U.S. v. Johnson

• Citation: 54 F.3d 1150
• Decision Date: 27 April 1995
• Docket Number: Nos. 92-5672,92-5673,s. 92-5672
• Parties: 41 Fed. R. Evid. Serv. 924 UNITED STATES of America, Plaintiff-Appellee, v. Roland Markeith JOHNSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven Lamont LEWIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1150

54 F.3d 1150

41 Fed. R. Evid. Serv. 924

UNITED STATES of America, Plaintiff-Appellee, v. Roland Markeith JOHNSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Steven Lamont LEWIS, Defendant-Appellant.

Nos. 92-5672, 92-5673.

United States Court of Appeals, Fourth Circuit.

Argued April 15, 1994.

Decided April 27, 1995.

ARGUED: Francis M. Lawrence, St. John, Bowling & Lawrence, Charlottesville, VA, for appellant Johnson; David Leonard Heilberg, Charlottesville, VA, for appellant Lewis. Donald Ray Wolthuis, Asst. U.S. Atty., Roanoke, VA, for appellee. ON BRIEF: Robert P. Crouch, Jr., U.S. Atty., Roanoke, VA, for appellee.

Before LUTTIG and WILLIAMS, Circuit Judges, and PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge WILLIAMS wrote the opinion, in which Judge LUTTIG concurred. Judge PAYNE wrote a separate concurring opinion.

OPINION

WILLIAMS, Circuit Judge:

Roland Markeith Johnson and Steven Lamont Lewis appeal their convictions and sentences for participation in a drug conspiracy, in violation of 21 U.S.C. Sec. 846 (1988) (Count One), and engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. Sec. 848 (1988) (Count Two). ¹ Appellants appeal their convictions contending, inter alia, that: (1) there was insufficient evidence to support the jury's finding of either a single conspiracy or a CCE; (2) there was insufficient evidence regarding the quantity of drugs for which they were held accountable; (3) the district court erred in admitting into evidence what Appellants characterize as summary testimony and a chart summarizing the testimony of Appellants' co-conspirators; (4) they cannot be convicted of both a Sec. 846 conspiracy and a Sec. 848 CCE because the former offense is a lesser-included offense of the latter; and (5) the district court made a number of miscellaneous errors. We affirm the district court's judgment on all issues except the conspiracy convictions, which we remand with instructions to vacate.

I.

An investigation conducted by the Charlottesville/Albemarle (Virginia) Joint Drug Task Force revealed an extensive cocaine base (crack) distribution network in the central Virginia area. On April 30, 1991, the grand jury returned a four-count indictment against eighteen individuals, including Appellants, charging them with participation in a conspiracy to possess with intent to distribute and to distribute crack from the summer of 1988 until March 1991. In addition, Steven Lewis (Lewis), Roland Johnson (Roland), and Kent Murray Johnson (Kent) were charged with maintaining a CCE.

The evidence at trial included the testimony of over twenty-five coconspirators and participants, as well as several detectives, and, considered in the light most favorable to the Government, United States v. Banks, 10 F.3d 1044, 1046 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1850, 128 L.Ed.2d 475, and --- U.S. ----, 114 S.Ct. 2681, 129 L.Ed.2d 814 (1994), established the following. There were three primary sources or suppliers of the crack: (1) an unidentified source in Washington, D.C.; (2) an individual referred to as "Poncho," from Washington, D.C.; and (3) an individual known as "Caesar," who resided in New York. The crack was supplied to four individuals--the two Appellants, Kent, and Ivo Pufong--who also supplied crack to each other on occasion. ² These individuals served as principals or leaders in the conspiracy, and they directed the distribution of crack in the central Virginia area targeted in this investigation. These principals enlisted a number of "lieutenants" who supplied and distributed the crack to street dealers and collected money.

The two and one-half week trial included thirty-seven witnesses for the Government and eight witnesses for Appellants. The jury found Appellants guilty on all counts. Lewis was sentenced to life imprisonment, consisting of 240 months on Count One, the remainder of his life on Count Two, and a concurrent 60 months on Count Three.

Roland was also sentenced to life imprisonment, consisting of ten years on Count One and the remainder of his life on Count Two. Appellants' timely appeals were consolidated by order of this court on October 16, 1992.

II.

First, Appellants contend that the evidence was insufficient to sustain the jury's finding of either a single conspiracy or a CCE. They also challenge the sufficiency of the evidence to support the quantity of drugs for which each was held accountable. When reviewing a sufficiency of the evidence challenge, we inquire whether "any rational trier of fact could have found the essential elements of the crime [charged] beyond a reasonable doubt," Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original), and we "construe the evidence in the light most favorable to the government, assuming its credibility, drawing all favorable inferences from it, and taking into account all the evidence, however adduced." United States v. Giunta, 925 F.2d 758, 764 (4th Cir.1991).

A.

Initially, we must determine whether there was sufficient evidence to support the jury's finding that Steven and Roland were participants in a single conspiracy. Appellants contend that there was no direct link between the alleged ringleaders and, if anything, the evidence established multiple conspiracies, including theirs, operating in competition with each other. We find that there was sufficient evidence to support the jury's finding of a single conspiracy.

"In order to support a conviction for conspiracy, the government must show, first, that a conspiracy existed; then, that the defendant had knowledge of the conspiracy; and finally, that the defendant voluntarily became a part of the conspiracy." United States v. Bell, 954 F.2d 232, 236 (4th Cir.1992). Circumstantial evidence may be used to prove the existence of a conspiracy. Id. at 236. Moreover, a defendant can be convicted of conspiracy if the evidence shows a defendant's participation in only one level of the conspiracy charged in the indictment. See United States v. Hines, 717 F.2d 1481, 1490 (4th Cir.1983), cert. denied, 467 U.S. 1214, 104 S.Ct. 2656, 81 L.Ed.2d 363, and 467 U.S. 1219, 104 S.Ct. 2668, 81 L.Ed.2d 373 (1984). In United States v. Crockett, 813 F.2d 1310, 1316-17 (4th Cir.), cert. denied, 484 U.S. 834, 108 S.Ct. 112, 98 L.Ed.2d 71, this court noted the distinction between a single conspiracy, with different parties joining and leaving at different times, and multiple conspiracies. A single conspiracy exists when "[t]he conspiracy had the same objective, it had the same goal, the same nature, the same geographic spread, the same results, and the same product." Id. at 1317.

In this case, all of the defendants named in the indictment participated in some level of the conspiracy. Although some of the participants may have bought drugs from other sources at various times, there is an abundance of evidence establishing a single, ongoing conspiracy between Appellants, Kent, Pufong, and others to distribute crack. The evidence established that Appellants shared some of the same supply sources. For example, Kent was a common link between Roland and Lewis, as demonstrated by Kent's testimony that he supplied crack to both Appellants and they reciprocally supplied crack to him. In addition, "Poncho" supplied both Lewis and Kent, while Pufong supplied both Roland and Kent. Moreover, there is an abundance of evidence that the four principals shared many dealers. For instance, Tori Dade testified that he sold crack for Lewis, Roland, and Kent; Adrian Owens testified that he was supplied by Lewis and Kent; and John Allen testified that he received crack from Lewis and indirectly from Roland through a third party.

Appellants also assert that the four principals either did not know or had minimal contact with each other. They argue that there was no defined organizational structure, mutual dependence, or simultaneous overlap of participants. However, as this court recently stated:

[O]ne may be a member of a conspiracy without knowing its full scope, or all its members, and without taking part in the full range of its activities or over the whole period of its existence. Critically, it is not necessary to proof of a conspiracy that it have a discrete, identifiable organizational structure; the requisite agreement to act in concert need not result in any such formal structure, indeed frequently, in contemporary drug conspiracies, contemplates and results in only a loosely-knit association of members linked only by their mutual interest in sustaining the overall enterprise....

Banks, 10 F.3d at 1054. Given the aforementioned evidence regarding Lewis and Roland and their respective roles in the conspiracy, their contention is without merit.

Finally, Appellants argue that, if anything, the four principals were competitors, not co-conspirators. While the record demonstrates that the principals, including Appellants, shared many sources, distributors, and customers, the fact that drug dealers "may sometimes, or even always, compete for supplies or customers in serving that market does not on that account alone disprove the existence of a single conspiracy to achieve the overall results of their several efforts." Id. The absence of any evidence discounting the single conspiracy established by the Government's evidence precludes any support for Appellants' argument of multiple conspiracies.

Accordingly, we reject Appellants' challenge to the sufficiency of the evidence demonstrating a single conspiracy.

B.

Appellants also contest the sufficiency of the evidence to support the jury's finding of a CCE. Appellants focus exclusively on the sufficiency of the evidence to support the jury's finding that each of them was an organizer, supervisor, or manager of five...