2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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# U S A v . J ohnson P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-2880

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w . v i l l a no va . e du/thir dc ir c uit_2004/804NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No
. 03-2880
UNITED S TATES OF AMERI CA

v. JAMES W. J OHNSON, Appellant

On A ppeal from the Un ited States District Co urt for the M iddle D istrict of P enns ylvania (D ist. C our t No
. 01-cr- 00394 ) Distri ct Judge: Honorable Syl via H. Rambo
Submitte d under Third Ci rcuit LAR 34.1(a) April 2, 2004 Before: ALITO , FISHERand ALDISE RT , Circuit Judges
. (Fil ed: April20, 2004)
OPINI ON OF THE COURT
AL DI SE RT , Circuit

Judge
. Because we write only for the parties who are fami liar with the f

acts, the proceduralhist oryand the cont entions present ed, we willnot reci te the m except as
necessar y t o the dis cussion. James W. Johnson, an inmate at FCI Schuyl kill , was2

charged with possessi on of a knife- like weapon whil e incar cerat ed in viol ation of 18 U. S. C. § 17 91, an d ha s b ee n f oun d gu ilty

by a j uryan d s en te nc ed . H e r ai se s t wo argu men ts on a ppea l: (1) the d istrict cou rt erred in determ ining th at he h ad no t mad e out a prime faci e case of sel ecti ve prosecution and (2) the court clear ly erred i n finding t

hat he understood and know ingly and voluntarily waived his Fifth Amen dment right against comp ulsory self-incrimination. For the reasons that fo llow w e reject both of App ellant’s contentions. As a general r

ule, so long as t

here is probable c ause to bel ieve that a defendant has
com mitte d an offens e, the dec ision to p rose cute rests in th e pr ose cuto r’s d iscre tion
. Wayte v. United Stat es , 470 U.S. 598, 607 (1985). To sustai n a clai m of select ive persecution, J ohnson must demonstrate, firs t, di sparat e treatment of similarly si tuati on persons and, second, t

hat thi s dispar ate treatment is a pr oduct of pros pecti ve decisi ons delibe rately bas ed on some unjust ifia ble st andard such as race, reli gion or some ot her arb itrary cl assificatio n. See United Stat es v. School craft , 879 F.2 d 64 , 68 ( 3d C ir. 19 89)
. We agree with the district court t hat Appell ant did not

carry his heavy

burden of dem ons tratin g th at he wa s im pro per ly sing led o ut fo r pro sec utio n. Johnson has fai led to point to any evidence t o establ ish t

hat othe r simi larly si tuate d persons were not

prosecut ed by t

he government for

possessing weapons in pri son. The decision to pro secute w as mad e becau se the knife-like w eapon was found in App ellant’s shoe, and Appell ant admit ted the knife was his and not his cell mate’s. Moreover the3

impetus for

the search that

resul ted in t

he seizur e of the kni fe was the repor t that the Appellant , not hi s cellmate, had br andished i t thr eateni ngly at another inmat e. The Appendix to the government’s response to Appellant ’s moti on to dis miss di sclose d that the government does actively pursue pri son contraband possession cases like this , including cases arisi ng out of SCI Schuy lkil l. We concl ude that the dis tri ct court

did not err i n denyi ng Appellant ’s moti on to dis miss based upon a llege d selective pros ecuti on. As to Johnson’s argument re garding compul sory self- incri minati on, it

is cl ear that th e g ov er nm en t is en titl ed to ad m it a de fe nd an t’s sta tem en t w he n i t ca n s ho w by a prep ond eranc e of th e evid ence that the defe ndan t enga ged in a valid wa iver of his Miranda righ ts. Co lorado v. Co nno lly , 479 U.S. 157, 168 (1986) (c itations omit ted). The
cum ulative expe rience of the judicia ry demo nstrates that Miranda waivers have be en sustained when engaged in by crimina l fel ons li ke Johnson, who have signifi cant pri or exp erien ce w ith th e leg al syste m. See e.g. United States v. Burrous, 147 F.3d 111, 116- 117 (2nd Cir. 19 98). W e hav e exa mine d the re cord and c onclu de tha t John son e xpre ssly waived his Miranda rights b oth o rally and in writing , and th erefo re the d istrict cou rt did not err in dism issin g A ppe llant ’s m otio n to sup pre ss h is inc ulp ator y statem ent to the F BI. After corr ecti onal offi cers found a homemade kni fe-like weapon made of metal concealed in Appellant ’s shoe, an FBI agent i ntervi ewed Appellant. Before the Appell ant gave h is incriminating statem ent, the agent info rmed A ppellant that he w as from the FB I, explai ned that

he was inter

viewing Appell ant regarding Appell ant’s possessi on of a knife,4

advised Appellant of his Miranda right s and obtai ned from Appellant an express writt en waiver of those ri ghts. In addition, in a taped pr ison t elephone conver sati on Johnson once again admi tted to possessing a knife i n prison. We reject Appel lant’ s argument t hat he thought that he was being interviewed by the FBI only for administ rative procedures, as Appellant

clear ly refle cted i n this conversation that he underst ood that he was the subject of a cri minal i nvesti gation. Appellant acknowledged that

authori ties “might be trying to t ake [him] down to cour t,” he hoped that

if the y di d he would get “no more t han

. . . an extra

six months ” and he recogni zed that it was a di sti nct possibility that authori ties would bring charges even though “ the[y ] ain’ t act ing li ke, they pr essing charges .
. . . ” We conclude that the dis tri ct court

did not cl early

err i n finding t

hat Appellant knowingly and voluntary waived his Miranda ri ght s, an d a cc or di ngly , w e aff irm t he c our t’s de nial o f A ppe llant ’s m otio n to sup pre ss h is inc ulp ator y statem ents . We have considered a ll of t he content ions pre sented by the parties and conc lude th at n o a dd itio na l d isc us sio n i s n ec es sa ry. The judgment of the dist rict court wil l be affi rmed.