On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 09-cr-00501) District Judge: Honorable Eduardo C. Robreno
The opinion of the court was delivered by: Hardiman, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) April 10, 2012
Before: HARDIMAN, GREENAWAY, JR., and GREENBERG, Circuit Judges.
John Johnson appeals his judgment of conviction and sentence following a jury trial. Although he raises four assignments of error, Johnson's most significant claim is that the District Court's individual voir dire procedure violated his constitutional rights and the Federal Rules of Criminal Procedure. Because we are persuaded by neither Johnson's principal argument nor his ancillary claims, we will affirm the judgment and sentence of the District Court.
On February 3, 2007, police officers from Cheltenham Township, Pennsylvania, enlisted a confidential informant to arrange a controlled purchase of cocaine from his usual supplier, who was later identified as John Johnson. That evening, Officer Tom Fahy and the confidential informant purchased a bag of cocaine from Johnson in the parking lot of a Home Depot. Six days later, the informant arranged a controlled purchase in Philadelphia, where officers arrested Johnson as he approached the informant's car. A search of Johnson's person yielded $200, a loaded semi-automatic handgun, two bags of white powder, and a cell phone associated with the phone number that the informant had called to arrange the buys. Laboratory testing later confirmed that the substances recovered during both buys amounted to 8.76 grams of cocaine.
Johnson was tried before a jury and convicted of cocaine distribution and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts One and Two), using and carrying a firearm during a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Count Three), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Four). Johnson was later sentenced to 120 months' imprisonment, six years of supervised release, a $1000 fine, and a $400 special assessment.
Johnson raises four issues on appeal, claiming: (1) the District Court violated his constitutional rights and Federal Rule of Criminal Procedure 43 by questioning prospective jurors at sidebar outside his presence, (2) the Court abused its discretion in denying his motion to disclose the identity of the confidential informant, (3) the evidence was insufficient to support his conviction on Count Three, and (4) the Court erred by imposing an upward variance. We evaluate each argument in turn.*fn1
During jury selection, the District Court followed the customary procedure of questioning prospective jurors first in open court and later individually at sidebar. Johnson remained at the defense table during the sidebar proceedings, which were on the record. The District Court ruled on challenges for cause at sidebar, and thereafter counsel returned to their tables to mark their peremptory challenges.
Johnson argues that this procedure violated his constitutional right to be present at all stages of his trial. But neither Johnson nor his counsel objected to the procedure during jury selection, even when prompted to do so by the District Court. The decision not to object to voir dire conducted at sidebar and outside the presence of the defendant is a tactical decision similar to the one at issue in Gonzalez v. United States, 553 U.S. 242 (2008). In Gonzalez, the Supreme Court held that ―express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial.‖ Id. at 250.
Noting that ―acceptance of a magistrate judge at the jury selection phase is a tactical decision that is well suited for the attorney's own decision,‖ the Court explained that [a] magistrate judge's or a district judge's particular approach to voir dire both in substance--the questions asked--and in tone-- formal or informal--may be relevant in light of the attorney's own approach. The attorney may decide whether to accept the magistrate judge based in part on these factors. As with other tactical decisions, requiring personal, on-the- record approval from the client could necessitate a lengthy ...