U.S. v. Johnson, 88-2330

• Citation: 872 F.2d 612
• Decision Date: 28 April 1989
• Docket Number: No. 88-2330,88-2330
• Parties: 27 Fed. R. Evid. Serv. 1393 UNITED STATES of America, Plaintiff-Appellee, v. Martin David JOHNSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 612

872 F.2d 612

27 Fed. R. Evid. Serv. 1393

UNITED STATES of America, Plaintiff-Appellee, v. Martin David JOHNSON, Defendant-Appellant.

No. 88-2330.

United States Court of Appeals, Fifth Circuit.

April 28, 1989.

Gus A. Saper, Michael J. Hinton, Patrice M. Barron, Houston, Tex., for defendant-appellant.

Mervyn Hamburg, Atty., Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C., Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, POLITZ, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Appellant Martin David Johnson, along with Cleo Scott and James Smith, was charged by federal grand jury of seven counts of federal firearm violations pursuant to 18 U.S.C. Sec. 371 and 26 U.S.C. Sec. 5861. Additionally, Johnson was charged with solicitation to commit an act of violence in violation of 18 U.S.C. Sec. 373. Johnson was acquitted of all counts except for the solicitation count. He was sentenced to five years' imprisonment. He appeals from that conviction.

I. BACKGROUND

The scenario which unfolded at trial began approximately one year before Johnson became involved with the events forming the basis for this prosecution. ¹ The principal players in this drama include paid undercover informant Thomas Benton Delashaw, III, who worked undercover using the name John Michael Bennett. ² Delashaw/Bennett posed as a pilot for another key figure, FBI agent Jerry Howe, who posed as entrepreneur Jerry Gaffney. Co-indictee James Smith was an employee of Allied Offshore Marine, an establishment co-owned by appellant Johnson, a former police officer. Of these, only Johnson and Delashaw/Bennett testified at trial. However, numerous tape recorded conversations involving the other players were introduced into evidence.

Our story begins in February of 1986, when Delashaw, going by the Bennett alias, met Smith while both were incarcerated in the Harris County jail. The two men were in daily contact during their tenure in prison and they often exchanged "war stories." In the course of these discussions, Smith told Delashaw/Bennett (hereinafter Delashaw) that Smith could furnish illegal weapons upon request, and that he had a significant amount of experience with automatic weapons, rockets, and grenades. Delashaw informed the FBI of Smith's boasting in exchange for remuneration.

After his release, Delashaw worked as an informant for several federal agencies. Specifically, Delashaw told Smith (who had also been released) that he was employed as a pilot for a wealthy individual who operated a timber company in Arkansas, but who was also a drug dealer on the side. The timber operator was identified as Jerry Gaffney, the undercover identity of FBI agent Howe (hereinafter Howe).

On November 8, Smith had a phone conversation with Delashaw in which Smith discussed his access to various weapons. Over the next several months, Smith and Delashaw had over 200 conversations, the majority of which were recorded by Delashaw with equipment supplied by the FBI. In the first recorded conversation, which occurred on November 18, 1986, Smith offered to sell weapons to Delashaw's employer. For the remainder of the year, the men spoke frequently about the prospect of Smith selling various kinds of weapons, including weapons which were semi-automatic when manufactured, but which could be converted to fully automatic by Smith's associate, co-indictee Scott.

During this period, Delashaw remained in the Houston area, but Smith moved to Florida. In January of 1987, Smith told Delashaw that he had been offered a job in Morgan City, Louisiana, as a boat engineer at Allied Marine Offshore (hereinafter Allied). Johnson co-owned Allied and resided in Louisiana. Prior to Smith's relocation to Louisiana, he met with Delashaw and Howe in a motel room in St. Augustine, Florida, where Howe purchased an Uzi automatic machine gun.

In February of 1987, Smith commenced working for Allied as an engine repairman. Smith maintained contact with Delashaw and continued his attempts to obtain weapons for resale to Howe. Delashaw informed Smith that Howe had sold the timber company and had purchased an offshore marine business headquartered in Houston. On February 17, 1987, Smith told Delashaw that he, Smith, had been retained "to perform a contract" to harm someone in the Houston area. The following day, in another telephone conversation, Smith indicated that the person who had hired him was attempting to locate the apartment in which the victim resided.

Further, Delashaw told Smith that Howe was interested in acquiring a boat; Smith thereupon accepted an invitation to fly to Houston to discuss the matter. On February 23, Smith, Howe, and Delashaw met in a Houston motel room. The men discussed the sale of machine guns, and Smith indicated that Johnson had already bought machine guns and wanted automatic weapons. Significantly, Smith identified Johnson as the person who had hired him to harm someone in Houston. Smith indicated that he had not yet committed to performing the deed, and added that Johnson had not yet provided all the necessary information about the victim. Delashaw attempted to dissuade Smith from performing the contract, pointing out that Smith could avoid trouble if he allowed Howe's people to do the job. ³

Smith and Delashaw continued to discuss their gun deal. On March 4, Smith mentioned that Johnson had not yet disclosed the name of the intended victim. One week later, Delashaw repeated his offer to let Howe's men take care of the matter, but Smith indicated that he needed the money that Johnson had agreed to pay. Delashaw further testified that, in a conversation which took place on March 11, Smith told him that Johnson had enlisted the services of Smith to act as a body guard, armed with an automatic weapon, for a meeting which was to occur at sea.

On March 21, Smith informed Delashaw that the delivery of the machine guns would be postponed. Seven days later in a taped conversation, Johnson telephoned Howe to say that the mechanical operation necessary to prepare the weapons for delivery had not yet been performed. In the meantime, Johnson invited Howe and Delashaw to visit him in Morgan City, Louisiana, to look at boats. Delashaw and Howe arrived on March 31. While Johnson was giving the men a tour of Allied, they encountered Smith, who apologized for the delay in delivering the guns and explained that certain parts were still unavailable.

Johnson, testifying on his own behalf at the trial, disclaimed any knowledge that semi-automatic weapons were being illegally converted to automatic. Johnson indicated that Smith had suggested that Gaffney (Howe) was eager to make a gift of semi-automatic machine guns to his cousin. Because semi-automatic weapons could be legally purchased, Johnson decided to purchase the weapons and present them to Howe if Howe purchased a boat. Johnson testified that he did not realize that the "kits" the other men referred to were conversion kits; rather, he assumed that the machine guns had to be assembled. Johnson also testified that he began to believe that Howe was involved in organized crime, during this visit to Morgan City; he stated that he contacted Louisiana law enforcement officials to report the possibility that Howe was bringing drugs into the area. Johnson testified that his cooperation in the delivery of guns to Howe was prompted by fear for his safety and the safety of his family.

During the month of April, Smith and Delashaw were in frequent contact by telephone. The primary topic of their conversations was the machine guns which had still not yet been readied for delivery. In one conversation, Smith indicated that Johnson had left town suddenly; the men expressed concern that Johnson would attempt to undermine the gun deal by bargaining on his own. Smith informed Delashaw that they were insured against that possibility because Smith knew where Johnson's family resided and was aware of thousands of dollars worth of engines and other equipment that Johnson had stolen. Smith indicated that, if Johnson caused any problems, Johnson's family would be buried with legal problems. Delashaw encouraged Smith to itemize the stolen property so that the list could be used for insurance against double dealing.

Telephone conversations between Delashaw and Smith concerning the gun deal continued into May; occasionally they discussed the plan to harm the still unnamed victim. On May 12, Smith stated that he could not recall the victim's name, but knew that he was a firearms dealer in Houston. On May 14, Smith told Delashaw that he doubted that Johnson had sufficient funds to pay for the planned assault.

Ultimately, on June 3, Smith informed Delashaw that Johnson had identified the victim as Victor Mullen, a firearms dealer in Houston. Smith stated that Johnson had indicated that Mullen "dealt guns" and had once "informed on" Johnson. Delashaw encouraged Smith to let Howe's people take care of the matter. According to the testimony at trial, Delashaw and Howe had devised a plan to prevent the assault from actually taking place. Delashaw informed Smith that an associate named Joey, who was particularly adept with a baseball bat, ⁴ could perform the deed. Smith warned Delashaw to use a team of men because it was believed that Mullen's apartment was full of guns. Smith indicated that Johnson wanted Mullen to receive a broken leg.

In early June, Johnson met in Houston with Howe, Delashaw, and an agent posing as Howe's cousin. At the meeting, much of which was recorded on videotape, Johnson told stories about Smith's use of explosives. Specifically, he referred to two incidents: in the first, Johnson told how Smith had destroyed the backyard of someone who Smith suspected was having an affair with his wife; in the second, Johnson told the group how...