719 F.3d 660 (8th Cir. 2013), 12-2321, United States v. Johnson

Docket Nº:12-2321.
Citation:719 F.3d 660
Opinion Judge:WOLLMAN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee v. Lawrence JOHNSON, also known as Darrell Johnson, Defendant-Appellant.
Attorney:Webb L. Wassmer, argued, Marion, IA, for appellant. Patrick J. Reinert, AUSA, on the brief, Cedar Rapids, IA, for appellee.
Judge Panel:Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
Case Date:June 13, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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719 F.3d 660 (8th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee

v.

Lawrence JOHNSON, also known as Darrell Johnson, Defendant-Appellant.

No. 12-2321.

United States Court of Appeals, Eighth Circuit.

June 13, 2013

Submitted: Jan. 18, 2013.

Rehearing and Rehearing En Banc Denied July 19, 2013.[*]

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Webb L. Wassmer, argued, Marion, IA, for appellant.

Patrick J. Reinert, AUSA, on the brief, Cedar Rapids, IA, for appellee.

Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

A jury convicted Lawrence Johnson of one count of conspiracy to distribute and possess with the intent to distribute 1 kilogram or more of a mixture or substance containing a detectable amount of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851 (count 1); two counts of possession with intent to distribute a mixture or substance containing a detectable amount of heroin in violation of §§ 841(a)(1), 841(b)(1)(C), and 851 (counts 11 and 14); one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (count 21); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (count 22). The district court 1 sentenced Johnson to the statutory mandatory term of life imprisonment on count 1; 360 months' imprisonment on counts 11 and 14; 60 months' imprisonment on count 21; and 120 months' imprisonment on count 22, with the sentences on counts 1, 11, 14, and 22 to be served concurrently and the sentence on count 21 to be served consecutively to the terms of all other counts. Johnson appeals his conviction, the denial of his motion for new trial, and his sentence. We affirm.

I.

Dwayne Appling was the primary source of heroin in Waterloo, Iowa, in 2008. After a search warrant was executed at Appling's home, he fled town, thereby creating a decentralized heroin network in Waterloo. Without a primary source for heroin, Waterloo became a cooperative market for the remaining dealers. The dealers not only began supplying one another, but also " fronted," or advanced, heroin to one another and referred customers back and forth depending upon the availability of heroin in the city.

The evidence at trial showed that Johnson was one such dealer and that he sold heroin in quantities for personal use as well as for resale. Johnson fronted other dealers in Waterloo with heroin, including Rochester Mitchell and Johnson's own mother, Catherine Johnson (Catherine). In turn, Mitchell, Catherine, and others would " steer," or direct, heroin customers to Johnson from time to time. One such transaction took place on January 12, 2011, when Lucious Simmons, working as a criminal informant, attempted to purchase heroin from Jonathan Virgil. Virgil informed Simmons that he did not currently have any heroin to sell but that he could arrange for Johnson to sell some to Simmons. Simmons picked up Virgil and drove to a residence on Cutler Street in Waterloo, where Johnson exited the residence and entered Simmons's vehicle. After a brief discussion, Simmons purchased ten bags of heroin weighing 2.1 grams in total from Johnson for $200. Johnson then gave Virgil two free bags of heroin for steering Simmons to him. Subsequent testing of the drugs purchased by Simmons demonstrated that they contained a mixture that was 3% pure heroin.

On February 15, 2011, law enforcement officers executed a search warrant at the

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Cutler Street residence. They seized seven bags of heroin, which contained 0.96 grams in total of a mixture containing 0.88% pure heroin. Along with the heroin, a loaded 9 mm handgun was seized. Johnson claimed ownership of both the heroin and the handgun during the search.

At trial, the government presented evidence regarding the cooperative heroin network in Waterloo. Several individuals testified that they met Johnson while purchasing heroin from his mother, Catherine, and then eventually began purchasing heroin from Johnson as well. Simmons and others testified regarding the various times they had purchased heroin from Johnson and identified whether the purchase was in an amount for personal use or resale. The government also produced evidence of jailhouse admissions and an exhibit made by Johnson regarding his connection to Mitchell and the conspiracy to distribute heroin in Waterloo. The jury found Johnson guilty on all counts and he was later sentenced as described above.

II.

A. Judgment of Acquittal and Sufficiency of the Evidence

Johnson contends that the district court erred in denying his motion for judgment of acquittal and motion for a new trial based upon insufficiency of the evidence. " We review de novo the denial of a motion for judgment of acquittal." United States v. Cook, 603 F.3d 434, 437 (8th Cir.2010). " We view the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict." United States v. Chase, 451 F.3d 474, 479 (8th Cir.2006) (internal quotation marks omitted). " A conviction may be based on circumstantial as well as direct evidence." United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992). " We will reverse only if no reasonable jury could have found the defendant guilty." Cook, 603 F.3d at 437.

" We review a denial of a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 for an abuse of discretion." United States v. Maybee, 687 F.3d 1026, 1032 (8th Cir.2012). " When faced with a motion for a new trial, unlike a motion for judgment of acquittal, a district court is permitted to weigh the evidence and judge witness credibility for itself in determining if there may have been a miscarriage of justice such that a new trial is required." United States v. Samuels, 543 F.3d 1013, 1019 (8th Cir.2008).

" To establish a conspiracy, the government must prove: (1) the existence of an agreement among two or more people to achieve an illegal purpose, (2) the defendant's knowledge of the agreement, and (3) that the defendant knowingly joined and participated in the agreement." United States v. Whirlwind Soldier, 499 F.3d 862, 869 (8th Cir.2007). " In a drug conspiracy case ... the government is not required to present direct evidence of an explicit agreement; juries may rely upon circumstantial evidence to discern a tacit agreement or understanding between the co-conspirators." United States v. Hodge, 594 F.3d 614, 618 (8th Cir.2010). Furthermore, " [a] conspirator ... need not know all of the conspirators or be aware of all the details of the conspiracy, so long as the evidence is sufficient to show knowing contribution to the furtherance of the conspiracy." United States v. Lemm, 680 F.2d 1193, 1204 (8th Cir.1982).

The indictment charged Johnson with conspiring with Appling, Mitchell, Arthur Scott, Thelma Moore, Windy Hayes, Arvester Edwards, and Edward Sapp, as

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well as other persons known and unknown to the grand jury, to distribute and possess with intent to distribute 1 kilogram or more of a mixture or substance containing a detectable amount of heroin. Viewing the evidence in the light most favorable to the government, there is sufficient evidence that Johnson conspired with Mitchell and others to distribute heroin in the Waterloo area. Johnson admitted to a fellow inmate that he was " dealing with" Mitchell, and...

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