US v. Tyrone Johniken, No. 13-4432 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4432 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TYRONE JOHNIKEN, a/k/a Hassan Muhammed, a/k/a Roland, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, District Judge. (1:11-cr-00426-JKB-2) Submitted: June 19, 2014 Decided: June 27, 2014 Before KING, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Jonathan A. Gladstone, LAW OFFICE OF JONATHAN GLADSTONE, Annapolis, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Robert R. Harding, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal jury convicted Tyrone Johniken of conspiracy to participate in racketeering activity, in violation of 18 U.S.C. § 1962(d) (2012); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C.A. § 1959(a)(5) (West 2012 & Supp. 2013); and conspiracy to possess with intent to distribute and distribute heroin and cocaine base, in violation of 21 U.S.C. Johniken to § 846 life (2012). The imprisonment and district he now court sentenced appeals. For the reasons that follow, we affirm. On admission of appeal, Johniken challenges the testimonies of two the district witnesses court s regarding statements made (1) by one of Johniken s coconspirators, and (2) by the victim of the murder. rulings on the admissibility We review a trial court s of evidence for abuse of discretion, and we will only overturn an evidentiary ruling that is arbitrary and irrational. United States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011) (internal quotation marks omitted). Moreover, [u]nder Rule 52 of the Federal Rules of Criminal Procedure, [a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. United States v. Medford, 661 F.3d 746, 751-52 (4th Cir. 2011). An error has a substantial and injurious effect only if it affected 2 the verdict; if the evidence of guilt cumulative, any error is not harmful. is overwhelming or Id. at 751-52. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid. 801(c). 802. Hearsay is generally inadmissible. However, [a] statement is not Fed. R. Fed. R. Evid. hearsay if it is a statement by a co-conspirator of a party during the course and in furtherance party. of the conspiracy and is offered against the United States v. Graham, 711 F.3d 445, 453 (4th Cir.), cert. denied, 134 S. Ct. 449 (2013) (internal quotation marks and citation omitted); see also Fed. R. Evid. 801(d)(2)(E). statement by conspiracy a if objectives, co-conspirator it was whether or is intended not made to it in furtherance promote actually the has of A a conspiracy s that effect. Graham, 711 F.3d at 453 (citations omitted). In addition, hearsay statements are admissible where the declarant is unavailable to testify because the party against whom the statements are offered wrongfully caused the declarant s unavailability Fed. R. Evid. 804(b)(6). and did so intending that result. Such wrongful conduct includes but is not limited to murdering a witness. United States v. Jackson, 706 F.3d 264, 267 (4th Cir.), cert. denied, 133 S. Ct. 2782 (2013) (internal quotation marks and citations omitted). 3 In order for the exception to apply, the desire to keep the witness from testifying must be a reason for procuring the unavailability of the declarant, but not necessarily the only motivation. Id. We have thoroughly reviewed the record and the relevant legal authorities and conclude that assuming, without deciding, that the district court erred, . . . any such error was harmless. Johniken s therefore rights. Medford, 661 F.3d at 751. guilt any presented error did at not trial affect was The evidence of overwhelming Johniken s and substantial See id. at 751-52. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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