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D ock e t 98-2012

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. e du/thir dc ir c uit_1999/316Filed 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 co unts 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 t his robbery). Two of the three, Nafis Murray and Darrel l Williams, pleaded guilty to this robbery and testif ied against the third, appellant Johnson. They testifie d thatMurray was armed with a bat, as was another codefendant, William Cole. Cole stood near the entran ce, while Johnson and Williams wielded sledgehammers to break open the jewelry display cases. After smashin g the two jewelry display cases, they took diamond rings. During the robbery, Murray threatened to hit an employee w ith 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, Virg inia. An employee there testified that he saw four males ent er the

2store. 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 flee ing. Three co-defendants, Nafis Murray, Darrell Williams, and Ferrus Riddick, pleaded guilty to this robbery and testifi ed 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 guil ty 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 dan gerous 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 pre sentence reports for Murray and Williams to check for impeac hment material; (3) restricting defense questioning of Mu rray and Williams regarding other robberies they have partic ipated 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 a fter trial was harmless error; (5) admitting testimony of Murr ay and Williams when special treatment they received might amount to payment in violation of the criminal grat uity statute, 18 U.S.C. S 201(c)(2); (6) allowing testim ony 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 er ror and have plenary review over conclusions of law. Our re view of a district court's interpretation of the sentencing guidelines is de novo. See United States v. Weadon, 145 F.3d 1 58, 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 us ing the 1997 Sentencing Guidelines, which provide a bas e

3offense 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 t he 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 da ngerous weapon was otherwise used, increase by 4 lev els; (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, applicat ion
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 th reatening

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 weapo n was brandished, displayed, or possessed, treat t he 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 posses sing 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 on ly
considered the conduct in the Littman Jewelers robb ery, where no guns were used. Johnson argues that no enhancement was warranted because no dangerous weapons were used in this robbery, or in the altern ative that the proper enhancement was three and not four levels under U.S.S.G. S 2B3.1(b)(2)(E) because he merely

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

it during the robbery.

B.

As an initial matter, we reject Appellant's content ion that a sledgehammer, wielded in the course of a robbery and used to smash open display cases in front of bystan ders, cannot be considered a dangerous weapon. Under the circumstances, it clearly was "an instrument capabl e of inflicting death or serious bodily injury." U.S.S.G . S 1B1.1, application note 1(d). So was the baseball bat carr ied by one of Johnson's co-defendants. Appellant argues th at because any object may conceivably be used to harm someone, we would render the definition of a "dange rous weapon" devoid of meaning if we extended it to a sledgehammer. However, a common-sense look shows th is
is not true.

A baseball bat, carried onto the baseball diamond, is clearly a sport implement and not a dangerous weapo n. Likewise, a sledgehammer, properly employed on a construction site, is clearly a tool. But when thes e items are carried into the scene of a robbery, and employed t o threaten bystanders, they just as clearly become da ngerous weapons. Put another way, does it matter if a robbe r uses a switch-blade knife or a steak knife? We think not and opine that the distinction would likely not be sign ificant 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 defi nition of a "dangerous weapon" contained in U.S.S.G.S 1B1.1, application note 1(d), and the circumstances demons trate it
was reasonable for the District Court to treat them as such.

C.

We turn next to the question of whether these dange rous weapons were merely "brandished," justifying a thre e level sentence enhancement under S 2B3.1(b)(2)(E), or whe ther they were "otherwise used" in the course of the rob bery, warranting a four level enhancement under S 2B3.1(b )(2)(D).

Whether Johnson's sentence should have been enhance d

5by three or four levels depends on how one interpre ts the

Guidelines.

Courts of Appeals have generally distinguished betw een the general pointing or waving about of a weapon, w hich amounts to "brandishing," and the pointing of a wea pon 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 "otherwi se used" to force victims to move, despite lack of evi dence regarding physical contact with victims or use of v erbal threats); United States v. Elkins, 16 F.3d 952 (8th Cir. 1994) (knife was "otherwise used" to force victim t o move); United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir. 1991) (knife was "otherwise used" when intentionall y 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 f irearms at customers during bank robbery, ordering them tof loor, 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 m erely
"brandished." We reasoned that a firearm is "brandi shed" when it is waved about in a generally menacing mann er during a robbery. See United States v. Johnson, 931 F.2d 238, 240-41 (3d Cir. 1991). When, however, that fir earm is leveled at the head of a victim, and especially whe n this act is accompanied by explicit verbal threats, we have had no difficulty determining that the firearm was"otherwi se used." Id.

We agree with the Court of Appeals for the First Ci rcuit,
which held that

a person may "brandish" a weapon to "advise" those concerned that he possesses the general abil ity to do violence, and that violence is imminently or

6immediately available. . . . Altering this g eneral display

of weaponry by [for instance] specifically l eveling 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 "brand ishing" and
the commencement of "otherwise used."

United States v. LaFortune, ___ F.3d ___, No. 99-10 59, 1999 WL 701674, at *4 (1st Cir. Sept. 15, 1999). Pointin g a weapon at a specific person or group of people, in a manner that is explicitly threatening, is sufficient to ma ke out "otherwise use" of that weapon. We hold this is tru e 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. S ome have held that explicit threats may be made either verbally, or through conduct alone. See United States v. Nguy en, ___ 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 th reats. In addition to Johnson's use of a sledgehammer to s mash open display cases, one of the co-defendants wielde d 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 c learly "otherwise used" that dangerous weapon to facilitat e 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 pur poses,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 th e jointly undertaken criminal activity.") (citing clarificati on 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. 19 89)

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

enhanced sentence based on the possession of firear ms by [co-defendants] without individually possessing a f irearm under the theory of co-conspirator liability.") (ci ting 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 al low
sentence enhancement of one defendant based on fire arm possession by another). We hold that from the combi nation of factors we have described, a dangerous weapon wa s "otherwise used" at the robberies, giving sufficien t 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 Stat es 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 i t to smash jewelry cases in front of customers and emplo yees, 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 coerce d and threatened by this conduct. And, we have no doubt a t 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 governme nt 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 credi bility.

8Despite an unexplained late Brady disclosure, there is no

reasonable probability that it would have changed t he trial's outcome. See United States v. Bagley, 473 U .S. 667, 682, 105 S. Ct. 3375, 3383-84, 87 L. Ed. 2d 481 (19 85). The additional impeachment evidence would not have put the whole case in such a different light as to unde rmine confidence in the verdict, and would have been mere ly 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 with out foundation, and we have already rejected them in Un ited States v. Hunte, ___ F.3d ___, No. 97-1987, 1999 WL 649627 (3d Cir. Aug. 26, 1999).

The government offered evidence of the prior robber y for the purpose of showing a common plan under Fed. R. Evid. 404(b). This is a legitimate reason to introduce th is evidence, and the prior robbery was clearly establi shed. 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 (3 d 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, 1 03 S. Ct. 3117, 77 L. Ed. 2d 1370 (1983). Johnson's bad acts were used for a proper purpose that was not substantiall y outweighed by a risk of unfair prejudice under Fed. R. Evid. 403. "In weighing the probative value of evidence a gainst the dangers . . . in Rule 403, the general rule is that the
balance should be struck in favor of admission." Un ited 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 J ohnson's indictment, Special Agent Stephen J. Heaney of the FBI began searching for him. While visiting the homes o f

9Johnson's friends and relatives, Agent Heaney advis ed

these people that a warrant had been issued for Joh nson. 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 dispatche r, 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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