15‐2367‐cr United States v. Johnson

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of August, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 15‐2367‐cr

RODNEY JOHNSON, AKA Rodney T. Hibbert, AKA Toree Johnson, Defendant‐Appellant,

DEREK ANDRE ENGLISH, RONALD ANDERSON, BRIAN McCLEOD, AKA Slim, AKA Brian Connelly, AKA Joseph King, AKA Brian Conley, AKA John A. Conley, SHAWN WILLIAMS, AKA William Shawn, JASON WILLIAMS, DERRICK GRANT, JAMES J. ROSEMOND, Defendants.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: THOMAS MCKAY, Adam S. Hickey, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

FOR DEFENDANT‐APPELLANT: DONALD J. YANNELLA, Law Office of Donald J. Yannella, New York, NY.

Appeal from the United States District Court for the Southern District of

New York (McMahon, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Rodney Johnson appeals from a judgment entered

July 16, 2015 in the United States District Court for the Southern District of New York,

following a four‐week jury trial, convicting him on Counts Five, Six, and Seven of the

Indictment, which charged him with narcotics and related firearms violations. The jury

was unable to reach a unanimous verdict as to Counts One through Four of the

Indictment, which charged Johnson and a co‐defendant, James Rosemond, with

murder‐for‐hire and related crimes. The district court declared a mistrial as to those

counts.

On July 15, 2015, the district court sentenced Johnson principally to the

mandatory minimum term of 25 yearsʹ imprisonment on the narcotics convictions. We 2

assume the partiesʹ familiarity with the underlying facts, the procedural history of this

case, and the issues on appeal.

On appeal, Johnson makes six arguments: (1) the district court erred by

denying his motion for a severance and admitting ʺan enormous volume of uncharged

crime evidence,ʺ Appellantʹs Br. at 9; (2) the district court erred by taking a partial

verdict from the jury; (3) the governmentʹs rebuttal summation deprived him of a fair

trial; (4) the district court erred by failing to instruct the jury that it was required to

make a unanimous finding as to the particular firearm that was used, carried, or

possessed in connection with each of the firearms counts; (5) the district court erred by

denying his motion to suppress physical evidence; and (6) the district court erred by

denying Johnsonʹs request for discovery into alleged jury tampering.

I. The Severance Motion

Johnson argues that the district court erred by denying his motion to sever

his trial from Rosemondʹs because he was prejudiced by the introduction of evidence

that was inadmissible against him. Rosemond, the owner of a music management

business and the leader of a narcotics distribution organization, was involved in an

ongoing violent feud with a rival music organization that spanned many years. The

government alleged at trial that Rosemond hired individuals to murder Lowell Fletcher

and that Johnson, alleged to be a key associate of Rosemond, was involved as a backup

to the shooter. The district court admitted, over Johnsonʹs objection, evidence of violent

3

acts committed by or at the direction of Rosemond against the rival music organization

as part of the feud, including acts before Johnsonʹs involvement, to provide background

and context for the murder‐for‐hire conspiracy.

We review a district courtʹs decision to admit other crimes evidence under

Federal Rule of Evidence 404(b) for abuse of discretion. United States v. Langford,

(2d Cir. 1993). We also review a district courtʹs denial of a motion to sever

for abuse of discretion, and such a decision ʺwill not be overturned unless the

defendant demonstrates that the failure to sever caused him substantial prejudice in the

form of a miscarriage of justice.ʺ United States v. Page,

(2d Cir. 2011)

(quoting United States v. Blakney,

(2d Cir. 1991)).

The district court did not abuse its discretion. Background evidence is

admissible if it is relevant ʺto inform the jury of the background of the conspiracy

charged, to complete the story of the crimes charged, and to help explain to the jury

how the illegal relationship between the participants in the crime developed.ʺ United

States v. Williams,

, 33‐34 (2d Cir. 2000) (quoting United States v. Pitre,

(2d Cir. 1992)). It was within the district courtʹs discretion to permit

such evidence under Rule 404(b) to ʺhelp explain to the jury how the illegal relationship

between the participants in the crime developed.ʺ Special App. at 35‐36 (internal

quotation marks and citations omitted). Moreover, as the district court observed, the

evidence was not unfairly prejudicial because it was not any more sensational or

4

disturbing than evidence of the murder with which Johnson was charged. Because the

evidence was admissible against Johnson, there was no reason to sever Johnsonʹs trial

from Rosemondʹs.

Even if the district court had abused its discretion in admitting the

evidence against Johnson, any error was harmless. Johnson was found guilty only on

the narcotics‐related charges, the prior acts evidence did not relate to those charges, and

the evidence of Johnsonʹs guilt with respect to the narcotics‐related charges was

overwhelming. Additionally, the fact that the jury hung on the murder‐related charges

but found Johnson guilty of the narcotics‐related charges demonstrates that it

understood that the prior acts evidence was relevant only to deciding whether the

conspiracy charged in Count 1 existed.

II. The Partial Verdict

The district court took a verdict from the jury on Counts Five, Six, and

Seven, which charged Johnson only, on the second day of its deliberations. The district

court did so after the jury sent back a note that stated:

We can not [sic] come to an agreement on the First 4 counts on both defendants. But we have come to an agreement on counts 5 to 7 on Mr. Johnson. And that will not change.

App. at 980. The word ʺnotʺ was underlined three times.

The jury deliberated on

the remaining counts for two more days before the district court declared a mistrial.

Johnson contends that the district court erred by taking a partial verdict from the jury.

5

We review a district courtʹs decision to take a partial verdict for abuse of

discretion. See Kerman v. City of New York,

, 242 n.9 (2d Cir. 2001). In a

multi‐defendant trial, the jury is entitled to return a verdict ʺat any time in its

deliberationsʺ as to one or more defendants. Fed. R. Crim. P. 31(b)(1); see United States v.

Levasseur,

(2d Cir. 1987).

ʺ[J]uries ʹshould be neither encouraged nor discouraged to return a partial

verdict, but should understand their options, especially when they have reached a stage

in their deliberations at which they may well wish to report a partial verdict as to some

counts or some defendants.ʹʺ United States v. Dolah,

(2d Cir. 2001)

(quoting United States v. DiLapi,

(2d Cir. 1981)), abrogated on other

grounds by Crawford v. Washington,

(2004). The district court did not instruct

the jury ʺexplicitly that it had the option either to report partial verdicts or to wait until

deliberations were concluded.ʺ

ʺAlthough it would have been preferableʺ and

advisable to provide such an instruction, the district courtʹs failure to do so was not an

abuse of discretion here where the jury ʺclearly expressedʺ that it had reached a final

verdict, and it gave no subsequent indication that it wished to reconsider its partial

verdict.

III. The Governmentʹs Rebuttal Summation

Johnson argues that he was denied a fair trial because the prosecutorʹs

rebuttal summation suggested to the jury that it could base its verdict, with respect to

6

the narcotics related charges, on defense counselʹs summation rather than on the

evidence. To overturn his conviction on this ground, Johnson ʺmust show not simply

that a particular summation comment was improper, but that the comment, viewed

against the entire argument to the jury, and in the context of the entire trial, was so

severe and significant as to have substantially prejudiced him, such that the resulting

conviction [was] a denial of due process.ʺ United States v. Williams,

(2d

Cir. 2012) (alteration in original) (internal quotation marks omitted).

Johnson has not met his burden. The prosecutorʹs comment was not

improper because it merely responded to defense counselʹs theory of the evidence. See

United States v. Marrale,

(2d Cir. 1982) (ʺ[A] prosecutor is ordinarily

entitled to respond to the evidence, issues, and hypotheses propounded by the

defense.ʺ). Moreover, the jury was repeatedly reminded by the government and the

district court, before, during, and after summations, that statements and arguments by

lawyers were not evidence. Finally, viewing the comment in the context of the entire

trial and the overwhelming evidence with respect to Counts Five through Seven,

Johnson cannot show substantial prejudice.

IV. The Firearm Instruction

Johnson argues that the district court should have instructed the jury that

it had to make a unanimous finding as to the particular firearm that was used, carried,

or possessed in connection with each of the firearms counts. Courts that have ruled on

7

this issue have uniformly held that the jury need not be unanimous as to a specific gun

that a defendant possessed, used, or carried in violating § 924(c). See United States v.

Renteria,

, 1255‐56 (10th Cir. 2013); United States v. Perry,

(4th Cir. 2009); United States v. Wise,

, 214‐15 (3d Cir. 2008); United States v.

Hernandez‐Albino,

(1st Cir. 1999); United States v. Morin,

,

1353‐54 (11th Cir. 1994); United States v. Correa‐Ventura,

(5th Cir. 1993).1

The district court gave the appropriate standard unanimity instruction.

Accordingly, the district court did not commit reversible error. See United States v.

Dupre,

(2d Cir. 2006) (in case where multiple predicates for guilt were

offered for a single count, holding that even where a specific unanimity instruction

would be preferable, a general unanimity instruction is sufficient).

V. The Motion to Suppress

Johnson contends that the district court erred by denying his motion to

suppress the physical evidence found in the Jeep and stash house. We review the

district courtʹs ʺfindings of fact for clear error, viewing the evidence in the light most

favorable to the government, and we apply de novo review to the district courtʹs

conclusions of law.ʺ United States v. Rommy,

(2d Cir. 2007).

1 We have not addressed this issue in a published opinion, but we have noted in a summary order that ʺ[w]e have never required that a jury make a unanimous finding as to the gun used to support a § 924(c) conviction, particularly where the indictment did not charge that specific guns were used.ʺ United States v. Lofton, 275 F. Appʹx 30, 33 (2d Cir. 2008). 8

First, there was probable cause to search the Jeep based on the statements

made by Johnsonʹs co‐conspirator Bryan James and the observations made by the Drug

Enforcement Agency agents. ʺ[W]hen the police possess probable cause to believe a

vehicle contains contraband, ʹthey may conduct a warrantless search of every part of the

vehicle and its contents, including all containers and packages in the vehicle.ʹʺ United

States v. Gagnon,

(2d Cir. 2004) (quoting United States v. Cruz,

(2d Cir. 1987)). James was arrested shortly after attempting to pick up a package

from the UPS Store that he believed contained five kilograms of cocaine. After his

arrest, James told an agent that someone driving a Jeep had accompanied him to pick

up the package, that the Jeep was parked directly in front of Jamesʹs car, and that the

person had probably seen Jamesʹs arrest from the Starbucks coffee shop across the

street. The agent relayed this information to another agent who confirmed that there

was a Jeep where James said it would be, there was a Starbucks across the street, and

there was a package in the back seat of the Jeep similar in size and shape to the one

James had attempted to pick up from the UPS Store. The agents then spoke to a tow

truck driver who told the agents that the owner of the car had hired him to tow the car

from the location. Finally, James told another agent that there was a trap in the Jeep

that contained a gun. The detailed information provided by James, which was

corroborated by the agentsʹ own observations, provided probable cause to seize and

search the Jeep. See id. at 236 (noting ʺcriminals caught red‐handed may be reliable

9

sources of informationʺ); Illinois v. Gates,

(1983) (agentʹs independent

corroboration contributed to legitimate belief that informantʹs information was true).

Second, there was no error in the district courtʹs decision to credit the

agentsʹ testimony that they did not search the stash house or seize any evidence therein

until after they obtained a search warrant. A district courtʹs evaluation of a testifying

agentʹs credibility is entitled to ʺspecial deference.ʺ United States v. Lucky,

(2d Cir. 2009).

VI. Alleged Jury Tampering

Johnson argues that the district court erred by denying his motion for

further discovery related to allegations of juror tampering.2 ʺ[A] trial court is required

to hold a post‐trial jury hearing only when . . . there is clear, strong, substantial and

incontrovertible evidence, that a specific, nonspeculative impropriety has occurred

which could have prejudiced the trial of a defendant.ʺ United States v. Sun Myung Moon,

(2d Cir. 1983) (internal citation omitted). The inquiry ends ʺwhen

and if it becomes apparent that the . . . reasonable grounds to suspect prejudicial jury

impropriety do not exist.ʺ

After the trial, investigators from the United States Attorneyʹs Office

interviewed a juror to determine whether the juror had been subjected to tampering.

The juror denied any tampering and the investigators found the jurorʹs testimony to be

2 The parties submitted redacted briefs on this issue. Because we limit our discussion to general matters only, we see no need for a redacted summary order. 10

credible. The government closed the investigation and informed defense counsel of the

foregoing events. The district court then brought the juror in for additional questioning

with counsel present, pursuant to the partiesʹ joint request. Again, the juror denied that

anyone attempted to contact or influence the juror.

The district court denied Johnsonʹs requests for further investigation and

for additional discovery, finding that the juror ʺemphatically and credibly denied

having been tampered with in any way.ʺ Confidential App. at 103. The district court

also found that there was no need to expand the investigation into other jurors because

there was no evidence of any effort to influence any other juror. The district court did

not err in determining that the one juror in question was the only juror who could have

plausibly fit the description, and it did not abuse its discretion in concluding that

further investigation and discovery were unwarranted.

* * *

We have considered Johnsonʹs remaining arguments and find them to be

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

11