United States v. Johnson

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

1-21-2005

USA v. Johnson

Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1347

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-1347

UNITED STATES OF AMERICA

v.

ODELL ROBERT JOHNSON

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 02-cr-00656-1)

District Judge: Honorable Cynthia M. Rufe

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 6, 2004

Before: AMBRO and VAN ANTWERPEN, Circuit Judges, and

SHADUR, District Judge.*

(Filed: January 21, 2005)

_________

OPINION

VAN ANTWERPEN, Circuit Judge.

Appellant Odell Robert Johnson was convicted of numerous

*

Hon. Milton I. Shadur, United States District Judge for the

Northern District of Illinois, sitting by designation.

drug offenses following a jury trial before the Honorable Cynthia M.

Rufe. Appellant now challenges the admissibility of incriminating

tape recordings that were played for the jury during his trial.

Specifically, Appellant claims that the admission of recorded

conversations between himself and co-conspirators violated his Sixth

Amendment right to confront witnesses where the co-conspirators did

not testify and the government did not show that the co-conspirators

were unavailable.1

Appellant argues that we should extend the Supreme Court’s

recent holding in Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354 (2004), to create an unavailability requirement in all cases

where the prosecution wishes to admit out-of-court statements.

Because the Supreme Court limited its holding in Crawford to

testimonial statements, see United States v. Hendricks, No. 04-2465,

2005 WL 81899 (3d Cir. 2005) at *5, previous jurisprudence

allowing the admission of non-testimonial statements remains

untouched. We therefore affirm the District Court’s decision to admit

the non-testimonial statements that are challenged in this case.

I.

On October 8, 2002, a federal grand jury indicted Appellant,

alleging the following federal crimes: conspiracy to possess with the

1

Appellant challenges the admission of two sets of recordings.

The first set consisted of interactions between Appellant and a

government informant. The second set consisted of drug-related

telephone conversations between Appellant and a number of co-

conspirators that were recorded by a court-authorized wiretap.

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intent to distribute 500 grams or more of cocaine in violation of 21

U.S.C. § 846; use of a telephone to facilitate drug distribution in

violation of 21 U.S.C. § 843(b); six counts of distribution of cocaine

in violation of 21 U.S.C. § 842(a)(1); and two counts of interference

with interstate commerce by robbery in violation of 18 U.S.C. § 1951.

A jury trial commenced in the Eastern District of Pennsylvania on

June 25, 2003.

During the trial, the government presented the testimony of

Terrence Perkins and Derek Wayns, two cooperating co-defendants.

Both witnesses testified regarding various drug transactions involving

Appellant. Their testimony indicated that Appellant had been

involved in a scheme to steal cocaine from another drug dealer in

Philadelphia in August to September 2000, and had made two trips

to Houston to obtain cocaine in June to July 2001 and December

2001.

The government also played a number of video and audio

tapes and distributed transcripts of some of the recordings to the jury.

One set of audio tapes consisted of telephone conversations between

Johnson and a confidential government informant in which the two

were arranging for particular drug transactions. The government also

played videotapes for the jury which showed Appellant selling drugs

to the informant. Pennsylvania State Trooper Tyson Havens testified

that the confidential source had consented to being recorded. He also

identified the voices on the audio tapes and testified regarding the

procedures he followed in making and collecting the tapes. The

confidential informant did not testify at trial.

Another set of recordings included various drug-related

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telephone conversations that were obtained during the course of a

court-authorized wiretap. None of the individuals whose voices

appear on the wiretap recordings testified at trial. The government

offered all of the recordings into evidence without objection.2

The jury convicted Appellant of all charges except the two

counts of interference with interstate commerce by robbery. On

February 3, 2004, the District Court entered the judgment and

imposed a sentence of 360 months in prison, followed by 8 years of

supervised release, a fine of $2,500, and a special assessment of $800.

II.

Pursuant to 18 U.S.C. § 3231, the District Court properly

exercised subject matter jurisdiction over the federal criminal charges

arising under 21 U.S.C. §§ 841(a)(1), 843(b), and 846 as well as 18

U.S.C. § 1951. Appellant filed a timely Notice of Appeal on

February 10, 2004, and this Court has jurisdiction over the appeal

pursuant to 28 U.S.C. § 1291.

Where the appellant failed to object to the admission of

evidence during trial, this Court reviews the decision to admit that

evidence for plain error. United States v. Adams, 252 F.3d 276, 278-

79 (3d Cir. 2001) (citing Johnson v. United States, 520 U.S. 461, 466

2

Appellant initially objected to the recordings of conversations

and meetings between himself and the confidential source on the basis

that they may not have been taken voluntarily. However, after hearing

the informant state on tape that the recordings were voluntary, Appellant

withdrew the objection. App. at A154.

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(1997)); see also Fed. R. Crim. P. 52(b). This Court recently

explained our role in exercising plain error review:

Under plain error review, we may grant relief if (1)

the District Court committed an “error,” (2) it was

“plain,” and (3) it affected “substantial rights” of the

defendant. United States v. Olano, 507 U.S. 725, 732

(1993). “A deviation from a legal rule is [an] ‘error.’”

United States v. Russell, 134 F.3d 171, 180 (3d Cir.

1998) (citation omitted). It is “plain” when “‘clear’ or

‘obvious.’” Id. (citation omitted). In order for an error

to affect “substantial rights,” it must have been

“prejudicial”; in other words, “it must have affected

the outcome of the district court proceedings.” Olano,

507 U.S. at 734. If these requirements are satisfied,

we should exercise our discretion to grant relief if the

error “‘seriously affects the fairness, integrity or

public reputation of judicial proceedings.’” Id. at 736

(citation omitted); see also Adams, 252 F.3d at 284-

85.

United States v. Plotts, 359 F.3d 247, 249 (3d Cir. 2004).

III.

Appellant argues that admitting the recordings into evidence

constituted plain error and violated his Sixth Amendment rights

because they contained hearsay statements of individuals who did not

testify at trial and were admitted without a showing that the

declarants were unavailable. The government states in its brief that

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there were three types of statements found on the tapes, all of which

are admissible under the federal hearsay and nonhearsay rules. First,

the statements of Appellant himself are admissible as party

admissions under Fed. R. Evid. 801(d)(2)(A). Second, the statements

of individuals other than Appellant recorded from the wiretap are co-

conspirator statements, admissible under Fed. R. Evid. 801(d)(2)(E).

Finally, the statements of the confidential informant do not fit within

the definition of hearsay provided in Fed. R. Evid. 801(c) because

they were not offered for the truth of the matter asserted; they were

offered to provide context to Appellant’s admissions.

While we may agree with the government’s assertions with

respect to the Federal Rules of Evidence, it should be noted that

Appellant does not challenge the admissibility of the tapes under

those rules; this appeal focuses on the rights conferred by the

Confrontation Clause of the Sixth Amendment. The Confrontation

Clause confers rights that cannot be satisfied merely by meeting the

technical requirements of the Federal Rules of Evidence. In Crawford

v. Washington, the Court cautioned that “[l]eaving the regulation of

out-of-court statements to the law of evidence [alone] would render

the Confrontation Clause powerless to prevent even the most flagrant

inquisitorial practices.” 541 U.S. 36, __, 124 S. Ct. 1354, 1364

(2004). As such, the question of whether or not the recordings were

admissible under the Federal Rules of Evidence is separate from our

Sixth Amendment Inquiry.

Supreme Court precedent prior to Crawford clearly allows for

non-testimonial co-conspirator statements to be admitted over Sixth

Amendment challenges. United States v. Inadi, 475 U.S. 387, 106 S.

Ct. 1121 (1986). Inadi, like the case at bar, involved the admissibility

6

of wiretap recordings that included statements by co-conspirators who

did not testify at trial. The Court held that the Confrontation Clause

does not require a showing that the co-conspirators were unavailable

as a condition for admitting the recordings. Id. at 400, 106 S. Ct. at

1129. In so holding, the Court drew a clear line between the

admissibility of statements made during prior testimony and non-

testimonial co-conspirator statements. Id. at 394-95, 106 S. Ct. at

1126.

The Court noted that the requirement of establishing

unavailability was developed in cases involving former testimony,

which “seldom has independent evidentiary significance on its own,

but is intended to replace live testimony.” Id. at 394, 106 S. Ct. at

1126. The Court then distinguished non-testimonial co-conspirator

statements, noting that “[b]ecause they were made while the

conspiracy is in progress, such statements provide evidence of the

conspiracy’s context that cannot be replaced, even if the declarant

testifies to the same matters in court.” Id. at 395, 106 S. Ct. at 1126.

Moreover, “co-conspirator statements derive much of their value

from the fact that they are made in a context very different from trial,

and therefore are usually irreplaceable as substantive evidence.” Id.

at 395-96, 106 S. Ct. at 1126.

Appellant now urges us to reconsider the ruling in Inadi in

light of the Supreme Court’s recent decision in Crawford. In

Crawford, the Court held that out-of-court statements which qualify

as testimonial are inadmissible under the Confrontation Clause unless

the declarant is unavailable and the defendant had the opportunity to

cross-examine the declarant. 541 U.S. at __, 124 S. Ct. at 1374.

Appellant argues that this ruling should be extended to apply to all

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out-of-court statements, not only testimonial statements.

This Court recently decided a very similar issue in United

States v. Hendricks. In that case, the trial court assumed that

Crawford only applied to testimonial statements but nevertheless

excluded wiretap statements on the theory that they “qualified as

testimonial statements and thus fell within the rule of Crawford.”

Hendricks, 2005 WL 81899 at *2. We reversed the trial court’s

ruling, concluding that wiretap statements are not “testimonial,” and

that the Supreme Court in Crawford intended to maintain the

distinction between testimonial and non-testimonial hearsay. Id. at

*5.

As we noted in Hendricks, Crawford involved only

testimonial statements, and the Court had no reason to reconsider

previous jurisprudence concerning non-testimonial statements.

However, Appellant would have us treat Crawford as an invitation to

ignore Inadi and create, for the first time, an unavailability

requirement in all cases where the prosecution wishes to admit out-

of-court statements. Appellant ignores the fact that the Supreme

Court’s reasoning in Crawford actually relies on the traditional

distinction between testimonial and non-testimonial statements. In

his majority opinion, Justice Scalia traced the history of the

confrontation requirement and found that “the principal evil at which

the Confrontation Clause was directed was the civil-law mode of

criminal procedure, and particularly its use of ex parte examinations

as evidence against the accused. Crawford, 541 U.S. at __, 124 S.

Ct. at 1364. In drafting the Sixth Amendment right to confront

“witnesses,” the Framers were creating a right to confront “those who

‘bear testimony.’” Id. “The constitutional text, like the history

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underlying the common-law right of confrontation, thus reflects an

especially acute concern with a specific type of out-of-court

statement.” Id. (emphasis added).

The holding in Crawford was thus confined to the question of

whether testimonial statements could be admitted without first

showing unavailability and a prior opportunity to cross-examine, and

that case has no impact on the Court’s prior decisions regarding non-

testimonial statements. Moreover, the Court reaffirmed that the Sixth

Amendment allows for different treatment of testimonial and non-

testimonial statements:

Where nontestimonial hearsay is at issue, it is wholly

consistent with the Framers’ design to afford the

States flexibility in their development in hearsay

law.... Where testimonial evidence is at issue,

however, the Sixth Amendment demands what the

common law required: unavailability and a prior

opportunity to cross-examine.

Id. at __, 124 S. Ct. At 1374. This is a clear expression of the

Supreme Court’s intent to retain the distinction between testimonial

and non-testimonial statements in our Sixth Amendment

jurisprudence. Therefore, Appellant’s argument that the

Confrontation Clause necessarily imposes the same requirements for

admitting non-testimonial statements as it does for testimonial

statements is misguided.

None of the statements contained in the recordings at issue in

this case were testimonial. Hendricks, 2005 WL 81899 at *7-*9

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(holding that wiretap statements and statements of defendants or their

co-conspirators made in the conversations with confidential

informants are non-testimonial). Therefore, the District Court’s

decision to admit the recordings without first requiring a showing of

unavailability did not violate Appellant’s Sixth Amendment right to

confront witnesses and did not constitute plain error.

For the foregoing reasons, we affirm Johnson’s conviction.

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