U.S. v. Johnson

• Decision Date: 03 January 1994
• Docket Number: No. 93-1532,93-1532
• Citation: 12 F.3d 827
• Parties: UNITED STATES of America, Appellee, v. John E. JOHNSON, also known as James A. Good, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 827

12 F.3d 827

UNITED STATES of America, Appellee, v. John E. JOHNSON, also known as James A. Good, Appellant.

No. 93-1532.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 15, 1993.

Decided Jan. 3, 1994.

John R. Cullom, Kansas City, MO, argued, for appellant.

E. Eugene Harrison, Kansas City, MO, argued, for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

I.

State authorities in September 1990, acting upon evidence developed by Mark Warren of the Jackson County (Missouri) Drug Task Force, executed a search warrant at a residence located on Jackson Avenue in Grandview, Missouri. The house contained firearms and large quantities of drugs, drug-related materials, and cash. John E. Johnson was found flushing crack cocaine and methamphetamine down a toilet. Based on the evidence found in the house, Johnson was charged in state court with drug trafficking. He failed to appear to answer the charges, and the state issued a warrant for his arrest.

More than one year later, Warren made several undercover narcotics purchases from Charles Dorrell. Based on evidence developed through these operations, state law enforcement authorities in April 1992 located Johnson in a residence on Northeast Afton Road in Kansas City, Missouri. Johnson again was arrested, this time as he washed cocaine down the kitchen drain. As before, the house in which he was arrested contained a firearm and large quantities of drugs, drug-related materials, and cash.

Johnson subsequently was indicted by a federal grand jury and then tried in federal court pursuant to a seven-count superseding information that charged various federal narcotics and firearms violations. The jury convicted Johnson on all six counts in which he was named, and he was sentenced to 424 months of imprisonment. On appeal, Johnson argues that (1) the District Court ¹ improperly applied a statutory provision that enhanced his weapons sentences, (2) the government's evidence was insufficient on various counts, (3) the District Court improperly denied his motions for a new trial and a hearing based on newly discovered evidence, (4) all of the government's evidence should have been suppressed, and (5) the District Court prejudiced his case by making improper remarks to the jury. We conclude that none of Johnson's arguments has merit, and we affirm his convictions and sentence.

II.

A.

We begin with Johnson's attack upon his enhanced sentences on the firearms charges. Counts IV and VII of the information each charged Johnson with use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1) (Supp. IV 1992), which mandates a five-year term of imprisonment for the first violation and a twenty-year term of imprisonment "[i]n the case of [a] second or subsequent conviction under this subsection." Section 924(c)(1) further provides that "the term of imprisonment imposed under this subsection [shall not] run concurrently with any other term of imprisonment." Id.

In accordance with Sec. 924(c)(1) and United States v. Foote, 898 F.2d 659, 668 (8th Cir.), cert. denied, 498 U.S. 838, 938, 111 S.Ct. 112, 112 L.Ed.2d 81 (1990), the District Court sentenced Johnson to a five-year term of imprisonment for Count IV, which related to a .44-magnum revolver found at the Afton Road residence, and a twenty-year term of imprisonment for Count VII, which related to a .38-caliber Derringer and a .357-magnum revolver found at the Jackson Avenue address, the sentences to run consecutively to each other and to Johnson's other sentences.

In briefing this appeal, Johnson argued that the sentence enhancement for a "second or subsequent conviction" applies only when the conduct underlying the second conviction took place after the judgment of conviction for the first, and he urged us to reconsider Foote and hold that the second, enhanced firearms sentence cannot apply to a defendant if both firearms convictions resulted from different counts of the same indictment and the defendant had no previous Sec. 924(c) violations. He conceded during oral argument, however, that the case on which he relied to support this argument, United States v. Abreu, 962 F.2d 1447, 1453 (10th Cir.1992) (en banc), cert. granted, judgment vacated, and case remanded, --- U.S. ----, 113 S.Ct. 2405, 124 L.Ed.2d 630 (1993), is no longer valid law in light of Deal v. United States, 508 U.S. ----, ----, 113 S.Ct. 1993, 1996, 124 L.Ed.2d 44 (1993). Because the Supreme Court in Deal addressed the precise issue Johnson raises here, and reached the same conclusion regarding the correct interpretation of Sec. 924(c)(1) as did this Circuit in Foote, Johnson's first argument is foreclosed.

B.

Arguing that the evidence is insufficient to permit a jury to find him guilty on various counts, Johnson claims that the District Court erred by denying his motions for a judgment of acquittal. We view the evidence in the light most favorable to the government, drawing from the facts all reasonable inferences that support the government's position. United States v. Horne, 4 F.3d 579, 587 (8th Cir.1993). The government's evidence need not be inconsistent with every reasonable hypothesis of innocence, United States v. Newton, 756 F.2d 53, 54 (8th Cir.1985), and if it rationally supports the jury verdict, we cannot disturb the conviction, United States v. Nelson, 984 F.2d 894, 899 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2945, 124 L.Ed.2d 693 (1993). Instead, we will reverse only if no reasonable jury could have concluded beyond a reasonable doubt that Johnson was guilty of the charged offense. See United States v. Young-Bey, 893 F.2d 178, 181 (8th Cir.1990).

1.

Johnson argues that the government's evidence was insufficient to allow the jury to find that he conspired to possess with intent to distribute and to distribute cocaine and methamphetamine, as charged in Count I. To demonstrate a conspiracy, the government must show an agreement among two or more persons to commit an illegal act. United States v. Schmidt, 922 F.2d 1365, 1369 (8th Cir.1991). The government need only show that those involved operated pursuant to a common scheme or had a tacit understanding, rather than a formal agreement. United States v. Hoelscher, 914 F.2d 1527, 1534 (8th Cir.1990), cert. denied, 498 U.S. 1090, 111 S.Ct. 971, 112 L.Ed.2d 1057 and --- U.S. ----, 111 S.Ct. 2240, 114 L.Ed.2d 482 (1991). Because the details of a conspiracy often are shrouded in secrecy, circumstantial evidence and inferences from the parties' actions may be used to establish the conspiracy's existence. United States v. Sparks, 949 F.2d 1023, 1027 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1987, 118 L.Ed.2d 584 (1992). Finally, evidence of the parties' association, although not in itself enough to establish a conspiracy, is a relevant factor. United States v. Ivey, 915 F.2d 380, 384 (8th Cir.1990).

Based on our review of the record, we are satisfied the evidence is sufficient to sustain Johnson's conviction on the conspiracy count. The jury reasonably could have concluded that Johnson lived in and was engaged in drug trafficking from both the Jackson Avenue and Afton Road residences, and that Johnson conspired with Dorrell and Christina Ealey to possess with intent to distribute and to distribute cocaine and methamphetamine.

At the Jackson Avenue residence, the authorities found Johnson, who was flushing drugs down the toilet, and Ealey, a fifteen-year-old female. No other persons were found in the house. The evidence found there makes it unlikely that Johnson and Ealey merely were housesitting: the house contained crack cocaine, methamphetamine, drug processing and packaging materials, an assortment of drug notes, electronic and triple-beam balance scales, video surveillance equipment that displayed a live image of the area in front of the residence, and a scanner programmed to receive frequencies used by law enforcement agencies. The authorities also found in the house firearms, bullets, over $15,000 in currency, and a piece of mail that was addressed to Johnson at the Jackson Avenue address.

Furthermore, the circumstances in which Johnson was found show his control of the premises: he was talking on the telephone in the kitchen (where the various tools of his trade were found); he could observe on his video surveillance monitor that a police vehicle had pulled up in front of his house; and he dropped the phone, grabbed an armload of drugs, ran into the bathroom, and started flushing the drugs down the toilet.

As to the residence on Afton Road, first, there was evidence that Ealey was living there. In February 1992, Ealey was observed returning to the residence after selling narcotics to Dorrell (who in turn delivered them to Warren), and upon her return she checked the mail before entering. Some of the currency given to Ealey by Dorrell (which he had received from Warren) at this purchase was among that found in April at the residence, as was currency from most of Warren's other purchases from Dorrell. Evidence that Ealey lived at the Afton Road residence was probative of Johnson's also residing there because the government's evidence demonstrated a clear link between Johnson and Ealey: Johnson and Ealey, and only those two persons, were found at the Jackson Avenue residence; both used the same Blue Springs, Missouri, address on their identification and other papers; and Johnson and Ealey (and a baby), and no one else, were found at the Afton Road address.

Other evidence also supports the conclusion that Johnson was living in the Afton Road residence. The circumstances at the two houses were quite similar: at the Afton Road house the authorities found large quantities of methamphetamine and cocaine, drug processing and packaging materials, electronic and triple-beam balance scales, a scanner set to frequencies used by law enforcement...