UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4280

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH J. JOHNSON, a/k/a K-9,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. David C. Norton, Chief District 

Judge. (2:07-cr-00924-DCN-3)

Argued: October 28, 2010 Decided: January 31, 2011

Before NIEMEYER and GREGORY, Circuit Judges, and Damon J. KEITH, 

Senior Circuit Judge of the United States Court of Appeals for 

the Sixth Circuit, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: John Christopher Mills, Columbia, South Carolina, for 

Appellant. Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY, 

Columbia, South Carolina, for Appellee. ON BRIEF: William N. 

Nettles, United States Attorney, Columbia, South Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

This case arises out of the conviction of Defendant Kenneth 

Johnson for 1) conspiring to distribute and distributing five 

kilograms or more of cocaine and fifty grams or more of cocaine 

base in violation of 21 U.S.C. § 846; and 2) possession with 

intent to distribute and distribution of cocaine, in violation 

of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Johnson comes before 

this Court to contest the trial court’s consideration of various 

pieces of evidence and the court’s ultimate sentencing 

determination. For the reasons discussed below, we AFFIRM the 

trial court’s decision.

BACKGROUND

On January 15, 2005, Kenneth Johnson, a South Carolina, 

resident, was released from federal prison, after being 

incarcerated for drug and firearms offenses committed in 1992 

and a subsequent conviction for distributing cocaine, committed 

while he was imprisoned.

Shortly after midnight on November 5, 2006, Obie Pittman, a 

deputy with the Berkeley County, Sherriff’s Office approached a 

Hardee’s/Hot Spot restaurant/gas station. The building had a 

Hardee’s Restaurant (“Hardee’s”) on one side of the building and 

a Hot-Spot gas station on the other side. The Hardee’s had 

closed, but as the Hot-Spot was open 24 hours, it remained open. 
3

Pittman observed two cars parked side by side in the parking 

lot, near the entrance to the Hardee’s. Upon further inspection 

Pittman saw that the two cars were parked crookedly in a manner 

which conflicted with the parking spots delineated by the lines 

drawn in the parking lot. Though both of the cars’ motors were 

running, two individuals were seated in one car, while the other 

was empty. Pittman later testified that he was aware of at 

least two other drug transactions that had taken place in the 

same parking lot.

Pittman, shortly thereafter, pulled into the lot, parking 

his vehicle behind the two cars in such a manner that Johnson 

attests he could not have moved his car if he tried. Shortly 

after Pittman parked his vehicle, Johnson exited the vehicle in 

which he and John Belton had been sitting. Johnson informed 

Pittman that he was taking care of some business and that their 

activities were legitimate. When asked by Pittman as to the 

nature of the business, Johnson provided him a card with the 

name “Affordable Car Wash” written on it. Pittman exited his 

car and walked over to the vehicle in which Belton remained 

seated. Upon reaching the car, Pittman asked Belton for 

identification. When Belton was unable to present any, Pittman 

asked him to exit the car. As Belton exited the car, Pittman 

observed a sum of money on the floor of the car between the 
4

passenger seat and the door. When questioned as to its source, 

Belton stated that it must have fallen out of his pocket.

Pittman then performed a brief pat down search of both 

Johnson and Belton. In Johnson’s pocket, Pittman felt a large 

sum of money which Pittman stated was approximately $2,000. 

Pittman additionally felt two other lumps on Johnson which he 

also believed were money. Nothing was seized from Johnson at 

the time. 

Pittman then asked Johnson for his consent to search his 

vehicle – the car in which Johnson and Belton had been seated. 

When Johnson refused, Pittman obtained from his car a police 

detection dog. Upon being walked around Johnson’s car, the dog 

signaled the presence of unlawful substances inside the 

passenger-side door. Pittman additionally observed clear 

plastic wrap partially hidden underneath the floorboard between 

the front passenger seat and the rear passenger seat.

Pittman conducted a search of the vehicle and located a 

package under the front passenger seat. The package contained 

nine individual plastic bags of cocaine, wrapped in plastic wrap 

and dryer sheets, with a total approximate weight of 276.1 

grams. Pittman subsequently arrested Belton and Johnson. A 

search of their persons revealed $432.22 in cash on Belton and 

$3,957.50 on Johnson. 
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A subsequent search of Johnson’s house, performed pursuant 

to a search warrant, revealed $9,768 in a small, draw-string bag 

in a closet of the home’s master bedroom. The money was in the 

following denominations: 208 one-dollar bills, 3 twenty-dollar 

bills, 48 fifty-dollar bills, and 71 one-hundred dollar bills. 

The money found constituted almost half of Johnson’s annual 

reported income of $21,000 per year. 

After he was indicted, Johnson, via a pre-trial motion, 

challenged both his stop on the morning of November 5 and the 

sufficiency of the evidence supporting the warrant to search his 

house. The court rejected both motions finding that Pittman had 

reasonable cause for the stop and, while the application 

requesting the warrant included an error, it was minor and 

therefore, did not affect the warrant’s validity.

At trial, the prosecution presented multiple witnesses who 

stated that they purchased cocaine and other drugs from the 

defendant. Belton testified that he had purchased marijuana and 

multiple kilograms of cocaine from Johnson. He specifically 

posited that on the night in question, he had arranged to meet 

with Johnson to repay him for a drug related debt he had built 

during the process of purchasing drugs from Johnson. Rias 

Richardson similarly testified that he regularly bought drugs 

from an individual he believed worked for Johnson. According to 

Richardson, on one occasion, Johnson directly sold him four and 
6

one-half ounces of cocaine. Anthony Gordon testified that he 

regularly purchased drugs for Henry Bennett from Johnson. On 

one occasion, acting on behalf of Bennett, he purchased twelve 

kilograms of cocaine. He testified that Bennett had 

specifically sent him to Johnson when Bennett’s usual source did 

not have drugs. Juan Brown testified regarding a number of 

purchases of cocaine, ranging in quantities of nine ounces to 

multiple kilograms, from Johnson. Benjamin Jenkins testified 

that he, likewise, had received three or four kilograms from 

Johnson on one occasion at Bennett’s home.

Johnson called Drug Enforcement Agent Brendan McSheehy as a 

witness and questioned him regarding his investigation of the 

drug conspiracy. On cross examination, McSheehy stated that the 

cell phone seized from Johnson’s home included contact 

information for Gordon, Brown, and Bennett. Additionally, he 

stated that an address book found in a duffel bag belonging to 

Bennett included Johnson’s telephone number. McSheehy also 

provided testimony regarding statements Gordon had made 

indicating that he had previously failed to implicate Johnson 

because he feared for his and his family’s safety.

Johnson additionally testified in his own defense. On the 

stand, Johnson denied that the drugs found in his car on 

November 5 were his or that he was involved in a conspiracy to 

distribute cocaine. He asserted that Belton planted the drugs 
7

found in his car. Furthermore, he denied that he agreed to meet 

Belton so that he could pay back a drug-related debt.

The jury found Johnson guilty. After considering Johnson’s 

string of prior convictions for drug-related offenses, the trial 

judge sentenced Johnson to life in prison. Johnson timely 

appealed his conviction raising a variety of evidentiary and 

sentencing-related issues.

DISCUSSION

Johnson raises seven arguments on appeal. He specifically 

asserts that the trial court erroneously: 1) denied his motion 

to suppress the results of Pittman’s November 5, 2006 search of 

his car; 2) denied his motion to suppress the results of the 

search of his home; 3) admitted McSheehy’s testimony regarding 

Gordon’s out of court statements; 4) admitted Johnson’s prior 

convictions; 5) admitted evidence regarding Johnson’s 

distribution of marijuana and heroin; 6) denied his motion for a 

new trial as a result of statements the prosecutor made during 

trial; and 7) sentenced him to life in prison.

I. PITTMAN HAD REASONABLE CAUSE TO STOP JOHNSON ON THE MORNING OF NOVEMBER 5,

2006.

Johnson, on appeal, argues that Pittman violated his Fourth 

Amendment rights on the morning of November 5 when Pittman 
8

parked his car behind Johnson’s. For the reasons discussed 

below, the district court correctly denied Johnson’s motion. 

A. Standard of Review

In reviewing a district court’s denial of a pretrial motion 

to suppress evidence, this Court reviews the district court’s 

factual findings for clear error and its legal conclusions de 

novo. Ornelas v. United States, 517 U.S. 690, 695-96 (1996); 

United States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998). 

The evidence is construed in the light most favorable to the 

government. United States v. Perkins, 363 F.3d 317, 320 (4th 

Cir. 2004).

B. Analysis

1. A Seizure Occurred When Pittman Blocked Johnson’s 

Car.

The parties initially dispute at what point Pittman was 

required to have had a reasonable suspicion that Johnson was 

involved in criminal activity. Johnson asserts that he was 

seized for the purposes of the Fourth Amendment once Pittman 

parked his car behind Johnson’s and therefore, Pittman must have 

had reasonable suspicion at that point to have acted within the 

confines of the Fourth Amendment. The government raises two 

arguments in Pittman’s defense. First, it argues that no 

seizure occurred until Pittman frisked Johnson. Alternatively, 

it argues that even if a seizure occurred, no reasonable 
9

suspicion was required given the circumstances. We find neither 

argument persuasive.

"[A] Fourth Amendment seizure [occurs] . . . when there is 

a governmental termination of freedom of movement through means 

intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 

596-597 (1989) (emphasis deleted). The government presents no 

argument in response to Johnson’s assertion that Pittman, by 

pulling in behind him, blocked Johnson’s car from leaving. 

Rather, in response it relies solely on the Fourth Circuit’s 

decision in United States v. McCoy, 513 F.3d 405 (4th Cir. 2008) 

in which the court held that the defendant in the case was not 

seized until he was frisked. McCoy is clearly distinguishable. 

Unlike this case, the officer, in McCoy, had taken no actions 

prior to the frisk to prevent the defendant from believing he 

was not “free to leave”. Id. at 411-412.

Nor do we accept the government’s arguments that the Fourth 

Amendment does not require “reasonable suspicion” under the 

circumstances in this case. The government in support of its 

argument relies on a series of “special circumstances” cases in 

which courts have held that reasonable suspicion is not 

required. Examples of such circumstances include check points 

set up to catch drunk drivers and undocumented immigrants. 

Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450, 

(1990); United States v. Martinez-Fuerte, 428 U.S. 543, 556 
10

(1976). The government presents no case, nor can I find any

that allows the government to conduct such seizures outside of 

the context of traffic checkpoints or some other “special 

circumstance” (airports, schools, the border, etc.). See e.g., 

United States v. Brugal, 209 F.3d 353 (4th Cir. 2000) (“The 

Supreme Court has also recognized that a state has a substantial 

interest in enforcing licensing and registration laws, though 

that interest is not substantial enough to justify roving patrol 

stops as an enforcement mechanism.”). 

2. The Seizure Was Supported by Reasonable Suspicion.

Whether there is reasonable suspicion to justify the stop 

depends on the totality of the circumstances, including the 

information known to the officer and any reasonable inferences 

he could have drawn at the time of the stop. United States v. 

Sokolow, 490 U.S. 1, 8 (1989). Reasonable suspicion may exist 

even if "each individual factor 'alone is susceptible of 

innocent explanation.'" United States v. Black, 525 F.3d 359, 

366-67 (4th Cir.) (quoting United States v. Arvizu, 534 U.S. 

266, 277 (2002)), cert. denied, 129 S. Ct. 182 (2008). The 

reasonable suspicion determination is a "commonsensical 

proposition," and deference should be accorded to police 

officers' determinations based on their experience of what 

transpires on the streets. United States v. Foreman, 369 F.3d 
11

776, 782 (4th Cir. 2004); United States v. Lender, 985 F.2d 151, 

154 (4th Cir. 1993).

The Supreme Court has recognized that factors consistent 

with innocent travel can, when taken together, give rise to 

reasonable suspicion. Sokolow, 490 U.S. at 9 ("Any one of these 

factors is not by itself proof of any illegal conduct and is 

quite consistent with innocent travel. But we think taken 

together they amount to reasonable suspicion."). The 

articulated factors together must serve to eliminate a 

substantial portion of innocent travelers before the requirement 

of reasonable suspicion will be satisfied. Foreman, 369 F.3d at 

781. 

This admittedly is a close case. Of particular concern is 

the short period of time Pittman waited before blocking 

Johnson’s car. However, we agree that the circumstances viewed 

in the light most favorable to the government support the 

conclusion that Pittman had reasonable suspicion to stop 

Johnson. It is undisputed that Pittman saw two cars after 

midnight sitting together in a dark area of a parking lot, next 

to a closed restaurant. Additionally, while the motors were 

running in both cars, both individuals were seated in one of 

them. Furthermore, Pittman had reason to believe criminal 

activity was afoot as he was personally aware of drug 

transactions having taken place in the specific parking lot on 
12

at least two prior occasions. See United States v. Lender, 985 

F.2d 151, 154 (4th Cir. 1993). (“[A]n area's propensity toward 

criminal activity is something that an officer may consider."). 

The Fourth Circuit has found reasonable suspicion based on less. 

See United States v. Whitney, 2010 U.S. App. LEXIS 17300, *12 

(4th Cir. Aug. 17, 2010) (“[G]iven Whitney's nervous demeanor 

and the large amount of cash found in his pockets, Agent Canady 

possessed sufficient reasonable suspicion.”). 

Johnson, on appeal, relies primarily on United States v. 

McCoy. The McCoy court found that reasonable suspicion existed 

where the officer: 1) saw the defendant sit in his car for 

several minutes; 2) saw the defendant arrange to meet a towtruck driver at another location; 3) saw the defendant enter the 

tow truck; and 4) saw the tow-truck drive away quickly when the 

officer motioned for him to stop. 513 F.3d at 412-13. Johnson 

posits that unlike in McCoy, Pittman did not observe any evasive 

behavior nor did Pittman wait long enough to see if Johnson or 

Belton took any actions indicative of criminal activity. While 

these are important points, there were other circumstances in 

this case, such as the fact that the store was closed, both 

persons were parked in a dark area of the lot away from the open 

store, both persons were seated in one car despite the fact that 

both engines were running and the time of day, which together
13

were sufficient to support a reasonable suspicion of criminal 

activity. 

II. THE WARRANT FOR THE SEARCH OF JOHNSON’S HOME WAS PROPERLY ISSUED.

Johnson argues, as a contingent matter, that because 

Pittman’s stop of Johnson was unlawful and the evidence that was 

found during the stop constituted the basis for the warrant to 

search his house, the warrant was likewise erroneously granted. 

As noted, because we find no merit to Johnson’s argument 

regarding the legitimacy of the stop, we likewise, find no merit

to his objection to the evidence supporting the warrant to 

search his home.

III. MCSHEEHY’S TESTIMONY RECOUNTING ANTHONY GORDON’S STATEMENTS WAS 

PROPERLY ADMITTED.

Johnson additionally appeals the district court’s admission 

of McSheehy’s testimony regarding statements by Anthony Gordon, 

one of Johnson’s co-conspirators, that he previously failed to 

admit that he purchased drugs from Johnson because he feared for 

his family’s safety. Johnson contests the admission of 

McSheehy’s testimony on the grounds that the government failed 

to notify Johnson before trial that he sought to introduce the 

evidence and, accordingly, the court never had the proper 

opportunity to determine whether the evidence was unfairly 
14

prejudicial. Johnson, alternatively, argues that had the court 

considered the evidence it would have determined that it was 

impermissible character evidence in violation of Rule 404(b) of 

the Federal Rules of Evidence. 

A. Standard of Review

Johnson concedes he failed to object to the admission of 

the aforementioned evidence at trial. When a party fails to 

object to the admission of evidence, Rule 103(d) of the Federal 

Rules of Evidence requires that the Court review the admission 

for plain error. Cook v. American Steamship Co., 53 F.3d 733, 

742 (6th Cir. 1995); United States v. Brown, 287 U.S. App. D.C. 

316, 921 F.2d 1304, 1308 n.4 (D.C. Cir. 1990); FED.R.EVID. 103(d).

B. Analysis

1. The Court Properly Admitted the Testimony Despite 

the Fact that the Government Did not Notify the Court 

Before Trial.

Johnson initially complains that the government improperly 

admitted McSheehy’s testimony regarding Gordon’s statements 

despite informing the court before trial that it would not 

present police testimony of co-conspirators’ out of court 

statements. Accordingly, Johnson argues, the government should 

have been estopped from presenting such evidence at trial.

As the government correctly notes, the prosecution 

introduced the contested evidence only after Johnson raised the 

issue during his direct examination of McSheehy. During 
15

Johnson’s direct examination of McSheehy, Johnson’s counsel 

asked McSheehy: “Did you ever have the opportunity to talk to 

Anthony Gordon? . . . [D]id he ever mention Kenneth Johnson?” 

J.A. at 412. Later, Johnson’s counsel asked McSheehy whether 

any of the co-conspirators outside of Belton or Richardson “had 

ever mentioned Kenneth Johnson?” J.A. at 421.

The prosecution on cross-examination closely limited its 

questioning of McSheehy regarding Gordon’s statements to the 

scope of Johnson’s direct – it simply allowed McSheehy the 

opportunity to present Gordon’s explanation as to why he had not 

mentioned Johnson previously. 

Accordingly, given that Johnson opened the door for such 

evidence, we do not believe that the court’s admission of it was 

in “plain error.”

2. The Testimony Was Not “Character” Evidence.

Johnson alternatively, argues that had the court weighed 

the evidence it would have determined it was inadmissible under 

Rule 404(b) of the Federal Rules of Evidence.

Rule 404(b) forbids the admission of evidence of "other 

crimes, wrongs, or acts . . . to prove the character of a person 

in order to show action in conformity therewith." FED. R. EVID.

404(b). This prohibition reflects the 

underlying premise of our criminal justice system, 

that the defendant must be tried for what he did, not 

for who he is. Thus, guilt or innocence of the accused 
16

must be established by evidence relevant to the 

particular offense being tried, not by showing that 

the defendant has engaged in other acts of wrongdoing.

United States v. Bradley, 5 F.3d 1317, 1320 (9th Cir. 1993) 

(internal quotation marks and citations omitted). Because such 

evidence may be highly relevant, however, the Rule does permit 

its admission "for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity or 

absence of mistake or accident . . . ." FED. R. EVID. 404(b). 

Rule 404(b) is inapplicable to McSheehy’s testimony. As 

noted above, the rule relates to “other crimes, wrongs, or 

acts.” McSheehy introduced no evidence of acts, words or 

threats in other forms by Johnson, but merely provided Gordon’s 

statements regarding his personal feelings of fear. 

Furthermore, the testimony was not introduced to prove Johnson’s 

character, but rather to explain why Gordon lied. See United 

States v. Green, No. 08-2330, 2010 U.S. App. LEXIS 16431, *46, 

n.16 (3rd Cir. Aug. 9, 2010) (“The required proper purpose was 

the rehabilitation of Stahl's credibility, in light of Green's 

suggestions that she was motivated by money and cooperated 

solely for selfish reasons.”).*

 * At the end of the relevant section of his brief, Johnson 

throws in a one-line argument that the statement was hearsay. 

An out of court statement is only hearsay if it is presented to 

prove the truth of the matter asserted. FED. R. EVID. 801(c). As 

noted above, in this case, the statement was not presented to 

(Continued)
17

IV. THE DISTRICT COURT DID NOT ERR IN ADMITTING EVIDENCE OF JOHNSON’S PRIOR 

CONVICTIONS FOR COCAINE DISTRIBUTION.

Johnson also argues that the court erroneously admitted 

evidence of his previous cocaine distribution convictions. He 

specifically argues: 1) that the evidence served no legitimate 

purpose other than defaming his character; and 2) was unduly 

prejudicial. 

A. Standard of Review

The court reviews a district court’s determination 

regarding the admissibility of evidence under Rule 404(b) for 

abuse of discretion. United States v. Greenwood, 796 F.2d 49 

(4th Cir. 1996); United States v. Hodge, 354 F.3d 305, 312 (4th

Cir. 2004). A court abuses its discretion when it “act[s]

arbitrarily or irrationally in admitting evidence." United 

States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009) (internal 

quotation marks omitted).

B. Analysis

The Fourth Circuit has set out a four part test courts must 

use when determining whether evidence of prior bad acts may be 

admitted. The prior act must: 1) be relevant to an issue other 

than character, such as intent, motive or knowledge; 2) be

 

prove that Johnson was in fact dangerous but merely to explain 

why Gordon had previously provided inconsistent testimony. 
18

necessary to prove an element of the crime charged; 3) be 

reliable; and 4) not be substantially outweighed by its 

prejudicial nature. United States v. Queen, 132 F.3d 991, 995

(4th Cir. 1997). This court has held that “Rule 404(b) is ‘an 

inclusive rule, admitting all evidence of other cimes or acts 

except that which tends to prove only criminal disposition.’” 

United States v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010) 

(quoting United States v. Young, 248 F.3d 260, 271-72 (4th Cir. 

2001)). As noted, Johnson specifically challenges prongs one and 

four of this analysis.

The government asserted and the court below agreed that the 

evidence was relevant to Johnson’s intent upon arriving at the 

parking lot on the morning of November 5th; his knowledge of the 

drug trade; absence of mistake; plan; and opportunity. The 

district court’s rulings with regard to intent and knowledge 

were consistent with the law of this Circuit. Rooks, 596 F.3d at

211 (affirming admission of evidence of prior narcotics 

conviction to establish the defendant's knowledge of drug 

trafficking and intent to distribute drugs found at the crime’s 

scene). 

Likewise, because the statements were accompanied by 

limiting instructions, under the Fourth Circuit’s jurisprudence 

the convictions’ admission was not unduly prejudicial. Id.

(“[T]he evidence [of prior convictions] was neither unreliable 
19

nor unfairly prejudicial, especially in light of the court's 

limiting instruction to the jury.”). See United States v. 

White, 405 F.3d 208, 213 (4th Cir. 2005) ("[A]ny risk of such 

prejudice was mitigated by a limiting instruction from the 

district court clarifying the issues for which the jury could 

properly consider [the] evidence.").

V. THE TRIAL COURT DID NOT COMMIT PLAIN ERROR IN ALLOWING TESTIMONY THAT 

JOHNSON DEALT HEROIN AND MARIJUANA.

Johnson, likewise, challenges the admission of testimony 

that he also distributed marijuana and heroin as improper 

character evidence.

A. Standard of Review

Johnson failed to object to the government's statement 

below. Accordingly, this Court's review is limited to the plain 

error standard discussed above.

B. Analysis

Johnson alleges that testimony regarding him dealing other 

drugs constituted impermissible character evidence.

Rule 404(b) protects only against the introduction of 

extrinsic act evidence when offered to prove character. Evidence 

when not part of the crime charged but pertaining to the chain 

of events explaining the context, motive and set-up of the 

crime, is properly admitted if it forms an integral and natural 
20

part of an account of the crime, or is necessary to complete the 

story of the crime for the jury. United States v. Powers, 59 

F.3d 1460 (4th Cir. 1994). In such a situation, because the 

evidence is intrinsic, not extrinsic, we do not engage in a Rule 

404(b) analysis.

Here, it is clear that the testimony concerning other drugs 

Johnson was distributing while distributing cocaine was

intrinsic to the crime. Belton testified that when he was 

introduced to Johnson, it was for the purpose of conducting drug 

transactions and while he initially purchased marijuana, they 

gradually moved on to other drugs such as heroin and cocaine. 

Given that the testimony showed that Johnson was distributing 

heroin and marijuana to many of his co-conspirators during the 

course of the cocaine conspiracy, the evidence was intrinsic 

and, therefore, not subject to analysis under 404(b).

Such evidence is, of course, nevertheless subject to a 

Rule 403 balancing. See United States v. Huppert, 917 F.2d 507 

(11th Cir. 1990). "[T]he court's discretion to exclude evidence 

under Rule 403 is narrowly circumscribed. 'Rule 403 is an 

extraordinary remedy which should be used only sparingly since 

it permits the trial court to exclude concededly probative 

evidence.'" United States v. Norton, 867 F.2d 1354, 1361 (11th 

Cir.), cert. denied, 491 U.S. 907 (1989). Beyond blank 

accusations that the evidence was prejudicial, Johnson presents 
21

no specific argument in support of his assertion that the 

prejudicial effect of this information outweighed its relevance. 

Accordingly, we cannot find that the court’s admission of such 

was clear error.

VI. THE TRIAL COURT PROPERLY DENIED JOHNSON’S MOTION TO OVERTURN HIS 

CONVICTION AS A RESULT OF THE PROSECUTOR’S STATEMENT.

Johnson additionally challenges the trial court’s refusal 

to grant Johnson a new trial as a result of the prosecutor’s

statement during closing arguments referring to Johnson as the 

devil. 

A. Standard of Review

Johnson failed to object to the government’s statement 

below. Accordingly, this Court’s review is limited to the plain 

error standard discussed above.

B. Analysis

The court examines a claim of prosecutorial misconduct to 

determine whether the alleged misconduct "so infected the trial 

with unfairness as to make the resulting conviction a denial of 

due process." United States v. Scheetz, 293 F.3d 175, 185 (4th 

Cir. 2002) (addressing prosecution's improper reference to 

evidence admitted only against one defendant in closing argument 

arguing that another defendant was guilty) (citations and 

internal quotation marks omitted). "The test for reversible 
22

prosecutorial misconduct has two components; first, the 

defendant must show that the prosecutor's remarks or conduct 

were improper and, second, the defendant must show that such 

remarks or conduct prejudicially affected his substantial rights 

so as to deprive him of a fair trial." Id.

The Fourth Circuit has set out a variety of factors that 

courts must consider when evaluating the prejudicial effect of a 

statement. These include: (1) the degree to which the 

prosecutor's remarks have a tendency to mislead the jury and to 

prejudice the accused; (2) whether the remarks were isolated or 

extensive; (3) absent the remarks, the strength of competent 

proof introduced to establish the guilt of the accused; and (4) 

whether the comments were deliberately placed before the jury to 

divert attention to extraneous matters. United States v. 

Mitchell, 1 F.3d 235, 241 (4th Cir. 1993). 

At issue on appeal is the prosecutor’s statement during 

closing arguments that “when you put the devil on trial, you’ve 

got to go to hell to get your witnesses.” The government 

defends the statement on the grounds that it was merely a 

“colorful” way of saying that the prosecution had to use 

unsavory witnesses to convict the defendant.

We cannot accept the government’s argument that the 

statement was merely a colorful statement. It is clear from the 

record that the government was specifically referring to Johnson 
23

when it made the statement. While the prosecution may have been 

trying to defend its use of certain witnesses, inherent in the 

statement was an emotional characterization of the defendant. 

See Fahy v. Horn, 516 F.3d 169, 202 (3rd Cir. 2008) (“We do not 

condone the characterization of [the defendant] as demonic, nor 

consider it a proper form of argument.”); United States v. 

Whittington, 269 Fed. Appx. 388, 410 (5th Cir. 1998) (“The 

prosecutor's remarks cannot be characterized as simply a 

colloquialism because he appeared to be referring to [the 

defendant] in each statement. We assume without deciding that 

referring to a defendant as ‘the devil’ is improper.”).

That said, we do not find that the single remark, by 

itself, rendered the trial fundamentally unfair. Given that the 

statement’s principal function was to explain the witnesses’ 

criminal backgrounds and it was an isolated remark, we cannot 

find the trial court’s allowance of the statement constituted 

plain error. See Whittington, 269 Fed. Appx. at 411-12 

(finding similar statement negatively impacted the jury, but 

because “the specific wording of the statement was designed to 

explain the plea agreements that the government made with 

unsavory characters that testified against [the defendant],” 

allowing the statement did not constitute clear error).
24

VII. THE TRIAL COURT DID NOT ERR BY SENTENCING JOHNSON TO A LIFE SENTENCE.

Finally, Johnson alleges the trial court’s sentence of life 

in prison for Johnson violated the Eighth Amendment’s 

prohibition on cruel and unusual punishment. Johnson asserts 

that the trial court failed to conduct the appropriate 

proportionality analysis set out in United States v. Kratsas, 45 

F.3d 63 (4th Cir. 1995) and Solem v. Helm, 463 U.S. 277 (1983). 

Had the court conducted the proper balancing, Johnson continues,

it would have found that given the small amount of cocaine at 

issue in his prior sentence and the length of the sentence, a 

life sentence was not appropriate. 

A. Standard of Review

The Court reviews de novo an appellant’s constitutional 

challenge to the proportionality of his sentence. United States 

v. Meyers, 280 F.3d 407, 416 (4th Cir. 2002).

B. Analysis

Section 841(b) of Title 21 of the United States Code 

provides for a mandatory life sentence without release for 

participants in certain drug offenses involving five or more 

kilograms of cocaine. Specifically, the statute provides:

If any person commits a violation of this subparagraph 

or of section 859, 860, or 861 of this title after two 

or more prior convictions for a felony drug offense 

have become final, such person shall be sentenced to a 

mandatory term of life imprisonment without release . 

. . .
25

21 U.S.C. § 841(b)(1)(A).

Johnson does not dispute having two applicable prior felony 

convictions for the purposes of section 841(b). Rather, he 

asserts that given the small amount of drugs and how old the 

conviction was, a sentence of life was disproportionate under 

the Eighth Amendment.

Johnson misreads the Fourth Circuit’s decision in United 

States v. Kratsas. The court not only did not find that a 

proportionality balancing was not required, but in fact held the 

opposite – a court need not consider any mitigating factors when 

issuing a sentence under section 841(b). See Kratsas, 45 F.3d at 

69 (“[I]t is clear that a sentence of life without parole does 

not require the consideration of mitigating factors, as is 

required in the death penalty context, in order to pass 

constitutional muster. Thus, the mere fact that the life 

sentence was mandatorily imposed does not render it "cruel and 

unusual." (citations omitted)). 

Accordingly, the sentence did not violate the Eighth 

Amendment under the Fourth Circuit’s jurisprudence.

CONCLUSION

For the aforementioned reasons, the trial court’s

conviction and sentence of Johnson is, hereby, 

AFFIRMED.