United States v. Johnny Harris, Jr.

Citations: 56 F.3d 74; 1995 U.S. App. LEXIS 21388; 1995 WL 316932Docket: 94-50457

Court: Court of Appeals for the Ninth Circuit; May 24, 1995; Federal Appellate Court

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The Ninth Circuit Court of Appeals reviewed Johnny Harris Jr.’s appeal against his armed bank robbery conviction and sentencing. Harris claimed the district court erred by denying his motion for judgment of acquittal under Fed. R. Crim. P. 29, asserting insufficient evidence for the jury's conviction. He also contested the admissibility of prejudicial testimony regarding his gang affiliation and challenged the application of sentencing guidelines, specifically a five-level enhancement for firearm possession under U.S.S.G. Sec. 2B3.1(b)(2)(C). 

Harris was convicted on January 27, 1994, after a two-day trial for robbing the First Professional Bank in Pasadena, California, and sentenced to 121 months in prison with 3 months of supervised release. The court clarified that evidence sufficiency is assessed de novo, requiring that a rational jury could find the defendant guilty beyond a reasonable doubt. Witness identifications and surveillance photographs presented at trial supported the jury's verdict, countering Harris’s claims about his identity as one of the robbers. 

Regarding the gang affiliation testimony, the court held that the district court has discretion in determining the relevance and admissibility of evidence, which must be shown to be clearly erroneous to constitute an abuse of discretion. Thus, the court found no error in the district court's rulings pertaining to both the sufficiency of evidence and the admission of gang-related testimony.

Harris claims his trial was unfair due to jury bias influenced by testimony regarding his alleged gang affiliation. He acknowledges the relevance of such testimony but argues that its probative value does not outweigh the potential for unfair prejudice. Legal precedent prohibits linking a defendant to criminal groups without purpose and states that mere association with unsavory individuals cannot prove guilt. However, gang affiliation may be admissible to demonstrate witness bias. In *United States v. Abel*, the Supreme Court allowed gang membership testimony to show a witness's bias, ruling that such evidence could make the witness's testimony less credible. Conversely, in *United States v. Dickens*, the court deemed testimony about the defendant's gang affiliation excessively prejudicial, as it was used solely for impeachment and the trial hinged on witness credibility. In Harris's case, the district court initially granted a motion to exclude gang affiliation testimony but later allowed it after the government argued it was relevant to impeach the credibility of a witness testifying on Harris's behalf and to identify Harris in connection with a robbery. The court concluded that the probative value of the gang affiliation testimony outweighed the danger of unfair prejudice.

Reversal of a verdict for nonconstitutional error occurs only if it is more probable than not that the error influenced the outcome. In this case, despite any potential error by the district court, it was considered harmless due to overwhelming evidence against Harris, including four eyewitness identifications and a surveillance photo. The admission of potentially prejudicial evidence did not sway the jury's decision. 

Regarding sentencing, the application of U.S.S.G. Sec. 2B3.1(b)(2) is reviewed de novo, while factual findings are assessed for clear error. Harris contested a five-level enhancement for possessing a firearm, arguing the government failed to prove by a preponderance that the weapon was a firearm. A firearm is defined as any weapon capable of expelling a projectile by explosive action, whereas a BB gun, while dangerous, is not classified as a firearm. 

Testimony from bank employee Michael Santorelli indicated he saw Harris with a gun he believed could shoot bullets. Although Harris claimed Santorelli's lack of expertise undermined this testimony, the court found no clear error in the factual findings. Multiple witnesses corroborated seeing a gun and testified to Harris's threatening behavior during the robbery, leading to the inference that the weapon was capable of discharging a bullet. The court rejected Harris's argument that witnesses needed to see the gun fired, noting relevant legal precedent that a firearm does not need to be operable under the applicable definition.

Harris contends that the government failed to prove he possessed a firearm during the robbery, highlighting the absence of the actual gun as evidence. He references United States v. Burnett, where the police established the weapon was a non-functional starter pistol, but notes he does not claim to have used such a weapon. Prior to sentencing, the district court held three hearings on the enhancement issue, concluding that the government had demonstrated it was more likely true that Harris possessed a functional firearm. The court considered witness testimonies, Harris's threats, and the reactions of bank personnel to affirm its decision. The district court's findings were upheld, as it was determined there was no clear error in concluding Harris brandished or possessed a firearm during the robbery, justifying the enhancement of his offense level. The court also addressed the admissibility of evidence concerning Harris's gang affiliation, ruling it relevant for impeachment and identification, with its probative value outweighing potential prejudice. The evidence against Harris, including multiple eyewitness accounts and surveillance footage, was deemed overwhelming, leading to the conclusion that any possible error regarding gang evidence was harmless. The application of sentencing guidelines was reviewed de novo, while factual findings were reviewed for clear error, reinforcing the district court's conclusions on Harris's possession of a firearm. The conviction and sentence were affirmed.

Harris challenges the district court's five-level enhancement of his offense level for brandishing a firearm during a robbery, arguing the government failed to prove the weapon was a firearm under the guidelines. He asserts the court should have applied a three-level enhancement for possessing a dangerous weapon instead. A firearm is defined to include any weapon capable of expelling a projectile through explosive action, while a BB or pellet gun is considered a dangerous weapon but not a firearm.

At sentencing, a bank employee testified seeing Harris with a gun he believed could shoot bullets. Harris disputed the relevance of this testimony due to the witness not being a gun expert, but the court found the lack of expertise did not invalidate the factual finding. Multiple witnesses confirmed seeing a gun during the robbery, and Harris's threatening behavior further implied the weapon could expel a bullet.

Harris contends the absence of testimony regarding whether he fired the weapon undermines the evidence. However, the court referenced a prior case where it was established that operability is not required for a weapon to be classified as a firearm. Harris also claimed the government failed to prove he had a firearm, citing a case where the police identified a non-functional starter pistol. Nevertheless, he did not claim possession of a non-firing weapon.

The district court reviewed the enhancement issue on three occasions and concluded the government met its burden of showing it was more likely than not that Harris possessed a firearm. The evidence, including witness testimony and Harris’s threats, supported the court's conclusion. Ultimately, the court found no clear error in determining that Harris brandished a firearm, upholding the enhancement of his offense level and affirming his conviction and sentence. The decision is not for publication or citation in this Circuit.