United States v. Johnson

19 F.4th 248

UNITED STATES of America

v.Joseph R. JOHNSON, Jr., Appellant

No. 20-1449

United States Court of Appeals, Third Circuit.

Argued June 22, 2021

Filed: November 23, 2021

Emily McKillip [Argued], Linwood C. Wright, Jr., Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Abigail E. Horn [Argued], Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant

Before: SMITH, Chief Judge, MATEY and FISHER, Circuit Judges.

OPINION OF THE COURT

MATEY, Circuit Judge.

Joseph Johnson developed an unusual fascination with the allegations of sexual assault against entertainer Bill Cosby. Hoping to cast doubt on the accusers, Johnson posed as an attorney and filed a fabricated document on the civil docket of one of the lawsuits against Cosby. His trick was quickly discovered, and the Government brought criminal charges against Johnson for making a false statement and identity theft, leading to a conviction after a jury trial. Johnson now appeals, arguing that the Government failed to prove that his statements were material.

We agree. Johnson's behavior wasted public time and resources and distracted court officials from their work. But only Congress enjoys the authority to turn conduct into a federal crime. And while the Government presented plenty showing that Johnson's statements were false, it offered no evidence and elicited no testimony from the only individual it proposed as the government decisionmaker—the judge in the underlying litigation—to explain how the filing could influence a judicial decision. Because that evidence was necessary for the Government to establish liability under 18 U.S.C. § 1001, we will reverse Johnson's convictions and remand for entry of a judgment of acquittal.

I. BACKGROUND

The story of Johnson's false filing begins, as does much in our age, on the internet. Johnson became fixated on the claims against Cosby and decided to come to his defense. At first, his acts were no more distracting than most of the internet, largely posts about Cosby's innocence. Then, Johnson decided to leave the virtual world and insert himself into the real one.

A. The Civil Action

The rest of the story follows a winding road, and starts with Andrea Constand, who sued Cosby in 2005 alleging sexual assault. In 2015, Constand filed another lawsuit in the Eastern District of Pennsylvania, claiming defamation and invasion of privacy for Cosby-related claims. As in 2005, Constand was represented by attorney Dolores Troiani. When Troiani filed the 2015 Complaint, she inadvertently failed to attach an exhibit. The next day, Troiani filed a "Praecipe to Attach Exhibit ‘A’ to Plaintiff's Complaint," along with the omitted exhibit and a certificate of service.¹ The filing was docketed, and that appeared to be the end of the matter.

It was not. A few months later, Troiani received several emails from an individual using the name "Tre Anthony." All were sent on the same day, and all related to Constand's allegations against Cosby. In the first, "Tre Anthony" warned Troiani that her "client's physical street address ... will be released to the media and published online unless you notify the undersigned of your objection to the same no later than close of business on January 4, 2015." (App. at 362.) A threat heightened by including Constand's residential address.

A second email followed, promising to "ma[ke] public through all media outlets and social media" the information in the first email, as well as information relating to other alleged Cosby victims, whom "Tre Anthony" declared to have made "false[ ] and fraudulent[ ]" allegations against Cosby. (App. at 367, 369.) And a third, sent to Troiani, other attorneys, and The New York Times, stated that "[t]he name, physical address and telephone number of each of the plaintiffs" would be "circulated on social media" and other outlets. (App. at 377.)

"Tre Anthony" attached several documents to his emails, including an unsigned Internal Revenue Service "Information Referral" form alleging that Constand had failed to report income derived from "baseless lawsuits" premised "on a decade old campaign of ... false allegations." (App. at 371–73.) He also attached copies of the complaints from Constand's lawsuits.

All of which brings us to Johnson's alleged crime. Roughly a month later, someone hand-delivered an envelope to the Clerk of the United States District Court for the Eastern District of Pennsylvania. The envelope contained a document entitled "Praecipe to Attach Exhibit ‘A’ to Plaintiff's Complaint." It was a photocopy of the praecipe filed by Troiani, along with a photocopy of Troiani's original certificate of service. But this filing attached the unsigned IRS Information Referral form and complaints previously circulated by "Tre Anthony," in effect, accusing Constand of failing to report income obtained in connection with her lawsuits.

Following the customary course, the Clerk's office uploaded all the documents to the docket, triggering an automatic email notification to Troiani. Confused, Troiani called the Clerk's office, who directed her to the chambers of the presiding judge (the "Judge"). The Judge then entered an order striking the false praecipe and exhibit from the docket, explaining that the "filing [wa]s fraudulent and was not filed by the attorney whose purported signature appears on the document." (App. at 598.)

B. Johnson Is Discovered, Indicted, and Convicted

The "Case of the False Praecipe" was referred to the Federal Bureau of Investigation, and after an extensive inquiry, the Government determined that Johnson was the culprit. A chain of business records connected "Tre Anthony's" email account to Johnson. Johnson, the Government learned, used his work computer to repeatedly access the docket for Constand's lawsuit (including the order striking the false praecipe), and to obsessively conduct internet searches relating to Constand and Cosby. And a forensic analysis conducted at the FBI's lab in Quantico, Virginia discovered Johnson's fingerprints on the tape used to seal the envelope containing the false praecipe.

Evidence piled high in hand, the Government persuaded a grand jury in the Eastern District of Pennsylvania to return an indictment charging Johnson with one count of knowingly and willfully making materially false, fraudulent, and fictitious statements and representations and aiding and abetting, in violation of 18 U.S.C. § 1001 and § 2 (Count 1);² and one count of knowingly and without lawful authority using a means of identification during and in relation to the false statements, and aiding and abetting, in violation of 18 U.S.C. § 1028A(a)(1), (c)(4) and § 2 (Count 2).

After a three-day trial, a jury found Johnson guilty on both counts. Johnson moved for a judgment of acquittal, and, in the alternative, a new trial. The District Court denied the motion, and sentenced Johnson to thirty-two months of imprisonment and three years of supervised release, as well as a special assessment of $200. Johnson appealed.³

II. DISCUSSION

Johnson raises two challenges to his conviction. First, he argues that the Government's evidence cannot prove the materiality element of 18 U.S.C. § 1001. That the praecipe was struck from the docket, he contends, may have been proof of its falsity, but not its materiality. Second, Johnson claims that the District Court's jury instructions constructively amended the indictment. While the Government's indictment charged the "making" of a false statement, the District Court instructed the jury that it could convict Johnson for "making or using" a false document, which impermissibly broadened its scope.

We agree with Johnson's first argument, so we need not reach his second.⁴ The Government's trial evidence was insufficient for a rational jury to conclude Johnson's misstatements were material to the Judge, the only pertinent governmental decisionmaker identified by the Government at trial. More, it would be a miscarriage of justice for his conviction to stand when the Government failed to prove all elements of the offense. As a result, Johnson's conviction for false statements must be reversed. And because Johnson's conviction for aggravated identity theft depends on his false-statements conviction, we will reverse it as well.⁵

A. We Review Johnson's Sufficiency-of-the-Evidence Challenge for Plain Error

Johnson and the Government disagree on the standard of review for Johnson's sufficiency-of-the-evidence challenge. We conclude that plain-error review is required.

1. Preserving Issues on Appeal

Our standard of review turns on whether Johnson preserved his sufficiency challenge by "squarely" presenting the issue to the District Court. United States v. McCulligan , 256 F.3d 97, 101 (3d Cir. 2001). While preservation does "not require any particular incantation," United States v. Miller , 833 F.3d 274, 283 (3d Cir. 2016), it does demand that the defendant give the district court a chance to "consider and resolve" the question later raised on appeal. Puckett v. United States , 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Preserving arguments is often key; "merely raising an issue that encompasse[d] the appellate argument" can be inadequate. United States v. Joseph , 730 F.3d 336, 337 (3d Cir. 2013) ; see also id. at 340 (distinguishing between "issues" and "arguments," and explaining that the former can encompass "more than one of the latter"). So "when a Rule 29 motion raises specific grounds, or arguments ... all such arguments not raised are unpreserved on appeal" and are reviewed for plain error. United States v. Williams , 974 F.3d 320, 361 (3d Cir. 2020). A sensible rule that encourages litigants to directly identify for the district court the purported grounds for error.

2. Johnson Did Not Raise Materiality

Johnson contends that he raised "a...