U.S. v. Johnston

• Decision Date: 05 June 1998
• Docket Number: No. 97-6146,97-6146
• Citation: U.S. v. Johnston, 146 F.3d 785 (10th Cir. 1998)
• Parties: 98 CJ C.A.R. 2909 UNITED STATES of America, Plaintiff--Appellee, v. Robert JOHNSTON, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 785

146 F.3d 785

98 CJ C.A.R. 2909

UNITED STATES of America, Plaintiff--Appellee, v. Robert JOHNSTON, Defendant--Appellant.

No. 97-6146.

United States Court of Appeals Tenth Circuit.

June 5, 1998.

Fred L. Staggs, Oklahoma City, OK, for Defendant-Appellant.

Timothy W. Ogilvie, Assistant U.S. Attorney (Patrick M. Ryan, U.S. Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Before TACHA, BRORBY, and EBEL, Circuit Judges.

TACHA, Circuit Judge.

Robert Johnston was a defense attorney in Oklahoma City. Richard Jarvis, a drug dealer who previously had used Johnston for legal representation on other matters, asked Johnston to lie on Jarvis's behalf by telling two men to whom Jarvis owed drug money that Jarvis had been arrested. The purpose of the false story was to deter the two men from making further contact with Jarvis. Johnston complied with Jarvis's request, and Jarvis was never bothered again about the money he owed. Thereafter, Jarvis continued to deal drugs. For his lies, Johnston was convicted of one count of conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and three counts of use of a telephone to facilitate the distribution of marijuana, in violation of 21 U.S.C. § 843(b). Johnston raises four issues on appeal. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND

In the fall of 1995, Drug Enforcement Administration agents began investigating Jarvis, whom they had identified as an Oklahoma City marijuana dealer. An Oklahoma state court order authorized the agents to tap Jarvis's home and business telephone lines. Two men, known only as Alex and Ramone, fronted Jarvis 200 pounds of marijuana for $110,000, meaning Jarvis obtained the drugs on credit. Jarvis, in turn, fronted the drugs to three other dealers. Apparently, the drug business was slow, and Jarvis's customers could not fully pay him for the drugs. In turn, Jarvis could not fully pay Alex and Ramone the money he owed them. According to Jarvis's testimony at trial, Alex threatened to kill Jarvis if Jarvis did not soon pay off the balance of the debt.

Thereafter, Jarvis called Johnston, who previously had represented him on other non-drug related matters. Jarvis asked Johnston for help in concocting a story to make it appear to Alex and Ramone that Jarvis had been arrested for dealing drugs so that they would avoid future contact with him. Jarvis asked Johnston to tell the story to Alex and Ramone. Johnston agreed. He initially told Kirby Kyles, one of Jarvis's customers, that Jarvis had been arrested, anticipating that Kyles would pass that information along to Alex and Ramone. Kyles did tell Alex and Ramone the story. Alex and Ramone then came to Johnston's office to confirm the story, and Johnston verified the canard. The DEA learned about Johnston's involvement in the scheme through the phone taps on Jarvis's phones.

The grand jury indicted Johnston on one count of conspiracy to distribute marijuana, four counts of using a telephone to facilitate the distribution of marijuana, and one count of attempt to possess decadurobolin, a steroid. Before trial began, the defendant pleaded guilty to the steroid charge. After a three-day trial, a jury returned a guilty verdict against Johnston on the conspiracy charge and on three of the four use-of-telephone charges. He was sentenced to 26 months in prison on the conspiracy count, 26 months on each of the use-of-telephone counts, and 12 months on the steroid charge, with all sentences running concurrently.

On appeal, Johnston asserts that (1) there was insufficient evidence to convict him of any of the charged counts; (2) the district court committed reversible error by denying certain jury instructions; (3) the district court should have suppressed the intercepted phone conversations between Jarvis and Johnston because the interceptions were not made in conformity with the order authorizing the phone taps; and (4) the district court erred in computing the defendant's offense level under the sentencing guidelines.

DISCUSSION

I. Sufficiency of the Evidence

In determining whether there is sufficient evidence to support the jury's verdict, this court reviews the record de novo. See, e.g., United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997). Evidence is sufficient to support a conviction if, considered in the light most favorable to the government, it would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. See id. In evaluating the evidence under this standard, the court will not question a jury's credibility determinations or its conclusions about the weight of the evidence. See United States v. Johnson, 57 F.3d 968, 971 (10th Cir.1995).

A. Conspiracy Charge

The defendant contends that the evidence presented at trial was insufficient as a matter of law to establish the agreement and intent elements to the conspiracy charge. The drug conspiracy statute provides, "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 846. Johnston was convicted of conspiracy to violate 21 U.S.C. § 841(a)(1), which criminalizes the knowing or intentional distribution of marijuana. To obtain a conviction under section 846, the government must prove that "the defendant knew at least the essential objectives of the conspiracy and knowingly and voluntarily became a part of it." United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir.1994). The government is not required to prove the commission of an overt act in furtherance of the conspiracy. See id. (citing United States v. Shabani, 513 U.S. 10, 11, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994)).

The jury may infer an agreement constituting a conspiracy "from the acts of the parties and other circumstantial evidence indicating concert of action for the accomplishment of a common purpose." Id. Furthermore, "the jury may presume that a defendant is a knowing participant in the conspiracy when he acts in furtherance of the objective of the conspiracy." Id. (citations and internal quotation marks omitted). The defendant's participation in or connection to the conspiracy need only be slight, so long as sufficient evidence exists to establish the defendant's participation beyond a reasonable doubt. See United States v. Bowie, 892 F.2d 1494, 1497 (10th Cir.1990). There is no question that Jarvis was engaged in a conspiracy to sell marijuana. The only question is whether Johnston knowingly and intentionally entered into that conspiracy when he told Kyles and verified to Alex and Ramone that Jarvis had been arrested.

The defendant testified at trial that he thought Jarvis was no longer involved in the drug business, and that he only agreed to tell the false story to help Jarvis complete his withdrawal from the conspiracy and save Jarvis's life. There is ample evidence, however, that would allow a reasonable juror to find beyond a reasonable doubt that the defendant's contention that he intended to help Jarvis withdraw was untrue, and that Johnston really intended to help Jarvis continue his drug business. At trial, Jarvis testified about a meeting between him and Johnston in which Jarvis explained to Johnston why he wanted Johnston to participate in the scheme:

Q. Okay, and what did you talk about with respect to Alex and Ramone at your meeting [with Johnston] the next day?

A. I told Robert [Johnston] that Kirby and John and Glen owed me some money. They wouldn't pay me. [Alex and Ramone] pulled a gun on me. They were going to kill me. And then I come up with the scheme that I wanted to get arrested or let them think that I got arrested to where they would leave me alone until I could get Kirby and John and Glen to pay me.

Trial Tr. at 42. In this meeting, Jarvis informed Johnston that Johnston's lie would give Jarvis more time to collect the money that his customers (i.e., Kirby, John, and Glen) owed him. This is a clear indication to Johnston that Jarvis was not out of the drug business. The jury could believe beyond a reasonable doubt that Jarvis was telling the truth about this meeting. The jury could also believe beyond a reasonable doubt that Johnston was lying when he testified that he thought Jarvis was out of the drug business.

In addition, there is evidence in the form of testimony from Jarvis and Kirby Kyles that Jarvis paid Johnston $2,000 for his participation in perpetrating this scheme. Johnston contends that this payment was for past legal services rendered, but a jury could reasonably believe otherwise. The payment is clear evidence that Johnston had a financial stake in the drug conspiracy.

There is also evidence from which a jury could reasonably conclude that Johnston manufactured his testimony about his belief that Jarvis was out of the drug business. In a wiretapped conversation between Johnston and Jarvis, Johnston told Jarvis that he had just met with Alex and Ramone and verified the lie to them. In that conversation, Johnston and Jarvis display an astonishing degree of glibness in talking about their scheme, particularly in light of the fact that the pair's alleged purpose in perpetrating the lie was to save Jarvis's life:

JARVIS: Hello

JOHNSTON: ---- damn, I tell you what, that little Mexican was jumping around my office like somebody stuck a cigarette up his ----. (laugh) They do look funny when they turn white (laugh) oh ----.

JARVIS: I told them [the police] mentioned their names and wooh.

JOHNSTON: Yep. Yep.

JARVIS: Boy they ...

JOHNSTON: (laugh)

JARVIS: I was sittin' there watchin' that son of a ---- change colors ... ---- damn.

ROBERT: Well, I ... I think your concerns were unfounded.

JARVIS: Okay (laugh).

ROBERT: I get that impression. They're going to take a little vacation.

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