United States v. David Johnson: Admitting “Secondary-Evidence” Summary Slides and Treating Written Summary Contempt Orders as Immediately Appealable Final Judgments

Court: Court of Appeals for the Sixth Circuit
Date: 2026-01-02
Disposition: Judgment affirmed; October 2, 2024 contempt order affirmed; appeals from August 29, 2022 and April 11, 2023 contempt orders dismissed as untimely.

1. Introduction

United States v. David Johnson arises from a series of four armed robberies of Ohio gas stations and retail stores (late 2019–early 2020) and a multi-agency investigation tying David Johnson to the crimes using surveillance evidence, seized items (including phones, clothing, and a firearm), social media review, and location data derived from telephone records and a Google account.

After a first federal trial ended in a mistrial, a second jury convicted Johnson of four Hobbs Act robberies (18 U.S.C. § 1951), four counts under 18 U.S.C. § 924(c) (use/carry/brandish of a firearm during a crime of violence), and one felon-in-possession count (18 U.S.C. §§ 922(g)(1), 924(a)(2)). The district court imposed a total of 446 months, plus additional custody for supervised-release violation and for criminal contempt based on repeated disruptions.

The appeal presented three core issues:

Evidence: whether the district court erred by admitting slides from an FBI agent’s PowerPoint as a summary exhibit of voluminous phone/Google location records.
Contempt: whether multiple summary criminal contempt orders were valid and whether earlier written contempt orders were timely appealed.
Sentencing constitutionality: whether § 924(c)(1)(D)(ii)’s consecutive-sentencing mandate is unconstitutional as applied when a defendant already has a lengthy state sentence.

2. Summary of the Opinion

The Sixth Circuit (Clay, J.) held:

The PowerPoint slides were properly admitted—not necessarily under Federal Rule of Evidence 1006—but as a “secondary-evidence summary” under the Sixth Circuit framework recognized in United States v. Bray and expressly adopted in United States v. Kerley, because the underlying records were admitted and the jury received an appropriate limiting instruction.
The appeals from the August 29, 2022 and April 11, 2023 written contempt orders were untimely under Federal Rule of Appellate Procedure 4(b)(1)(A)(i) because a criminal contempt order is a final, immediately appealable judgment when entered; the government invoked the timeliness bar, requiring dismissal.
The remaining October 2, 2024 contempt order (six months) was affirmed: summary contempt at sentencing was permissible given repeated in-court disruptions and warnings; no jury trial was required for a six-month contempt sentence; and the failure to discuss § 3553(a) factors was not plain error.
Section 924(c)(1)(D)(ii) survived Johnson’s as-applied constitutional attacks: the consecutive mandate satisfied rational-basis review under the Fifth Amendment and was not “arbitrary punishment” under the Eighth Amendment.

3. Analysis

3.1 Precedents Cited

A. Standards of review shaping the panel’s approach

United States v. Churn (abuse of discretion for evidentiary rulings; harmless-error framework).
United States v. Kimble (abuse of discretion for summary contempt).
Logan v. Dayton Hudson Corp. (definition of abuse of discretion: “definite and firm conviction” of clear error of judgment).
United States v. Layne (de novo review for constitutional sentencing challenges).
United States v. Hochschild and United States v. Koeberlein (plain-error test when constitutional claims are raised for the first time on appeal).

B. Summary exhibits: Rule 1006 and the Sixth Circuit’s “secondary-evidence summary” doctrine

United States v. Bray: the foundational Sixth Circuit decision distinguishing (i) Rule 1006 summaries, (ii) pedagogical devices, and (iii) “secondary-evidence summaries” that may be admitted with the underlying evidence and a limiting instruction where they reliably synthesize complex evidence.
United States v. Kerley: expressly adopted Bray’s approach; critical to rejecting the appellant’s attempt to minimize Bray as dicta.
Federal Rule of Evidence 1006 (as quoted in the opinion): provides for summaries of voluminous materials that cannot be conveniently examined in court.

Influence on decision: The court avoided a strict Rule 1006 compliance fight by affirming on the alternative, Sixth Circuit–recognized path: admission as a “secondary-evidence summary” when the underlying phone and Google records are themselves admitted and the jury is cautioned that the summary is only as reliable as those records.

C. Criminal contempt, procedure, and constitutional constraints

Ex parte Terry (courts’ inherent contempt authority).
Bloom v. Illinois (warning against “untrammeled” contempt power; underscores need for procedural structure).
In re Chandler (Sixth Circuit’s four substantive requirements for summary contempt: misbehavior, obstruction, presence, and intent to obstruct).
Harris v. United States and United States v. Wilson (Supreme Court guidance on when summary contempt is appropriate; the panel rejects a bright-line “trial-only” limitation).
Anderson v. Dunn (least-possible-power principle in contempt).
In re Oliver (due process norm of notice and hearing; summary contempt as narrow exception for open-court disruptions requiring immediate response to preserve authority).
Sacher v. United States (summary contempt power can be exercised immediately or deferred if exigencies require).
United States v. Donaldson and Illinois v. Allen (trial-judge discretion to manage disruptive defendants).
Cheff v. Schnackenberg and Bloom (jury-trial right for contempt sentences exceeding six months).
Codispoti v. Pennsylvania (multiple contempts can cumulate beyond six months without a jury if handled as discrete events at different points of the proceeding).
United States v. Sears (plain-error review when not preserved).
United States v. Martin (guidelines do not apply to contempt convictions carrying sentences of six months or less).

D. Timeliness of contempt appeals and “finality”

United States v. Payton (Rule 4(b) as a claims-processing rule that must be enforced when the government invokes it).
In re Mfrs. Trading Corp. (“[a]n order adjudging one guilty of criminal contempt is final and appealable”).
Slack Techs., LLC v. Pirani (use of the definite article “the” implies particularity; used to reject the theory that an appeal window “renews” upon later entry of the underlying criminal judgment).
King v. Morgan (criminal “judgment” includes adjudication of guilt and sentence), quoting Deal v. United States.
Massengale v. United States (“Final judgment in a criminal case means sentence.”).

Influence on decision: By characterizing each written contempt order as its own “judgment” (guilt + sentence), the panel treated the contempt orders as independently final and thus independently subject to Rule 4(b)(1)(A)(i)’s 14-day deadline.

E. Constitutionality of § 924(c) consecutive mandate

United States v. Gonzales (statutory interpretation: “any other term of imprisonment” includes state sentences).
Chapman v. United States (Fifth Amendment due process/equal protection overlap; punishment must not rest on arbitrary distinctions; rational basis suffices absent suspect classification).
United States v. Dunham and Est. of Kunze v. Comm'r of Internal Revenue (rational basis can be hypothesized; need not appear in statutory text/history).
United States v. Khan and United States v. Thomas (legitimate governmental purpose and rationality of additional mandatory imprisonment for firearm use).
Heller v. Doe by Doe (rational-basis review tolerates imperfect line-drawing and some inequality).
Williams v. Meyer (example of rational distinctions based on conviction status).
United States v. Watkins and United States v. McDonel (Sixth Circuit rejection of gross-disproportionality challenges to § 924(c) stacking/consecutiveness).
Gregg v. Georgia and Rhodes v. Chapman (Eighth Amendment “gratuitous infliction of suffering” concept, typically in confinement-conditions context).
Quintanilla v. Bryson (cited by appellant, but distinguished as a conditions-of-confinement case relying on Gregg).

3.2 Legal Reasoning

A. Why the PowerPoint slides were admissible

The central evidentiary move was the panel’s classification of the excerpted PowerPoint (slides 9–20) as a secondary-evidence summary under United States v. Bray, as adopted in United States v. Kerley. The court acknowledged that the slides contained “some pedagogical information” beyond raw phone/Google records (e.g., labels for robbery locations, the Google Maps backdrop, directional arrows, and a labeled stolen-credit-card transaction). But Bray permits some pedagogical features so long as the exhibit accurately and reliably summarizes admitted complex evidence and is accompanied by a limiting instruction.

Critically, the panel emphasized what the appellant did not argue: Johnson did not contend that the “core” locational information (tower locations, approximate phone location at times, approximate Google-account location at times) was inaccurately portrayed. With admitted underlying records and an instruction that the slides were not independent evidence, the district court acted within its discretion.

B. Why earlier contempt appeals were dismissed as untimely

The panel treated each written summary contempt order as a final, immediately appealable judgment upon docket entry, relying on In re Mfrs. Trading Corp. and the “judgment means guilt + sentence” framing in King v. Morgan (quoting Deal v. United States) and Massengale v. United States. It rejected the defendant’s attempt to “refresh” the appellate clock upon entry of the later criminal judgment for the underlying convictions, reasoning that Rule 4(b)(1)(A)(i) requires a notice of appeal within 14 days of “the judgment or the order being appealed,” and—invoking Slack Techs., LLC v. Pirani—that “the” signals a particular judgment/order, not a rolling renewal mechanism.

Because Rule 4(b) is a claims-processing rule, United States v. Payton required enforcement once the government raised untimeliness. The result was dismissal of the appeals from the August 29, 2022 and April 11, 2023 written contempt orders.

C. Why summary contempt at sentencing was upheld

On the merits of the surviving contempt order (October 2, 2024), the panel applied Rule 42(b) and the In re Chandler elements (misbehavior, obstruction, presence, intent). It rejected a categorical reading of Harris v. United States and United States v. Wilson that would confine summary contempt to disruptions during trial only. Instead, guided by In re Oliver’s “narrow exception” conception, the panel looked to the practical need to preserve proceedings and authority where misconduct is in open court, personally observed, and threatens “demoralization of the court’s authority before the public.”

The record facts the panel highlighted—repeated interruptions after explicit warnings and even admonitions from the public gallery—supported the inference of intentional obstruction in the judge’s presence. The panel also held:

No jury trial was required for a single six-month sentence under Cheff v. Schnackenberg and Bloom v. Illinois.
The “cumulative over six months” argument was effectively mooted by jurisdictional dismissal of earlier contempt orders; and in any event, Codispoti v. Pennsylvania permits multiple discrete contempts to cumulate when handled at different points without delayed, end-of-proceeding aggregation.
The alleged failure to consider § 3553(a) factors was reviewed for plain error under United States v. Sears; with United States v. Martin stating that guidelines do not apply to contempt sentences of six months or less, the panel found no plain error.

D. Why § 924(c)(1)(D)(ii) was constitutional as applied

The panel treated Johnson’s Fifth Amendment equal protection/due process argument as a rational-basis challenge under Chapman v. United States and United States v. Dunham. It accepted deterrence and prevention of firearm use in crimes of violence as a legitimate governmental purpose (citing United States v. Khan and comparing United States v. Thomas) and found § 924(c)’s “always consecutive” rule rationally related to that purpose because it adds deterrent force.

The “happenstance” complaint—that his state conviction came first, making the federal term longer in practical effect—failed under Heller v. Doe by Doe: rational-basis review tolerates imperfect line-drawing and incidental inequality. Congress could rationally use the date/status of other sentences as a trigger without individualized inquiry into sequencing possibilities.

On the Eighth Amendment theory, the panel noted the absence of supporting authority for importing “arbitrary punishment” concepts (from Gregg v. Georgia and conditions cases like Rhodes v. Chapman) into this sentencing context, and reiterated that Sixth Circuit precedent (e.g., United States v. Watkins, United States v. McDonel) has not found § 924(c)’s consecutiveness unconstitutional on disproportionality grounds. Given the same deterrence rationale, the court found no “gratuitous infliction of suffering.”

3.3 Impact

Evidence practice (digital-location proofs): The decision reinforces that in the Sixth Circuit, prosecutors (and defendants) can use map-based, slide-based visualizations of technical location datasets as admissible evidence—not merely demonstratives—if they qualify as secondary-evidence summaries under Bray/Kerley, the underlying records are admitted, and the jury is properly instructed.
Appellate preservation (contempt): Litigants must treat written criminal contempt orders as independently final for Rule 4(b) purposes. Waiting to appeal until the end of the main criminal case risks dismissal if the government invokes timeliness.
Courtroom management: The opinion underscores that summary contempt is not confined to trials; sentencing hearings can justify immediate Rule 42(b) action when conduct is open-court, observed, obstructive, and intentional under In re Chandler.
§ 924(c) challenges: The panel’s rational-basis reasoning aligns with other circuits and provides additional Sixth Circuit reinforcement against as-applied Fifth and Eighth Amendment challenges premised on sentencing-sequence “happenstance.”

4. Complex Concepts Simplified

Rule 1006 summary vs. “secondary-evidence summary”: Rule 1006 allows a summary to substitute for voluminous documents. A “secondary-evidence summary” (per United States v. Bray) is admitted alongside the underlying evidence because it helps jurors understand complex material and is treated as reliable synthesis—typically with a caution that it is only as good as the underlying records.
Pedagogical device: A teaching aid (often not admitted into evidence) used to help explain testimony or records; it may include annotations or advocacy. The Sixth Circuit allows some pedagogical elements in a “secondary-evidence summary” if accuracy/reliability is maintained.
Summary criminal contempt (Rule 42(b)): A streamlined procedure allowing immediate punishment when contempt occurs in the judge’s presence and is personally observed, used to keep proceedings from being derailed and to preserve courtroom authority; it is an exception to ordinary notice-and-hearing requirements.
Claims-processing rule (Rule 4(b)): A deadline rule that does not deprive the court of subject-matter jurisdiction but must be enforced if the opposing party (here, the government) timely insists on it—leading to dismissal even if the merits might otherwise be considered.
Rational-basis review: The most deferential constitutional standard; a statute stands if any conceivable rational justification supports it, even if the line it draws produces some unequal outcomes.
§ 924(c) consecutive mandate: Federal law requiring a firearm-during-violence sentence to run consecutive to all other imprisonment terms—including state sentences—so it always “adds time” rather than overlapping.

5. Conclusion

United States v. David Johnson consolidates three practical rules for Sixth Circuit litigation:

Courts may admit map-and-slide visual summaries of technical phone/Google location records as secondary-evidence summaries under United States v. Bray and United States v. Kerley, so long as the underlying records are admitted and the jury is instructed on the summary’s limited role.
A written criminal contempt order is an independently final, immediately appealable judgment, and Rule 4(b)’s 14-day deadline runs from that order’s docket entry—not from the later entry of the defendant’s main criminal judgment.
Section 924(c)(1)(D)(ii)’s mandatory consecutiveness remains constitutionally durable against as-applied Fifth and Eighth Amendment challenges premised on sentencing sequence and perceived arbitrariness.