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United States v. Johnson

United States District Court, W.D. Tennessee, Western Division

September 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SHUNTARIO JOHNSON, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT SHUNTARIO JOHNSON'S MOTION TO SEVER COUNTS

          CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant Shuntario Johnson's (“Johnson”) Motion to Sever Counts. (Docket Entry (“D.E.”) #220). The instant motion has been referred to the United States Magistrate Judge for Report and Recommendation. (D.E. #238). For the reasons set forth herein, it is RECOMMENDED that the instant motion be GRANTED IN PART AND DENIED IN PART. Specifically, it is RECOMMENDED that Counts Two, Three and Four were misjoined pursuant to Rule 8(a) and should be severed for purposes of trial. It is further RECOMMENDED that Counts One, Five, Six, Seven, Eight, Nine, and Ten should be tried together.

         I. Introduction

         a. Criminal Complaint, Indictment, and Superseding Indictments

         On January 26, 2018, a criminal complaint was sworn against Johnson and co-defendants Marcus Danner (“Danner”) and Quintiz Agnew (“Agnew”). The criminal complaint alleged that Johnson, Agnew, and Danner sought to effectuate the robbery of a what they believed to be a narcotics stash house on January 25, 2018 (“January 25, 2018 Conspiracy”); they would later discover that the supposed stash house was in fact a fictitious creation of undercover law enforcement agents. On January 30, 2018, an Indictment was issued against Johnson, Danner and Agnew in relation to the January 25, 2018 Conspiracy.

         On March 7, 2018, a First Superseding Indictment was issued against Johnson, Danner, and Agnew as well as against a fourth co-defendant-John Lott (“Lott”). On August 30, 2018, a Second Superseding Indictment was issued against these four co-defendants as well as a fifth co-defendant-Crystal Deener (“Deener”). Since that date, there have been an additional three superseding indictments issued against these five co-defendants, the latest of which was issued on August 8, 2019. The charges contained in the operative Fifth Superseding Indictment are summarized as follows.

         1. Count One-Robbery Conspiracy

         Count One pertains to the overarching robbery conspiracy that is alleged to have existed from in or about December 2017 to on or about January 25, 2018. Count One alleges that Johnson, Danner, Agnew, and Lott conspired to commit robbery of persons engaged in narcotics trafficking to obtain drugs and drug proceeds by threats of physical violence in violation of 18 U.S.C. § 1951(a).

         2. Counts Nine and Ten-January 25, 2018 Robbery

         Counts Nine and Ten pertain to offenses arising from the January 25, 2018 planned robbery of the fictitious narcotics stash house. In Count Nine, Johnson, Agnew, and Danner are charged with knowingly possessing a Ruger 8mm semiautomatic handgun (the “Ruger Firearm”) in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) and 2.[1] In Count Ten, Johnson, Agnew, and Danner are charged with knowingly being felons in possession of the Ruger Firearm in violation of 18 U.S.C. § 922(g)(1) and 2.

         3. Counts Two, Three, and Four-January 9, 2018 Carjacking

         Counts Two, Three, and Four pertain to offenses charged as a result of a January 9, 2018 Carjacking (“January 9, 2018 Carjacking”) in which Johnson is alleged to have been the sole participant. In Count Two, Johnson is charged with the January 9, 2018 Carjacking of a 1999 Cadillac Deville from victim R.S. in violation of 18 U.S.C. § 2119. In Count Three, Johnson is charged with the knowing use of the Ruger Firearm during and in relation to the January 9, 2018 Carjacking in violation of 18 U.S.C. § 924(c)(1)(A)(iii). In Count Four, Johnson is charged with being a felon in knowing possession of the Ruger Firearm during the commission of the January 9, 2018 Carjacking, in violation of 18 U.S.C. § 922(g)(1).

         4. Counts Five, Six, and Seven-January 22, 2018 Attempted Robbery

         Counts Five, Six and Seven pertain to the January 22, 2018 Robbery (“January 22, 2018 Robbery”). In Count Five, Johnson, Agnew, Danner, and Lott are charged with attempting to rob B.B. of drugs and drug proceeds on January 22, 2018 in violation of 18 U.S.C. § 1951 and, in the course of this offense, shooting another person, V.R., in violation of 18 U.S.C. § 1951(a) and 2.[2] In Count Six, Johnson, Agnew, Danner, and Lott are charged with knowingly using a firearm during and in relation to a crime of violence, and discharging the firearm in the course of such offense, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 2. In Count Seven, Johnson, Agnew, Danner, and Lott are charged with being felons in knowing possession of the Ruger Firearm in violation of 18 U.S.C. § 922(g)(1) and 2.

         5. Count Eight-Narcotics Conspiracy

         In Count Eight, Johnson, Danner, Agnew, and Lott are charged with participating in a narcotics conspiracy from at least on or about December 2017 to at least on or about January 25, 2018 in violation of 21 U.S.C. § 812 and 21 U.S.C. § 846.

         6. Count Eleven-Conspiracy to Falsify Evidence

         In Count Eleven, Lott and Deener are charged with conspiracy to falsify evidence in violation of 18 U.S.C. § 1512(k). Johnson is not charged with any offenses in this count.

         B. ...


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