U.S. v. Johnson, 05-1745.

• Decision Date: 15 June 2006
• Docket Number: No. 05-1745.,No. 05-2975.,No. 05-2056.,No. 05-2092.,05-1745.,05-2056.,05-2092.,05-2975.
• Citation: 450 F.3d 366
• Parties: UNITED STATES of America, Appellee, v. Reginald Dinez JOHNSON, also known as Cedric Miller, Appellant. United States of America, Appellee, v. Patricia Alexander-Butler, also known as Patricia Washington, Appellant. United States of America, Appellee, v. Carl Alexander, Appellant. United States of America, Appellee, v. Terry Brown, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

450 F.3d 366

UNITED STATES of America, Appellee, v. Reginald Dinez JOHNSON, also known as Cedric Miller, Appellant.

United States of America, Appellee, v. Patricia Alexander-Butler, also known as Patricia Washington, Appellant.

United States of America, Appellee, v. Carl Alexander, Appellant.

United States of America, Appellee, v. Terry Brown, Appellant.

No. 05-1745.

No. 05-2056.

No. 05-2092.

No. 05-2975.

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2006.

Filed: June 15, 2006.

COPYRIGHT MATERIAL OMITTED

Vanessa C. Antoniou, argued, St. Louis, MO, for appellant Johnson.

David A. Silverman, argued, Providence, RI, for Alexander-Butler.

Steven V. Stenger, argued, St. Louis, MO, for Alexander.

JoAnn Trog, argued, St. Louis, MO, for Brown.

Edward J. Rogers, argued, Asst. U.S. Attorney, St. Louis, MO, for appellee.

Before WOLLMAN, FAGG, and ARNOLD, Circuit Judges.

WOLLMAN, Circuit Judge.

This appeal follows the convictions of Reginald Dinez Johnson, Patricia Alexander-Butler, Carl Alexander, and Terry Brown. Johnson, Alexander, and Brown were convicted of conspiracy to possess with intent to distribute cocaine and phencyclidine (PCP) in violation of 21 U.S.C. §§ 841(a)(1) and 846. Alexander and Alexander-Butler were convicted of conspiracy to commit wire fraud in violation of 18 U.S.C. § 371. Alexander was also convicted of engaging in monetary transactions in property derived from unlawful activity in violation of 18 U.S.C. § 1957(a).

The appellants raise overlapping issues. Johnson argues that the district court¹ erred in admitting certain physical evidence and testimony. Alexander and Brown argue that the evidence is insufficient to support their drug conspiracy convictions, that a new trial is warranted based on newly discovered evidence, and that their sentences violate their constitutional rights under the Sixth and Eighth Amendments. Alexander-Butler and Alexander argue that the evidence is insufficient to support their convictions. We affirm.

I. DRUG CONSPIRACY

We state the facts in the light most favorable to the jury verdict. United States v. Selwyn, 398 F.3d 1064, 1065 (8th Cir.2005). In the 1990s, Edward Quentin Anderson sold drugs in the St. Louis area. Around 1996, Anderson began buying cocaine from Lester Diggs. When a cocaine drought hit St. Louis and prices skyrocketed, Anderson and Diggs decided to buy drugs directly from suppliers in California. At first, they bought marijuana and later, cocaine and PCP.

In the beginning of this cross-country relationship, Diggs and Anderson tried different methods of transporting the drugs from California to St. Louis. Eventually, they purchased a truck with two gas tanks, one of which was outfitted with a false tank. Diggs and Anderson hired a white driver and followed him in a second vehicle. This chase vehicle served two purposes: it accompanied the vehicle that contained money on the way to California and drugs on the return trip to St. Louis, and it served as a decoy for law enforcement. Anderson testified that he did not trust the couriers with the large quantities of drugs or sums of money and that it was more likely that the police would stop the three or four black men in the chase vehicle than the white driver.

Over the course of the next seven or eight years, Anderson purchased several different vehicles with false tanks or hidden compartments and hired various white men to transport the drugs. Anderson, Brown, Diggs, Johnson, and others drove the chase vehicle, usually a van with tinted windows. Anderson testified that the group made numerous trips to California and a few trips to Texas to purchase drugs and transport them back to St. Louis.

On at least two occasions, Alexander traveled with his codefendants to purchase drugs. In 1996 or 1997, Alexander, Anderson, and Erica Bass flew to Los Angeles to purchase cocaine. Although most of the purchase money was concealed in the transport truck's false tank, Alexander carried $10,000 on the plane. After arriving in California, the group purchased cocaine. Alexander purchased half of a kilogram using his $10,000. A hired driver transported the cocaine, including Alexander's portion, to St. Louis. On another trip, Anderson, Johnson, Alexander, Diggs, and a few others flew to Houston to buy cocaine. Although the group was unable to purchase the drugs from the intended source, Alexander found a different source and purchased half of a kilogram of cocaine. He returned to their shared hotel room, packaged the cocaine, and returned to St. Louis on a commercial flight, carrying the drugs with him.

The conspiracy experienced general success until a Kansas deputy sheriff stopped Jason Miller, a drug courier, for speeding. Miller gave consent to search the vehicle, and the deputy found six kilograms of cocaine. Miller advised the deputy that he was en route to deliver the drugs. The deputy then contacted the FBI, which arranged a controlled delivery of the cocaine to take place in a parking lot at the De-Paul Health Center in St. Louis. On December 11, 2001, Anderson, Johnson, and two other men were arrested at the scene and taken to the Jennings Municipal Jail. At the time of the arrest, Johnson identified himself as Cedric Miller.

Johnson was searched either at the scene or at the Jennings Municipal Jail, and the items found on his person were placed in a plastic bag. FBI Agent Henry Vera testified that the bag contained the following items: an Illinois identification card bearing a picture of Johnson and the name of Cedric Miller, a cellular telephone, a pager, and loose slips of paper containing incriminating information. The FBI transferred the bag containing Johnson's personal property to the Jennings Police Department. After booking Johnson, the police returned the bag to the FBI. Agent Vera testified that he participated in the investigation of Johnson's personal property on December 11 or 12, 2001, and that the accompanying report was transcribed on December 16, 2001.

Following the arrests at the hospital, the group did not sell cocaine for several months. Because they experienced several financial losses, the group decided to sell PCP, which could be purchased at a price less than cocaine and sold for a similar profit. They bought the drugs in California and used the same method of transporting PCP as they had cocaine.

In February 2004, a Kansas trooper stopped one of their PCP couriers and found $28,000 in a secret compartment. The driver told the trooper that three men, including Diggs, were following him in the chase vehicle. When the chase vehicle was stopped and its occupants arrested, Diggs provided an Illinois identification card in the name of Stephen Boyd.

On August 19, 2004, Johnson, Alexander, Brown, Anderson, Diggs, Bass, and ten others were charged in a superseding indictment for their role in the drug conspiracy. Only Johnson, Alexander, and Brown proceeded to trial on Count I, conspiracy to possess with intent to distribute cocaine and PCP.

A. Reginald Dinez Johnson

At trial, the government offered into evidence the identification card in the name of Cedric Miller, the loose pieces of paper, the cellular phone, and the pager. The district court admitted these items as having been lawfully obtained during a search and inventory incident to a lawful arrest. Johnson does not contest the lawfulness of his arrest, but argues that the warrantless search of his personal property violated his Fourth Amendment rights. We disagree.

We review the denial of a motion to suppress de novo. United States v. Adams, 401 F.3d 886, 893 (8th Cir.2005). "`[We] review the underlying factual determinations for clear error, giving due weight to the inferences of the district court and law enforcement officials.'" Id. (quoting United States v. Coleman, 349 F.3d 1077, 1083 (8th Cir.2003)).

Had the FBI retained Johnson's personal property throughout its investigation or had the report been transcribed on the date of investigation, there is little question that the evidence in question would have been admissible. The Supreme Court has noted that:

[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant's name in the "property room" of the jail, and at a later time searched and taken for use at the subsequent criminal trial.

United States v. Edwards, 415 U.S. 800, 807, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). As stated above, Johnson's property was seized by the FBI, turned over to local authorities, returned to the FBI, and then searched. Although Johnson relies heavily on the date of transcription, December 16, Agent Vera testified that he investigated the items on December 11 or 12, 2001, after receiving them from the local authorities. Although a period of time elapsed between the arrest and the subsequent search of Johnson's property, we conclude that the search was reasonable under the Fourth Amendment. See United States v. Lester, 647 F.2d 869, 874-75 (8th Cir.1981) (holding that the local authority's seizure of items shortly after the defendant was arrested and the FBI's search of those items the following day was reasonable under the Fourth Amendment). See also United States v. Phillips, 607 F.2d 808, 809-10 (8th Cir.1979) (holding that a delayed search was reasonable); United States v. Swofford, 529 F.2d 119, 122-23 (8th Cir.1976) (same).

Johnson further argues that the district court erred in admitting FBI Agent George Roberts's testimony regarding the issuance date of the...