United States v. Johnson , 110 F. App'x 319 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4573
RUSSELL EDWARD JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-02-296)
Submitted: August 30, 2004
Decided: September 27, 2004
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert I. O’Hale, CLIFFORD, CLENDENIN, O’HALE & JONES,
L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills Wag-
oner, United States Attorney, Michael A. DeFranco, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JOHNSON
OPINION
PER CURIAM:
A jury convicted Russell Edward Johnson of possession of a fire-
arm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000)
(counts one and four); assault on a federal agent, 18 U.S.C.
§ 111(a)(1), (b) (2000) (count two); brandishing a firearm during a
crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii) (2000) (count three);
possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1),
(b)(1)(D) (2000) (count five); and possession of firearms in further-
ance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i) (count
six). He was sentenced to a total of thirty-two years imprisonment.
We affirm.
On appeal, Johnson first contends that the district court erred in
denying his motion to dismiss the two counts of the superseding
indictment charging possession of a firearm by a convicted felon
because his civil rights had been restored under North Carolina law.
Specifically, he argues that, since he was not prohibited under North
Carolina law from possessing the subject weapons at his residence
and lawful place of business after his civil rights had been restored,
the counts should be dismissed. While 18 U.S.C. § 921(a)(20) (2000)
prevents federal prosecution for felon in possession of a firearm
where the defendant has had his civil rights restored on the predicate
felony, where, as here, the defendant was restricted by his felon status
under state law from possessing firearms outside his home or busi-
ness, 18 U.S.C. § 922(g) prohibits him from possessing any guns,
even those permitted under state law. See Caron v. United States, 524
U.S. 308, 315-17 (1998) (affirming federal firearms convictions
where defendant had not regained all firearm rights, even though the
weapons he possessed were not proscribed by Massachusetts state fel-
ony firearm laws). We therefore conclude that the district court did
not err in denying the motion to dismiss.
Also in regard to his convictions for possession of a firearm by a
convicted felon, Johnson argues that the district court abused its dis-
cretion in denying his motion to present an entrapment by estoppel
defense. This Court reviews a district court’s pretrial decision to
refuse to allow a defendant to present an affirmative defense for abuse
UNITED STATES v. JOHNSON 3
of discretion. United States v. Osborne, 935 F.2d 32, 38-39 (4th Cir.
1991). Because Johnson does not allege that he relied on statements
by federal officials, we find that the district court did not abuse its dis-
cretion in refusing to allow him to present this defense. See United
States v. Clark, 986 F.2d 65, 69 (4th Cir. 1993) (statements made by
a person who is not a federal government official cannot establish the
defense of entrapment by estoppel).
Next, Johnson maintains that the district court erred in denying his
motion to dismiss these same counts on the ground that the 1995
amendment of the North Carolina firearms statute violates the Ex Post
Facto Clause as applied to him. This Court reviews a district court’s
ruling on whether the Ex Post Facto Clause bars a criminal prosecu-
tion de novo. United States v. Wilson, 210 F.3d 230, 233 (4th Cir.
2000). We find this argument foreclosed by our decision in United
States v. Farrow, 364 F.3d 551 (4th Cir. 2004). In Farrow, we specif-
ically held that the retroactive application of N.C. Gen. Stat. § 14-
415.1 did not violate the Ex Post Facto Clause. Id. at 555; see also
United States v. O’Neal, 180 F.3d 115 (4th Cir. 1999) (holding that
1975 amendment to North Carolina’s firearms disability statute
increasing the disability period to five years did not violate the Ex
Post Facto Clause).
Johnson also argues that the district court erred in denying his
motion to suppress. In that motion, Johnson argued that Detective
Rogers’ affidavit did not establish a fair probability that contraband
or evidence would be found at Johnson’s residence, and therefore the
issuance of the search warrant violated Johnson’s Fourth Amendment
rights.
This Court reviews the factual findings underlying the denial of a
motion to suppress for clear error, while reviewing the legal determi-
nations de novo. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992). When a suppression motion has been denied, review of the
evidence is made in the light most favorable to the Government.
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). In
reviewing the propriety of issuing a search warrant, the relevant
inquiry is whether, under the totality of the circumstances, the issuing
judge had a substantial basis for concluding that there was probable
cause to issue the warrant. Illinois v. Gates, 462 U.S. 213, 238 (1983).
4 UNITED STATES v. JOHNSON
The facts presented to the issuing judge need only convince a person
of reasonable caution that contraband or evidence of a crime will be
found at the place to be searched. Texas v. Brown, 460 U.S. 730, 742
(1983).
If a warrant is found to be defective, the evidence obtained from
the defective warrant may nevertheless be admitted under the good
faith exception to the exclusionary rule. United States v. Leon, 468
U.S. 897, 922-23 (1984). Evidence seized pursuant to a defective war-
rant will not be suppressed unless: (1) the affidavit contains knowing
or reckless falsity; (2) the magistrate acts as a rubber stamp for the
police; (3) the affidavit does not provide the magistrate with a sub-
stantial basis for determining the existence of probable cause; and (4)
the warrant is so facially deficient that an officer could not reasonably
rely on it. United States v. Wilhelm, 80 F.3d 116, 121-22 (4th Cir.
1996); United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995).
Where, as here, the challenge is to both the probable cause determi-
nation and the conclusion that the good faith exception applies, this
Court will ordinarily address the good faith determination first, unless
the case involves the resolution of a novel question of law necessary
to provide guidance to police officers and magistrates. United States
v. Legg, 18 F.3d 240, 243 (4th Cir. 1994); see also United States v.
Craig, 861 F.2d 818, 820 (5th Cir. 1988) ("Principles of judicial
restraint and precedent dictate that, in most cases, we should not reach
the probable cause issue if . . . the good-faith exception of Leon will
resolve the matter."). Having reviewed the materials submitted in the
joint appendix in light of Johnson’s argument, particularly the tran-
scripts of the hearing on the motion, we conclude that the district
court did not err in applying the good faith exception in this case.
Johnson further argues that the district court abused its discretion
in refusing to allow him to introduce expert testimony from a psy-
chologist that Johnson misperceives reality when placed under acute
stress. He further alleges that he should have been allowed to intro-
duce evidence that he was taking prescription drugs and was prone to
panic attacks at the time he assaulted the officers. Johnson did not,
and does not, contend he was insane at the time of the offense or that
he did not have the capacity to formulate the requisite mental state.
He simply argues that he should have been allowed to present this
UNITED STATES v. JOHNSON 5
evidence so that the jury could determine whether he acted in defense
of himself and/or his father.
This Court reviews a district court’s evidentiary rulings for abuse
of discretion. United States v. Leftenant, 341 F.3d 338, 342 (4th Cir.
2003), cert. denied, 124 S. Ct. 1183 (2004). In United States v. Wor-
rell, 313 F.3d 867 (4th Cir. 2002), this Court acknowledged that the
Insanity Defense Reform Act ("IDRA") expressly prohibits the use of
any "[m]ental disease or defect" as a defense unless it demonstrates
that the defendant "was unable to appreciate the nature and quality or
the wrongfulness of his acts." Id. at 872 (quoting 18 U.S.C. § 17(2000)). The court concluded, however, that "the IDRA does not pro-
hibit psychiatric evidence of a mental condition short of insanity
when such evidence is offered purely to rebut the government’s evi-
dence of specific intent, although such cases will be rare." Id. at 874.
We find that the district court did not abuse its discretion in refus-
ing to allow the psychologist’s testimony based on our decision in
Worrell. In Worrell, we specifically concluded that the IDRA bars
psychiatric evidence relating to a defendant’s mental condition if such
evidence is in the nature of a legal justification or excuse for other-
wise criminal conduct, but permits this type of evidence if, rather than
justifying a defendant’s conduct, it negates an essential element of the
government’s prima facie case. 313 F.3d at 873. In this case, as in
Worrell, the psychologist’s proposed testimony was not relevant to
the issue of specific intent. The district court therefore did not abuse
its discretion in excluding the psychologist’s testimony.
With respect to his conviction for possession of marijuana with the
intent to distribute and the resulting § 924(c) conviction based on that
offense, Johnson argues that the district court erred in denying his
motion for acquittal on the ground that there was insufficient evidence
presented of his intent to distribute marijuana. Specifically, Johnson
freely admits to the plethora of evidence supporting his possession of
the marijuana; however, he argues there was insufficient evidence to
support the intent to distribute. He points to the absence of certain
indicia of distribution such as cell phones, drug ledgers, and packag-
ing materials.
This Court reviews de novo the district court’s decision to deny a
motion for judgment of acquittal. United States v. Romer, 148 F.3d
6 UNITED STATES v. JOHNSON
359, 364 (4th Cir. 1998). When the motion is based on insufficient
evidence, the conviction must be sustained if the evidence, viewed in
the light most favorable to the Government, was sufficient for a ratio-
nal trier of fact to have found the essential elements of the crime
beyond a reasonable doubt. Id. If substantial evidence exists to sup-
port a verdict, the verdict must be sustained. United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (en banc) (citing Glasser v. United
States, 315 U.S. 60, 80 (1942)). Intent to distribute may be inferred
from a drug quantity larger than that needed for personal use. United
States v. Wright, 991 F.2d 1182, 1187 (4th Cir. 1993). We find suffi-
cient evidence in this case to support the jury’s finding of an intent
to distribute marijuana. Moreover, it was the jury’s exclusive preroga-
tive to credit or discredit his testimony; credibility determinations are
not subject to review by this Court. United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989).
In his last argument, Johnson challenges the imposition of a
twenty-five-year consecutive sentence under 18 U.S.C. § 924(c)(1)
(C)(i), (D)(ii), which requires the court to impose no less than twenty-
five years’ imprisonment in the case of a second or subsequent con-
viction under § 924(c). Johnson maintains this was error because both
§ 924(c) violations were listed in the same indictment and the offense
conduct for both occurred simultaneously. Johnson appears to
acknowledge that this Court held that a conviction on a second fire-
arms count, although charged in the same indictment as the first,
gives rise to the enhanced sentence. United States v. Raynor, 939 F.2d
191, 193-94 (4th Cir. 1991). He seems to rely rather on the fact that,
in this case, the offense conduct giving rise to the two § 924(c) con-
victions occurred simultaneously. This argument is meritless. Because
both § 924(c) convictions can be charged in the same indictment, and
because both convictions were based on separate conduct (i.e., assault
on a federal agent and possession with intent to distribute marijuana),
we find that the district court did not err in imposing the mandatory
twenty-five-year consecutive sentence.
Accordingly, we affirm Johnson’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED