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United States v. Johnson

February 1, 2006

UNITED STATES OF AMERICA, APPELLEE,
v.
ALAN L. JOHNSON, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Appellant Alan Johnson ("Johnson") appeals from the judgment of the Hon. George H. Lowe, United States Magistrate Judge for the Northern District of New York, convicting him of a violation of New York Vehicle and Traffic Law § 1172 ("N. Y. VTL § 1172") while traveling on the roads of Fort Drum, New York, and sentencing him to a fine of $250.00. For the reasons that follow, the judgment is affirmed in part and vacated in part, and the matter is remanded to the magistrate judge for re-sentencing.

II. BACKGROUND

On or about April 10, 2005 while operating a motor vehicle at Fort Drum, New York, Mr. Johnson was cited for failure to stop at a posted stop sign in violation of N. Y. VTL § 1172. Fort Drum is a maritime and territorial jurisdiction of the United States, see 18 U.S.C. § 7, and New York's Vehicle and Traffic laws are assimilated for purposes of motor vehicle operation on the public roads within Fort Drum. See 18 U.S.C. § 13.

On September 27, 2005, the case came on for a bench trial before Magistrate Judge Lowe. At trial, the Government presented the testimony of the ticketing officer, Officer William David Ayen, a federal police officer working at Fort Drum on April 10, 2005. Officer Ayen testified that he witnesses a motor vehicle drive past a stop sign at the exit of the Fort Drum Inn without coming to a complete stop. Officer Ayen conducted a traffic stop of the vehicle and identified Mr. Johnson as its operator. Mr. Johnson was then ticketed. Officer Ayen's testimony was not refuted, and although Mr. Johnson conducted a vigorous cross-examination regarding events occurring after the ticket was issued in an apparent effort to discredit Officer Ayen, Mr. Johnson rested without presenting any evidence on his behalf. After the parties presented closing arguments, Magistrate Judge Lowe found Mr. Johnson guilty of the traffic infraction, and imposed a sentence of two hundred and fifty dollars ($250.00).

Mr. Johnson now contends that the conviction was obtained by the use of perjury, and that the weight of the evidence was against the verdict. Further, Mr. Johnson contends that Magistrate Judge evinced partiality for the prosecution by his conduct after the trial. Finally, Mr. Johnson asserts that he was assessed an excessive fine and was denied the right to be heard on the sentence. The Court will address the arguments seriatim.

III. STANDARD OF REVIEW

On an appeal, the Court reviews the magistrate judge's legal conclusions de novo , and accepts his factual determinations, unless clearly erroneous, viewing those facts in the light most favorable to the Government. See United States v. Casado, 303 F.3d 440, 443 (2d Cir. 2002).

VI. DISCUSSION

A. Use of Perjury

Mr. Johnson first contends, in wholly conclusory fashion, that Officer Ayen committed perjury at trial. In this regard, Johnson asserts:

Please take notice I am sitting [ sic ] perjury as the means of conviction by Patrolman Ayerys [ sic ]. I will present evidence that in fact this happened. No regard for testimony by Mr. Ayers [ sic Plainly and simply a 6 th] ...


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