U.S. v. Johnson

• Decision Date: 30 May 1991
• Docket Number: No. 90-2748,90-2748
• Citation: 934 F.2d 936
• Parties: 33 Fed. R. Evid. Serv. 161 UNITED STATES of America, Appellee, v. Bennie JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 936

934 F.2d 936

33 Fed. R. Evid. Serv. 161

UNITED STATES of America, Appellee, v. Bennie JOHNSON, Appellant.

No. 90-2748.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1991.

Decided May 30, 1991.

James C. Delworth, St. Louis, Mo., for appellant.

Kenneth R. Tihen, St. Louis, Mo., for appellee.

Before FAGG and BEAM, Circuit Judges, and DOTY, ^* District Judge.

DOTY, District Judge.

Bennie Johnson appeals from a final judgment of the district court ¹ upon a jury verdict finding him guilty of aiding and abetting in the distribution of heroin in violation of Title 21, United States Code, Sec. 841(a)(1). Johnson raises three issues on appeal:

1. Whether the district court correctly admitted evidence of subsequent drug transactions under Rule 404(b) of the Federal Rules of Evidence;

2. Whether the evidence of subsequent drug transactions constructively amended the indictment; and

3. Whether the district court correctly admitted as background evidence testimony regarding the narcotics operation of Frank Noel.

For the reasons discussed below, we uphold the decision of the district court and affirm appellant's conviction.

Appellant Bennie Johnson ("Johnson") was charged in a one count indictment with distribution of heroin in violation of 21 U.S.C. Sec. 841(a)(1). The charge involved the sale of approximately two grams of heroin by co-defendant Stan Matha ("Matha") to an undercover agent on August 31, 1988. The government alleged that Johnson aided the distribution by setting up the transaction. The government's evidence was presented through the testimony of Larry Palmer ("Palmer"), an informant working for the Drug Enforcement Administration ("DEA"), Tim Jones ("Jones"), an undercover police officer assigned to the DEA Task Force, and Donald Mandrala ("Mandrala"), a special agent with the DEA.

On August 31, 1988, Johnson called Palmer to ask him if he would be interested in purchasing heroin. Palmer told Mandrala about this phone call and Mandrala asked Palmer to arrange a meeting the next time that Johnson called. When Johnson called back, he instructed Palmer to meet him at the corner of Dr. Martin Luther King Drive and Elliott in the City of St. Louis.

On that same day, Mandrala, Jones and Palmer met with other DEA agents at a park to arrange the purchase of two grams of black tar heroin. Palmer and Jones then drove to the area of Elliott and Dr. Martin Luther King Drive where Johnson was waiting for them. Both Jones and Palmer testified that they spoke to Johnson about purchasing two grams of black tar heroin. Johnson indicated that he had to contact "Frank" and requested that Palmer and Jones return later that evening. When Jones and Palmer returned, Johnson told them that Frank Noel had already come and gone but that Jones and Palmer could purchase the black tar heroin from "Stan". ² Johnson then turned and pointed down the street to a man whom Jones recognized as Stan Matha, the co-defendant in this case. Johnson took Jones and Palmer to Matha and introduced them. They negotiated a price of $1,100 for two grams of black tar heroin, and then followed Matha to a gas station. Once there, Palmer was directed to accompany Matha and was handed the money for the heroin by Jones.

Matha and Palmer drove to another area and parked. Palmer gave the $1,100 to Matha and Matha walked to a nearby telephone where he made a phone call. Matha disappeared and then returned to the vehicle, where he gave Palmer the heroin.

Jones testified that while this transaction occurred, he and Johnson were discussing the heroin. Johnson told him how good the heroin was and asked Jones for money in return for setting up the deal. Meanwhile, Matha drove Palmer back to Jones's car. Jones, Palmer and Johnson then drove back to the area of Dr. Martin Luther King Drive and Elliott where they dropped off Johnson. Jones and Palmer returned to the park where they met the surveillance crew and turned the heroin over to Mandrala, who sealed it as evidence.

At trial, the same three witnesses, Palmer, Jones and Mandrala, testified regarding two subsequent heroin deals set up by Johnson involving circumstances which closely tracked the first heroin transaction. On those occasions, Johnson again called Palmer to set up drug transactions for Jones. On the two subsequent dates, Jones and Palmer again met Johnson at Dr. Martin Luther King Drive and Elliott. Johnson accompanied Jones and Palmer to search for a source of heroin and promised that Frank Noel would be the source.

Each of the two subsequent deals was for six grams of black tar heroin. The two purchases were made through another person, Claudell Atkins. ³ On September 16, 1988, Palmer and Johnson met with Atkins where they received what they believed was six grams of black tar heroin. Palmer testified that the six grams were divided into two packages, one of which Johnson gave Palmer to inspect. Palmer and Johnson agreed that it looked and smelled like black tar heroin. Johnson, Palmer, and Atkins returned to the place where Jones was waiting. Jones then drove Johnson to his house and Johnson requested money for setting up the heroin deal.

The third heroin transaction, set up by Johnson on September 20, 1988, was essentially the same. On that occasion, Johnson asked for and received $50 from Jones for setting up the heroin deal. Jones and Palmer then drove Johnson back to the area of Dr. Martin Luther King Drive and Elliott and dropped him off there.

Johnson was charged in a one count indictment with distribution of heroin. The government's proof focused on Johnson's aiding and abetting the distribution of heroin by co-defendant, Stan Matha, and the government sought to introduce evidence of Johnson's participation in the transactions on September 16 and 20. The defendant made a motion in limine to exclude this evidence and the district court reserved ruling on its admissibility. Prior to the government's opening, the government renewed its motion to present evidence of the subsequent acts. The district court then permitted the introduction of this evidence to prove Johnson's knowledge and intent.

Johnson contends that the trial court abused its discretion by admitting this evidence because it violated Federal Rules of Evidence 403 and 404(b), constructively amended the indictment and premised guilt upon a pattern of later contact. Johnson further contends that the trial court erred in overruling his objection to the admission of testimony regarding the drug operations of Frank Noel.

1. Admission of Evidence Concerning Subsequent Acts Under Rule 404(b)

Johnson argues that the trial court abused its discretion by admitting evidence regarding the uncharged drug transactions on September 16 and 20, 1988. Under Federal Rule of Evidence 404(b), the trial court may admit evidence of other crimes to demonstrate motive, opportunity, intent, preparation, common plan, knowledge, identity, or absence of mistake or accident. Evidence admitted under Rule 404(b) must meet the following conditions:

1. The evidence of the bad act or other crime is relevant to a material issue raised at trial;

2. The bad act or crime is similar in kind and reasonably close in time to the crime charged;

3. There is sufficient evidence to support a finding by the jury that the defendant committed the other act or crime; and

4. The potential prejudice of the evidence does not substantially outweigh its probative value.

United States v. Anderson, 879 F.2d 369, 378 (8th Cir.1989) (citing United States v. Mothershed, 859 F.2d 585, 588 (8th Cir.1988)). The district court has broad discretion to admit such evidence "and its decision will not be overturned unless it is clear that the evidence had no bearing upon any of the issues involved." United States v. O'Connell, 841 F.2d 1408, 1422 (8th Cir.1988) (citations omitted).

In the present case, the district court admitted evidence of the two subsequent drug transactions to prove Johnson's knowledge or intent, finding that the evidence met the conditions for admission under Rule 404(b) as stated in United States v. Lewis, 759 F.2d 1316, 1349 (8th Cir.1985). ⁴ The indictment alleged that Johnson aided and abetted Matha's distribution by setting up a heroin transaction on August 31, 1988. On that date, Johnson obtained the source and supply of heroin for the undercover agent and informant. He remained with the undercover agent during the heroin transaction, discussed the quality of heroin and requested money for setting up the transaction. On September 16 and 20, 1988, all of the witnesses testified that Johnson again met them at the same corner. On both occasions, he led the agents to a source of heroin. Testimony also indicated that at one time Johnson handled the heroin. Jones further testified that on both September 16 and 20, Johnson asked for money for setting up the transactions and he actually received money on September 20.

We conclude that the evidence relating to those subsequent transactions was admissible under Rule 404(b). First, knowledge and intent were material issues concerning the offense charged. ⁵ In such cases, "evidence of other acts tending to establish [intent] is generally admissible." United States v. Miller, 725 F.2d 462, 466 (8th Cir.1984) (citation omitted). The government was required to prove Johnson's intent beyond a reasonable doubt because he generally denied the crime. See United States v. Marin-Cifuentes, 866 F.2d 988, 996 (8th Cir.1989) (citations omitted); United States v. Gilmore, 730 F.2d 550, 554 (8th Cir.1984) (holding that a plea of not guilty requires the government to prove beyond a reasonable doubt each element of the offense charged). Evidence of similar drug activity is admissible in a drug prosecution case because "a defendant's complicity in other similar transactions serves to establish intent or motive to commit the crime charged." United States v. Felix, 867 F.2d 1068, 1072 (8th...