U.S. v. Johnson

• Decision Date: 05 February 2007
• Docket Number: No. 05-3660.,05-3660.
• Citation: U.S. v. Johnson, 474 F.3d 1044 (8th Cir. 2007)
• Parties: UNITED STATES of America, Appellant, v. Robert Stanford JOHNSON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

474 F.3d 1044

UNITED STATES of America, Appellant, v.Robert Stanford JOHNSON, Appellee.

No. 05-3660.

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2006.

Filed: February 5, 2007.

Clifford D. Wendel, Asst. U.S. Attorney, Andrew H. Kahl, U.S. Attorney's Office, argued, Des Moines, IA, for Appellant.

Robert Stanford Johnson, Des Moines, IA, pro se.

James M. Fox, argued, Boston, MA, for Appellee.

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.

RILEY, Circuit Judge.

A jury found Robert Stanford Johnson(Johnson) guilty of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).The district court granted Johnson's post-trial motion for judgment of acquittal with respect to the two firearm counts, and conditionally granted a new trial on the same counts in the event the judgment of acquittal was vacated or reversed on appeal.The government appeals.We reverse the district court's judgment of acquittal and conditional grant of a new trial, and remand with instructions to reinstate the jury's verdict on both firearm counts.

I.BACKGROUND

On October 21, 2004, officers of the Des Moines (Iowa) Police Department executed a search warrant at a Des Moines residence, located at 1826 Ninth Street.This residence served as a drug distribution center, in other words, a crack house.Upon executing the search warrant, officers found Johnson in the residence's northeast bedroom asleep on a bed next to an infant.On top of a dresser located next to Johnson, and within his reach, was a shoebox with a torn lid covering half of the box.Inside the shoebox was a loaded Taurus .38 caliber handgun, covered by tissue paper.A search of the bedroom closet revealed several small empty Ziploc plastic baggies and Johnson's state identification card.Officers also found a cable bill for the residence registered in Johnson's name.A search of Johnson's pants' pockets yielded approximately five grams of cocaine base and over $1,500 in cash.¹

A grand jury indicted Johnson on four counts: (1) conspiracy to distribute cocaine base, (2) possession with intent to distribute cocaine base, (3) possession of a firearm in furtherance of a drug trafficking offense, and (4) being a felon in possession of a firearm.The government dismissed the conspiracy charge, and the case proceeded to trial on the remaining three counts.

Desseray Wright(Wright), Johnson's girlfriend and co-defendant, lived at the residence and was present during the search on October 21, 2004.Pursuant to a plea agreement, Wright pled guilty to conspiracy to distribute cocaine base and possession of a firearm in relation to drug trafficking.At trial, Wright testified Johnson was a frequent visitor, who did not live at the residence but stayed there "on and off."Wright verified Johnson shared the northeast bedroom with her when he stayed at the residence, and Johnson's family members dropped by the house on a daily basis.According to Wright, although her name was on the residence's lease and the household utilities, Michael Montgomery(Montgomery), Wright's co-conspirator, actually paid the residence's rent.Wright testified, notwithstanding Johnson's name on the cable bill, Johnson never paid this bill before being "locked up."Wright further testified Johnson did not participate in any crack distribution activities with Wright or Montgomery.

During the October 2004 search, officers also located two other firearms in the residence: the first under a couch in the living room and the second inside a purse in a dresser located in the bedroom where Johnson was sleeping.Wright testified Montgomery brought both of these firearms into the residence.According to Wright, she saw Montgomery with one of the firearms two days before the search and told Johnson about it, causing Johnson to become upset that Wright allowed someone to bring a firearm into the house.Wright never observed Johnson in possession of any of the three firearms.Wright also testified the shoebox itself, containing the Taurus .38 caliber handgun, belonged to her and was usually stored in the bedroom closet.In her testimony, Wright denied owning the Taurus .38 caliber handgun or knowing anything about it.Wright neither placed the handgun in the shoebox nor knew who moved the shoebox to the dresser.Wright also denied seeing the shoebox on the dresser or removing a portion of the lid.Wright further testified that on the day of the search (1) Johnson was alone, sleeping most of the day in the northeast bedroom; and (2) Wright was the only one to enter the bedroom, and did so when she placed her infant sister in the bed with Johnson.

In support of his case, Johnson presented the testimony of his younger brother, Nolan Allen(Allen), who testified the Taurus .38 caliber handgun found in the shoebox belonged to Allen.Allen stated he put the gun in the shoebox in his "brother's room," and placed the shoebox on the floor beside the bed before Johnson arrived at the residence.Allen also verified the residence's northeast bedroom was Johnson's, and stated Johnson kept a few items in the bedroom.

Johnson also testified in his defense.Johnson stated that at the time of the search in October 2004, Johnson rented and stayed at his own residence at 1614 Arlington Avenue in Des Moines, the same address listed on Johnson's state identification card.Johnson visited Wright at least once a day and stayed the night once or twice each week, sleeping in Wright's northeast bedroom.Johnson testified that when Wright told him Montgomery brought a gun into the residence, Johnson told Wright to make Montgomery get rid of the gun, because Johnson was a felon and "can't be around weapons."On October 21, 2004, Johnson arrived at Wright's residence around 3:00 p.m.Before going to Wright's bedroom to rest, Johnson observed at least eleven people in Wright's residence, including Wright and Montgomery.

The jury convicted Johnson on all three counts.Following trial, Johnson renewed his motion for judgment of acquittal and alternative motion for a new trial.The district court denied the motion as to the possession with intent to distribute count, but granted the motion as to the two firearm counts.Alternatively, the district court ruled the guilty verdicts on the firearm counts were contrary to the weight of the evidence and a "miscarriage of justice may have occurred."Thus, the district court conditionally granted Johnson's motion for a new trial on the firearm counts in the event this court vacated or reversed the district court's judgment of acquittal.

The government appeals, arguing the district court erred in granting Johnson's motion for judgment of acquittal, and in conditionally granting Johnson a new trial on the firearm counts.

II.DISCUSSION

A.Judgment of Acquittal

Under Federal Rule of Criminal Procedure 29, a district court shall enter a judgment of acquittal if the evidence presented at trial is insufficient to sustain a conviction.A district court must consider a motion for judgment of acquittal with "very limited latitude" and must neither assess the witnesses' credibility nor weigh the evidence.United States v. Thompson,285 F.3d 731, 733(8th Cir.2002)(quotation omitted).Rather, the district court must view the evidence in the light most favorable to the government, resolving evidentiary conflicts in the government's favor and accepting all reasonable inferences drawn from the evidence supporting the jury's verdict.Id."The jury's verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt."Id.In reviewing a judgment of acquittal, we apply the same standard as the district court.Id.

To convict Johnson under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm, the government was required to prove beyond a reasonable doubt (1) Johnson previously had been convicted of a crime punishable by a term of imprisonment exceeding one year, (2) Johnson knowingly possessed a firearm, and (3) the firearm had been in or had affected interstate commerce.SeeUnited States v. Maxwell,363 F.3d 815, 818(8th Cir.2004), cert. denied,543 U.S. 1154, 125 S.Ct. 1293, 161 L.Ed.2d 119(2005).The parties stipulated to the first and third elements, thereby making the critical issue whether Johnson knowingly possessed the Taurus .38 caliber handgun found in the bedroom in which Johnson was sleeping.The government could prove this element with evidence showing Johnson had actual or constructive possession of the firearm.United States v. Walker,393 F.3d 842, 846-47(8th Cir.), cert. denied,___ U.S. ___, 126 S.Ct. 463, 163 L.Ed.2d 352(2005)."Constructive possession of the firearm is established if the person has dominion over the premises where the firearm is located, or control, ownership, or dominion over the firearm itself."United States v. Claybourne,415 F.3d 790, 795-96(8th Cir.2005)(quotation omitted).Possession need not be exclusive, but instead may be joint.Ortega v. United States,270 F.3d 540, 545(8th Cir.2001).

In granting Johnson's motion for judgment of acquittal, the district court determined "the evidence was inadequate to permit a reasonable jury to find beyond a reasonable doubt that [Johnson] was guilty," relying, in part, on this court's opinion in United States v. Cruz,285 F.3d 692(8th Cir.2002).Such reliance, however, is misplaced.Cruz addressed whether sufficient evidence supported two defendants' convictions for possession of methamphetamine with intent to distribute.Id. at 697.Recognizing a defendant's mere physical proximity to contraband is insufficient, by itself, to prove constructive possession, we...