United States v. Johnson, 2025 WL 3073632 (10th Cir. 2025)
Established by Congress and signed into law in 1975, the Federal Rules of Evidence was seminal legislation to establish what is and isn’t allowed in court proceedings. Rule 404 states “evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”
However, there are some notable exceptions — especially for defendants who just can’t resist showcasing their personal shortcomings. One of those exceptions applies to the subject of this particular case, which involves conduct that tends to (shall we say) pop up from time to time in jails and prisons.
Evidence of “prior bad acts” can be admitted to show motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident. A prosecutor must proffer the evidence to the judge and show that the prior bad act evidence’s probative value is not substantially outweighed by its prejudicial effect. This is a tricky task, especially when the defendant’s behavior tends to “tip” the scales all by itself.name of John Johnson was serving time in a federal facility while awaiting transfer to a Tennessee prison. His cell had a distress alarm button that would summon a correctional officer. Apparently excited, Johnson activated the distress alarm. He stood on a chair so that his erect … well, “johnson” … was at eye level in the window. When the correctional officer arrived, Johnson engaged in a one-man show clearly intended for the viewing “enjoyment” of the officer through the cell door window.
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Evidently the kind of guy who liked to “toot his own horn,” Johnson had “pulled” this stunt on at least four other occasions at a federal prison in Louisiana. In doing so, he established a pattern of behavior that was, quite unfortunately, well-rehearsed. This time, Johnson was prosecuted for indecent exposure.
Before the jury trial, the prosecutor asked the trial judge to allow evidence of Johnson’s earlier “solo performances” in the presence of corrections officers by introducing disciplinary logs and incident reports. The purpose was to show intent, knowledge, and lack of mistake, though it’s difficult to imagine how the defense would attempt to frame the act in question as an “accidental slip.” The trial court conducted the “more probative than prejudicial analysis” and admitted the incident reports relating to Johnson’s earlier episodes of “hands-on misconduct.” The jury convicted Johnson, and the district court sentenced him to three more years’ “hard” time.
Johnson appealed. He claimed the court improperly admitted the evidence of his prior bad acts. The court of appeals held that the trial court did not abuse its discretion (notwithstanding Johnson’s own self-abuse) in admitting evidence of his prior personal acts under Rule 404.
Johnson also challenged his sentence, arguing that in 39 states and two territories, someone convicted of a similar misadventure could not be sentenced to more than one year in prison. His own excesses aside, he pointed out that only two states allow sentences in excess of three years, and only Oklahoma sets a sentencing cap of 10 years. Thus, if Johnson had flagellated his namesake in the presence of a correctional officer in Louisiana (and he had, many times, with gusto) the maximum sentence would have been one year. And if he continued his one-man “outreach program” openly once he arrived at the Tennessee prison, he again would have risked only one additional year in prison. The court’s response: “But here’s the catch.” The claimed “disparity, at least as briefed by Johnson, is largely hypothetical, not actual, because few people are similarly situated to Johnson in the federal system.” In other words, Johnson couldn’t show others who committed similar offenses. Shockingly, it seems he stands alone in this particular field of expertise.
“The court of appeals held that the trial court did not abuse its discretion in admitting evidence of his prior personal acts under Rule 404.”
I hope you had fun chuckling at John Johnson’s predicament. The takeaway (besides proving that we really do catch the dumb ones — as well as the truly twisted ones) is that officers should always look for a history of prior bad acts and offer the evidence to the prosecutor. Because after all, you never know when someone’s past behavior will resurface — and vigorously.
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