No: 04-2283 UNITED STATES OF AMERICA v. Anthony Johnson

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-2283
UNITED STATES OF AMERICA
v.
ANTHONY JOHNSON,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District No. 02-cr-00758
District Judge: Honorable Petrese B. Tucker
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 14, 2005
Before: Sloviter, McKee & Weis Circuit Judges
Filed July 29, 2005
OPINION
McKee, Circuit Judge.
Anthony Johnson appeals his conviction for conspiracy to commit interstate
transportation of stolen goods and aiding and abetting interstate transportation of stolen
goods. For the reasons that follow, we will affirm his conviction, but remand to the
District Court for resentencing.

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Since we write primarily for the parties who are familiar with the factual and
procedural background of this case, we need not reiterate that background except insofar
as may be helpful to our brief discussion.
Johnson challenges both his conviction and his sentence. He argues that his
conviction should be set aside because the District Court erred in admitting a recording at
trial and the court erred in instructing the jury on the level of scrutiny to apply to a
cooperating witness’ testimony. Both sides agree that we reviewing for an abuse of
discretion. See United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995); and
United States v. Serafini, 233 F.3d 758, 768 n. 14 (3d Cir. 2000).
The District Court properly instructed the jury to scrutinize the testimony of Eric
Gray, Johnson’s co conspirator. Johnson argues that the District Court erred in giving
only general instructions on witness credibility but saying “nothing of the effect on
credibility of a plea agreement, immunized testimony or being an informant.” Appellant’s
Br. at 12. The record belies Johnson’s argument.
Gray was vigorously cross-examined about his cooperation, and his plea
agreement. Moreover, despite Johnson’s statement to the contrary, the court did instruct
the jury to carefully scrutinize Gray’s testimony. The court explained that plea agreements
are an essential part of the criminal justice system and informed the jurors that evidence
of a plea,

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is offered only to allow you to assess the credibility of the
witness Eric Gray...The testimony of such a witness should be
scrutinized with caution. However, a witness who testifies
under a plea agreement with the government is competent to
testify, and such testimony may be received into evidence and
considered by you even though not corroborated or supported
by other evidence. You may give the testimony of a
cooperating witness such weight as you feel it deserves.
(App. 290a.)
We recognized in United States v. Isaac, 134 F.3d 199, 204 (3d Cir. 1998), that
informers and accomplices have an incentive to be dishonest in order to escape
prosecution and obtain reduced sentences. The threat that the jury may improperly ignore
those incentives is reduced where, as here, the trial court allows the defense counsel
broad latitude in probing the witness’ credibility and has instructed the jury to consider
the motives of those testifying. Id. In Issac, we held that a general instruction directing
the jury to consider the motives of the speaker in light of the circumstances of the case
adequately “put the jury on notice that it had to weigh carefully the possible accomplice’s
testimony”. Id. at 205.
Here, the District Court not only instructed the jury to scrutinize every witness
under the circumstances their testimony was produced, but the Court also included
cautionary instructions focused on Gray’s testimony. App. 290a. The court’s instruction
was clearly sufficient to allow the jury to properly evaluate Gray’s testimony given the
circumstances of his cooperation. See Isaac, 134 F.3d at 205.

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On the disputed recording, Johnson’s cohort and Johnson discuss the possibility of
a plea agreement after the cohort claimed to have seen a videotape of Johnson in the
jewelry store. The cohort stated, “that tape ain’t in your favor” and they broke into
laughter. Appellee Br. 7. Contrary to Johnson’s contention, this tape was properly
relevant and the District Court did not abuse its discretion in allowing it to be played
before the jury.
Relevant evidence is any evidence that tends to make the existence of a material
fact more or less likely. Fed.R.Evid. 401. Johnson’s discussion, and the responsive
laughter on the recording tends to confirm Johnson’s presence in the jewelry store.
Immediately after the discussion about the surveillance photographs, the two discuss
whether a plea agreement is advisable under the circumstances. A reasonable jury could
clearly interpret that as evidence that Johnson was depicted in the surveillance photos and
that he realized the strength of the evidence of his guilt.
Johnson’s final argument concerns his 71 month sentence instituted under the
previously mandatory Federal Sentencing Guidelines. Johnson argues that the District
Court erred because the value of the stolen rings was not proven beyond a reasonable
doubt to a jury. He contends that, under Blakely v. Washington, 124 S. Ct. 2531 (2004),
and Apprendi v. New Jersey, 530 U.S. 466 (2000), sentencing pursuant to such judicial
factfinding as occurred here is improper. Appellant’s Br. at 15 to 16. He concedes,
however, that he did not raise a “Blakely issue” at sentencing but argues that he was

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precluded from doing so under our holding in United States v. Williams, 235 F.3d 858,
860-63. Appellant’s Br. at 16.
After the District Court sentenced Johnson, the Supreme Court decided United
States v. Booker, 125 S.Ct. 738 (2005). Briefly stated, “[t]he Court held that 18 U.S.C. §
3553(b)(1), the provision of the Sentencing Reform Act that makes the Guidelines
mandatory, was [unconstitutional] and that it must be severed and excised [from the
Guidelines].” United States v. Ordaz, 398 F.3d 236, 239 (3d Cir. 2005). The Court also
reaffirmed the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), wherein the
Court had stated: “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt."
In United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), we explained
how we would resolve direct appeals of sentences imposed before Booker was decided,
where courts had erroneously treated the Guidelines as mandatory rather than advisory.
We stated that where we could not determine “whether the District Court would have
imposed a greater or lesser sentence under an advisory framework,” prejudice in a plain
error analysis “can be presumed.” Id. at 164-65. We reasoned that, given the law of
sentencing after Booker, “[f]ailure to remand for resentencing . . . could adversely affect
the fairness and integrity of the proceedings.” Id at 165. Thus, we concluded that
defendants sentenced under the prior mandatory guideline regime whose sentences were

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on direct appeal at the time of the Booker decision should have their sentencing challenge
remanded to the District Court for resentencing pursuant to the pronouncements of
Booker.
Accordingly, we will affirm Johnson’s conviction, but “vacate [his] sentence, and
remand for consideration of the appropriate sentence by the District Court.” Davis, 407
F.3d at 166. However, we will affirm Johnson’s conviction and remand for resentencing.

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