U.S.A v. Johnson

• Citation: 617 F.3d 286
• Decision Date: 16 August 2010
• Docket Number: No. 08-5098.,08-5098.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Walter Raleigh JOHNSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

617 F.3d 286

UNITED STATES of America, Plaintiff-Appellee,v.Walter Raleigh JOHNSON, Jr., Defendant-Appellant.

No. 08-5098.

United States Court of Appeals Fourth Circuit.

Argued: Jan. 27, 2010.

Decided: Aug. 16, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Clarence Rauch Wise, Greenwood, South Carolina, for Appellant. Jeffrey Mikell Johnson, Office of the United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: W. Walter Wilkins, United States Attorney, Columbia, South Carolina, Leesa Washington, Assistant United States Attorney, Office of the United States Attorney, Greenville, South Carolina, for Appellee.

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

Reversed and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge MICHAEL and Judge MOTZ joined.

OPINION

GREGORY, Circuit Judge:

Walter Raleigh Johnson, Jr. (“Johnson”) appeals his conviction for conspiracy to possess with the intent to distribute cocaine. He argues that the district court erred in admitting the testimony of a Drug Enforcement Administration (“DEA”) Agent under Federal Rule of Evidence (“Rule”) 701 and erred in admitting the testimony of a prior alleged drug customer under Rule 404(b). Because we find that the court erroneously admitted testimony under Rule 701 and Rule 404(b), and that the errors were not harmless, we reverse Johnson's conviction and remand his case for a new trial.

I.

The Sheriff's Department of Greenwood County, South Carolina began conducting the drug investigation at issue in January 2007. As part of that investigation, a drug informant collaborated with the Sheriff's Department and the Greenville, South Carolina DEA office to identify Mayo Pickens (“Pickens”) as a source of cocaine in the area. After setting up phone calls and meetings and observing drug transactions between the informant and Pickens, the DEA obtained a court-approved wiretap for Pickens' cell phone. Although hundreds of calls were intercepted from Pickens' phone over the sixty-day period of the wiretap, only about 109 of those calls were relevant to the drug investigation. Out of the 109 relevant calls, only eight were intercepted between Pickens and Johnson, all occurring between June 10, 2007 and July 12, 2007. Based on the eight phone conversations between Pickens and Johnson, the DEA concluded that Johnson was one of Pickens' suppliers of cocaine. Johnson was arrested in August 2007, indicted in October, and charged with one count of conspiracy to possess with the intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. There were eleven codefendants charged as part of the same conspiracy, including Pickens, Yusef Lateef Holloway (“Holloway”) and Wayne Edward Hull (“Hull”). Johnson and two other defendants in this case were the only parties who chose to go to trial. Pickens, Holloway and Hull all pled guilty.

At trial, the government called four main witnesses in its case against Johnson.¹ DEA Agent Randy Smith (“Agent Smith”) presented testimony on the wiretap investigation. Holloway testified that he purchased cocaine from Johnson for two years beginning in 2003. Hull, a drug customer of Holloway's, testified that Holloway got his drugs from Johnson. Finally, Khalil Timpson (“Timpson”) testified that he purchased drugs from Johnson in 1998.

Agent Smith was permitted to interpret four of the eight phone calls recorded between Pickens and Johnson during his testimony. After eliciting Agent Smith's credentials, which included eighteen years experience as a DEA agent, the government played excerpts of the various phone calls for the jury, while referring them to a transcript of the calls.² The government's attorney would then refer Agent Smith to a particular phrase in the conversation and ask him to explain its meaning. For example: “Special Agent Smith, close to the beginning of the call there is a line or there's a phrase that's used by Mr. Johnson, ‘I'm going to hit you and let you know what's happening.’ ” J.A. 91.³ Before Agent Smith could offer his opinion, counsel for Johnson objected on the grounds that the question called for speculation. The district court asked the government's attorney to lay a foundation for testimony interpreting the calls. The government's attorney did so in the following manner:

Q: Special Agent Smith, how long have you been a DEA agent?

A: Since April of 1990.

Q: And how many-during the course of that time you have with DEA how many wiretaps have you participated in?

A: Approximately ten.

Q: And how many consensual calls have you monitored or participated in with informants?

A: Easily over a hundred.

Q: And how many cooperating defendants have you debriefed or interviewed?

A: Probably more than a hundred.

Q: Have you interviewed-how many defendants have you debriefed or interviewed who were actually involved in this case?

A: At least ten.

Q: Have most of those interviews occurred before or after the initiation of the wiretap?

A: Most of them occurred after.

Q: Are you familiar with the street terms used-and I'm assuming they change from day-to-day, but are you familiar with the street terms typically used by those involved in the drug trade?

A: Yes I am.

....

Q: All right. Based on your investigation thus far, prior to the wiretap and now after the wiretap, what did-do the terms-what did Mr. Johnson's part of the conversation midway down the page when they are talking about “hitting ya”, what did that mean to you?

J.A. 91-93. Over the defense counsel's renewed objection, Agent Smith was permitted to answer: “He's referring [SIC] that when he is able to obtain cocaine, he'll let Mr. Pickens know so they can purchase it or so he can purchase it.” J.A. 93. When asked how he knew that cocaine was the subject of the conversation, Agent Smith replied, “[j]ust based on other calls.” Id. Agent Smith translated “[s]omebody hit me on anything I'll let you know what's happening,” to mean “when he's [Johnson's] able to get cocaine and drugs, he will call Mr. Pickens and let him know.” J.A. 95. Despite continually premising Agent Smith's testimony on his “training and experience,” the government never proffered Agent Smith as an expert witness. Instead, the officer continued to offer his opinion regarding the nature of the phone calls between Pickens and Johnson. Although he maintained that the conversations referenced drug deals, Agent Smith admitted that “there was no information that ... Mr. Pickens and Mr. Johnson actually conducted a drug transaction” during the time period that the phone calls took place. J.A. 104. He further testified that he was not the officer who conducted the surveillance in the investigation and could not offer testimony regarding what the surveillance uncovered.

In addition to Agent Smith's testimony, the government called Holloway, a co-defendant with an extensive prior record who pled guilty to conspiracy in the case, to testify against Johnson. Holloway testified that he had known Johnson since 1998, and that he began to buy drugs from him in Anderson, South Carolina in the summer of 2003. Though he pooled the purchase money with Hull, another drug dealer in the area, Holloway testified that he went alone to transact deals because Johnson did not trust Hull. Holloway told the jury that over the next couple of years he purchased approximately forty to forty-five kilograms of cocaine from Johnson, half a kilogram to four kilograms per transaction. The drug deals occurred in Greenville, South Carolina or Atlanta, Georgia and the surrounding area. Holloway testified that the deals took place at a Wendy's parking lot on several occasions, as well as a Red Lobster parking lot and an apartment complex. During one deal in July 2005, Holloway and Johnson had a conversation on the quality of the cocaine being supplied and the price. Holloway alleged Johnson's drugs were bad because they did not yield as much product as expected and that the price per kilogram was too high, thereby harming his ability to make a profit on it. In December 2005, during the last deal that took place between the two, Holloway attempted to get his money back from Johnson for a bad batch of cocaine but was unable to do so. Holloway testified that he purchased drugs from a different supplier until his arrest in August 2006.

Hull, another co-defendant, testified that he was supplied drugs by Holloway and that Holloway's source was Johnson. Although Hull asserted he never went along for drug transactions, he stated he had met Johnson in the course of dealing cocaine in Anderson, South Carolina, and even went to a strip club in Atlanta with Holloway and Johnson. Hull therefore pooled drug purchase money with Holloway to buy from Johnson but was not permitted to buy directly from him. Hull testified that despite complaints regarding the quality of cocaine Johnson supplied, Holloway continued to purchase drugs from Johnson because he was the cheapest supplier.⁴

DEA Agent Jarvis Reeder ⁵ (“Agent Reeder”) testified to further inconsistencies in the testimony given by Holloway and Hull. Agent Reeder, who conducted a post-arrest interview with Hull, and wrote a report based on that interview, testified that Hull stated he taught Holloway how to cook cocaine into crack, whereas Holloway testified that Johnson taught him how to reduce cocaine to crack. Agent Reeder also testified that Hull stated in his interview that he and Holloway met Johnson in Atlanta, but never mentioned meeting him in Anderson, South Carolina, as Hull related in his testimony.

The final witness the government called against Johnson was Timpson. Prior to his testimony, defense counsel objected pursuant to Rule 404(b), arguing that Timpson's testimony was inadmissible character evidence. The district court overruled the objection and gave the jury an instruction on the limited purpose of the prior acts testimony. “For example, this evidence may be-may properly be considered to prove...