U.S. v. Johnson, s. 92-3442

• Decision Date: 22 December 1993
• Docket Number: 92-3459 and 92-3460,Nos. 92-3442,s. 92-3442
• Citation: 12 F.3d 1540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Thomas JOHNSON, Richard Lee Niedfeldt, and David Lynn Johnson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1540

12 F.3d 1540

UNITED STATES of America, Plaintiff-Appellee, v. Robert Thomas JOHNSON, Richard Lee Niedfeldt, and David Lynn Johnson, Defendants-Appellants.

Nos. 92-3442, 92-3459 and 92-3460.

United States Court of Appeals Tenth Circuit.

Dec. 22, 1993.

Michael M. Jackson, Topeka, KS, for defendant-appellant Robert Thomas Johnson.

Marilyn M. Trubey, Branch Chief, Federal Public Defender's Office Topeka, KS (Charles D. Anderson, Federal Public Defender, with her on the brief), for defendant-appellant David Lynn Johnson.

Joseph D. Johnson, Topeka, KS, for defendant-appellant Richard Lee Niedfeldt.

Gregory G. Hough, Asst. U.S. Atty., Topeka, KS (Jackie N. Williams, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before: BALDOCK, FEINBERG ^* and BRORBY, Circuit Judges.

FEINBERG, Circuit Judge:

Defendants Robert Thomas Johnson, Richard Lee Niedfeldt, and David Lynn Johnson appeal from their convictions in the United States District Court for the District of Kansas, Richard D. Rogers, J., stemming from a transaction involving phenyl-2-propanone (P2P, also known as phenylacetone), a Schedule II controlled substance used in the production of amphetamine and methamphetamine. For reasons given below, we affirm the convictions of all three appellants except, with respect to Robert Johnson, for the issues raised by his motion for a new trial; we also vacate the sentences of Robert and David Johnson and remand to the district court for resentencing.

I. Factual Background

In February 1992, Rayburn Clark, a confidential informant for the Kansas Bureau of Investigation (KBI), told KBI Agent Randall Listrom that the Johnsons had the necessary chemicals to manufacture methamphetamine and were seeking glassware to be used in the manufacturing process.

On March 4, 1992, David Johnson told Clark that rather than obtain the glassware and complete the manufacturing process, he wanted to sell three gallons of "meth oil" (apparently, P2P), and then leave town. On instructions from the KBI, Clark set up a meeting that night between David Johnson and KBI undercover agent Jim Lane, who posed as a potential buyer. At this meeting, Johnson provided Lane with a 140-gram "sample" of P2P. The following day, David Johnson was arrested for an unrelated parole violation. From jail he arranged by telephone for Robert Johnson and "Rick" (presumably, Niedfeldt) to complete the transaction. Robert met Clark that afternoon and proposed that Clark and Lane meet Robert and Rick and follow them into the countryside. The KBI advised Clark to reject this plan as it appeared too dangerous. David Johnson thereafter instead arranged, again by telephone from jail, to complete the transaction upon his release from jail on March 9.

On that day, Richard Niedfeldt picked up David from jail and drove him, in Niedfeldt's car, to Topeka. They met Lane and Clark in a motel room. After Lane produced $35,000 in cash, David sent Niedfeldt out to the car to retrieve the P2P. David sold Lane three jugs of the chemical, later determined to weigh a total of 11.3 kilograms, for $34,000. As David and Niedfeldt left the room, they were arrested. Niedfeldt, who was carrying the cash in a paper bag, attempted to escape but was tackled by a KBI agent.

Following the arrests, Robert's landlord reported a fire and a strange odor at the farmhouse where Robert had been living. The KBI obtained a warrant to search the premises. A search of the house and adjacent shed yielded mail addressed to Robert and to David Johnson, laboratory equipment, a glassware catalog, and P2P residue.

In March and April 1992, the government proceeded against defendants first by information, then by indictment and, thereafter, by a superseding indictment. In June 1992, a second superseding indictment charged each defendant with one count of conspiracy from March 5 to March 9, 1992, to distribute or possess with intent to distribute P2P (Count One) and with two counts of knowingly distributing or possessing with intent to distribute P2P on March 5 and March 9 (Counts Two and Three, respectively).

Judge Dale E. Saffels presided over the case until June 24, 1992, when it was transferred to Judge Rogers. Trial commenced before Judge Rogers shortly thereafter. In early July 1992, however, a mistrial was declared, and a second jury trial began in September 1992. David Johnson and Niedfeldt testified in their own defense. The former admitted to delivering P2P on March 5 and 9 1992, but testified that Clark had coerced him into taking part in the deal. Niedfeldt admitted participating in the March 9 transaction, but maintained that he was unaware of the purpose of the meeting until after entering the motel room. Robert Johnson presented no evidence. David Johnson was convicted of all three counts and sentenced to three concurrent terms of life imprisonment; Niedfeldt was convicted only on Counts One and Three and sentenced to two concurrent terms of 168 months; Robert Johnson was convicted only on Count One and sentenced to life imprisonment.

II. Discussion

A. Speedy trial

David Johnson argues that his trial violated the Speedy Trial Act, 18 U.S.C. Secs. 3161, et seq. (the Act). The district court rejected this argument when defendants raised it on a pretrial motion for dismissal. The Act requires that trial commence within 70 days of the indictment or the defendant's appearance before a judicial officer, whichever is later. 18 U.S.C. Sec. 3161(c)(1).

David Johnson argues that Judge Rogers, by allowing trial to begin on June 29, 1992, violated the "law of the case" because Judge Saffels had stated earlier that the Act required the case to be heard within 12 days after June 2, 1992. Therefore, according to appellant, Judge Rogers should have dismissed the charges against him. We disagree. Under the law of the case doctrine, " 'when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.' " United States v. Monsisvais, 946 F.2d 114, 115-116 (10th Cir.1991) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 reh'g denied, 462 U.S. 1146, 103 S.Ct. 3131, 77 L.Ed.2d 1381 (1983)). One branch of this doctrine deals with a lower court decision that has been ruled upon by an appellate court; another deals with a decision not so ruled upon. United States v. Uccio, 940 F.2d 753, 758 (2d Cir.1991). The first branch is not relevant here, as Judge Saffels' alleged speedy trial ruling did not go before an appellate court before being reconsidered by Judge Rogers. The doctrine's second branch holds that a court should generally adhere to its own prior rulings, but this rule merely guides the court's discretion; it does not limit its power. Arizona, 460 U.S. at 618, 103 S.Ct. at 1391. Thus, the doctrine does not bind a judge to follow rulings in the same case by another judge of coordinate jurisdiction as long as prejudice does not ensue to the party seeking the benefit of the doctrine. United States v. Birney, 686 F.2d 102, 107 (2d Cir.1982). Prejudice in this context "refers to a lack of sufficiency of notice and an opportunity to prepare armed with the knowledge that one judge is disregarding the ruling of another." Id. In this case, although David Johnson states that he believed the case would be dismissed, there was in the relevant sense no actual prejudice to his defense to the new speedy trial calculation.

Judge Saffels apparently made his statement at an informal, in-chambers conference of all counsel and did not indicate how he arrived at the 12-day figure. Judge Rogers provided a thorough explanation of his decision that the 70-day period had not expired on June 29, 1992. He found that the 70-day period began on March 12, 1992, the day after the filing of the original indictment. ¹ When the trial began on June 29, 1992, 110 days had elapsed since appellants were first indicted, but at least 46 of those days were excludable from calculations under the Act. The district court computed these as follows: The 32 days from April 10 to May 11, the four days from May 15 to 18, and the seven days from June 23 to 29 were excludable because pretrial motions were pending during those periods. See 18 U.S.C. Sec. 3161(h)(1)(F). The one day from June 1 to June 2 was excludable because the trial was then continued upon motion of the defendants and the court found the ends of justice served by the continuance outweighed the value of a speedy trial. See 18 U.S.C. Sec. 3161(h)(8)(A). Finally, the two days of March 24 and June 19 were excludable because the magistrate conducted omnibus and arraignment hearings on those days. See 18 U.S.C. Sec. 3161(h)(1).

We see no error in these calculations. Thus, for speedy trial purposes, a maximum of only 64 nonexcludable days elapsed between the initial indictment and the beginning of trial. We agree with the district court that the Act was not violated.

B. Motions for acquittal

Each defendant moved for acquittal at the close of the government's case on the ground that the evidence was insufficient to support his conviction for conspiracy under Count One of the second superseding indictment. The court denied the motions.

In deciding whether the evidence was sufficient to support the convictions,

[w]e must view the evidence, both direct and circumstantial, in the light most favorable to the government, and without weighing conflicting evidence or considering the credibility of witnesses, determine whether that evidence, if believed, would establish each element of the crime.

United States v. White, 673 F.2d 299, 301-02 (10th Cir.1982). The elements of the crime of conspiracy are 1) agreement with another person to violate the law; 2) knowledge of the essential objectives of the conspiracy; 3) knowing and voluntary involvement; and 4) interdependence among the alleged co-conspirators. United States v. Evans, 970 F.2d 663, 668-69 (10th Cir.1992), ...