U.S. v. Johnson

• Decision Date: 17 October 1997
• Docket Number: No. 96-1131,96-1131
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. August JOHNSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 625

127 F.3d 625

UNITED STATES of America, Plaintiff-Appellee, v. August JOHNSON, Jr., Defendant-Appellant.

No. 96-1131.

United States Court of Appeals Seventh Circuit.

Argued Sept. 5, 1997.

Decided Oct. 17, 1997.

Estaban F. Sanchez (argued), James E. Beckman, Office of the U.S. Atty., Springfield, IL, for Plaintiff-Appellee.

Michael J. Costello (argued), Springfield, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and BAUER and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

August Johnson, Jr. was convicted by a jury of two counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On appeal, Johnson raises three contentions: 1) there was insufficient evidence presented at trial to support his conviction; 2) his 262-month sentence was the result of the district court's misapplication of the Sentencing Guidelines; and 3) certain evidence admitted by the district court at trial was hearsay. For the reasons set forth below, we affirm.

BACKGROUND

The following brief factual summary, presented in a light most favorable to jury's verdict, is gleaned from the record of this case. On March 24, 1993, Illinois State Police Sergeant Bruce Kettelkamp ("Kettelkamp") was acting in an undercover capacity while investigating the sale of controlled substances in Springfield, Illinois. On that day, Kettelkamp was searching for a woman who had taken $200 from him several days earlier during another undercover operation. While so engaged, Kettelkamp met the defendant, August Johnson, Jr. ("Johnson"), and inquired if he knew where the woman was. Johnson said he did not, and the conversation between the men turned to drugs. Kettelkamp informed Johnson that he wanted to purchase some crack cocaine, and Johnson told Kettelkamp that he would be right back. Johnson went to the back of a nearby house and returned with another, unidentified man. Johnson and the man entered Kettelkamp's car, and the man gave Kettelkamp five packets containing crack in exchange for $100. The unidentified man left the car, and Kettelkamp paid Johnson a $10 "finder's fee" for setting up the transaction. Johnson then left Kettelkamp's automobile. During this time, Kettelkamp was "wired" with a listening device, and the episode was captured on an audio tape.

On March 30, 1993, Kettelkamp again met with Johnson. Kettelkamp told Johnson that he wanted to buy more crack, and Johnson went to the back of the same residence. Johnson returned to Kettelkamp's car a short time later, this time alone, and gave Kettelkamp a total of five packets containing crack in exchange for $110. After the drug transaction, Kettelkamp inquired if Johnson could come up with a gun for Kettelkamp to purchase from him. Johnson said that he could, and it was arranged that the two would meet the next day. As with their previous meeting, Kettelkamp was wearing a transmitter and the transaction was recorded on audio tape.

Despite their arrangement, Johnson and Kettelkamp did not meet again until June 28, 1993. At that time, Kettelkamp reminded Johnson that he was looking for a gun, and Johnson replied that he had one for him. Johnson then went unaccompanied to the front porch of a nearby residence, where he spoke with an elderly lady. The woman raised her hip and handed Johnson a gun, which he brought over to Kettelkamp's vehicle. Johnson got inside, showed Kettelkamp the gun and some ammunition, and gave Kettelkamp the gun and bullets in exchange for $80. Johnson then left Kettelkamp's truck and went back to the residence. For this transaction, Kettelkamp drove a pickup truck outfitted with a video camera. A video tape of the meeting briefly showed Johnson talking to Kettelkamp through the driver's window, but did not record the actual exchange of the gun and cash.

On December 7, 1994, a grand jury in the Central District of Illinois indicted Johnson on three counts stemming from his activities: two counts of knowingly distributing a controlled substance and one count of being a felon in possession of a firearm. After a two-day trial, a jury convicted Johnson on all three counts on March 15, 1995. On January 9, 1996, Johnson was sentenced by District Judge Richard Mills to a term of imprisonment of 240 months on Counts I and II, to run concurrently, and an additional 22 months of imprisonment on Count III, to run consecutively. Johnson also was placed on five years supervised release following his release from prison and was ordered to pay a special assessment of $150. On January 17, 1996, Johnson filed a timely notice of appeal, alleging that his conviction and sentence

were both erroneous. With these facts in mind, we turn to Johnson's contentions.

ANALYSIS

1. Sufficiency of the Evidence

First, Johnson argues that his conviction was not supported by sufficient evidence. This Court has repeatedly recognized that defendants challenging the sufficiency of the evidence at trial face a "nearly insurmountable hurdle." See, e.g., United States v. Moore, 115 F.3d 1348, 1363 (7th Cir.1997) (citations omitted). In reviewing the sufficiency of the evidence in a criminal case, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979) (emphasis in original) (citation omitted). In so doing, "we consider the evidence in the light most favorable to the Government, defer to the credibility determination of the jury, and overturn a verdict only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." Moore, 115 F.3d at 1363. An examination of the record illuminates that the evidence presented in this case overwhelmingly supports the jury's verdict, and the district court's judgment must be affirmed.

In order for the jury to convict Johnson on Counts I and II of the indictment, which charged him with distributing cocaine base (known outside legal circles as "crack") in violation of 21 U.S.C. § 841(a)(1), the government needed to prove the following elements: 1) that Johnson distributed crack; 2) that he did so knowingly and intentionally; and 3) that he knew the substance being distributed was a controlled substance. For purposes of the statute, "distribution" is defined as the transfer of possession from one person to another. Since Johnson was charged in Count I with aiding or abetting the distribution of crack, the first element is a bit modified and required the government to show that Johnson knowingly associated himself with an individual who distributed crack, participated in the venture, and tried to make it succeed. The evidence presented by the prosecution amply demonstrated all of the foregoing, and Johnson's challenge to Counts I and II must fail.

At trial, Sergeant Kettelkamp testified that on March 24, 1993, he was searching for a woman who had stolen $200 from him during an undercover operation several days earlier when he ran into Johnson. Kettelkamp asked Johnson if he had seen the woman, and Johnson replied that he had not. Their conversation eventually turned to drugs, and Kettelkamp informed Johnson that he wanted to buy a sixteenth ounce of cocaine (more commonly known as a "teeny-bopper" or a "bop" in drug parlance). Johnson related that it would be no problem, and instructed Kettelkamp to park his car and wait for Johnson to return. Johnson then went to the back of a house at 1204 East Jackson and returned with an unidentified black male. Johnson and the man got in Kettelkamp's car, and Kettelkamp gave the unidentified man $100 in exchange for 5 packets containing what was identified by forensic scientist John Martin to be crack. The man left the car after a brief conversation with Kettelkamp, but Johnson remained. Johnson told Kettelkamp that he would take care of Kettelkamp and that he could be trusted, and told Kettelkamp that he wanted a reward for bringing him somebody who had crack. Kettelkamp paid Johnson $10 as a "finder's fee," and Johnson left the car. This version of events was corroborated by a tape recording of the dealing between Johnson and Kettelkamp, which was played to the jury.

This evidence unquestionably could have led a rational jury to find all of the elements of Count I beyond a reasonable doubt. Taken in a light most favorable to the government, Kettelkamp's testimony showed that Johnson brought the unknown man back to Kettelkamp's car after Kettelkamp informed Johnson that he wanted to buy a "bop" of crack. The man ultimately sold Kettelkamp the drugs, and Johnson received a "finder's fee" for his help in arranging the transaction.

From this, the jury could have logically found beyond a reasonable doubt that Johnson associated himself with the unknown drug seller, participated in the sale, and tried to make it succeed. Kettelkamp's testimony, as well as the audio tape of the transaction, also showed that Johnson knew that he was participating in a drug transaction involving crack. Evidence establishing all of the elements of the offense was presented to the jury, and a guilty verdict could have been rationally reached.

Similarly, with regard to Count II, Sergeant Kettelkamp testified that he was working undercover on March 30, 1993, when he again met with Johnson in the vicinity of Twelfth and Jackson Streets at about 1:35 p.m. Kettelkamp and Johnson discussed Kettelkamp's desire to purchase a "bop" of crack, and Johnson went to the back of the building located at 1204 East Jackson. Johnson returned to Kettelkamp's vehicle a short time later (this time unaccompanied) and gave Kettelkamp four packets containing what was later identified as crack. Kettelkamp testified that he customarily received six packets of...