U.S. v. Johnston

• Decision Date: 27 October 1997
• Docket Number: No. 95-20885,95-20885
• Citation: 127 F.3d 380
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward John JOHNSTON, III, Darrell Wayne Adams, Eric Darnell Lowery, Larry J. Hill, and Gonzalo J. Alvarado, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 380

127 F.3d 380

UNITED STATES of America, Plaintiff-Appellee, v. Edward John JOHNSTON, III, Darrell Wayne Adams, Eric Darnell Lowery, Larry J. Hill, and Gonzalo J. Alvarado Defendants-Appellants.

No. 95-20885.

United States Court of Appeals Fifth Circuit.

Oct. 27, 1997.

Kathlyn Giannaula Snyder, Paula Camille Offenhauser, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.

David B. Adler, Bellaire, TX, for Edward John Johnston, III, Defendant-Appellant.

Richard B. Kuniansky, Dameris & Kuniansky, Houston, TX, for Darrell Wayne Adams, Defendant-Appellant.

Wellborn Jack, Jr., Shreveport, LA, for Eric Darnell Lowery, Defendant-Appellant.

Kristine C. Woldy, Houston, TX, for Larry J. Hill, Defendant-Appellant.

Ray Christopher Goldsmith, Houston, TX, for Gonzalo J. Alvarado, Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ and KING, Circuit Judges, and DUPLANTIER ^*, District Judge.

DUPLANTIER, District Judge:

In this case involving a large scale, long term narcotics operation, defendants-appellants Edward Johnston, Darrell Adams, Eric Lowery, Larry Hill, and Gonzalo Alvarado appeal their convictions on a gallimaufry of grounds. In addition, Lowery, Johnston and Hill challenge their sentences. We affirm the convictions except as follows: we reverse and remand for further proceedings as to Larry Hill's only conviction (count 1) and as to Darrell Adams' conviction of count 15. We affirm the sentences challenged by Lowery and Johnston.

PROCEDURAL HISTORY

The final superseding indictment upon which the government proceeded to trial charged the five appellants and five other individuals ¹ with conspiracy (count 1) to possess with intent to distribute in excess of five kilograms of cocaine, fifty (50) grams or more of a mixture containing cocaine base, and 100 kilograms or more of marihuana, in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A)(ii) and (iii), 841(b)(1)(B)(vii), and 846.

Darrell Adams was also charged with five counts of possessing cocaine with intent to distribute in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A)(ii) and 18 U.S.C. 2 (counts 2, 4, 6, 7, and 8), one count of possessing cocaine base with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(ii) & (iii), and 18 U.S.C. 2 (count 3), five counts of possessing marijuana with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(D) and 18 U.S.C. 2 (counts 5, 9, 10, 11, and 12), one count of conspiracy to commit money laundering in violation of 18 U.S.C.1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(g), and 18 U.S.C. 371 (count 14), and one count of using and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c) (count 15).

In addition to the conspiracy count Alvarado was indicted on three counts of possessing cocaine with intent to distribute (counts 2, 6, and 7), and two counts of possessing marihuana with intent to distribute (counts 5 and 12).

The trial lasted approximately eight weeks. The district judge granted Adams' motion for directed verdict on one count of possessing marijuana with intent to distribute (count 11). Following several days of deliberations, the jury convicted all of the appellants on the conspiracy count. Adams was also convicted on four counts of possessing cocaine with intent to distribute, one count of possessing cocaine base with intent to distribute, two counts of possessing marihuana with intent to distribute, one count of conspiracy to commit money laundering, and one count of using and carrying a firearm in relation to a drug trafficking crime. The jury acquitted Adams on one count of possessing cocaine with intent to distribute (count 4) and two counts of possessing marihuana with intent to distribute (counts 9 and 12). Alvarado was convicted on all counts on which he was indicted.

Appellants were sentenced as follows:

Johnston, imprisoned for 135 months and a five year term of supervised release.

Adams, concurrent terms of life imprisonment on counts 1, 3, 7 and 8; 60 months on counts 5 and 10, and 240 months on counts 2 and 14, each of those sentences to run concurrently, and a 60 month consecutive term of imprisonment on count 15 (the gun count), concurrent terms of supervised release, and a $25,000 fine.

Lowery, imprisonment for 360 months, a five year term of supervised release, and a $10,000 fine.

Hill, imprisonment for 72 months, a three year term of supervised release, and a $6,000 fine.

Alvarado, concurrent terms of imprisonment of 340 months, 240 months and 60 months, concurrent terms of supervised release, and a $20,000 fine.

EVIDENCE

At the heart of this case is a widespread conspiracy to possess with intent to distribute marijuana, cocaine base, and cocaine, which operated from 1989 until 1994. Members of the conspiracy obtained large amounts of marijuana and cocaine in Houston, Texas and transported the drugs to Shreveport, Louisiana for distribution.

The government's case relied heavily upon the testimony of various participants in the conspiracy, including unindicted co-conspirators and indicted co-conspirators who entered into plea agreements with the government. Numerous law enforcement personnel and other witnesses also testified. Because of the nature of the errors urged by appellants, an extensive recitation of the evidence is necessary. We first review the evidence generally, as background for discussion of meritless claims of error by the district court and of prosecutors' misconduct. Concluding that some of the other misconduct claims are justified, we then discuss the effect thereof upon the convictions.

On December 3, 1991, Bosia Cash was stopped by a Diboll, Texas constable for a traffic violation. After seeing a gun in the vehicle and hearing Cash and his passenger Diane Mitchell give inconsistent accounts of their trip, the constable conducted a consensual search of the car and discovered three kilograms of cocaine. The constable arrested Cash and contacted John Marshall, a Shreveport DEA agent. Thereafter Cash agreed to cooperate with the DEA. ² Agent Marshall and Cash attempted to arrange a controlled delivery of the cocaine to Roosevelt Wisener in Shreveport; however, the attempt was unsuccessful. Cash then attempted to telephone appellant Adams. When Adams returned Cash's call, in a recorded conversation he told Cash that Cash was responsible for "them people's cocaine."

Thereafter, with the cooperation of Cash, DEA agent Robert Mansaw, acting in an undercover capacity, attempted to purchase several kilograms of cocaine from Adams. Adams failed to appear for a scheduled meeting with Mansaw, sending Roosevelt Gatterson, an unindicted co-conspirator, in his place. A purchase of cocaine was ultimately arranged, but the deal was never consummated. In recorded telephone conversations Mansaw and Adams discussed the price of cocaine, and Adams told Mansaw that he would make sure Mansaw got his "package."

At trial Cash identified Adams, a resident of Houston, as his source of the three kilograms of cocaine he was transporting at the time he was arrested and of other cocaine he had previously obtained. Cash described a prior transaction in which he delivered two kilograms of cocaine received from Adams to Danzel Morris. Morris refused to pay Cash for the cocaine, stating that Adams owed him cocaine. Adams told Cash that he owed Adams for the lost cocaine. Cash later gave Adams a race car and a truck as payment for the cocaine. Adams told Cash that his source for cocaine was an individual known as "Charlie", whom Cash and several other witnesses identified as appellant Alvarado.

Adams introduced Cash to Stevenson McClendon and Roosevelt Gatterson. McClendon worked with Adams at the Port of Houston. In a separate case, McClendon entered into a plea agreement in which he agreed, inter alia, to testify in this case. McClendon testified that he introduced Adams and Alvarado in 1989, that in 1990 he bought kilogram quantities of cocaine for Adams from Alvarado, and that he made two trips to Shreveport to deliver cocaine for Adams, on each occasion delivering two to three kilograms of cocaine to Cash. McClendon also testified that he witnessed Adams giving Alvarado money.

Gatterson also cooperated with the government and testified as follows. After Adams bought ProCare Engine Exchange (ProCare), an engine installation business in Houston, Gatterson worked there for approximately a year. In 1992 he picked up marijuana several times for Adams and delivered it to Shreveport, in vehicles belonging to Adams. Gatterson also delivered marijuana for Adams to Bruce Embrey and delivered kilogram quantities of cocaine to Shreveport for Adams, some of it to Cash. "Charlie" (Alvarado) provided Adams with the drugs. At Adams' request Gatterson picked up a tire containing cocaine from the side of Alvarado's house and delivered it to the barn where Adams' horses were stabled. Gatterson counted large amounts of cash at Adams' house on at least six occasions. At times while transporting drugs for Adams, Gatterson carried a gun provided by Adams.

In approximately May 1992 Albert Smith, then shop foreman at ProCare, arrived at ProCare early one morning and witnessed Gatterson and another man identified as Frank weighing white powder in the break room. Smith testified that he also saw the two men putting two packages of white powder in each of three tire rims. Several days after this incident, Adams required Smith to relinquish his keys to the ProCare building.

Kimela Lomax was paid for information provided to Agent Mansaw and testified for the government. She dated Adams for a number of months during the conspiracy and worked at ProCare after it was purchased by Adams. Lomax accompanied Adams on several trips to Shreveport, where Adams "took care of business" (his drug business). During these trips Adams met with appellants Lowery...