affected his substantial rights

so as to deprive him of a fair trial." Id.

The Fourth Circuit has set out a variety of factors that

courts must consider when evaluating the prejudicial effect of a

statement. These include: (1) the degree to which the

prosecutor's remarks have a tendency to mislead the jury and to

prejudice the accused; (2) whether the remarks were isolated or

extensive; (3) absent the remarks, the strength of competent

proof introduced to establish the guilt of the accused; and (4)

whether the comments were deliberately placed before the jury to

divert attention to extraneous matters. United States v.

Mitchell, 1 F.3d 235, 241 (4th Cir. 1993).

At issue on appeal is the prosecutor’s statement during

closing arguments that “when you put the devil on trial, you’ve

got to go to hell to get your witnesses.” The government

defends the statement on the grounds that it was merely a

“colorful” way of saying that the prosecution had to use

unsavory witnesses to convict the defendant.

We cannot accept the government’s argument that the

statement was merely a colorful statement. It is clear from the

record that the government was specifically referring to Johnson

22
when it made the statement. While the prosecution may have been

trying to defend its use of certain witnesses, inherent in the

statement was an emotional characterization of the defendant.

See Fahy v. Horn, 516 F.3d 169, 202 (3rd Cir. 2008) (“We do not

condone the characterization of [the defendant] as demonic, nor

consider it a proper form of argument.”); United States v.

Whittington, 269 Fed. Appx. 388, 410 (5th Cir. 1998) (“The

prosecutor's remarks cannot be characterized as simply a

colloquialism because he appeared to be referring to [the

defendant] in each statement. We assume without deciding that

referring to a defendant as ‘the devil’ is improper.”).

That said, we do not find that the single remark, by

itself, rendered the trial fundamentally unfair. Given that the

statement’s principal function was to explain the witnesses’

criminal backgrounds and it was an isolated remark, we cannot

find the trial court’s allowance of the statement constituted

plain error. See Whittington, 269 Fed. Appx. at 411-12

(finding similar statement negatively impacted the jury, but

because “the specific wording of the statement was designed to

explain the plea agreements that the government made with

unsavory characters that testified against [the defendant],”

allowing the statement did not constitute clear error).

23
VII. THE TRIAL COURT DID NOT ERR BY SENTENCING JOHNSON TO A LIFE SENTENCE.

Finally, Johnson alleges the trial court’s sentence of life

in prison for Johnson violated the Eighth Amendment’s

prohibition on cruel and unusual punishment. Johnson asserts

that the trial court failed to conduct the appropriate

proportionality analysis set out in United States v. Kratsas, 45

F.3d 63 (4th Cir. 1995) and Solem v. Helm, 463 U.S. 277 (1983).

Had the court conducted the proper balancing, Johnson continues,

it would have found that given the small amount of cocaine at

issue in his prior sentence and the length of the sentence, a

life sentence was not appropriate.

A. Standard of Review

The Court reviews de novo an appellant’s constitutional

challenge to the proportionality of his sentence. United States

v. Meyers, 280 F.3d 407, 416 (4th Cir. 2002).

B. Analysis

Section 841(b) of Title 21 of the United States Code

provides for a mandatory life sentence without release for

participants in certain drug offenses involving five or more

kilograms of cocaine. Specifically, the statute provides:

If any person commits a violation of this subparagraph
or of section 859, 860, or 861 of this title after two
or more prior convictions for a felony drug offense
have become final, such person shall be sentenced to a
mandatory term of life imprisonment without release .
. . .

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21 U.S.C. § 841(b)(1)(A).

Johnson does not dispute having two applicable prior felony

convictions for the purposes of section 841(b). Rather, he

asserts that given the small amount of drugs and how old the

conviction was, a sentence of life was disproportionate under

the Eighth Amendment.

Johnson misreads the Fourth Circuit’s decision in United

States v. Kratsas. The court not only did not find that a

proportionality balancing was not required, but in fact held the

opposite – a court need not consider any mitigating factors when

issuing a sentence under section 841(b). See Kratsas, 45 F.3d at

69 (“[I]t is clear that a sentence of life without parole does

not require the consideration of mitigating factors, as is

required in the death penalty context, in order to pass

constitutional muster. Thus, the mere fact that the life

sentence was mandatorily imposed does not render it "cruel and

unusual." (citations omitted)).

Accordingly, the sentence did not violate the Eighth

Amendment under the Fourth Circuit’s jurisprudence.

CONCLUSION

For the aforementioned reasons, the trial court’s

conviction and sentence of Johnson is, hereby,

AFFIRMED.

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