United States v. Robert Johnston ( 2003 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-1886
    ___________
    United States of America,              *
    *
    Appellee,         *
    * Appeal from the United States
    v.                               * District Court for the
    * Southern District of Iowa.
    Robert Frederick Johnston, Jr.,        *
    C      [PUBLISHED]
    *
    Appellant.         *
    ___________
    Submitted: October 22, 2003
    Filed: December 24, 2003
    ___________
    Before LOKEN, Chief Judge, and HEANEY and MORRIS SHEPPARD ARNOLD,
    Circuit Judges.
    ___________
    PER CURIAM.
    Robert Frederick Johnston, Jr., was convicted of one count of conspiracy to
    distribute methamphetamine, in violation of 
    21 U.S.C. §§ 841
    (a)(1), 841(b)(1)(A),
    and § 846. Johnston contends the district court1 committed reversible errors during
    1
    The Honorable Robert W. Pratt, United States District Court for the Southern
    District of Iowa.
    trial and improperly applied the United States Sentencing Guidelines in sentencing
    him to 210 months in prison. First, Johnston argues that the district court should have
    granted a mistrial after the government introduced evidence of his involvement with
    methamphetamine outside of the dates in the indictment. Second, Johnston claims
    that the district court should not have admitted evidence of controlled buys that did
    not involve him. Finally, Johnston maintains the district court’s sentencing was
    flawed for three reasons: 1) the district court erroneously determined the drug
    quantity attributable to him; 2) the district court should have granted a downward
    adjustment for his mitigating role; and 3) the district court should have granted a
    downward adjustment for his acceptance of responsibility. Finding no reversible trial
    or sentencing errors, we affirm the district court.
    Background
    In addition to Johnston, the drug conspiracy involved Lori Arnold, Robert
    Paris, Charles William Chilton, Marco Armenta, William Wilt. Johnston was
    independently charged for his role in the conspiracy. Arnold, Armenta, and Wilt all
    pled guilty to charges stemming from their participation in the conspiracy, and were
    sentenced to 131 months, 84 months, and 72 months respectively. The conspiracy
    operated in the following manner: Arnold, Paris, and Chilton bought large quantities
    of methamphetamine from Armenta, who obtained the methamphetamine from
    suppliers elsewhere. Arnold shared some of the methamphetamine with her then-
    boyfriend,2 Wilt, and sold the rest.           Johnston sold small quantities of
    methamphetamine that he obtained from Arnold or Paris to Charles Arden Jackson,
    a user, and Armenta, and also acted as Paris and Arnold’s courier, shuttling drugs and
    money for larger deals.
    2
    Arnold and Wilt are now married.
    -2-
    Jackson, Arnold, Armenta, and Wilt, all testified against Johnston at trial.
    Armenta testified that he bought a total of an eighth of an ounce of methamphetamine
    from Johnston, and that Johnston was present during a negotiation between Chilton
    and Armenta’s suppliers. Arnold testified that she sold Johnston two ounces of
    methamphetamine, and sold one ounce to Jackson on Johnston’s behalf. Wilt
    testified that he sold Johnston a total of one-quarter ounce, that he witnessed Johnston
    buy small quantities3 from Arnold and Paris, and that he gave Johnston two ounces
    that Johnston then delivered to Paris as satisfaction for a debt Wilt owed to Paris.
    Jackson testified he bought a half ounce of methamphetamine from Johnston during
    the summer of 2001.
    Johnston played a role in two drug deals involving larger quantities of drugs.
    One drug deal occurred in June 2001, and the other in July 2001. Arnold testified
    that in June, she used Johnston to deliver $4,200 to Chilton. Paris, Chilton, and
    Arnold were pooling their money to buy five pounds of methamphetamine from
    Armenta’s suppliers. The deal went awry, and Arnold gave Johnston an additional
    $4,200 to deliver to Chilton in order to appease the suppliers.4 In late July of 2001,
    Wilt and Arnold both testified that Johnston again acted as a money courier. Paris
    was out of town for this deal, and left Johnston in charge of delivering money to
    Chilton. Arnold testified that Johnston handled $20,0005 for this deal; Wilt recalls
    counting out $15,000 of Arnold’s money for this deal, but was only aware of
    Johnston’s involvement through phone calls he overheard between Paris and
    3
    While not exact, Wilt estimated these smaller quantities ranged from one-
    sixteenth of an ounce to a quarter ounce.
    4
    Armenta’s recollection of this event differed from Arnold’s recollection.
    Armenta remembered picking up an additional $2,500 from Johnston in order to
    pacify the suppliers, and maintains the transaction was for two pounds of
    methamphetamine, not five pounds as Arnold testified.
    5
    Arnold contributed $15,000, with Chilton contributing $5,000.
    -3-
    Johnston. The July deal was supposed to be for ten pounds of methamphetamine, but
    according to Arnold, only five pounds changed hands. Johnston delivered to Arnold
    her two-and-a-half pound portion.
    The police learned of the drug conspiracy when Jackson began cooperating
    with the police after he violated the terms of his probation. Jason Fuller, at the time
    a Special Agent with the Iowa police department, staged several buys from Arnold
    with Jackson’s cooperation. Agent Fuller testified that Johnston was present for one
    of these buys involving 111.79 grams of methamphetamine,6 although there is no
    indication that he actively participated in the sale.7 Johnston was never found with
    marked money from any of the controlled buys.
    On May 10, 2002, Johnston was arrested. At that time, he admitted he was a
    methamphetamine user, had received methamphetamine from Arnold, and had sold
    a portion of his one-eighth ounce quantities to support his habit. Johnston told police
    that he was around Paris and large quantities of drugs, and he identified Paris’s
    buyers. He also admitted that when Paris was out of town, he had $20,000 that he
    was supposed to deliver for a drug buy; he claimed he did not deliver the money
    though, and that Arnold picked it up. Johnston remembered being present for a deal
    with the undercover agent as well.
    Johnston was indicted for conspiring to distribute 500 grams or more of
    methamphetamine. The jury found him guilty of conspiring to distribute less than
    fifty grams of methamphetamine. At sentencing, the district court attributed 2,560.51
    6
    Only half of the methamphetamine in this sale was purity tested: 55.84 grams
    were 27% pure, while the remaining 55.95 grams were not purity tested.
    7
    In fact, during Arnold’s cross examination, she admitted Johnston entered the
    room during this controlled buy, probably to ask her a question about electrical work
    he was completing in her bar.
    -4-
    grams of methamphetamine to Johnston and determined his base level offense was
    34, with a criminal history category of IV. The district court sentenced him to 210
    months in prison.
    Discussion
    I. Mistrial
    Johnston first argues that the district court erred by not declaring a mistrial
    after Jackson’s testimony. We review a district court’s refusal to grant a mistrial
    using an abuse of discretion standard. United States v. Washington, 
    318 F.3d 845
    ,
    859 (8th Cir. 2003).
    Jackson testified during the prosecution’s direct examination as follows:
    Q: How long have you known Reid Paris?
    A: Since about 2001.
    Q: How long have you known Howdy?8
    A: Since about ’95.
    Q: Have you ever known Howdy to be involved in methamphetamine?
    A: Yes.
    Q: And when did you first become aware of that?
    A: Probably ’95.
    Q: Did there come a time that you obtained methamphetamine from
    Howdy?
    A: Yes.
    Q: When did you obtain methamphetamine from Howdy?
    A: In 2001.
    8
    Johnston is also known as “Howdy.”
    -5-
    Q: About when did that occur first?
    A: Probably the summer.
    (Partial Trial Tr. Test. of Charles Jackson at 8.)
    The indictment alleged Johnston was involved in a methamphetamine
    conspiracy from April 1, 2001, through October 26, 2001. Johnston maintains that
    Jackson’s reference to his involvement with methamphetamine since 1995 was
    grounds for a mistrial for three reasons: 1) Jackson’s testimony should have been
    barred by Federal Rule of Evidence 404(b) as propensity evidence; 2) Jackson’s
    testimony served as an impermissible amendment or as a material variance to the
    indictment; and 3) it was prosecutorial misconduct for the prosecution to inquire
    about his 1995 involvement with methamphetamine.
    A. Propensity Evidence
    In response to Jackson’s testimony, the district court delivered the following
    cautionary instruction to the jury:
    Evidence has been introduced by a Government witness that purports to
    suggest that Mr. Johnston was involved in drug activity not covered
    during the period of this indictment. The evidence should not have been
    injected into this trial. You are to disregard the testimony. You cannot
    use that testimony in your deliberations in any manner. The Court, by
    this ruling, strikes the testimony and prohibits the prosecution from any
    further reference to that testimony in this proceeding.
    (Trial Tr. Vol. III at 368.)
    The court, unless there is evidence to the contrary, should assume that a jury
    will follow a curative instruction. United States v. Uphoff, 
    232 F.3d 624
    , 626 (8th
    -6-
    Cir. 2000). The jury was instructed not to consider Jackson’s reference to Johnston’s
    1995 involvement with methamphetamine. In fact, the district court’s instruction
    struck the portion of Jackson’s testimony that Johnston maintains was prohibited by
    Federal Rule of Evidence 404(b). We are satisfied that this admonishment adequately
    protected Johnston from having Jackson’s testimony improperly used against him.
    B. Constructive Amendment or Material Variance to the Indictment
    Johnston next argues that Jackson’s testimony served as a constructive
    amendment or as a variance to the indictment by introducing evidence outside of the
    dates of the indictment. A constructive amendment, which is reversible error per se,
    occurs when the essential elements of the indicted offense are altered, either actually
    or in effect, after the grand jury has issued the indictment. United States v. Novak,
    
    217 F.3d 566
    , 574 (8th Cir. 2000). In order to determine whether the indictment was
    constructively amended, the court must consider “whether the admission of certain
    evidence created a ‘substantial likelihood’ that [the defendant] was convicted of an
    uncharged offense.” 
    Id. at 575
    . The Eighth Circuit has described a variance, on the
    other hand, as “chang[ing] the evidence, while the charge remains the same.” United
    States v. Stuckey, 
    220 F.3d 976
    , 981 (8th Cir. 2000). A variance is grounds for a
    reversal only if the defendant has been prejudiced by the change in evidence. Novak,
    
    217 F.3d at 574
    .
    As stated above, the jury was instructed to ignore Jackson’s testimony as it
    related to periods of time outside of the indictment. Our review of the record reveals
    that the prosecution did not explore the 1995 time frame with Jackson. The focus of
    the prosecution’s direct and redirect examination was on Jackson’s knowledge of
    Johnston’s conduct as it related to the conspiracy in 2001. Because of this, Jackson’s
    reference to 1995 did not create a substantial likelihood that Johnston was convicted
    -7-
    of drug trafficking in 1995.9 We therefore find that Jackson’s testimony did not
    amend the indictment, or function as a variance to the indictment.
    C. Prosecutorial Misconduct
    Johnston maintains that the prosecutor acted improperly by asking Jackson
    when he first knew of Johnston’s involvement with methamphetamine. To find
    prosecutorial misconduct, the court must examine whether the prosecutor made
    improper remarks and whether those remarks “prejudicially affected the defendant[’s]
    substantial rights so as to deprive [him] of a fair trial.” United States v. Wadlington,
    
    233 F.3d 1067
    , 1077 (8th Cir. 2000). Three factors are used to assess the prejudicial
    impact on a defendant: “1) the cumulative effect of the misconduct; 2) the strength
    of the properly admitted evidence; and 3) the curative actions taken by the district
    court.” 
    Id.
    There is no indication that the prosecutor was aware of Johnston’s involvement
    with methamphetamine in 1995 prior to examining Jackson. The government asked
    an open-ended question; the question itself was not improper. Again, the district
    court’s curative instruction corrected any prejudice Jackson’s comment may have
    caused Johnston. We do not find that the prosecutor’s actions rose to the level of
    misconduct required to declare a mistrial.
    II.   Admissibility of Evidence of Controlled Buys that Did Not Involve the
    Defendant
    Johnston argues that the district court abused its discretion by admitting
    evidence of controlled buys that did not involve him. We review a district court’s
    9
    Further, since the facts around the 1995 comment were not developed, the
    jury could not have used this evidence in reaching its decision about the conspiracy
    in 2001.
    -8-
    decision to admit such evidence using an abuse of discretion standard; if the district
    court’s error in admitting the evidence was harmless, we will not reverse the district
    court. United States v. Oleson, 
    310 F.3d 1085
    , 1091 (8th Cir. 2002).
    In a conspiracy case, “each member of a conspiracy may be held criminally
    liable for any substantive crime committed by a co-conspirator in the course and
    furtherance of the conspiracy, even though those members did not participate in or
    agree to the specific criminal act.” United States v. Escobar, 
    50 F.3d 1414
    , 1420 (8th
    Cir. 1995) (quoting United States v. Lucas, 
    932 F.2d 1210
    , 1220 (8th Cir. 1991)). We
    agree with the district court that the controlled drug buys were relevant in this case
    because they illustrated the extent of the conspiracy’s operation. Even though
    Johnston may not have been directly involved in the buys (although he was at least
    present during one such buy), he can still be held responsible for the reasonably
    foreseeable buys that occurred on behalf of the conspiracy. 
    Id.
     Here, the
    complained-of evidence involved sales by co-conspirators to an undercover agent.
    The district court, therefore, did not abuse its discretion by admitting testimony
    relating to these buys.
    III. The Drug Quantity Used at Sentencing
    The district court sentenced Johnston for conspiring to distribute 2,560.51
    grams of methamphetamine, even though the jury found him guilty of conspiring to
    distribute less than fifty grams of methamphetamine. Johnston maintains that the
    evidence does not support the district court’s drug quantity determination.
    We review the district court’s application of the Sentencing Guidelines de
    novo. United States v. Barrios-Perez, 
    317 F.3d 777
    , 780 (8th Cir. 2003). The district
    court’s factual findings in relation to drug quantity are reviewed for clear error. 
    Id.
    “The District Court must determine the amount of drugs for which a criminal
    -9-
    defendant is responsible by a preponderance of the evidence.” United States v.
    Gallardo-Marquez, 
    253 F.3d 1121
    , 1124 (8th Cir. 2001).
    Johnston states he only played a minor part in the conspiracy, if he played any
    part at all, and that the government did not prove by a preponderance of the evidence
    that he could have reasonably foreseen the full extent of the conspiracy. Johnston
    also directs us to the jury verdict finding him responsible for conspiring to distribute
    fifty grams or less of methamphetamine, although he concedes that for sentencing
    purposes the evidence supports his involvement with 139 grams of
    methamphetamine; this would bring his base level offense down to 26. The
    government responds that 1) the jury verdict could have been influenced by factors
    independent of Johnston’s actual involvement in the conspiracy, and 2) the district
    court based its quantity determination on sufficiently reliable evidence.
    The district court can impose a sentence based on a higher drug quantity
    determination than the jury’s finding so long as the sentence does not exceed the
    statutory maximum of the convicted offense. See United States v. Titlbach, 
    300 F.3d 919
    , 921-22 (8th Cir. 2002) (affirming the district court’s drug quantity determination
    of 172.03 grams of methamphetamine, even though the jury found the defendant
    guilty of a conspiracy involving fifty grams or less); United States v. Caldwell, 
    255 F.3d 532
    , 533 (8th Cir. 2001) (per curiam) (“The use of a judicially determined drug
    quantity as a basis for sentencing is permissible . . . so long as the defendant’s
    sentence does not exceed the statutory maximum sentence available for an
    indeterminate amount of the drug.” (citing United States v. Aguayo-Delgado, 
    220 F.3d 926
    , 933-34 (8th Cir. 2000), cert. denied, 
    531 U.S. 1026
    )). Here, the district
    court’s sentencing of Johnston does not run afoul of this rule.10
    10
    The statutory maximum for conspiracy to distribute fifty grams of
    methamphetamine is twenty years, 
    21 U.S.C. § 841
    (b)(1)(C), longer than Johnston’s
    210 month sentence.
    -10-
    In reaching its quantity determination, the district court had to make credibility
    determinations. Our review of the record reveals weaknesses in some of the
    witnesses’ testimony and some conflicting testimony.11 The district court, however,
    has considerable discretion in determining the credibility of witnesses, and we do not
    find the district court abused its discretion in assessing the trial testimony. See
    United States v. Carter, 
    997 F.2d 459
    , 461 (8th Cir. 1993).
    Arnold, Armenta, Wilt, and Jackson all testified as to Johnston’s involvement
    with the conspiracy. Armenta and Arnold both testified that Johnston handled money
    for a June deal involving two pounds of methamphetamine.12 Arnold and Wilt
    testified that in July, Johnston acted as a courier to complete a drug deal for five
    pounds of methamphetamine while Paris was out of town. We find that the testimony
    describing Johnston’s involvement with the deals in June and July of 2001, connects
    him to 2,268 grams of methamphetamine by a preponderance of the evidence. This
    amount alone is sufficient to justify Johnston’s base offense level of 34.
    Additionally, Arnold admits to selling Johnston an ounce on two occasions, and
    selling another ounce to Jackson on Johnston’s behalf (85.05 grams); Armenta and
    Jackson testified to buying methamphetamine from Johnston in an amount totaling
    17.72 grams; Wilt admits to selling Johnston 7.08 grams and fronting Johnston 56.7
    grams on Paris’s behalf; and Agent Fuller places Johnston at a controlled buy
    involving 111.79 grams of methamphetamine. Accordingly, our review of the
    11
    For instance, Arnold, during her cross examination admitted she had lied
    during her direct examination in regards to Wilt’s involvement with the conspiracy.
    Certainly this admission could be used to discredit the entirety of Arnold’s testimony.
    Additionally, while Arnold and Armenta both testified as to Johnston’s participation
    in the June 2001 deal, each testified to a different amount of methamphetamine
    involved in the deal.
    12
    Armenta testified that the June 2001 deal involved two pounds, or 907.20
    grams, of methamphetamine, while Arnold testified the deal involved five pounds.
    We are using the lower amount to calculate the drug quantity.
    -11-
    evidence indicates a preponderance of the evidence connects Johnston to 2,546.34
    grams of methamphetamine. While this amount is slightly lower than the district
    court’s determination, either amount results in the same base offense level.
    Therefore, we find the district court was within its discretion to sentence Johnston
    using a base offense level of 34.
    IV. Mitigating Role Adjustment
    Johnston maintains the district court should have granted him a mitigating role
    adjustment, of either two or three levels, pursuant to United States Sentencing
    Guideline § 3B1.2. The district court’s decision regarding a role reduction is a fact
    determination, which we review for clear error. United States v. Thurmon, 
    278 F.3d 790
    , 792 (8th Cir. 2002). “A defendant’s role in the offense is measured by the
    relevant conduct for which he is held responsible.” 
    Id.
     Once the district court has
    determined the relevant conduct, each participant’s actions should be compared
    against the other participants, and each participant’s culpability should be evaluated
    in relation to the elements of the offense. 
    Id.
    Johnston argues that he did not negotiate any deals or put any of his own
    money into the conspiracy for the purpose of buying mass quantities of drugs. He
    claims he was just a user and a gopher who did not even have a cellular telephone.
    Johnston was never found with any marked money, and was not an active participant
    in any of the controlled buys. In response, the government stresses Johnston’s role
    as manager of the drug operation when Paris was absent.
    The district court, by using the 2,560.51 grams of methamphetamine as the
    basis for sentencing Johnston , defined the relevant conduct as the wider conspiracy.
    The district court stated that “the defendant knew a great deal about the drug
    operation . . . and that he helped collect money and make distributions.” (Sentencing
    Tr. at 15.) Arnold, a person who knew more about the conspiracy than Johnston , was
    -12-
    only sentenced to 84 months, while Johnston was sentenced to 210 months. This is
    troubling. Ultimately, however, we do not think the district court’s conclusion about
    Johnston’s role in the conspiracy was clearly erroneous. Johnston acted as the go-
    between on several different drug buys, either delivering the drugs, or delivering the
    money. When Paris was out of town, he used Johnston as a courier to complete a
    sale. This supports the district court’s observation that Johnston knew, and
    participated in, the full extent of the conspiracy. Accordingly, the district court did
    not abuse its discretion in refusing to grant Johnston a downward departure for a
    minor participant role, particularly in light of his criminal history.
    V. Acceptance of Responsibility Adjustment
    Johnston finally argues the district court should reduced his sentence because
    he accepted responsibility for his actions. A court may reduce a defendant’s offense
    level by two levels where the defendant clearly demonstrates acceptance of
    responsibility. USSG § 3E1.1. The comment makes clear, however, that this
    reduction does not often apply to defendants who go to trial:
    This adjustment is not intended to apply to a defendant who puts the
    government to its burden of proof at trial by denying the essential
    factual elements of guilt, is convicted, and only then admits guilt and
    expresses remorse. Conviction by trial, however, does not automatically
    preclude a defendant from consideration for such a reduction. In rare
    situations a defendant may clearly demonstrate an acceptance of
    responsibility for his criminal conduct even though he exercises his
    constitutional right to a trial. This may occur, for example, where a
    defendant goes to trial to assert and preserve issues that do not relate to
    factual guilt . . . . In each such instance, however, a determination that
    a defendant has accepted responsibility will be based primarily upon
    pre-trial statements and conduct.
    USSG § 3E1.1 comment 2.
    -13-
    Johnston maintains that he only went to trial because he disputed the amount
    of the methamphetamine the government attributed to him. He points to his statement
    to police as proof that he admitted his conduct prior to the trial. Just because
    Johnston cooperated, however, does not mean he is entitled to the acceptance of
    responsibility adjustment. By disputing the amount of methamphetamine he was
    responsible for, he put the government to its proof and challenged his factual guilt.
    The district court was within its discretion to deny Johnston an adjustment for
    acceptance of responsibility.
    Conclusion
    The district court acted within its discretion in refusing to declare a mistrial and
    in sentencing Johnston to 210 months in prison. Accordingly, we affirm.
    HEANEY, Circuit Judge, concurring.
    I am troubled by the fact that the district court used a drug quantity at
    sentencing fifty times larger than the jury’s verdict. Notwithstanding considerable
    evidence as to the substantial quantity of methamphetamine involved in this
    conspiracy, the jury specifically found that Johnston was responsible for distributing
    less than fifty grams. Under these circumstances, it is my feeling that the district
    court should not be permitted to ignore the jury’s conclusion. The district court,
    because of its ability to base its drug determination on a preponderance of the
    evidence, has considerable discretion in sentencing, and the power to impose a
    harsher sentence than a jury would on the same facts. By allowing the district court
    to base drug quantity determinations using this lower level of proof, I believe the
    stated goal of the Sentencing Guidelines – to promote uniformity in sentencing – is
    undermined.
    ______________________________
    -14-