U.S. v. Johnson-Dix

• Decision Date: 23 May 1995
• Docket Number: 93-3736 and 93-3818,JOHNSON-DI,93-3469,C,Nos. 93-3292,93-3524,s. 93-3292
• Parties: 42 Fed. R. Evid. Serv. 164 UNITED STATES of America, Plaintiff-Appellee, v. Deboraharlos Meyers, Darrell Walton, Carl A. Dawson, Jr., and Garrett Thompson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1295

54 F.3d 1295

42 Fed. R. Evid. Serv. 164

UNITED STATES of America, Plaintiff-Appellee, v. Deborah JOHNSON-DIX, Carlos Meyers, Darrell Walton, Carl A.

Dawson, Jr., and Garrett Thompson, Defendants-Appellants.

Nos. 93-3292, 93-3469, 93-3524, 93-3736 and 93-3818.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 2, 1994.

Decided May 23, 1995.

Barry Rand Elden, Asst. U.S. Atty., Office of the U.S. Attorney, Crim. Receiving, Appellate Div., Chicago, IL, Vicki S. Marani (argued), Dept. of Justice, Crim. Div., Washington, DC, for U.S. in Nos. 93-3292, 93-3469, 93-3736 and 93-3818.

Scott J. Frankel (argued), Robert R. Cohen, Frankel & Cohen, Chicago, IL, for Deborah Johnson-Dix.

Irwin L. Frazin, Frazin & Fisher, James Childs, Jr., Childs, Willis & Associates, Chicago, IL, for Carlos Meyers.

Barry Rand Elden, Asst. U.S. Atty., Office of the U.S. Attorney, Crim. Receiving, Appellate Div., Chicago, IL, Vicki S. Marani (argued), Dept. of Justice, Crim. Div., Washington, DC, Joseph D. Heyd, Office of the U.S. Attorney, Chicago, IL, for U.S. in No. 93-3524.

Ellen R. Domph (argued), Chicago, IL, for Darrell Walton.

Jeffrey Urdangen (argued), Chicago, IL, for Carl Dawson.

Luis M. Galvan (argued), Office of the Federal Defender Program, Chicago, IL, for Garrett Thompson.

Before CUDAHY, EASTERBROOK and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

This case is about a drug deal gone sour, leading to a shooting and then to an extortion attempt. Deborah Johnson-Dix, Carlos Meyers, Darrell Walton, and Garrett Thompson were charged with possession and with conspiracy to possess with the intent to distribute approximately one-half kilogram of cocaine. Johnson-Dix, Walton, Thompson, and Carl A. Dawson, Jr., were charged with various extortion offenses, and Johnson-Dix, Thompson, and Dawson faced additional charges related to their use of firearms in the course of the attempted extortion. Johnson-Dix pled guilty to the conspiracy and gun charges, while the remaining defendants proceeded to trial, where they were convicted by a jury on all counts. In this appeal, Dawson and Walton challenge their convictions and sentences, while the remaining defendants raise issues related only to their sentences under the Sentencing Guidelines. For the reasons that follow, we affirm on all issues.

I. BACKGROUND

The events giving rise to these convictions began simply enough in early December of 1992. Meyers and Mark Nunnally sold one-half ounce of cocaine to a woman named "Slick" in Gary, Indiana. They then returned to Gary to visit Slick and her daughters the following two days, and on the latter visit, Slick introduced Meyers and Nunnally to Walton, who is her son. Meyers, Nunnally, and Walton discussed a half-kilogram cocaine deal to be financed by Thompson, who Walton said was his partner. Before negotiating the deal with Thompson, however, Meyers checked with his cocaine source in Chicago, a man known as "Mellow D," ¹ and obtained a quote of $11,000 per half kilogram. Meyers and Nunnally then agreed to sell a half kilogram to Walton and Thompson for $12,500. The following day, Meyers and Nunnally returned to the house in Gary, and Thompson gave Meyers $12,500 in cash. Johnson-Dix was apparently the source for a portion of this money.

Meyers then went to Chicago to meet with Mellow D, leaving Nunnally behind in Gary as "insurance" because Walton and Thompson had no prior experience with these sellers. Mellow D, however, was unable to come up with a half kilogram of cocaine at the quoted price on such short notice, and Meyers could not locate an alternative source. As a result, Meyers never gave the $12,500 to Mellow D, but instead, Meyers apparently lost the money while searching for a source. When he realized the money was missing, Meyers told Nunnally over the telephone that he had given the money to Mellow D but that Mellow D had disappeared without producing any cocaine.

On December 15, Thompson, Walton, and Nunnally met Meyers in Chicago at a day care center owned by Meyers' mother and grandmother. Meyers repeated his story about giving the money to Mellow D and explained that Mellow D now was not returning his telephone calls. The group drove to Mellow D's house in Meyers' rented automobile, but no one answered the door. Walton suggested that they "take the bitch," meaning Mellow D's girlfriend (who apparently was in the house), but Nunnally convinced Walton that their complaint was with Mellow D and that his girlfriend was not involved. The group then set out for Walton's residence in Gary, but on the way, they met Johnson-Dix and Dawson outside a restaurant. From there, they proceeded to Gary. Johnson-Dix rode with Thompson and Nunnally, Meyers rode with Walton, and Dawson drove Johnson-Dix's Cadillac, which had a license plate reading "D MONEY."

Meyers and Nunnally spent the night in Gary, and in order to buy time, they decided to tell Walton and Thompson that they intended to mortgage property they owned in Mississippi to repay the $12,500. Nunnally told Thompson about the property the following day and indicated that it was necessary to travel to Mississippi to obtain a mortgage. Thompson said that Walton would have to go with them, and he later ordered Johnson-Dix to go along as well. Thompson set the following Tuesday as the deadline for repayment of the money and made it clear to Meyers and Nunnally that if the deadline was not met, he, Walton, and Johnson-Dix would "have to do what they have to do."

On the evening of December 17, 1992, Walton, Johnson-Dix, Nunnally, Meyers, Dawson, and Larry Powell ² gathered at Walton's residence in Gary. As the group was standing beside the white Buick Meyers had rented for the trip, Walton became angry about something, pulled a .45 caliber semi-automatic weapon from his belt, pointed it at the Buick's tires, and threatened to shoot. Johnson-Dix eventually calmed Walton, and sometime after midnight, the group (minus Dawson) set out for Mississippi. ³ They arrived in Jackson, Mississippi at about noon on December 18, and Meyers rented two motel rooms under a fictitious name. Meyers, Nunnally, and Powell stayed in one room, and Johnson-Dix and Walton shared the other. Johnson-Dix kept a Tec-9 semi-automatic weapon on her bed, and Walton still had his .45 caliber semi-automatic weapon.

The group stayed in Jackson for two days, during which Meyers attempted to obtain money while the others visited Walton's relatives in Greenwood, Mississippi. Telephone records indicated that Thompson made numerous calls to the motel on December 19 and 20, and Dawson also called the motel on December 19. Thompson eventually became convinced that Meyers and Nunnally were conning him, and he and Walton thus told Johnson-Dix to kill Nunnally in order to frighten Meyers. The original orders were that Nunnally should be murdered in Mississippi, but Thompson and Walton abandoned that plan when they realized that the numerous telephone calls between Gary and Jackson would implicate them. Their substitute plan was to have Johnson-Dix kill Nunnally during the return trip to Chicago.

On Sunday December 20, the group checked out of the motel and headed to Greenwood, where they again stopped at the home of Walton's grandmother. Walton called Thompson one last time, and Thompson emphasized to Meyers that he needed his money back by Tuesday "or else."

Powell drove most of the way back to Chicago; Meyers was in the passenger seat, while Johnson-Dix, Nunnally, and Walton were in back. When Walton was sleeping, Johnson-Dix disclosed to Nunnally that she had been ordered to kill him, but she told Nunnally she would not do it because Nunnally had once been a fellow El Rukn gang member. Johnson-Dix explained her plan and indicated that when she told Nunnally to get out of the car, he should not hesitate, or Walton might shoot him.

At approximately 4:00 a.m. on December 21, Powell was dropped off at his home in Riverdale, Illinois, and Walton began driving the Buick. He drove to a dark road near an industrial area in Dalton, Illinois, where Johnson-Dix said she needed to get something out of the trunk. When Walton stopped the car, Johnson-Dix pointed to the door, indicating that Nunnally should get out. By the time Nunnally had walked to the rear of the car, Johnson-Dix had the trunk open and had pulled out the Tec 9. She told Nunnally to run, but before he got very far, Johnson-Dix shot him in the left calf, fracturing his fibula. Nunnally fell to the ground as Johnson-Dix fired a number of additional shots. She then pulled a second gun from the trunk, cocked it, and began walking toward Nunnally. She then turned abruptly, jumped into the Buick, and drove off with Walton and Meyers. When the Buick was out of sight, Nunnally pulled himself up and began running to a nearby factory. There, he saw the Buick pass slowly by the spot where he had been shot. A factory security guard eventually called an ambulance for Nunnally, and he was transported to a nearby hospital, where he spent just over two days receiving treatment on his leg.

At approximately 7:30 a.m. on December 21, Patricia Meyers received a collect telephone call from her son Carlos. He asked for a $12,500 loan to repay money that his friend Mellow D had taken from some other people. Carlos would not identify the people who were owed the money, but told his mother that he was their only connection to Mellow D. As a result, the others were holding him until the debt was paid. Patricia asked to speak with one of them, and Thompson came on the line. Thompson told Patricia that he had no intention of harming Carlos but that he needed to get his money back. He said he would call Patricia back at 3:00 that afternoon.

Patricia then called a number of friends and family members, one of whom involved the FBI and the Drug Enforcement Administration ("DEA"). FBI agents arrived at Patricia's apartment shortly thereafter and prepared to record...