U.S. v. Johnson
| Decision Date | 11 July 1994 |
| Docket Number | 93-3050,93-3048,93-3054,93-3110 and 93-3116,Nos. 93-3046,s. 93-3046 |
| Citation | 28 F.3d 1487 |
| Parties | 39 Fed. R. Evid. Serv. 1263 UNITED STATES of America, Appellee, v. Cleveland JOHNSON, also known as Jr., Appellant. UNITED STATES of America, Appellee, v. Roy WILLIAMS, also known as Low, Appellant. UNITED STATES of America, Appellee, v. Johnny Ray BUTLER, also known as Johnnie Lee Burton, also known as Bonnie, Appellant. UNITED STATES of America, Appellee, v. Christopher SCOTT, also known as Henry Johnson, also known as Henry Wilson, also known as Pony Tail, Appellant. UNITED STATES of America, Appellee, v. Errol SKEETE, also known as Steven Anderson, also known as Steven Mason, also known as Steven Carter, also known as Steville, Appellant. UNITED STATES of America, Appellee, v. Marcel HARRIS, also known as Taco, also known as Tyrone Bryant, also known as Tony McLaurin, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David Stickman, Omaha, NE, argued, for appellant Cleveland Johnson.
W. Russell Bowie, Omaha, NE, for appellant Roy Williams.
Deborah D. Cunningham, Omaha, NE, argued, for appellant Johnny Ray Butler.
James R. Kozel, Omaha, NE, argued, for appellant Christopher Scott.
George T. Babcock, Omaha, NE, for appellant Errol Skeete.
William F. Eustice, Omaha, NE, for appellant Marcel Harris.
David A. Bybee, Washington, DC, argued, for appellee.
Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.
Johnny Ray Butler, Christopher Scott, Roy Williams, Marcel Harris, Cleveland Johnson, and Errol Skeete (collectively, the defendants) appeal the district court's 1 judgment following a jury trial convicting the defendants of conspiring to distribute cocaine base (crack). In this consolidated appeal, the defendants claim multiple bases for reversal. Having considered all claims, we affirm.
The government indicted the defendants for participating in a crack distribution conspiracy between September 1987 and May 1989. At trial, the government offered evidence that Butler and Scott set up a crack distribution ring in Omaha, Nebraska and recruited Ivory Mitchell 2 and Skeete to run a twenty-four-hour-per-day crack house. Further evidence indicated that Butler and Scott provided Mitchell and Skeete with the cocaine, collected the proceeds from the sales, and monitored the sales. The crack house apparently serviced several hundred people each day.
Mitchell, testifying for the government, claimed that Butler and Scott employed an array of street dealers. According to Mitchell, the street dealers occasionally would receive their supply of crack from Skeete and Mitchell at the crack house and give the proceeds of their sales directly to Skeete and Mitchell for conveyance to Butler and Scott.
The government offered further evidence that Scott, Butler, and Harris, utilizing Western Union money transfers, sent the proceeds from the drug deals to individuals in California. The evidence indicated the money transfers were made by the defendants using multiple aliases and ranged in value from $200 to $7000.
The grand jury returned a twenty-five-count indictment against the defendants on January 15, 1992. The defendants were found guilty of conspiring to possess with the intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a) (1988). Butler and Scott were found guilty of knowingly engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (1988). 3 Butler, Scott, and Harris were also found guilty of money laundering.
Butler and Scott received life sentences. Harris, Williams, Cleveland Johnson, and Skeete were sentenced to 204, 236, 336, and 360 months respectively. All defendants timely appealed.
Scott, joined by all defendants except Harris, argues that the district court erred when it denied his motion to dismiss the indictment due to pre-indictment delay. In short, Scott claims the thirty-month delay between the termination of the conspiracy and the indictment violated his due process rights.
"Pre-indictment delay will be sufficiently 'oppressive' to warrant dismissal of an indictment where the delay was unreasonable and substantially prejudicial to the defendant in the presentation of his case." United States v. Bartlett, 794 F.2d 1285, 1289 (8th Cir.), cert. denied, 479 U.S. 934, 107 S.Ct. 409, 93 L.Ed.2d 361 (1986). Scott alleges the thirty-month time lapse between the termination of the conspiracy and the indictment prejudiced his defense because had it not been for the delay, he would have located additional witnesses to corroborate his account that gambling, and not drug dealing, was the source of his copious amounts of cash. 4 In support of his due process claim, Scott also argues the district court improperly credited the government's testimony that the indictment was delayed due to the ongoing investigation involving leads to follow and verify.
The defendants' due process claim must fail because, without considering the reasonableness of the delay, the defendants have failed to establish actual and substantial prejudice resulting from the delay. Id. at 1291-92. The defendants bear the burden of proving prejudice resulting from the pre-indictment delay. Id. at 1289. Substantial prejudice cannot be established with the mere "possibility of prejudice inherent in any extended delay: that memories will dim, witnesses will become inaccessible, and evidence will be lost." United States v. Marion, 404 U.S. 307, 326, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971). The defendants' allegations fall far short of establishing actual, let alone substantial, prejudice. Hence, we affirm the ruling of the district court.
The defendants argue that their Fourteenth Amendment right to equal protection was violated by the government's use of peremptory challenges to exclude potential jurors on the basis of race. Basing their argument on the Supreme Court's holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the defendants contend that the government eliminated three of the potential jurors because of their race.
The district court found the defendants established a prima facie case under Batson because the government challenged both of the black members of the main jury, thus raising an inference of discrimination. We review a district court's rulings on Batson claims under the clearly erroneous standard. United States v. Brooks, 2 F.3d 838, 840 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1117, 127 L.Ed.2d 427 (1994). Once a prima facie case is established, we must determine whether the government's explanation for the challenge is race neutral, and, if so, whether the defendants have shown that the proffered reason is pretextual. See id. Ultimately, we must decide whether the defendants have borne their burden of proving purposeful discrimination. Id.
The district court held the challenges were legitimate and nondiscriminatory, relying on the government's explanation that two of the jurors had associations with some of the coconspirators and the third juror was inattentive or asleep during much of the voir dire. The district court found that these explanations for the challenges were race neutral and showed no evidence of pretext. We hold that the district court's ruling was not clearly erroneous. Thus, the defendants' Fourteenth Amendment right to equal protection was not violated by the government's use of its peremptory challenges.
The defendants challenge the constitutionality of 21 U.S.C. Sec. 841 5 and U.S.S.G. Sec. 2D1.1 6 as applied to them. Specifically, they argue that as applied, Sec. 841 and Sec. 2D1.1 disparately impact upon blacks in the prosecution and sentencing of crack distribution offenses. According to the defendants' argument, black offenders committing crack offenses are unfairly receiving substantially longer sentences than white offenders committing cocaine-powder offenses.
The defendants wisely do not contend that Congress or the Sentencing Commission had a discriminatory purpose at the time of the enactment of either Sec. 841 or Sec. 2D1.1. See, e.g., United States v. Lattimore, 974 F.2d 971, 975 (8th Cir.1992) (), cert. denied, --- U.S. ----, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993). Instead, the defendants attempt to distinguish their cases from our prior decisions by arguing that Congress and the Sentencing Commission have since reaffirmed the statute and guidelines, thus evidencing a discriminatory purpose. But see United States v. Maxwell, 25 F.3d 1389, 1396-97 (8th Cir.1994) (); accord United States v. Willis, 967 F.2d 1220, 1225 (8th Cir.1992).
We cannot agree. The defendants rely upon, as proof of discrimination, statistics evidencing a disparate impact upon black offenders distributing crack cocaine as compared to white offenders distributing cocaine powder. " 'Disproportionate impact is not irrelevant, but it is not the sole touchstone of ... invidious racial discrimination.' " Arlington Heights v. Metropolitan Hous. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977) (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976)). "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Id. The defendants have offered no evidence that Congress or the Sentencing Commission have allowed either Sec. 841 or Sec. 2D1.1 to remain in effect to further a racially discriminatory purpose. As there were legitimate reasons for Congress to adopt the current crack penalties, see Lattimore, 974 F.2d at 975-76 (...
To continue reading
Request your trial
-
Schwarz v. Northwest Iowa Community College
...S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); White v. McDonnell Douglas Corp., 985 F.2d 434, 436 (8th Cir.1993); United States v. Johnson, 28 F.3d 1487, 1494 (8th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 768, 130 L.Ed.2d 664 (1995); Johnson, 931 F.2d at 1242; Brooks v. Monroe Systems......
-
Kunzman v. Enron Corp.
...of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); White, 985 F.2d at 436; United States v. Johnson, 28 F.3d 1487, 1494 (8th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 768, 130 L.Ed.2d 664 (1995); Johnson, 931 F.2d at 1242; Brooks v. Monroe Syst......
-
Jenkins v. Wal-Mart Stores, Inc., C 93-3069.
...discriminated against the plaintiff. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482; White, 985 F.2d at 436; United States v. Johnson, 28 F.3d 1487, 1494 (8th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 768, 130 L.Ed.2d 664 (1995); Johnson, 931 F.2d at 1242; Brooks v. Monroe Sys. For Busin......
-
Reedy v. White Consol. Industries, Inc.
...will be "helpful" to or "will assist" the jury. Fed.R.Evid. 702; Daubert, ___ U.S. at ___, 113 S.Ct. at 2799; United States v. Johnson, 28 F.3d 1487, 1496 (8th Cir.1994) (citing Thus, courts have considered whether an expert's specialized knowledge will help the jury understand evidence or ......