U.S. v. Johnson

• Citation: 169 F.3d 1092
• Decision Date: 08 February 1999
• Docket Number: No. 98-2671,98-2671
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmie C. JOHNSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1092

169 F.3d 1092

UNITED STATES of America, Plaintiff-Appellee, v. Jimmie C. JOHNSON, Defendant-Appellant.

No. 98-2671.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 12, 1999.

Decided Feb. 8, 1999.

John C. Vanderslice, Lincoln, Nebraska, argued, for Defendant-Appellant.

Steven A. Russell, Lincoln, Nebraska, argued (Thomas J. Monaghan, United States Attorney, on the brief), for Plaintiff-Appellee.

Before BOWMAN, Chief Judge, MURPHY, Circuit Judge, and ALSOP, ^* District Judge.

MURPHY, Circuit Judge.

Jimmie C. Johnson was convicted by a jury of conspiracy to distribute and possess with intent to distribute cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. He was sentenced by the district court ¹ to life imprisonment, and he raises a number of issues on his appeal. He argues that this federal prosecution is barred by double jeopardy, that the method used to make up jury panels in the District of Nebraska is unconstitutional, that several evidentiary rulings require reversal, and that the court erred in calculating his sentence. ² We affirm.

I.

Jimmie C. Johnson was arrested on federal charges on May 24, 1996 and indicted on one count of conspiracy to distribute crack. Johnson and his brother Jerry were alleged to have been central figures in a conspiracy which procured crack cocaine in Omaha for resale in Lincoln. Numerous witnesses testified at trial regarding their drug dealings with Johnson, providing evidence that Stacy Horn, Heather Roberts, Lori Howard, Penny McIntosh, Albert Lucky Williams, and others sold crack they received from him. Witnesses also provided evidence that Johnson personally cut and packaged crack cocaine for resale, that he directed the selling activities of others, and that he assisted in the collection of drug debts.

Lori Howard was one key prosecution witness. She testified that during 1995 and 1996 she sold crack for Johnson and that during 1996 he came to her house at least twice to package and sell crack. She also testified that Johnson and his brother Jerry had physically and sexually assaulted her because of a cocaine debt. She stated that Jerry Johnson found her hiding in the closet of a friend's house, hit her, and forced her into an automobile. He told her that she would have to get the money she owed his brother and forced her to have sex with him, then sodomized her with transmission fluid. He called Johnson for further directions and drove her to York, Nebraska where she was placed in Johnson's automobile and forced to perform oral sex on him. Howard said Johnson then threatened that she would be "found in a river" if she did not get the money to him by 11:00 that morning.

Lincoln Police Officer Gregory Sorensen testified about an interview he had with Johnson in April 1996 while he was investigating the reported assault on Lori Howard. After speaking with his attorney, Johnson agreed to discuss the alleged assault with Sorensen, but said he was not willing to answer questions about other potentially incriminating issues. During the interview, Sorensen told Johnson that Lori Howard said the reason she owed Johnson money was over drugs. Johnson said that was not true and that he had loaned her money to pay her rent. Sorensen asked Johnson whether he would normally give somebody five hundred dollars for rent, and Johnson responded, "what they call me in the streets is a, is a kind dope dealer."

Johnson was found guilty after a six day jury trial, and the court then held a two day sentencing hearing. Johnson raised objections to the presentence report and requested a downward departure. The court heard additional testimony related to the disputed facts. It found that Johnson was responsible for at least 500 to 1500 grams of cocaine base and then assessed a two level enhancement for possession of a deadly weapon, a four level enhancement for his role in the offense, a two level enhancement for use of a minor, and a two level enhancement for obstruction of justice. Johnson's base offense level was determined to be 43, ³ and his past criminal history was found to warrant a criminal history score of IV. He was sentenced to life imprisonment.

Prior to this federal indictment and conviction, Johnson had been convicted of a state drug offense. An April 1995 search of his residence had revealed cocaine, marijuana, and a significant amount of cash, and he was charged in the district court in Lancaster County with possession with intent to distribute a controlled substance. He ultimately negotiated a plea agreement with county attorney James Rocke. In exchange for his plea of guilty to the lesser charge of possession of a controlled substance, the state agreed not to bring additional charges related to its investigation. Johnson's plea was entered on October 12, 1995. He was sentenced to two to four years imprisonment, but released pending appeal.

Johnson and his brother Jerry were initially indicted by a federal grand jury in May 1996 for a conspiracy alleged to have run from January 1995 through at least May 23, 1996, but a superseding indictment alleged that it had begun in November 1994. After Johnson raised a double jeopardy challenge, the government dismissed the indictment and filed a new one alleging a conspiracy beginning October 13, 1995--one day after the entry of Johnson's guilty plea to the state charges. The United States Attorney's office assigned primary responsibility for prosecuting the federal case to Richard E. Rothrock, a Lancaster County attorney who had also been serving as a Special Assistant United States Attorney since September 1995.

II.

On appeal, Johnson raises constitutional, evidentiary, and sentencing issues. He argues that the federal prosecution violated his Fifth Amendment right not to be placed in double jeopardy and that the method used by the District of Nebraska for impaneling jurors violated his Sixth Amendment right to trial by a fair cross section of the community. He also asserts that it was reversible error for the district court to admit evidence of the assault on Lori Howard, to allow government witnesses to testify pursuant to cooperation agreements, and to fail to suppress his incriminating statement to officer Sorensen. Finally, he argues the court erred in calculating the amount of cocaine for which he was held responsible and in enhancing his base offense level for possessing a dangerous weapon, for his role in the offense, for use of a minor, and for obstruction of justice. He seeks dismissal of the indictment, a new trial, or resentencing.

A.

Johnson argues that his federal prosecution is barred by the double jeopardy clause because it amounted to a second state prosecution for the same conduct. The district court disagreed, and the standard of review for this issue is de novo. United States v. Brekke, 97 F.3d 1043, 1046-47 (8th Cir.1996).

The dual sovereignty doctrine provides that although a defendant may not be prosecuted twice by the same sovereign for the same acts, a subsequent prosecution by a separate sovereign does not violate the Constitution. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Basile, 109 F.3d 1304, 1306-07 (8th Cir.1997). Nevertheless, a state prosecution that is merely "a sham and a cover for a federal prosecution" such that it is in essence a second federal prosecution may violate the double jeopardy clause. Bartkus v. Illinois, 359 U.S. 121, 124, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). The scope of this exception remains somewhat unclear. Compare Basile, 109 F.3d at 1307 (noting that this court has never explicitly held that the Bartkus exception applies when a federal prosecution follows a state prosecution--the reverse of the situation in Bartkus ), with United States v. Williams, 104 F.3d 213, 216 (8th Cir.1997) (facts analyzed as if Bartkus exception were applicable to federal prosecution after a state prosecution); United States v. Garner, 32 F.3d 1305, 1310 (8th Cir.1994) (same). It is not necessary to define the exact scope of the exception here because the facts of this case do not establish that there was a sham prosecution.

Cooperation between local and federal law enforcement officers does not in itself affect the identity of the prosecuting sovereign. Bartkus, 359 U.S. at 123, 79 S.Ct. 676; United States v. Moore, 822 F.2d 35, 38 (8th Cir.1987); see also United States v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 495 (2nd Cir.1995) ("And every circuit to consider the issue has also held that the cross-designation of a state district attorney as a federal official to assist or even to conduct a federal prosecution does not by itself bring a case within the Bartkus exception to the dual sovereignty doctrine."). The critical factor is whether or not the sovereign bringing the second prosecution was acting independently. Bartkus, 359 U.S. at 124, 79 S.Ct. 676.

The state and federal prosecutions of Johnson were conducted independently by different prosecutors. The state prosecution and plea negotiations were handled by a deputy county attorney, James Rocke. Assistant United States Attorney Michael G. Heavican later assigned Richard E. Rothrock to handle the federal prosecution. Rothrock was at that time a county attorney holding a dual appointment as a Special Assistant United States Attorney beginning in September 1995. No evidence was produced to indicate that Rothrock had been involved in the state prosecution and plea agreement or that he went to work on the federal side only to prosecute Johnson. The state court plea agreement and conviction occurred one year before the federal indictment, and no federal officials were involved in it. As the Fifth Circuit has noted " 'unless a federal agent actually participates in a state court plea bargain, subsequent prosecution in federal court does not violate the defendant's constitutional rights.' " United States v....