944 F.2d 396 (8th Cir. 1991), 90-5309, United States v. Johnson

Docket Nº:90-5309 to 90-5312.
Citation:944 F.2d 396
Party Name:UNITED STATES of America, Appellee, v. John Allen JOHNSON, Appellant. UNITED STATES of America, Appellee, v. Richard MILLER, a/k/a Richard Woods, Appellant. UNITED STATES of America, Appellee, v. Roderick BROOKS, Appellant. UNITED STATES of America, Appellee, v. Devon Arnez WILSON, Appellant.
Case Date:September 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 396

944 F.2d 396 (8th Cir. 1991)

UNITED STATES of America, Appellee,

v.

John Allen JOHNSON, Appellant.

UNITED STATES of America, Appellee,

v.

Richard MILLER, a/k/a Richard Woods, Appellant.

UNITED STATES of America, Appellee,

v.

Roderick BROOKS, Appellant.

UNITED STATES of America, Appellee,

v.

Devon Arnez WILSON, Appellant.

Nos. 90-5309 to 90-5312.

United States Court of Appeals, Eighth Circuit

September 3, 1991

Submitted Feb. 11, 1991.

Rehearing and Rehearing En Banc

Denied Nov. 8, 1991.

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[Copyrighted Material Omitted]

Page 398

Heidi Crissey, Stillwater, Minn., for appellant Johnson.

Larry Reed, Minneapolis, Minn., for appellant Miller.

Neil Dieterich, St. Paul, Minn., for appellant Brooks.

John Wylde, Minneapolis, Minn., for appellant Wilson.

Jeffrey Paulsen, Asst. U.S. Atty., Minneapolis, Minn., for U.S.

Page 399

Before MAGILL, BEAM, and LOKEN, Circuit Judges.

BEAM, Circuit Judge.

Following a joint trial John Allen Johnson, Richard Miller, Roderick Brooks, and Devon Arnez Wilson were convicted of drug trafficking and firearms offenses. Johnson and Wilson were convicted of Counts III, IV, and V of a five-count indictment alleging possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (1988), use of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) (1988), and conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846 (1988). Miller and Brooks were convicted of Counts III, IV, V, and Counts I and II alleging possession with intent to distribute cocaine base and use of a firearm during and in relation to a drug trafficking offense.

The appellants all received substantial prison sentences. Johnson was sentenced to concurrent 200-month terms of imprisonment on Counts III and V, and a mandatory consecutive five-year term on Count IV. See 18 U.S.C. § 924(c). Because he has two prior felony drug convictions, Miller was sentenced to mandatory life terms without parole on Counts I, III, and V, see 21 U.S.C. § 841(b)(1)(A)(iii) (1988), followed by mandatory consecutive five-year terms on Counts II and IV. Wilson also has two prior felony drug convictions and was sentenced to mandatory life terms without parole on Counts III and V followed by a mandatory five-year term on Count IV. After departing downward from the applicable range under the sentencing guidelines, the district court sentenced Brooks to concurrent 166-month terms on Counts I, III, and V followed by mandatory consecutive five-year terms on Counts II and IV.

The appellants raise numerous issues on appeal. They contend that: 1) the evidence was not sufficient to support their convictions; 2) they should have been tried separately; 3) certain evidence should have been suppressed; 4) the sentencing enhancements for obstruction of justice were improper; and 5) the life sentences without parole were illegal and unconstitutional. 1 We affirm the judgments with the exception of Wilson's sentence.

I. BACKGROUND

These prosecutions resulted from investigations of drug trafficking at two locations in St. Paul, Minnesota. Based on information from a confidential informant and from prior surveillance, a search warrant was obtained for the house located at 549 Edmund Street. The confidential informant indicated that he had purchased cocaine base (crack) at that location. Surveillance conducted for several days before June 20, 1989, revealed that up to ninety people per hour were approaching this house, remaining for a few minutes, and leaving.

On the night of June 20 a search warrant was executed at 549 Edmund. Upon forced entry, officers from the St. Paul Police Department's Critical Incident Response Team, who secured the house, and officers from the narcotics division, who conducted the search, discovered Miller, Brooks, and DeWanye Hardin 2 crouched in the closet of a dark bedroom. A loaded handgun was found in the same closet and ammunition was found scattered on the

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floor. An unloaded handgun was discovered in a window air conditioner in the same bedroom. A total of 87.2 grams of cocaine base were found in the closet and in the air conditioner. Another loaded handgun was found inside a couch cushion in the living room. A police radio scanner and several pagers, one of which belonged to Wilson, were also found in the house. In the kitchen, officers found a scale, packaging materials, razor blades, and, next to the back door, a tub containing $819. Officers discovered $33 on Brooks and $247 on Miller, each man also possessed a key to the Edmund Street house.

Johnson owned the house located at 549 Edmund and identified a man known to him as Tony Harris as the lessee and Brooks and Miller as residents of that house. Id. vol. VII, at 144-48. Johnson was not a suspect in the investigation at this time. In fact, at trial, Johnson claimed that he had been assisting the police in an effort to stop the drug dealing at 549 Edmund. Johnson supported this claim with evidence that he had called the St. Paul Police Department before the execution of the search warrant and provided a confidential (he identified himself as the owner of the property) tip that California gang members were selling drugs at that location. And, after the search, he identified photographs of the three men who were living at 549 Edmund for Sergeant Zaruba of the St. Paul Police Department.

Brooks, Miller, and Hardin were arrested and then released from jail. They left Minnesota for a short time; and, when they returned, they approached Johnson looking for another place to live. Johnson agreed to allow them to live at 851 Aurora, another house he owned in St. Paul. Johnson agreed to this arrangement only after receiving the approval of Sergeant Zaruba. Johnson assured Zaruba that no drug dealing would occur at 851 Aurora and that he would keep the police informed as to the activities of Brooks, Miller, and Hardin.

On July 19, 1989, officers from the St. Paul Police Department executed a search warrant at 851 Aurora. When the officers entered through the rear door of the house, they saw Miller drop an object and run from the kitchen. Miller was apprehended and searched. In separate pockets officers discovered cocaine base, $277, and a wallet containing $35. Two loaded handguns, ammunition, and cocaine base were found on the kitchen floor. Razor blades and a scale were also found in the kitchen. A rifle was discovered underneath a couch in the living room and another rifle was found between a mattress and box spring in a first floor bedroom. Additional cocaine base was found in the toilet on the first floor.

Brooks was found in a second floor bedroom rolled up in a carpet. In separate pockets he had $20.94 and $259. Johnson and Wilson were found in another second floor bedroom along with razor blades, cocaine base, and baking soda. In Wilson's pockets officers found $844 and a note regarding the price of a currency counter. Altogether, 72.1 grams of cocaine base were found at the Aurora house.

II. DISCUSSION

A. Sufficiency of the Evidence

  1. Johnson

    Johnson contends that the evidence was insufficient to support his conviction for possession with intent to distribute cocaine base. While he argues that he was merely present at the Aurora house, that he was unaware that any drugs were in the room in which he was sleeping at the time of the search, that any drugs he may have possessed were solely for personal use, and that he was actually a concerned citizen who wanted the drug trafficking at his houses to stop, the evidence certainly was sufficient to allow the jury to conclude otherwise.

    Johnson's conviction must be upheld "if, viewing the evidence in the light most favorable to the government and giving the government the benefit of all reasonable inferences, we conclude that a reasonable fact-finder could have found ... beyond a reasonable doubt" that he knowingly possessed cocaine base with the intent to distribute it. United States v. Maejia, 928 F.2d 810, 812 (8th Cir.1991). See

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    also United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988) (knowing possession with intent to distribute required to support conviction under 21 U.S.C. § 841(a)(1)). Constructive possession is sufficient to establish knowing possession. Matra, 841 F.2d at 840. "A person has constructive possession of contraband if he has 'ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.' " Id. (quoting United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir.1984) (citation omitted)). Further, constructive possession may be joint among several defendants. United States v. Brett, 872 F.2d 1365, 1369 (8th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989).

    Johnson not only owned the Aurora house, but he also lived there. His money was found in the dresser in the bedroom where he was found. He had installed a doorbell at the back door of 549 Edmund so that the occupants could distinguish between customers and police officers and expressed his concern that the traffic should be routed to the back door. Trial Transcript vol. IV, at 176-77. A similar doorbell had been installed at 851 Aurora. In addition to the rent he received, Johnson was given additional money and free drugs at 549 Edmund. Id. at 177-78. Johnson also brought customers to the Edmund house. Further, the evidence, viewed in a light most favorable to the government, indicated that Johnson was aware of the drug trafficking at 851 Aurora and did not inform Sergeant Zaruba of it, id. vol. VIII, at 74, thereby contradicting his claim that he was...

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