United States v. Steven Johnson ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4730
STEVEN JOHNSON, a/k/a Tootie, a/k/a
Too Low,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4816
GERALD SALLEY, a/k/a Arthur
Jackson, a/k/a G,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4963
LESTER JOHNSON, a/k/a Main,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4966
ANDRE MANIGAULT, a/k/a James
Manigault, a/k/a Goat,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4177
GERALD NOBLE, a/k/a Bell,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-95-488)
Argued: March 5, 1999
Decided: June 8, 1999
Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Christopher Mills, FAIREY, PARISE & MILLS,
P.A., Columbia, South Carolina, for Appellant Steven Johnson; Jack
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Bruce Swerling, Columbia, South Carolina, for Appellant Noble; J.
Dennis Bolt, BOLT, POPOWSKI, MCCULLOCH & STROM,
Columbia, South Carolina, for Appellant Lester Johnson; James Whit-
ney Boyd, Rock Hill, South Carolina, for Appellant Salley; Heather
Lee Smith, Columbia, South Carolina, for Appellant Manigault. Sean
Kittrell, Assistant United States Attorney, Columbia, South Carolina,
for Appellee. ON BRIEF: J. Rene Josey, United States Attorney,
Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Steven Johnson, Lester Johnson, Gerald Salley, Andre Manigault,
and Gerald Noble (collectively, "Appellants") appeal their convictions
and sentences for various crimes arising out of a major drug conspir-
acy that existed in the early 1990s. We affirm.
I.
Steven Johnson, the leader and primary organizer of the conspir-
acy, began selling drugs in the early 1980s in downtown Columbia,
South Carolina. After securing a Miami source for cocaine in 1989,
Johnson expanded his operation, setting up a distribution center in a
rural location off Brockington Road, near Columbia. Salley, Mani-
gault, Noble, and Johnson's brother Lester were members of the core
group of conspirators. Johnson sold two to three kilograms of cocaine
base per week to mid-level and street-level dealers from this location.
Johnson subsequently moved his distribution outlet to Hughes
Street in downtown Columbia. He continued to sell a high volume of
cocaine base, approximately three kilograms per week. Although the
core employees remained generally the same as they were before
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Johnson changed locations, Johnson discontinued his day-to-day man-
agement of the distribution center, leaving that duty to Lester and
another individual. Johnson continued, however, to supply cocaine to
the Hughes Street outlet. As his business grew, Johnson recruited sev-
eral people to sell for him away from the downtown location, and he,
Lester, Manigault, Salley, and others often made deliveries to these
other dealers.
Appellants were arrested and subsequently convicted of conspiracy
to possess with the intent to distribute cocaine and cocaine base. See
21 U.S.C.A. § 846 (West Supp. 1998). Noble also was convicted of
two counts of possession with the intent to distribute cocaine base, see
21 U.S.C.A. § 841(a)(1) (West 1981), and one count of using or car-
rying a firearm in relation to a drug trafficking crime, see 18 U.S.C.A.
§ 924(c)(1) (West Supp. 1998). Salley was convicted of two counts
of possession with the intent to distribute cocaine base, see 21
U.S.C.A. § 841(a)(1), and one count of possession of cocaine base,
see 21 U.S.C.A. § 844(a) (West Supp. 1998). All were given life sen-
tences with the exception of Noble, who was sentenced to 540 months
imprisonment.
II.
Although Appellants raise numerous allegations of error, only their
contention that the district court erred in admitting evidence concern-
ing threats of retaliation against Government informants warrants dis-
cussion. Appellants maintain that the evidence was improper
character evidence and that its probative value was substantially out-
weighed by the danger that it would cause them unfair prejudice. See
Fed. R. Evid. 403, 404(b). Rule 404(b) provides that evidence of prior
bad acts is not admissible to prove a defendant's character in order
to show conduct in conformity therewith, but is admissible to show
"motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident." Fed. R. Evid. 404(b). Rule 404(b)
does not apply to acts intrinsic to the crime charged. See United States
v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). "Other criminal acts are
intrinsic when they are inextricably intertwined or both acts are part
of a single criminal episode or the other acts were necessary pre-
liminaries to the crime charged." Id. (internal quotation marks omit-
ted). However, even if a prior bad act is extrinsic to the crime
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charged, evidence of it is admissible under Rule 404(b) if it is "(1)
relevant to an issue other than character, (2) necessary, and (3) reli-
able." United States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996)
(internal quotation marks omitted). Evidence is relevant if it has "any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than
it would be without the evidence." Id. (internal quotation marks omit-
ted). "Evidence is necessary if it furnishes part of the context of the
crime." Id. (internal quotation marks omitted). And, it is reliable "un-
less it is so preposterous that it could not be believed by a rational and
properly instructed juror." Id. at 1378 (internal quotation marks omit-
ted). Rule 403 states in pertinent part that "[a]lthough relevant, evi-
dence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice." Fed. R. Evid. 403. We
review a decision by the district court to admit evidence for an abuse
of discretion. See Chin, 83 F.3d at 87.
Appellants first challenge the admission of testimony by Willie
Wilson that Johnson told him during a trip to obtain cocaine base that
"if anybody ever told on me, I would kill them and their family,
beginning with their family." J.A. 455. That statement, made while
the parties were acting in furtherance of the conspiracy, was most
assuredly inextricably intertwined with and part of the same criminal
episode as the charged conspiracy. We conclude that the district court
did not abuse its discretion in admitting evidence of this threat.
Appellants next contend that Rules 404(b) and 403 precluded the
district court from admitting testimony by Wilson that there was "a
code in the street ... [t]hat snitches never live." J.A. 454. Because this
testimony was not evidence of a threat or other prior bad act, Rule
404(b) does not preclude its admission. For the same reason, the
admission of the statement carried with it very little danger of unfair
prejudice. We therefore do not believe that the district court abused
its discretion in admitting this evidence.
Appellants finally maintain that the district court abused its discre-
tion in admitting the testimony of Wade Barber that his brother had
received a telephone call during which the caller said that if Wade and
his brother testified, their sister would be killed. The caller was not
identified. Assuming that the district court erred in admitting this evi-
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dence, however, we are confident that the verdict was not substan-
tially swayed by the admission of the evidence. See United States v.
Ince, 21 F.3d 576, 583 (4th Cir. 1994) (citing Kotteakos v. United
States, 328 U.S. 750, 765 (1946)). The evidence of Appellants' guilt
produced by the Government during their eight-week trial was over-
whelming, and the evidence of this anonymous threat had little poten-
tial for prejudice, particularly considering that the court already had
admitted evidence of the "code of the street" and Johnson's stated
intent to kill any witness against him and the witness' family.
III.
In sum, the district court did not commit reversible error in admit-
ting the evidence of which Appellants complain. Further, after careful
consideration, we conclude that Appellants' other allegations of error
are without merit. Accordingly, we affirm.
AFFIRMED
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