United States v. Thomas Johnson

FILED

NOT FOR PUBLICATION JUL 22 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50021

Plaintiff - Appellee, D.C. No. 3:10-cr-03507-W-

v.

MEMORANDUM*

THOMAS DEMETRIOUS JOHNSON,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 12-50022

Plaintiff - Appellee, D.C. No. 3:10-cr-03507-W-

v.

DANIEL LOREN WARREN,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, Senior District Judge, Presiding

Argued and Submitted June 5, 2013 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. -2-

Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.

Defendants Thomas Johnson and Daniel Warren appeal their respective

convictions and sentences following a jury trial in which both were found guilty of

being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). We have…

MEMORANDUM *

Defendants Thomas Johnson and Daniel Warren appeal their respective convictions and sentences following a jury trial in which both were found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922 (g)(1) and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294(1) and 18 U.S.C. § 3742 (a), and now affirm.

First, the district court did not err in declining to dismiss the entire indictment; the government’s conduct was not “so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991). The conduct Warren complains of, supposedly targeting those with “less sophistication” and preying on their “friendship and sympathy,” is much milder than conduct we previously held insufficiently repugnant. See, e.g., United States *594 v. Simpson, 813 F.2d 1462, 1465 (9th Cir.1987) (upholding a confidential informant’s use of “sex to deceive [defendant] into believing she was an intimate friend just so she could lure him into selling heroin to undercover FBI agents”). Moreover, to the extent the use of firearms as part of the robbery was suggested by the…

concurring in part and dissenting in part:

I join my colleagues in affirming the judgment of the district court in United States v. Johnson, no. 12-50021. I concur in the majority disposition in United States v. Warren, no. 12-50022, with one exception: I disagree that the erroneous admission of the evidence found at Mia Mon-crief s home was harmless. Therefore, I concur in part and respectfully dissent in part.

I agree that the district court erred by admitting the evidence of the incident at Mia Moncriefs home: the evidence was not “sufficient to support a finding that defendant committed the other act,” and the evidence was poorly disguised propensity evidence. United States v. Romero, 282 F.3d 683, 688 (9th Cir.2002); see id. (“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.”). The clear implication of the evidence was that Warren had possessed guns and trafficked drugs before, and he did the same thing here.

However, the error was not harmless. “The burden to show the harmlessness of the error is on the party benefitting from the error, in this case, the…