Opinion
Case No.: SACR 16-00029-CJC
02-22-2018
UNITED STATES of America, Plaintiff, v. Robert Wesley JOHNSON, Defendant.
Jeffrey M Chemerinsky, Julia L Reese, AUSA-Office of the US Attorney Violent and Organized Crimes Section, Los Angeles, CA, Scott D Tenley, AUSA-Office of US Attorney Santa Ana Branch Office, Santa Ana, CA, for Plaintiff.
Jeffrey M Chemerinsky, Julia L Reese, AUSA-Office of the US Attorney Violent and Organized Crimes Section, Los Angeles, CA, Scott D Tenley, AUSA-Office of US Attorney Santa Ana Branch Office, Santa Ana, CA, for Plaintiff.
ORDER DENYING DEFENDANT JOHNSON'S MOTIONS FOR A JUDGMENT OF ACQUITTAL, NEW TRIAL, AND TO DISMISS THE INDICTMENT
CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On September 22, 2017, after a four-week trial, the jury found Defendant Robert Wesley Johnson guilty of the following charges: (1) aiding and abetting or conspiring with others to commit Hobbs Act robbery at Westime in West Hollywood, California ("the Westime robbery"); (2) aiding and abetting or conspiring with others to commit Hobbs Act robbery at Ben Bridge Jeweler in Torrance, California ("the Del Amo robbery"); (3) aiding and abetting or conspiring with others, who knowingly brandished a firearm during and in relation to the Del Amo robbery; and (4) conspiracy to commit Hobbs Act robbery. Johnson now moves to set aside the jury's guilty verdict, arguing that there was insufficient evidence to support the verdict. (Dkt. 1174 [Johnson's Reply, hereinafter "Reply"].) The Government opposes Johnson's motion, contending that Johnson planned and participated in the two robberies, and supplied the firearm for the Del Amo robbery. The Court agrees with the Government. There was sufficient evidence to support the jury's guilty verdict on all four counts. Johnson knowingly aided and abetted the two robberies, intentionally participated and joined in the conspiracy to commit those robberies, and supplied the firearm for the Del Amo robbery.
Johnson also moves for a new trial or, in the alternative, to dismiss the indictment, based on prosecutorial misconduct by the Government during the direct examination of a witness. Johnson argues that the Government elicited racially charged testimony that was irrelevant and "only being offered to inflame, stereotype and/or race bait the jury." (Dkt. 1116 [Johnson's Motion, hereinafter "Mot."] at 7.) The Government opposes Johnson's motion, contending that Johnson mischaracterizes the witness's testimony and that the Government had a good faith basis to elicit the testimony. The Court again agrees with the Government. Neither the witness's testimony nor the Government's questioning and argument impermissibly infected the trial with racial prejudice.
Defendants Keith Marvel Walton, Evan Kwan Scott, and Jameson LaForest filed separate motions for new trial or in the alternative, to dismiss the indictment, on different grounds. (See Dkts. 1107, 1108, 1123 [under seal].) The Court addresses these motions in a separate order.
Accordingly, the Court DENIES Johnson's motions for acquittal, new trial, and to dismiss the indictment. (Mot.; Reply.)
II. BACKGROUND
The operative Third Superseding Indictment charged Johnson with conspiracy to commit Hobbs Act robbery (Count One), six counts of Hobbs Act robbery (Counts Two [Geary's, Santa Monica], Four [Rubel Jewelers, Mission Viejo], Six [Manya Jewelry, Woodland Hills], Nine [Westime, West Hollywood], Eleven [Ben Bridge Jeweler, Torrance], and Fourteen [Ben Bridge Jeweler, Santa Monica] ), and five counts under 18 U.S.C. § 924(c) with brandishing enhancements (Counts Three [Geary's, Santa Monica], Five [Rubel Jewelers, Mission Viejo], Seven [Manya Jewelry, Woodland Hills], Ten [Westime, West Hollywood] and Twelve [Ben Bridge Jeweler, Torrance] ). (Dkt. 537.) The grand jury returned the indictment against Johnson and several co-defendants, charging them all with one or more "smash and grab" robberies that occurred at jewelry stores across Southern California. After a four-week jury trial, the jury convicted Johnson of Counts One, Nine, Eleven, and Twelve, and acquitted on all other counts charged against him.
Viewed in the light most favorable to the Government, evidence at trial showed the following:
A. The Westime Robbery
On February 15, 2016, Wilson Elima picked up Jameson LaForest and drove to Keith Walton's house, (Dkt. 923 [Transcript 8/22/17 Vol. II] at 78:19-23, 86:16-25), where they met with Walton, Johnson, and Darrell Dent, (id. at 80:2-8, 87:3-6). Both Johnson and LaForest had asked Elima to join this planning meeting for the Westime robbery at Walton's house. (Id. at 76:18-77:1, 77:8-78:6, 78:21-23.) The men gathered in the living room and discussed how the robbery would "go down." (Id. at 80:9-13, 87:7-14; Dkt. 970 [Transcript 8/31/17 Vol. II] at 23:2-25:3.) The meeting lasted about 45 minutes. (Transcript 8/22/17 Vol. II at 83:20-22.) Dent testified that the men discussed "[t]he type of clothing participants may use," "the guy that would be used to control the guard or hold the guard down," and "the exit routes." (Transcript 8/31/17 Vol. II at 24:3-6.) Dent also testified that Johnson previously had scouted the robbery location. (Id. at 22:18-23:1.) Walton explained that a "plug," a person who buys stolen goods, would purchase the stolen watches after the robbery. (Transcript 8/22/17 Vol. II at 81:17-82:8.) After the meeting, Johnson told Elima that Justin Henning was waiting for Johnson at St. Andrews Park, and asked Elima to drive him there. (Id. at 83:24-84:13.) Elima drove Johnson and LaForest to the park. (Id. ) At the park, Johnson told LaForest, Elima, Henning, and another person how the robbery would "go down." (Id. at 85.) After the meeting, Elima drove Johnson and LaForest back to Walton's house, then went home. (Id. at 86.)
On the morning of February 16, 2016, Elima picked up LaForest and drove to Walton's house. (Id. at 86:16-25.) When they arrived, Walton, Johnson, and Dent were already there. (Id. at 87). The men again discussed how the robbery was going to "go down." (Id. ) After meeting, the men left Walton's house to commit the robbery. (Id. at 87–95.) Johnson told Elima he "had to make a couple of runs" to various stores, so Elima drove Johnson so that he could purchase specific hammers for the robbery. (Id. at 87:13-89:11.) Johnson and Elima also stopped at a motorcycle store where Johnson bought some "ninja masks" that the robbers would use to cover their faces. (Id. at 90:12-91:11.) Elima then drove back to Walton's house, where he dropped off Johnson and picked up LaForest. (Id. at 91:12-92:2.) Elima and LaForest then drove to Queen Park. (Id. ) Elima, LaForest, Henning, Johnson, and three other men met at the park. (Id. at 92:3-94:22.) At this meeting, Johnson gave construction shirts to the robbers. (Id. at 94:5-16.) The men waited for a getaway driver to arrive, (id. at 94:23-95:9), and while waiting Elima ended up asking LaForest to take him to work because he was going to be late, (id. at 95:10-15). LaForest did drop Elima off at work, but took Elima's car to use in the robbery. (Transcript 8/22/17 Vol. II at 103:3-19.) Later that evening, LaForest picked Elima up from work, and told Elima that the robbery was attempted but not completed, and that "tomorrow would be the day, just be ready." (Id. at 108:13-109:3; see also Transcript 8/31/17 Vol. II at 25:16-22.) Elima testified that the attempt involved the use of a gun. (Dkt. 930 [Transcript 8/25/2017] at 34:16-35:16.)
The Government presented physical evidence that a specific yellow hammer was used in the Del Amo robbery, Westime Malibu robbery, and the Westime West Hollywood robbery. (Exs. 417, 438 at 11, 360 at 4.)
Around this time, Elima sent his girlfriend a message through Facebook messenger that said "just meet up with homies" and indicated that they had been discussing things and Elima thought they were "lollygagging." (Transcript 8/22/17 Vol. II at 100:1-21; Exs. 66D, 66E.) Elima later messaged his girlfriend that "I got Jameson [LaForest] driving my car." (Ex. 66I.)
FBI Special Agent Boles testified that the phones associated with Elima, LaForest, Walton, and Johnson, were all in the vicinity of Walton's house from 8:00 a.m. to 9:00 a.m. on February 16, 2016. (Dkt. 1054 [Transcript 9/12/17 Vol. I] at 130–33.) Boles also testified that the phones associated with LaForest and Johnson were in the vicinity of Westime that evening and communicated with one another during that time. (Id. at 36–38; Ex. 203G at 2.)
On February 17, 2016, LaForest texted Elima and told him that he was needed "for the handoff," (Transcript 8/22/17 Vol. II at 109:4-8; Ex. 135N), meaning that Elima would take the stolen merchandise to the plug, (id. at 114–15). Elima called LaForest and told him that he could not make it to the robbery because he had to take his uncle somewhere. (Id. at 111:21-112:8.) About six minutes later, Johnson called Elima and told Elima he was "the last piece to the puzzle" and tried to persuade Elima to participate. (Id. at 112:11-113:20.) There were more phone communications between Elima, Johnson, and LaForest, but Elima did not end up participating in the robbery. (Id. at 120:15-17.) At one point, Johnson tried to pressure Elima to participate by telling him that he would lose his Inglewood Family gang moniker. (Id. at 114; Ex. 135M.) Dent and Johnson were texting the morning of February 17, 2016, and Dent texted Johnson to "play ball safely," which was code for good luck with the robbery. (Transcript 8/31/2017 Vol. I at 26; Ex. 111.)
Eric Hoppingarner, an employee of Westime West Hollywood, testified that he was working the day of the robbery. (Dkt. 1047 [Transcript 8/30/17 Vol. I] at 57–58.) Mr. Hoppingarner testified that three men wearing construction vests entered the store. (Id. at 59.) One of the men was armed with a gun. (Id. ) One man told him to get to the ground and, "asked [him] if [he] wanted to die that day." (Id. ) The two other men also ordered him to the floor and then smashed the watches cases, grabbed the watches, and fled. (Id. ) The Government also introduced security camera footage of the robbery that corroborated Mr. Hoppingarner's testimony. (Id. at 59-60.)
Dent testified that the robbery was a success and that "[w]atches were acquired." (Transcript 8/31/17 Vol. II at 27:5.) Dent also testified that Johnson, Walton, LaForest, Stanley Ford, and Dent later met up in the parking lot at Ladera Center to "split up the proceeds" from the robbery. (Id. at 28:24-29:6.) Dent received a total of $60,000 for the watches stolen from the Westime. (Id. at 28:14-23.)
B. The Del Amo Robbery
On February 25, 2016, LaForest contacted Elima and told him to meet at Walton's house. (Transcript 8/23/17 Vol. I at 21:22-23:13; Ex. 135K [text message from LaForest to Elima stating that Elima and LaForest "ha[d] to be at Fly [code name for Walton] before 8"].) At some point, Johnson also called Elima and told him to come to Walton's house. (Transcript 8/23/17 Vol. I at 20:9-21:19.) When Elima arrived at Walton's house, Johnson, Dent, LaForest, and Walton were there. (Transcript 8/23/17 Vol. I at 23:14-25.) The men discussed the robbery of the Ben Bridge Jeweler in the Del Amo mall. (Id. at 24:2-3.) Walton suggested that they go to a Ralphs grocery store parking lot about two minutes from Walton's house so they could "finish the conversation." (Id. at 25:20-26:7.) Walton, Johnson, LaForest, Dent, Ford, and Elima then met up at the Ralphs parking lot. (Id. at 26:15-20.) There, the men discussed the robbery again and Walton told Elima and LaForest to scout out the location. (Id. at 25:15-19, 27:2-22.) Elima and LaForest went to the Ben Bridge Jeweler in the Del Amo mall later that day to scope out the store, plan exit routes, and pick a switch-off spot where the stolen items would be handed off. (Id. at 28:10-33:19.) Cell site data also showed that Johnson and LaForest were in the vicinity of the Del Amo mall later in the day on February 25, 2016. (Transcript 9/12/17 Vol. I at 49–51; Ex. 203I at 2–3.) The Government also presented coded text messages between Dent and Johnson, one asking whether the conspirators would each contribute $100 toward the price of the stolen car to be used in the robbery, (Transcript 8/31/17 Vol. II at 40–41), and another agreeing to speak on Johnson's prepaid telephone, (id. at 43–44).
Dent testified he did not recall any discussion about a gun being used in the Del Amo robbery. (Transcript 8/31/17 Vol. II at 41:20-23.)
On February 26, 2016, Elima picked up LaForest and Stephen. (Dkt. 1045 [Transcript 8/23/17 Vol. I] at 37.) Johnson, LaForest, Evan Scott, Michael Germeille, Cornell Stephen, and Elima met at Morningside Park. (Transcript 8/29/17 Vol. I at 99 [meeting in a parking lot near Animo Charter School], 114; Transcript 8/23/17 Vol. I at 38, 42.) During this meeting, Johnson discussed the Del Amo robbery. (Transcript 8/23/17 Vol. I at 38.) Johnson assigned the following roles for the robbery: Elima would be the getaway driver, Scott would be the gunman, and Stephen, with another man named Shane Lewis, would smash the glass cases in the store. (Id. at 38–39.) Johnson instructed Stephen to "use the same aggression" as Lewis and Scott inside the store. (Transcript 8/29/17 Vol. I at 103–04.) Johnson retrieved hammers and a gun from Elima's car. (Transcript 8/23/17 Vol. I at 39–40.) Johnson told Elima that the firearm would be "the element of surprise," and asked Elima to drive it to the mall. (Id. at 40–41.) LaForest gave Stephen and Lewis each a backpack, hammer, ski mask, and gloves, and to Scott gloves and a ski mask, to use for the robbery. (Transcript 8/29/17 Vol. I at 106–07.)
Elima testified at trial that Henning was present at this meeting, (Transcript 8/23/17 Vol. I at 38, 42), but Stephen testified that Henning was not present, (Transcript 8/29/17 Vol. I at 99, 114).
After the meeting, many of the meeting participants, including Johnson, traveled to the Del Amo mall, planning to commit the robbery. (Transcript 8/23/17 Vol. I at 42.) At the mall, the group met with Stanley Ford and Shane Lewis. (Id. ) Most of the men waited outside while Ford went inside the mall to scope out the Ben Bridge store. (Id. at 43.) Johnson then told Elima he was going to make sure no police were around. (Id. ) At that point, Johnson handed Elima the firearm, and Elima handed the firearm to Lewis. (Id. at 43–44.) Elima testified that the firearm was a nine millimeter semi-automatic gun. (Id. ) When Ford returned to the group, he reported that a girl was sitting right by the store. (Id. at 44.) After some deliberation, the robbery was called off. (Id. at 45.) Cell site data showed that Johnson was in the vicinity of the Del Amo mall later in the day on February 26, 2016. (Ex. 203K at 4.)
Johnson, along with other men, decided to reschedule the robbery for Monday, February 29, 2016. (Transcript 8/29/17 Vol. I at 11–12.) On the morning of February 29, 2016, Johnson, LaForest, Henning, Scott, Ford, Lewis, Stephen, and Germeille met at Morningside Park. (Transcript 8/23/17 Vol. I at 49; Transcript 8/29/17 Vol. I at 113, 115.) Elima testified that Johnson said there was no need for further discussion. (Transcript 8/23/17 Vol. I at 50.) Stephen testified that Johnson spoke at the meeting and they discussed "the same thing we discussed on Friday ... just making sure everybody knows their position to take." (Transcript 8/29/17 Vol. I at 114.) The men then traveled to the Del Amo mall to commit the robbery. (Id. at 116; Transcript 8/23/17 Vol. I at 51.)
From the meeting at Morningside Park, Germeille drove Scott, Lewis, and Stephen to the mall, where they parked next to Elima and waited for a phone call. (Transcript 8/29/17 Vol. I at 108, 116.) Elima, Ford, Johnson, and LaForest traveled alone to the mall. (Id. at 115–16.) Johnson's role was to circle around the mall. (Transcript 8/23/17 Vol. I at 51.) Once Ford arrived at the mall, he walked into the Ben Bridge jewelry store, then came out and gave "the green light" to go forward with the robbery. (Id. at 52.) Germeille dropped off the three other men outside the mall and Scott, Lewis, and Stephen went directly into the Ben Bridge jewelry store. (Transcript 8/29/17 Vol. I at 116.) When the robbers reached the store, Scott pulled out a firearm, got the workers to the back of the store, and kept them on the ground. (Id. at 116–17.) Lewis and Stephen followed Scott in, smashed the glass cases containing Rolex watches, and grabbed the watches. (Transcript 8/29/17 Vol. I at 116–17.) Scott, Lewis, and Stephen left the store and got into Elima's car, which was waiting outside the mall by the door. (Transcript 8/23/17 Vol. I at 52–53; Transcript 8/29/17 Vol. I at 119.)
Stephen testified that he did not know it was going to be an armed robbery prior to Scott pulling out the firearm. (Transcript 8/29/17 Vol. I at 117–18.)
Cell site data showed that the prepaid phone associated with Johnson was in the vicinity of the Del Amo mall around the time of the robbery, and left the area immediately after the robbery occurred. (Transcript 9/12/17 Vol. I at 52, 55–63; Ex. 203K at 6–7.) The Government submitted into evidence a video of the Del Amo parking lot during the time of the robbery. (Transcript 8/24/17 at 213.) Elima viewed the video and identified his own car and Germeille's car. (Id. at 214–25.) Stephen testified that the spot where he met up with Johnson could be seen in the video, (Dkt. 966 [Transcript 8/29/17 Vol. II] at 133–34), but that the video captured events after their meeting, so Johnson could not be seen in the video, (Transcript 8/29/17 Vol. II at 12–14). Stephen also testified that the video did not show Johnson riding a motorcycle in the parking lot. (Transcript 8/29/17 Vol. II at 133–34.)
Elima drove to a designated switch-off spot, where the men met with LaForest, who was waiting in a red BMW, and gave him the stolen goods. (Transcript 8/23/17 Vol. I at 55–57; Transcript 8/29/17 Vol. I at 119–20.) LaForest called Dent and told him the robbery was "a success," and later they met and LaForest gave Dent the stolen watches. (Transcript 8/31/17 Vol. II at 48:14-49:6.) Dent then sold the stolen watches from the robbery. (Id. at 49:12-23.)
From the switch-off spot, Elima drove to a grocery store and stopped to pull off the paper license plate covering his real plate. (Transcript 8/29/17 Vol. I at 120.) At the grocery store, Scott took the backpack from Stephen, which contained the gun, and left Elima's car to get into Germeille's car, which was behind Elima's car. (Id. at 120–21.) Elima then drove Stephen and Lewis to the South Bay Galleria, where they waited for about a minute, then drove onto the freeway back to Inglewood. (Id. at 121.) While on the freeway, the state police pulled over Elima's car while Elima, Stephen, and Lewis were inside. (Id. at 122; Transcript 8/23/17 Vol. I at 58–59.) All three men were arrested. (Transcript 8/29/17 Vol. I at 122; Transcript 8/23/17 Vol. I at 58–59.) At the time of his arrest, Elima had a note in his car, provided by LaForest, which contained the names and phone numbers of people who were supposed to participate in the Del Amo robbery. (Transcript 8/23/17 Vol. I at 62–65.) Johnson was not listed on the note. (Id. )
Elima, Dent, and Stephen were also defendants charged in connection with these robberies and testified as cooperating witnesses for the Government at Johnson's trial.
C. Mr. Groezinger's Testimony
Defendants Scott and LaForest, but not Johnson, were charged with the Westime Malibu robbery in Count Thirteen. (Dkt. 537.) The Government called Ronald Groezinger to testify regarding this robbery. (Dkt. 1051 [Transcript 9/6/17 Vol. I] at 20.) Mr. Groezinger works for the Westime store in Malibu, and was working on March 22, 2016, when the robbery occurred. (Id. at 20, 23.) Mr. Groezinger's testimony included the following line of questioning by the Government attorney:
Q: And what time does the store generally open?
A: 10:00.
Q: And is that the same time the store opened on the day of March 22nd, 2016?
A: Yes.
Q: And at approximately what time was the store robbed?
A: Approximately 10:30.
Q: Now, prior to the robbery that morning, did you notice anything suspicious?
A: I did. There were two African-American women going back and forth on the sidewalk in front of our store several times. It was just noteworthy in that I don't see that much activity by two people that early in consecutive sort of appearances.
Q: And if you can please turn to Exhibit 430 in front of you.
A: Okay.
Q: And do you recognize this picture?
A: Yes, I do.
Q: And does this picture fairly and accurately depict the two women you noticed walking in front of the store that morning?
A: Yes, it does.
(Id. at 24:16-25:12.) Exhibit 430 was then admitted into evidence. (Id. at 25:13-18.) The Government attorney continued:
Q: And why were you suspicious about what the two women pictured in Exhibit 430 were doing?
A: Well, first of all, it's just that it's odd at that time of day to see people -- any people walking around let alone young ladies several times. Usually people are going from store to store or just generally walking around, but not so much in front of my store within the span of a short period of time. And they were looking inside quite often.
Q: And approximately how -- how close in time to the robbery was this?
A: I think, if I recall correctly, they were -- the last time they were through was after the store had opened at 10:00, approximately 10:10, 10:15 or so, give or take five minutes.
(Id. at 25:19-26:6.)
Johnson did not object to Mr. Groezinger's testimony at trial. The Government attorney continued to ask Mr. Groezinger about the details of the robbery that he witnessed that day. Mr. Groezinger did not identify the robbers, (id. at 20–35), and on cross-examination he testified that the two women he saw before the robbery were not the robbers, (id. at 37–38). Johnson's counsel spent almost his entire cross-examination of Mr. Groezinger discussing the two African-American women, (id. at 36–43), and pointedly asked Mr. Groezinger, "The only thing that made them suspicious was their color?" to which he replied, "No, not at all," (id. at 38:14-15).
III. MOTION FOR ACQUITTAL
Johnson claims that his convictions rest on insufficient evidence. (See generally Reply.) On a motion for judgment of acquittal, the Court will uphold a conviction if, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Reed , 575 F.3d 900, 923 (9th Cir. 2009) (quoting United States v. Herrera–Gonzalez , 263 F.3d 1092, 1095 (9th Cir. 2001) ). "The hurdle to overturn a jury's conviction based on a sufficiency of the evidence challenge is high." United States v. Rocha , 598 F.3d 1144, 1153 (9th Cir. 2010).
"When viewing the evidence in the light most favorable to the government," the Court "may not usurp the role of the finder of fact by considering how [the Court] would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. H.B. , 695 F.3d 931, 935 (9th Cir. 2012) (quoting United States v. Nevils , 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc)). "Therefore, in a case involving factual disputes and credibility determinations," the Court "must presume ... that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. (citations omitted). "Notably, it is not the district court's function to determine witness credibility when ruling on a Rule 29 motion." United States v. Alarcon-Simi , 300 F.3d 1172, 1174 (9th Cir. 2002) (quotation marks omitted). Courts applying the Rule 29 standard "must bear in mind that it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts." Id. Furthermore, the Ninth Circuit has held "that a conviction may be based on the uncorroborated testimony of a single accomplice, so long as it has not reached a point when the witness' qualifications are so shoddy that a verdict of acquittal should have been directed." United States v. Tam , 240 F.3d 797, 806 (9th Cir. 2001) (internal quotation and citation omitted).
"Circumstantial evidence ‘can be used to prove any fact,’ although ‘mere suspicion or speculation does not rise to the level of sufficient evidence.’ " United States v. Dinkane , 17 F.3d 1192, 1196 (9th Cir. 1994) (quoting United States v. Stauffer , 922 F.2d 508, 514 (9th Cir. 1990) ). "The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict." Id. (citations omitted).
A. Counts Nine and Eleven–Robbery
In Counts Nine and Eleven, Johnson was charged with aiding and abetting or conspiring with others to commit the Westime and Del Amo robberies, respectively. The elements of a Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) are: (1) the defendant made or induced the victim to part with property by the wrongful use of actual or threatened force, violence, or fear; (2) the defendant acted with the intent to obtain property; and (3) commerce from one state to another was affected in some way. (Dkt. 961 ["Jury Instructions – Given"], Court's Instruction No. 33; Ninth Circuit Model Criminal Jury Instruction No. 8.143A.) The jury was instructed that a defendant may be found guilty of Hobbs Act robbery even if the defendant personally did not commit the act or acts constituting the crime, but aided and abetted in its commission. (Jury Instructions – Given, Court's Instruction No. 36.) The elements of aiding and abetting a Hobbs Act robbery are: (1) interference with commerce by robbery was committed by someone; (2) the defendant aided, counseled, commanded, induced or procured that person with respect to at least one element of interference with commerce by robbery; (3) the defendant acted with the intent to facilitate interference with commerce by robbery; and (4) the defendant acted before the crime was completed. (Id. ; Ninth Circuit Model Criminal Jury Instruction No. 5.1.)
The jury was also instructed that a defendant may be found guilty of Hobbs Act robbery based on conspiracy responsibility. (Jury Instructions – Given, Court's Instruction No. 37.) The elements required to prove conspiracy responsibility for Hobbs Act robbery are: (1) a person committed the crime of interference with commerce by robbery as alleged in the count under consideration; (2) that person was a member of the conspiracy charged in Count One; (3) that person committed the crime of interference with commerce by robbery in furtherance of the conspiracy; (4) defendant was a member of the same conspiracy charged in Count One at the time the offense charged in the count under consideration was committed; and (5) the offense fell within the scope of the unlawful agreement and could reasonably have been foreseen to be a necessary or natural consequence of the unlawful agreement. (Id. ; Ninth Circuit Model Criminal Jury Instruction No. 8.25.)
The evidence shows that Johnson played a key role in the two robberies for which he was convicted. Based on this evidence, a rational trier of fact could conclude that the essential elements of a Hobbs Act robbery were met beyond a reasonable doubt under an aiding and abetting theory of responsibility or a conspiracy theory of responsibility for the Westime and Del Amo robberies. i. The Westime Robbery
Johnson makes no specific arguments about the sufficiency of the evidence against him for the Westime robbery. (See generally Mot., Reply.)
The Government presented evidence that Johnson was an active participant in planning and executing the Westime robbery and that he performed multiple acts to aid and abet its commission. Specifically, Johnson helped plan the Westime robbery with Dent, Johnson, LaForest, and Elima at Walton's home. Johnson asked Elima to join that meeting, and later pressured Elima to participate when Elima did not want to. Johnson also discussed the robbery plans with LaForest, Elima, and others during another meeting. He served a key role–providing the robbers' disguises and the hammers they would use to smash the glass cases containing watches. Cell tower data corroborated Johnson's presence at a planning meeting and in the vicinity of the attempted robbery. Johnson was also present when the proceeds from the robbery were divided, and a trier of fact can infer from this evidence that he was paid for his participation in the robbery.
The Government's evidence was also sufficient to find that Johnson was a member of the conspiracy to commit the Westime robbery and acted pursuant to that agreement to help commit the robbery. The evidence showed that Johnson entered into an agreement with Dent, Walton, LaForest, and Elima to commit the Westime robbery. Johnson helped coordinate the robbery with other co-conspirators, and participated in the conspiracy by, among other things, providing the tools and clothing the robbers would use.
ii. The Del Amo Robbery
The Government presented sufficient evidence to establish that Johnson was an active participant in planning and directing the Del Amo robbery and that he performed multiple acts to aid and abet its commission. Specifically, Johnson helped plan the Del Amo robbery with Dent, LaForest, Walton, and Elima at Walton's home. Johnson directed two planning meetings with the men who would enter the Ben Bridge store, on the date of the attempted robbery and of the actual robbery. On the morning of the attempt, Johnson assigned roles for the robbery participants, and distributed the hammers to the robbers. Importantly, Johnson provided the firearm that Scott would use inside the store "as the element of surprise" to frighten security personnel and employees. Johnson waited in the vicinity of the Del Amo mall during both the attempted robbery and the actual robbery, which was corroborated by cell site data.
The Government's evidence was also sufficient to find that Johnson was a member of the conspiracy to commit the Del Amo robbery and acted pursuant to that agreement to help commit the robbery. Johnson entered into an agreement with Dent, Walton, Elima, and LaForest to commit the Del Amo robbery, he helped coordinate the robbery with other co-conspirators, he assigned the roles for the robbery, and he provided the firearm and hammers the robbers used to commit the robbery.
Johnson takes issue with certain cooperating witnesses' lack of testimony regarding his role in planning and executing the Del Amo robbery. (Reply at 12–24.) However, the fact that Dent did not attend a planning meeting for the Del Amo robbery on February 29, 2016, or that Dent did not pay Johnson from the proceeds of the robbery does not negate evidence that a meeting on February 29 did occur and that Johnson participated in that meeting. (Id. at 12–13.) Similarly, the fact Elima testified that Walton and Ford played planning roles in the Del Amo robbery does not negate other testimony that Johnson also played a planning role. (Id. at 13–25.) That Walton assigned Elima his role does not negate that Johnson assigned roles to others at the meeting on February 26, 2016. (Id. ) The overwhelming evidence that Johnson helped plan and execute the Del Amo robbery is not inconsistent with evidence that others worked with Johnson to plan and execute the robbery. The Government's argument that Johnson and other co-conspirators were guilty of conspiring to commit or aiding and abetting the commission of the Del Amo robbery does not present "inherently contradictory" theories of liability as Johnson's motion suggests. (Reply at 5–11, 16–21.) Multiple conspirators can plan and execute a robbery.
Johnson also points out that he cannot be seen in the Government's surveillance video from February 29, 2016, which he argues proves that he was never present in the parking lot either riding his motorcycle or handing off a weapon. (Mot. at 4.) Johnson also argues that both Stephen and Elima "committed perjury" by testifying that Johnson was not in the surveillance video and that Johnson was in the area of the Del Amo during the robbery. (Reply at 15–16, 23, 27–30.) Johnson presented these arguments to the jury during trial and in closing argument. Johnson's argument does not undermine his conviction. The surveillance video was for a limited time period and in one location at the Del Amo mall. Most importantly, the video footage was not inconsistent with any cooperating witness' testimony. Stephen testified that while he met Johnson in the Del Amo parking lot, a location captured in the video. (Transcript 8/29/17 Vol. II at 12–14.) He also testified that the video captured events after their meeting, so Johnson could not be seen in the video. (Id. ) Additionally, the Government's cell site data corroborated the cooperating witness testimony on the point that Johnson was in the area of the Del Amo mall during both the attempted and the actual robbery. In a similar vein, the fact that Johnson's name did not appear on Elima's list of participants can be explained by Johnson's removed, organizational role. (Mot. at 5; Reply at 23–24.) Johnson, along with other planners such as Walton and LaForest, were not on the list. Simply put, the absence of Johnson in one video and on Elima's list does not discredit or call into question the substantial evidence the Government presented of Johnson's presence and role in the robbery conspiracy.
Johnson also argues that the testimony of the cooperating witnesses was incredible or unsubstantial. (Reply at 5, 13, 30–34.) Johnson characterizes the cooperating witnesses as totally unbelievable based on character evidence presented at trial as to their untruthfulness. (Id. ) However, the Court does not independently assess witness credibility when reviewing the sufficiency of the evidence. See H.B. , 695 F.3d at 935 ("in a case involving factual disputes and credibility determinations," the Court "must presume ... that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). The case against Johnson does not present the exceptional circumstance where a single cooperating witness constitutes the sum of the Government's case. See Tam , 240 F.3d at 806. Here, the Government presented multiple cooperating witnesses, historical cell site data, text messages, amongst other corroborating evidence. See id. (denying a Rule 29 motion and noting that "the jury was aware of the witnesses' involvement in the scheme as well as their potential biases when it made its credibility finding" and that "independent evidence corroborated several aspects of the [cooperating] witnesses' testimony").
Johnson also argues that no cooperating witness mentioned him in any sworn factual basis submitted to the Government. (Mot. at 4–5.) This argument is belied by the reality that all three cooperating witnesses whose testimony implicated Johnson included him in the sworn factual basis for their plea agreement. (See Dkt. 480 [under seal Plea Agreement for Darrell Dent]; Case No. 8:16-cr-00037-CJC Dkts. 97 [under seal Plea Agreement for Cornell Stephen], 154 [under seal Plea Agreement for Wilson Elima].)
Lastly, Johnson points out that Stephen testified that Johnson was shorter than he is in reality, and argues that this undermines Stephen's credibility in remembering Johnson from the Del Amo robbery. (Reply at 33–34.) Johnson presented this argument to the jury at trial. Whether Stephen remembered Johnson's exact height does not undermine the Stephen's consistent testimony that Johnson played a key role in organizing the robbery and directing its participants.
B. Count Twelve– Section 924(c)
In Count Twelve, Johnson was charged with aiding and abetting or conspiring with others, who knowingly brandished a firearm during and in relation to the Del Amo robbery. The elements of using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a crime of violence, under 18 U.S.C. § 924(c) are: (1) the defendant committed the crime of robbery, which is a crime of violence; (2) the defendant knowingly possessed a firearm in furtherance of, or used or carried a firearm during and in relation to the crime of robbery. (Jury Instructions – Given, Court's Instruction No. 38; Ninth Circuit Model Criminal Jury Instruction No. 8.72.)
Johnson's conviction for violating § 924(c) can be sustained under an aiding or abetting theory or a conspiracy theory of responsibility, even if he was not the one who brandished the firearm during the robbery. "[T]o be guilty of aiding and abetting under § 924(c), the defendant must have directly facilitated or encouraged the use of the firearm and not simply be aware of its use." United States v. Bancalari , 110 F.3d 1425, 1429–30 (9th Cir. 1997) (internal quotation and citation omitted). Since the Government presented sufficient evidence to show that Johnson was a participant in the conspiracy to commit the Del Amo robbery, he also may be held "criminally liable for the substantive offenses committed by a co-conspirator when they are reasonably foreseeable and committed in furtherance of the conspiracy," including a violation of Section 924(c). United States v. Allen , 425 F.3d 1231, 1234 (9th Cir. 2005) (internal quotations and citations omitted). To find Johnson criminally responsible for the brandishing of a firearm by one of his co-conspirators during the Del Amo robbery, "the government ‘is not required to establish that [the defendant] had actual knowledge of the gun’; rather, ‘[t]he touchstone is foreseeability.’ " Id. (quoting United States v. Hoskins , 282 F.3d 772, 776 (9th Cir. 2002) (citation omitted)).
The Government's evidence established that Johnson assigned Scott the role of gunman, advocated for the use of the firearm as the "element of surprise," and supplied a nine millimeter semi-automatic firearm to the robbers. Johnson had direct knowledge that a firearm would be used to accomplish the Del Amo robbery.
Johnson argues that there was no evidence that the firearm used in the Del Amo robbery was, in fact, a real firearm. (Reply at 34–35.) He points out that Stephen did not testify that he heard anyone discuss a gun or saw Johnson give anyone a gun before the Del Amo robbery. (Id. ) However, Elima testified that Johnson handed him the firearm used in the Del Amo robbery on February 26, 2016, and that the firearm was a 9 millimeter semi-automatic gun. (Transcript 8/23/2017 Vol. 1 at 43:17-44:4.) No evidence was presented at trial that the conspirators ever used or considered using a toy or replica gun. C. Count One: Conspiracy to Commit Hobbs Act Robbery
Johnson makes no specific argument about the sufficiency of the evidence against him on Count One. (See generally Mot.; Reply.)
In Count One, Johnson was charged with conspiracy to interfere with commerce by robbery in violation of 18 U.S.C § 1951(a). The elements for conspiracy to interfere with commerce by robbery were as follows: (1) beginning on an unknown date and ending no later than or about June 3, 2016, there was an agreement between two or more persons to commit the crime of robbery; (2) the defendant joined in the agreement knowing of its purpose and intending to help accomplish that purpose; and (3) the robbery contemplated by the agreement would affect interstate or foreign commerce in some way. (Jury Instructions – Given, Court's Instruction No. 28; Ninth Circuit Model Criminal Jury Instruction No. 8.20.)
The Government presented substantial evidence of Johnson's guilt on the conspiracy count. The evidence established beyond a reasonable doubt that Johnson entered into an agreement with many individuals to carry out the Westime and Del Amo robberies. Johnson helped plan and organize the robberies. He in many instances supplied the items necessary to commit the robberies, provided the firearm for the Del Amo robbery, and assigned roles and instructed the other participants.
IV. MOTION FOR NEW TRIAL AND TO DISMISS THE INDICTMENT
An indictment may be dismissed to protect a defendant's constitutional due process rights or as an exercise of the Court's inherent supervisory powers. United States v. De Rosa , 783 F.2d 1401, 1404 (9th Cir. 1986). "A defendant who challenges the indictment on either ground bears a heavy burden to demonstrate that the prosecutor engaged in flagrant misconduct," United States v. Venegas , 800 F.2d 868, 869 (9th Cir. 1986), because the government conduct must be "so grossly shocking and so outrageous as to violate the universal sense of justice" to warrant dismissal of the charges, United States v. O'Connor , 737 F.2d 814, 817 (9th Cir. 1984). "[O]utrageous government conduct is not to be equated with negligence or poor judgment." United States v. Wiley , 794 F.2d 514, 515 (9th Cir. 1986) ; see United States v. Barrera-Moreno , 951 F.2d 1089, 1091 (9th Cir. 1991) ("less than exemplary official performance" does not "warrant[ ] the extreme measure of dismissing an indictment[ ]").
"In either case, an indictment may not be dismissed for governmental misconduct absent prejudice to the defendant." United States v. Rogers , 751 F.2d 1074, 1077 (9th Cir. 1985) ; see United States v. Jacobs , 855 F.2d 652, 655 (9th Cir. 1988) ("[A] district court may properly dismiss an indictment only if the prosecutorial misconduct (1) was flagrant, and (2) caused substantial prejudice to the defendant.") (internal citations omitted).
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Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "When prosecutorial misconduct is alleged, the issue is whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury's discharge of its duty to judge the evidence fairly." United States v. Henderson , 241 F.3d 638, 652 (9th Cir. 2000), as amended (Mar. 5, 2001) (internal quotation and citation omitted). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
Johnson argues that the Government used "the mere fact that an African-American female was present in Malibu [to argue] that something ‘suspicious’ or felonious was soon to follow," thus "chumming the waters with racial hatred" or "race ba[i]ting." (Mot. at 10.) However, Johnson provides no evidence from which the Court could conclude that the Government improperly elicited this testimony to introduce the argument that African-American persons are suspicious because of their race, or that the Government made this improper argument. The Government's question, "prior to the robbery that morning, did you notice anything suspicious?," was not an argument. Moreover, the Government attorney asked a neutral, open-ended question regarding the witness's observations the morning of the robbery. The Government never asked a question or made an argument subsequent to Mr. Groezinger's testimony that indicated the women's race was relevant.
Moreover, the witness did not testify that the women were suspicious because of their race. Mr. Groezinger's initial response was that he found the women's activity "suspicious" because it was "noteworthy in that [he doesn't] see that much activity by two people that early in consecutive sort of appearances." When the Government specifically inquired as to what made the women suspicious, his response did not mention the women's race. Instead, Mr. Groezinger mentioned the time of day, the frequency with which the women walked by the store, and that "they were looking inside quite often." During cross-examination, Mr. Groezinger denied that the women's race made them suspicious. Mr. Groezinger reiterated that what made them suspicious was "the frequency in which they walked by the store," (Transcript 9/8/17 Vol. I at 37:16-18), and that "[t]hey were watching [him] quite–quite pointedly," (id. at 38:24). The witness did not testify, suggest, or imply that the women's race was relevant, nor did the Government advance such an inference through its questions or argument. The Government's questions and argument did not constitute outrageous misconduct or undermine the fairness of Johnson's trial.
Johnson also argues that the Government attorney's line of questioning was completely irrelevant to the Government's case. (Mot. at 10.) Indeed, the Government made no mention of Mr. Groezinger's testimony about the women during its closing argument or rebuttal. (See generally Dkt. 1055 [Transcript 9/13/17 Vol. I] at 5–71; Dkt. 1056 [Transcript 9/14/17] at 31–65.) The Government now argues, in its opposition to Johnson's motion, that evidence discovered during the Government's investigation in this case "established that these women were members of the conspiracy." (Dkt. 1138 at 7.) This evidence included the testimony of a cooperating witness who did not testify at trial, (id. ), and Los Angeles Sheriff's Department reports, from a victim and an employee of a nearby business, that identified these women as somehow involved in the robbery, (id. at 7–8). The Government also argues that evidence that was admitted at trial generally showed that the conspirators assigned individuals to scope out a robbery location before the robbery occurred, (id. at 8–9), and that in one instance the evidence showed that Johnson used a female acquaintance for the task, (id. at 9). Because the Government provided no indication at trial why Mr. Groezinger's testimony about the women was relevant, Johnson rightfully complains that this line of questioning was irrelevant. However, the Government's belated rationale indicates that it had a good faith basis to inquire as to any suspicious activity Mr. Groezinger observed prior the robbery.
Johnson also argues that the jury had significant discretion, analogous to "a capital sentencing hearing," which could have been influenced by Mr. Groezinger's testimony that impermissibly indicated that African-Americans, such as Defendant Johnson and his co-defendants, are more likely to "maintain a specific intent to ... conspire." (Mot. at 9.) In comparing this case to Turner v. Murray , 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), where the Supreme Court held the capital defendant was constitutionally entitled to question potential jurors concerning racial prejudice, Johnson ignores key differences between the jury's considerations during capital sentencing and this case. Whereas the jury in a capital sentencing proceeding "is called upon to make a highly subjective, unique, individualized judgment regarding the punishment that a particular person deserves," id. at 33–34, 106 S.Ct. 1683 (citations omitted), the jury in this case had to find the Government proved beyond a reasonable doubt each of the elements of the conspiracy charged in Count One. There simply was not the same "range of discretion" when the jury considered whether Johnson was guilty of conspiracy as when a jury determines whether to impose the death penalty. Id. at 35, 106 S.Ct. 1683. This was not a capital proceeding where racial stereotypes could influence a juror's belief on aggravating factors, make them less favorably inclined towards mitigating evidence, or elicit fear based on the violence of the capital offense. Id.
V. CONCLUSION
For the foregoing reasons, Defendant Johnson's motions for acquittal, for new trial, and to dismiss the indictment, are DENIED.