U.S. v. Johnson, 96-6393

• Decision Date: 16 December 1997
• Docket Number: No. 96-6393,96-6393
• Citation: 130 F.3d 1420
• Parties: 98 CJ C.A.R. 410 UNITED STATES of America, Plaintiff-Appellee, v. Coyette Deon JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1420

130 F.3d 1420

98 CJ C.A.R. 410

UNITED STATES of America, Plaintiff-Appellee, v. Coyette Deon JOHNSON, Defendant-Appellant.

No. 96-6393.

United States Court of Appeals, Tenth Circuit.

Dec. 16, 1997.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, OK, for appellant.

David L. Walling, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with him on the brief, Oklahoma City, OK), for appellee.

Before TACHA, McKAY and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Coyette Johnson appeals his convictions of being a felon in possession of a firearm, being an unlawful user of controlled substances in possession of a firearm, and distribution of a controlled substance, and his concurrent sentences of 237 months' imprisonment. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm in part, reverse in part, and remand with instructions to vacate Johnson's conviction for being an unlawful user of controlled substances in possession of a firearm.

I.

Johnson was convicted of a felony in Wichita County, Texas, in 1994. In late July or early August 1995, he and his girlfriend LaKeitha Diggs moved to Temple, Oklahoma. They initially lived with Diggs' mother and her mother's other three children. During their stay at Diggs' mother's house, Johnson smoked marijuana on a daily basis. He also possessed a 9mm Intratec Tec-9 semi-automatic handgun, which he stored in a paper sack on the floor of the closet in one of the children's rooms. He talked about the handgun on a regular basis with Diggs' mother's sons and other young men who came to the house. In late August 1995, Johnson and Diggs moved into a house approximately three blocks from Diggs' mother's house. They continued to visit Diggs' mother's house on a daily basis, Johnson continued to smoke marijuana on a regular basis, and Johnson was seen regularly in possession of the handgun.

On October 18, 1995, the local drug task force arranged for Barbara Watkins, an informant, to attempt a controlled narcotics purchase from Johnson. Watkins met task force agents at Mooney Lake near Temple and the agents searched her car, placed a body microphone on her, and provided her with cash to make the purchase. Watkins, who is Caucasian, picked up Stella Sparks, who is African-American, because she believed it would increase the chances of making a narcotics purchase from Johnson, who is also an African-American. Sparks did not know Watkins was going to make a controlled purchase. Watkins and Sparks went to Diggs' mother's house where Johnson agreed to sell Watkins three rocks of cocaine for $40. After Watkins and Sparks left the house and returned to the car, Sparks took one of the rocks of cocaine and walked away. Watkins returned to Mooney Lake and turned over the remaining rocks of cocaine to the agents. A chemist at the Oklahoma State Bureau of Investigation confirmed the substance was cocaine, but he did not determine whether it was cocaine hydrochloride or cocaine base.

Later that same evening, Johnson was socializing with several other people at Diggs' mother's house when Sandra Mims arrived and informed them she had argued with Johnny Green and he pulled a knife on her. A group of nine or ten of them left the house in Mims' car to find Green. Some rode inside the car and others rode on the hood of the car. They first went to Ruby's Cafe but Green was not there. The group then proceeded, some in the car and some on foot, to Green's house. They flagged down Jimmy Franklin, and Mims' daughter Shatauna Elicks got out of the car, began swinging her arms at him, and asked Franklin if he knew who had "jumped" her mother. Johnson also got out of the car, walked to the front of Franklin's car, aimed his handgun at Franklin, and said something to the effect of "I am going to get this brother. I am going to kill this nigger." R. III at 162. Franklin heard gunshots, realized his passenger window had been shot, and ducked down in the seat and hit the accelerator pedal. When he looked up, he saw Johnson on the hood of his car, holding onto the hood with his left hand and holding his gun in his right hand. Johnson told Franklin to stop but, after briefly stopping his car, Franklin again hit the accelerator pedal and drove in an erratic fashion until Johnson fell off the hood of the car. Franklin noticed Johnson's handgun was lodged between the hood of the car and the windshield so he reached his hand out the window and grabbed the gun. He then drove downtown where he located a police officer and told her what had happened. Officers determined the gun was loaded. They examined Franklin's car and found deep scratches on the hood. Although a bullet was retrieved from the driver's seat of the car, subsequent testing determined the bullet had not been fired by Johnson's gun.

A grand jury returned a three-count indictment against Johnson, charging him in Count 1 with being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), in Count 2 with being an unlawful user of controlled substances in possession of a firearm (18 U.S.C. § 922(g)(3)), and in Count 3 with distribution of a controlled substance (21 U.S.C. § 841(a)(1)). Although the district court did not require the government to elect between Count 1 and Count 2 prior to trial, it concluded that if Johnson was convicted on both counts, it would sentence him on only one count. Johnson was convicted by jury on all three counts and was sentenced to 237 months' imprisonment. The court sentenced him on only one of the 922(g) counts, but the convictions on both counts remain in place.

II.

Denial of pretrial motions to dismiss

Johnson contends the district court erred in denying his pretrial motions to dismiss. Johnson sought dismissal of Counts 1 and 2 as multiplicitous, and dismissal of Count 2 because the charging statute was void for vagueness. Although he acknowledges he was not punished for Count 2, he argues the alleged error was prejudicial because it allowed the government to introduce evidence at trial concerning a prior felony conviction and his drug usage.

Multiplicity

Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior. United States v. Morehead, 959 F.2d 1489, 1505 (10th Cir.1992). "While multiplicity is not fatal to an indictment, ... it poses the threat of multiple sentences for the same offense and may improperly suggest to the jury that the defendant has committed more than one crime." Id. (citation omitted). The threat of multiple sentences for the same offense raises double jeopardy implications. Id. We review claims of multiplicity de novo. United States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir.1997).

Counts 1 and 2 both charged Johnson with knowingly possessing the Tec-9 handgun "[f]rom on or about July 1, 1995, up to and including on or about October 18, 1995." R. I, doc. 1. The only distinction between the counts is that Count 1 alleged Johnson had been convicted of a felony and had violated 18 U.S.C. § 922(g)(1), whereas Count 2 alleged he was an unlawful user of controlled substances and had violated 18 U.S.C. § 922(g)(3). In denying Johnson's pretrial motion to dismiss one of the counts, the district court concluded "it was not the intention of Congress to provide for the punishment of a defendant under two or more separate subdivisions of § 922(g)." Id., doc. 35 at 5. However, the court concluded the government was not required to elect between the two counts because it was possible Johnson "could be found guilty of one count without necessarily being guilty of the other." Id. The court concluded if Johnson was found guilty of both counts, judgment would be entered on only one count to avoid dual punishment. Id. (citing Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740 (1985)). Johnson was convicted on both § 922(g) counts and sentenced on one count (Count 1), but the record on appeal indicates both convictions remain in place.

Three circuits have addressed multiplicity arguments raised by defendants who, like Johnson, were simultaneously charged with multiple firearm violations under different subsections of § 922(g). In United States v. Peterson, 867 F.2d 1110 (8th Cir.1989), one codefendant was convicted of three counts of unlawful possession of firearms and ammunition by a convicted felon, in violation of § 922(g)(1), and one count of unlawful possession of firearms and ammunition by a user of controlled substances, in violation of § 922(g)(3). ¹ In rejecting the multiplicity argument, the Eighth Circuit held multiple firearm violation counts charged under different subsections of § 922(g) but arising out of the same pattern of conduct were not multiplicitous because, under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the counts each required at least one unique element of proof.

In United States v. Winchester, 916 F.2d 601 (11th Cir.1990), defendant was convicted and sentenced for violations of § 922(g)(1) (felon in possession of firearm) and (g)(2) (fugitive from justice in possession of firearm), arising out of the same conduct (i.e., possession of a single firearm). On appeal, defendant argued the counts were multiplicitous and he should not be sentenced for both. The Eleventh Circuit agreed, concluding "that, in enacting section 922(g), it was not within Congress' comprehension or intention that a person could be sentenced, for a single incident, under more than one of the subdivisions of section 922(g)." Id. at 606. Although the court acknowledged that each offense required proof of a fact the other did not, it distinguished Blockburger on two grounds. First, the court noted the defendant in Blockburger was convicted and sentenced under two different statutory sections while the defendant in Winchester was convicted under two different subsections of the same statute. ² Second, the court concluded...