1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-2-1999

United States v Johnson

Precedential or Non-Precedential:

Docket 98-2012

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Recommended Citation

"United States v Johnson" (1999). 1999 Decisions. Paper 316.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/316
Filed December 2, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-2012 

UNITED STATES OF AMERICA 

v. 

KENNETH JOHNSON 

 Appellant. 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Criminal No. 97-cr-00241-1) 

District Judge: Honorable Clarence C. Newcomer 

Submitted Under Third Circuit LAR 34.1(a) 

September 30, 1999 

BEFORE: NYGAARD, ALITO and ROSENN, Circuit Judges. 

(Filed December 2, 1999) 
 Peter A. Levin, Esq. 

 1927 Hamilton Street 

 Philadelphia, PA 19130 

 Counsel for Appellant Kenneth 

 Johnson 

 Anthony J. Wzorek, Esq. 

 Office of United States Attorney 

 615 Chestnut Street 

 Suite 1250 

 Philadelphia, PA 19106 

 Counsel for Appellee United States 

 of America 

OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

Appellant, Kenneth Johnson, was convicted of two counts 

of conspiracy to interfere with interstate commerce by 

robbery, see 18 U.S.C. S 1951, and one count of use of a 

firearm during a crime of violence, see 18 U.S.C. S 924(c)(1). 

The first robbery occurred on December 23, 1995, at

Littman Jewelers in Cheltenham, Pennsylvania. An 

employee testified that he was at the front of the store 

placing jewelry in display cases when he saw three males 

enter the store (although more were implicated in this 

robbery). Two of the three, Nafis Murray and Darrell 

Williams, pleaded guilty to this robbery and testified 

against the third, appellant Johnson. They testified that 

Murray was armed with a bat, as was another codefendant, William Cole. Cole stood near the entrance, 

while Johnson and Williams wielded sledgehammers to

break open the jewelry display cases. After smashing the 

two jewelry display cases, they took diamond rings. During 

the robbery, Murray threatened to hit an employee with the 

baseball bat unless she put the phone down. 

The second robbery took place on March 19, 1996, at the 

Best Products, Inc., store located in Hampton, Virginia. An 

employee there testified that he saw four males enter the 

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store. One of them put a gun to the employee's head and 

told him not to say anything. The other three broke open 

jewelry display cases and stole jewelry before fleeing. Three 

co-defendants, Nafis Murray, Darrell Williams, and Ferrus 

Riddick, pleaded guilty to this robbery and testified against 

the fourth, Johnson. Williams testified that it was he who 

put a gun, owned by Johnson, to a security guard's head 

while Johnson smashed a jewelry display case with a

sledgehammer. 

Johnson was tried for both robberies before a jury in the 

Eastern District of Pennsylvania. He was found guilty on all 

counts, and was sentenced to 146 months in prison. He 

appeals, arguing that the district court erred by: (1) 

enhancing his sentence four levels for use of a dangerous 

weapon during a robbery, see U.S.S.G. S 2B3.1(b)(2)(D); (2) 

declining to conduct an in camera review of the presentence 

reports for Murray and Williams to check for impeachment 

material; (3) restricting defense questioning of Murray and 

Williams regarding other robberies they have participated 

in; (4) ruling the government's failure to disclose certain 

exculpatory material under Brady v. Maryland, 373 U.S. 

83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) until after trial 

was harmless error; (5) admitting testimony of Murray and 

Williams when special treatment they received might

amount to payment in violation of the criminal gratuity 

statute, 18 U.S.C. S 201(c)(2); (6) allowing testimony of an 

uncharged robbery allegedly involving Johnson; and (7) 

instructing the jury that it could consider Johnson's 

"immediate flight" following his indictment. 

We review the court's factual findings for clear error and 

have plenary review over conclusions of law. Our review of 

a district court's interpretation of the sentencing guidelines 

is de novo. See United States v. Weadon, 145 F.3d 158, 159 

(3d Cir. 1998). We review the court's decisions on in camera 

review, admission of evidence, and instructions to the jury 

for abuse of discretion. We will affirm. 

I. 

A. 

The district court calculated Johnson's sentence using 

the 1997 Sentencing Guidelines, which provide a base 

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offense for robbery of 20. See U.S.S.G.S 2B3.1(a). This base 

level may be enhanced if a weapon was used during the 

robbery. U.S.S.G. S 2B3.1(b)(2) provides: 

 (A) If a firearm was discharged, increase by 7 levels; (B) 

 if a firearm was otherwise used, increase by 6 levels; 

 (C) if a firearm was brandished, displayed, or 

 possessed, increase by 5 levels; (D) if a dangerous 

 weapon was otherwise used, increase by 4 levels; (E) if 

 a dangerous weapon was brandished, displayed, or 

 possessed, increase by 3 levels; or (F) if a threat of 

 death was made, increase by 2 levels. 

The terms "brandished," "dangerous weapon," and 

"otherwise used" are defined in the commentary to U.S.S.G. 

S 1B1.1. See U.S.S.G. S 2B3.1, Commentary, application 

note 1. 

 (c) "Brandished" with reference to a dangero us weapon 

 (including a firearm) means that the weapon was 

 pointed or waved about, or displayed in a threatening 

 manner. 

 (d) "Dangerous weapon" means an instrument c apable 

 of inflicting death or serious bodily injury. Where an 

 object that appeared to be a dangerous weapon was 

 brandished, displayed, or possessed, treat the object as 

 a dangerous weapon. 

 (g) "Otherwise used" with reference to a dan gerous 

 weapon (including a firearm) means that the conduct 

 did not amount to the discharge of a firearm but was 

 more than brandishing, displaying, or possessing a 

 firearm or other dangerous weapon. 

U.S.S.G. S 1B1.1, commentary, application note 1. 

When the district court enhanced Johnson's sentence

four levels because he "otherwise used" a dangerous

weapon pursuant to U.S.S.G. S 2B3.1(b)(2)(D), it only 

considered the conduct in the Littman Jewelers robbery, 

where no guns were used. Johnson argues that no 

enhancement was warranted because no dangerous 

weapons were used in this robbery, or in the alternative 

that the proper enhancement was three and not four levels 

under U.S.S.G. S 2B3.1(b)(2)(E) because he merely 

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"brandished" a sledgehammer, but did not "otherwise use" 

it during the robbery. 

B. 

As an initial matter, we reject Appellant's contention that 

a sledgehammer, wielded in the course of a robbery and 

used to smash open display cases in front of bystanders, 

cannot be considered a dangerous weapon. Under the 

circumstances, it clearly was "an instrument capable of 

inflicting death or serious bodily injury." U.S.S.G. S 1B1.1, 

application note 1(d). So was the baseball bat carried by 

one of Johnson's co-defendants. Appellant argues that 

because any object may conceivably be used to harm 

someone, we would render the definition of a "dangerous 

weapon" devoid of meaning if we extended it to a 

sledgehammer. However, a common-sense look shows this 

is not true. 

A baseball bat, carried onto the baseball diamond, is 

clearly a sport implement and not a dangerous weapon. 

Likewise, a sledgehammer, properly employed on a 

construction site, is clearly a tool. But when these items are 

carried into the scene of a robbery, and employed to 

threaten bystanders, they just as clearly become dangerous 

weapons. Put another way, does it matter if a robber uses 

a switch-blade knife or a steak knife? We think not and 

opine that the distinction would likely not be significant to 

any potential victims of either. Both are dangerous weapons 

when used in a robbery. In the context of this case, the 

sledgehammer and the baseball bat both fit the definition of 

a "dangerous weapon" contained in U.S.S.G.S 1B1.1, 

application note 1(d), and the circumstances demonstrate it 

was reasonable for the District Court to treat them as such. 

C. 

We turn next to the question of whether these dangerous 

weapons were merely "brandished," justifying a three level 

sentence enhancement under S 2B3.1(b)(2)(E), or whether 

they were "otherwise used" in the course of the robbery, 

warranting a four level enhancement under S 2B3.1(b)(2)(D). 

Whether Johnson's sentence should have been enhanced 

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by three or four levels depends on how one interprets the 

Guidelines. 

Courts of Appeals have generally distinguished between 

the general pointing or waving about of a weapon, which 

amounts to "brandishing," and the pointing of a weapon at 

a specific victim or group of victims to force them to comply 

with the robber's demands. In essence, "brandishing" 

constitutes an implicit threat that force might be used, 

while a weapon is "otherwise used" when the threat 

becomes more explicit. See United States v. Gilkey, 118 

F.3d 702, 705-06 (10th Cir. 1997) (gun was "otherwise 

used" to force victims to move, despite lack of evidence 

regarding physical contact with victims or use of verbal 

threats); United States v. Elkins, 16 F.3d 952 (8th Cir. 

1994) (knife was "otherwise used" to force victim to move); 

United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir. 

1991) (knife was "otherwise used" when intentionally held 

to victim's throat as robber made verbal threats); United 

States v. Burton, 126 F.3d 666, 669 (5th Cir. 1997) (gun 

was "otherwise used" when pointed at victims during bank 

robbery to ensure their compliance). But see United States 

v. Matthews, 20 F.3d 538 (2d Cir. 1994) (pointing firearms 

at customers during bank robbery, ordering them tofloor, 

and threatening to kill them if they did not comply

amounted to "brandishing"). 

We too, have considered the question of whether a 

firearm was "otherwise used" during a robbery, or merely 

"brandished." We reasoned that a firearm is "brandished" 

when it is waved about in a generally menacing manner 

during a robbery. See United States v. Johnson, 931 F.2d 

238, 240-41 (3d Cir. 1991). When, however, that firearm is 

leveled at the head of a victim, and especially when this act 

is accompanied by explicit verbal threats, we have had no 

difficulty determining that the firearm was"otherwise 

used." Id. 

We agree with the Court of Appeals for the First Circuit, 

which held that 

 a person may "brandish" a weapon to "advise" those 

 concerned that he possesses the general ability to do 

 violence, and that violence is imminently or

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 immediately available. . . . Altering this general display 

 of weaponry by [for instance] specifically leveling a 

 cocked firearm at the head or body of a bank teller or 

 customer, ordering them to move or be quiet according 

 to one's direction, is a cessation of "brandishing" and 

 the commencement of "otherwise used." 

United States v. LaFortune, ___ F.3d ___, No. 99-1059, 1999 

WL 701674, at *4 (1st Cir. Sept. 15, 1999). Pointing a 

weapon at a specific person or group of people, in a manner 

that is explicitly threatening, is sufficient to make out 

"otherwise use" of that weapon. We hold this is true when 

any dangerous weapon is employed: It need not be a 

firearm. 

Other courts have held that verbal threats are not always 

required to make out "otherwise use" of a weapon. Some 

have held that explicit threats may be made either verbally, 

or through conduct alone. See United States v. Nguyen, ___ 

F.3d ___, No. 98-40066, 1999 WL 740439, at * 5 (5th Cir. 

Sept. 22, 1999). Here, however, Johnson's sentence was 

properly enhanced even were we to require verbal threats. 

In addition to Johnson's use of a sledgehammer to smash 

open display cases, one of the co-defendants wielded a 

baseball bat in a threatening manner and testified that he 

used it to intimidate people in the store. This co-defendant 

testified that on one occasion he held the baseball bat up 

high and told an employee to put the phone down or he 

would break her neck, or "knock her damn head off."

Johnson's co-defendant with the baseball bat thus clearly 

"otherwise used" that dangerous weapon to facilitate the 

robbery when he told a specific employee to put the phone 

down, and backed up his command by raising the bat and 

threatening to harm or kill her with it. 

The District Court was entitled, for sentencing purposes, 

to consider Johnson's behavior and that of his codefendants. See United States v. Nguyen, ___ F.3d ___, No. 

98 40066, 1999 WL 740439, at *4 (5th Cir. Sept. 22, 1999) 

(Sentencing adjustments may include "all reasonably

foreseeable acts and omissions in furtherance of the jointly 

undertaken criminal activity.") (citing clarification in 

U.S.S.G. S 1B1.3(a)(1)(B), effective Nov. 1, 1998); United 

States v. Missick, 875 F.2d 1294, 1301 (7th Cir. 1989) 

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("[Defendant] may still have been properly subject to an 

enhanced sentence based on the possession of firearms by 

[co-defendants] without individually possessing a firearm 

under the theory of co-conspirator liability.") (citing 

Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 

L. Ed. 1489 (1946)). Cf. United States v. Gonzalez, 918 F.2d 

1129, 1135 n.3 (3d Cir. 1991) (noting in context of finding 

criminal liability that facts of case would also allow 

sentence enhancement of one defendant based on firearm 

possession by another). We hold that from the combination 

of factors we have described, a dangerous weapon was 

"otherwise used" at the robberies, giving sufficient support 

to the District Court's decision to enhance Johnson's 

sentence to level 4. 

In addition, the District Court may enhance Johnson's 

sentence because he "otherwise used" a weapon, even

though he did not make the explicit verbal threat, because 

his conduct was "equally coercive and threatening."

LaFortune, 1999 WL 701674 at *3, citing United States v. 

Wooden, 169 F.3d 674, 676 (11th Cir. 1999). Johnson did 

not merely stand at the front of the store holding the 

sledgehammer for some legitimate purpose. He used it to 

smash jewelry cases in front of customers and employees, 

while his co-defendant held a baseball bat aloft to"break 

necks" or "knock heads off." We have no doubt that the 

customers and employees might well have felt coerced and 

threatened by this conduct. And, we have no doubt at all, 

that it amounted to more than the mere brandishing,

display or possession of a dangerous weapon. See U.S.S.G. 

S 1B1.1, application note 1(g). The District Court was 

entitled to give, and Johnson richly deserved, the four level 

enhancement he received under U.S.S.G. S 2B3.1 (b)(2)(D). 

II. 

None of the remaining issues raised have merit, and we 

will dispose of them summarily. First, the government 

provided Johnson with large amounts of potentially 

exculpatory material prior to trial, as required by Brady v. 

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 

(1963). The defense was allowed to cross-examine 

prosecution witnesses on many areas affecting credibility. 

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Despite an unexplained late Brady disclosure, there is no 

reasonable probability that it would have changed the 

trial's outcome. See United States v. Bagley, 473 U.S. 667, 

682, 105 S. Ct. 3375, 3383-84, 87 L. Ed. 2d 481 (1985). 

The additional impeachment evidence would not have put 

the whole case in such a different light as to undermine 

confidence in the verdict, and would have been merely 

cumulative. See Hollman v. Wilson, 158 F.3d 177 (3d Cir. 

1998), cert. denied, ___ U.S. ___, 119 S. Ct. 1035, 143 L. 

Ed. 2d 44 (1999). Thus, the decision on whether or not to 

hold an in camera review of this material was well within 

the district court's discretion. 

Next, Johnson's arguments regarding the criminal 

gratuity statute, 18 U.S.C. S 201 (c) (2), are without 

foundation, and we have already rejected them in United 

States v. Hunte, ___ F.3d ___, No. 97-1987, 1999 WL

649627 (3d Cir. Aug. 26, 1999). 

The government offered evidence of the prior robbery for 

the purpose of showing a common plan under Fed. R. Evid. 

404(b). This is a legitimate reason to introduce this 

evidence, and the prior robbery was clearly established. We 

favor the admission of such evidence, "if relevant for any 

other purpose than to show a mere propensity or 

disposition on the part of the defendant to commit the 

crime." United States v. Long, 574 F.2d 761, 766 (3d Cir.), 

cert. denied, 439 U.S. 985, 99 S. Ct. 577, 58 L. Ed. 2d 657 

(1978); see also United States v. Simmons, 679 F.2d 1042, 

1050 (3d Cir. 1982), cert. denied, 462 U.S. 1134, 103 S. Ct. 

3117, 77 L. Ed. 2d 1370 (1983). Johnson's bad acts were 

used for a proper purpose that was not substantially 

outweighed by a risk of unfair prejudice under Fed. R. Evid. 

403. "In weighing the probative value of evidence against 

the dangers . . . in Rule 403, the general rule is that the 

balance should be struck in favor of admission." United 

States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980). Once 

again, the decision whether to admit it was within the 

district court's considerable discretion. 

Finally, there was both direct and circumstantial 

evidence of Johnson's immediate flight. Following Johnson's 

indictment, Special Agent Stephen J. Heaney of the FBI 

began searching for him. While visiting the homes of 

 9 
Johnson's friends and relatives, Agent Heaney advised 

these people that a warrant had been issued for Johnson. 

Indeed, appellant's own words indicated a conscious

awareness of the crimes with which he was charged -- he 

admitted to one David Barberich, a police dispatcher, that 

he knew he was sought by the FBI. Johnson even told

Barberich that Agent Heaney was the contact person for his 

case. Thus, it was well within the district court's discretion 

to give the immediate flight instruction. 

III. 

In sum, we reject appellant's arguments on every 

allegation of error and conclude that the District Court did 

not err. We will affirm. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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