NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 20-3138 ________________

UNITED STATES OF AMERICA

v.

ANTHONY JOHNSON, Appellant _____________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-17-cr-00123-001) District Judge: Honorable Sylvia H. Rambo ________________

Submitted Pursuant to Third Circuit L.A.R. 34.1 on October 5, 2021

Before: SHWARTZ, RESTREPO, and SCIRICA, Circuit Judges.

(Opinion Filed: November 19, 2021)

________________

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge

Anthony Johnson was convicted of Hobbs Act Robbery under

(Count I) and Using, Carrying, Brandishing and Discharging a Firearm During and in

Relation to a Crime of Violence under

(c)(1)(A) (Count II), as well as

aiding and abetting on both Counts. Johnson appeals his conviction, contending the

District Court’s decision to admit his statement to the police regarding his “history of

doing stick-ups” violated Federal Rules of Evidence 403 and 404(b). Johnson claims the

statement’s probative value was substantially outweighed by its prejudicial effect and the

Government sought to introduce the statement for the sole purpose of proving his

propensity to commit the crime. Because the court properly admitted the statement, we

will affirm Johnson’s conviction and sentence.

I.

On January 9, 2016, police were dispatched to a shooting at the 300 block of

Girard Avenue, York, Pennsylvania. Upon arriving at 325 Girard Avenue, an officer

observed an 18-year-old male, Shyhiem McDowell, lying in the backyard with a gunshot

wound to the left side of his head. McDowell was brought to York Hospital where he

was treated for a life-threatening head wound.

A surveillance video from a homeowner in the area showed Johnson, 16-year-old

Hydiea Banks, and McDowell meeting outside Pak’s convenience store and walking

down Euclid Alley toward Girard Avenue. At the time, Johnson was Banks’ mother’s

live-in-boyfriend. Johnson, Banks, and McDowell turned onto Girard Avenue and

entered a breezeway between two houses on Girard Avenue. Shortly after they entered,

2 the surveillance video showed Johnson exiting the breezeway and running down Euclid

Alley. Banks was then observed running in the same direction as Johnson.

Police detectives interviewed Johnson on January 11, 2016. Johnson stated he

thought the purpose of the meeting with McDowell was to purchase “bud” (marijuana).

He claimed that Banks kept her hands in her pocket while discussing the bud purchase

and never brandished a gun while he was in the breezeway. Johnson insisted he left the

breezeway because he felt “something [was] just not right.” Gov. Exh. 50.

Later in the same interview, Johnson admitted the purpose of the meeting was to

rob McDowell. Johnson told detectives that on the morning of January 9, 2016, Banks

asked him to help her rob someone who she knew carried cash and drugs. Johnson

agreed to join her in exchange for money. Johnson initially confessed to searching

McDowell while in the breezeway, but later claimed only Banks searched McDowell.

Johnson further claimed he left the breezeway when Banks told McDowell “you already

know what this is,” referring to the robbery. Johnson maintained he never saw Banks

brandish a gun.

Banks was arrested on January 13, 2016. During her arrest, officers recovered the

pistol used in the McDowell shooting.

During a second interview with police on January 14, 2016, Johnson repeated his

claim that he never saw a gun while in the breezeway. Later in the interview, Johnson

admitted he saw Banks holding the gun but insisted he fled before she fired it because he

was “scared to death.” Detectives told Johnson they did not believe his story because he

would not have been scared if he intended to assist with the robbery. Johnson responded

3 “It’s just – I am telling you. Look, my job is over. I don’t see nothing. Like I said, from

my history of doing stick-ups, get the f… out of here. I am out. I am out. There is no

need for me to stay here. You got this secured.” Gov. Exh. 51. At the time of the

interview, McDowell was lying in a coma, so detectives only had Johnson’s version of

the events.

McDowell spent several months in a coma but eventually recovered. At trial,

McDowell testified that after entering the breezeway he bent down to tie his shoe, at

which time Banks pointed a gun at him and stated, “I need everything.” When

McDowell refused to give them his property, Johnson attempted to remove McDowell’s

LA Lakers chain from his neck but was unsuccessful. McDowell further testified that,

after attempting to remove the chain, Johnson told Banks “you know what to do then”

and exited the breezeway. After Johnson left, Banks shot McDowell in the head.

Johnson did not testify at trial, but the Government played the audio and video

recordings of Johnson’s two interviews with the police. The second interview included

Johnson’s statement “from my history of doing stick-ups.” The jury found Johnson

guilty under

and 2 and

(c)(1)(A) and 2. On February

20, 2020, Johnson was sentenced to 110 months in prison for Count 1 and 120 months in

prison for Count 2, to run consecutively.

II.1

1 The trial court had jurisdiction under

. We have jurisdiction under

and

.

4 Johnson seeks to vacate his sentence and obtain a new trial. He contends the court

abused its discretion by admitting his statement he had a “history of doing stick-ups.”

We will affirm the court’s decision to admit the statement under Federal Rules of

Evidence 403 and 404(b).2

A.

Rule 404(b) bars evidence of a crime or other act “to prove a person’s character in

order to show that on a particular occasion the person acted in accordance with the

character.” Fed. R. Evid. 404(b)(1). The evidence, however, “may be admissible for

another purpose.” Fed. R. Evid. 404(b)(2). “The threshold inquiry a court must make

before admitting similar acts evidence under Rule 404(b) is whether that evidence is

probative of a material issue other than character.” Huddleston v. United States,

(1988). Rule 404(b) provides a list of permissible uses, but this list is not

exclusive. United States v. Sampson,

(3d Cir. 1992). Moreover, Rule

404(b) favors admissibility.

2 We review the court’s decision to admit evidence for abuse of discretion. United States v. Higdon,

(3d Cir. 2011); Complaint of Consolidation Coal Co.,

(3d Cir. 1997). We exercise plenary review over rulings interpreting the Federal Rules of Evidence. United States v. Green,

(3d Cir. 2010). Accordingly, “[t]o the extent that our review of the district court's Rule 404(b) ruling requires us to interpret the rules of evidence our review is plenary.” United States v. Lee,

(3d Cir. 2010) (quoting United States v. Daraio,

(3d Cir. 2006)). But “if the evidence could be admissible in some circumstances, we review the district court's determination allowing it to be admitted for abuse of discretion.” United States v. Cruz,

(3d Cir. 2003). Our decision would be the same even if we exercised plenary review.

5 We apply a four-part test to determine the admissibility of evidence of prior bad

acts. United States v. Cruz,

(3d Cir. 2003). The evidence must: (1)

have a proper evidentiary purpose under Rule 404(b); (2) be relevant to that purpose

under Rule 402; (3) pass the balancing test under Rule 403; and (4) be accompanied by a

limiting instruction, upon request. Huddleston,

; United States v.

Green,

(3d Cir. 2010); Sampson,

. Johnson contests

only the first and third prongs.

To prove a proper evidentiary purpose, the government must “clearly articulate

how that evidence fits into a chain of logical inferences” without inferring the defendant

has a propensity to commit the crime. Cruz,

(quoting United States v.

Mastrangelo,

(3d Cir. 1999)). But the government’s burden is not

onerous, and we require only “some showing of a proper relevance.” Sampson,

.

Johnson contends the statement lacked a proper evidentiary purpose because the

government’s true purpose in seeking to admit his statement was to prove his bad

character and propensity to commit the crime. According to Johnson, because his

statement served to substantiate his defense that he ran away before Banks shot

McDowell, there was no logical reason, other than propensity, for the Government to use

his statement.

Johnson claimed he left the scene of the robbery before his co-conspirator, Banks,

shot McDowell in the head, and that he abandoned his involvement in the crime when he

thought something bad was about to take place. The crux of Johnson’s defense was to

6 distance himself from the near fatal shooting by trying to convince the police, and then

the jury, that he had nothing to do with the shooting. As part of his defense, Johnson told

police he had a “history of doing stick-ups” and knew when to leave a robbery depending

on how events transpired. This was relevant to the shooting and probative to providing

context and background to the investigation and factual development of the case.

The Government asserted Johnson’s statement would help the jury better

understand his involvement in the crime and would also explain the detectives’

skepticism of Johnson’s claims, giving context to their decision to move forward with the

investigation and charges. Providing the finder of fact with helpful background

information meets the proper purpose requirement under Rule 404(b). Green,

. Accordingly, because this evidence provided helpful context to the case, the use of

Johnson’s statement served a proper evidentiary purpose under Rule 404(b).

Johnson further contends the statement was unfairly prejudicial under Rule 403,

both as part of his Rule 404(b) argument and as an independent ground for overturning

the trial court’s decision to admit the statement. Rule 403 requires a balancing test and

permits the court to “exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. The trial court has

broad discretion over a Rule 403 judgment and is in the best position to assess the extent

of the prejudice caused by specific evidence. See Cruz,

. Therefore,

“[w]hen a court engages in a Rule 403 balancing and articulates on the record a rational

explanation, we will rarely disturb its ruling.” Sampson,

. “Where,

however, the court failed to perform this analysis, or where its rationale is not apparent

7 from the record, there is no way to review its discretion.”

“In that instance, we may

review the record and conduct the obligatory weighing ourselves.” United States v.

Sriyuth,

, 745 n.9 (3d Cir. 1996).

There is sufficient evidence to find the court engaged in a Rule 403 analysis. The

trial judge heard arguments from both sides regarding possible prejudice and rejected

Defendant’s argument that Johnson’s statement was unfairly prejudicial. The court’s

decision to allow the statement after engaging with the parties in this discussion

implicitly demonstrates its rationale under a Rule 403 balancing test.

The trial judge properly concluded the statement’s probative value was not

substantially outweighed by a danger of unfair prejudice against Defendant. The

statement served as Johnson’s attempt to clarify to the detectives why he voluntarily

participated in the robbery yet fled when Banks produced a gun. Although Johnson did

not testify at trial, this explanation was an integral part of his defense that he was not

involved in the shooting of McDowell. Indeed, the statement also shed light on

Johnson’s mens rea. See United States v. Repak,

(3d Cir. 2017)

(holding that evidence of mens rea had “significant” probative value when the defendant

disputed that element). Offering the statement in Johnson’s own words was relevant to

discredit his defense that he did not participate in the shooting. Any prejudice from his

statement about having done other stick-ups was not unfair because Johnson himself

offered the statement to law enforcement as an explanation to further his own narrative of

why he was not guilty of attempted murder. Accordingly, it was not error to admit the

statement.

8 B.

Even if admitting the statement was in error, it did not violate Johnson's

substantial rights. A Rule 404(b) violation is subject to harmless error review. Fed. R.

Evid. 103. An error is harmless where it does not violate a party’s substantial rights, such

as where there is “a ‘high probability’ that the discretionary error did not contribute to the

verdict.” Langbord v. U.S. Dep't of Treasury,

(3d Cir. 2016) (quoting

McQueeney v. Wilmington Tr. Co.,

, 924–25 (3d Cir. 1985)). There is ample

evidence supporting Johnson’s conviction that does not implicate Rule 404(b). Such

evidence includes Johnson’s two videotaped interviews, including his admission that he

and Banks planned to rob McDowell, the undisputed fact that Banks shot McDowell, and

McDowell’s testimony against Johnson. As we have noted, McDowell testified that

Johnson attempted to remove McDowell’s jewelry, was present when Banks brandished

the gun, and told Banks “you know what to do then” after McDowell refused to give

them his property. It is highly probable the admission of the statement did not contribute

to the outcome of the trial, even if it was erroneous.

III.

For the foregoing reasons, we will affirm Johnson’s conviction.

9