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Media Alerts - United States of America v. Johnson - Ninth Circuit
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November 1, 2014
  United States of America v. Johnson - Ninth Circuit
Headline: Ninth Circuit panel affirms the convictions of Antoine Lamont Johnson and Michael Dennis Williams for armed robbery and murder.

Area of Law: Constitutional Law, Sixth Amendment right to confront witnesses, Fifth Amendment right to silence.

Issue(s) Presented: Does the "forfeiture exception" to the Confrontation Clause of the Sixth Amendment require that proof of the defendant's responsibility for the witness's absence be shown by only a preponderance of the evidence as provided by Federal Rule of Evidence 804(b)(6), or, in light of Crawford and its progeny, by clear and convincing evidence?

Was it proper for the trial court to simply give the jury limiting instructions for hearsay testimony admitted under the "forfeiture exception" to the Confrontation Clause, which was used against Johnson, instead of granting Williams's request for a separate trial?

Is mentioning a defendant's failure to present exculpatory evidence the same as commenting on a decision not to testify, thereby violating the Fifth Amendment's right to silence?

Brief Summary: On March 1, 2004, four assailants robbed an armored truck in South Central Los Angeles, killing one of the security guards. On June 19, 2007, appellants Antoine Johnson and Michael Williams were indicted by a grand jury for their involvement in the robbery and murder.

Several out-of-court statements made by an informant, Veronica Burgess, were introduced at trial. These statements positively identified Johnson as one of the assailants; however Burgess was less sure about Williams's involvement. Burgess was unavailable to testify as she had disappeared shortly before trial.

The Government presented evidence at the pretrial hearing that Johnson was responsible for Burgess's intimidation and disappearance. The court found there was sufficient evidence to support this inference and allowed Burgess's testimony to be introduced.

Johnson argued the trial court erred in admitting Burgess's testimony. The Confrontation Clause allows "testimonial" hearsay testimony by an unavailable witness to be admitted in evidence only when the defendant has had a prior opportunity to confront and cross-examine the witness. However, under the forfeiture exception, a defendant forfeits his right under the Confrontation Clause if it can be shown he intentionally acted to prevent the witness's availability. Johnson argued that under Thevis, a defendant only forfeits his right to confront a witness if this intentional misconduct can be proven by "clear and convincing evidence."

The panel held that, after Crawford, the Confrontation Clause no longer requires a reliability analysis in order to determine whether testimonial hearsay testimony against a defendant from an unavailable witness will be admissible. Since reliability of this hearsay testimony is no longer an issue, the clear and convincing evidence standard no longer applies. Further, when the Federal Rules of Evidence were amended in 1997 to include the forfeiture exception, the Advisory Committee adopted the preponderance of the evidence standard, noting "[t]he usual Rule 104(a) preponderance of the evidence standard has been adopted in light of the behavior the new Rule 804(b)(6) seeks to discourage."

Johnson further argued the Government violated his Fifth Amendment right to silence when, in closing, the prosecution commented that Johnson had failed to explain presence of his DNA on a wig that was purportedly worn by one of the assailants. The Court ruled that the prosecution's comments focused on Johnson's failure to present evidence, not his failure to testify..

Williams also argued that statements made by an unindicted co-conspirator were improperly admitted. The Court held they were properly admitted under the "statement against interest" exception to the Federal Rules of Evidence, Fed. R. Evid. 804(b)(3).

The court found no trial court errors, and affirmed the convictions of both Johnson and Williams.

Extended Summary: On March 1, 2004, four assailants ambushed an armored truck that was making a cash delivery to a Bank of America in South Central Los Angeles. During the robbery, one of the security guards was shot and killed. On June 19, 2007, appellants Antoine Johnson and Michael Williams, both of whom were affiliated with a group known as the Hoover Street Gang, were indicted by a grand jury for their involvement in the robbery and murder. The charges carried a possible penalty of death.

At trial, the government introduced several out-of-court statements made by an informant, Veronica Burgess. These statements form the basis for the Sixth Amendment issues on appeal.

Burgess claimed to the police she overheard several Hoover Street Gang members planning the heist. She identified Johnson from a photo spread as one of the participants. She later repeated this accusation in front of the grand jury. Burgess also identified Williams from the photo spread, but later confused him with a different individual. Burgess was to be an important witness but shortly before trial the Government could no longer locate her.

At the pretrial hearing, the Government presented evidence showing Burgess had received death threats starting the day after defense attorneys were permitted to disclose the identity of the witnesses to the defendants. On that same day, Johnson's counsel had visited him in prison. Burgess's live-in boyfriend, Patrick Smith, told police the Hoovers had placed a "hit" on Burgess for "snitching on a boy fighting death." Smith also told police the "mother of one of the guys in jail looking at death" had contacted Smith, and was trying to find Burgess. Burgess then disappeared.

The Government claimed at the pretrial hearing that there was sufficient evidence to infer the "boy fighting death" was Johnson, and Johnson had informed members of the Hoover gang that Burgess was set to testify against him. The Government presented testimony from a prison guard that inmates in the "Special Housing Unit," where Johnson was confined, routinely communicated with other inmates by speaking through the air vents and passing written messages through the plumbing system. The Government contended Johnson had both the means and the motive to threaten Burgess. Although Burgess had consistently identified Johnson, she had failed to do so with Williams. While Burgess had identified other individuals besides Johnson, only Johnson was facing the death penalty. Finally, at the pretrial hearing, the Government was able to establish Johnson's mother was involved with a known Hoover gang member, suggesting not only that Johnson had close ties to the gang, but also that Johnson's mother was the woman looking for Burgess.

Johnson denied that he threatened Burgess. His counsel insisted Johnson had no way of communicating with Burgess or anyone on the outside, and other suspects could have learned of Burgess's identity. Johnson's private investigator testified that Burgess had recanted her identification of Johnson and claimed Burgess told the investigator she only implicated Johnson to collect reward money.

At the hearing, it was found the Government had presented sufficient evidence to establish Johnson was responsible for Burgess's absence. Johnson argued that this fact had not been established by clear and convincing evidence and Burgess's prior testimony should therefore not be admitted. But the judge at the hearing ruled that the preponderance standard of Fed. R. Evid. Rule 804 applied and admitted Burgess's prior testimony.

The evidence presented at trial was substantial. Testimony was presented from Jamal Dunagan, another Hoover gang member, to the effect that both Johnson and Williams had confessed to the crime. Dunagan also testified about statements made to Dunagan by Derrick Maddox, an uncharged co-conspirator. Maddox gave Dunagan a detailed account of the crime, including the extensive involvement of Johnson and Williams. DNA evidence was introduced placing both Johnson and Williams at the crime scene. Both defendants were convicted for conspiracy, robbery, and discharging a firearm causing death. They each received a life sentence.

The Confrontation Clause of the Sixth Amendment bars the admissibility of testimonial hearsay when the defendant has not had an opportunity to confront and cross-examine the declarant, subject to certain limited exceptions. Crawford, 541 U.S. 36, 59 (2004). Burgess's statements were testimonial because they were given in front of a grand jury and to the police. But a defendant may forfeit his confrontation right if the defendant is responsible for the witness's unavailability.

On appeal, Johnson argued that introduction of Burgess's out-of-court statements violated his confrontation rights because the government failed to prove by clear and convincing evidence that he intentionally caused Burgess's absence. Johnson relied upon United States v. Thevis, which held that the clear and convincing standard generally applies whenever the reliability of evidence is at issue and should therefore apply in the forfeiture context as well.

The Ninth Circuit panel ruled that, after Crawford, the clear and convincing standard is no longer applicable because "reliability is no longer the touchstone of confrontation analysis." The panel noted that "the forfeiture exception is consistent with the Confrontation Clause, not because it is a means for determining whether hearsay is reliable, but because it is an equitable doctrine designed to prevent defendants from profiting from their own wrongdoing."

Therefore, the trial court did not err in concluding the Government had produced sufficient evidence to demonstrate Johnson had intentionally prevented Burgess from testifying.

Johnson also claimed the prosecution infringed his right to silence by commenting, in its closing argument, on Johnson's failure to explain the presence of his DNA on a wig purportedly worn by one of the assailants. Notwithstanding that "it is well established that a defendant's right to silence prohibits the Government from commenting on his or her decision not to testify," the panel held the Government is permitted to "call attention to the defendant's failure to present exculpatory evidence more generally." The Court reasoned that the government had focused on Johnson's failure to present evidence, not on his failure to testify, observing that Johnson could have rebutted the Government's DNA evidence in other ways besides his own testimony, such as by presenting expert witness testimony.

Williams also argued the district court improperly admitted inculpatory hearsay statements of Derrick Maddox, who was involved in this crime but uncharged. However, the court found the statements were properly admitted under the "statement against interest" exception to the hearsay rule. Fed. R. Evid. 804(b)(3).

The convictions of Johnson and Williams were affirmed.

For the full opinion:

Panel: Mary M. Schroeder and Richard R. Clifton, Circuit Judges, and John R. Tunheim, District Judge.

Date of Issued Opinion: September 12, 2014

Docket Number: 10-50401

Decided: Affirmed

Case Alert Author: Michael Zatlin

Counsel: Benjamin L. Coleman, Coleman & Balogh, LLP, San Diego, California; Ethan A. Balogh (argued), Coleman & Balogh LLP, San Francisco, California, for Defendant-Appellant Antoine Lamont Johnson. John C. Lemon (argued), San Diego, California, for Defendant-Appellant Michael Dennis Williams. Andre Birotte, United States Attorney, Robert E. Dugdale, Karen I. Meyer, and Elizabeth Yang, (argued), Assistant United States Attorneys, Los Angeles, California, for Plaintiff-Appellee United States of America

Author of Opinion: Schroeder, Circuit Judge.

Case Alert Circuit Supervisor: Professor Glenn Koppel

Edited: 04/07/2015 at 04:06 PM by Media Alerts Moderator

    Posted By: Glenn Koppel @ 11/01/2014 04:37 PM     9th Circuit  

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