United States of America v. Bernard Johnson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 08-2503 & 08-2669
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UNITED STATES OF AMERICA
v.
BERNARD JOHNSON,
Appellant
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Appeals from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 03-cr-00221)
District Judge: Honorable William W. Caldwell
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Submitted Pursuant to Third Circuit LAR 34.1(a)
December 22, 2010
Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges
(Opinion filed: December 22, 2010)
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OPINION OF THE COURT
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PER CURIAM
Appellant Bernard Johnson appeals orders of the District Court denying his Rule
33 motion for a new trial and his motion to alter or amend the judgment. For the reasons
that follow, we will affirm.

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A grand jury returned an eight-count indictment that charged Johnson with six
counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); one count
of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and one count
of possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. §
924(c). Ultimately a third superseding indictment issued, which, in addition to the eight
counts in the original indictment, included one count of unlawful possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1), and one count of possessing fifty
grams or more of crack cocaine.
A jury sitting in the United States District Court for the Middle District of
Pennsylvania found Johnson guilty of all ten counts in the third superseding indictment,
with the drug quantity determined to be at least fifty but less than 150 grams. Though
still represented by counsel, Johnson filed two pro se motions, one for a new trial and the
other a motion to dismiss alleging vindictive prosecution. The District Court denied the
motions. At the sentencing hearing in June, 2005, the District Court granted Johnson's
request to proceed pro se and assigned trial counsel to a stand-by capacity. Johnson was
sentenced to an aggregate term of 25 years of imprisonment, and he appealed.
Thereafter, Johnson filed two pro se motions for production of documents. The District
Court denied both motions, and Johnson appealed from that order as well. The two
appeals were consolidated for our review (C.A. Nos. 05-3070 & 05-06-3222).
We granted Johnson's motions to proceed pro se on appeal, and to withdraw the
brief filed by his appellate counsel. Johnson then filed a pro se brief, raising thirteen
claims of error. On March 2, 2010, we affirmed the judgment of conviction and the
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orders denying Johnson’s pro se motions, see United States v. Johnson, 367 Fed. Appx.
375 (3d Cir. 2010), but we vacated Johnson’s sentence and remanded for resentencing,
holding that the District Court failed to sufficiently inquire into Johnson’s waiver of
counsel at sentencing under United States v. Salemo, 61 F.3d 214 (3d Cir. 1995), and
United States v. Peppers, 302 F.3d 120 (3d Cir. 2002).1 We note that on remand the
District Court has appointed new counsel to represent Johnson, and continued the
sentencing hearing at his request.
Meanwhile, on December 10, 2007, Johnson filed a pro se motion under Federal
Rule of Criminal Procedure 33(b)(1) for a new trial based on newly discovered evidence.
Johnson also asserted that the District Court lacked jurisdiction to convict him, and that
the Government refused to produce Brady material, see Brady v. Maryland, 373 U.S. 83
(1963) (withholding by prosecution of evidence favorable to accused violates due process
where evidence is material to guilt or punishment), and relied on perjured testimony to
convict him.
1 We described the evidence as follows:
The evidence presented at trial demonstrated that Johnson, on two separate
occasions, sold quantities of crack cocaine to a confidential informant who
was working under the direction of local law enforcement. The evidence
also demonstrated that Johnson sold crack cocaine directly to an undercover
law enforcement officer on four separate occasions. Johnson was arrested
in his car after the fourth and final transaction with the undercover officer.
He consented to a police search of his car, and he waived his Miranda
rights. The search yielded small zip-lock baggies, the cell phone used by
Johnson to set up the drug transactions with the confidential informant, and
a loaded .32 caliber semi-automatic pistol.
Id. at 376. We rejected without discussion 12 of the 13 errors Johnson raised. See id. at
377.
3

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In an order entered on May 9, 2008, the District Court summarily denied the Rule
33 motion. With respect to the “Ryan Neal Report,” the District Court concluded that
Johnson had not been diligent in obtaining the report. In addition, Johnson argued only
that the report would have allowed him to impeach Neal’s trial testimony, but
impeachment evidence is not enough to warrant granting a new trial under Rule 33. With
respect to the Government’s Exhibit List, the District Court concluded that Johnson had
not been diligent in obtaining it because it was available at the time of trial. Moreover,
the list was not “evidence.” The ATF report dated February 5, 2004 played no role in
Johnson’s conviction or sentence and thus it was not material to the issues involved, and
the “Matthew Taylor Report” was at best impeachment evidence.
With respect to Johnson’s other arguments, the District Court held that jurisdiction
to convict Johnson was not lacking. The court had subject matter jurisdiction under 18
U.S.C. § 3231, see United States v. Cotton, 535 U.S. 625, 630 (2002), and the third
superseding indictment was signed by the grand-jury foreperson, as required by criminal
Rule 6(c), and by an attorney for the government, as required by Rule 7(c)(1). Johnson’s
Brady and perjured testimony claims were untimely under Rule 33(b)(2) (motion for new
trial based on any reason other than newly discovered evidence “must be filed within 7
days after the verdict”).2 Johnson appealed this order and also filed a motion to alter or
amend the judgment. The District Court denied this latter motion in an order entered on
2 We note that Rule 33 was amended effective December 1, 2009 and now
provides for 14 days after the verdict or finding of guilty in which to file a motion not
grounded on newly discovered evidence.
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May 21, 2008, and Johnson appealed from that order as well. Both appeals are ripe for
decision.
We will affirm. We have jurisdiction under 28 U.S.C. § 1291. The District Court
had jurisdiction to deny the Rule 33 motion. See Venen v. Sweet, 758 F.2d 117, 123 n.7
(3d Cir. 1985) (“When a new trial is sought under Rule 33, Fed. R. Crim. P. while the
direct appeal is pending, a district court has power to deny the motion….”). The denial
of a Rule 33 motion for a new trial based on newly discovered evidence is reviewed for
an abuse of discretion. See United States v. Saada, 212 F.3d 210, 215 (3d Cir. 2000).
Johnson contends in his brief on appeal that the District Court abused its discretion
in denying his motion for a new trial; his newly discovered evidence coupled with the
Government’s use of perjured testimony at trial warrants a new trial; the District Court
abused its discretion in denying his motion to alter or amend the judgment; the District
Court erred in summarily denying his motion and the Government waived its defenses to
the motion by not responding; the District Court erred in not granting him a hearing on
his Brady claim (Johnson explained that his newly discovered evidence is also his
“Brady” evidence); the District Court erred in failing to take notice of adjudicative facts
under Federal Rule of Evidence 201; and the District Court abused its discretion in
refusing to correct clerical errors under criminal Rule 36.3
We reject these arguments as meritless. The District Court may grant a Rule 33
motion for a new trial based on newly discovered evidence where the following five
requirements are met:
3 The latter two contentions we reject as frivolous; they do not merit discussion.
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(a) the evidence must be in fact, newly discovered, i.e., discovered
since the trial; (b) facts must be alleged from which the court may
infer diligence on the part of the movant; (c) the evidence relied on,
must not be merely cumulative or impeaching; (d) it must be
material to the issues involved; and (e) it must be such, and of such
nature, as that, on a new trial, the newly discovered evidence would
probably produce an acquittal.
United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006). See also United States v.
Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976).
We agree with the District Court, for the reasons given by the District Court, that
Johnson’s evidence does not warrant a new trial under Rule 33. The District Court
reviewed each of the five requirements and concluded that they had not been satisfied.
We have considered Johnson’s arguments to the contrary and find them to be without any
merit. Furthermore, because the evidence is not exculpatory, see Brady, 373 U.S. 83,
there was no basis for holding an evidentiary hearing on it. We conclude that the District
Court did not abuse its discretion in denying Johnson’s motion to alter or amend, which
Johnson contends was simply a motion for reconsideration, because the motion did not
show an intervening change in the law, new evidence, or the need to correct a clear error
of law. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).
We note that Johnson argued his perjured testimony claim, which involved the
trial and suppression hearing testimony of Detective Donald Cairns and Detective Todd
Johnson, in his pro se brief on direct appeal from the judgment of conviction and
sentence, see Appellant’s Brief (C.A. No. 05-3070), at 40-46. We rejected the claim as
meritless, and so this use of Rule 33 to relitigate an issue that was raised and decided on
direct appeal from the judgment of conviction and sentence is not proper and we will not
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permit it. Cf. United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (refusing to
permit relitigation of issues raised on direct appeal from judgment of conviction in
motion to vacate sentence under 28 U.S.C. § 2255).
Last, Johnson contends that the Government waived all defenses by not
responding to his Rule 33 motion and the District Court erred in summarily denying it
without seeking a response from the Government. The Government responds in its brief
that, because a District Court lacks jurisdiction to grant a motion for a new trial under
Rule 33 where a direct appeal is pending and the “appellate court [has not] remand[ed]
the case,” Fed. R. Crim. Pro. 33(b)(1), it was entitled to wait until the circumstances
required a response. See Appellee’s Brief, at 36.
Though the Government’s argument may have some merit, we are persuaded that,
insofar as the Rule 33 motion at issue was Johnson’s second such motion for a new trial
and fifth post-judgment motion, and it was in significant part an attempt to relitigate
matters decided on direct appeal from the judgment of conviction, including some of his
“newly” discovered evidence, see Appellant’s Brief (C.A. No. 05-3070), at 47-48, the
usual presumptions about the adversarial process may be set aside here. See Day v.
McDonough, 547 U.S. 198, 208-09 (2006). Cf. Rule 4(b), Rules Governing Section 2255
Proceedings (“If it plainly appears from the motion, any attached exhibits, and the record
of prior proceedings, that the moving party is not entitled to relief, the judge must dismiss
the motion…”). The District Court did not abuse its discretion in summarily denying
Johnson’s Rule 33 motion.
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For the foregoing reasons, we will affirm the orders of the District Court denying
Johnson’s Rule 33 motion and motion for reconsideration. Johnson’s motion for a
summary remand is denied.

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