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United States v. Johnson

United States District Court, N.D. Illinois, Eastern Division

July 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MASON M. JOHNSON, Defendants.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER, UNITED STATES DISTRICT JUDGE

         On July 12, 2012, a jury convicted Petitioner Mason Johnson of conspiracy and bank robbery. The following year, this court sentenced Johnson to 220 months in prison. Johnson appealed, but the Seventh Circuit affirmed his conviction and sentence on February 28, 2014. United States v. Johnson, 745 F.3d 227, 231 (7th Cir. 2014). Johnson has now petitioned this court to vacate or set aside his conviction and sentence under 28 U.S.C. § 2255, on the grounds of ineffective assistance of counsel. (See Motion to Vacate or Set Aside Judgment and Sentence [1] (“Def.'s 2255 Mot.”).)

         Johnson claims that his trial and appellate attorneys were ineffective in a variety of ways. Johnson contends that trial counsel, Ralph J. Schindler, Jr., failed to present testimony regarding Johnson's alibi for the time of the bank robberies, and failed to interview two “critical witnesses” who Johnson argues would have supported his claim of innocence. (Id. at 2, 5.) Johnson further alleges that his appellate counsel, Beau B. Brindley, was ineffective because he “failed to research and argue” several issues which Schindler had previously identified in an unsuccessful motion for a new trial (see Order Denying Defendant's Motion for New Trial and for Judgment of Acquittal [108]), and in an early draft of Johnson's opening appellate brief. (Id. at 2, 9-12.) Finally, Johnson argues that his loss on appeal itself demonstrates Brindley's inadequacy (Id. at 9-12), because in its decision affirming his conviction, the Court of Appeals sanctioned Brindley for violations of the Federal Rules of Appellate Procedure. Johnson, 745 F.3d at 232.

         For the reasons stated, Johnson's motion is denied. The record shows that Johnson is not entitled to relief, and this court concludes that no evidentiary hearing is necessary. Johnson's claims of ineffective assistance are either frivolous or, if counsel can be considered to have erred at all, did not influence the outcome of his trial and appeal.

         BACKGROUND

         I. Pre-trial Proceedings

         Johnson was charged in an indictment with conspiracy and three counts of bank robbery on February 15, 2012. (Indictment [Crim. 18].)[1] The charges stemmed from the robberies of three TCF Banks in the Chicago suburbs of Oswego and Aurora, Illinois, which occurred on December 20, 2010; December 22, 2010; and January 16, 2011. The Government also charged another man, Joseph Prince, as a co-conspirator and as a participant in the December 20th and January 16th robberies. (Id.) Prince pleaded guilty and agreed to cooperate against Johnson. (See Prince Plea Agreement [Crim. 62].)

         Prior to trial, Johnson moved to suppress several pieces of evidence, most notably an out-of-court identification made by Amanda Williams-a friend of Prince's who unknowingly acted as the pair's getaway driver for the January 16th robbery. Johnson, 745 F.3d at 228. In her interview with the FBI, Williams identified a photograph of Johnson in a six-photograph array (referred to as a “six pack”). Id. Johnson moved to suppress this identification, claiming that the FBI's array was impermissibly suggestive. (Def.'s Motion to Suppress Identifications [Crim. 69] (“Def.'s Suppression Mot.”), 1-3.) The court granted Johnson's motion in part and denied it in part. (7/3/12 Minute Order [Crim. 78].) In explaining its reason, the court did not comment on whether the array was, in fact, suggestive, but stated instead that defense counsel was free to cross-examine Williams on her level of certainty concerning the identification. (Pre-trial Conference Tr. [Crim. 154], 4:6-5:21.) The court limited Williams to the prior identification only, however, and prohibited her from making any in-court identification of Johnson:

I think if all she's going to do it get on the stand and say “here's the photo spread I looked at, and I picked out this photo but I wasn't certain, ” there's really no impropriety in that. You know, the real problem is when the photo spread . . . creates a memory as opposed to simply confirm[s] a memory.

(Id. at 5:15-17.)

         During jury selection, the court dismissed several prospective jurors for cause. One of them, Juror No. 2, was dismissed based on doubts that she would be able to stay awake, attentive, and impartial during the trial. Juror No. 2 told the court that she “kept falling asleep” during voir dire and would likely continue to do so during the trial: “when I am sitting not doing nothing and I am bored, I just doze off. So I might not hear everything because I might be falling asleep.” (Trial Tr. Vol. 1 [Crim. 145], 119:7-120:25.) Her answers also raised some concerns over her ability to be objective. (Id.) When asked by the court whether she would base her decision on the evidence or her own beliefs, Juror No. 2 repeatedly gave non-committal answers and appeared to be either bored or confused by the line of questioning. (See Trial Tr. Vol. 1-B [Crim. 146], 169:15-174:22.) The prosecution moved to dismiss Juror No. 2 for cause, noting “her attitude towards being inattentive and being able to stay awake” and her general “dismissiveness and [ ] malaise” towards the court's questions. (Id. at 175:7-24.)

         Defense counsel objected on the basis that Juror No. 2 was African-American-like Defendant-and one of only four or five African-American jurors in the panel. (Id. at 177:5-6; Trial Tr. Vol. 1 at 121:7-13.) The court recognized defense counsel's concern, but reminded him that “race is not an issue for a cause challenge, and it would be an issue only if I felt somebody was using it as a factor in a peremptory challenge.” (Trial Tr. Vol. 1-B at 177:7-9; see also Trial Tr. Vol 1 at 123:2-20) (“Like every other judge in this building, I share your concern about race balance on juries. It drives me nuts that we have such difficulty getting a balance.”). The court ultimately dismissed Juror No. 2 for cause:

Her-her demeanor really troubles me. I had the distinct impression, A, that she wants out; B, that she's-she's not willing to . . . make eye contact. She's very skittish and uncomfortable. She said a couple of times that she would be bored. She volunteered in her-in her questionnaire that she would be sleepy. And she also volunteered that she might get her mind made up. Now, you're right that her answers rehabilitated that [latter] aspect of her questionnaire to a certain degree, but she really never rehabilitated herself on attentiveness. And her very grave unwilling demeanor really makes me nervous.

(Trial Tr. Vol. 1-B at 177:7-20.)

         II. Trial

         At trial, Joseph Prince testified that he and Johnson planned and executed the robberies together. According to Prince, it was Johnson who first suggested robbing a bank. (Trial Tr. Vol. 2-B [Crim. 148], 392:19-396:8.) Prince eventually agreed to Johnson's plan after Johnson convinced him that they would not need a gun and suggested that Prince would “probably [just] get probation” if they got caught. (Id.) Prince testified that he helped Johnson commit the first and third robberies, but that Johnson committed the second robbery on his own. (Id. at 415-17.) Hours after that second robbery, Prince recalled, Johnson told Prince that “he did it again” and that Prince should have come along because Johnson managed to steal $5, 000. (Id.) ($4, 044 was actually taken from the second bank). Overall, Prince provided numerous details regarding the robberies, including the robbers' preparations, the amounts they stole, what they were wearing, and the wording of the demand notes. (Id. at 396-413, 420-38.) Prince also identified himself and Johnson in the banks' surveillance videos, and recognized the demand notes taken from the crime scenes and introduced as evidence.[2] (Id. at 408-13, 427-34; see also Trial Exhibits, Ex. 1 to Government's Motion to Supp. the Record on Appeal [Crim. 141-1] (“Trial Exhibits”).)

         Amanda Williams became involved when Prince called and asked her to give him a ride on January 16, 2011. (Id. at 422-23.) Williams had known Prince for several years; she did not know Johnson. (Trial Tr. Vol 3 [Crim. 149], 517-20.) Prince did not tell Williams that he and Johnson were going to rob a bank. (Id.) Williams drove them to a Jewel/Osco store in Aurora where Williams waited in her car while Johnson and Prince entered and went to the TCF Bank located inside. (Id. at 529-33.) After robbing the bank, they returned to Williams's car and yelled at her to leave quickly. At that moment, the dye pack hidden between the stolen bills exploded in Prince's pants pocket and pink smoke engulfed the passenger compartment. (Id. at 534-35.) Williams screamed at the two men to get out of her car and drove away, leaving them in the Jewel/Osco parking lot.[3] (Id.) Johnson and Prince ran into the nearby woods to hide, where they quickly realized that, in the confusion of the moment, Johnson had left his cell phone in Williams's car. (Trial Tr. Vol 2-B at 436:6-437:17.) Williams found Johnson's phone-a red BlackBerry which featured an image of Johnson as a screensaver-in the back seat of her car later that day. (Trial Tr. Vol. 3 at 536-39.) Williams held on to the phone and ignored the two men's attempts to contact her and recover it. (Id. at 540-44.) Williams turned the phone over to the FBI on January 25, 2011, when they approached her about the robbery. (Trial Tr. Vol. 2 at 296-97) (testimony of FBI Special Agent James Ferguson). Williams also testified about her interview with the FBI, mentioning that she had identified Johnson's image in the photo array. (Id. at 301-06; Trial Tr. Vol. 3 at 520-23.)

         Johnson's ex-girlfriend, Carlita O'Neal, also testified for the prosecution. O'Neal identified the red BlackBerry that the FBI obtained from Williams as Johnson's. (Trial Tr. Vol. 3 at 568-69.) She then identified Johnson in the banks' surveillance videos by his appearance and by his clothing: specifically, a “black vested hoodie jacket” with gray sleeves that Johnson was shown wearing during the robberies on December 20 and 22; a navy and red baseball hat with a large, white “A” that he wore during the December 22nd robbery; and a black jacket with a silver emblem on the left breast and large wings on the back that Johnson wore during the final robbery on January 16th.[4] (Id. at 585-86. See also Trial Tr. Vol. 2 at 279-93) (testimony by Agent Ferguson describing the surveillance videos). O'Neal recognized the second jacket, which was taken from Johnson by the police and introduced as an exhibit during the trial, as one that Johnson purchased in her presence on January 2, 2011: a Stall and Dean brand jacket with large wings and the phrase “Wichita Aviators” on the back and a logo featuring a winged letter “A” on the breast. (Trial Tr. Vol. 3 at 574-76.) O'Neal stated that she threw Johnson's black and gray hoodie jacket in the garbage sometime in February 2011 after Johnson moved out of her apartment to move in with another woman. (Trial Tr. Vol. 3-B [Crim. 150], 617:16-618:23.)

         Defendant sought to undermine O'Neal's testimony by portraying her as a jealous, vindictive ex. (See, e.g., Letter from Ralph J. Schindler to the Court of 6/29/12 [Crim. 103] (“Schindler Letter”), 2.) O'Neal had testified to the grand jury that she first became aware of the bank robberies (and Johnson's involvement) when a friend posted, on O'Neal's Facebook wall, a link to a WGN news story about the robberies. (Id.) Defendant claimed that O'Neal was lying about the Facebook post, and believed that she had manufactured her entire story to get revenge on Johnson-who had been cheating on her with another woman who lived in the apartment complex. (Id.) To counter O'Neal's testimony, Defendant issued a subpoena to Facebook for records of O'Neal's account. Facebook objected to the subpoena, asserting that the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2801 et seq., prohibited it “from divulging the content of a user's communications to private parties, including criminal defendants.” (Non-Party Facebook, Inc.'s Motion to Quash Subpoena Duces Tecum [Crim. 101] (“Facebook Mot.”), 1-2.) Facebook insisted that Johnson was free, however, to obtain the records from the account holder, O'Neal. (Id.) Defense counsel argued that Facebook's refusal to cooperate violated Johnson's Sixth Amendment rights (Schindler Letter 2-3), but the court granted Facebook's motion to quash the subpoena, and defense counsel was ultimately able to obtain the evidence from O'Neal herself. These records revealed that no link to any news story about the robberies appeared on her Facebook wall.

         At trial, however, O'Neal revived her claim that she first recognized Johnson in a news story posted to her Facebook wall. (Trial. Tr. Vol. 3-B at 596.) O'Neal said that the reason the link no longer appeared was because the individual who sent it is no longer on Facebook. (Id. at 596:3-597:19.) Defendant cross-examined O'Neal vigorously. (Id. at 598:8-600:17.) Throughout her testimony, O'Neal freely admitted that her relationship with Johnson was volatile (during one fight, the two threw bleach over each other's clothing; during another, she broke her leg while chasing him through a parking lot with a sharp object), that Johnson moved out after O'Neal found out he was cheating on her, and that she later threw away much of the clothing he had left behind. (Id. at 600:18-609:5, 617:16-619:15, 631:7-632:15; Trial Tr. Vol. 3 at 569:15- 570:8, 576:21-580:19, 588:22-589:6.)

         As a final effort to connect Johnson to the December 22nd robbery-the one he committed without Prince-the Government introduced a photograph pulled from Johnson's cell phone. (Trial Tr. Vol. 3-B at 707:19-709:7; Trial Exhibits at 15.) This photograph was taken by Johnson's phone camera about an hour after the December 22nd robbery and depicted a large pile of cash in an African-American man's lap. (Id.) The man's head was not visible in the image. The bills were stacked on top of each other, so the full faces and denominations of most of the bills were not apparent-although several $20s and at least one $10 bill and one $5 bill can be seen. (Id.) The defense theorized that because the demand note from the December 22nd robbery specifically asked for large bills, the money shown in the photograph could not have been the proceeds of that robbery. (Trial Tr. Vol. 4 [Crim. 151], 756:24-759:19; see also Trial Tr. Vol. 4-B [Crim. 152], 819:14-820:7) (Defendant's closing argument). Defense counsel, however, did not object to the admission of this photograph at trial. (Trial Tr. Vol. 3-B at 697:19-25.) In addition, neither side introduced evidence of the exact denominations of the stolen bills. The closest accounting came from bank teller Alma Hamzic, who stated only that “I started going for the 10s, because my drawer is organized in denominations. And then at that point, I was told, you know, large bills, 100s, 50s, 20s.” (Trial Tr. Vol. 1-B at 233:9-235:9.) Nevertheless, defense counsel questioned the FBI case agent, James Ferguson, about the bills in the photograph in the attempt to cast doubt on whether they matched the denominations that Hamzic mentioned during her FBI interview or that TCF Bank noted in its post-robbery audit. (Trial Tr. Vol. 4 at 744-51.) The Government objected to much of this line of questioning as hearsay, for lack of foundation, for mischaracterizing Hamzic's testimony, and as an improper attempt to impeach Hamzic through Ferguson. (Id. at 744-51, 756-59.) The court sustained the Government's objections. (Id.) ...


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