United States v. Johnson, 11–3204.

• Citation: 688 F.3d 494
• Decision Date: 06 September 2012
• Docket Number: No. 11–3204.,11–3204.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Bert MacArthur JOHNSON, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

688 F.3d 494

UNITED STATES of America, Plaintiff–Appellee,

v.Bert MacArthur JOHNSON, Defendant–Appellant.

No. 11–3204.

United States Court of Appeals, Eighth Circuit.

Submitted: May 18, 2012.

Filed: July 31, 2012.

Rehearing and Rehearing En Banc Denied Sept. 6, 2012.

Chad R. McCabe, argued, Bismarck, ND, for appellant.

Keith Reisenauer, AUSA, argued, Fargo, ND, David D. Hagler, USA, on the brief, Bismarck, ND, for appellee.

Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.

BYE, Circuit Judge.

A jury convicted Bert MacArthur Johnson of possession with intent to distribute, as well as distribution of, 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Johnson appeals the district court's ¹ denial of his motion for judgment of acquittal, and asks for a new trial contending (1) a biased juror rendered his trial inherently unfair; (2) the government failed to present evidence sufficient to prove he distributed 500 grams or more of methamphetamine; and (3) the government violated his Sixth Amendment Confrontation Clause rights by failing to call as witnesses the forensic lab technician who checked the drugs found at Johnson's residence into and out of the state crime lab, and the lab supervisor who certified the lab report as a true copy of the original. We affirm.

I

Investigators began receiving information that Johnson was involved in drug distribution in the Williston, North Dakota, area as early as 2006. On February 24, 2010, officers with the Northwest Narcotics Task Force executed a search warrant on Johnson's property in Williston. Upon arriving, the officers found Johnson sitting in his pick-up truck. His ex-wife and son were also on the property.

From an ammunition box inside Johnson's pick-up truck, officers recovered approximately three pounds of methamphetamine packaged in varying quantities: seven bags contained one ounce each, two bags contained two pounds each, and one bag contained approximately ten ounces.² Officers also recovered smaller, purer amounts of methamphetamine in Johnson's coveralls' pocket, along with $7,500 in cash divided into four envelopes. Johnson offered the money to one agent, asking him to “just take it and walk away.” Tr. at 168. Under the bed where Johnson's son was sleeping, officers recovered an additional $19,580 in cash, also packaged in envelopes or folded into bundles.³ A drug dog alerted to the cash after officers placed it back under the mattress. Officers arrested Johnson.

The drugs recovered pursuant to the search formed the basis for count one of the indictment, possession of a controlled substance with intent to distribute. After Agent Derek Bernier secured the drugs at Johnson's residence, he took them to the state crime lab in Bismarck, North Dakota, for analysis. According to the report submitted into evidence, the drugs were received and signed into the lab by evidence technician Brandy Schneider. After initial testing, Schneider returned the drugs to Agent Bernier, who later brought the drugs back for further analysis.

Forensic scientist Chris Focke conducted all analyses on the drugs. Focke testified at trial based on his own memory and by referencing a copy of the lab report he had created, which LaMonte Jacobson, the lab supervisor, had certified as a true copy of the original. Focke told the jury what procedures he had followed and which instruments he had used to identify the substance and its purity; he had identified the substance recovered in Johnson's truck as methamphetamine. Focke also explained the procedures the lab took to ensure the evidence remained secure, including the log system employed to document any transfer of the evidence; he testified lab procedures were properly followed in this case. Johnson repeatedly objected to the admission of the certified lab report, and the drugs themselves, based on chain of custody, lab testing methods, and lab security.

The testimony of Jordan Magrum—regarding his drug transactions with Johnson—formed the basis for count two, actual distribution of 500 grams or more of a controlled substance. Magrum is a recovering drug addict. He testified that he had been using and dealing controlled substances, including methamphetamine, for most of his adult life. Magrum explained he had been convicted of several drug-related crimes, including a 2010 state charge for possession of methamphetamine with intent to distribute, for which he was currently on probation. In addition, Magrum admitted he was receiving immunity from federal prosecution in exchange for testifying against Johnson.

As it related to Johnson, Magrum testified that after meeting Johnson in January 2009, they smoked methamphetamine and marijuana together on a number of occasions. Then, between February 2009 and June 2009, Magrum received, on average, one to two ounces of methamphetamine from Johnson four or five times per week to sell. Magrum estimated he received “at least at a minimum two pounds” of methamphetamine from Johnson over this time period. Tr. at 253.

Agent Charissa Remus–Kvande testified that two days after his arrest, Johnson asked to speak with members of the Task Force. During that meeting, Johnson told the officers the methamphetamine they had found in his truck was not his: someone had placed it there and Johnson had been contemplating what to do with it for the thirty minutes prior to law enforcement arriving at his property. In addition, Remus stated that while Johnson was adamant he was not a drug dealer, he did admit that people, including Magrum, had dealt methamphetamine for him in the past, that Johnson had traded methamphetamine for firearms and a vehicle, and that Johnson himself had acted as a middle man between California sellers and a local dealer, Chad Boots.

At trial, Johnson testified in his own defense. He explained that a neighbor had given him the money officers had found in his coveralls in exchange for some of Johnson's land; the parties had not yet gotten around to drawing up a transfer deed, however, prior to Johnson's incarceration. Both Johnson and his son testified the money found under the son's bed was the son's life-long savings. As for the methamphetamine in the truck, Johnson repeated his claim that someone else had put the methamphetamine on Johnson's property, and that Johnson was sitting in the truck when law enforcement executed the search warrant wondering what he should do with that methamphetamine: he had just decided he was going to burn the drugs when law enforcement arrived. In so testifying, Johnson stated that he had found his “ammo box loaded full of marijuana and methamphetamine.” Tr. at 328. Johnson admitted selling to, and receiving some methamphetamine from, Magrum, but claimed the amounts were far less than the quantities to which Magrum had testified. Finally, while Johnson admitted telling officers he was a middle man for Boots, he told the jury his prior statement was untrue: he had only told the officers this because he thought it was what they wanted to hear.

Voir Dire

The following facts are important as they relate to Johnson's claim one juror was biased and thus rendered his trial inherently unfair. During the early stages of voir dire Juror S.R. volunteered to the court she had been arrested for driving while intoxicated twelve to thirteen years ago, but that it would not affect her ability to be fair and impartial. Tr. 40–41. The court later asked if anyone had any immediate family involved in law enforcement; S.R. did not respond. Later, Johnson's attorney asked if anyone had any close friends involved in law enforcement. S.R. raised her hand. The following colloquy then took place between Johnson's attorney and S.R.:

MR. VANNI: I just want to expand on [the Judge's question] a bit and ask if any of you have any close friends or acquaintances who work for a law enforcement agency, not just here in North Dakota, but anywhere in the country. And you are [S.R.][?]

S.R.: Correct.

MR. VANNI: Yes, ma'am.

S.R.: Well, my very good friend, we lived together all through our college days in Fargo–Moorhead. She was a parole and probation officer in Fargo for four years before moving to Portland, Oregon, and she is a parole and probation officer there too.

MR. VANNI: Okay. And as you know, as has been explained, we'll have a lot of testimony in this case from law enforcement officers. Does the fact that this friend of yours is a parole and probation officer, do you think you would give more weight or find more credible the testimony of a law enforcement officer as opposed to any other individual who might testify in this case?

S.R.: Probably that they would be more credible, I guess, just based on my experience with her.

MR. VANNI: Okay.

S.R.: I hope I could be objective, but—

MR. VANNI: You would want to try to be objective—

S.R.: Yes. Exactly.

MR. VANNI: —but you're admitting that there might be a possibility that—

S.R.: There might be a possibility.

MR. VANNI: Okay. Well, I appreciate your honesty on that. Is there anyone else? ...

Johnson never moved to remove S.R. for cause, and S.R. was seated as a juror. The jury unanimously found Johnson guilty on both counts.

II

A. The Biased Juror

The Sixth Amendment guarantees all those accused of a crime the right to be tried by an impartial jury. U.S. Const. amend. VI. This “constitutional guarantee has not been granted if any member of the jury was biased.” Johnson v. Armontrout, 961 F.2d 748, 751 (8th Cir.1992). Further, we have held that “a juror who would probably give law enforcement officers the benefit of the doubt, is not what we would consider impartial.” United States v. Sithithongtham, 192 F.3d 1119, 1121 (8th Cir.1999) (internal quotation marks and citation omitted). Today we must decide whether the impaneling of Juror S.R., who admitted there “might be a possibility” she would find law enforcement officers more credible than other witnesses, violated Johnson's Sixth Amendment right...