United States v. Johnson , 83 F. App'x 577 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 26, 2003
Charles R. Fulbruge III
Clerk
No. 02-10537
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH CHARLES JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-360-2-P
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Kenneth Charles Johnson appeals his conviction for
interstate and foreign travel or transportation in aid of
racketeering enterprises and aiding and abetting, in violation of
18 U.S.C. §§ 1952(a)(3),(2).
Johnson challenges the sufficiency of the evidence upon
which his conviction is based. His challenge rests, in part, on
the argument that the jury verdict is inconsistent. He argues
that it was inconsistent for the jury to acquit him of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-10537
-2-
conduct charged in indictment count one, conspiracy to import
heroin, when it convicted him of aiding and abetting the
interstate travel in aid of the conspiracy to possess with intent
to distribute heroin. Each count in an indictment is regarded as
a separate indictment, and inconsistency is not a reason to
reverse a jury verdict. Dunn v. United States, 284 U.S. 390, 393
(1932). Moreover, a review for evidence sufficiency is performed
independent of the jury’s determination that evidence on another
count was insufficient. United States v. Powell, 469 U.S. 57, 67
(1984). Based on Dunn and Powell, inconsistency in the verdict
does not provide a basis for reversal. United States v. Parks,
68 F.3d 860, 865 (5th Cir. 1995). Furthermore, Johnson’s
reliance on United States v. Truesdale, 152 F.3d 443 (5th Cir.
1998), is misplaced. Truesdale based its reversal of the
conviction on evidence insufficiency, not inconsistency in the
verdict.
Johnson also contends that the evidence is insufficient to
support his conviction. Evidence adduced at trial indicated that
Johnson acted as a willing intermediary between two of his
acquaintances, Alice Faye White and Uzo Christopher Nwankwo, in a
conspiracy to import heroin. After Johnson refused Nwankwo’s
request to make a trip to a foreign country, Johnson requested
that White, his live-in girlfriend, travel to Ecuador on a one-
day trip. Johnson assisted White in travel preparations by
helping her obtain a passport, paying expenses, and providing her
No. 02-10537
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with the itinerary that Nwankwo gave to him. When White returned
from the trip without making contact with the proper person,
Nwankwo and Johnson sent her back to Ecuador after one day’s
rest. When White returned to the United States from her second
trip to Ecuador, she was intercepted in Houston by law
enforcement personnel who discovered heroin in the soles of her
platform shoes. Not knowing that White had been apprehended,
Johnson assisted White in travel arrangements after she deviated
from the original plan for delivery of the shoes. Transcribed
telephone conversations between White, Johnson, and Nwankwo
further implicate Johnson and reveal his knowledge of the purpose
of the conspiracy.
The evidence thus establishes that Johnson knowingly aided
and abetted the travel in interstate commerce and did so with the
intent to promote and carry on a conspiracy to posses with intent
to distribute heroin in violation of 18 U.S.C. § 1952(a)(3).
Therefore, the jury’s determination of guilt is sufficiently
supported by the evidence. See United States v. Jaramillo, 42
F.3d 920, 922-23 (5th Cir. 1995).
AFFIRMED.