U.S. v. Johnson

• Citation: 911 F.2d 1394
• Decision Date: 09 August 1990
• Docket Number: 88-2739 and 88-2740,Nos. 88-2814,s. 88-2814
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marion JOHNSON, Marshall Johnson, Willie Lee Dancy, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1394

911 F.2d 1394

UNITED STATES of America, Plaintiff-Appellee, v. Marion JOHNSON, Marshall Johnson, Willie Lee Dancy,

Defendants-Appellants.

Nos. 88-2814, 88-2739 and 88-2740.

United States Court of Appeals,

Tenth Circuit.

Aug. 9, 1990.

D. Blair Watson, Asst. U.S. Atty. (Robert E. Mydans, U.S. Atty., with him on the brief) Oklahoma City, Okl., for plaintiff-appellee.

Bob G. Carpenter, Oklahoma City, Okl., for defendant-appellant, Marion Johnson.

Paul Antonio Lacy (Gary W. Briggs, with him on the brief) of Lacy & Briggs, Oklahoma City, Okl., for defendant-appellant, Marshall Johnson.

Jack D. Pointer, Jr., of Oklahoma City, Okl., for defendant-appellant, Willie Lee Dancy.

Before SEYMOUR and ANDERSON, Circuit Judges, and KANE, Senior District Judge ^*.

KANE, Senior District Judge.

Marion Johnson, Marshall Johnson and Willie Lee Dancy are three of eight defendants convicted for various offenses arising out of activities of the Sanders heroin ring which was centered in Oklahoma City, Oklahoma. We have considered previously the arguments of other defendants involved in these crimes. See United States v. Rogers, 899 F.2d 917 (10th Cir.), cert. filed, No. 89-7763 (June 15, 1990); United States v. Williams, 897 F.2d 1034 (10th Cir.1990); United States v. Ware, 897 F.2d 1538 (10th Cir.), cert. denied, --- U.S. ----, ----, 110 S.Ct. 2629, 2630, 110 L.Ed.2d 649, 650 (1990); United States v. Baggett, 890 F.2d 1095 (10th Cir.1989). We now address the contentions of the remaining defendants.

MARION JOHNSON

Marion Johnson was indicted on twenty-six counts of drug violations. As indicated by the number of charges against her, she

was one of the prime players in the ring. She was convicted on all charges except one distribution charge, which was dismissed. Johnson now appeals her conviction on five grounds. First, she argues that the trial court should have declared a mistrial when it was discovered that one or more members of the jury saw her in handcuffs. Second, she contends that her conviction on related charges violates her constitutional right against double jeopardy. Third, she asserts that the trial court should have suppressed certain wiretap evidence because the tap was illegal. Her fourth and fifth arguments are dependant on the success of her third argument: if the wiretap was illegal and the fruits of the wiretap are suppressed, there is insufficient evidence to convict her on all charges. We affirm the trial court's rulings and uphold the convictions.

I. Facts.

Johnson's role in the Sanders conspiracy was to supervise the street sales of heroin made by co-defendants Ware and Daniels and, on occasion, by her brother Marshall Johnson. She describes the facts of this case through the testimony introduced against her at trial. The testimony of police detective Thomas Tehrune was introduced to establish evidence of the conspiracy and to permit the later introduction of co-conspirator testimony. Detective Tehrune described wiretap evidence in which Johnson spoke with certain co-defendants about heroin transactions and surveillance revealing Johnson's regular presence with the defendants convicted on conspiracy charges. Other witnesses connected Johnson to the conspiracy, identifying her as the street sales manager for the organization and connecting her with specific drug transactions.

II. Issues.

A. Mistrial for Juror Prejudice.

Johnson argues that she was entitled to a mistrial when one or more jury members saw her handcuffed to other defendants. We have held that a juror's fleeting glance of a defendant in handcuffs does not warrant a mistrial, Glass v. United States, 351 F.2d 678, 681 (10th Cir.1965), and other circuits have recently reaffirmed this principle. See, e.g., United States v. Garcia-Rosa, 876 F.2d 209, 236 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 742, 107 L.Ed.2d 760 (1990); United States v. Halliburton, 870 F.2d 557, 560-61 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3227, 106 L.Ed.2d 575 (1989). The trial court made a full inquiry as to whether this incident would prejudice the jury. No juror indicated any inability to be impartial. The denial of a mistrial was correct.

B. Double Jeopardy.

Johnson next questions her multiple convictions on racketeering, RICO conspiracy and conspiracy to distribute heroin charges in light of the fifth amendment's prohibition against double jeopardy. In United States v. Cardall, 885 F.2d 656 (10th Cir.1989), we outlined the analysis of a double jeopardy claim. "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, 'the test to be applied to determine whether [prosecution for both violates double jeopardy] is whether each provision requires proof of a fact which the other does not.' " Id. at 665 (citing United States v. Blockburger, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)). In Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), the Supreme Court indicated that the Blockburger test is primarily a rule of statutory construction to help determine legislative intent.

Johnson makes a similar argument as the defendant in Cardall, namely that it is impossible that she could be convicted on so many charges arising out of the same conduct without this violating the double jeopardy clause. In United States v. Kragness, 830 F.2d 842 (8th Cir.1987), the Eighth Circuit directly confronted this argument. In Kragness, the defendants were charged with RICO and RICO conspiracy violations, as well as conspiracy to import and to distribute certain drugs, interstate travel, use of the telephone, and other related drug charges. Id. at 853.

They argued that their conviction on RICO conspiracy and drug conspiracy charges violated the constitutional prohibition against multiple punishments for the same crime. Id. at 863.

Although the court concluded that, under the Blockburger test, the elements of the RICO conspiracy and conspiracy to distribute charges overlapped, this was not determinative. Under the further guidance of Garrett, the court held that Congress, in enacting the RICO statute, "fully intended to permit cumulative punishments," and that the defendants' punishment on RICO and drug conspiracy charges was therefore not constitutionally prohibited. Id. at 864; see also United States v. Grayson, 795 F.2d 278, 282-83 (3d Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987). Consequently, we conclude that Johnson's similar multiple convictions do not constitute double jeopardy.

C. Legality of Wiretap.

Johnson makes the same arguments concerning the legality of the wiretap which were raised by her codefendants, Ware and Daniels. In United States v. Ware, 897 F.2d at 1540-41, we rejected those arguments and affirmed the district courts ruling that the wiretap was not unlawfully executed. It would serve no useful purpose to repeat our analysis here. Again, for the same reasons, we affirm the ruling.

D. Sufficiency of Evidence.

Johnson's final arguments concern the sufficiency of the evidence to sustain her convictions if the wiretap evidence is excluded. It is possible that, if the wiretap evidence is found to have been illegally obtained, there would be insufficient evidence to sustain her conviction on some of the charges. However, at least three other witnesses testified as to her complicity in the organization. Nevertheless, we think it is unnecessary to consider this issue because the wiretap itself was not illegal under Oklahoma law.

MARSHALL JOHNSON

Marshall Johnson appeals his conviction on charges of distribution of two grams of heroin and his sentencing to twenty-seven months in jail and three years of supervised release. Johnson appeals on five grounds: (1) that the trial court erred by denying his motion for acquittal on the count leading to his conviction, (2) that his trial should have been severed after he was acquitted on conspiracy charges, (3) that his sentence violates the double jeopardy clause of the fifth amendment, (4) that his sentence violates due process, and (5) that his sentence was incorrectly calculated under the Sentencing Guidelines. We affirm the trial court's rulings and affirm the convictions and sentence.

I. Facts.

Marshall Johnson was originally indicted on five counts: racketeering, conspiracy to violate racketeering laws, conspiracy to distribute heroin, distribution of two grams of heroin, and distribution of twenty grams of heroin. During trial, he was acquitted on all charges except the two-gram heroin distribution charge because the court determined that there was insufficient evidence connecting him with the other counts. His conviction on the two-gram count is premised on his liability as an aider and abettor.

The facts leading to Marshall Johnson's conviction are not in dispute. On December 8, 1987, Elizabeth Brown and Richard ("Dickey") Thompson came to Oklahoma City to purchase heroin from Johnny Sanders, leader of the heroin ring. They contacted him by phone, and he instructed them to talk to Delma Hill or Marion Johnson (the defendant's sister) at the Masters Club.

When they arrived at the club, Marion Johnson was not there, and Hill instructed Brown to talk to Marion's brother, Marshall Johnson. Marshall then called Marion, and put Brown on the line to talk to her. Brown then asked Marion Johnson over the phone for eight to ten pills or balloons of heroin. Marshall Johnson then took back the phone and spoke briefly with his sister. When he hung up, Brown handed While he was gone, Marion Johnson called Brown back and told her that the drugs would not be sold at a discount price. Marshall Johnson then returned with Brown's money, gave it back to her, and told her to count it to make sure it was all there. The next day, Brown successfully purchased ten pills of heroin from Hill at a nearby car wash operated by ringleader Sanders. The pills were supplied to Hill by Marion...