United States of America v. Stanley Johnson

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-4066
UNITED STATES OF AMERICA
v.
STANLEY JOHNSON,
Appellant
On Appeal from the United States
District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 00-00231)
Honorable Petrese B. Tucker,
District Judge
Argued September 23, 2004
BEFORE: MCKEE, ALDISERT and
GREENBERG, Circuit Judges
(Filed: November 4, 2004)
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy United States Attorney
for Policy and Appeals
Robert A. Zauzmer
Assistant United States Attorney
Senior Appellate Counsel
Curtis R. Douglas (argued)
Assistant United States Attorney
615 Chestnut Street
Philadelphia, Pa. 19106
Attorneys for Appellee
Elizabeth K. Ainslie
Anne E. Kane (argued)
Schnader Harrison Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, Pa. 19103
Attorneys for Appellant
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL
HISTORY
This matter comes on before this
court on Stanley Johnson’s appeal from a
judgment of conviction and sentence
entered in this criminal case on October
27, 2003. The district court had
jurisdiction pursuant to 18 U.S.C. § 3231
and we have jurisdiction under 28 U.S.C.
§ 1291.1
1This case previously reached our
court after Johnson’s conviction at his
first trial in January 2001. In February
2001, the district court granted Johnson a
new trial because the government had not

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2
The background of the case is as
follows. On May 2, 2000, a grand jury
returned a three-count indictment against
Johnson charging him with conspiracy to
commit carjacking, in violation of 18
U.S.C. § 371, carjacking, in violation of
18 U.S.C. § 2119, and using and carrying
a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. §
924(c)(1). The indictment named Willie
Ingram and Anthony Milton as co-
conspirators. In particular, it charged
that on July 2, 1998, Johnson, Ingram
and Milton approached Donald Foster
and Sonia Smith-Burgest as they exited
Smith-Burgest’s 1995 Chevy Blazer and
that the three co-conspirators forced
Smith-Burgest to remove her jewelry and
then stole the vehicle.2 The indictment
alleges that all three men were armed and
that Johnson acted as a lookout.
At the outset of the trial,
Johnson’s attorney sought to prevent the
government from introducing evidence
related to Johnson’s 1995 conviction for
theft for impeachment purposes pursuant
to 18 Pa. Cons. Stat. Ann. § 3921 (West
1983).3 The government argued on
alternative grounds that the evidence of
the prior conviction could be used for
impeachment purposes under Federal
Rule of Evidence 609. First, it
maintained that the evidence was
admissible pursuant to Rule 609(a)(1) as
a crime punishable by imprisonment in
excess of one year and whose probative
value outweighed its prejudicial effect on
Johnson. Second, the government
asserted that the evidence of the prior
conviction was admissible as a crime
involving dishonesty or false statement
pursuant to Rule 609(a)(2).
After hearing argument, the
district court found that the evidence was
provided his attorney with notice that one
of the victims in the carjacking would
identify Johnson as one of the
perpetrators. Johnson then filed a motion
for judgment of acquittal in the district
court, arguing that the evidence
presented at the first trial was not
sufficient to support a conviction. After
the district court denied his motion,
Johnson appealed. In a not precedential
opinion dated May 7, 2002, exercising
jurisdiction under 28 U.S.C. § 1291
pursuant to the collateral order doctrine,
we affirmed the district court’s denial of
the motion for judgment of acquittal and
remanded the case to the district court for
a second trial. United States v. Johnson,
35 Fed. Appx. 358 (3d Cir. 2002) (table).
2The indictment does not charge that
the jewelry was stolen.
3The district court previously had
denied Johnson’s motion to preclude
introduction of the prior conviction on
cross-examination and thus his attorney
was asking the court to revisit this issue.
We do not know the basis for the earlier
ruling. The appeal here, however,
challenges only the second ruling.

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3
admissible under Rule 609(a)(2) stating:
I think that if you take
something with the intent
to benefit yourself and you
know you’re not entitled to
it, that is a sufficient
element of dishonesty to
bring it within the rule.
And it is my opinion that it
would be appropriate to
cross examine Mr. Johnson
as to the theft.
AP at 34.4 In view of that ruling the
court did not consider whether the
evidence was admissible under Rule
609(a)(1).
At the trial, Smith-Burgest
positively identified Johnson and
testified that he stood off to the side
during the carjacking and never said
anything and that she did not see any gun
in his hand. Foster also testified, but was
able to identify only Ingram as one of the
carjackers, as he did not get a good look
at the faces of the other two perpetrators.
He indicated, however, that Smith-
Burgest did get a good look at them.
Foster explained that he could not
identify the man who ordered Smith-
Burgest to remove her jewelry, but that
he was “the short guy.” AP at 127. He
further testified that the two taller men,
Ingram and another individual, pointed
guns at him. Of the three men, Ingram
and Johnson were significantly taller
than Milton. Both Ingram and Milton
pled guilty to carjacking and, pursuant to
plea agreements, testified against
Johnson. Ingram and Milton testified
that Johnson was armed at the time of the
carjacking and that he participated in the
crime.
Johnson testified in his own
defense. He said that on the evening of
July 2, 1998, he had gone out around
midnight to try to buy some marijuana
for personal use and that while he was on
the street he saw Milton and Ingram.
According to Johnson, Ingram was
holding a gun and asked him to “watch
for cops.” AP at 155. Johnson explained
at trial that Ingram had a bad reputation
in the neighborhood and had “shot at
people.” Id. He testified that he acted as
a lookout during the robbery and
carjacking because he was afraid that
Ingram might shoot him if he did not
participate. Johnson testified that, after
the completion of the robbery, Ingram
4AP refers to Johnson’s appendix. The
government has contended that the
district court also found that the evidence
was admissible under Rule 609(a)(1) but
we reject that argument as the court’s
reference to the crime having an
“element of dishonesty to bring it within
the rule” plainly tracks the language of
Rule 609(a)(2) that the crime have
“involved dishonesty.” Moreover, the
argument of the attorneys prior to the
district court announcing its
determination centered on whether
Johnson’s offense involved “dishonesty”
within Rule 609(a)(2).

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4
yelled at him to get into the stolen car
and that he did so. Johnson testified that
he did not have a weapon during the
carjacking. On cross-examination, the
prosecutor questioned Johnson regarding
his 1995 theft conviction for purposes of
impeachment.
The district court gave the
following instruction to the jury
regarding Johnson’s theft conviction:
The testimony of a
witness may be discredited
or impeached by evidence
showing that the witness
has been convicted of a
felony, a crime for which a
person may receive a
prison sentence of more
than one year.5 Prior
conviction of a crime that
is a felony is one of the
circumstances which you
may consider in
determining the credibility
of that witness.
It is the sole and
exclusive right of you, the
jury, to determine the
weight to be given to any
prior conviction as
impeachment and the
weight to be given to the
testimony of anyone who
has previously been
convicted of a felony.
You have heard that
the defendant Stanley
Johnson was convicted of a
crime. You may consider
that evidence as [sic]
deciding, as you do with
any other evidence, how
much weight to give the
defendant’s testimony.
This earlier conviction was
brought to your attention
only as one way of helping
you decide how believable
his testimony was. You
must not use his prior
conviction as proof of the
crimes charged in this case
or for any other purpose. It
is not evidence that he is
guilty of the crimes that he
is on trial for in this case.
AP at 251-52. The jury found Johnson
guilty on all three counts. The district
5We realize that the district court’s
reference to “a prison sentence of more
than one year” tracks the language of
Rule 609(a)(1). Nevertheless, we do not
believe that the court by the use of that
language intended to suggest that it
admitted the evidence under that rule as
the jury was not concerned with the
distinction between Rules (a)(1) and
(a)(2). Of course, if we are wrong as to
the district court’s intentions it may say
so on the remand we are ordering when it
engages in the weighing process under
Rule 609(a)(1), which in any event will
be required.

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5
court subsequently sentenced him to
concurrent terms of 100 months in prison
to be followed by three years of
supervised release. He timely appealed
his conviction.6
II. DISCUSSION
Johnson maintains that the district
court erred in allowing the government to
impeach his testimony with his 1995
theft conviction. He argues that the theft
conviction was not admissible under
Rule 609(a)(2) because it is not a crime
that “involved dishonesty or false
statement.” Johnson further contends
that the admission of his theft conviction
was reversible rather than harmless error
and therefore we must reverse his
convictions on all three counts.7
The government concedes that the
district court erred in allowing it to
impeach Johnson as to his prior theft
conviction as a crime involving
dishonesty or false statement under Rule
609(a)(2). Appellee’s br. at 12. It
maintains, however, as it did in the
district court, that the conviction was
admissible under Rule 609(a)(1) as a
crime punishable by imprisonment in
excess of one year whose probative value
outweighed its prejudicial effect on
Johnson. The government recognizes
that the district court “did not explicitly
address” this argument, yet it contends
that “the court arguably did address the
argument, when it stated: ‘And it is my
opinion that it would be appropriate to
cross examine Mr. Johnson as to the
theft.’” Appellee’s br. at 16. The
government then argues that given the
absence of explicit findings we may
conduct a plenary review and, under that
standard of review, we should find that
the probative value of the theft
conviction outweighed its prejudicial
impact on Johnson. The government
contends that, in any event, even if
evidence of the conviction for theft
should not have been admitted the error
was harmless.
We review a district court’s
decision to admit evidence for abuse of
discretion but we exercise plenary review
6The district court sentenced Johnson
on October 8, 2003, but the judgment
was not entered on the district court
docket until October 27, 2003.
7Johnson also mounts a constitutional
challenge to his conviction under 18
U.S.C. § 924(c) for using and carrying a
firearm in furtherance of a crime of
violence, which carries with it a five-year
mandatory minimum sentence. Johnson
asserts that, as applied to prosecutions
under the carjacking statute, section
924(c) violates the constitutional
principles providing for the separation of
powers because the executive branch’s
charging decision determines the
sentence. We are satisfied that Johnson’s
constitutional argument clearly is without
merit so we do not discuss it.

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6
over a district court’s construction of the
Federal Rules of Evidence. United
States v. Brown, 254 F.3d 454, 458 (3d
Cir. 2001). Rule 609 provides, in
relevant part:
(a) General rule. For the
purpose of attacking the
credibility of a witness,
(1) evidence that a
witness other than an
accused has been convicted
of a crime shall be
admitted subject to Rule
403, if the crime was
punishable by death or
imprisonment in excess of
one year under the law
under which the witness
was convicted, and
evidence that an accused
has been convicted of such
a crime shall be admitted if
the court determines that
the probative value of
admitting this evidence
outweighs its prejudicial
effect to the accused; and
(2) evidence that
any witness has been
convicted of a crime shall
be admitted if it involved
dishonesty or false
statement, regardless of the
punishment.
As we have indicated, the government
now concedes that the district court erred
in admitting the prior conviction as
impeachment evidence under Rule
609(a)(2). Appellee’s br. at 11; see Cree
v. Hatcher, 969 F.2d 34, 37 (3d Cir.
1992) (“Because the district court lacks
discretion to engage in balancing, Rule
609(a)(2) must be interpreted narrowly to
apply only to those crimes that, in the
words of the Conference Committee,
bear on a witness’s propensity to testify
truthfully.”); Gov’t of V.I. v. Toto, 529
F.2d 278, 280 (3d Cir. 1976) (“[A]
witness may be impeached by evidence
of a prior conviction only if the
conviction is for a felony or for a
misdemeanor in the nature of crimen
falsi.”). But as we also have indicated,
the government maintains that the
evidence was admissible under Rule
609(a)(1) and that, in the alternative, we
should find that any error in admitting
Johnson’s 1995 theft conviction was
harmless.
Inasmuch as the district court held
that Johnson’s 1995 conviction for theft
was admissible under Rule 609(a)(2) as a
crime involving dishonesty or false
statement, it did not determine whether
the conviction was admissible under
Rule 609(a)(1).8 In order for
impeachment evidence of a prior crime
to be admissible against an accused
under that rule: (1) the crime must be
8As we have indicated we might be
wrong about this point, see n.5, supra,
but if we are the district court may say so
on the remand.

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7
punishable by death or imprisonment in
excess of one year under the law under
which the witness was convicted; and (2)
the court must determine that the
probative value of admitting the evidence
outweighs its prejudicial effect.
The court’s decision to admit the
evidence under Rule 609(a)(2) obviated
the need for it to determine whether the
conviction qualifies as a crime
punishable by imprisonment in excess of
one year under the law of Pennsylvania.9
At oral argument we noted this omission
and asked Johnson’s attorney if there was
any dispute over whether his 1995
conviction for purse snatching was
punishable by imprisonment for a term in
excess of one year. The attorney
responded that there was no dispute on
this point and that Johnson agreed that
the one-year statutory threshold in Rule
609(a)(1) had been satisfied. Thus, it
was possible for the conviction to be
used for impeachment purposes
depending on the district court’s
resolution of the weighing question.
As we have explained, the
government acknowledges that the
district court did not explicitly engage in
the balancing process required by Rule
609(a)(1) for impeachment evidence to
be admitted under that rule. Instead it
contends that the court “arguably”
engaged in that process when it stated
that “it is my opinion that it would be
appropriate to cross examine Mr.
Johnson as to the theft.” AP at 34. The
government asks us to find that this
statement satisfies the balancing process
and contends that we owe deference to
the district court’s decision. But we
cannot accept this argument as we have
concluded that the district court allowed
the impeachment evidence under Rule
609(a)(2) and that, therefore, it did not
reach nor did it attempt to address the
alternative ground for admission under
Rule 609(a)(1). Thus, the court’s
statement that it would be appropriate to
cross examine Johnson as to the
conviction related to its conclusion that
the crime reflected dishonesty as that
term is used in Rule 609(a)(2) rather than
being the result of the court’s balancing
of interests under Rule 609(a)(1).
Ordinarily we review an
evidentiary ruling of a district court
involving a balancing of interests for
abuse of discretion, but if the district
court does not articulate the reasons
underlying its decision there is no way to
review its exercise of discretion. See
United States v. Agnew, No. 03-2654,
2004 WL 21202662, at * 3, F.3d
(3d Cir. Sept. 22, 2004). Nevertheless, a
failure by a district court to articulate its
basis for its exercise of discretion might
not preclude us from determining
whether we must remand a matter. As
we explained in Becker v. ARCO
Chemical Co., 207 F.3d 176, 181 (3d Cir.
9The district court’s charge to the jury
suggests it believed that the one-year
requirement had been satisfied but it did
not say so expressly.

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8
2000), if “the district court fails to
explain its grounds for denying a
[Federal Rule of Evidence 403
balancing] objection and its reasons for
doing so are not otherwise apparent from
the record . . . we need not defer to the
district court’s ruling, and we may
undertake to examine the record and
perform the required balancing
ourselves.” While Becker was concerned
with Rule 403, we recently applied the
same principle under Federal Rule of
Evidence 609(b) as an alternative ruling
in Agnew and we similarly could apply it
under Rule 609(a)(1).
Here, however, inasmuch as the
district court never ruled on nor
addressed the government’s argument
that the 1995 theft conviction was
admissible under Rule 609(a)(1), the
quoted statement from Becker is
inapposite. Becker cannot be applicable
here because we are not dealing with a
situation in which the district court
simply failed to explain its reasoning
under Rule 609(a)(1) but in which we
nevertheless could infer that the court
balanced the interests in favor of the
admission of the evidence. Rather, the
district court had no reason to consider
whether the probative value of the
conviction outweighed its prejudicial
effect under Rule 609(a)(1). Therefore
we have no decision on this point to
review, whether on an abuse of
discretion or plenary basis.10
Furthermore, the record in this
case does not permit us to assume that
admission of the prior conviction
evidence would have been justified under
a Rule 609(a)(1) balancing analysis.
Thus, we treat the admission of the
evidence on the basis used by the trial
court as erroneous and undertake the
harmless error analysis that the
government contends should lead us to
uphold Johnson’s convictions.
Quoting the Supreme Court’s
decision in Kotteakos v. United States,
328 U.S. 750, 765, 66 S.Ct. 1239, 1248
(1946), we previously have explained
that, “[i]f one cannot say, with fair
assurance, after pondering all that
happened without stripping the erroneous
action from the whole, that the judgment
was not substantially swayed by the
error, it is impossible to conclude that
substantial rights were not affected.”11
10We are not suggesting that a court of
appeals must reverse whenever it appears
that the district court did not rule on a
question in a case. But here we are
concerned with an unusual situation in
which there is a balancing analysis
required on a very important question
that the district court should undertake in
the first instance and on which we cannot
be certain that there is a clearly
preferable answer.
11An analysis of whether the
substantial rights of a defendant were

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9
Toto, 529 F.2d at 283. After reviewing
the record we cannot say that the
admission of the 1995 theft conviction
did not affect Johnson’s substantial rights
as it may have led the jury to disbelieve
Johnson’s testimony that he did not have
a weapon and only remained at the crime
scene because he feared Ingram. Indeed,
the government concedes that “[i]n this
case, the defendant’s credibility was
central to the case.” Appellee’s br. at 19.
Therefore, the conviction cannot stand.
III. CONCLUSION
Because the district court erred in
admitting Johnson’s prior theft
conviction on the basis that it did and we
cannot uphold its admission at this time
on a different basis and such error was
not harmless, we will vacate the
judgment of conviction and sentence, and
will remand this case for further
proceedings. We will not, however,
order a new trial but instead we will
instruct the district court on the remand
to undertake the weighing analysis that
Rule 609(a)(1) requires. If the court
determines after making that analysis that
the probative value of admitting the
evidence outweighed its prejudicial
effect on Johnson it should reinstate the
conviction and sentence. Otherwise it
should grant a new trial. In this regard
we point out that even though we are
holding that the impeachment evidence
was admitted improperly and that the
error was not harmless, the district court
is not precluded from finding its
probative value outweighed its
prejudicial effect on Johnson.
In reaching our result we have not
overlooked Johnson’s argument that we
should not remand the matter for the
district court to determine whether the
evidence is admissible under Rule
609(a)(1) because the district court
would abuse its discretion if it admitted
the evidence under that rule. While we
do not preclude Johnson on a further
appeal from raising that argument if the
court does admit the evidence and then
reinstates the conviction and sentence,
we are not convinced on the current
record that admitting the evidence would
be an abuse of discretion. Thus, the
district court should engage in the
weighing process in the first instance.
The judgment of conviction and
sentence entered on October 27, 2003,
will be vacated and the case will be
remanded to the district court for further
proceedings in accordance with this
opinion.
affected by the admission of evidence
includes consideration of a factor similar
to one factor in the balancing test in
which a district court engages under Rule
609(a)(1), namely, the gravity of the
prejudice that the admission of the
evidence would have on a defendant.

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10
United States v. Stanley Johnson, No. 03-
4066
McKee, Circuit Judge, Concurring
I join the opinion of my
colleagues because I agree that admitting
evidence of Johnson’s prior theft
conviction constituted error under Rule
609(a)(2). I write separately because, in
remanding for further proceedings, we
are allowing the District Court discretion
to open the record for additional
testimony on the admissibility of the
1995 theft conviction (purse snatch)
under Rule 609(a)(1). At oral argument,
defense counsel did not object to a
remand to allow the District Court an
opportunity to balance the potential
prejudice against the probative value,
although she did strenuously argue that
admitting the prior conviction on this
record would be reversible error. My
colleagues state that “the record in this
case does not permit us to assume that
admission of the prior conviction
evidence would have been justified under
a Rule 609(a)(1) balancing analysis.”
Maj. Op. at 12. I agree. However, I do
not think that this record, absent more,
could support a conclusion that the
probative value of Johnson’s conviction
for a purse snatching outweighs the
prejudicial value of that conviction.
Carjacking is, of course, a
particularly shocking crime because we
can all relate to an innocent victim who
is suddenly snatched from his/her car at
gunpoint while in the midst of some daily
routine. Johnson’s prior purse snatch
involved the theft of $15.00 three years
before the instant offense. Nothing about
it suggests the kind of callous violence
that is endemic in carjacking. See 18
U.S.C. § 2119 (defining “carjacking” as
the use of force, violence or intimidation
to take a vehicle transported in interstate
or foreign commerce from the person of
another with “intent to cause death or
serious bodily harm”).
Unlike an armed carjacking, a
purse snatch is frequently an “impulse
crime” devoid of the viciousness that so
often characterizes a carjacking. See
United States v. Lipscomb,
702 F.2d 1049, 1058 (D.C. Cir. 1983)
(referring to purse snatching and
shoplifting as impulse crimes).
Nevertheless, a purse snatch is similar to
a carjacking insofar as both are crimes
that jurors can readily relate to given the
familiar precautions that must be
employed to guard against one’s purse
being stolen. However, it suggests
neither the force nor the confrontation
involved in a carjacking. Given the three
years that lapsed between the two crimes,
the extent to which the two crimes
differed, and the potential for jurors to
doubt Johnson’s testimony because they
could so easily relate to the victim of the
prior offense and the victims of the
carjacking, I do not think that this record
would allow a court to conclude that the
probative value of the purse snatch
outweighed its prejudicial effect.
In balancing prejudice against

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11
probative value under Rule 609(a)(1) a
court must consider the nature of the
prior crime, the age of the prior
conviction, the importance of the
defendant’s testimony, and the
importance of the defendant’s credibility.
Government of the Virgin Islands v.
Bedford, 571 F.2d 758, 761 n.4 (3d Cir.
1982). Having urged the District Court
to admit Johnson’s prior offense under
an incorrect theory, the government now
argues that “the evidence against
Johnson was consistent and persuasive,
in contrast to which Johnson’s testimony
was dubious on its face.” Br. at 22
(emphasis added). In contrast, the
government argues that “the testimony of
[the prosecution witnessses] was
consistent, and at odds with Johnson’s
seemingly contrived account.” Id. Thus,
Johnson’s prior conviction was not
crucial to the government’s case. Yet, it
was crucial to the defense. The only
evidence of Johnson’s innocence was
Johnson’s own explanation of his
presence at the scene of this carjacking.
Nevertheless, the government argues that
“the defendant’s credibility was central
to the case.” Br. at 19. It was certainly
central to the defendant’s case, but the
government’s brief suggests that it was
not very important to the government’s
case. Given the government’s
contentions regarding Johnson’s
“seemingly contrived account” that was
“dubious on its face,” and the “consistent
and persuasive” evidence against him, it
is difficult to understand why the
government insisted on eliciting
problematic testimony under Rule 609 in
the first place.
Therefore, I doubt that a proper
balancing of prejudice and probative
value can tip in favor of admission
without more being placed on the
admission side of the scale. However,
inasmuch as defense counsel did not
object to our remanding for further
proceedings when that was suggested
during oral argument, that possibility is
not foreclosed. If the District Court
decides to allow additional testimony
before making a ruling under Rule
609(a)(1), the record may, at that point,
support a determination that the
probative value of the 1995 purse snatch
outweighs its prejudicial impact.

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