USA. v. Johnson

• Decision Date: 13 January 2000
• Docket Number: No. 99-1414,99-1414
• Citation: 200 F.3d 529
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. James E. Johnson, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 529

200 F.3d 529 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. James E. Johnson, Defendant-Appellant.

No. 99-1414

In the United States Court of Appeals For the Seventh Circuit

Argued September 10, 1999

Decided January 13, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 CR 211--Charles N. Clevert, Judge. [Copyrighted Material Omitted] Before Flaum, Manion, and Diane P. Wood, Circuit Judges.

Manion, Circuit Judge.

James Johnson was convicted by a jury of one count of conspiracy to distribute and to possess with intent to distribute in excess of five kilograms of cocaine. He was sentenced to 360 months of imprisonment. He argues on appeal that the government failed to provide Jencks Act material and that the district court erred in admitting hearsay at his trial. As to his sentence, Johnson argues that the district court erred in adopting the government's determination of the amount of cocaine attributable to him. Finding no error, we affirm.

I.

The prosecution's primary witness at Johnson's trial was Michael Blake, one of Johnson's associates and drug suppliers who had agreed to cooperate with the authorities. Blake testified that he began distributing cocaine in the Milwaukee, Wisconsin area around 1979. He met Johnson around that time through Johnson's brother, Charles, and began distributing drugs to James Johnson. Blake's drug distribution was periodically interrupted by short stints in prison, but when he was released in 1995, a former prison buddy--Candelario Nevarez-Diaz-- contacted him and proposed a cocaine dealing venture. Nevarez-Diaz agreed to front the cocaine, meaning Blake would pay for it only after he had sold it to others. That very night, Nevarez-Diaz fronted Blake 125 grams of cocaine, which Blake in turn fronted to Johnson and another individual, Gordon Hagenkord. Blake and Hagenkord also fronted cocaine to Robert Schultz¹ and his stepdaughter Colleen Hanson, who sold it out of Shultz's Milwaukee bar, the Blue Ribbon Pub.

The sales continued and increased to a point where in early 1996, Nevarez-Diaz was supplying Blake with one kilogram of cocaine every two months. Blake, in turn, delivered some of the cocaine to Johnson's home in Milwaukee. Blake testified that in 1996, he delivered up to two kilograms of cocaine to Johnson at any one time, and Johnson paid him $28,000 for each kilogram. By this time, Blake was working closely with Nevarez-Diaz and even used Nevarez-Diaz's money to purchase a Chevrolet Lumina to transport drugs from Arizona. In 1997, Nevarez-Diaz supplied Blake with around 5 to 10 kilograms of cocaine every ten to twelve days, for which Blake paid him $22,000 per kilogram. Blake, in turn, supplied Johnson with between 3 and 4 kilograms of cocaine every ten to twelve days, and sold it on credit for about $27,000 per kilogram. Blake estimated that between January 1, 1996 and July 24, 1997 he supplied Johnson with between 35 and 45 kilograms of cocaine.

On July 24, 1997, the police finally caught up with Blake when they pulled his car over for a traffic violation. A search of his vehicle turned up cocaine and around $120,000, some of which Johnson had given to Blake for cocaine. Charged with possession of cocaine and facing a long stretch in prison, Blake decided to cooperate with the government. With the assistance of the police, he placed recorded telephone calls to Nevarez-Diaz, Johnson, and Hagenkord. Audio tapes of Blake's four conversations with Johnson were admitted into evidence and played for the jury. The recorded conversations were consistent with Blake's testimony that he fronted cocaine to Johnson and that Johnson was a willing participant in the conspiracy.

Johnson testified at his trial, and although he admitted that he used cocaine, he denied that he ever was involved in a drug conspiracy. Rather, Johnson stated that he and Blake sold seafood products. According to Johnson, Blake would drop off shrimp, which Johnson would peddle on the street and for which he would pay Blake some of the proceeds. Apparently the jury did not believe him, as it convicted him of one count of conspiracy with intent to distribute and possession with the intent to distribute cocaine, in violation of 21 U.S.C. sec. 841(a)(1). With an offense level of 37 and a criminal history category of VI, Johnson was sentenced to 360 months of imprisonment, the shortest sentence permitted under the Guidelines.

II.

A. Co-Conspirator Exception to the Hearsay Rule

During direct examination, government witness Gordon Hagenkord was asked about his duties in carrying on the drug business after supplier Michael Blake was arrested. As part of his response Hagenkord stated that when he started selling drugs for Blake, "I took over the south side and J.J. [Johnson] had the north side." Johnson first contends that the district court erred in admitting this testimony. Johnson argues that this statement, "J.J. had the north side", was inadmissible hearsay not covered by the co-conspirator exception because Blake's statement was not made in furtherance of the conspiracy.²

We review for an abuse of discretion the district court's decision to admit testimony while its factual findings are examined for clear error. United States v. Mojica, 185 F.3d 780, 788 (7th Cir. 1999); United States v. Petty, 132 F.3d 373, 379 (7th Cir. 1997). A statement is not considered to be hearsay if it is made by "a co-conspirator of a party during the course and in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E). To utilize the co-conspirator exception the government must show that: (1) a conspiracy existed; (2) the declarant and the defendant were both members of the conspiracy; and (3) the statements were made in the course and in furtherance of the conspiracy. Mojica, 185 F.3d at 788.

Statements which further the conspiracy must be distinguished from mere idle chatter, narrative declarations, and superfluous casual remarks which do not further the conspiracy. United States v. Curry, 187 F.3d 762, 766 (7th Cir. 1999); United States v. Santos, 20 F.3d 280, 286 (7th Cir. 1994) (narrative discussions of past events were not statements made in furtherance of the conspiracy). Statements made in furtherance of a conspiracy can take a variety of forms. Some examples include comments designed to assist in recruiting potential members, to inform other members about the progress of the conspiracy, to control damage to or detection of the conspiracy, to hide the criminal objectives of the conspiracy, or to instill confidence and prevent the desertion of other members. United States v. Godinez, 110 F.3d 448, 454 (7th Cir. 1997); United States v. Stephenson, 53 F.3d 836, 845 (7th Cir. 1995); United States v. Brookins, 52 F.3d 615, 623 (7th Cir. 1995); United States v. Cox, 923 F.2d 519, 527 (7th Cir. 1991). Courts assess a statement's ability to advance the conspiracy in the context in which the statement was made. United States v. Powers, 75 F.3d 335, 340 (7th Cir. 1996). "The statement need not have been made exclusively, or even primarily, to further the conspiracy." Id. Rather, the record need only contain some reasonable basis for concluding that the statement in question furthered the conspiracy in some respect. Stephenson, 53 F.3d at 845; United States v. Marin, 7 F.3d 679, 690 (7th Cir. 1993).

Here, Blake's statement, "J.J. had the north side", as repeated by Hagenkord, served several purposes. First the statement gave Hagenkord confidence in the confederacy through knowledge that others like Johnson were similarly willing to participate in the conspiracy. More importantly, the statement conveyed to Hagenkord the breadth of the conspiracy, its geographical divisions, and his role with respect to those divisions. Blake's statement could have furthered the conspiracy by letting Hagenkord know that he was to concentrate on the south side of town while leaving the north side for Johnson. By precluding internecine competition, the conspiracy could more efficiently allocate its resources and thereby minimize waste. Thus, we have held that the "in furtherance" element is satisfied when the statement conveys information which helps conspirators perform their designated roles, as Blake's comment did in this case. Godinez, 110 F.3d at 454. Similarly, by preventing the conspiracy from becoming a house divided against itself, Blake's comment helped to prolong the conspiracy. Because Blake's statement to Hagenkord furthered the goals of the conspiracy in several respects, the district court did not err in admitting this testimony under Rule 801(d)(2)(E).

B. Jencks Act

Johnson also argues that the government failed to provide Jencks Act material, despite the government's assurances to the district judge that it had no such material with respect to Gordon Hagenkord. In support of this argument, Johnson directs our attention to his trial attorney's cross-examination of Hagenkord.

Defense Counsel:

You said that persons [a prosecuting attorney, an IRS agent, and DEA agent Rodel Babasa] read reports to you?

Hagenkord:

They weren't reports. They were, they read back my own statements to me as I, they were putting them down.

Defense Counsel:

That is, they had a document that had your statement in it?

Hagenkord:

Yes.

Defense Counsel:

And they read your statements back to you?

Hagenkord:

Yes.

Defense Counsel:

And they read your statements back and asked you if that's what happened. Do I have that right?

Hagenkord:

Yes.

[Tr. Trans. Vol X pp. 348-49] According to Johnson, this colloquy demonstrates that Jencks material existed, and he argues that he never received this material.

The Jencks Act was enacted in response to the Supreme Court's holding in Jencks v. United States, 353 U.S. 657 (1957). To ensure the meaningful confrontation of government witnesses, the Act requires the government, upon the defendant's motion, to produce...