48 F.3d 1217 (4th Cir. 1995), 94-5225, U.S. v. Johnson
| Citation | 48 F.3d 1217 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Joseph JOHNSON, Defendant-Appellant. |
| Case Date | March 06, 1995 |
| Court | United States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Page 1217
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)
Submitted Jan. 31, 1995.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CR-93-19)
E.D.Va.
AFFIRMED.
Elizabeth Dashiell Scher, MORCHOWER, LUXTON & WHALEY, Richmond, VA, for Appellant. Helen F. Fahey, United States Attorney, Stephen W. Miller, Assistant United States Attorney, Richmond, VA, for Appellee.
Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.
OPINION
PER CURIAM:
Joseph Johnson appeals his conviction on numerous drug and firearms charges. Johnson asserts that the district court improperly denied his motion to suppress evidence and motion to subpoena a witness, and that insufficient evidence existed to convict him of one charge. Finding no error, we affirm.
Johnson was indicted in a fifteen-count indictment in November 1993. The indictment charged him with being a felon in possession of a firearm in violation of 18 U.S.C.A. § 922(g) (West Supp.1994), making false statements to obtain firearms in violation of 18 U.S.C.A. § 924(a)(1)(A) (West Supp.1994), and conspiring to possess with the intent to distribute and to distribute in excess of fifty grams of cocaine base, in violation of 21 U.S.C. § 846 (1988). The indictment also charged Johnson with possession with the intent to distribute and distribution of cocaine in violation of 21 U.S.C.A. § 841 (West 1981 & Supp.1994) and carrying and using firearms in relation to drug crimes in violation of 18 U.S.C. § 924(c) (West Supp.1994).
A jury convicted Johnson on all but two counts. Johnson was sentenced to an aggregate term of 248 months. Johnson timely appealed, averring that the district court erred in denying his motion to suppress certain statements and in denying his request for issuance of a subpoena for a witness. Johnson also alleged that the Government presented insufficient evidence to support his conviction on one of the drug charges. Johnson does not challenge the sentences imposed for his convictions.
The events leading to Johnson's convictions are relatively straightforward. Johnson, a convicted felon, obtained numerous guns from the Virginia Police Equipment Company ("VPEC"), a federally licensed firearms dealer in Richmond, Virginia. In December 1990 and January 1991, Johnson purchased the guns himself. In the course of making the purchases, Johnson signed a Federal Firearms Transaction Record falsely stating that he had not previously been convicted of a felony.
In March 1991, Johnson persuaded Kevin Fobbs to obtain some guns for him. Fobbs purchased seven pistols for Johnson on March 5, 1991. Upon returning home that evening, agents from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") approached Fobbs regarding his purchase that day. Fobbs acknowledged that he had purchased the firearms for an individual known to him as "Joe." Fobbs identified Johnson's residence as 555 Laburnum Avenue in Richmond, Virginia, identified Johnson's car as a yellow Toyota, and gave the ATF agents a description of Joe. Fobbs told the agents that Joe was connected with a drug distribution operation located in the 1300 block of West Cary Street in Richmond and that Fobbs was taking the firearms to that location.
Fobbs became an informant for the agents' investigation. On April 4, 1991, Fobbs notified the ATF agents that Joe had again requested his help in purchasing firearms. The agents set up surveillance outside VPEC and observed as Fobbs, Johnson, and a third person arrived. Fobbs and Johnson entered the store. Soon thereafter, the agents saw Fobbs exit the store. Fobbs testified that he signed the federal firearms form and left. Johnson remained inside the store for fifteen minutes. Fobbs then re-entered the store and emerged several minutes later with Johnson. Johnson was carrying a package which Fobbs later testified contained three firearms signed for by Fobbs.
The ATF agents followed Johnson and Fobbs to Parkwood Avenue, near the 1300 block of West Cary Street. Johnson carried the firearms package through an alley to 1309 West Cary Street. Johnson made several trips between the West Cary Street location and his vehicle. Eventually, he returned to the car with the firearms, concerned that police might be in the area. Johnson took the firearms to his residence at 555 Laburnum Avenue.
In response to a call from Fobbs, ATF agents again set up surveillance at VPEC on June 5, 1991. Johnson and Fobbs arrived in a gray Ford Thunderbird. The two men entered the store. When they emerged a few minutes later, Johnson was carrying a bag containing five firearms signed for by Fobbs.
ATF agents again followed Fobbs and Johnson to Parkwood Avenue near the 1300 block of West Cary Street. Johnson carried the bag through the alley to 1309 West Cary Street. While at that apartment, Johnson exited the front door, checked the mailbox located next to the door, and re-entered the apartment. As he left the residence to return to the car, a gray Ford van left from the alley behind 1309 West Cary Street.
ATF agents followed the van north on Interstate 95 and stopped the van just south of Fredericksburg, Virginia. The agents searched the van but did not find any firearms. Later that evening, however, the five firearms that Johnson had obtained were recovered in a dumpster a few miles north of where the van was stopped. Johnson's fingerprints were recovered from one of the gun boxes.
Meanwhile, ATF agents also followed the Ford Thunderbird as it left Parkwood Avenue. The agents stopped the car shortly after it exited Interstate 64. The occupants were identified as Fobbs and Joseph Johnson of 555 Laburnum Avenue. Johnson denied that he and Fobbs had been at the gun store earlier that day. Johnson also refused to allow the agents to search the vehicle.
The agents did, however, conduct a search of 1309 West Cary Street that same day. The agents recovered numerous documents in the name of Joseph Johnson, including a Virginia Power receipt for 1309 West Cary Street, a rental receipt for the same address, and four automobile leases in Johnson's name, listing the residence address of 555 Laburnum Avenue. The agents also recovered a shotgun that Johnson purchased on December 22, 1990, along with a second shotgun.
Finally, the agents seized a locked safe, which later was found to contain an automobile lease in the name of Joseph Johnson, a receipt in Johnson's name for the Thunderbird that Johnson and Fobbs used to leave the gun store on June 5th, eighteen bags of crack cocaine totaling 79.48 grams, and one bag of cutting agent used to adulterate cocaine base. A real estate rental agent testified that the West Cary Street address was rented by Joseph Johnson from November 1990 until July 1991, and that Johnson failed to pay the rent after the search described above.
A federal warrant was issued in Richmond, Virginia on February 16, 1993, for Johnson's arrest on the charges contained in the initial indictment. Johnson was arrested on that warrant in Albany, New York, on August 27, 1993, by the Albany Police Department. William Mayo, a special ATF agent, took possession of Johnson from the Albany Police Department. Agent Mayo had not participated in the investigation of Johnson and was not familiar with the facts of the case. Agent Mayo had no intention of interrogating Johnson. Accordingly, he did not advise Johnson of his Miranda 1 rights.
While obtaining routine booking information from Johnson, Agent Mayo confirmed with Johnson his birthdate, birthplace, and social security number. Agent Mayo also confirmed...
To continue reading
Request your trial