2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-22-2011

USA v. Anthony Johnson, Jr.

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3171

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NOT PRECEDENTIAL 

UNITED STATE COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-3171

_____________

UNITED STATES OF AMERICA

v.

ANTHONY JOHNSON, JR.,

 Appellant

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2:08-cr-00285)

District Judge: Hon. Gustave Diamond

_____________

Submitted Under Third Circuit LAR 34.1(a)

October 26, 2011

Before: FISHER, VANASKIE and ROTH Circuit Judges

(Filed: November 22, 2011)

_____________

OPINION

_____________

VANASKIE, Circuit Judge.

Anthony Johnson, Jr., appeals his conviction on two counts of possession with 

intent to deliver more than five grams of crack cocaine in violation of 21 U.S.C §

841(a)(1) and § 841(b)(1)(B)(iii), and one count of possessing a firearm “in relation to” 

and “in furtherance” of a drug trafficking offense in violation of 18 U.S.C. § 924(c). 
2

Johnson contends that the evidence is insufficient to sustain a conviction on any of the

three counts. Johnson also contends the District Court incorrectly denied his motion to 

suppress evidence seized from his person and did not properly instruct the jury regarding 

the elements of a violation of 18 U.S.C. § 924(c). We reject these arguments and will 

affirm. 

I.

We write primarily for the parties, who are familiar with the facts and procedural 

history of this case. Accordingly, we will relate only those facts necessary to our 

analysis.

Aliquippa Police Sergeant Robert Sealock was on routine patrol with another 

officer in a marked vehicle on August 23, 2007 at about 12:20 a.m., when he initiated a 

traffic stop of a Buick sedan being driven by Johnson. The Buick had dark-tinted 

windows in violation of 75 Pa. C.S. § 4524(e). Loud music was also coming from the 

vehicle.

1

As Sergeant Sealock approached the car, he observed Johnson through the open 

driver’s window leaning toward the passenger side of the vehicle. When Sergeant 

Sealock addressed him, Johnson appeared nervous, and was sweating and stuttering. 

Sealock recognized Johnson based upon prior encounters with him, and was aware that 

Johnson had been involved in several incidents involving firearms and that Johnson had 

 

 1 Johnson was charged in state court with disorderly conduct because of the loud 

music and with violating § 4524(e) of the Pennsylvania Motor Vehicle Code, which 

prohibits the operation of a vehicle with “any sun screening device or other material 

which does not permit a person to see or view the inside of the vehicle through the 

windshield, side wing or side window of the vehicle.” 75 Pa. C.S. § 4524(e).
3

been associated with drug traffickers. Sealock then observed an open box of plastic 

sandwich baggies inside the car. Based on his training and experience, Sealock knew that 

sandwich baggies are sometimes used to package narcotics.

Sergeant Sealock asked Johnson to step out of the car. Upon conducting a patdown of Johnson’s outer clothing, Sealock felt a large bulge in Johnson’s right pocket, 

which, based on his experience, felt like crack cocaine. He retrieved a sandwich baggie 

from Johnson’s right pocket and placed him under arrest. Sealock opened the baggie and 

counted eighty-seven individually-wrapped rocks. The eighty-seven rocks weighed 8.2 

grams and were confirmed to be crack cocaine by the Pennsylvania Police Crime Lab. 

Sealock also found a cell phone and $160 on Johnson. The Buick was inventoried and no 

drug use items, such as crack pipes, were found in the car or on Johnson’s person.

Johnson was stopped by Sergeant Sealock for a second time on March 5, 2008. 

Sealock, while responding to a call for back-up on an unrelated traffic stop, observed an 

Oldsmobile Alero pass a pick-up truck in a no-passing zone. Sealock activated his lights 

and siren to pass the Alero so he could proceed to the back-up site. The Alero did not

move over to allow Sealock to pass. Instead, the Alero accelerated, traveling 

approximately 50 miles per hour in a 25 mile per hour speed zone while also speeding 

through a stop sign. The Alero eventually pulled over and Sealock nudged it with his 

police car. Johnson was driving the Alero and was the lone occupant of the vehicle.

Johnson jumped out of the Alero and proceeded toward the middle of the road. Sealock 

caught Johnson and placed him under arrest. Sealock patted Johnson down and found 

three cell phones.
4

Officer Eric McPhilomy arrived on the scene and informed Sealock that he had 

observed crack cocaine inside the Alero. Sealock then looked inside the Alero with a 

flashlight and observed a piece of suspected crack cocaine inside a plastic baggie on the 

floor in front of the driver’s seat. Sealock and McPhilomy took photographs of the scene 

and then had the Alero towed to a garage.

A search of the Alero on the afternoon of March 5, 2008, pursuant to a warrant 

resulted in the discovery of crack cocaine in a sandwich baggie and a handgun. The 

weapon was found under the driver’s seat, with the handle facing towards the front of the 

car, in close proximity to the baggie of crack cocaine.2

On July 30, 2008, a grand jury in the Western District of Pennsylvania returned a 

three-count Superseding Indictment charging Johnson with two counts of possession with 

intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. §§ 

841(a)(1) and 841(b)(1)(B)(iii) (Counts One and Two), and carrying a firearm in 

furtherance of and in relation to a drug trafficking crime in violation of 18 U.S.C. § 

924(c) (Count Three). Johnson filed a Motion to Suppress Evidence, and a hearing was 

The handgun had been reported 

as stolen from a private residence on February 21, 2007, and is a firearm as defined by 18 

U.S.C. § 921(a). A live magazine was inside the firearm with one round inside the 

chamber, operable and ready to fire. Johnson did not have a license to carry a firearm or 

a valid sportsman’s firearms permit under Pennsylvania law.

 2 It was subsequently learned that the owner of the Alero was Johnson’s girlfriend, 

Lakeya Whatley. Ms. Whatley had been driven to the hospital in the Alero by Johnson 

on March 4, 2008, where she delivered a baby. Johnson had possession of the Alero 

throughout March 5, 2008. Ms. Whatley denied ownership of the crack and the firearm 

found in her car. 
5

held on December 1, 2009. By Opinion and Order filed on January 27, 2010, the District 

Court denied Johnson’s Motion to Suppress Evidence. Johnson was tried by a jury 

beginning on March 9, 2010, and found guilty on all counts on March 11, 2010. On July 

14, 2010, the District Court sentenced Johnson to a 120-month term of imprisonment, 

consisting of 60 months on Counts One and Two plus a consecutive 60 months to be 

served on Count Three. 

II.

We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a) and 28 

U.S.C. § 1291. We will first address Johnson’s challenge to the sufficiency of evidence 

to support his convictions. 

A.

Johnson moved for judgment of acquittal at the close of the Government’s case 

and at the close of testimony. The District Court denied the motion. When a sufficiency 

of evidence challenge has first been made in the district court, we exercise plenary review 

on appeal and ask “whether there is substantial evidence that, when viewed in the light 

most favorable to the government, would allow a rational trier of fact to convict.” United 

States v. Bornman, 559 F.3d 150, 152 (3d Cir. 2009) (quoting United States v. Helbing, 

209 F.3d 226, 238 (3d Cir. 2000)). Though plenary, the “standard of review is highly 

deferential.” Id. (quoting Helbing, 209 F.3d at 238).

“A conviction for possession with intent to distribute drugs requires that the 

defendant knowingly and intentionally possessed drugs with the intent to distribute 

them.” United States v. Iafelice, 978 F.2d 92, 95 (3d Cir. 1992). Johnson concedes that 
6

he was found with crack cocaine on both dates. Proof of his intent to distribute the crack 

cocaine could be made through circumstantial evidence. See United States v. Johnson, 

302 F.3d 139, 149 (3d Cir. 2002). 

Michael Warfield, a seventeen-year veteran of the Pennsylvania State Police, 

testified as an expert, without objection by Johnson, regarding the characteristics of drug

trafficking.

3

 3 We recognize that “operations of narcotics dealers is a proper field of expertise,” 

an expert may testify about “the quantity, purity, usage dosage units, and street value of 

narcotics,” and “experts may describe, in general and factual terms, the common 

practices of drug dealers.” United States v. Watson, 260 F.3d 301, 306 (3d Cir. 2001). 

Warfield explained the process of cutting cocaine for distribution; the value 

of a “rock” of cocaine; how drug traffickers sell smaller quantities as street level dealers; 

the packaging of a rock of crack; and the significance of the presence of cash as well as 

the use of plastic baggies and multiple cell phones. Warfield also explained the role 

firearms play in the world of drug trafficking. Based on his experience and training, 

Warfield concluded that Johnson’s possession of 5.6 grams of crack on March 5, 2008 

and 8.2 grams of crack on August 23, 2007 was consistent with someone possessing 

drugs with the intent to distribute them. Warfield explained that with 8.2 grams of crack 

divided into 87 rocks, the rocks could have been sold for $870, if they were sold as tendollar rocks, or for over $1,700, if they were sold as twenty-dollar rocks. Warfield 

further testified that he would not expect someone who had eight grams or five grams of 

crack to be found with any drug paraphernalia because that person would be selling, not 

using, the drug. This evidence was plainly sufficient to support a finding of guilt on the 

drug trafficking offenses charged in Counts One and Two of the Superseding Indictment. 
7

Johnson also challenges the sufficiency of the evidence on Count Three, charging 

him with a violation of 18 U.S.C. § 924(c)(1)(A) by carrying a firearm during and in 

relation to a drug trafficking crime and possessing a firearm in furtherance of such a 

crime. To prove a violation of 18 U.S.C. § 924(c)(1)(A) arising out of possession of a 

firearm in furtherance of a drug trafficking crime, the government must prove: (1) the 

defendant committed the crime of possession with intent to distribute narcotics; (2) the 

defendant knowingly possessed a firearm; and (3) the defendant knowingly possessed the 

firearm in furtherance of the offense of possession with intent to distribute.4

The first element is established by virtue of the jury’s guilty verdict on Count Two 

of the Superseding Indictment. The second element, knowing possession of a firearm, 

may be established by actual or constructive possession. See United States v. 

Cunningham, 517 F.3d 175, 178 (3d Cir. 2008). “A person who, although not in actual 

possession, knowingly has both the power and the intention at a given time to exercise 

United 

States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006). 

 4 The elements the government must establish beyond a reasonable doubt to obtain 

a conviction for carrying a firearm during and in relation to a drug trafficking crime 

include the first two elements for possessing firearm in furtherance of a drug trafficking 

crime. The additional element that the firearm be carried during and in relation to a drug 

trafficking crime requires proof that the firearm “facilitate[d], or ha[d] the potential [to] 

facilitat[e]” the drug trafficking crime. See United States v. Loney, 219 F.3d 281, 287 (3d 

Cir. 2000) (quoting Smith v. United States, 508 U.S. 223, 238 (1993)). We have 

acknowledged that “Congress may well have intended ‘in furtherance’ to impose a more 

stringent standard than ‘in relation to.’” Id.; see also United States v. Combs, 369 F.3d 

925, 932 (6th Cir. 2004) (noting that the “in furtherance” standard is a “slightly higher 

standard” and “encompass[es] the ‘during and in relation to’ language”). Because we 

find the evidence sufficient to sustain a conviction that Johnson possessed a firearm in

furtherance of the drug trafficking crime, the evidence is also sufficient to sustain a 

conviction for carrying a firearm during and in relation to the drug trafficking crime. 
8

dominion or control over a thing, either directly or through another person or persons, is 

then in constructive possession of it.” United States v. Garth, 188 F.3d 99, 112 (3d Cir.

1999) (quoting United States v. Blackstone, 940 F.2d 877, 883 (3d Cir. 1991)). 

Dominion and control need not be exclusive, but they must be established by something 

more than “[m]ere proximity.” United States v. Introcaso, 506 F.3d 260, 270-71 (3d Cir.

2007).

The third element of the charged crime requires an assessment of the totality of the 

evidence to determine whether “possession of the firearm advanced or helped forward a 

drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004). 

The following non-exclusive factors may be considered in determining that a gun was 

possessed “in furtherance” of a drug trafficking crime: “the type of drug activity that is 

being conducted, accessibility of the firearm, the type of the weapon, whether the weapon 

is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, 

proximity to drugs or drug profits, and the time and circumstances under which the gun is 

found.” Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 

2000)).

With these factors in mind, and viewing the evidence in the light most favorable to 

the government, we conclude that the jury had sufficient evidence to support a conviction 

under 18 U.S.C. § 924(c)(1)(A). Johnson fled from the Aliquippa police on March 5, 

2008 in an Oldsmobile Alero. Sergeant Sealock seized crack cocaine from the floor of 

the Alero and found a handgun under the driver’s seat, with the handle facing towards the 

front of the car. The handgun is a firearm as defined by 18 U.S.C. § 921(a). A live 
9

magazine was inside the firearm with one round inside the chamber, operable and ready 

to fire. The handgun had been reported as stolen and Johnson did not have a license to 

carry a firearm or a valid sportsman’s firearms permit under Pennsylvania law. Although 

Johnson did not own the car, its owner—Johnson’s girlfriend—denied ownership of the 

gun. It was quite reasonable for the jury to conclude that the weapon was placed 

strategically so that Johnson could defend his drugs and money. See United States v. 

Lawrence, 308 F.3d 623, 630 (6th Cir. 2002). Accordingly, Johnson’s challenge to the 

sufficiency of the evidence on Count Three fails.

B.

Johnson also contends the District Court committed plain error in its instructions 

to the jury regarding the elements of 18 U.S.C. § 924(c)(1)(A). Specifically, Johnson 

argues that the District Court erred by not instructing the jury that it must find that 

Johnson possessed a firearm both “in relation to” and “in furtherance of” drug trafficking 

activity because that is how the charge was described in the Superseding Indictment. 

Johnson did not raise an objection to the District Court’s instruction to the jury 

regarding a violation of 18 U.S.C. § 924(c)(1)(A). Therefore, we review for plain error,

and will reverse only if the trial court committed error that was fundamental and highly 

prejudicial. Alexander v. Riga, 208 F.3d 419, 426-27 (3d Cir. 2000). 

We have held that while an indictment employs the conjunctive, jury instructions 

may employ the disjunctive where, as here, the statute employs the disjunctive. United 

States v. Cusumano, 943 F.2d 305, 311 (3d Cir. 1991). The District Court instructed the 

jury on both the “in relation to” aspect of § 924(c)(1)(A), as well as the “in furtherance 
10

of” aspect, explaining that a unanimous finding of guilt on either would be sufficient to 

convict Johnson under § 924(c)(1)(A). This instruction clearly survives plain error 

review.

C.

Finally, Johnson challenges the District Court’s denial of his Motion to Suppress 

Evidence seized from his person by Sergeant Sealock on August 23, 2007. We review

the District Court’s denial of a motion to suppress for clear error as to the underlying 

factual findings and exercise plenary review of the District Court’s application of the law 

to those facts. United States v. Delfin-Colina, 464 F.3d 392, 395-96 (3d Cir. 2006).

A traffic stop of a vehicle and the detention of its occupants is a “seizure” under 

the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 809-10 (1996). A 

warrantless seizure based on less than probable cause is permissible “where a police 

officer observes unusual conduct which leads him reasonably to conclude in light of his 

experience that criminal activity may be afoot and that the person with whom he is 

dealing may be armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 30 (1968). 

Under those circumstances, the officer “is entitled for the protection of himself and others 

in the area to conduct a carefully limited search of the outer clothing of such persons in 

an attempt to discover weapons which might be used to assault him.” Id.

The reasonable suspicion standard applies to routine traffic stops. Delfin-Colina, 

464 F.3d at 397. The Government bears the initial burden of proving that authorities had 

specific, articulable facts to justify a reasonable suspicion that an individual has violated 

the traffic laws. Id. “‘Reasonable suspicion’ is a less demanding standard than probable 
11

cause and requires a showing considerably less than preponderance of the evidence.” 

Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Only a “minimal level of objective 

justification” is necessary. Id.

The stop of the Buick was based on an articulable and reasonable suspicion that 

either the vehicle or an occupant violated the law. See United States v. Johnson, 63 F.3d 

242, 245 (3d Cir. 1995). Sergeant Sealock stopped Johnson’s vehicle because of the 

tinted windows in violation of 75 Pa. C.S. § 4524(e) and the loud music. After pulling 

the car over, Sealock recognized Johnson and had concerns for his safety because of 

Johnson’s association with individuals that traffic in narcotics. Sealock was also 

concerned for his safety because he knew Johnson had been involved in other incidents 

involving firearms. Sealock saw Johnson making a furtive movement by leaning toward 

the passenger side of the car. Johnson also appeared nervous, and was sweating and 

stuttering. Sealock then observed an open box of plastic sandwich bags inside the vehicle 

as he spoke with Johnson and he knew that plastic baggies are sometimes used in 

packaging narcotics. Sealock also knew that people who traffic in narcotics carry 

firearms “a lot of times.” (A. 132.) Based on this knowledge, Sealock was concerned 

that Johnson may be armed and dangerous. Viewing these circumstances in their 

entirety, Sealock was justified in believing that Johnson may have been armed and 

dangerous, warranting a protective pat-down for a weapon.

Johnson contends that the purpose of the protective pat-down search was limited 

to a search for a weapon and that the seizure of crack cocaine exceeded the scope of the 

warrantless search. Police officers may seize non-threatening contraband detected during 
12

a protective pat-down search “so long as the officers’ search stays within the bounds 

marked by Terry.” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). In United States 

v. Yamba, we defined the scope of a “plain feel” search under Dickerson and determined 

that the proper inquiry “is not the immediacy and certainty with which an officer knows 

an object to be contraband or the amount of manipulation required to acquire that 

knowledge, but rather what the officer believes the object is by the time he concludes that 

it is not a weapon.” 506 F.3d 251, 259 (3d Cir. 2007). As we explained in Yamba, it is 

permissible to confiscate contraband if “spontaneously discovered during a properly 

executed Terry search.” Id. When determining whether the scope of a particular Terry

search is proper, “the areas of focus should be whether the officer had probable cause to 

believe an object was contraband before he knew it not to be a weapon and whether he 

acquired that knowledge in a manner consistent with a routine frisk.” Id. If the officer 

develops probable cause to believe, given his training and experience, that an object is 

contraband before he eliminates the possibility that it is a weapon, he may lawfully 

perform a more intrusive search, and if he discovers contraband, he may seize it and it 

will be admissible against the suspect. Id.

Viewing the totality of the circumstances, we are satisfied that Sergeant Sealock 

had probable cause to believe the object he felt in Johnson’s pocket was contraband at the 

same moment or before he determined it was not a weapon. As in Yamba, Sealock’s 

belief that the object he felt was crack cocaine “was reached quickly and upon minimal 

manipulation,” consistent with a routine Terry-frisk. See id. at 260. Based on Sealock’s 

experience and training, he was able to identify the object as contraband. In short, 
13

Sealock was “able to point to specific and articulable facts, which taken together with 

rational inferences from those facts, reasonably warrant[ed] the intrusion.” Terry, 392

U.S. at 21. Accordingly, the District Court did not err in denying Johnson’s Motion to 

Suppress.

III.

For the foregoing reasons, we will affirm the conviction and judgment of the 

District Court.