U.S. v. Johnson

• Decision Date: 13 March 2006
• Docket Number: No. 05-1620.,05-1620.
• Citation: 439 F.3d 947
• Parties: UNITED STATES of America, Appellee, v. Willie C. JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

439 F.3d 947

UNITED STATES of America, Appellee, v. Willie C. JOHNSON, Appellant.

No. 05-1620.

United States Court of Appeals, Eighth Circuit.

Submitted: December 15, 2005.

Filed: March 13, 2006.

COPYRIGHT MATERIAL OMITTED

Counsel who presented argument on behalf of the appellant was Derrick R. Williams of Jackson, MO.

Counsel who presented argument on behalf of the appellee was Michael A. Price, AUSA, of Cape Girardeau, MO.

Before WOLLMAN, LAY, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Willie C. Johnson (Johnson) appeals his convictions for conspiracy to distribute fifty grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and 846, and for distribution of and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Johnson argues the district court¹ erred by permitting a government witness to testify under Federal Rule of Evidence 404(b), and the evidence was insufficient to convict. We affirm.

I. BACKGROUND

In July 2003, law enforcement agents from Missouri's Bootheel region suspected illegal drug activity in an area of Steele, Missouri, called "the corners." The agents engaged Walter Robinson Jr. (Robinson) to become a confidential informant. On July 24, the agents equipped Robinson with recording devices and sent him to "the corners" to attempt to purchase a $20 rock of crack cocaine using a prerecorded $20 bill. Robinson eventually began a conversation with Johnson, who was at "the corners," telling Johnson he was seeking a "twenty" rock of crack cocaine. Johnson told Robinson to wait while he made a phone call. When Johnson completed the call, he told Robinson to follow him in his car. Robinson followed Johnson to a trailer home on Smith Street.

Upon arriving, Johnson introduced Robinson to Charles Davis (Davis), told Davis to "take care of" Robinson, then left. Davis and Robinson entered the trailer and went to a rear bedroom, where Davis sold Robinson a "twenty" rock of crack cocaine from a plastic baggie. Robinson then left and reconvened with law enforcement agents, where the agents collected the drugs, reviewed the audio and visual recordings Robinson secretly made, and recognized Johnson. Robinson overheard one of the agents refer to Johnson as "Willie." The agents instructed Robinson to return to "the corners" to attempt another purchase.

Later that day, Robinson returned to the area and met with Johnson. When Robinson told Johnson he wanted more drugs, Johnson told him to return to the Smith Street trailer and speak with Davis. Robinson asked Johnson to lead him there again, inadvertently referring to Johnson as "Willie." Upon arriving at the trailer, Johnson and Davis began to question Robinson how he knew Johnson's first name. The three eventually went to the trailer's rear bedroom, where Johnson and Davis continued to question Robinson, suspecting him of being an informant. Overhearing this through Robinson's recording device, the agents entered the trailer. Upon the agents' arrival, Robinson witnessed Johnson retrieve a plastic baggie from his pocket and throw it on the bedroom floor. Robinson told the agents what he saw.

Agents arrested and searched all of the occupants, including Berter Mae Joyner (Joyner), who was in the living room. Agents found the prerecorded $20 bill on Davis. Joyner, the trailer's lessee and Davis's girlfriend, granted permission to search the trailer. Agents located a small plastic baggie with several "twenty" rocks of crack cocaine lying on the floor of the rear bedroom, a purse on a closet shelf in the same bedroom containing another chunk of crack cocaine, and some small scales located in the closet.

Before Johnson's trial, Davis pled guilty to conspiring with Johnson to distribute crack cocaine, and agreed to cooperate with the government and testify against Johnson. At trial, Davis testified Johnson called him before Johnson and Robinson arrived at his trailer on July 24, 2003. Regarding the contraband found in the trailer, Davis stated (1) the plastic bag of crack cocaine belonged to him, (2) the day before his arrest he had obtained from Johnson the chunk of crack cocaine found in the closet, and (3) the scales found in the closet were left there by Johnson. Davis further testified he purchased crack cocaine from Johnson and later sold it to others, paying Johnson only after Davis sold it. Davis stated he distributed crack cocaine for Johnson for eighteen to twenty months from 2002 to July 24, 2003. Davis testified the normal amount of crack cocaine he received from Johnson was one-quarter ounce once or twice per month.

Before trial, the government provided Johnson with notice of its intention to introduce under Rule 404(b) the testimony of Torrell Nelson (Nelson) regarding previous crack cocaine transactions between Nelson and Johnson to demonstrate Johnson's knowledge, intent, or absence of mistake. Johnson objected, but the district court ruled Nelson's proffered testimony was admissible.

At trial, the district court gave a limiting instruction before Nelson's testimony, after which Nelson testified to purchasing crack cocaine from Johnson intermittently from 1998 to 2003. Nelson further testified, while in Davis's trailer, he had observed crack cocaine in the possession of Davis and Johnson. Nelson stated he knew Davis and Johnson had a working relationship. After Nelson finished testifying, the district court gave the jury another limiting instruction, advising the jury to consider Nelson's testimony only for purposes of Johnson's "knowledge, intent, or absence of mistake or accident."

Johnson's trial took place shortly after the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before this court provided guidance to district courts on the implications of Blakely and the Supreme Court's later decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Pirani, 406 F.3d 543 (8th Cir.) (en banc), cert. denied, ___ U.S. ___, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005). As such, the district court included special jury instructions requiring the jury to find whether the government proved its allegation of fifty grams or more of cocaine base in the conspiracy charge, as well as other special instructions regarding Johnson's alleged role in the charged offenses (relevant to certain sentencing enhancement factors added by the government to the superseding indictment post-Blakely).

With this in mind, the government's closing argument included the following statements regarding Nelson's testimony:

I have the responsibility of having additional time that I can split to talk about the testimony of Davis and Torrell Nelson with regard to the amounts involved and as to your special findings concerning the defendant's role in the offense.

. . . .

. . . I submit to you that if part of the defense or doubt that you're supposed to consider is that one of the co-defendants, conspirators, was smoking, then let's consider all of the evidence concerning not only the crack cocaine that was there, but the crack cocaine that Mr. Davis possessed for the benefit of his co-conspirator, the defendant, Willie Johnson, that he testified to, and even the testimony of Torrell Nelson concerning the other crack cocaine involved in this case.

. . . .

Now, ladies and gentlemen of the jury, again with regard to Torrell Nelson, because we are asking-[w]ith regard to the other instructions, ladies and gentlemen of the jury, the judge is going to give you a verdict concerning other special findings that you have to make and as a-[i]n support of that-remember the testimony of Torrell Nelson with regard to over 560 grams if you add everything up during that time period for the distribution by the defendant.

Johnson did not object to the government's statements.

A jury convicted Johnson of conspiracy to distribute fifty grams or more of cocaine base, and distribution of and possession with intent to distribute cocaine base. The jury also found (1) the total quantity for which Johnson was responsible in the conspiracy was at least 150 grams but less than 500 grams; (2) Johnson's role was that of an organizer, leader, manager, or supervisor; and (3) Johnson willfully attempted to obstruct justice during the investigation or prosecution. The district court sentenced Johnson to thirty years' imprisonment on the conspiracy count, twenty years' imprisonment on the distribution count, and twenty years' imprisonment on the possession count, to be served concurrently, as well as a concurrent term of supervised release of five years on the first count and three years on each of the remaining counts. Johnson appeals his convictions, arguing the district court abused its discretion in permitting Nelson to testify to Johnson's prior bad acts, and the evidence was insufficient to convict on any of the three counts.

II. DISCUSSION

A. Rule 404(b) Evidence

Johnson argues the district court erred in permitting Nelson to testify about his past dealings with Johnson, and the government improperly encouraged the jury to ignore the district court's limiting instruction regarding Nelson's testimony. We disagree.

Federal Rule of Evidence 404(b) bars use of a defendant's prior bad acts as character evidence, but permits such evidence to prove other factors such as the defendant's motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident.² It is a rule of inclusion, such that evidence offered for permissible purposes is presumed admissible absent a contrary determination. United States v. Hill, 410 F.3d 468, 471 (8th Cir.2005). To be admissible, Rule 404(b) evidence "must (1) be relevant to a material issue raised at trial, (2) be similar in kind and close in time to the crime charged, (3) be supported by sufficient evidence to support a finding by a jury that the defendant...