United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED October 26, 2023 No. 22-30421 Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Curtis Johnson, Jr.,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:17-CR-201-3 ______________________________

Before Graves, Higginson, and Ho, Circuit Judges. Stephen A. Higginson, Circuit Judge: Curtis Johnson, Jr. appeals his convictions related to an armed robbery resulting in the death of Hector Trochez, an armored truck guard, making a bank delivery. Finding no reversible error, we AFFIRM. I. Johnson was charged with conspiracy to obstruct commerce by robbery (18 U.S.C. § 1951(a)); obstruction of commerce by robbery (id. § 1951(a)); and using, carrying, brandishing, and discharging firearms during and in relation to a crime of violence, causing death (id. §§ 924(c)(1)(A), Case: 22-30421 Document: 00516945543 Page: 2 Date Filed: 10/26/2023

No. 22-30421

924(j)(1)). Johnson was charged alongside: Jeremy Esteves; Robert Brumfield, III; Chukwudi Ofomata; Lilbear George; and Jasmine Theophile.

We briefly describe the government’s trial proof. Ofomata stored firearms at the home of witness Cedric Wade and retrieved the firearms on the morning of the robbery. Esteves drove a stolen vehicle with Johnson, Ofomata, and George to the bank parking lot. George exited the vehicle, approached the guard, Hector Trochez, who was outside an armored truck, and began shooting. Ofomata then exited the vehicle and also began shooting at Trochez and, almost simultaneously, Johnson exited the vehicle and began shooting at the truck when it appeared a second guard was going to exit the truck. The assailants fled. Trochez died on the scene from a gunshot wound. The government never purported to be able to identify which of the three shooters fired the fatal shot.

The government noticed its intent to seek the death penalty against the three defendants charged with firing firearms during the robbery— Johnson, George, and Ofomata—which it later withdrew. The district court severed the trial of the then-capital defendants. Johnson’s first trial, in July 2021, ended in a mistrial after the jury could not reach a verdict. At his retrial in March 2022, a jury convicted Johnson of each of the three counts charged. Johnson timely appealed.

II. First, Johnson contends that the government, in closing, committed the “prosecutor’s fallacy” by equating the random match probability of a

2 Case: 22-30421 Document: 00516945543 Page: 3 Date Filed: 10/26/2023

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partial DNA sample with the probability that the defendant was not the sample’s source.

At Johnson’s second trial, the government introduced expert testimony about a partial DNA sample obtained from a bandana found in the vehicle used in t