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United States v. Johnson

United States District Court, S.D. West Virginia, Charleston Division

June 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMAA I. JOHNSON & DARRELL E. GILLESPIE, Defendants.

          MEMORANDUM OPINION & ORDER

          THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE

         Pending before the Court are Defendant Jamaa Johnson's (“Johnson”) Motion for Judgment of Acquittal or, in the Alternative, for a New Trial, (ECF No. 775), and Supplemental Motion for Judgment of Acquittal or, in the Alternative, for a New Trial, (ECF No. 801). Also before the Court are Defendant Darrell Gillespie's (“Gillespie”) Motion for New Trial, (ECF No. 765), and Supplemental Motion[ ] for New Trial or Judgment of Acquittal, (ECF No. 815). For the reasons provided herein, the Court DENIES the motions.

         I. BACKGROUND

         A Grand Jury sitting in Charleston, West Virginia, charged both Johnson and Gillespie on April 30, 2014, with eight counts of criminal conduct in a fourteen-count Fifth Superseding Indictment (“the Indictment”), (ECF No. 418). The charges were based on an alleged conspiracy occurring over a ten-month period in 2011 and 2012 in Kanawha County and McDowell County, West Virginia, and elsewhere, to unlawfully obtain from drug dealers personal property, including controlled substances, firearms, and money, “by means of actual and threatened force, violence, and fear of immediate injury . . . .” (Id. at 1-2.) Trial commenced on January 13, 2015. (ECF No. 749.)

         Based on the Indictment, (ECF No. 418), the jury returned a verdict on January 28, 2015, finding Johnson guilty of the following charges:

Count One: Conspiracy to Commit Armed Robberies in violation of 18 U.S.C. § 1951;
Count Two: Conspiracy to Use Firearms in Crimes of Violence in violation of 18 U.S.C. § 924(o); and
Count Thirteen: Witness Tampering in violation of 18 U.S.C. § 1512(b)(1).

(ECF No. 658.) Accordingly, the Court adjudged Johnson guilty on Counts One, Two, and Thirteen of the Indictment. (ECF No. 727 at 36.) The jury acquitted Johnson as to Counts Three, Four, Seven, Eight, and Nine of the Indictment. (Id.)

         The jury's verdict found Gillespie guilty of the following charges:

Count One: Conspiracy to Commit Armed Robberies in violation of 18 U.S.C. § 1951;
Count Two: Conspiracy to Use Firearms in Crimes of Violence in violation of 18 U.S.C. § 924(o);
Count Five: Robbery Affecting Interstate Commerce in violation of 18 U.S.C. §§ 1951 and 2;
Count Six: Carrying a firearm in a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) arising out of the acts of a co-conspirator;
Count Ten: Possessing, Concealing, and Storing Stolen Firearms and Ammunition in violation of 18 U.S.C. §§ 922(j), 924(a)(2), and 2;
Count Eleven: Robbery Affecting Interstate Commerce in violation of 18 U.S.C. §§ 1951 and 2;
Count Twelve: Brandishing a Firearm in a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) arising out of the charge of Robbery Affecting Interstate Commerce in Count Eleven, and arising out of the acts of a co-conspirator; and
Count Fourteen: Conspiracy to Obstruct Justice in violation of 18 U.S.C. § 371 by conspiring to corruptly endeavor to influence, obstruct, or impede the due administration of justice in this case by encouraging and soliciting false testimony in violation of 18 U.S.C. § 1503.

(See ECF No. 658.) Accordingly, the Court adjudged Gillespie guilty on Counts One, Two, Five, Six, Ten, Eleven, Twelve, and Fourteen of the Indictment. (ECF No. 727 at 35-36.) Trial concluded on January 28, 2015. (Id. at 39.)

         After receiving new counsel, Johnson's deadline to file post-trial motions was extended to July 20, 2015. (ECF No. 762.) Johnson filed his Motion for Judgment of Acquittal or, in the Alternative, for a New Trial on July 20, 2015. (ECF No. 775.) The Government responded to the motion on August 10, 2015. (ECF No. 777.) Subsequently, the Court granted Johnson's Motion to Hold in Abeyance Further Proceedings Pending Supreme Court Ruling. (ECF No. 788.) Following the issuance of the Supreme Court's opinion in Taylor v. United States, 136 S.Ct. 2074 (2016), Johnson filed his Supplemental Motion for Judgment of Acquittal, or in the Alternative, for New Trial on July 7, 2016. (ECF No. 801.) The Government responded to the motion on August 11, 2016, (ECF No. 816), and Johnson filed a reply on August 18, 2016, (ECF No. 818).

         After granting no less than five extensions of the deadline to file post-trial motions, the Court ordered Gillespie to file post-trial motions forthwith on June 23, 2015. (ECF No. 764.) Gillespie filed his Motion for New Trial on June 24, 2015. (ECF No. 765.) The Government responded to the motion on July 14, 2015. (ECF No. 773.) Subsequently, the Court granted Gillespie's Motion for Stay or Abeyance and continued generally Gillespie's sentencing pending the Supreme Court's decision in Taylor. (ECF No. 787.) Following the issuance of that decision, Gillespie filed a Motion for Leave to File Supplemental Post-Trial Motions, (ECF No. 806), which the Court granted. (ECF No. 811.) In accordance with that order, Gillespie filed his Supplemental Motion for New Trial or Judgment of Acquittal on July 27, 2016, (ECF No. 815), and the Government responded on August 26, 2016, (ECF No. 821).

         The Court held an initial hearing on the motions on August 30, 2016, during which the Court ordered both Defendants Johnson and Gillespie to file additional briefing addressing the following four issues:

(1) [W]hether Defendant raised any objection during the trial in this case regarding either clause of 18 U.S.C. § 924(c)(3);
(2) whether Defendant's legal arguments regarding 18 U.S.C. § 924(c)(1)(A) and 924(o) that he raised in his Supplemental Motion for New Trial or Judgment of Acquittal and Memorandum Thereon (the “Supplemental Motion”), (ECF No. 815), are brought as a motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29, a motion for a new trial under Federal Rule of Criminal Procedure 33, or under both of these procedural vehicles;
(3) what standard the Court should employ when addressing Defendant's legal arguments regarding 18 U.S.C. § 924(c)(1)(A) and 924(o) in the Supplemental Motion; and
(4) if only a portion of the Court's jury instructions as to a particular charge are rendered incorrect by subsequent developments in the law, what standard the Court should employ when determining whether the conviction for that charge nonetheless survives any subsequent developments.

(ECF Nos. 826, 827.) On September 27, 2016, Johnson, Gillespie, and the United States all filed their supplemental memoranda. (ECF Nos. 833, 834, 835, 836.) The Court held a final motions hearing on October 7, 2016, to address the arguments contained in the pending motions. (ECF Nos. 837, 838.) The motions are fully briefed and argued and are ripe for adjudication.

         II. LEGAL STANDARD

         A. Rule 29-Motion for Judgment of Acquittal

         Federal Rule of Criminal Procedure 29 directs a court, upon a defendant's motion after the close of evidence and before submission to the jury, to “enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). Nevertheless, “[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later, ” regardless of whether the defendant previously moved for a judgment of acquittal before the case was submitted to the jury. Fed. R. Crim. P. 29(c)(1), (3). The court must determine whether “the jury's verdict is supported by ‘substantial evidence, ' that is, ‘evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilty beyond a reasonable doubt.'” United States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)). See also United States v. Hickman, 626 F.3d 756, 763 (4th Cir. 2010) (citing United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010)).

         To determine whether a defendant meets the “heavy burden” provided under the rule, the question becomes whether “any rational trier of facts could have found the defendant guilty beyond a reasonable doubt.” Hickman, 626 F.3d at 763 (quoting United States v. Bynum, 604 F.3d 161, 166 (4th Cir. 2010) (internal quotation marks omitted), cert. denied, 560 U.S. 977). The court must “view[ ] the evidence in the light most favorable to the government, ” keeping in mind that “the jury . . . weighs the credibility of the evidence and resolves any conflicts in the evidence presented.” McLean, 715 F.3d at 137 (quoting Burgos, 94 F.3d at 862). If multiple interpretations can be reasonably deduced from the evidence, “the jury decides which interpretation to believe.” See Id. (citing Burgos, 94 F.3d at 862). Reversal of a conviction is traditionally required when, regardless of proper jury instructions, “no rational trier of fact could find guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 317 (1979) (citations omitted).

         B. Rule 33-Motion for New Trial

         “Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). See also United States v. Souder, 436 F. App'x 280, 289 (4th Cir. 2011) (citing United States v. Campbell, 977 F.2d 854, 860 (4th Cir. 1992)). “When the motion attacks the weight of the evidence, the court's authority is much broader than when it is deciding a motion to acquit on the ground of insufficient evidence.” United States v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985). Unlike a Rule 29 motion for judgment of acquittal, a Rule 33 motion does not require the court to view the evidence in the light most favorable to the government, and the court “may evaluate the credibility of the witnesses.” See id.; Campbell, 977 F.2d at 860. Ultimately, a new trial is required “[w]hen the evidence weighs so heavily against the verdict that it would be unjust to enter judgment.” Arrington, 757 F.2d at 1485 (citing Tibbs v. Florida, 457 U.S. 31, 38 n.11, 44 n.20 (1982)) (other citations omitted). The discretion to grant a new trial is broad in nature, see United States v. Prescott, 221 F.3d 686, 688 (4th Cir. 2000), but it should be exercised sparingly. See, e.g., United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) (citation omitted). The Fourth Circuit has provided that “if the evidence is legally sufficient to affirm a criminal conviction, a trial court abuses its discretion when, without further explanation, it grants ‘a new trial based on its finding that the evidence was insufficient to support the verdict.'” Souder, 436 F. App'x at 289 (quoting United States v. Wood, 340 F. App'x 910, 911 (4th Cir. 2009)).

         III. DISCUSSION

         A. Johnson's Motion for Judgment of Acquittal or, in the Alternative, for a New Trial

         Johnson's Motion for Judgment of Acquittal argues that the Government failed to provide sufficient evidence to establish guilt as to the charges in Counts One, Two, and Thirteen. (ECF No. 775 at 5, 15.) Alternatively, Johnson's motion argues for a new trial under Federal Rule of Criminal Procedure 33 because the jury was improperly instructed as to Hobbs Act conspiracy, a partial jury verdict was inappropriate, and the cumulative weight of the evidence did not support a judgment of guilt. (See Id. at 18-28.)

         1. Motion for Judgment of Acquittal as to Counts One and Two

         Johnson first argues that the Government did not provide sufficient evidence that Johnson agreed with anyone to commit armed robberies of drug dealers because (1) he cannot be guilty simply by association; (2) there was no evidence that he was aware of the large-scale operation to commit armed robberies of drug dealers; and (3) no evidence showed that Johnson received drugs, money, firearms, or other proceeds from the conspiracy. (See Id. at 6-9.) Further, Johnson argues that his acquittal as to the substantive Hobbs Act robberies charged in Counts Three and Seven[1] preclude a finding of guilt as to Count One. (See Id. at 10-13.) Lastly, Johnson avers that not only did the Government fail to prove one of the predicate offenses required for a finding of guilt as to Count Two, but also the Government failed to provide sufficient evidence that he agreed with anyone to use firearms in crimes of violence as required by Count Two. (See Id. at 14-15.)

         The Government responds that the evidence of Johnson's guilt introduced at trial was “overwhelming, ” including testimony that established the following: “(1) defendant provided the name and location of the first victim, Leair Lipscomb (“Lipscomb”), as a drug dealer who would have a significant amount of marijuana and cocaine to rob; (2) defendant knew and agreed to use firearms during the commission of the robberies; and (3) that defendant told his co-conspirator that they did not get all of Mr. Lipscomb's drugs and should go back.” (See ECF No. 777 at 3-6 (citations omitted).) Further, as to Count Two, the Government notes that Megan Smith testified as to Johnson's admission to shooting and therefore using a firearm during one of the robberies, and that her testimony was credited by the jury in their finding of guilt as to Count Thirteen related to witness tampering. (See Id. at 4.)

         Count One of the Indictment charged Johnson with conspiracy to commit armed robbery in violation of 18 U.S.C. § 1951. (ECF No. 418 at 1-6.) To prove that charge, the Government had to prove the following three elements:[2]

First: That the defendant entered into an agreement with one or more persons to commit one or more robberies affecting interstate commerce, as charged in Count One of the Indictment;[3]
Second: That the defendant had knowledge of that conspiracy; and
Third: That the defendant knowingly and voluntarily participated in the conspiracy.

(ECF No. 656 at 20.) This count does not require any formal agreement or express statement of the agreement's purpose, details, or means of accomplishment. (Id.) The object of the conspiracy does not have to be successful, nor does a member of the conspiracy need knowledge of all available details. (Id. at 20-21.) A member becomes a knowing participant in the conspiracy when he, with understanding of the plan's unlawfulness, “knowingly encourages, advises or assists, for the purpose of furthering the undertaking or scheme.” (Id. at 21.) While mere presence, mere similarity in conduct, or mere discussions of common aims and interests does not necessarily establish proof of a conspiracy, a member need not play a major role in the conspiracy to be convicted as a conspirator. (Id.)

         The Government need not prove a substantive offense violating the Hobbs Act to prove conspiracy to violate the Hobbs Act. See Callanan v. United States, 364 U.S. 587, 589-90, 597 (1961); United States v. Phillips, 577 F.2d 495, 501 (9th Cir. 1978) (citations omitted). Consequently, a conspiracy is generally proven through circumstantial evidence and, indeed, “may be proved wholly by circumstantial evidence.” United States v. Burgos, 94 F.3d 849, 857-58 (4th Cir. 1996) (citations omitted). No overt act is required in a conspiracy to commit Hobbs Act robbery. See United States v. Ocasio, 750 F.3d 399, 409 n.12 (4th Cir. 2014). Lastly, “[d]rug dealing is an inherently economic enterprise that affects interstate commerce.” See United States v. Taylor, 754 F.3d 217, 222-23 (4th Cir. 2014) (citations omitted), aff'd, 136 S.Ct. 2074 (2016). Therefore, the act of robbing drug dealers threatens that enterprise and invokes federal jurisdiction under the Hobbs Act.

         The testimony of Robert Barcliff (“Barcliff”) established, first, that Johnson had a conversation with Barcliff and others about a general plan to rob drug dealers. (See ECF No. 631 at 10, 15.) Referring to his friendships with Johnson, Gillespie, Brandon Davis (“Davis”), and Keith Glenn (“Glenn”), Barcliff stated the following during the Government's direct examination of him:

Q: At some point, did the nature of your friendship with these individuals change?
A: Yes, it did.
Q: How?
A: We got involved in some other things, as far as our financial problems, so we came together and tried to come up with a come-up, as far as money.
Q: What did you all decide to do to come together to make money?
A: We decided to rob drug dealers.
Q: How did the idea of robbing drug dealers come up?
A: I'm not exactly sure, but what I do remember is having a conversation with Jamaa Johnson about it.

(Id. at 9-10.) This testimony goes toward showing that Johnson was part of a conversation where a general agreement was reached to rob drug dealers in an effort to remedy the group's individual financial troubles. Further, Barcliff provided the following testimony demonstrating that after the first robbery in Pittsburgh in the fall of 2011, Johnson provided intelligence to Barcliff that would advance the scheme outlined in the original conversation to which Johnson was a party:

Q: After that particular robbery, did you have occasion to have a conversation with Defendant Johnson about a robbery?
A: Yes.
Q: What was that conversation about?
A: The conversation was about that he had a -- he had some intel on a guy that lived in Welch, West Virginia that was a big-time drug dealer and we should go down there and rob him . . .
Q: How was that victim identified?
A: He was identified through Jamaa [Johnson], and he had -- Jamaa had went through a friend and he gave us the intel on him.
Q: What did you expect the victim to have?
A: At the time, we expected him to have cocaine, pills and marijuana.

(See Id. at 15.)

         Contrary to Johnson's characterization of this testimony in his motion, (see ECF No. 775 at 9), Barcliff specifically included Johnson as a party to these conversations regarding the general scheme to rob drug dealers. Moreover, Glenn testified that he was prompted to go to Welch, West Virginia, in late 2011 for the purpose of robbing Lipscomb after Barcliff called and informed him that Barcliff and Johnson “need[ed] some help with a robbery.” (See ECF No. 632 at 12.) Johnson's willing participation in individual robberies that were part of the bigger conspiracy is further evidenced by Davis' testimony regarding a robbery in the South Hills neighborhood of Charleston. (See ECF No. 683 at 30-31.) See also United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988) (“If a single conspiracy is proved, a defendant need not be involved in every phase of that conspiracy to be deemed a participant.”). Davis testified that he called Johnson and told him they had a “lick, [4] asked him if he wanted to be a part of it, he said yeah.” (ECF No. 683 at 30. See also ECF No. 631 (Barcliff test.) (“Q: Who did you and Brandon Davis ask to help you with the robbery? A: We asked Jamaa [Johnson] to help us . . . Q: Did he agree to come and help? A: Yes.”).) Despite Johnson's acquittal on the substantive offense of this robbery as detailed in Count Seven of the Indictment, this testimony goes toward showing that Johnson knowingly agreed to participate in the general conspiracy as well as certain acts meant to accomplish the conspiracy's end goals.

         Viewing the evidence in the light most favorable to the Government, this testimony shows that Johnson knew the purpose of the scheme-acquiring money to fix the individuals' financial woes-and the means of accomplishing it-robbing drug dealers. See Burgos, 94 F.3d at 857 (noting that the “gravamen of the crime of conspiracy is an agreement to effectuate a criminal act” (emphasis in original) (quoting United States v. Laughman, 618 F.2d 1067, 1074 (4th Cir. 1980), cert. denied, 447 U.S. 925)). Barcliff's testimony that Johnson gave him information about a known drug dealer in Welch and encouraged the group to “go down there and rob him, ” (see ECF No. 631 at 15), is further evidence that Johnson advised and assisted his co-conspirators in the scheme's advancement. Proof that a robbery in Welch actually occurred, based on this intelligence, is unnecessary, precluding Johnson's argument that he cannot be found guilty on Count One because he was acquitted on the substantive Hobbs Act offenses in Counts Three and Seven.[5] See Callanan, 364 U.S. at 589-90, 597 (providing that conspiracy to violate the Hobbs Act is a wholly separable offense from a substantive violation of the Hobbs Act); Ocasio, 750 F.3d at 409 n.12 (noting that no overt act is required to find a defendant guilty of conspiring to violate the Hobbs Act). Proof of an agreement to commit the offense coupled with knowledge of the agreement and participation in it, even if the offense itself is thwarted, unsuccessful, or unproven, is all that is required. Thus, the Court finds that sufficient evidence existed to find Johnson guilty as to Count One of the Indictment.

         Johnson also argues that the partial verdict accepted by the Court should lead to acquittal as to Count One. For the reasons stated below in the Court's discussion of Johnson's alternative Motion for New Trial on this point, accepting the partial jury verdict does not constitute an error requiring a reversal of Johnson's conviction on Count One.

         Count Two of the Indictment charges Johnson with violating 18 U.S.C. § 924(o), which makes it a crime for anyone to conspire to commit offenses in violation of 18 U.S.C. § 924(c)- that is, to knowingly use and carry a firearm during and in relation to a crime of violence, including robberies affecting interstate commerce and conspiracy to commit such robberies in violation of 18 U.S.C. § 1951. (ECF No. 656 at 24.) This count requires proof of the following elements:

First: That the defendant entered into an agreement with one or more persons to commit the crime of knowingly using and carrying a firearm during and in relation to a crime of violence for which he could be prosecuted in a court of the United States, as charged in Count Two of the Indictment;
Second: That the defendant had knowledge of that conspiracy; and
Third: That the defendant knowingly and voluntarily participated in the conspiracy.

(Id.) Authority both within and outside of the Fourth Circuit support the proposition that Hobbs Act robbery is a crime of violence.[6]

         Expanding on Barcliff's general conversation with Johnson about the conspiracy to rob drug dealers, Barcliff stated at trial that he believed that using guns was understood between the two of them to be part of the agreement. (See ECF No. 631 at 10 (“Q: Was it discussed about using guns? A: I don't -- I'm not sure about that, but I believe we just understood that we would need a gun to rob a drug dealer.”).) Despite the jury's finding of not guilty as to Count Three of the Indictment relating to the November 2011 robbery in Switchback near Welch, both Barcliff and Glenn testified that weapons were taken with the group from Charleston to the target victim's house. (See ECF No. 631 at 18-19; ECF No. 632 at 15.) Barcliff stated that he was carrying a firearm, and when asked if Johnson and Glenn were aware of the gun, Barcliff responded affirmatively because he “showed it in the car.” (ECF No. 631 at 18-19.) Glenn also testified that Barcliff had a weapon and that all the participants knew about the weapon. (See ECF No. 632 at 15 (“Q: Who had weapons with them? A: Robert Barcliff had a weapon. Q: And did you all know that he had a weapon? A: Yes, sir. Q: Did everybody know he had a weapon? A: I would assume that, yes. Q: And how would you assume that? A: Because he had it out in the car.”).) This goes toward showing Johnson's participation in the conspiracy to use firearms in connection with the conspiracy to commit armed robberies. See United States v. Roberts, 881 F.2d 95, 101 (4th Cir. 1989) (noting that a defendant may be guilty of conspiracy “without full knowledge of all of [the conspiracy's] details, but if he joins the conspiracy with an understanding of the unlawful nature thereof and willfully joins in the plan on one occasion, it is sufficient to convict him of conspiracy, even though he had not participated before and even though he played only a minor part”).

         Further, despite Johnson's acquittal on Count Seven of the Indictment involving the South Hills robbery, [7] Davis testified that Johnson brought a firearm from Wytheville, Virginia, to Charleston to use in that robbery on January 18, 2012. (See ECF No. 683 at 31 (“Q: Did you bring your firearm? Did you bring a firearm to Charleston from Wyth[e]ville? A: Yes. Q: Did Defendant Johnson? A: Yes. Q: How do you know? A: Seen it. Q: In the vehicle? A: Uh-huh.”).) In support of the fact that Johnson carried a firearm during that incident, Megan Smith testified that she drove Johnson from Wytheville back to Charleston on the night of January 18, 2012, and he told her in the car that he shot someone when he, Barcliff, and Davis “went to somebody's house to rob them” for money or drugs. (See ECF No. 635 at 159-62, 167 (“He said that the guy was coming downstairs to kill him and that he didn't have another way out, so his story to me was, ‘I shot him in the leg so I could get out of the house.'”).)

         While Johnson argues that “no other evidence” than these testimonial statements prove that Johnson conspired to carry a firearm or actually did carry a firearm, there is no threshold level that the evidence must satisfy as long as the three elements of the crime are sufficiently supported. See Burgos, 94 F.3d at 857 (“By its very nature, a conspiracy is clandestine and covert, thereby frequently resulting in little direct evidence of such an agreement.”). The Court finds after viewing the evidence in the light most favorable to the Government that, contrary to Johnson's suggestion, no more evidence is required. The Court already found that sufficient evidence existed for a finding of guilt as to Count One, and sufficient evidence also existed to find Johnson guilty as to Count Two of the Indictment.

         2. Motion for Judgment of Acquittal as to Count Thirteen

         Count Thirteen charged Johnson with witness tampering.[8] (ECF No. 418 at 19.) The jury in this case was instructed, after no objection by the parties, (see ECF No. 769 at 87), that to convict Johnson of Count Thirteen, the United States must prove each of the following two elements beyond a reasonable doubt:

First: The defendant knowingly engaged in conduct to corruptly persuade another, or attempted to do so; and
Second: The defendant acted knowingly and with the intent to influence the testimony of another in an official proceeding.

(ECF No. 656 at 36.) While the Government was not required to prove that Johnson knew he was breaking any criminal law, it must have shown that Johnson acted “knowingly with a wrongful, immoral, depraved, or evil purpose to convince or induce another person to engage in certain conduct” and with knowledge that a federal proceeding was foreseeable at the time he engaged in the conduct. (Id. at 36-37.) Of importance, the Government did not need to prove that the testimony of the person subject to the persuasion was actually changed. (Id. at 37.) See United States v. Wilson, 796 F.2d 55, 57 (4th Cir. 1986) (citation omitted) (“The success of an attempt or possibility thereof is irrelevant; [§ 1512(b)(1)] makes the endeavor a crime.”).

         Johnson's motion argues that the Government failed to prove that he “attempted to corruptly persuade Megan Smith to provide a false alibi for him in an official proceeding.” (See ECF No. 775 at 15.) First, Johnson claims that the Government did not provide sufficient evidence showing that Johnson knowingly and corruptly persuaded or attempted to persuade the witness to provide a false alibi for his whereabouts on January 18, 2012, the day of the robbery that is the subject of Count Seven of the Indictment, because the jury found Johnson not guilty of the substantive crime alleged to have occurred on that day. (See Id. at 17.) Thus, according to Johnson, “the government also failed to prove that Mr. Johnson's discussions with Megan Smith regarding his whereabouts on that day were ‘corrupt' or ‘false.'” (Id.) Secondly, Johnson argues that the Government did not provide “even a scintilla of evidence” to support this charge “because Megan Smith testified that she never provided an alibi for Mr. Johnson, Mr. Johnson never told her he was identifying her as a witness in any trial or any other official proceeding, and the government had not even contacted her yet.” (Id.)

         The Government argues that there was sufficient evidence at trial to establish Count Thirteen, including testimony from Megan Smith concerning her involvement with Johnson “to help him cover up his role in the conspiracies, ” her admissions to lying to Federal Bureau of Investigation (“FBI”) agents on February 18, 2014, and her assistance to Johnson on the evening of January 18, 2012, to cover-up his role in the robbery. (See ECF No. 777 at 4-5 (citation omitted).) Further, the Government cites evidence of a letter admitted at trial sent by Johnson to Smith that she interpreted as asking her to provide him with a false alibi. (See Id. at 6.)

         Megan Smith provided testimony at trial as to her relationship and involvement with Johnson. She testified that after an incident that took place in Charleston on January 18, 2012, Johnson went back to Winston Salem, North Carolina, with Smith and lived with her at her house for “[s]everal months.” (See ECF No. 635 at 164-65.) While he supposedly moved out in either March or April of 2012, Smith heard that Johnson was facing federal charges and “wrote him a letter three or four months after he initially got incarcerated.” (See Id. at 165.) In response to that letter, Johnson began calling Smith while he was incarcerated. (See Id. at 166.)

         Initially, the Government asked Smith about a telephone conversation she had with Johnson on February 8, 2014. (ECF No. 755 at 4.) After playing an audio recording of the conversation in open court, the Government asked her what she understood Johnson to be talking about. (Id. at 10.) Smith responded, “Where -- where he was that night, where he wanted me to say he was” on January 18, 2012. (Id. at 10-11.) She answered affirmatively when asked, “And did he want you to be his alibi for the daytime of January 18th, 2012?” (Id. at 13.) Further, she responded “no” when asked, “Was what he was asking you to do the truth?” (Id.) Smith was later questioned about a telephone conversation from December 13, 2014. (Id. at 14.) After listening to the call and identifying the speakers as herself and Johnson, Smith testified as to Johnson's desire for her to discuss the alibi with a man named Jesse Stewart (“Bro”), which she said she did. (Id. at 15-16, 18.)

         Smith testified that she and Johnson initially discussed a letter that Johnson was going to send her. (See Id. at 4.) She received such a letter, (see ECF No. 678-13 (Gov't Ex. 75) (Johnson's handwritten letter to Smith)), and the Government asked her to read a portion of the letter about the alibi Johnson wished Smith to provide. (See ECF No. 755 at 21-22.) The following is the portion of the letter that Smith read in open court:

Megan, hey. This letter won't be long. I need you to really remember that trip you took to see me at Bro's. I know you remember. Bro picked me up Sunday after church. We talked on the phone that day, remember? I told you we were on our way.
Bro got tickets to the VCU game that Thursday, so I was going to take a vacation for the week. We hadn't got to see each other in so long because of Cindy, so you told me you would come visit me there and get a room, but Bro told me that you could stay at the house, we just had to bring an air mattress.
I remember you got up there from Winston around 2:00 that Tuesday. We hung out at the house all that day. We went to some bar around 11:00 that night, just me and you. Bro didn't want to go with us.
The next day, we woke up late and had lunch and we checked out the city. You knew we were going to the game the next day, so you left about 6:30-7:00, maybe, that Wednesday night.
I remember talking to you Thursday, as well. Me and Bro sit [sic] around and waited and had some drinks and ended up waiting too late to go to the game. I called you late mad because we missed a great game.
VCU went into overtime. I think the final score was 68 to 69. We ended up just going to the bar, me and Bro. Then, you got a call from me Saturday.
. . .
I know you remember this. If so, I'm going to need you. My situation boils down to you, Bro and Cindy remembering, but I know you will. We had a good time.

(Id.) When asked, “Is any of that true?” Smith replied, “No.” (Id. at 22. See also Id. at 24 (“Q: Was anything he asked you to testify about true? A: No.”).) At the end of the letter, Johnson asked Smith again to get in touch with Bro by either letter or e-mail to discredit what Barcliff and Davis were telling law enforcement. (See Id. at 23-24.) He wrote, “It's just me and [Gillespie] left. We are going to trial.” (Id. at 24.)

         Viewing the evidence in the light most favorable to the Government, the Court finds that this testimony shows that Johnson engaged in conduct to corruptly persuade Megan Smith to provide a false alibi for his whereabouts on January 18, 2012. He wrote her a letter trying to get her to “remember” being with him and called her while incarcerated on multiple occasions to ensure that she was carrying out the requests he made in the letter. Further, Smith stated multiple times that no details of their alleged time together that day were true. (See Id. at 22, 24.) The Court also finds that at the time he wrote the letter and talked to Smith on the telephone, Johnson acted with knowledge that an official proceeding in this matter was inevitable and with intent to influence Smith's testimony. (See Id. at 112 (“Q: Was Defendant Johnson relying on the fact that you were his ex-girlfriend to strengthen his alibi? Did he discuss with you that you were his ex-girlfriend coming to testify for him? A: Yes.”).) He stated at the end of the letter that he and Gillespie were going to trial, and this provides, at minimum, a reasonable inference about an impending proceeding. Additionally, because he recognized that his “situation boil[ed] down to” Ms. Smith, Johnson had knowledge that she was a likely witness in this proceeding. (See Id. at 24; see also Id. at 121 (“Q: During your phone conversations with Defendant Johnson, did he instruct you not to talk about the alibi on the jail phones? A: Yes.”); ECF No. 760 at 19 (Mallet test.) (noting that the FBI became aware of Megan Smith's identity as a potential ...


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