Case 1:06-cr-00079-DLC Document 193 Filed 12/01/14 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
UNITED STATES OF AMERICA,

Cause No. CR 06-79-BLG-DLC

Plaintiff/Respondent,
vs.

ORDER

LASHAWN JERMAINE JOHNSON,
Defendant/Movant.

This case comes before the Court on two motions filed by Defendant
Lashawn Jermaine Johnson, a federal prisoner proceeding pro se. First, on July 15,
2013, Johnson filed a motion to vacate, set aside, or correct his sentence, pursuant
to 28 U.S.C. § 2255. Second, on November 3, 2014, Johnson filed a motion under
18 U.S.C. § 3582(c)(2), seeking a reduction of his sentence under Amendment 782
to the United States Sentencing Guidelines.
For reasons related to judges’ caseloads in light of Amendment 782, this
matter was reassigned from United States District Judge Sam E. Haddon to the
undersigned.
On May 22, 2014, all but one of Johnson’s claims for relief under 28 U.S.C.
§ 2255 were denied. As to the remaining claim, the United States was directed to
expand the record, and Johnson was given an opportunity to respond to the new

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materials. See Order (Doc. 185) at 25 ¶¶ 1-3; Rule 7(c), Rules Governing § 2255
Proceedings. The United States complied with the Order on June 23, 2014, and
Johnson responded on July 21, 2014.
Johnson’s remaining claim asserts the prosecution failed to disclose that
three witnesses – Heather Schutz, Tyrone Jackson, and Ashley Grimm –
cooperated with authorities on previous occasions to obtain personal advantages.
Mot. § 2255 (Doc. 166) at 9 ¶ K; Br. in Supp. (Doc. 166-1) at 37-38; see also id. at
21-22. Because a witness’s track record of testifying against others to benefit
herself could be useful to defense counsel in impeaching the witness, see Giglio v.
United States, 405 U.S. 150, 153-55 (1972); United States v. Schoneberg, 396 F.3d
1036, 1041-42 (9th Cir. 2005), the United States was required to respond to this
claim, see Order (Doc. 185) at 9-11.
As to witness Schutz, Johnson asserted his belief that she obtained benefits
from cooperating with law enforcement in Las Vegas on matters related to
prostitution. The United States’ response on that point tends to show she did not.
But the Assistant United States Attorney now assigned to the case candidly states
that the prosecutor who handled the case at trial did not disclose other information
relevant to the jury’s assessment of Schutz’s credibility.
Schutz’s sealed plea agreement was disclosed to the defense two weeks
before trial, on or about November 14, 2006. Disclosure of Evidence Receipt at 2
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(Doc. 188-1 at 1-3 (unsigned)). The terms of the plea agreement made no promise
either as to Schutz’s assistance or as to the United States’ reciprocation. The
agreement simply stated that Schutz could offer information or testimony helpful
to the United States, and if she did so, and if the United States found her
information sufficiently complete, valuable and timely, then it would make an
appropriate motion to reduce her sentence. See generally Schutz Plea Agreement
(Doc. 188-1 at 12-14).
At trial on November 28, 2006, on direct examination by the United States,
the following exchange occurred:
Prosecutor: Have you been sentenced?
Schutz:

Yes.

Prosecutor: The plea agreement which you entered into allows a
potential reduction of your sentence; isn’t that true?
Schutz:

Yes.

...
Prosecutor: Is there any preconceived notion as to any potential
sentence reduction that may be available to you?
Schutz:

(No response.)

Prosecutor: Whether or not you may or may not get a sentence
reduction?
Schutz:

No.

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2 Trial Tr. (Doc. 95) at 366:1-5, 366:21-367:1.
In fact, on August 15, 2006, the same prosecutor who asked Schutz these
questions and accepted her answers had filed a motion under U.S.S.G. § 5K1.1,
seeking to reduce Schutz’s sentence in exchange for her grand jury testimony – not
against Las Vegas prostitutes, but against Johnson himself. Without the
prosecutor’s § 5K1.1 motion, Schutz’s advisory sentencing guideline range on her
drug charge was 188-235 months. Based on the United States’ motion, Schutz’s
sentencing judge, the Honorable Richard F. Cebull, departed downward from the
advisory guideline range of 188-235 months and imposed a sentence of 140
months.1 Statement of Reasons ¶¶ III, VIII (Doc. 188-2 at 18, 22). Moreover, at
Schutz’s sentencing on August 30, 2006, and within her hearing,2 the prosecutor
said of Schutz that she “looks really good now. . . . but the proof in the pudding is
going to be what she’s going to do from here on out.” Sentencing Tr. (Doc. 32) at
1, 10:17-11:5, filed under seal in United States v. Schutz, No. CR 06-34-BLG-RFC
(D. Mont. filed Apr. 29, 2008).3
All of these facts were known to the United States at the time of Johnson’s
1

Schutz pled guilty to one drug count and one count under 18 U.S.C. § 924(c). The §
924(c) sentence was 60 months consecutive to whatever drug sentence was imposed.
2
Although the sentencing hearing itself was not sealed, Schutz’s assistance was
discussed in open court, not at sidebar. The transcript was not filed until a year and a half after
sentencing, in April 2008, when Schutz filed a motion under 18 U.S.C. § 3582(c)(2) and
Amendment 706 to the U.S. Sentencing Guidelines. At that time, it was filed under seal.
3
The Court may take judicial notice of its own records. Rand v. Rowland, 154 F.3d 952,
961 (9th Cir. 1998) (en banc); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

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trial three months later, in November 2006. None of these facts were disclosed to
the jury, to Johnson, or to the judge who presided at Johnson’s trial, the Honorable
Jack D. Shanstrom. Only the prosecutor knew that Schutz’s receipt of personal
benefit in exchange for her information and testimony was not bare hope, as the
terms of her plea agreement suggested, and was not mere potential, as the
prosecutor’s questions and Schutz’s answers at trial suggested. It was concrete and
quantified reality. The prosecutor’s concealment of these facts fell short of the
level of candor required of prosecutors, Hayes v. Brown, 399 F.3d 972, 978 (9th
Cir. 2005) (en banc), and expected of those who represent the United States in this
Court.
Because this undisclosed information was both favorable to Johnson and
suppressed by the United States, the United States must address the materiality of
the undisclosed information. United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir.
2009). It must address not just the impact of the information as to Schutz but “the
cumulative effect of all [exculpatory or impeachment] evidence suppressed by the
government,” whether Johnson and the Court are, at this moment, aware of it or
not. Kyles v. Whitley, 514 U.S. 419, 421 (1995) (emphasis added). In other words,
the United States must now review all information within its control about the
investigation of Johnson’s case and about the witnesses presented at Johnson’s
trial, regardless of whether Johnson has fortuitously identified any other witness
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about whom favorable information was not disclosed. The prosecution’s
obligations under Brady and Giglio are self-executing and have no expiration date.
“Evidence is material when there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.’” United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009)
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)) (internal quotation
marks omitted). “A ‘reasonable probability’ of a different result exists when the
government’s evidentiary suppression undermines confidence in the outcome of
the trial.’” Id. (quoting Kyles, 514 U.S. at 434) (internal quotation marks omitted).
“The question is not whether the defendant would more likely than not have
received a different verdict.” Kyles, 514 U.S. at 434. Nor will it be adequate to
show that “after discounting the inculpatory evidence in light of the undisclosed
evidence,” the remaining evidence was sufficient to support the conviction. Id. at
434-35. The test is whether there is a reasonable probability that reasonable doubt
would have been retained by a reasonable juror who heard all the evidence and
testimony presented at Johnson’s trial and who also knew of all exculpatory and
impeachment evidence that was not disclosed by the United States before trial. See
generally Kyles, 514 U.S. at 441-54.
Application of the materiality test is not a simple matter. Id. Johnson has
requested the appointment of counsel, see Mot. (Doc. 167), and was found
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financially qualified for appointment of counsel, see Order (Doc. 12), United States
v. Johnson, No. 07-30163 (9th Cir. July 12, 2007). Further, Johnson is entitled to
the assistance of counsel with respect to his motion under 18 U.S.C. § 3582(c)(2)
and Amendment 782. See Standing Order DLC-21 at 3 ¶ 1 (D. Mont. Nov. 17,
2014). As to both matters, the Court finds it is in the interests of justice to appoint
counsel to represent Johnson. 18 U.S.C. § 3006A(a)(2)(B).
The motion for sentence reduction, however, will be stayed at this time. The
motion under 28 U.S.C. § 2255 will be resolved first.

Accordingly, IT IS HEREBY ORDERED as follows:
1. On or before January 9, 2015, the United States must show cause why
Johnson’s motion under 28 U.S.C. § 2255 should not be granted on the grounds
that the prosecution failed to disclose favorable and material exculpatory or
impeachment evidence.
2. Johnson’s motion for the appointment of counsel (Doc. 167) is
GRANTED. The Federal Defenders shall promptly locate conflict-free counsel to
represent Johnson on both the motion under 28 U.S.C. § 2255 and the motion
under 18 U.S.C. § 3582(c)(2).
3. Counsel shall immediately file a Notice of Appearance on Johnson’s
behalf. At that time, the Court will issue a formal order of appointment.

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4. Ruling on the motion under 18 U.S.C. § 3582(c)(2) is RESERVED,
pending resolution of the motion under 28 U.S.C. § 2255.
5. Within 30 days after the United States files its response to this Order,
counsel for Johnson may file a reply.
DATED this 1st day of December, 2014.

/s/ Dana L. Christensen
Dana L. Christensen, Chief Judge
United States District Court

cc:

FDOM

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