United States v. Alan Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4386

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALAN JOHNSON, a/k/a LA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:11-cr-00153-BO-2)

Argued: September 19, 2014 Decided: February 3, 2015

Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.

ARGUED: Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem,
North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Alan Johnson appeals his convictions for various crimes

relating to two armed robberies and his subsequent possession of

a firearm. We affirm the denial of his motion to withdraw his

guilty plea to one count, but we otherwise reverse Johnson’s

convictions and remand for a new trial.

I.

The charges in this case stem from two armed robberies

committed in July 2011 and Johnson’s possession of a firearm at

the time of his arrest the following month. Concerning the

first robbery, the government sought to prove that Johnson and

others conspired to rob drug dealer Eric Davis of his marijuana,

shot Davis several times during the robbery, and escaped with

cash and a quantity of marijuana, which they divided among

themselves. Regarding the second robbery, the government sought

to show that Johnson and at least one other man conspired to rob

insurance agency Able Auto Insurance (“AAI”), robbed AAI at

gunpoint, and escaped with more than $5,000.

Johnson was indicted on the following counts:

- two counts of conspiring to rob a business engaged
in interstate commerce, see 18 U.S.C. § 1951 (Counts
Two and Seven);

- two counts of robbing a business engaged in
interstate commerce, see 18 U.S.C. §§ 2, 1951 (Counts
Three and Eight);

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 - two counts of possessing a firearm in furtherance of
a crime of violence, see 18 U.S.C. § 924(c)(1)(A)
(Counts Four and Nine);

- one count of possessing with the intent to
distribute a quantity of marijuana, see 21 U.S.C.
§ 841(a)(1) (Count Five);

- one count of possessing a firearm in furtherance of
a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)
(Count Six); and

- one count of being a felon in possession of a
firearm, see 18 U.S.C. § 922(g)(1) (Count Ten).

Johnson pled guilty to the § 922(g)(1) charge (Count Ten)

but proceeded to trial on the rest of the charges. The jury

returned a verdict of guilty against Johnson on all counts.

More than two months after the completion of the trial,

Johnson moved to withdraw his guilty plea to Count Ten,

contending that the weapon he possessed at the time of his

arrest actually did not satisfy the applicable statute’s

definition of a firearm. The district court denied the motion.

The court eventually imposed a 188-month sentence on Counts

Two, Three, Seven, and Eight; concurrent 60- and 120-month

sentences on Counts Five and Ten; and consecutive sentences of

120 months and 300 months on Counts Six and Nine, for a total

sentence of 608 months. 1

1
On the government’s motion, the district court arrested
judgment on Count Four since it was based on the same firearm
involved in Count Six.

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 II.

Johnson first contends that the district court abused its

discretion in denying his motion to withdraw his guilty plea to

illegally possessing a firearm in violation of § 922(g)(1) as

charged in Count Ten. We disagree.

Because a defendant does not have an absolute right to

withdraw a guilty plea that the district court has accepted, the

defendant must show “a fair and just reason” for doing so. Fed.

R. Crim. P. 11(d)(2)(B). We review the denial of a motion to

withdraw a guilty plea for abuse of discretion. See United

States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).

Here, Johnson moved to withdraw his guilty plea to the

charge of being a felon in possession of a firearm on the basis

that the firearm at issue – a Rossi, model 68, .38-caliber

revolver − was excluded from the applicable definition of

“firearm” by 26 U.S.C. § 5845(a) and thus could not serve as a

basis for a conviction under 18 U.S.C. § 922(g). As the

government explained in its response to the motion, however, the

definition of “firearm” in § 5845(a) does not apply in the

context of § 922(g). Section 5845 governs what firearms are

required to have special taxes or registration by the very

nature of the firearm itself, see 26 U.S.C. § 5841, and the

statute specifically provides that its definitions are “[f]or

the purpose of this chapter,” 26 U.S.C. § 5845.

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 Johnson does not continue to assert his innocence

concerning Count Ten, but he argues that the district court, in

the colloquy preceding the court’s acceptance of Johnson’s plea,

did not advise Johnson of all of the rights described in Rule 11

of the Federal Rules of Criminal Procedure. Rule 11 notes,

however, that “[a] variance from the requirements of this rule

is harmless error if it does not affect substantial rights,”

Fed. R. Crim. P. 11(h), and indeed there is no basis in the

record for concluding that the brevity of the colloquy had any

effect on Johnson’s plea decision whatsoever. We therefore

conclude that the district court was well within its discretion

in denying Johnson’s motion to withdraw his plea.

III.

Johnson argues that the district court committed reversible

error by admitting a video recording and a transcript of his

interrogation which included a series of accusations regarding

Johnson’s involvement in several unrelated violent crimes. We

agree. Most of the interrogation evidence was highly

prejudicial and lacked any probative value whatsoever. Because

we are unable to conclude that the erroneous admission of this

evidence was harmless, we reverse and remand for a new trial.

When Johnson was arrested, police officers interviewed him

for more than two hours. The interview, which was videotaped,

included questions to Johnson about criminal activity completely

5
unrelated to the charges under consideration by the jury.

Johnson was asked about a gang-related murder and about his

high-level position in the Bloods’ hierarchy. Johnson

specifically admitted that he had once been instructed to kill

an individual in connection with his gang membership. He was

also questioned about his alleged involvement in other armed

robberies and in the distribution of illegal narcotics.

Over Johnson’s objection, the district court admitted into

evidence a DVD containing the entire two-hour-plus

interrogation. 2 Likewise, the court admitted into evidence a

written transcript of the entire interrogation as well as a CD

containing a digital version of the full transcript. Although

it appears that the district court redacted the voluminous paper

transcript of the full interview and sent back only 16 pages

specifically relating to the AAI and Davis robberies, the CD of

the entire transcript was in evidence. The DVD of the full

interview went back to the jury room; it is unclear whether the

CD containing the full transcript also went back with the jury.

On appeal, the government wisely does not suggest that

either the portion of the DVD or the transcript in which Johnson

2
The government attempted to play for the jury a DVD that
contained only two short clips from the full interview relating
to the offenses charged in the indictment. The audio on this
abridged DVD, however, was unintelligible.

6
was interrogated about unrelated violent criminal activity had

any probative value. Indeed, for much of the interrogation,

officers directed questions to Johnson regarding his alleged

involvement in gang-related violence and other wrongdoing. Such

evidence obviously had no tendency to establish that Johnson was

guilty of the offenses charged in the indictment. See United

States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (evidence

is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence”). We fail to see any purpose for which the evidence

of unrelated gang violence and murder would be relevant other

than to prove Johnson’s violent criminal disposition. This is a

prohibited purpose under Rule of Evidence 404(b).

Although the portion of the interrogation involving

questions about the AAI and Davis robberies was relevant, this

was apparently a relatively small part of the two-hour

interrogation which was provided in its entirety to the jury.

Otherwise, this evidence regarding Johnson’s involvement in a

gangland slaying and other gang-related violence was highly

prejudicial—indeed, there is little else that would qualify as

more inflammatory than accusations of homicide. We are forced

to conclude that the probative value of this evidence was

substantially outweighed by the dramatic prejudicial effect of

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accusations regarding Johnson’s involvement in unrelated violent

crimes. Under Rule 403, therefore, the admission of the full,

unredacted recording and transcription of Johnson’s

interrogation was erroneous. See Fed. R. Evid. 403 (relevant

evidence may be excluded if probative value substantially

outweighed by danger of unfair prejudice).

The government insists that, even assuming the district

court committed an error by admitting this evidence, any error

was harmless. Under harmless-error analysis, we will not

reverse if we can “say, with fair assurance, after pondering all

that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error.” Kotteakos v. United States, 328 U.S. 750, 765 (1946).

We recognize that the Government has a strong case against

Johnson and the question of whether the errors made at trial

were harmless is for us a very close one. Despite the strength

of the prosecution’s case, however, we cannot say this

inflammatory evidence did not sway the jury in this case. The

government argues that because the jury deliberated for only 38

minutes, it could not have viewed the video of the defendant’s

two-hour interrogation. It is true that the jury could not have

viewed the entire two-hour DVD during its deliberations, but

this fact does not alleviate our concerns. Indeed, we cannot

conclude with any assurance that the jury did not view the

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portion of the DVD containing the irrelevant and highly

prejudicial series of questions about Johnson’s involvement in a

gang-related homicide. 3 The Government in essence asks us to

presume the jury did not look at any of the prejudicial portions

of the interview on the DVD. This we cannot do.

IV.

Johnson also contends that there were numerous defects in

the jury instructions issued by the district court. At trial,

Johnson agreed to the government’s proposed jury charges.

Despite telling the attorneys that it would give these proposed

instructions, however, the court later surprised counsel by

using different, and greatly abbreviated, instructions. Johnson

argues these instructions contained numerous errors and vital

omissions. We agree with Johnson that the court’s instructions

contained numerous errors, some of which were prejudicial and

provide an additional basis for reversal.

For example, the jury instructions were erroneous with

respect to both the substantive Hobbs Act robbery counts and the

Hobbs Act conspiracy counts. To sustain a conviction under the

3
We note that the district court did not give a limiting
instruction to minimize any prejudice flowing from this
evidence. See United States v. Queen, 132 F.3d 991, 997 (4th
Cir. 1997) (“In cases where the trial judge has given a limiting
instruction on the use of Rule 404(b) [evidence], the fear that
the jury may improperly use the evidence subsides.”).

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Hobbs Act, the government must show “(1) that the defendant

coerced the victim to part with property; (2) that the coercion

occurred through the wrongful use of actual or threatened force,

violence or fear . . . ; and (3) that the coercion occurred in

such a way as to affect . . . interstate commerce.” United

States v. Buffey, 899 F.2d 1402, 1403 (4th Cir. 1990) (internal

quotation marks omitted); see 18 U.S.C. § 1951. Thus, “[a]

Hobbs Act violation requires proof” that “the underlying

robbery” had “an effect on interstate commerce.” United States

v. Strayhorn, 743 F.3d 917, 922 (4th Cir. 2014) (emphasis

added). The district court, however, incorrectly instructed the

jury that the government was obligated to establish that “the

defendant, either alone or acting with others, knowingly and

deliberately committed a robbery that affected interstate

commerce, and the effect of interstate commerce is that the

person or place that was robbed in some way has some connection

to something moving between one state and another.” J.A. 314.

And, with respect to the counts charging that Johnson was part

of a conspiracy to commit Hobbs Act robberies, the district

court failed to give an instruction that included the elements

of conspiracy, particularly the requirement that Johnson knew

about, and voluntarily became a part of, the conspiracy. See

United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en

banc).

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 Likewise, the district court’s charge omitted an

instruction on the proper use of a confession. “[W]hether

requested or not, the trial court should instruct the jury

specifically upon the law governing the use of a confession and

a failure to do so is clear error.” United States v. Sauls, 520

F.2d 568, 570 (4th Cir. 1975) (internal quotation marks

omitted).

Beyond these examples, the district court’s instructions

were at times confusing, garbled or incomplete. For instance,

in instructing the jury regarding Johnson’s alleged violations

of 18 U.S.C. 924(c), the district court conflated the language

of the statute. Section 924(c) “criminalizes the use or

carrying of a firearm during and in relation to either a crime

of violence or a drug trafficking crime,” United States v.

Nelson, 484 F.3d 257, 260 (4th Cir. 2007), or the possession of

a firearm “in furtherance of” such a crime, United States v.

Pineda, 770 F.3d 313, 321 (4th Cir. 2014). The court, however,

instructed that the government had to prove that Johnson

“committed a crime of violence” and that “during and in

relationship to the commission of that crime, the defendant . .

. knowingly used or carried a firearm in furtherance of the

commission of that crime.” J.A. 314-15. Also, the jury charge

did not include standard instructions such as an instruction

that the jury should not infer from the district judge’s

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extensive questioning of witnesses or comments to counsel that

the judge believed the defendant was guilty or an instruction

regarding the testimony of alleged accomplices and witnesses

that had given inconsistent statements.

We agree with Johnson that the jury instructions contained

prejudicial errors warranting reversal. Rather than address

each individual assignment of error by Johnson, we leave it to

the district court on remand to redraft its instructions with

more precision if Johnson is retried. 4

V.

In sum, we affirm the denial of Johnson’s motion to

withdraw his guilty plea to Count 10. However, in light of the

foregoing errors, we reverse Johnson’s convictions on the

remaining counts and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED

4
We note that Johnson challenges the sufficiency of the
evidence to establish Johnson’s identity as the perpetrator of
the charged crimes. Unlike the government, we conclude that
Johnson preserved this issue via his Rule 29 motion for judgment
of acquittal. See United States v. Jackson, 124 F.3d 607, 611
n.2 (4th Cir. 1997) (explaining that appellant preserved
sufficiency-of-the-evidence challenge through a Rule 29 Motion
for Judgment of Acquittal that was general in nature). Thus, we
review this claim de novo, not for plain error. See United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). That said,
we agree with the government that the circumstantial evidence of
Johnson’s identity was sufficient to permit a reasonable jury to
find beyond a reasonable doubt that Johnson participated in the
robberies. Accordingly, retrial is permissible. See Lockhart
v. Nelson, 488 U.S. 33, 34 (1988).

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