USA v. Johnson

• Decision Date: 30 August 2010
• Docket Number: No. 09-3450.,09-3450.
• Citation: 619 F.3d 910
• Parties: UNITED STATES of America, Appellee, v. Timmy Nathan JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

619 F.3d 910

UNITED STATES of America, Appellee,

v.Timmy Nathan JOHNSON, Appellant.

No. 09-3450.

United States Court of Appeals,Eighth Circuit.

Submitted: June 16, 2010.

Filed: Aug. 30, 2010.

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Matthew McGovack Robinson, argued, Covington, KY, for appellant.

Timothy J. Willis, Special AUSA, argued, Cape Girardeau, MO, for appellee.

Before MELLOY, HANSEN, and SMITH, Circuit Judges.

HANSEN, Circuit Judge.

Following a jury trial, Timmy Nathan Johnson was convicted of one count of conspiracy to distribute 500 grams or more of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 21 U.S.C. § 841(b)(1)(A)(viii), one count of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i), and two counts of being a prohibited person in possession of firearms, in violation of 18 U.S.C. § 922(g)(1). The district court ¹ determined that Johnson was responsible for decidedly more than 15 kilograms of methamphetamine and assessed a two-level increase for being a leader or organizer in the conspiracy. The district court sentenced Johnson to 360 months' imprisonment. Johnson appeals, arguing that the district court erred in denying his pretrial motion to suppress evidence, in denying his motion for a directed verdict of acquittal, in determining the drug quantity, in assessing a two-level increase for his role in the offense, and in failing to give proper weight to his age and status as a drug addict in determining the sentence. For the following reasons, we affirm.

I.

Following Jesus Contreras's conviction and sentencing for drug dealing in 2004, his wife, Myrna Contreras, took over her husband's illegal drug dealing operation. At Johnson's trial, Myrna testified that she dealt drugs and collected money for Jesus's boss in the methamphetamine business. She also oversaw the delivery of methamphetamine and handled drug proceeds. She oversaw drug shipments of typically one to two pounds of methamphetamine to Johnson's house approximately once or twice a month from the end of 2004 until early 2008. The drugs would then be distributed throughout the organization. Johnson often paid Myrna in cash for the drugs, but she also set up a special account in which Johnson could deposit the money for the drugs.

Jimmy George testified that he met Johnson at the home of Jack Burgess, another member of the drug organization, one day when Shawn Montgomery, another conspirator, arrived with a shipment of methamphetamine. George testified that he sold methamphetamine to Johnson two or three times when Johnson ran out. George also testified that he had seen Myrna at Johnson's house with methamphetamine.

Shawn Montgomery testified that he had also met Johnson at Burgess's home and that he had delivered a half pound of methamphetamine to Johnson on at least three separate occasions. Montgomery also testified that he had collected money from Johnson for the sale of the methamphetamine.

Victor Thomason, another member of the organization, testified that he had delivered methamphetamine to Johnson under the orders of Jesus Contreras and had picked up approximately $6,000 of drug money from Johnson to give to Jesus. Thomason had also picked up methamphetamine from Johnson one or two times.

Ken Grady testified that in 2003 or 2004 he was interested in becoming involved in the drug business and was introduced to Johnson as someone to speak with if he wanted to deal drugs. Johnson agreed to assist Grady and provided him with methamphetamine to sell. Johnson provided Grady with methamphetamine every one to two weeks for six to seven months, starting with smaller amounts of around 3.5 grams and eventually providing up to approximately 110 to 140 grams.

At trial, the Government presented evidence that various members of the conspiracy deposited proceeds from the sale of methamphetamine into bank accounts maintained by Myrna at Bank of America. Myrna testified that she initially delivered the money from the account to the “provider” in New Mexico and eventually to her husband in Mexico after he had been released from prison. (Trial Tr. Vol. II at 77.) Myrna provided the account information to members of the conspiracy so they could deposit the proceeds from the sale of the methamphetamine, and informed the members of the conspiracy, including Johnson, not to make deposits over $10,000 because of reporting requirements.

At trial, Myrna identified Government's Exhibit 9 as a deposit form for her Bank of America account from June 28, 2005, when Johnson was making deposits to pay for methamphetamine. The deposit was for $9,000, which she testified was a “typical amount that would be deposited.” (Trial Tr. Vol. II at 85.) Myrna testified that Johnson would typically call her and tell her when he was going to make a deposit and that he made deposits on more than six occasions. The other members of the conspiracy testified that they had made similar deposits into the Bank of America accounts. George testified that he had made a couple of deposits; Montgomery testified that he made deposits three to six times; Thomason testified that he had made wire transfers into the account.

The Government offered the testimony of Eric Neeley, who worked for Bank of America as a banking center manager for three and a half years and had been in the banking industry for approximately ten years total. Neeley identified Government's Exhibit 9 as a deposit ticket from Bank of America that was made at or near the time of the deposit kept as part of the course of regularly conducted business activity at the bank. The deposit ticket bore the name “Tim Johnson” and had a Missouri driver's license number, which Neeley testified would have been put on by the teller at the time of the deposit and could not have been added later because the records were kept electronically. Johnson stipulated that the number on Exhibit 9 was his Missouri driver's license number in 2005. Neeley testified that it was the bank's policy for tellers to take identification from non-account holders making deposits into Bank of America accounts and record the depositor's name and identification information on the deposit ticket.

On June 27, 2008, Drug Enforcement Administration (DEA) Special Agent Bernie Gard, Missouri State Highway Patrol Sergeant Mark McClendon, and Bootheel Area Drug Task Force Officer Marcus Hopkins went to Johnson's home to conduct what is referred to as a “knock and talk” interview, in which officers go to the door of someone suspected of drug activity, knock on the door, identify themselves as officers, and ask if they can enter the home and discuss drug activity they have heard about. When they knocked at Johnson's home, they introduced themselves and asked if they could speak to him. Johnson invited the officers into his home, and Special Agent Gard informed Johnson that he was not under arrest, that he did not have to speak with the officers, and that he could ask the officers to leave if he did not wish to answer questions. Johnson agreed to speak with the officers and made statements implicating himself in the use and distribution of methamphetamine. Johnson stated that he had known Myrna and Jesus Contreras for several years, that he was a regular user of methamphetamine, and that he had “cut,” which is a substance narcotics dealers add “to make a quantity of methamphetamine ... look larger” for purposes of resale. (Evidentiary Hearing Tr. at 23.) At the start of the interview, Johnson was wearing only underwear. Shortly after the interview began, Johnson asked to put on pants, and the officers agreed after making sure there were no weapons in the pants.

Immediately upon entering the home, Sergeant McClendon observed a handgun on the kitchen counter. After speaking with Johnson, the officers searched, with Johnson's permission, Johnson's residence, a shop building, and a vehicle on the premises. They located a set of digital scales containing methamphetamine residue, a black vinyl bag with baggies and a pipe in it, more glass pipes, a rifle, and ammunition.

Special Agent Gard testified at an evidentiary hearing that Johnson never tried to revoke his consent to search, never attempted to limit his consent to search, never requested to speak to an attorney, never asked the officers to leave, and was allowed to use the telephone. According to Special Agent Gard's testimony, Johnson did not appear to be intoxicated or under the influence of drugs or alcohol, did not appear to be ill, did not seem to have difficulty in understanding the officers, and was not threatened.

During the officers' time at Johnson's residence, his phone rang. Johnson answered the phone and said that it was his girlfriend. He then asked the officers to leave because he was afraid his girlfriend would know who they were but requested to meet with the officers again at a later time. Based on this request for a second meeting, he came to the Dunklin County Justice Center on June 30, 2008, and met with Sergeant McClendon and Officer Hopkins. Johnson was advised that he did not have to speak with officers and that he was free to leave at any time. He told the officers that he had obtained small quantities of drugs from Myrna Contreras. Johnson never attempted to stop the interview, never requested to speak with an attorney, was not forced to speak with the officers, and was not threatened by the officers.

Johnson was indicted and charged with conspiracy to distribute 500 grams or more of a substance containing methamphetamine. Johnson filed a pretrial motion seeking to suppress physical evidence and statements he made during the knock and talk interview on June 27 and the interview on June 30. The magistrate judge ² issued a report and recommendation recommending the motion be denied. Johnson filed an objection to the report, and the district court denied the objection, accepted the...