United States v. Johnson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2009 Decided January 15, 2010

No. 07-3071

UNITED STATES OF AMERICA,
APPELLEE

v.

SIROCCO D. JOHNSON, ALSO KNOWN AS ROCCO,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00488-01)

A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant.

Sarah T. Chasson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese III and Chrisellen R. Kolb, Assistant U.S. Attorneys.

Before: HENDERSON and GARLAND, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
 2

Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

RANDOLPH, Senior Circuit Judge: A jury convicted Sirocco
Johnson of possessing heroin and crack cocaine with the intent
of distributing both substances; and of using, carrying, or
possessing a firearm in connection with a drug offense. Each of
the charges stemmed from a search of a bedroom Johnson
occupied in a townhouse where his mother, stepfather and sister
lived. Johnson raises rather routine issues regarding the
sufficiency of the evidence, a jury instruction and an evidentiary
ruling. After discussing these issues we will deal with the
serious question in the case – whether the government failed to
disclose exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83 (1963).

I

At dawn on August 21, 2003, a dozen FBI agents executed
a search warrant at 1138 Wahler Place, S.E., Washington, D.C.
No one answered the agents’ knock on the townhouse door so
they broke it down, tossed in a “flash bang,” and entered. At
that moment, an agent stationed outside saw a white bundle fly
out of a window on the townhouse’s second floor. The entering
agents saw no one on the first floor or in the basement. On the
second floor, in one of the bedrooms, they discovered Johnson,
then twenty-three years old, shirtless, crouching next to the
window from which the bundle had been tossed. Johnson’s
twelve-year-old cousin was also in the room, lying on the floor
next to the bed. Johnson’s mother and stepfather were in the
second floor master bedroom.

Johnson’s bedroom was quite cluttered, with clothing and
other items strewn about the floor. Among the clutter, the
agents found a black Hugo Boss bag. Inside the bag was a
 3

shoebox containing 520 grams of heroin. The bag also
contained a rubber glove and procaine, a diluting or “cutting”
agent. Near or in the bedroom closet, an agent found two
transparent baggies filled with a total of 73 grams of crack
cocaine. The agents also found mail, a temporary vehicle
registration, and other documents bearing Johnson’s name. The
agent stationed outside recovered the bundle, which turned out
to be a small bag of marijuana and a loaded nine-millimeter
handgun wrapped in a white t-shirt.

The three-day jury trial took place in April 2005. The
government’s key witnesses were the FBI agents who
participated in the raid. The government also called an officer
who gave expert testimony that drug dealers commonly store
their inventory in “stash houses” owned by trusted friends or
relatives. Johnson’s only witness was his mother, Caroline
Williams, who admitted that the room containing the drugs
served as a bedroom for Johnson. (Her husband, Carlos
Williams, owned the townhouse.) She added that Johnson did
not always sleep in that room. Sometimes he stayed the night at
another house with the mother of his child. Mrs. Williams also
testified that others used the bedroom. Two of her nephews and
her brother-in-law played video games there, slept overnight,
and left their clothes there. From a photograph of the bedroom,
Mrs. Williams identified items of clothing belonging to these
men. During cross-examination, Mrs. Williams admitted that
she had been convicted of attempted possession of cocaine,
attempted distribution of cocaine, and, on two separate
occasions, felony larceny in Virginia.

In closing argument, Johnson’s counsel stressed that
everyone who lived in Johnson’s home, as well as others, had
access to his bedroom and may have placed the drugs there. The
prosecutor offered two counter-theories – that the drugs were
Johnson’s or that he was stashing them for “another
 4

organization.” The jury convicted Johnson of the heroin, crack,
and gun counts, but acquitted him of possession with intent to
distribute marijuana.

While representing another client after Johnson’s
conviction, Johnson’s attorney happened upon an FBI wiretap
application indicating that the heroin seized from Johnson’s
bedroom actually belonged to a drug dealer named Cinquan
Blakney, Johnson’s cousin. The affidavit in support of the
wiretap, prepared by Special Agent Daniel Sparks, stated that
Sparks had been receiving information from confidential
informants about a gang-related drug distribution enterprise.
One of these informants told Sparks that he had discussed
Johnson’s arrest with Blakney. According to the informant,
Blakney said that the heroin seized from Johnson’s bedroom
belonged to Blakney and that Blakney’s mother had conveyed
to Johnson’s mother that Johnson “has to take his beef.”

The affidavit containing these statements was dated
February 2004 – six months after Johnson’s arrest and a year
before his trial. When Johnson’s attorney brought this evidence
to the government’s attention, the government filed a letter
indicating that the same informant told a D.C. Metropolitan
Police Department detective that Blakney had stored a half
kilogram of heroin at 1138 Wahler Place, and that the seizure
there was a setback for Blakney.

Johnson moved for a new trial, arguing that the
government’s failure to disclose the information violated Brady
v. Maryland, 373 U.S. 83 (1963); that the district court
improperly instructed the jury; and that the court erred in
refusing to admit a particular document. He also moved for a
judgment of acquittal on the basis that the evidence was
insufficient to support his convictions. The court denied the
motions.
 5

As discussed in Part III of this opinion, further information
regarding Blakney surfaced in post-argument filings in this
court.

II

Contrary to Johnson’s argument, the government presented
sufficient evidence for rational jurors to conclude beyond a
reasonable doubt that Johnson constructively possessed the
drugs and firearm. Johnson’s location and the location of the
drugs in his bedroom provided ample evidence for the jury to
conclude that Johnson had the ability to exercise knowing
“dominion and control” over the drugs. United States v. Byfield,
928 F.2d 1163, 1166 (D.C. Cir.1991). It is a fair inference that
a defendant exercises constructive possession over contraband
found in a room he personally occupies. See United States v.
Dykes, 406 F.3d 717, 721–22 (D.C. Cir. 2005); United States v.
Morris, 977 F.2d 617, 620 (D.C. Cir. 1992). Viewing the
evidence in the light most favorable to the government, see
Dykes, 406 F.3d at 721, we also believe a rational jury could
find that Johnson possessed the gun. Someone wrapped the gun
in a t-shirt and threw it out of the bedroom window as the agents
entered the townhouse. That someone, the jury could conclude,
was Johnson. He was crouching next to the same window and
was shirtless when the agents arrived seconds later. The only
other person in the immediate vicinity was a twelve-year boy,
who was across the room. Johnson’s possession of the gun was
also evidence that he was guilty of the drug charges. We have
recognized many times that “drugs and guns go together.”
United States v. Jenkins, 928 F.2d 1175, 1179 (D.C. Cir. 1991);
see United States v. McLendon, 378 F.3d 1109, 1113 & n. 4
(D.C. Cir. 2004). A suspect’s possession of a gun that is in
close proximity to drugs is strong evidence of his possession of
the drugs. See, e.g., United States v. Moore, 104 F.3d 377, 381
(D.C. Cir. 1997); Jenkins, 928 F.2d at 1180.
 6

Johnson also complains about a portion of the district
court’s instructions on the gun charge. At one point the court
told the jury that a “gun may be deemed to be used in relation to
[a drug trafficking] offense when it is present in order to protect
contraband.” Section 924(c)(1) sets mandatory minimum
sentences for “any person who, during and in relation to any . . .
drug trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm.” 18 U.S.C.
§ 924(c)(1). Johnson argues, and the government agrees, that
the quoted portion of the instruction was wrong in two respects.
First, the jury could have taken the court’s statement to mean
that so long as a gun was present to protect the drugs, the
defendant was guilty of violating § 924(c)(1). That of course is
not correct. The defendant must be linked to the gun; under the
statute, it is the defendant who must use the gun or carry it or
possess it. The existence of a gun in the defendant’s presence is
not enough. Second, for a defendant to “use” a gun within the
meaning of § 924(c)(1), he must “actively employ” it in a way
that goes beyond merely possessing it. See Bailey v. United
States, 516 U.S. 137, 150 (1995); United States v. Wheeler, 525
F.3d 1254, 1256 (D.C. Cir. 2008). Yet the instruction said that
the presence of the gun alone suffices to make out “use” in
violation of the statute.

Our review is for plain error because Johnson did not object
to this portion of the instruction. See FED. R. CRIM. P. 30(d) &
52(b). An error that does not affect a defendant’s “substantial
rights” will not lead to a reversal of his conviction. See FED. R.
CRIM. P. 52(a) & (b); Wheeler, 525 F.3d at 1256; United States
v. Watson, 409 F.3d 458, 465 (D.C. Cir. 2005). If the defendant
objected to an erroneous instruction, it is the government’s
burden to show that the error was harmless. If the defendant did
not object, it is the defendant’s burden to show not only that the
error was obvious, but also that it prejudiced him. See United
 7

States v. Olano, 507 U.S. 725, 734 (1993); United States v.
Andrews, 532 F.3d 900, 912 (D.C. Cir. 2008).

We shall assume that the error here was a plain error. But
we cannot see how the error could have had any effect. It is
understandable that Johnson did not object to the instruction.
Whether he “used” the gun was a non-issue. No one would
suppose that tossing the gun out of the window amounted to
using it to protect the drugs. Yet that is the only evidence of
Johnson’s active “use” of the gun. This is why all the focus was
on whether Johnson possessed the gun to further drug crimes.
The prosecutor’s closing argument, which helps place the matter
in context, see United States v. Chan Chun-Yin, 958 F.2d 440,
444 (D.C. Cir. 1992), was limited to convincing the jury that
Johnson possessed the gun and “had that gun to protect the
drugs that were in that bedroom.” See United States v. Wahl,
290 F.3d 370, 375–77 (D.C. Cir. 2002). The prosecutor never
argued that Johnson had actively employed the gun and there
was no evidence that he had. Nor did the prosecutor at any point
suggest to the jury that it had the option of convicting Johnson
merely because a gun was present in the bedroom, or because
someone else may have used or possessed it. In light of the
overwhelming evidence on the subject, the jury must have found
that Johnson possessed the gun. See Johnson v. United States,
520 U.S. 461, 470 (1997); Neder v. United States, 527 U.S. 1, 9
(1999). Both sides agree that the court correctly instructed the
jury with respect to the § 924(c)(1) crime of possessing a
firearm in furtherance of a drug offense. The mistake in the gun
instruction therefore did not entitle Johnson to a reversal of his
conviction for violating § 924(c)(1).

Johnson’s next argument is that the district court improperly
excluded an item of evidence. At trial, FBI Agent James Manzi
testified that he was the seizing agent during the search. As
such, he had the duty of listing the seized drugs and other items
 8

on an inventory form. Agent Manzi further testified that on the
form he named Johnson’s stepfather, Carlos Williams, as the
person from whom the items were seized in this case. Manzi
explained that by the time he filled out the form the agents had
removed Johnson from the premises and that FBI practice in
these circumstances was to have the owner of the premises sign
the form. Agent Manzi said that Williams, the owner of the
townhouse, refused to sign the form. Johnson asked the court to
admit the inventory form pursuant to the business records
exception to the hearsay rule. The court denied his motion.
During deliberations, the jury sent two notes to the judge
requesting the form. The court replied that the form had not
been admitted into evidence.

We shall assume arguendo that the court erred in excluding
the form. Even so the error was harmless. See Kotteakos v.
United States, 328 U.S. 750, 776 (1946); United States v.
Coumaris, 399 F.3d 343, 349 (D.C. Cir. 2005). Agent Manzi’s
testimony accurately conveyed to the jury what he had written
on the form. Johnson’s counsel used the form to mount an
argument that the drugs seized from the bedroom really
belonged to Carlos Williams, an argument the jury would have
been in no better position to evaluate had it viewed the form
rather than learned of its contents through testimony. See
Coumaris, 399 F.3d at 350.

III

This brings us to the question whether the government
violated its duty under Brady v. Maryland, 373 U.S. 83, 87
(1963), to disclose evidence favorable to the accused that is
material to either guilt or punishment. Evidence is “material”
only if “‘there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different.’” Kyles v. Whitley, 514 U.S. 419, 433–34
 9

(1995) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985) (opinion of Blackmun, J.)). A “probability” reaches the
level of “reasonable” when it is high enough to “undermine
confidence in the verdict.” Id. at 435; see United States v.
Bowie, 198 F.3d 905, 909 (D.C. Cir. 1999). The court does not
have to be convinced that it is “more likely than not that the
defendant would have been acquitted had the evidence been
disclosed.” Bowie, 198 F.3d at 909 (citing Kyles, 514 U.S. at
434).

Two additional aspects of the analysis deserve mention.
The first is that the Brady factors must be assessed count by
count. A Brady violation with respect to the defendant’s
conviction on one count does not necessarily affect his
conviction on any other count. See United States v. Oruche, 484
F.3d 590, 597 (D.C. Cir. 2007); United States v. Lloyd, 71 F.3d
408 (D.C. Cir. 1995). For each count, then, the court must
evaluate each of the three components of a Brady violation:
“The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

The second point is that there is some question in the
circuits about whether, in order to make out a Brady violation,
the undisclosed information must constitute admissible
evidence. See Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir.
2003) (en banc); cf. United States v. Derr, 990 F.2d 1330,
1335–36 (D.C. Cir. 1993). In Ellsworth, the First Circuit joined
several other circuits in holding that if the suppressed evidence,
although itself inadmissible, “would have led directly to material
admissible evidence” the defendant has a viable Brady claim.
333 F.3d at 5. In Johnson’s case, the district court indicated that
the undisclosed information would have been admissible.
 10

United States v. Johnson, No. 03-488, 2007 WL 666566, at *8
n.4 (D.D.C. Feb. 28, 2007) (“Mem. Op.”). The government
does not argue against this view and we shall consider it
conceded.1

The undisclosed information, obtained from a government
informant, was that Johnson’s cousin, Cinquan Blakney, owned
the heroin seized from 1138 Wahler Place, that he – Blakney –
said he was storing his heroin there, and that Blakney’s mother
told Johnson’s mother that Johnson “has to take his beef.” At
Johnson’s trial, the prosecutor offered the jury two evidentiary
theories for finding him guilty of the drug charges. The first
was that the drugs were his – that he owned them. The second
was that he was storing the drugs for someone else with the
intent to return them to that person.

The undisclosed evidence directly contradicted the
government’s first theory. As to the second theory, the district
court concluded that although the “evidence is helpful to
Johnson, it does not exculpate him.” By this the court meant
that Johnson was charged with possession, not ownership, and
that he could have been convicted of possession even if Blakney
owned the drugs. This is true, but not dispositive. Johnson’s
defense was that he did not own the drugs, that his relatives
regularly used the bedroom, that someone else must have placed
the drugs in storage there, and that he did not “exercise
dominion and control” over the drugs found there, Byfield, 928
F. 2d at 1166, even if he was near the drugs. See United States
v. Clark, 184 F.3d 858, 863 (D.C. Cir. 1999). The evidence
regarding his cousin Blakney’s ownership of the heroin

1
Circumstances have changed since Johnson’s first trial. Cf.
Ellsworth, 333 F.3d at 5–6. Blakney’s later plea of guilty, see infra p.
12, may have deprived him of a Fifth Amendment privilege not to
testify about his ownership of the heroin.
 11

bolstered Johnson’s defense. The jury would not have had to
speculate about whether the heroin belonged to some other
unnamed person. “Disclosure of [Blakney’s] statements would
have resulted in a markedly weaker case for the prosecution and
a markedly stronger one for the defense.” Kyles, 514 U.S. at
441. The government’s failure to disclose evidence establishing
Blakney’s ownership of the heroin therefore undermines our
confidence in Johnson’s conviction for possessing the heroin
with intent to distribute it. Johnson was entitled to assert the
stronger defense and we are not confident every juror would
have rejected it. See Cone v. Bell, 129 S. Ct. 1769, 1773 (2009).

The government insists that Johnson must have known who
owned the heroin. Thus, there was no Brady violation because
the Due Process Clause does not require the government to
disclose evidence already known to the defense. See Derr, 990
F.2d at 1335. The district court rejected this argument and so do
we. As the court pointed out, there was “no proof that Johnson
had been put on notice that Blakney had provided an admission
to a government informant” or that Johnson otherwise knew of
Blakney’s culpability. Mem. Op. at *9.

The government also cites a court of appeals opinion stating
that undisclosed evidence was not material under the Brady
standard because it “[did] not directly contradict the state's
evidence.” Apanovitch v. Houk, 466 F.3d 460, 482 (6th Cir.
2006). We do not believe this accurately reflects the state of the
law. In a later case, the Supreme Court indicated that although
undisclosed evidence “did not directly contradict [the
government witness’s] trial testimony,” it could be considered
Brady material because “it does place it in a different light.” See
Cone, 129 S. Ct. at 1784 n.17.

Although the Brady violation with respect to the heroin
charge entitles Johnson to a new trial on that count, it is not clear
 12

what impact we should attribute to Blakney’s admission with
respect to the crack cocaine charge (and hence the gun charge).
Developments after oral argument may eliminate our need to
make that assessment. At the court’s request, the government
supplied a copy of the grand jury’s indictment of Blakney and
a plea agreement the government later reached with him. The
indictment, returned August 23, 2006, charged Blakney with
multiple drug and gun offenses. Five of the counts charged
heroin, crack cocaine and gun offenses occurring “[o]n or about
August 21, 2003,” the date of the search of the townhouse at
1138 Wahler Place. Blakney pled guilty to a conspiracy count,
which named eight co-conspirators, not including Johnson, and
others known and unknown to the grand jury. In connection
with the plea agreement, the government submitted a proffer in
which Blakney admitted that he “utilized a home at 1138 Wahler
Place, S.E. . . . to store heroin and crack cocaine,” and that in a
search of those premises on August 21, 2003, the FBI
“recovered illegal contraband belonging to Cinquan Blakney,
including approximately a ½ kilogram of heroin, and about 150
grams of crack cocaine.” These were the drugs Johnson was
convicted of possessing with intent to distribute.2 (It may be
that Blakney also owned the gun recovered from outside 1138
Wahler Place; this is not entirely clear.) In a supplemental brief
filed in this court, the government reported that before
Blakney’s indictment another informant had revealed to the
government that Blakney owned the crack cocaine seized at
1138 Wahler Place. Whether this information came to the
government before Johnson’s trial cannot be determined from
the material before us.

The government, while discounting the significance of
Blakney’s indictment and plea, and the information provided by

2
Actually, the agents recovered 73 grams of crack cocaine
from 1138 Wahler Place on that date, not 150 grams.
 13

the second informant, suggests that we remand the case to the
district court to determine the impact of the newly disclosed
evidence. We agree with this disposition. Of course, if the
government had the information regarding Blakney’s ownership
of the crack cocaine at the time of Johnson’s trial, our analysis
regarding the heroin would apply and would lead to reversal of
Johnson’s crack cocaine conviction and the derivative gun
charge. If the district court finds that the government did not
possess the newly disclosed information at that time, the court
should proceed to determine whether a new trial on the crack
and firearm charges is nevertheless warranted. See Cone, 129
S. Ct. at 1786 & n.19.

* * *

For these reasons, Johnson’s conviction on the heroin
charge is reversed and remanded for a new trial. With respect
to his convictions on the crack cocaine and gun charge, the case
is remanded for further proceedings consistent with this opinion.

So Ordered.