The opinion
Case: 22-30421 Document: 00516945543 Page: 1 Date Filed: 10/26/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 26, 2023
No. 22-30421
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Curtis Johnson, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CR-201-3
______________________________
Before Graves, Higginson, and Ho, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Curtis Johnson, Jr. appeals his convictions related to an armed robbery
resulting in the death of Hector Trochez, an armored truck guard, making a
bank delivery. Finding no reversible error, we AFFIRM.
I.
Johnson was charged with conspiracy to obstruct commerce by
robbery (18 U.S.C. § 1951(a)); obstruction of commerce by robbery (id.
§ 1951(a)); and using, carrying, brandishing, and discharging firearms during
and in relation to a crime of violence, causing death (id. §§ 924(c)(1)(A),
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924(j)(1)). Johnson was charged alongside: Jeremy Esteves; Robert
Brumfield, III; Chukwudi Ofomata; Lilbear George; and Jasmine Theophile.
We briefly describe the government’s trial proof. Ofomata stored
firearms at the home of witness Cedric Wade and retrieved the firearms on
the morning of the robbery. Esteves drove a stolen vehicle with Johnson,
Ofomata, and George to the bank parking lot. George exited the vehicle,
approached the guard, Hector Trochez, who was outside an armored truck,
and began shooting. Ofomata then exited the vehicle and also began shooting
at Trochez and, almost simultaneously, Johnson exited the vehicle and began
shooting at the truck when it appeared a second guard was going to exit the
truck. The assailants fled. Trochez died on the scene from a gunshot wound.
The government never purported to be able to identify which of the three
shooters fired the fatal shot.
The government noticed its intent to seek the death penalty against
the three defendants charged with firing firearms during the robbery—
Johnson, George, and Ofomata—which it later withdrew. The district court
severed the trial of the then-capital defendants. Johnson’s first trial, in July
2021, ended in a mistrial after the jury could not reach a verdict. At his retrial
in March 2022, a jury convicted Johnson of each of the three counts charged.
Johnson timely appealed.
II.
First, Johnson contends that the government, in closing, committed
the “prosecutor’s fallacy” by equating the random match probability of a
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partial DNA sample with the probability that the defendant was not the
sample’s source.
At Johnson’s second trial, the government introduced expert
testimony about a partial DNA sample obtained from a bandana found in the
vehicle used in the robbery. Testing yielded inclusionary match statistics
capturing the probability that the sample was Johnson’s as compared to a
coincidental match of an unrelated person, and the lowest inclusionary match
statistic had an error rate of one in 4,100. That is, the expert explained, only
one in 4,100 people would match the sample as strongly as Johnson did. But,
in the government’s first closing argument, the prosecutor said that Johnson
“left very little DNA, but he left just enough to prove that it was him in the
front seat when you combine the 1 in 4,100 chance that it’s not him.”
Johnson did not object.
The prosecutor’s fallacy occurs when “a juror is told the probability a
member of the general population would share the same DNA is 1 in 10,000
(random match probability), and he takes that to mean there is only a 1 in
10,000 chance that someone other than the defendant is the source of the
DNA found at the crime scene (source probability).” McDaniel v. Brown, 558
U.S. 120, 128 (2010). Conflating these two probabilities, as the prosecutor
did here, yields “an erroneous statement that, based on a random match
probability of 1 in 10,000, there is a 0.01% chance the defendant is innocent
or a 99.99% chance the defendant is guilty.” Id.
We review the unobjected-to remark for reversible plain error. See
United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir. 2008). “To
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demonstrate reversible plain error, [Johnson] ha[s] to show that (1) there is
error; (2) it is plain; and (3) it affected his substantial rights.” Id. at 600.
There is no question that this remark was erroneous. To be plain, “the legal
error must be clear or obvious, rather than subject to reasonable dispute.”
United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012).
Establishing that it affected Johnson’s substantial rights requires showing
that “there is a reasonable probability that the result of the proceedings
would have been different but for the error.” United States v. Montes-Salas,
669 F.3d 240, 247 (5th Cir. 2012). “Even if he could meet that burden, [this
court] still would have discretion to decide whether to reverse, which [it]
generally will not do unless the plain error seriously affected the fairness,
integrity, or public reputation of the judicial proceeding.” Gracia, 522 F.3d
at 600 (citations omitted).
“[T]he determinative question is whether the remarks cast serious
doubt on the correctness of the jury’s verdict.” United States v. Anderson,
755 F.3d 782, 797 (5th Cir. 2014) (internal quotation marks and citation
omitted). The answer, here, is no. We “look at the comment in context.”
United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010) (internal
quotation marks and citation omitted). The statistic was stated correctly by
the prosecution, defense counsel, and the expert witness numerous times,
and, after the government’s first closing argument, defense counsel properly
stated the statistic and emphasized that this was significantly weaker than the
DNA evidence presented against other defendants. Even in rebuttal, the
prosecutor stated that “1 in 4100 actually has some significance,” explaining
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“that there’s a probability that [Johnson] is someone who left that DNA
behind” so “you have to be open-minded to the fact that, well, maybe it is
Curtis Johnson who was there.” The prosecutor continued that “if you
don’t like that statistic—and I don’t love the statistic—I’ve got to look at all
the other facts.”
Contrary to Johnson’s contention that “[t]he impact of the
prosecutor’s error cannot be underestimated, given the fairly
incomprehensible nature of” the expert’s testimony, Johnson Br. 7, the
expert clearly explained the relevant statistic. For example, she explained
that the conclusion was that “it’s 4,100 people you would have to go through
before you may find someone with that match statistic or higher.” The
expert answered “yes” in response to defense counsel’s question that
“[e]ven in a city like New Orleans, there could be hundreds of people with
that same . . . partial DNA match that you were using, correct?”
Furthermore, we reject Johnson’s assertion that his substantial rights
were affected “because the government’s case was almost entirely premised
on DNA evidence.” Johnson Br. 8-9. The government also presented eye-
witness testimony that, on the morning of the robbery, Johnson helped
Ofomata load a bag of firearms into the vehicle used in the robbery, and, as
discussed below, the government properly introduced a statement from a
non-testifying co-defendant that Johnson was one of the shooters who
emerged from the vehicle.
III.
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Second, Johnson contends that the district court erred in admitting
the statement of Johnson’s co-defendant, George, through testimony of
government informant Jamell Hurst, because it was not within Federal Rule
of Evidence 804(b)(3)’s hearsay exception for statements against interest by
unavailable witnesses.
At Johnson’s second trial, Hurst testified about a conversation he had
with his friend George in early 2014 after a sketch of a person of interest was
published. George asked Hurst whether the sketch looked like himself,
Johnson, Ofomata, or Esteves. Hurst testified that George told him that:
[W]hen he first was there and the armored truck arrived or
whatever, he said they was in the car debating on who was going
to jump out first. He was like “F it, I’m going to go first” and
he jumped out and he said—he said he jumped out and told the
guy, like letting him know he was getting robbed, and instead
of the guy like trying to give up the money, he went straight for
his gun and he said he started shooting and he was trying to like
maneuver out the way, so he wouldn’t get shot while he was
shooting; and he said that’s when [Ofomata] hopped out and
started shooting at the guy, too. He was like I don’t know who
killed him, me or [Ofomata], but both of us was shooting. One
of us must have shot the person, too, and he said that’s when
[Johnson] jumped out and started shooting at the truck, so the
person in the truck wouldn’t get out and try to help.
Johnson did not object.
“[I]n the absence of a proper objection, we review only for plain
error.” United States v. Avants, 367 F.3d 433, 443 (5th Cir. 2004). Johnson
contends that “it appears to be an open question as to whether Johnson’s
pretrial objections and objection in his first trial preserved the issue for
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appeal” following his second trial, Johnson Reply Br. 2 (emphasis added), but
Johnson did not even object to the statement at his first trial.1 Johnson must
therefore “show (1) error, (2) that is plain, and (3) that affected his
substantial rights,” such that “there is a reasonable probability that the result
of the proceedings would have been different but for the error.” Montes-
Salas, 669 F.3d at 247. Even so, this court will exercise its discretion to
correct a plain error “only if [it] seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (internal quotation marks and
alterations omitted).
To be admissible under Federal Rule of Evidence 804(b)(3) as a
statement against the penal interest of an unavailable declarant:
(1) The declarant must be unavailable; (2) The statement must
so far tend to subject the declarant to criminal liability that a
reasonable person in his position would not have made the
statement unless he believed it to be true; and (3) The
statement must be corroborated by circumstances clearly
indicating trustworthiness.
United States v. Ebron, 683 F.3d 105, 133 (5th Cir. 2012) (citing United States
v. Dean, 59 F.3d 1479, 1492 (5th Cir. 1995)).
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1
Instead, Johnson objected at the first trial to Hurst’s testimony about the
statement of a different co-defendant (Brumfield) at a different point, to the effect that
Brumfield and unnamed others planned to commit a robbery. Separately, during pre-trial
litigation for the first trial, Johnson moved to sever, based in part on Confrontation Clause
grounds related to George’s statements, including those George made to Hurst that are
now challenged on appeal. Johnson’s motion noted that “[t]hese statements are also
inadmissible hearsay that do not qualify under a hearsay exception as to codefendant[]
Johnson . . . .” The district court denied the motion to sever but explained that Johnson
could re-urge the arguments in the motion at trial. He did not.
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Johnson concedes George’s unavailability. As to the second prong,
Johnson asserts only that “George, while admitting some personal
responsibility, also placed blame on alleged accomplices.” Johnson Br. 10.
George did not shift blame from himself: he subjected himself to criminal
liability by stating that he was the first shooter at the crime scene, and, while
George said that he did not know who fired the fatal shot, he did say that he
was shooting.
On the third prong, Johnson relies on Williamson v. United States to
attack the trustworthiness of statements of co-defendants. 512 U.S. 594, 601
(1994).2 Importantly, George did not make these statements in a custodial
context—unlike the Williamson declarant—but rather made them as a friend,
and thus there were not “the same set of incentives that create the risk of an
unreliable statement.” Ebron, 683 F.3d at 133. Furthermore, there were
various pieces of corroborating evidence, including George’s statement to
Hurst in another conversation, after the publication of another article
reporting that DNA evidence was found at the crime scene, that his “life
[was] over”; Wade’s testimony that, approximately an hour before the
robbery, Ofomata drove to Wade’s house to pick up a bag of firearms, which
Wade saw Johnson assist Ofomata in loading into the vehicle used in the
robbery before getting back into the vehicle; and the testimony of the second
guard—confirmed by surveillance video—that three individuals emerged
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2
Johnson’s arguments otherwise largely go to Hurst’s credibility as a witness.
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from the vehicle, one rushing toward the money, another shooting at
Trochez, and a third shooting at the truck.
As to the effect on his substantial rights, Johnson contends only that
“Hurst’s testimony related to George’s statements was essentially the only
testimony that placed Johnson as a participant in the armed robbery.”
Johnson Br. 12. But given the evidence just discussed, supra, Johnson’s
vague assertion does not establish that “there is a reasonable probability that
the result of the proceedings would have been different but for the error.”
Montes-Salas, 669 F.3d at 247.
IV.
For the foregoing reasons, we AFFIRM.
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