U.S. v. Johnson

• Decision Date: 06 December 1994
• Docket Number: No. 94-6138,94-6138
• Citation: 42 F.3d 1312
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Dean JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1312

42 F.3d 1312

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Dean JOHNSON, Defendant-Appellant.

No. 94-6138.

United States Court of Appeals, Tenth Circuit.

Dec. 6, 1994.

M. Jay Farber, Asst. U.S. Atty. (Vicki Miles-LaGrange, U.S. Atty., with him on the brief), Oklahoma City, OK, for plaintiff-appellee.

Don J. Gutteridge, Jr., of Kerr, Irvine, Rhodes and Ables, Oklahoma City, OK, for defendant-appellant.

Before BALDOCK and EBEL, Circuit Judges, and O'CONNOR, Senior District Judge. ^*

EARL E. O'CONNOR, Senior District Judge.

A jury found defendant Anthony Dean Johnson guilty of one count of conspiracy to possess with intent to distribute and to distribute methamphetamine, in violation of 21 U.S.C. Sec. 846, and six counts of distribution of methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1). Defendant was sentenced to 121 months on each count, to run concurrently.

Defendant appeals his conviction and sentence on four grounds. He asserts that the trial court erred: (1) in admitting the testimony of Rhonda Nowell; (2) in admitting the defendant's incriminating statements; (3) in finding the evidence was sufficient to sustain his conviction of conspiracy to distribute methamphetamine; and (4) in enhancing his sentence based upon his possession of a firearm in connection with a drug offense. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm in all respects.

The facts will be developed as we consider the points on appeal.

I. Rhonda Nowell's Testimony

Defendant contends that the court abused its discretion in allowing the government to present the testimony of Rhonda Nowell, the co-defendant's sister. Specifically, he argues that her testimony did not relate to the conspiracy alleged in the indictment and was therefore irrelevant. He maintains that her testimony was admitted in violation of Federal Rule of Evidence 404(b) because it was used to show the defendant's "bad character," and did not fall within any of the exceptions enumerated in Rule 404(b). Additionally, defendant claims any probative value of the testimony was outweighed by its prejudicial effect, and should have been excluded under Federal Rule of Evidence 403.

The trial court permitted Rhonda Nowell to testify that: she received methamphetamine from the defendant during the time frame of the conspiracy while visiting her brother's home; that on one occasion the defendant gave her a gram of methamphetamine and asked her to trade it for some marihuana; that defendant asked her if she knew of anyone who wanted to buy methamphetamine from him; that defendant had admitted to her that he was selling methamphetamine to her brother and was receiving it from someone in Shawnee; and that she and the defendant had engaged in conversations concerning a drug debt her brother owed defendant. The trial court admitted the testimony using 404(b) analysis, and instructed the jury on the limited purposes for which the testimony could be used.

This court reviews the trial court's decision to admit evidence of prior acts for abuse of discretion. Fed.R.Evid. 404(b); United States v. Fitzherbert, 13 F.3d 340, 343 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1627, 128 L.Ed.2d 351 (1994). In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the Supreme Court articulated the criteria for admission of "similar act" evidence. In accordance with Huddleston, we have ruled that a defendant is presumed to be protected against undue prejudice if the following four requirements are met:

"(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed.R.Evid. 105, the trial court shall, upon request, instruct the jury that the evidence of similar acts is to be considered only for the proper purpose for which it was admitted."

United States v. Poole, 929 F.2d 1476, 1481 (10th Cir.1991) (quoting United States v. Jefferson, 925 F.2d 1242, 1258 (10th Cir.), cert. denied, --- U.S. ----, ----, 112 S.Ct. 238, 239, 116 L.Ed.2d 194 (1991)).

We find that the trial court did not abuse its discretion in admitting the evidence under 404(b). Its decision met all four requirements for protection against unfair prejudice.

First, the evidence was offered for a proper purpose. The theory of the defense at trial centered on defendant's lack of knowledge and involvement in the drug activities charged in the indictment. The testimony was offered to show defendant knew of the methamphetamine distributions.

Second, the testimony of Ms. Nowell was highly relevant to the charges of distribution and conspiracy because it concerned the defendant's prior distributions of methamphetamine, the defendant's solicitation of the witness to find buyers for the methamphetamine, and the defendant's previous discussions with the witness regarding a "drug debt." Ms. Nowell's testimony allowed the jury to reasonably conclude that the defendant involved himself in the distribution of methamphetamine, and conspired to possess and distribute the drug.

Third, the district court implicitly determined that the probative value of the testimony was not substantially outweighed by its potential for unfair prejudice. The trial court has broad discretion to determine whether prejudice inherent in otherwise relevant evidence outweighs its probative value. United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989).

The fourth requirement was satisfied when the trial court instructed the jury, at the time the evidence was admitted, to consider the testimony only for the limited purpose of showing the defendant's motive, intent, knowledge, absence of mistake or accident, or the existence of a scheme or plan. This cautionary instruction, in combination with the court's instruction at the conclusion of the testimony, was sufficient to protect the defendant from unfair prejudice. See United States v. Pettit, 903 F.2d 1336, 1339 (10th Cir.), cert. denied, 498 U.S. 873, 111 S.Ct. 197, 112 L.Ed.2d 159 (1990).

Even if the trial court's application and analysis of 404(b) was in some way deficient, we believe the evidence was admissible as a part of the conspiracy itself. Rule 404(b) only applies to evidence of acts extrinsic to the charged crime. United States v. Orr, 864 F.2d 1505, 1510 (10th Cir.1988). An uncharged act may not be extrinsic if: (1) it was part of the scheme for which a defendant is being prosecuted, see Orr, 864 F.2d at 1510, or (2) it was "inextricably intertwined" with the charged crime such that a witness' testimony "would have been confusing and incomplete without mention of the prior act." United States v. Record, 873 F.2d 1363, 1372 n. 5 (10th Cir.1989) (quoting United States v. Richardson, 764 F.2d 1514, 1521-22 (11th Cir.), cert. denied, 474 U.S. 952, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985)). All of the events recounted by Ms. Nowell in her testimony occurred within the time frame of the conspiracy, and could be considered "part of the scheme for which defendant [was] being prosecuted." See Orr at 1510. Moreover, the uncharged acts described by Ms. Nowell were not "extrinsic" to the conspiracy, because the evidence concerning the prior acts was "inextricably intertwined" with the evidence of the charged crime. It formed an "integral and natural part of the witness' accounts of the circumstances surrounding the offense[ ] for which the defendant was indicted." United States v. Costa, 691 F.2d 1358, 1361 (11th Cir.1982).

II. Defendant's Incriminating Statements

The defendant urges that his constitutional rights under Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were violated when the trial court admitted his statement to officers after he had invoked his right to remain silent.

Before trial, the district court held a hearing on defendant's motion to suppress statements he had made at the time of his arrest. Michael Bakios, a Special Agent with the United States Drug Enforcement Administration, testified that he and other agents had executed a search warrant at the defendant's residence in Stringtown, Oklahoma. Once inside the defendant's residence, Bakios encountered and arrested the defendant, seated him on the bed in his bedroom, and immediately read him his Miranda rights. Defendant acknowledged he understood those rights. Thereafter, Bakios advised defendant that he was under arrest for conspiracy to distribute methamphetamine, that the DEA had been purchasing methamphetamine from Ronny Nowell, and that the DEA knew defendant had been supplying Nowell with methamphetamine. Bakios informed defendant that, based upon the drug quantity the DEA expected to prove at trial, defendant's sentence under the federal sentencing guidelines would be from five to forty years imprisonment. Bakios told defendant that his cooperation might result in a lesser sentence, but he did not threaten, coerce, or promise defendant anything, nor did any of the other law enforcement officers.

Bakios then asked defendant whether he would waive his rights and talk to the officers. Defendant responded that he felt he needed his attorney. Bakios ceased asking questions, and did not try to re-initiate questioning. Bakios then began to assist in the search of the residence, and defendant remained seated in the bedroom while the officers conducted the search.

During the search, and in the presence of defendant, the officers discovered a loaded rifle next to the bed, and an ounce of methamphetamine on a desk near the bed. Defendant commented that the gun did not belong to him, but to Ronny Nowell. Bakios then reminded defendant of his decision to remain silent. On at least two occasions, Bakios informed defendant that he wished defendant would remain silent and let the officers conduct the search.

Bakios testified...