United States v. Johnson

95 F.4th 404

UNITED STATES of America, Plaintiff-Appellee, v. Marlon Jermaine JOHNSON, Defendant-Appellant.

No. 22-6048

United States Court of Appeals, Sixth Circuit

Decided and Filed: March 5, 2024

Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:18-cr-00065-1—Claria Horn Boom, District Judge.

ON BRIEF: Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, Andrew H. Trimble, UNITED STATES ATTORNEY'S OFFICE, London, Kentucky, for Appellee.

Before: SILER, MATHIS, and BLOOMEKATZ, Circuit Judges.

OPINION

MATHIS, Circuit Judge.

After a jury convicted Marlon Johnson of firearm and drug-trafficking offenses, the district court sentenced him to 300 months' imprisonment. Johnson raises constitutional, statutory, and evidentiary challenges to his convictions. Johnson also argues that his sentence is substantively unreasonable. For the following reasons, we affirm.

I.

In November 2018, an informant advised a deputy sheriff working for the Knox County Sheriff's Department ("KCSD") about nearby drug activity. According to that informant, a black male named "Jake" was at a residence in Corbin, Kentucky, with a large quantity of methamphetamine. Based on this information, the KCSD obtained a search warrant and surveilled the residence. During the surveillance, officers observed a Toyota Corolla nearby.

After the surveillance and prior to executing the search warrant, KCSD officers met at a nearby restaurant parking lot. Officers observed the same Toyota enter the lot, turn into the restaurant's drive-through area, and exit by circling back behind the business. A KCSD officer followed the Toyota in his cruiser and saw that the driver was not wearing a seatbelt. The officer activated his cruiser's lights and sirens. Then, the Toyota sped away, crashed into a fence, and struck another vehicle. Upon identifying Johnson as the driver, officers arrested him and searched the vehicle. During the search, officers uncovered 1,222.21 grams of methamphetamine—over 1,000 grams of that amount was pure—along with a loaded semiautomatic pistol.

A grand jury indicted Johnson for possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of a prosecutable drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Johnson proceeded to trial. After the first trial concluded in a mistrial, the second trial resulted in guilty verdicts on all counts. The district court sentenced Johnson to 300 months' imprisonment. This timely appeal followed.

II.

Johnson challenges his convictions and sentence on four grounds: (1) the jury venire was not drawn from a fair cross section of the community, in violation of the Sixth Amendment and the Jury Selection and Services Act ("JSSA"), 28 U.S.C. § 1867 et seq.; (2) his felon-in-possession conviction violates the Second Amendment; (3) the district court erred in admitting the testimony of a government witness; and (4) his sentence is substantively unreasonable. We address each argument in turn.

A. Sixth Amendment and JSSA Claim

The U.S. Constitution's Sixth Amendment guarantees a criminal defendant the right to a trial "by an impartial jury." U.S. Const. amend. VI. An "essential component" of this guarantee is the requirement that courts select all grand and petit juries at random from a fair cross section of the community in the judicial district or division where the court convenes. Taylor v. Louisiana, 419 U.S. 522, 528-29, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); United States v. Ovalle, 136 F.3d 1092, 1106 (6th Cir. 1998). This requirement focuses only on the "procedure for selecting juries, and not the outcome of that process." Ambrose v. Booker, 684 F.3d 638, 645 (6th Cir. 2012). The Sixth Amendment does not impose a "requirement that petit juries actually chosen must mirror the community." Taylor, 419 U.S. at 538, 95 S.Ct. 692; see Ambrose, 684 F.3d at 645 ("The Sixth Amendment guarantees only the opportunity for a representative jury, not a representative jury itself." (citation omitted)).

To establish a prima facie case for a fair-cross-section claim, a defendant must show:

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Once satisfied, the burden shifts to the government, which "bears the burden of justifying this infringement by showing attainment of a fair cross section to be incompatible with a significant state interest." Id. at 368, 99 S.Ct. 664. We use the same analysis for JSSA claims. Ovalle, 136 F.3d at 1099; United States v. Allen, 160 F.3d 1096, 1102 (6th Cir. 1998) (explaining that the test for JSSA liability is "essentially identical to the Duren . . . test used in the Sixth Amendment fair-cross-section analysis"). Whether a violation under the Sixth Amendment or JSSA has occurred is a mixed question of law and fact, which we review de novo. Allen, 160 F.3d at 1101.

1.

The Eastern District of Kentucky ("EDKY") promulgated its most recent Plan for the Random Selection and Qualification of Grand and Petit Jurors on June 29, 2018. See Plan for the Random Selection and Qualification for Grand Petit Jurors (E.D.K.Y. 2018) (the "Jury Selection Plan").¹ The Jury Selection Plan states that "[i]t is the policy of [the EDKY] that all persons and entities entitled to consideration by a jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the jury division of the district wherein the court convenes," and that "[n]o citizen shall be excluded . . . on account of race, color, religion, sex, national origin or economic status." Id. §§ 1.1, 2.1.

The Jury Selection Plan uses a funnel-like system to ensure a fair cross section of the community is selected. This begins with the random selection of individuals across the EDKY, using voter registration lists for each of the EDKY's counties. Id. §§ 4.1, 5.1-5.2. The names selected are placed in both the Master Wheel of EDKY, along with the Master Jury Wheel of their respective judicial division.² See id. §§ 4.1, 5.1-5.2, 6.1-6.2. From the Master Jury Wheel, names are (again) randomly selected to determine whether each person is eligible for placement in their respective division's Qualified Jury Wheel. Id. §§ 10.2, 13.1. To qualify for placement, an individual must be: (1) a United States citizen who is at least eighteen years of age and has resided for at least one year in the EDKY; (2) proficient in the English language; and (3) mentally and physically capable of serving as a juror. Id. § 8.3(1)-(4). A felony conviction or a pending felony charge disqualifies a person from jury service. Id. § 8.3(5).

For the Qualified Jury Wheel, the EDKY obtains eligibility information by delivering questionnaires to potential jurors, which are prepared and executed to conform with 28 U.S.C. § 1864. Id. §§ 12.1-12.2. Once a district court determines that it needs to empanel a petit jury, the district court directs the clerk of court to draw enough names to meet the needs of the case. Id. § 10.2. The clerk draws those names from the Qualified Jury Wheel of the jury division in which the petit jury is empaneled. Id. If an insufficient number of jurors are selected, the clerk calls additional names until the court reaches a sufficient number of potential jurors. Id.

Johnson's first trial began in May 2021. After the jury-selection process failed to summon a single African American juror, Johnson objected. The district court overruled his objection. After that, the jury deadlocked, necessitating a new trial.

Before his second trial, and at Johnson's request, the district court approved the hiring of a jury pool consultant. This consultant requested trial jury data from the EDKY and analyzed those data. Based on the consultant's analysis, Johnson filed a "Motion for a Jury Drawn from a Representative and Fair Cross-Section of the Community or, in the Alternative, Motion to Dismiss." The motion asserted that the London Division's Qualified Jury Wheel "underrepresents black people" at a "statistically significant" rate. R. 352, PageID 2772. More specifically, Johnson claimed that the consultant's comparative disparity analysis showed that "there is as much as a 57.28% under representation of African Americans in the current London Division" Qualified Jury Wheel, and that more than 50% "of the black jurors expected to be in the current" wheel was missing. Id. at 2772-73 (emphasis omitted). Johnson contends that the underrepresentation was "not limited to the current London Division;" it also existed at the time of the 2017 and 2019 wheels. Id. at 2774.

The district court denied Johnson's motion. It found that Johnson failed to satisfy the third prong of the Duren test because (i) "long-standing statistical disparity is not enough to establish systematic exclusion"; and (ii) Johnson failed to point to any other viable source of exclusion in the EDKY's jury-selection procedures. R. 373, PageID 2908-16. The parties did not dispute the first Duren prong, and the district court opted not to resolve the second prong. Once the second trial commenced, the jury wheel yet again produced no African American jurors. Johnson renewed his motion and the district court, sticking with its prior decision, denied it.

2.

On appeal, the parties focus their arguments on the third ...