United States v. Martin Johnson (4th Cir. December 2019)
Evidence/Other Acts, Prior Convictions – It is not plain error for a district court to fail to give limiting instructions sua sponte for other acts evidence.
ACCA – Maryland conviction for robbery is a “violent felony” under the force clause of the ACCA.
Martin Johnson was found guilty of possession of a firearm by a convicted felon and sentenced to 51 months in prison. The Government and Johnson filed cross-appeals challenging the conviction and sentence.
The first issue involved the prosecution’s evidence at trial that Johnson had marijuana in the car during the traffic stop that led to his arrest. Johnson did not argue on appeal that the evidence was inadmissible, but argued that, since the marijuana constituted 404(b) evidence, “the district court was required to issue a limiting instruction” and that it was plain error for the court not to do so sua sponte.
The Court disagreed, citing Fourth Circuit precedent recognizing that limiting instructions are appropriate when admitting evidence under Rule 404(b), but also that a lack of such an instruction is not reversible error when the defendant fails to request it. The Court added that the judge’s instructions already directed jurors only to consider evidence in relation to the crimes in the indictment and distinguished Johnson’s case on the ground that Johnson did not challenge the admissibility of the evidence.
The Court also rejected Johnson’s argument that the district court plainly erred in allowing the prosecution to cross-examine Johnson about all of his past convictions when he only discussed certain convictions on direct examination. The Court noted that Johnson’s defense counsel had agreed with the prosecutor’s argument that Johnson’s testimony on direct about some of his convictions “opened the door” for testimony regarding his others, and that made Johnson’s case different from other cases discussing the “limits of ‘opening the door’ in evidentiary matters.”
The Government appealed Johnson’s sentence. At sentencing, the district court declined to apply enhancements under the ACCA based on Johnson’s prior conviction for robbery under Maryland state law and possession of marijuana with intent to distribute. The court had reasoned that Maryland robbery does not qualify as a “violent felony” because it requires “no or de minimis force” and that possession with intent to distribute under Maryland law is not a “controlled substance offense” under the Guidelines because it can apply to “ a mere ‘offer of distribution.’”
The Court reversed the district court, vacated Johnson’s 51 month sentence, and held that the 15 year mandatory minimum applied under the ACCA. The Court held that, under Maryland state law, robbery requires force or threat of force. The Court also noted that other circuits have found that a “bare offer to sell drugs” does not constitute a “controlled substance offense” under U.S.S.G. § 2K21.1(a)(4) “without proof of intent to distribute.” However, the Court distinguished Johnson’s case from those cases because the state law in each of those cases specifically targeted an “offer to sell,” independently from distribution offenses, whereas Maryland just had a broader, blanket distribution statute.
On Appeal from the Eastern District of Maryland
Opinion by Motz, joined by Thacker and Diaz