United States v. Johnson

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit

8-26-2002

USA v. Johnson
Precedential or Non-Precedential: Precedential

Docket No. 00-2165

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PRECEDENTIAL

Filed August 26, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-2165 / 01-2529

UNITED STATES OF AMERICA

v.

GENE BARRETT JOHNSON,
a/k/a Gexex Johnson,
Appellant

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 98-cr-00158)
District Judge: Honorable A. Richard Caputo

Submitted Under Third Circuit LAR 34.1(a)
February 8, 2002

Before: SLOVITER, and AMBRO, Circuit Judges
SHADUR*, District Judge

(Filed: August 26, 2002)
_________________________________________________________________
* Honorable Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.

Joseph R. D’Andrea, Esquire
142 North Washington Avenue,
Suite 800
Penn Security Bank Building
Scranton, PA 18503

Attorney for Appellant in
No. 00-2165

James A. Swetz, Esquire
Cramer, Swetz & McManus
711 Sarah Street
Stroudsbrug, PA 18360

Attorney for Appellant in
No. 01-2529

William S. Houser, Esquire
Office of the United States Attorney
235 North Washington Avenue -
Suite 311
Scranton, PA 18501

Attorney for Appellee

OPINION OF THE COURT
AMBRO, Circuit Judge:

In these consolidated appeals arising from two separate
trials, Gene Barrett Johnson appeals his conviction and
sentence on four counts (one in his first trial, three in his
second) of violating 21 U.S.C. S 841(a)(1) by possessing
drugs with the intent to distribute them. In No. 00-2165,
Johnson contends that the District Court should have
ordered the Government to reveal the identity of a
confidential informant who did not participate in or witness
the offense. In No. 01-2529, Johnson argues that: (1) the
evidence was insufficient to support his conviction on any
of the three counts; (2) the District Court abused its
discretion by refusing to grant his new trial motion; (3) the
prosecutor violated his right to due process by asking a

2

question that may have implicated his right to remain silent
after being arrested and given Miranda warnings; (4) the
prosecutor committed misconduct by asking a defense
witness about Johnson’s prior bad acts; (5) the prosecutor
improperly commented on Johnson’s status as a fugitive in
response to defense counsel’s argument that it made no
sense that he would leave drug-filled bags at the residence
of a woman he met at a nightclub; (6) the Court abused its
discretion by allowing the prosecutor to impeach Johnson
and another defense witness with evidence that they were
convicted felons; (7) the Court improperly imposed a two-
level sentencing enhancement for obstruction of justice
after finding that Johnson committed perjury during several
portions of his trial testimony; and (8) the Court mistakenly
imposed a two-level sentencing enhancement for possession
of a firearm because Johnson had a loaded revolver in the
same bag as his drugs.

We conclude that the District Court correctly rejected
eight of Johnson’s nine claims. However, the Court
overlooked Greer v. Miller, 483 U.S. 756 (1987), in finding
that a due process violation--which it ultimately deemed
harmless--occurred when the prosecutor asked a question
that implicated Johnson’s post-arrest, post-Miranda-
warnings silence. Under Greer, the prosecutor’s question
did not violate due process. On that understanding, we
affirm.

I. Background

On June 26, 1998, as part of a joint investigation
conducted by the Drug Enforcement Agency ("DEA") and
the Pennsylvania State Troopers into crack cocaine dealing
in Lackawanna County, Pennsylvania, an undercover
trooper and a confidential informant visited the residence of
Sandra Osborne, a suspected crack user and seller, to
make a purchase. After the confidential informant
introduced Osborne to the trooper, Osborne and the trooper
drove away in the trooper’s unmarked vehicle, and the
informant stayed at Osborne’s residence to babysit her
young child. Following unsuccessful searches for crack
cocaine at a residence and mall in Scranton, Osborne met
two men, who were later identified as Johnson and Jamahl

3

Simmons, on the street near the mall. Osborne and the two
men got into the trooper’s vehicle.

At Osborne’s request, the undercover trooper drove them
to a nearby strip club. On the way, the trooper saw and
heard Johnson counting out fourteen bags of crack cocaine.
When Osborne complained that the rocks of crack were too
small, Johnson replied that "these are the biggest
[expletive] rocks in Scranton." Johnson then handed the
fourteen bags to Osborne in exchange for $200 in cash that
the trooper gave her earlier. Osborne took four of the bags
and gave the other ten to the trooper. The trooper’s ten
bags were later found to contain .81 gram of crack cocaine.
Upon arriving at the strip club, Johnson gave his pager
number to the trooper and Osborne. Johnson told the
trooper he wanted to give him a "deal" for $300 in cash.
Johnson and Simmons then left the vehicle, and the
trooper drove Osborne back to her home.

After Johnson and Simmons exited the vehicle, a DEA
agent approached them on the street and identified himself
as a law enforcement officer. Johnson and Simmons
attempted to flee. As they ran, Johnson threw money and
a cigarette pack on the ground, and Simmons threw a bag
on the ground. The money was later determined to contain
identifiable bills used to purchase the crack cocaine, and
the cigarette pack was found to contain .35 gram of cocaine
and 1.69 grams of marijuana. The bag that Simmons threw
on the ground contained 1.76 grams of crack cocaine, 2.19
grams of cocaine, and 2.93 grams of marijuana. DEA
agents quickly caught Johnson and Simmons and arrested
them. A search of Johnson’s person incident to the arrest
uncovered nineteen ziplock bags containing 1.96 grams of
crack cocaine. Johnson falsely identified himself as"Gexex
Johnson" to the agents, and later to probation officers and
the District Court.

On June 30, 1998, a federal grand jury indicted Johnson
and Simmons for conspiracy to distribute and possess with
intent to distribute crack cocaine in violation of 21 U.S.C.
S 846, and also indicted Johnson for possession with intent
to distribute crack cocaine in violation of 21 U.S.C.
S 841(a)(1). On July 14, 1998, Johnson was released on his
own recognizance. He signed "Gexex Johnson" on his

4

conditions of release form. On March 10, 1999, Johnson
was scheduled to appear before the District Court to enter
a guilty plea. When he failed to appear, the Court issued a
warrant for the arrest of "Gexex Johnson."
On May 27, 1999, United States Marshals went to a
residence in Edwardsville, Pennsylvania, upon receiving
information that Johnson was there. When the marshals
arrived, they saw Johnson entering a taxi outside the
residence. A woman later identified as Jozette Sey was
sitting in the back seat. The marshals approached the taxi
with their guns drawn and ordered Johnson and Sey to
show their hands and exit the vehicle. Sey immediately
raised her hands, but Johnson, despite being ordered four
or five times by the marshals to display his hands, did not
comply. Instead, he turned his back to the marshals and
appeared to move his hand either inside his jacket or
toward the back seat cushions. Eventually, Johnson
displayed his hands, but still failed to raise them. A
marshal opened the taxi door and ordered Johnson to come
out, but he refused. The marshals then physically removed
him from the taxi, restrained him on the ground, and
handcuffed him. They told Johnson that he was being
arrested pursuant to a warrant for the arrest of"Gexex
Johnson." Johnson told the marshals they had the wrong
man. Knowing that "Gexex Johnson’s" left foot was partially
amputated, the marshals removed Johnson’s left shoe and
confirmed his identity.

Johnson was taken to the Edwardsville Police
Department, where officers found sixty-two small plastic
bags containing 5.7 grams of crack cocaine in his coat
pocket. At the scene of the arrest, marshals discovered
fifteen small, yellow plastic bags containing marijuana in
the back seat cushions of the taxi. A marshal asked Sey if
the marijuana was hers, and she said no. The marshals
determined that Sey lived in the residence and asked her
whether Johnson left any belongings there. Sey said
Johnson left two bags, and let the marshals search her
residence to retrieve them. The marshals found the bags on
the floor of a bedroom. One bag contained men’s clothing.
The other contained a loaded .32 caliber revolver, hundreds
of empty small plastic bags matching the drug-laden bags

5

found in the back seat of the taxi and in Johnson’s coat
pocket, approximately twenty-five small bags containing
marijuana, approximately forty-five small bags containing
crack cocaine, six small bags containing cocaine, three
plastic bags containing three "cutting" agents (procaine,
lidocaine, and niacinamide), a sifter, a mini-scale capable of
ascertaining weight by grams or ounces, and about three
hundred dollars in cash. The bag also contained a number
of documents, including rap lyrics that Johnson admitted
he wrote, and on which a fingerprint of his right index
finger was found, a Western Union receipt listing Johnson
as the sender and listing the sender’s address as his
mother’s home (where Johnson was supposed to be
residing while on pretrial release), credit card applications
in various names, and an identification card for"Erica Gray."1

On August 10, 1999, a federal grand jury returned a five-
count superseding indictment. Count I, which arose from
the events of June 26, 1998, charged Johnson with
possession with intent to distribute crack cocaine in
violation of 21 U.S.C. S 841(a)(1). Counts II through V arose
from the events of May 27, 1999. Counts II through IV
charged Johnson with possessing crack cocaine, cocaine,
and marijuana with intent to distribute in violation of
S 841(a)(1). Count V charged Johnson with possessing a
firearm in furtherance of a drug trafficking felony in
violation of 18 U.S.C. S 924(c).

Johnson’s trial on Count I began on February 15, 2000.
He admitted selling crack cocaine to Osborne, but claimed
she entrapped him. He said he sold her crack only because
she was "extremely persistent" in attempting to buy the
drug from him.2 On February 17, 2000, the jury found
Johnson guilty of violating S 841(a)(1). On July 14, 2000,
the District Court sentenced him to fifty-one months in
prison.
_________________________________________________________________

1. It is unclear why Johnson had the credit card applications and the
identification card.

2. Similarly, Johnson’s brief states that Osborne"hounded him to sell
her crack cocaine," and that "he agreed to participate in the sale of
drugs to get Sandy Osborne to leave him alone." Appellant’s Br. at 6-7.

6

Johnson’s trial on Counts II through V began on
September 5, 2000. During the trial, Count V, theS 924(c)
count, was dismissed pursuant to the Government’s
motion. With respect to the drug dealing charges, Johnson
insisted that none of the drugs found in his coat, in the
taxi, and in the bags in Sey’s bedroom belonged to him. On
September 8, 2000, the jury convicted Johnson on the
three S 841(a)(1) counts. He moved for a judgment of
acquittal or a new trial, which the District Court denied. On
May 24, 2001, the Court sentenced Johnson to 108 months
to be served concurrently with the sentence resulting from
his first trial. Eleven days later, Johnson filed a notice of
appeal.3

II. Discussion

A. The Hale-Doyle Issue

Johnson contends that a question the prosecutor asked
a marshal violated his right to due process by using his
post-arrest, post-Miranda-warnings silence against him.
The District Court agreed, but deemed the violation
harmless. Because it is important to evaluate the
prosecutor’s question in context, see Darden v. Wainwright,
477 U.S. 168, 179 (1986), we describe the circumstances
immediately preceding and following the question before
explaining why it did not rise to the level of a due process
violation.

1. The allegedly improper question
As noted above, on May 27, 1999, after Johnson was
arrested and taken to the police station, marshals searched
his person and found sixty-two plastic bags containing 5.7
grams of crack cocaine in a pocket of the coat Johnson was
wearing. At trial, Johnson’s counsel asked one of the
marshals the following questions on cross-examination:

Q: And isn’t it true that you had difficulty removing
that bulge [the bags of crack] from the pocket of
the jacket?
_________________________________________________________________

3. The District Court had jurisdiction under 18 U.S.C. S 3231. We have
jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742.

7

A: Yes, I did.

Q: And isn’t it true that you asked Mr. Johnson what
it [the bulge] was and he said it look [sic] likes [sic]
it’s in the pocket?

A: Yes, sir.

Q: And then you were able to find the pocket and
remove the object?

A: That’s correct.

The Government maintains that this line of questioning
"suggest[ed] that only after the defendant offered
speculation about the location of the bulge was the marshal
able to locate it and remove it from the jacket." Appellee’s
Br. at 40. Shortly after questioning the marshal about the
bulge in the jacket, Johnson’s counsel asked how Johnson
reacted when the marshals found the drugs in the coat
pocket:

Q: And my client’s response were, [sic] if those are
drugs, somebody else put them in there?

A: Yes.

In what the Government portrays as an attempt to remove
any doubt regarding the jacket’s ownership, the prosecutor
asked the marshal on redirect examination about
Johnson’s behavior when the marshal handed him the
jacket after removing the drugs:

Q: After you took the drugs out of Mr. Johnson’s coat
pocket, you say you gave him back the coat, is
that right?

A: I believe so, yes.

Q: Did he say, hey, man, that’s not my coat?
 A: No.

Q: He took the coat?

A: Yes.

After receiving permission to approach the bench,
Johnson’s counsel objected, stating: "My client has an
absolute right to remain silent once he’s under arrest." The

8

District Court agreed and sustained the objection.
Following the sidebar conversation, it instructed the jury to
disregard the prosecutor’s question and the marshal’s
answer:

Members of the Jury, as I instructed you and advised
you in the beginning, in a criminal case a Defendant is
under no obligation or duty to testify. Likewise, a
Defendant is under no obligation or duty to respond at
any time or to say anything.

In this particular instance the thrust of [the
prosecutor’s] question, did Mr. Johnson say it was not
his coat, was objected to by [defense counsel] and quite
properly so. I’m instructing you that that should be
disregarded by you as a piece of information in this
case or a piece of evidence.

[The prosecutor] is essentially withdrawing that
question. So you should strike it from your minds as
something that is to be considered in this case.

The prosecutor did not refer again to Johnson’s post-arrest
silence during the remainder of the trial.

Following the Court’s curative instruction, the prosecutor
rephrased his line of questioning to demonstrate that the
jacket was Johnson’s without relying on his post-arrest
silence:

Q: Deputy, after the drugs were taken, did Mr.
Johnson continue to wear the coat?

A: Yes.

Q: And when he was sent off to the jail he had the
same coat on, correct?

A: Yes.

Q: And the next morning you found him with the
same coat, correct?

A: Yes, sir.

In this context, Johnson maintains that the prosecutor’s
question violated due process. It is not clear from the
record, however, whether Johnson received Miranda

9

warnings before the marshal removed the drugs from his
coat and handed it to him. Surprisingly, neither the District
Court’s opinion nor either side’s brief indicates whether
(and, if so, when) Miranda warnings were given. If no
Miranda warnings were administered, then Johnson has no
due process claim. We discuss this issue in more detail
below.

2. The right to remain silent

In United States v. Hale, 422 U.S. 171 (1975), the
Supreme Court, exercising its supervisory authority over
the federal courts, held that a federal prosecutor cannot
cross-examine a defendant about his post-arrest, post-
Miranda-warnings silence because its prejudicial effect
substantially outweighs its probative value. Id. at 180-81.
The Court explained that a defendant’s silence in this
situation was ambiguous and had little probative value
because it "can as easily be taken to indicate reliance on
the right to remain silent as to support an inference that
[his] explanatory testimony was a later fabrication." Id. at
177. At the same time, it "has a significant potential for
prejudice" because the jury is likely to draw a"strong
negative inference" from the defendant’s failure to
immediately tell the police what happened. Id. at 180.

A year later, the Court elevated the Hale rule to
constitutional status, holding in Doyle v. Ohio , 426 U.S.
610 (1976), that the Fourteenth Amendment’s Due Process
Clause bars state prosecutors from using a defendant’s
post-arrest, post-Miranda-warnings silence to impeach his
trial testimony.4 Id. at 618-19. The Court pointed out that
because Miranda warnings implicitly assure an arrested
person that "silence will carry no penalty,""it would be
fundamentally unfair and a deprivation of due process to
allow the arrested person’s silence to be used to impeach
an explanation subsequently offered at trial." 5 Id. at 618.
_________________________________________________________________

4. While the Court recently said that "there might be reason to
reconsider Doyle," Portuondo v. Agard , 529 U.S. 61, 74 (2000), it remains
good law for now.

5. However, the Doyle Court said that a prosecutor can use a defendant’s
post-arrest, post-Miranda-warnings silence"to contradict a defendant

10

Though Doyle involved a state prosecution, it applies
identically to federal prosecutions under the Fifth
Amendment. United States v. Balter, 91 F.3d 427, 439 n.9
(3d Cir. 1996) (citation omitted).

The Hale-Doyle rule applies only to post-arrest, post-
Miranda-warnings silence. In Fletcher v. Weir, 455 U.S. 603
(1982) (per curiam), the Supreme Court held that a
defendant’s post-arrest silence before receiving Miranda
warnings can be used for impeachment.6 Id. at 605-07. In
doing so, it explained that the Hale-Doyle rule does not
apply to the post-arrest, pre-Miranda warnings situation
because it is not unfair to use a defendant’s silence against
him absent the "affirmative assurances embodied in the
Miranda warnings." Fletcher, 455 U.S. at 607.

As noted above, it is unclear whether Johnson was given
Miranda warnings. But it makes no difference, for either
way no due process violation occurred. If Johnson did not
receive Miranda warnings, then the prosecutor’s question
was permissible under Fletcher. See 455 U.S. at 605-07. If
he did receive the warnings, the question, though improper,7
_________________________________________________________________

who testifies to an exculpatory version of events and claims to have told
the police the same version upon arrest." Doyle, 426 U.S. at 619 n.11.
The Court explained that "[i]n that situation the fact of earlier silence
would not be used to impeach the exculpatory story, but rather to
challenge the defendant’s testimony as to his behavior following arrest."
Id. (citation omitted). Thus if the defendant"implie[s] that he had
consistently offered [to the police] the exculpatory version of events that
he offered on the stand," the prosecutor can question him about his
post-arrest silence. Earnest v. Dorsey, 87 F.3d 1123, 1135 (10th Cir.
1996).
6. Although the record in Fletcher did not show that the defendant
received Miranda warnings, the Supreme Court did not decide whether
an appellate court should presume that the warnings were given when
the record contains no suggestion that they were. The appellate court
had held that "a defendant cannot be impeached by use of his post-
arrest silence even if no Miranda warnings had been given." 455 U.S. at
604. Thus the Supreme Court addressed only that question. Id.

7. We note that because Johnson had not yet testified--and thus had not
"testifie[d] to an exculpatory version of events and claim[ed] to have told
the police the same version upon arrest"--the prosecutor’s question was
not a permissible use of a defendant’s post-arrest silence to "challenge
[his] testimony as to his behavior following arrest." Doyle, 426 U.S. at
619 n.11.

11

does not constitute a due process violation under Greer v.
Miller, 483 U.S. 756 (1987).8

In Greer, the defendant, who received Miranda warnings
when he was arrested, was accused of kidnapping, robbery,
and murder. Id. at 758-60. On direct examination, he
testified that he was not involved, and that his alleged
cohorts confessed to him on the day of the crimes that they
were responsible. Id. On cross-examination, the prosecutor
asked: "Why didn’t you tell this story to anybody when you
got arrested?" Id. at 759. Defense counsel objected
immediately, and the trial judge "immediately sustained the
objection and instructed the jury to ‘ignore[the] question,
for the time being.’ " Id. (alteration in original). Although
defense counsel did not request a more specific instruction,
"[t]he prosecutor did not pursue the issue further, nor did
he mention it during his closing argument." Id. In addition,
"the judge specifically instructed the jury to‘disregard
questions . . . to which objections were sustained.’ " Id.

The Supreme Court held that "no Doyle violation
occurred" because the defendant’s post-arrest silence "was
not submitted to the jury as evidence from which it was
allowed to draw any permissible inference." Id. at 764-65.
The trial court "explicitly sustained an objection to the only
question that touched upon [the defendant’s] post-arrest
silence," "[n]o further questioning or argument with respect
to [the defendant’s] silence occurred, and the court
specifically advised the jury that it should disregard any
_________________________________________________________________

8. Compare United States v. Cummiskey, 728 F.2d 200 (3d Cir. 1984),
where the prosecutor "emphasized" the defendant’s post-arrest silence
"both during the trial and extensively during closing argument," but the
record did not show whether Miranda warnings were given. Id. at 204.
We determined that if the warnings were given, there was a clear due
process violation which could not be deemed harmless error. Id.
Therefore, the case turned on whether the defendant received Miranda
warnings, and we had to decide whether we could presume that he had.
We held that Fletcher, which declined to make such a presumption,
"foreclosed" us from doing so. Id. at 204-05. We remanded to give the
Government an opportunity to prove that the defendant had not received
Miranda warnings. Id. at 206-07.

Unlike Cummiskey, we need not remand this case because no due
process violation occurred even if Johnson received Miranda warnings.

12

questions to which an objection was sustained." Id. at 764.
In contrast, in the cases that involved a Doyle violation,
"the trial court ha[d] permitted specific inquiry or argument
respecting the defendant’s post-Miranda silence." Id.
(citations omitted).

Under Greer, the prosecutor’s question here was not a
Doyle violation. Johnson’s counsel promptly objected to the
question, the District Court immediately sustained the
objection and issued a detailed curative instruction, and
the prosecutor never mentioned Johnson’s post-arrest
silence again.9 As in Greer , Johnson’s post-arrest silence
"was not submitted to the jury as evidence from which it
was allowed to draw any permissible inference." Greer, 483
U.S. at 764-65. Indeed, there was a stronger argument for
a Doyle violation in Greer, where the trial court never
explicitly instructed the jury that it could not consider the
defendant’s post-arrest silence. Here, in contrast, the
District Court specifically ordered the jury to disregard the
prosecutor’s question and admonished it not to consider
_________________________________________________________________

9. There are two respects in which the prosecutor’s question differs from
the question in Greer, but they are immaterial. First, the prosecutor
elicited testimony about Johnson’s silence on redirect examination of a
Government witness (in response to defense counsel’s cross-
examination), rather than when cross-examining Johnson. The unduly
prejudicial effect of the Government’s question--if there was any such
effect in spite of the District Court’s swift, emphatic response--would be
no less damaging if the question had been asked on cross-examination
of Johnson. Cf. United States v. Turner, 966 F.2d 440, 442 (8th Cir.
1992) (analyzing prosecutor’s references to the defendant’s post-arrest,
post-Miranda-warnings silence in his opening argument and on direct
examination of Government witnesses as if the references were made on
cross-examination of the defendant). Second, the marshal answered "No"
before Johnson’s counsel objected, whereas in Greer defense counsel
objected before the defendant could answer the question. However, as
the Tenth Circuit recently explained, in Greer the wording of the
prosecutor’s question--"Why didn’t you tell this story to anybody when
you got arrested?"--"made plain that the defendant actually had
exercised his Miranda rights." United States v. Oliver, 278 F.3d 1035,
1039-40 (10th Cir. 2001). Because in Greer the question itself told the
jury that the defendant remained silent, the fact that the marshal
answered the prosecutor’s question at Johnson’s trial fails to distinguish
Greer.

13

Johnson’s post-arrest silence.10 Together with the
immediate objection by Johnson’s counsel and the fact that
only one question was asked, the Court’s prompt, pointed
response averted a Doyle breach. See id. ; Balter, 91 F.3d at
439.

One issue remains with respect to the prosecutor’s
possibly improper question. In Greer, the Court noted that
although there was no Doyle violation, it had to consider
whether the prosecutor’s attempt to violate Doyle
constituted prosecutorial misconduct that " ‘so infect[ed]
the trial with unfairness as to make the resulting conviction
a denial of due process.’ " Greer, 483 U.S. at 765 (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). That
depended on whether the prosecutor’s question was"of
sufficient significance to result in the denial of the
defendant’s right to a fair trial." Greer, 483 U.S. at 765
(internal quotation marks and citations omitted). The Greer
Court determined that "[t]he sequence of events in this case
--a single question, an immediate objection, and two
curative instructions--clearly indicates that the
prosecutor’s improper question did not violate [the
defendant’s] due process rights." Id. at 766. We do not
know whether the prosecutor tried to violate Doyle, in part
because we do not know whether Johnson received Miranda
warnings. Nevertheless, we will assume arguendo that the
prosecutor intended for his question to do so. As in Greer,
defense counsel’s immediate objection and the District
Court’s prompt curative instruction demonstrate that the
prosecutor’s single question did not deny Johnson his right
to a fair trial.

B. Other Issues

1. Disclosure of confidential informant’s identity
Johnson contends that we must overturn his conviction
_________________________________________________________________

10. We emphasized the importance of a curative instruction (and
distinguished Greer) in Hassine v. Zimmerman, 160 F.3d 941 (3d Cir.
1998), which found a Doyle violation where"the trial court gave no
curative instructions at all" after the prosecutor asked three questions
that implicated the defendant’s post-arrest, post-Miranda-warnings
silence. Id. at 948.

14

in his first trial because the District Court denied his
requests before and during the trial to order the
Government to disclose the identity of the confidential
informant.

To encourage citizens to report criminal activity, the
Government has a "privilege to withhold from disclosure the
identity of persons who furnish information" regarding
illegal activity. Roviaro v. United States, 353 U.S. 53, 59
(1957). A defendant can overcome this privilege if he
demonstrates that disclosure "is relevant and helpful to
[his] defense" or "is essential to a fair determination" of his
guilt. Id. at 60-61; United States v. Brown, 3 F.3d 673, 679
(3d Cir. 1993); see also United States v. Jiles , 658 F.2d 194,
197 (3d Cir. 1981) (stating that where "the informant was
not an active participant or eyewitness, but rather a mere
tipster," his identity ordinarily need not be revealed). We
review the District Court’s refusal to order disclosure of the
confidential informant’s identity for abuse of discretion.
Brown, 3 F.3d at 679.

Johnson has not provided any reason to believe that
disclosure of the informant’s identity would have helped his
defense. The informant’s only involvement in this case was
that he or she introduced the undercover officer to
Osborne. After the officer met Osborne, they drove away,
leaving the informant behind. Following fruitless forays to a
residence and a mall, Osborne found willing salesmen in
Johnson and Simmons, from whom she purchased crack
cocaine. The informant was not present while Osborne and
the officer drove around looking to buy crack or during the
transaction. Under these circumstances, the District Court
did not abuse its discretion when it declined to order the
Government to disclose the informant’s identity.

2. Sufficiency of the evidence

Johnson maintains that the evidence presented at his
second trial was insufficient to support his convictions. In
order to succeed on this claim, Johnson bears the"very
heavy burden," United States v. Coyle, 63 F.3d 1239, 1243
(3d Cir. 1995), of showing that, viewing the evidence in the
light most favorable to the Government, no rational trier of
fact could have found him guilty beyond a reasonable

15
doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Gumbs, 283 F.3d 128, 136 (3d Cir. 2002);
United States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001).

To obtain convictions on all three of the S 841(a) counts,
the Government had to prove beyond a reasonable doubt
that Johnson knowingly or intentionally possessed crack
cocaine, cocaine, and marijuana with the intent of
distributing them. 21 U.S.C. S 841(a). The Government
could prove both Johnson’s possession of these controlled
substances and his intent through circumstantial evidence.
See United States v. Voigt, 89 F.3d 1050, 1090 (3d Cir.
1996); United States v. Blackston, 940 F.2d 877, 891 (3d
Cir. 1991).

Viewed favorably to the Government, the evidence
showed that Johnson, when confronted by United States
Marshals, appeared to stuff fifteen bags of marijuana in the
taxi’s back seat cushions. Sey, the only other passenger in
the taxi, testified that the marijuana was Johnson’s, not
hers. A search at the police station discovered sixty-two
small plastic bags of crack cocaine in his coat pocket.
Further, a bag found at Sey’s residence contained scores of
small plastic bags filled with crack cocaine, cocaine, and
marijuana, as well as extensive drug paraphernalia and a
loaded gun. Documents bearing Johnson’s name and
fingerprint were in the bag, and Sey testified that it
belonged to Johnson.

A reasonable jury could find from this evidence that
Johnson possessed crack cocaine, cocaine, and marijuana
for the purpose of distributing them. While Johnson insists
that the jury should not have believed Sey’s testimony
regarding his ownership of the drugs, we will not disturb its
credibility determination on appeal. See United States v.
Kole, 164 F.3d 164, 177 (3d Cir. 1998). Because a
reasonable jury could infer from the manner in which the
drugs were packaged, not to mention the various drug
paraphernalia, that Johnson intended to distribute the
drugs he possessed, the evidence was sufficient to support
his convictions on the three S 841(a) counts.

3. Denial of new trial motion

Johnson states that the District Court should have
granted his new trial motion following his second trial

16

because the weight of the evidence did not support the
verdict. Federal Rule of Criminal Procedure 33 provides
that "[o]n a defendant’s motion, the court may grant a new
trial to that defendant if the interests of justice so require."
A district court can order a new trial on the ground that the
jury’s verdict is contrary to the weight of the evidence only
if it "believes that ‘there is a serious danger that a
miscarriage of justice has occurred--that is, that an
innocent person has been convicted.’ " United States v.
Santos, 20 F.3d 280, 285 (7th Cir. 1994) (quoting United
States v. Morales, 902 F.2d 604, 606 (7th Cir. 1990)).
Unlike an insufficiency of the evidence claim, when a
district court evaluates a Rule 33 motion it does not view
the evidence favorably to the Government, but instead
exercises its own judgment in assessing the Government’s
case. See United States v. Lacey, 219 F.3d 779, 783-84 (8th
Cir. 2000); United States v. Ashworth, 836 F.2d 260, 266
(6th Cir. 1988). We review the denial of a Rule 33 motion
for abuse of discretion. United States v. Jasin , 280 F.3d
355, 360 (3d Cir. 2002).

Johnson’s arguments regarding the denial of his new trial
motion essentially rehash those presented in support of his
insufficiency of the evidence claim. He offers no reason for
us to doubt the District Court’s conclusion that no
miscarriage of justice took place. Thus the Court did not
abuse its discretion when it declined to order a new trial.

4. Comment on Johnson’s fugitive status

During his closing argument in Johnson’s second trial,
defense counsel asserted that it did not make sense that
Johnson would have left his bags at Sey’s residence
because he had just met her. To rebut this argument, the
prosecutor noted that Johnson testified that he was staying
at Sey’s residence in violation of a court order requiring him
to stay at his mother’s residence, and that the marshals
had a warrant for his arrest. Therefore, the prosecutor
argued, Johnson left his bags at Sey’s residence because he
was "on the run from the law" and could not return home
for fear of being apprehended. This argument obviously was
a legitimate response to defense counsel’s attempt to create
doubt as to the ownership of the bags. The prosecutor
never mentioned the charges underlying the warrant for

17

Johnson’s arrest. Instead, he simply called the jury’s
attention to Johnson’s admission that he was a fugitive,
which explained Johnson’s motive for leaving his bags at
Sey’s residence.

5. Unanswered and withdrawn question about
Johnson’s prior bad acts

During the cross-examination of defense witness Kelvin
Robertson, who testified that he went to Sey’s residence on
the day Johnson was arrested to buy marijuana from her,
the prosecutor asked Robertson whether he ever obtained
drugs from Johnson before May 1999. Robertson replied,
"That’s not important." After an objection by defense
counsel, the District Court said it would allow the question,
but the prosecutor withdrew it. The following exchange
ensued:

Q: Now, you just said, when I asked you that
question, you said that’s not important. When I
 asked you, did you ever get drugs from [Johnson]
before May of 1999? Did you hear yourself say
that’s not important when I asked you that
question?

A: Yes, I did.

Q: Okay. That’s because you knew that you had
gotten drugs off of him and you knew he was a
drug dealer, isn’t that right?

At this point, defense counsel objected and a sidebar
conversation occurred. Defense counsel suggested that the
prosecutor was eliciting "other acts" evidence that was
inadmissible under Federal Rule of Evidence 404(b). The
prosecutor then agreed to withdraw the question, and the
Court instructed the jury: "Members of the jury, disregard
the last question. In any event, as I indicated to you at the
outset, questions are not evidence. But to the extent that
you have forgotten that instruction, I’m telling you to
disregard the question." The prosecutor did not ask any
other questions about whether Johnson dealt drugs in the
past.

Johnson contends that the above sequence of events
requires us to reverse his convictions from his second trial.

18

In its opinion denying Johnson’s new trial motion, the
District Court determined that, under United States v.
Sampson, 980 F.2d 883 (3d Cir. 1992), the prosecutor’s
question was not improper because evidence of Johnson’s
prior drug sales to Robertson would have been admissible
under Rule 404(b) to prove Johnson’s intent. We need not
consider whether the District Court’s view was correct.
First, the parties offer minimal analysis of this issue--each
side’s brief allots it only a single unilluminating paragraph.
More importantly, even if we assume arguendo that the
prosecutor’s question was improper because, if answered, it
would have elicited inadmissible evidence, any error was
clearly harmless. Johnson does not seem to claim that the
error is of constitutional proportions.11 A non-constitutional
trial error "does not warrant reversal in circumstances
where ‘it is highly probable that the error did not contribute
to the judgment.’ " United States v. Tyler , 281 F.3d 84, 101
n.26 (3d Cir. 2002) (quoting United States v. Helbling, 209
F.3d 226, 241 (3d Cir. 2000)); see also Fed. R. Crim. P.
52(a) ("Any error, defect, irregularity or variance which does
not affect substantial rights shall be disregarded.").

Under the circumstances presented here, it is most
unlikely that the prosecutor’s question had any effect on
the outcome of the trial. Robertson never answered the
prosecutor’s question, so there was never any evidence
introduced regarding Johnson’s prior acts. See United
States v. Farmer, 73 F.3d 836, 844 (8th Cir. 1996)
(determining that prosecutor’s improper references to
defendant’s prior bad acts were harmless where defense
counsel immediately objected, the witness never answered
the question, and the prosecutor did not raise the topic
during the remainder of the trial). To the extent that the
jury may have thought the prosecutor’s line of questioning
suggested that Johnson had a history of dealing drugs, the
_________________________________________________________________

11. Johnson’s brief states once, in passing, that the prosecutor’s
question "deprived [him] of a fair trial." Appellant’s Br. at 22. Even if this
oblique reference suffices to raise the constitutional issue, it is clear
that, when viewed against the backdrop of the trial as a whole, the
prosecutor’s question, though perhaps improper, did not " ‘so infec[t] the
trial with unfairness as to make the resulting conviction a denial of due
process.’ " Greer, 483 U.S. at 765 (quoting Donnelly, 416 U.S. at 643).

19

Court’s prompt and unequivocal admonition that the
prosecutor’s remarks did not constitute evidence precluded
any perceptible prejudice to Johnson. Cf. United States v.
Sturm, 671 F.2d 749, 751-52 (3d Cir. 1982) (finding that
immediate curative instruction averted prejudice to
defendant from question regarding his pretrial efforts to
seek immunity). Further, the prosecutor’s line of
questioning did not hint at anything the jury was unlikely
to infer on its own--the large amount of drug paraphernalia
found in Johnson’s possession strongly suggested this was
not the first time he possessed drugs with the intent to
distribute them. Finally, the evidence against Johnson was
powerful, and we find it highly unlikely that the
prosecutor’s question could have made any difference.
Therefore, the prosecutor’s question, if it was error, was
harmless.

6. Use of prior convictions for impeachment

Johnson claims the District Court should not have
allowed the Government to impeach him and defense
witness Robertson with evidence of their prior felony
convictions under Federal Rule of Evidence 609(a)(1), which
allows such evidence to attack a witness’s credibility. Rule
609(a)(1) provides that evidence that a criminal defendant
has been convicted of a felony "shall be admitted if the
court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused,"
and that evidence that a witness other than a criminal
defendant was convicted of a felony "shall be admitted,
subject to Rule 403."12 We review the Court’s decision to
admit evidence under Rule 609(a)(1) for abuse of discretion.
See United States v. Jacobs, 44 F.3d 1219, 1224-25 (3d Cir.
1995); United States v. Hans, 738 F.2d 88, 94 (3d Cir.
1984).

During Johnson’s second trial, the District Court allowed
the prosecutor to cross-examine Johnson about the fact of
his felony conviction from his first trial. It reasoned that
because Johnson’s "credibility is important in the case," the
_________________________________________________________________
12. Federal Rule of Evidence 403 allows district courts to exclude
relevant evidence if its potential to cause unfair prejudice substantially
outweighs its probative value.

20

impeachment value of his prior conviction outweighed the
risk of unfair prejudice. Following the Court’s ruling, the
prosecutor began his cross-examination of Johnson as
follows:

Q: Mr. Johnson, it’s true, isn’t it, that you have been
convicted of a felony offense carrying a maximum
potential penalty in excess of one year?

A: Yes.

Q: And that conviction is on appeal right now, isn’t it?

A: Yes.

The prosecutor then questioned Johnson about the events
of May 27, 1999. He never asked Johnson about the nature
of the offense for which he was convicted. Pursuant to the
prosecutor’s request, the Court instructed the jury that
Johnson’s prior conviction was being introduced solely to
impeach his credibility, and that it could not be used for
any other purpose. Under these circumstances, we will not
disturb the Court’s ruling. Credibility was a major issue at
trial because Johnson’s defense depended on the jury
believing his story rather than Sey’s, and evidence of a
felony conviction is probative of credibility. See Fed. R.
Evid. 609 advisory committee’s note. At the same time, the
risk of unfair prejudice was relatively slim, as the jury
already knew that there was an outstanding warrant for
Johnson’s arrest when he was taken into custody. In this
context, the Court did not abuse its discretion by allowing
the prosecutor to ask Johnson about his previous felony
conviction.

When Robertson testified, the prosecutor asked him,
"And you have been convicted of a felony offense, haven’t
you?" Robertson replied, "Yes." Defense counsel did not
object at this point. The prosecutor said he wanted to ask
Robertson about the nature of his conviction, and only then
did defense counsel object. During a sidebar conversation,
the Court said it would not allow questions about the
nature of Robertson’s convictions because they were drug
offenses, which do not involve deceit. Following the Court’s
ruling, the prosecutor got Robertson to admit that he had
two felony convictions, but did not elicit information about

21

their nature. Because defense counsel did not object to the
prosecutor’s question about the fact of Robertson’s
convictions, we review the Court’s handling of this issue for
plain error under Federal Rule of Criminal Procedure 52(b).
"Under the plain error standard, ‘before an appellate court
can correct an error not raised at trial, there must be (1)
error, (2) that is plain, and (3) that affect[s] substantial
rights. If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’ "
United States v. Campbell, 295 F.3d 398, 404 (3d Cir. 2002)
(quoting Johnson v. United States, 520 U.S. 461, 466-67
(1997)) (alterations in original). The defendant bears the
burden of showing that a plain error occurred. United
States v. Syme, 276 F.3d 131, 143 n.4 (3d Cir. 2002).

Johnson has failed to carry his burden. Robertson’s
credibility was important because his version of events
differed from Sey’s and supported the story told by
Johnson. Further, we fail to see how the fact of Robertson’s
prior convictions might have inflicted unfair prejudice
beyond that which ordinarily accompanies evidence
introduced pursuant to Rule 609(a)(1). Therefore, no error,
and certainly no plain error, occurred when the District
Court admitted evidence of Robertson’s previous
convictions.

7. Sentencing claims

The presentence report in Johnson’s second trial listed
his base offense level as 26. It recommended imposing a
two-level enhancement for obstruction of justice pursuant
to U.S.S.G. S 3C1.1, and another two-level enhancement for
possession of a firearm in connection with the S 841(a)(1)
counts. Adopting the presentence report’s application of the
Sentencing Guidelines, the Court found that Johnson’s
total offense level was 30 and that his criminal history
category was II, findings for which the Guidelines prescribe
incarceration of between 108 and 135 months. On May 24,
2001, the Court sentenced Johnson to 108 months on each
count, to be served concurrently.

Johnson maintains that the District Court erred with
respect to each of the two-level enhancements. To the

22

extent that Johnson raises issues of law, we exercise
plenary review. See United States v. Day, 272 F.3d 216, 217
(3d Cir. 2001). We review for clear error the factual findings
underlying each sentencing enhancement. See United
States v. Perez, 280 F.3d 318, 352 (3d Cir. 2002); United
States v. Boggi, 74 F.3d 470, 478 (3d Cir. 1996). " ‘Factual
findings are clearly erroneous if the findings are
unsupported by substantial evidence, lack adequate
evidentiary support in the record, are against the clear
weight of the evidence or where the district court has
misapprehended the weight of the evidence.’ " United States
v. Roberson, 194 F.3d 408, 416 (3d Cir. 1999) (quoting
United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997)).

a. Enhancement for obstruction of justice
U.S.S.G. S 3C1.1 states in relevant part:"If (A) the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the
course of the . . . prosecution . . . of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct
. . . increase the offense level by 2 levels." Perjury is one of
the types of conduct to which this provision applies.
U.S.S.G. S 3C1.1, cmt. n. 4(b) (2002). For the purposes of
S 3C1.1, a defendant "testifying under oath or affirmation"
commits perjury if he "gives false testimony concerning a
material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or
faulty memory." United States v. Dunnigan, 507 U.S. 87, 94
(1993).

Sworn to tell the truth, Johnson testified that the coat he
was wearing when he was arrested was not his, that he did
not know the coat contained crack cocaine, that the drug-
laden bag found at Sey’s residence was not his, and that he
had never seen that bag before it was introduced into
evidence. The District Court found that by convicting
Johnson on all three counts, the jury necessarily rejected
these portions of his testimony. It further found that
Johnson "was not truthful on material matters" and that he
testified with "willful intent to not be forthcoming about the
facts." The Court noted that Sey "testified directly contrary

23

to Mr. Johnson," and that the jury obviously believed her,
not Johnson. Therefore, the Court concluded, Johnson
perjured himself at trial. Indeed, it found that the record
demonstrated Johnson’s willful deceit with respect to
material facts by "clear and convincing evidence," whereas
the facts underlying a sentencing enhancement need only
be proven by a preponderance of the evidence. See United
States v. Watts, 519 U.S. 148, 156-57 (1997).

As with other factual findings, the District Court’s
determination that Johnson committed perjury at his trial
cannot be set aside unless it was clearly erroneous. See
Boggi, 74 F.3d at 478. Moreover, its findings must be
evaluated in light of the principle that " ‘a guilty verdict, not
set aside, binds the sentencing court to accept the facts
necessarily implicit in the verdict.’ " Id. at 478-79 (quoting
United States v. Weston, 960 F.2d 212, 218 (1st Cir. 1992)).
Because several portions of Johnson’s sworn testimony at
trial were irreconcilably inconsistent with the jury’s verdict,
we cannot conclude that the District Court clearly erred in
finding that a S 3C1.1 enhancement was required.

b. Enhancement for possession of a firearm

U.S.S.G. S 2D1.1(b)(1) provides for a two-level
enhancement if "a dangerous weapon (including a firearm)
was possessed." A defendant who possessed a firearm
during a drug offense should receive a S 2D1.1(b)(1)
enhancement "unless it is clearly improbable that the
weapon was connected with the offense," e.g. , "if the
defendant, arrested at his residence, had an unloaded
hunting rifle in the closet." Id. cmt. n.3. The District Court
increased Johnson’s offense level by two because the
marshals found a loaded .32 caliber revolver in one of his
bags. Johnson did not contest this enhancement below, so
our review is limited by the plain error standard set out
above.

Johnson has failed to demonstrate plain error. The
evidence shows that he possessed a loaded firearm in the
bag containing the drugs and drug paraphernalia. He has
not pointed to any evidence suggesting that it was"clearly
improbable" that the loaded revolver in his bag"was

24

connected with" his drug trafficking. See id. ("The
enhancement for weapon possession reflects the increased
danger of violence when drug traffickers possess
weapons."). That the S 924(c) charge was dismissed on the
Government’s motion is irrelevant. Cf. Watts, 519 U.S. at
157 ("hold[ing] that a jury’s verdict of acquittal does not
prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence").
Finally, we reject Johnson’s suggestion that, under
Apprendi v. New Jersey, 530 U.S. 466 (2000), 13 the
Government had to prove beyond a reasonable doubt that
he possessed the revolver, as his sentence of 108 months
did not exceed the statutory maximum of 240 months. See
21 U.S.C. S 841(b)(1)(C); United States v. Sanchez-Gonzalez,
294 F.3d 563, 565 (3d Cir. 2002).14

III. Conclusion

For the foregoing reasons, we affirm Johnson’s
convictions and sentence.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

13. Apprendi held that "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490.

14. For the same reason, we cannot accept Johnson’s assertion that the
District Court’s finding that he possessed more than five grams of crack
cocaine somehow implicates Apprendi. Johnson clings to the extraneous
fact that 21 U.S.C. S 841(b)(1)(B) provides for a maximum sentence of
480 months. As noted in the text, however, Johnson was sentenced
under S 841(b)(1)(C), which "does not base the sentence on drug
quantity," Sanchez-Gonzalez, 294 F.3d at 565, and his sentence was less
than the maximum 240 months permitted by that subsection, see
S 841(b)(1)(C), thus rendering Apprendi irrelevant.

25