United States of America v. Thomas M. Johnson

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS M. JOHNSON,
Defendant - Appellant.
No. 09-50534
D.C. No. 2:07-cr-00890-RGK-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted August 31, 2010
Pasadena, California
Before: O’SCANNLAIN, GOULD and M. SMITH, Circuit Judges.
Thomas Johnson appeals his conviction and sentence arising out a fraudulent
investment scheme on multiple grounds. As the facts and procedural history are
familiar to the parties, we do not recite them here except as necessary to explain
FILED
OCT 15 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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In the district court, Johnson filed his motion under the caption1
“Defendant’s Ex Parte Request to Permit Substitution of Counsel and Continue
Trial.” Because Johnson presented two separate issues to the district court, the
district court’s decision “can be analyzed either as the denial of a continuance or as
the denial of a motion to substitute counsel.” United States v. Nguyen, 262 F.3d
998, 1001 (9th Cir. 2001). On appeal, Johnson’s arguments and supporting case
law focus solely on the request to substitute of counsel, not the request to continue
trial. We adopt Johnson’s approach for purposes of this appeal.
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our disposition. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742, and we affirm the conviction and sentence.
I. Motion to Substitute Counsel
Johnson first challenges the district court’s denial of his motion to substitute
retained counsel in place of appointed counsel. We consider: “(1) the timeliness1
of the motion to dismiss counsel; (2) the adequacy of the court’s inquiry into
defendant’s complaint; and (3) whether the conflict between the defendant and his
counsel was so great that it resulted in a total lack of communication preventing an
adequate defense.” United States v. Torres-Rodriguez, 930 F.2d 1375, 1380 (9th
Cir. 1991), abrogated in part on other grounds, Bailey v. United States, 516 U.S.
137 (1995). All three factors support the district court’s decision.
First, Johnson filed his motion to substitute counsel four days prior to trial.
The district court had previously continued the trial for more than three months.
The Supreme Court has explicitly “recognized a trial court’s wide latitude in

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balancing the right to counsel of choice . . . against the demands of its calendar.”
United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (citation omitted).
Second, the district court adequately inquired into the nature of Johnson’s
complaint against his attorney. The court held a closed hearing with Johnson, his
original appointed attorney, and his newly retained attorney. The court asked both
Johnson and his appointed attorney about the reasons for Johnson’s belated
requested. This is precisely the type of inquiry we have required. See, e.g., United
States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001) (“For an inquiry regarding
substitution of counsel to be sufficient, the trial court should question the attorney
or defendant privately and in depth[.]” (citations and internal quotation marks
omitted)).
Finally, the district court reasonably determined that the conflict between
Johnson and his attorney would not “prevent[] an adequate defense.”
Torres-Rodriguez, 930 F.2d at 1380. After Johnson stated that “[his] ability to
articulate [his] point of view was not properly addressed” by his attorney, the
district court properly “t[o]l[d] [Johnson] that he had the right to testify and gave
him an opportunity to confer with his attorney to finalize his decision.” United
States v. Joelson, 7 F.3d 174, 178 (9th Cir. 1993). Johnson stated on the record
that he understood that “whether or not to testify was [his] call.” He also stated

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that his attorney had explained the advantages and disadvantages of giving such
testimony. Once the district court was satisfied that Johnson understood his right
to testify, it properly refrained from inquiring further into the tactical dispute
between Johnson and his counsel. As we have explained, “judicial interference
with this strategic decision poses a danger that the judge will appear to encourage
the defendant to invoke or waive this right.” Id. at 178 (internal quotation marks
omitted). Finally, at the close of evidence, the court asked Johnson whether or not
he would testify, and Johnson replied that he would not.
Accordingly, we conclude that the district court did not abuse its discretion
by denying Johnson’s motion to substitute counsel.
II. Jencks Act and Brady Violations
Johnson’s second contention is that we should conduct an in camera review
of FBI agent Marie Kondzielski’s redacted grand jury testimony for potential
impeachment evidence that was withheld in violation of the Jencks Act, 18 U.S.C.
§ 3500, and Brady v. Maryland, 373 U.S. 83 (1963). After we remanded this case
with directions for the district court to review the withheld material, the district
court concluded that “Special Agent Marie Konzielski’s redacted testimony was
immaterial and non-exculpatory and does not in any way contradict her testimony

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at trial” and accordingly held that “Defendant is . . . not entitled to a new trial
under 18 U.S.C. § 3500.”
Having reviewed the government’s full in camera submission, we agree with
the district court’s conclusion. The redacted testimony is consistent with the
evidence produced at trial, and therefore would have been irrelevant for
impeachment purposes. The district court correctly concluded that the
government’s Jencks Act violation was harmless error. See United States v.
Ogbuehi, 18 F.3d 807, 811 (9th Cir. 1994) (“Deciding whether any [Jencks Act]
error was harmless necessarily requires determining whether the statement could
have been used for impeachment purposes.”). For the same reason, we also
conclude that the government did not violate Brady v. Maryland, as the withheld
testimony was not “material either to guilt or to punishment.” Brady, 373 U.S. at
87.
III. Abuse of Trust Sentencing Enhancement
Johnson’s final contention is that the district court erred by imposing a two-
level upward adjustment because Johnson “abused a position of . . . private trust.”
U.S.S.G. § 3B1.3. The district court concluded that “there’s no question in this
case with this scheme that there was a position of trust that [Johnson was] involved
[in] with this victim.”

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The abuse of trust enhancement is “characterized by professional or
managerial discretion” and applies if the defendant purports to “legitimately hold[]
a position of . . . trust when, in fact, the defendant does not.” U.S.S.G. § 3B1.3,
cmt. n.1, 3. We have explained that “[b]y the test’s plain text, the element of
discretion . . . is the ‘decisive factor’ in the enhancement.” United States v.
Contreras, 581 F.3d 1163, 1166 (9th Cir. 2009) (citation omitted), adopted in
relevant part and vacated in part on other grounds, United States v. Contreras,
593 F.3d 1135, 1136 (9th Cir. 2010) (en banc) (per curiam). Notably, the
Sentencing Commission uses “a defendant who . . . perpetrates a financial fraud by
leading an investor to believe the defendant is a legitimate investment broker” as
an example of when the enhancement applies. Id. § 3B1.3, cmt. n. 3.
The record is replete with evidence establishing that Johnson committed his
fraud by claiming to exercise “professional or managerial discretion” over the
victim’s funds. Johnson persuaded the victim (Britt) that he was an experienced
bond trader. Britt entered an agreement with Johnson under which “the deposited
funds shall be in an account controlled by [Johnson] and may be transferred,
withdrawn, hypothecated, liened or encumbered in any manner at the discretion of
[Johnson] and approval of [Britt].” (Emphasis added.) Although Britt nominally
had final approval authority over Johnson’s transactions, Johnson retained ultimate

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discretion to invest the funds in the account. Pursuant to this agreement, Britt
transferred $5.75 million into an account controlled by Johnson. Britt testified that
he “did not consider” himself to “ha[ve] authority” over the account. Britt
represented to a third party that the account was “at the discretion of Mr. Johnson.”
Johnson himself noted in an email to Britt that Britt had trusted Johnson with
Britt’s money.
In light of this evidence, it is clear that Johnson committed the fraud by
purporting to exercise investment discretion over the victim’s funds. See United
States v. Davuluri, 239 F.3d 902, 909 (7th Cir. 2001) (holding that abuse of trust
enhancement applied where defendant had discretion to engage in commodities
transactions on victim’s behalf without victim’s supervision). The district court
properly applied the abuse of trust enhancement.
AFFIRMED.

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