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United States v. Johnson

United States District Court, E.D. Wisconsin

July 26, 2019




         On June 30, 2017, officers arrested the defendant for being a felon in possession of a firearm. Dkt. No. 20 at 3; Dkt. No. 1. The officers were responding to a report of shots being fired in the 4100 block of North 19th Street, when they found the defendant and another person sitting in a car in front of 4129 North 20th Street; it was around 11:30 at night. Dkt. No. 20 at 3. The officers stopped to ask the two if they'd heard the shots, and shone the squad car's spotlight into the car (the defendant was in the passenger seat). Id. The defendant looked at the officers, then turned away and got out of the car on the passenger side. Id. He began to move away from the officers-the parties disagree about whether he walked away, walked briskly away or ran, but they agree that he was moving away from the officers. One of the officers observed the defendant holding his right side “with his right arm near his pants pocket, in a manner consistent with the carrying of an unholstered firearm.” Id. The other officer says that he saw a gun as the defendant walked away (briskly or otherwise). The second officer told the defendant to stop, but the defendant continued to move away toward the house at 4129 North 20th Street. The officers apparently caught up with the defendant, and detained him on the porch of that house. Id. He had a loaded Smith and Wesson, model SW40VE, .40-caliber pistol in his right front pants pocket; the serial number on the gun had been obliterated. Id.

         Two days later, the Milwaukee County District Attorney's Office filed a complaint, charging the defendant with being a felon in possession of a firearm, resisting an officer and possessing a firearm while under a harassment injunction. State v. Johnson, 2017CF003013 (Milwaukee County Circuit Court), available at At the initial appearance, the commissioner ordered the defendant released to the supervision of Justice Point on a $2, 500 cash bond, with the conditions that he maintain absolute sobriety, participate in drug testing and not possess firearms; the commissioner also required him to appear at all future court dates. Id. The defendant posted bond five days later. Id.

         The defendant showed up for the next three hearings: the preliminary hearing on July 11, 2017; a July 14, 2017 hearing regarding a violation of bond (during which the commissioner admonished the defendant, but didn't revoke his supervision); and a scheduling conference on August 1, 2017 (at which the judge set a final pretrial conference for September 21, 2017 and a jury trial for October 11, 2017). Id. On August 31, 2017, however-two months after the defendant's arrest and release-Justice Point filed a “discharge summary, ” which caused the judge to schedule a bond hearing for September 8, 2017. Id. The defendant did not show up for that hearing, and the court issued a warrant. Id.

         A month later, a federal grand jury indicted the defendant on a single count of being a felon in possession, based on the events that took place on the night of June 30, 2017. Dkt. No. 1.

         A year and a half passed from the date the defendant last had appeared in state court. On April 22, 2019, the defendant was picked up on the state bench warrant. State v. Johnson, 2017CF003013 (Milwaukee County Circuit Court), available at The circuit court judge set bail at $4, 000. Id. This court, through Magistrate Judge Nancy Joseph, scheduled an initial appearance/arraignment and plea hearing for May 17, 2019, and issued a writ of habeas corpus to bring the defendant from state custody to the federal court for that hearing. Dkt. No. 2. The defendant asked to be returned to the Milwaukee County Jail after the hearing. Dkt. No. 4. Judge Joseph issued a federal detainer, so that if the defendant were released from state custody, he would be remitted to federal custody until a federal judge could determine whether he should be detained or released. Dkt. No. 5.

         On June 25, 2019, the state court dismissed the state charges on the assistant district attorney's motion to dismiss, given the pending federal charge. Id., State v. Johnson, 2017CF003013 (Milwaukee County Circuit Court), available at

         On July 17, 2019, the defendant filed a motion asking the federal court to release him with conditions. Dkt. No. 19. The motion indicated that the defendant had an extensive employment history, including work as a paint technician and “roughly four years” as a welder at Super Steel. Id. at 2. It stated that the defendant's last criminal conviction had been a misdemeanor criminal damage to property charge, for which he'd received a sentence of probation (which he'd completed successfully). Id. The defendant proposed that if released, he could live with his sister Fawanda Johnson and her fifteen-year-old son at 7881 N. 60th Street in Milwaukee. Id. The defendant expressed confidence that he could obtain work quickly, given his training and job experience. Id. The motion opined that while the defendant had no formal mental health diagnosis, he had “uncharacteristically” stopped attending his state court hearings and stopped communicating with his state probation officer. Id. at 3. The motion indicated that when defense counsel had asked why the defendant had stopped going to state court when this case was pending there, the defendant “described feelings and thoughts that seemed to reflect symptoms of depression.” Id. Defense counsel recommended that the court order the defendant to undergo a mental health assessment and follow any treatment recommendations. Id.

         The next day-July 18, 2019-the parties filed an executed plea agreement, in which the defendant agreed to plead guilty to one count of being a felon in possession of a firearm. Dkt. No. 20. Among other things, the plea agreement provides that at sentencing, the defendant will recommend a sentence of no less than thirty months, while the government will recommend a sentence of no greater than seventy-eight months-a four-year difference. Id. at 7. The same day, this court scheduled a sentencing hearing for July 29, 2019 at 2:30 p.m. The following day-July 19, 2019-Judge Joseph calendared a hearing on the defendant's motion for bond, setting it for July 23, 2019 at 10:00 a.m.

         Consequently, the defendant appeared before Judge Joseph for a bond hearing six days before he was scheduled to appear before this court to enter a guilty plea on a charge for which he had agreed that he would ask for a sentence of no less than thirty months in federal prison.

         Judge Joseph and the parties had available to them a prior record memo prepared by the pretrial services department. Dkt. No. 3. The document showed that the defendant had a criminal history dating back to 1996, when he was fifteen. Id. at 2-3. While the history reflected nine prior convictions, none appeared to involve violent behavior (although a 2015 conviction for criminal damage to property and disorderly conduct included the words “domestic abuse”). The defendant has convictions for possession of small amounts of marijuana and cocaine in his teens and a conviction for carrying a loaded gun in a car and possessing drug paraphernalia and drugs when he was twenty (for which he received a sentence of sixty days in jail). He accumulated convictions for bail jumping and failing to appear when he was twenty and twenty-one, one of which led to a sentence of two years in custody and two years' extended supervision. Id. Between 2003 and 2009, it appears that the defendant stayed out of trouble; between 2009 and the events of June 30, 2017 he accrued minor convictions for disorderly conduct, possession of marijuana/resisting (for which he received a sentence of nine months in jail), operating under the influence, and criminal damage to property/disorderly conduct. Id. In two of these four latter cases, he received probationary sentences. In four of the nine convictions, the defendant received some sort of supervision-either an extended supervision component of a prison sentence or a probation sentence. In three out of four of those cases, the supervision was revoked-once when he was in his early twenties (for two different cases) and once in his late twenties. Id.

         The parties and Judge Joseph also had available to them a pretrial services report. Dkt. No. 8. The report showed that the defendant is thirty-eight years old and has lived in Milwaukee pretty much his whole life. Id. at 1. His mother and sister both live in Milwaukee, and he has good relationships with both. He is single, but has two children from a prior relationship who live with their mother in a nearby town. Id. at 1. The report indicates that the defendant has been unemployed since February 2016-over a year before the events of June 30, 2017-and that he'd been supporting himself with savings (which had run out) and with the help of friends and family. He had worked as a welder for some two years before being laid off in 2016, and he has degrees in welding and HVAC. Id. The report indicated that the defendant's sister believed he'd been depressed lately, and that the defendant himself reported a history of gambling. Id. While the defendant had a history of drinking and marijuana use, it appeared that he'd stopped both as of the time of the report. Id. at 2. The pretrial services department recommended that Judge Joseph release the defendant but require him to be on home detention with restricted travel and other conditions. Id. at 5.

         The court listened to the recording of the July 23, 2019 hearing before Judge Joseph, which is where it obtained some of the facts about what the parties argued and how Judge Joseph ruled. At the hearing, the government asked the court to deny the defendant's motion for bond. Dkt. No. 21 at 1. The prosecutor argued that the defendant had a significant criminal record, but more to the point, that he had absconded from supervision when the case had been pending in state court. He argued that the defendant had demonstrated that he was not likely to follow the rules of supervision. Id. He also pointed out that the parties had filed a plea agreement which exposed the defendant to at least thirty months in federal prison. The prosecutor noted that if the defendant's bond hearing had taken place just one week later, before the district court, the defendant would have been required to prove by clear and convincing evidence that he did not pose a flight risk or a danger to the community.

         Defense counsel emphasized several of the points he'd raised in the motion for bond. He acknowledged that the defendant had been missing from state supervision for a long time, and told Judge Joseph that during that time, the defendant had been living with a friend and doing odd jobs. (This is also what the defendant told the pretrial services officer.) Counsel explained that in April 2019, the defendant had been involved in a car accident. Counsel opined that the defendant knew, when the accident occurred, that there was a warrant out for his arrest, and that he could have fled the scene of the accident to avoid being arrested. Counsel argued, however, that the defendant opted to stay at the scene and “face the music.” Counsel opined that the government was ...

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