U.S. v. Owens

• Decision Date: 15 November 1995
• Docket Number: Nos. 94-6409,94-6424 and 94-6411,s. 94-6409
• Parties: 43 Fed. R. Evid. Serv. 422 UNITED STATES of America, Plaintiff-Appellee, v. Nick Alfred OWENS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kevin Lee JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1118

70 F.3d 1118

43 Fed. R. Evid. Serv. 422

UNITED STATES of America, Plaintiff-Appellee, v. Nick Alfred OWENS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kevin Lee JOHNSON, Defendant-Appellant.

Nos. 94-6409, 94-6424 and 94-6411.

United States Court of Appeals Tenth Circuit.

Nov. 15, 1995.

Leslie M. Maye, Assistant United States Attorney (Patrick M. Ryan, United States Attorney with her on the brief), Oklahoma City, Oklahoma, for Plaintiffs-Appellees.

Donald A. Herring of Schnetzler/Strealy, Oklahoma City, Oklahoma, for Defendant-Appellant in Nos. 94-6409 and 94-6414.

Robert K. Weinberg (Nola M. McGuire with him on the brief), Irvine, California, for Defendant-Appellant in No. 94-6411.

Before BRORBY, BARRETT and LOGAN, Circuit Judges.

BRORBY, Circuit Judge.

A jury convicted Nick Alfred Owens and Kevin Lee Johnson of one count of conspiracy to distribute "cocaine powder and/or cocaine base" in violation of 21 U.S.C. Secs. 841(a) and 846. It also convicted Nick Owens of one count of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g); and convicted Kevin Johnson of one count of aiding and abetting interstate travel in aid of racketeering in violation of 18 U.S.C. Secs. 2 and 1952(a)(3); one count of using a wire transfer to facilitate the distribution of cocaine powder and/or cocaine base in violation of 21 U.S.C. Sec. 843(b); and one count of aiding and abetting the use of a wire transfer to facilitate the distribution of cocaine powder and/or cocaine base in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 843(b).

In this consolidated appeal, Nick Owens and Kevin Johnson challenge their conspiracy convictions and sentences. Mr. Owens also challenges his conviction for being a felon in possession of a firearm. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a) and affirm the convictions, but remand both Nick Owens' and Kevin Johnson's cases to the district court for resentencing in accordance with this opinion.

A grand jury returned a twenty-nine-count indictment charging Kevin Lee Johnson, Nick Alfred Owens, and ten other individuals with various crimes committed during the course of a six-year conspiracy to distribute cocaine in the Musgrave Addition area of Oklahoma City. ¹ Seven of the twelve entered into plea agreements with the government, and the remaining defendants, Timothy Johnson, Kevin Johnson, Nick Owens, Chiquita Owens, and William Gaines, were tried together. Nick Owens and Kevin Johnson moved for judgments of acquittal on all counts at the close of the government's case in chief. Fed.R.Crim.P. 29(a). The district court denied the motions and the jury found both Mr. Owens and Kevin Johnson guilty as charged.

The evidence at trial, which included the testimony of coconspirators Morris Johnson, Floyd Bush, Charles Watson, Ramon Cartznes, and Larry Stutson, showed the following: At the end of 1987, Nick Owens began supplying his nephew Morris Johnson with one-quarter to one-half ounce of crack cocaine once or twice per week. After Morris Johnson sold the cocaine, he returned half of the money to Nick Owens and kept the other half. Nick Owens also supplied crack cocaine to his brother, Jerome Owens, for resale. In May 1988, Nick Owens began supplying his other nephew, Timothy Johnson, with the same amount of crack cocaine for resale. Later in 1988, Morris and Timothy Johnson hired Floyd Bush, their cousin Ronnie Johnson, Charles Watson, Arthur Westerbrook, and Devin Prince to help them resell the cocaine Nick Owens supplied to them. Morris and Timothy Johnson paid them $10 for every $50 worth of crack cocaine they sold. By late 1989, Nick Owens had begun supplying Morris and Timothy Johnson with as much as an ounce of crack cocaine at a time.

Occasionally, Nick Owens supplied Morris and Timothy Johnson with cocaine powder instead of crack cocaine. Morris and Timothy's customers would only buy crack cocaine, not cocaine powder, and at that time they did not know how to cook powdered cocaine into crack cocaine, so they hired William Gaines. Mr. Gaines received $100 for every half-ounce of cocaine he cooked. Mr. Gaines taught Morris and Timothy Johnson how to cook cocaine some time before the summer of 1992. In the summer of 1992, Timothy Johnson and William Gaines cooked one kilogram of cocaine together. After he taught Morris and Timothy Johnson how to cook cocaine, Mr. Gaines continued to participate in the organization by acting as a lookout and notifying Timothy Johnson by walkie-talkie if the police were nearby.

By the fall of 1991, Nick Owens had begun smoking crack cocaine himself and was no longer a reliable source of cocaine for the organization. In November 1991, Kevin Johnson introduced Timothy Johnson to Ramon Cartznes in a motel room in Oklahoma City. Before the meeting, Kevin Johnson told Mr. Cartznes that Timothy Johnson was selling cocaine in Oklahoma City and that they could "make some money." After the meeting, Kevin Johnson and Mr. Cartznes flew back to California together. At that time, it was Mr. Cartznes' understanding that he would be the organization's new supplier. Timothy Johnson later introduced Ramon Cartznes to Morris Johnson as "the new supplier," and told him that Mr. Cartznes could supply half-kilogram and one-kilogram shipments of cocaine once or twice per week. Kevin Johnson acted as an intermediary between Mr. Cartznes and Timothy Johnson thereafter. Mr. Cartznes continued to supply Kevin and Timothy Johnson until February 1994.

In the summer of 1992, Charles Watson, Timothy Johnson, and two others drove to Los Angeles and picked up one-half kilogram of cocaine at Kevin Johnson's apartment, supplied by Mr. Cartznes. Two or three weeks later, Timothy Johnson and two others drove out to California again to pick up another one-half kilogram of cocaine because they had sold all that they had gotten on the last trip. In January 1993, Timothy Johnson paid his cousin Chiquita Owens $500 to "body pack" one-half kilogram of cocaine and transport it from California to Oklahoma City on a commercial airline. Around the same time, Timothy Johnson paid his uncle, Jerome Owens, $500 to transport the same amount of cocaine in the same way.

On January 23, 1993, Morris Johnson wired Timothy Johnson and Charles Watson $700 because they told him someone had robbed them while they were in California and taken $17,000 in cash they planned to deliver to Mr. Cartznes as payment for an earlier shipment of cocaine. Other testimony indicates, however, Timothy Johnson and Charles Watson were not robbed, but Ronnie Johnson, who drove out with them, had given the money to another dealer only to discover later that he had purchased cake mix rather than cocaine powder. They told Mr. Cartznes the police had taken the money.

Shortly thereafter, Chiquita Owens, Charles Watson, and Ronnie Johnson started to drive to California to deliver $10,000 to Mr. Cartznes for drugs he had supplied earlier and pick up more cocaine, but their car broke down on the way. Ms. Owens had the money in her purse. Later in 1993, Timothy Johnson, Ronnie Johnson, Larry Stutson, and Devin Prince drove to California to pick up one-half kilogram of cocaine. Ronnie Johnson and Devin Prince were arrested in Arizona on the return trip. Nick Owens also drove to California and picked up shipments of between one-half and one kilogram of cocaine from Mr. Cartznes for Timothy Johnson on at least three occasions. Mr. Owens drove out a fourth time to deliver money to Mr. Cartznes and pick up more cocaine, but Mr. Cartznes' supplier was dry.

Mr. Cartznes also sent ten shipments of between five ounces and one-half kilogram of cocaine to Oklahoma City by UPS. Once, after Kevin Johnson had signed for a package containing one-half ounce of cocaine from Mr. Cartznes, Robert Malone stole it from him at gunpoint. On some occasions, Kevin Johnson carried the money back to Los Angeles to pay Mr. Cartznes, and on other occasions Charles Watson and others wired money to Kevin Johnson and others in Los Angeles by Western Union, to be turned over to Mr. Cartznes as payment for cocaine.

In addition to the above, Chiquita Owens occasionally distributed 2.5 kilogram doses of crack cocaine, supplied by Timothy Johnson and helped Chris Scott reach Timothy Johnson to buy drugs when Timothy Johnson did not respond to his pager. Mr. Gaines also occasionally sold small amounts of crack cocaine. Edwin Smith made a controlled buy of one-half ounce of crack cocaine from Mr. Gaines on February 25, 1994.

I. Contentions Relating to Guilt

A. Admission of Statements by Coconspirators

Mr. Johnson contends the district court erred in admitting certain out-of-court statements by his coconspirators as non-hearsay pursuant to Fed.R.Evid. 801(d)(2)(E). ² Before admitting evidence under this rule, " 'The court must determine that (1) by a preponderance of the evidence, a conspiracy existed, (2) the declarant and the defendant were both members of the conspiracy, and (3) the statements were made in the course of and in furtherance of the conspiracy.' " United States v. Urena, 27 F.3d 1487, 1490 (10th Cir.) (quoting United States v. Johnson, 911 F.2d 1394, 1403 (10th Cir.1990), cert. denied, 498 U.S. 1050, 111 S.Ct. 761, 112 L.Ed.2d 781 (1991)), cert. denied, --- U.S. ----, 115 S.Ct. 455, 130 L.Ed.2d 364 (1994). The district court may make these factual determinations using either of two procedures: (1) It may hold a "James hearing," see generally, United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), outside the presence of the jury to determine whether the predicate conspiracy existed, or (2) it may provisionally admit the evidence with the caveat that the evidence must "connect up" during trial, i.e., that the party offering the evidence must prove the existence of the predicate conspiracy...