United States v. Leon Johnson , 462 F.3d 815 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4485
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Leon Johnson, also known as *
James Johnson, also known as *
Terrell Hill, also known as *
Williams McHee, also known as *
William C. McGhee, also known as *
William C. McGee, also known as *
William McGhee, also known as *
Terrell Eiill, also known as *
William T. McGhee, also known as *
Tyrone Hill, also known as *
Ricky Talman, also known as *
Ricky Tolbert, *
*
Appellant. *
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Submitted: May 18, 2006
Filed: September 8, 2006
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Before BYE, HANSEN, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
A jury convicted Leon Johnson of three federal firearms violations, as well as
two federal narcotics violations. The district court1 sentenced Johnson to life
imprisonment. Johnson appeals, challenging the sufficiency of the evidence; the
district court's denial of his motion to sever the narcotics counts from the firearms
counts; and its denial of his dismissal motion for alleged grand jury error and
prosecutorial misconduct. Johnson also contends that the government provided
insufficient notice, pursuant to 21 U.S.C. § 851(a)(1), of its intention to seek a
sentence of life imprisonment based upon Johnson's prior convictions. We affirm.
I. Background
A week prior to April 6, 2004, Johnson sold Troy Perkins a $50 rock of cocaine
base in Cedar Rapids, Iowa. On April 6, 2004, Perkins, a drug informant, called
Johnson and arranged to purchase 14 grams of cocaine base. During subsequent
phone calls, Perkins provided Johnson with directions to a location for the narcotics
transaction. Perkins met Johnson and Charles Greene behind a grocery store in
Coralville, Iowa. Law enforcement observed Greene in the driver's seat and watched
as Perkins approached the passenger side of the vehicle, where Johnson was seated.
Perkins then gave Johnson $500 for the cocaine base. Greene and Johnson left,
driving in the direction of Cedar Rapids.
After the transaction, Perkins gave the cocaine base that he received from
Johnson to the narcotics officer observing the sale. When measured, the cocaine base
that Johnson sold was only three grams, not the expected five grams. As planned,
Officer Jerry Blomgren of the Iowa City Police Department made a traffic stop of
Johnson and Greene. Johnson and Greene told Officer Blomgren that they were
headed to Cedar Rapids. During the stop, Officer Blomgren seized $545 from
Johnson. Later, Perkins called Johnson to complain that he had only received three
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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grams of cocaine. Johnson told Perkins that the police seized the money and that he
was going to return to Iowa City with his girlfriend to claim the money.
Johnson's weapons charges arise from an unrelated incident approximately
three weeks later in Marion, Iowa. Police received a report of an assault at an
apartment complex. Stevie Williams told police that he and Tyrone Redding had gone
to an apartment to meet a woman named "Christina," later identified as Christina
Boswell—Johnson's girlfriend. When the men arrived at the apartment, Johnson
approached them wielding two handguns. Williams described one of the guns as
chrome and the other as black. After Johnson threatened to shoot Williams and
Redding, they quickly departed. Williams returned home and notified the police.
Police arrived at the apartment and spoke with Johnson and Boswell. The
officers obtained a search warrant and found the two handguns described by
Williams, one of which had an obliterated serial number. Police also found an
additional handgun and a small bag of marijuana. The marijuana apparently belonged
to Boswell.
A few months later, Johnson again ran afoul of the law. Cedar Rapids police
officers responded to a report of several individuals gambling in a parking lot.
Johnson was among them. When the officers approached, the men scattered. Johnson
discarded a roll of cash as he walked away. Officer Bryan Furman apprehended
Johnson, handcuffed him, searched him for weapons, and placed him in the backseat
of a police car. Boswell then approached the officers, telling them that Johnson had
her cell phone and that she wanted to get it from him. The officers acquiesced. With
his hands cuffed behind his back and seated in the back of the police car, Johnson
removed the cell phone from his pocket. As Johnson tried to hand the cell phone to
Boswell, he dropped a bag of cocaine base on the ground. The bag landed slightly
underneath the police car on the ground, where the officers discovered it. Johnson
apparently tried to hand the bag to Boswell with the cell phone. The bag contained
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approximately 5.5 grams of cocaine base, divided into nine individually bagged rocks
and one larger rock. The narcotics were found within 1,000 feet of McKinley Middle
School, a protected area.
The third superseding indictment charged Johnson with the following counts:
(1) possession with attempt to distribute and aiding and abetting the distribution of
cocaine base after having been convicted of one or more felony drug offenses, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846, 851; (2) possession of a firearm
after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2); (3) possession of a firearm while an unlawful user of controlled
substances, in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2); (4) possession of a
firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k),
924(a)(2); and (5) possession with intent to distribute or attempting to distribute 5 or
more grams of cocaine base within 1,000 feet of a protected location after having
been convicted of one or more felony drug offenses, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B), 846, 851, 860.
Johnson filed a motion to dismiss Count I of the second superseding
indictment, alleging that the government knowingly presented false testimony to the
grand jury. Specifically, Johnson took exception to the testimony of Cedar Rapids
Police Detective George Aboud. Detective Aboud was not present when Johnson was
arrested for the gambling offense, but Aboud testified before the grand jury about the
events based upon police reports that he reviewed. Aboud testified that Johnson was
removed from the back of the police car before he dropped the bag of cocaine base.
In contrast, Officers Furman and Campsure, who were present, reported that Johnson
was not taken out of the squad car but rather remained in the car as he attempted to
hand the cell phone to Boswell. Johnson contends that because the bag landed slightly
underneath the car, it was physically impossible for him to have been the source of
the bag. He further contends that the grand jury would not have indicted him if it had
heard the testimony of officers Furman and Campsure.
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Before the district court ruled on Johnson's motion to dismiss, a different grand
jury heard the corrected testimony of Officer Aboud, who had subsequently spoken
with Officer Furman about the incident before testifying. Aboud testified that Johnson
remained seated in the back of the squad car when he dropped the bag. The grand jury
found probable cause and returned the third superseding indictment, which remained
substantially the same as the second superseding indictment. The district court later
denied Johnson's motion to dismiss Count V. A jury convicted the defendant on all
counts. After denying Johnson's motion for a new trial, the district court sentenced
him to life imprisonment.
Johnson raises the following arguments on appeal: (1) the district court erred
by denying his motion for a new trial because insufficient evidence supported his
convictions on all counts; (2) the district court erred by not severing the firearms and
narcotics counts; (3) the district court erred by failing to dismiss Count V due to
grand jury error and alleged prosecutorial misconduct; and (4) the government failed
to provide sufficient notice of its intent to seek a sentence of life imprisonment due
to Johnson's prior convictions. We affirm.
II. Discussion
A. Motion for New Trial—Sufficiency of the Evidence
Johnson seeks a new trial on each count. The decision to grant or deny a
motion for a new trial rests within the sound discretion of the district court, and we
will reverse only for an abuse of that discretion. See United States v. Dodd, 391 F.3d
930, 934 (8th Cir. 2004).
1. Count I (Venue)
Johnson argues that there was insufficient evidence that he committed a crime
charged in Count I in the Northern District of Iowa. Specifically, Johnson contends
that his distribution of cocaine base was in the Southern District of Iowa and that the
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government presented no evidence that his possession of cocaine base began in the
Northern District of Iowa. We disagree.
"'Proper venue is required by Article III, § 2 of the United States Constitution
and by the Sixth Amendment, as well as Rule 18 of the Federal Rules of Criminal
Procedure.'" United States v. Morales, 445 F.3d 1081, 1084 (8th Cir. 2006) (quoting
United States v. Romero, 150 F.3d 821, 824 (8th Cir.1998)). "A violation of federal
law may be prosecuted 'in any district in which such offense was begun, continued,
or completed.'" Id. (quoting 18 U.S.C. § 3237(a)). Therefore, a defendant can be
charged where he had possession of the narcotics, even if he intended to distribute the
narcotics somewhere else. United States v. Granados, 117 F.3d 1089, 1091 (8th Cir.
1997). "The government bears the burden of proving venue by a preponderance of the
evidence." United States v. Bascope-Zurita, 68 F.3d 1057, 1062 (8th Cir. 1995).
The government established that Johnson, while in the Northern District of
Iowa, spoke with informant Perkins to arrange a narcotics transaction. In addition,
Johnson lived in the Cedar Rapids area and sold cocaine base to Perkins in Cedar
Rapids. Therefore, the government presented sufficient evidence to prove by a
preponderance of the evidence that venue was proper in the Northern District of Iowa,
and the district court did not abuse its discretion by denying Johnson's motion for a
new trial on the basis of improper venue.
2. Counts II, III, and IV (Firearms Counts)
Johnson challenges the sufficiency of the evidence regarding his possession of
a firearm—a necessary element of Counts II, III, and IV. Specifically, Johnson attacks
the credibility of Stevie Williams, contending that Williams was intoxicated and
distressed on the night he allegedly saw Johnson with two firearms. Johnson claims
Williams provided conflicting accounts of what took place that night. Johnson thus
challenges the weight accorded Williams's testimony, arguing that the government
offered no corroborating evidence.
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New trial grants based upon objections to the weight of the evidence are not
favored. Dodd, 391 F.3d at 934. As we have explained:
In considering the motion for a new trial alleging the verdict is contrary
to the weight of the evidence, the "court need not view the evidence in
the light most favorable to the government, but may instead weigh the
evidence and evaluate for itself the credibility of the witnesses." United
States v. Lacey, 219 F.3d 779, 783–84 (8th Cir.2000). "Motions for new
trials based on the weight of the evidence are generally disfavored."
Campos, 306 F.3d at 579. The district court's authority to grant a new
trial should be exercised "sparingly and with caution." Lincoln, 630 F.2d
at 1319.
United States v. Ramirez, 362 F.3d 521, 525 (8th Cir. 2004) (emphasis added).
We hold that the district court did not abuse its discretion in denying a new
trial. Williams testified as follows: He and a friend went to Boswell's apartment.
Boswell answered the door, acted strangely, and closed the door. Johnson then came
to the door and brandished two guns at the men and threatened to shoot them. The
men retreated. Williams returned home, called the police, and provided officers with
a description of Johnson that matched Johnson's attire when police arrived at
Boswell's apartment. In addition, Williams described the guns used by Johnson, and
this description matched two of the firearms recovered from the apartment. Denying
Johnson's motion for a new trial, the district court cited Williams's testimony,
implicitly finding such testimony credible. We discern no persuasive reason for
rejecting the district court's credibility assessment. United States v. Rodriguez, 414
F.3d 837, 845 (8th Cir. 2005).
The government presented other evidence tying Johnson to the apartment and
the firearms found therein. First, police found Johnson in the apartment with his
girlfriend, the lessee of the apartment. Second, Johnson used the apartment as a
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mailing address for his cell phone bill. Third, police found the third firearm, the one
not used in the incident with Williams, in plain view inside a plastic bag. There was
sufficient evidence that Johnson possessed the firearms recovered from Boswell's
apartment. Therefore, we hold that the district court did not abuse its discretion by
denying Johnson's motion for a new trial on Counts II, III, and IV.
3. Count V (Possession or Distribution of Narcotics
Within 1,000 Feet of a Protected Area)
Johnson argues that insufficient evidence supported his conviction for Count
V. He asserts that it is "unreasonable to believe" the facts as the government
presented them. Although the government's case is no forensic slam dunk, we find no
abuse of discretion in the district court's decision to deny the motion for new trial.
After Johnson's Cedar Rapids gambling arrest, police found a bag of cocaine
outside the squad car in which he was sitting. The officers testified that the cocaine
fell to the ground after Johnson attempted to retrieve a cell phone from his pocket for
Boswell, who had asked the officers for permission to get it from Johnson. While
seated in the back of the police car with his hands cuffed behind his back, Johnson
removed the cell phone from his pocket. As Johnson tried to hand the cell phone to
Boswell, he dropped a bag of cocaine base on the ground. The officers saw the bag
slightly underneath the police car on the ground. Johnson apparently tried to hand the
bag to Boswell with the cell phone.
Johnson contends that it is unreasonable to believe that he would discard a wad
of cash but would fail to discard a bag of cocaine base. He notes that the bag of
cocaine base was not discovered by Officer Furman's initial pat-down search of his
person. Johnson contends that it was physically implausible for him, while seated and
handcuffed in the police car, to somehow manage to drop the bag slightly under the
car. Johnson points to the inconsistent accounts from the officers on the scene: While
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Officer Furman testified to seeing Johnson drop the bag, but Officer Campsure
testified he pointed the bag out to Officer Furman, who did not see the bag drop.
The jury was in the best position to evaluate the evidence. A jury could
reasonably conclude, based upon the evidence, that Johnson failed to discard the bag
of cocaine base because he believed that he would not be arrested; in the excitement
he simply neglected to discard the bag; or mistakenly believed that he had discarded
it. The government presented evidence that a pat-down search is merely a "quick
cursory check" for weapons that could be used to harm officers on the scene or later
in the police car. A jury, therefore, could reasonably conclude that Officer Furman
missed the bag of narcotics when he performed the pat-down search. Finally, the
government presented evidence that the bag was discovered directly below the bottom
edge of the car, not underneath the car. A jury could reasonably conclude that the bag
somehow fell slightly under the outer edge of the car. Based upon our review of this
record, we find no abuse of discretion in denying Johnson's motion for a new trial.
B. Severance
Johnson argues that the district court should have severed the narcotics and
weapons counts pursuant to Federal Rule of Criminal Procedure 8(a). This issue
presents a close question. Given the close temporal proximity of the narcotics
activities and the possession of the firearms, we believe that joinder was proper. Rule
8(a) applies to joinder of offenses and provides:
The indictment or information may charge a defendant in separate
counts with 2 or more offenses if the offenses charged—whether
felonies or misdemeanors or both—are of the same or similar character,
or are based on the same act or transaction, or are connected with or
constitute parts of a common scheme or plan.
The rule is broadly construed in favor of joinder to promote the efficient
administration of justice. United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002);
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United States v. Little Dog, 398 F.3d 1032, 1037 (8th Cir. 2005). We review de novo
the decision to join counts pursuant to Rule 8 of the Federal Rules of Criminal
Procedure. United States v. Boyd, 180 F.3d 967, 981 (8th Cir. 1999).
We made clear in Boyd that there is no categorical rule or presumption that
firearms and narcotics are subject to joinder. Id. at 982. Indeed, we affirmed the
joinder in Boyd based primarily upon the fact that "both times Boyd was found in
constructive possession of weapons there were controlled substances in the immediate
vicinity[.]" Id. Due to the immediate temporal and logical connection between the
firearms and the narcotics, we held that "[i]t is therefore reasonable to assume that the
firearms could have been used as a vital part of a plan to possess and distribute
drugs." Id.(internal quotations, brackets, and citation omitted).
Johnson's drug trafficking activity took place on the streets, but his firearms
possession occurred in his girlfriend's apartment. When the police searched the
apartment, no cocaine base was found. Police uncovered a user quantity of marijuana,
but it belonged to Boswell. In denying Johnson's objection to joinder, the district
court noted the common thread of Boswell's involvement or presence in virtually all
of Johnson's offenses. The court found that Johnson's firearms possession could be
linked to his need to protect his ongoing distribution of illegal drugs. The firearms
offense occurred between two narcotics offenses within a five-month period. While
the connection between Johnson's drug trafficking and his weapons offenses is not
particularly strong, the charges are connected temporally and logically, and the
district court found them to be part of a common scheme or plan. The district court
properly instructed the jury to consider the offenses separately, and nothing in the
record shows that the jury could not or did not segregate the evidence needed to
establish each offense. Thus, we find the district court's denial of Johnson's severance
motion was not erroneous.
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C. Grand Jury
Johnson argues that the district court should have dismissed Count V due to
alleged perjury before the grand jury, as well as potential prosecutorial misconduct.
This argument lacks merit for several reasons. First, Detective Aboud's inaccurate
recitation of the facts was reasonable given the police reports that he read. Second,
the government presented the corrected version of the evidence to a second grand
jury, which also indicted Johnson. Third, the petit jury ultimately found Johnson
guilty of Count V, rendering any grand jury error harmless and resulting in no
prejudice to Johnson. See United States v. Ruiz, 446 F.3d 762, 769 (8th Cir. 2006)
("The petit jury's ultimate finding of guilt beyond a reasonable doubt renders the
alleged grand jury error, if any, harmless."); United States v. Sanders, 341 F.3d 809,
818 (8th Cir. 2003) ("Even if we were to assume there was prosecutorial misconduct
during the grand jury proceedings, the petit jury's guilty verdict rendered those errors
harmless."); see also United States v. Exson, 328 F.3d 456, 459 (8th Cir. 2003)
("Dismissal due to errors in grand jury proceedings is appropriate only if the
defendant shows actual prejudice.").
D. Notice under § 851
Johnson argues that the government provided insufficient notice of its intent
to seek a life sentence based upon his prior convictions. Specifically, Johnson argues
that the government did not "file a document with the sole, specific purpose of
providing [him] with notice under 21 U.S.C. § 851(a)(1) that the [g]overment
intended to seek an enhanced sentence of life in prison against him based upon his
prior convictions." The government counters that the indictment itself provided
Johnson with notice of the government's intent to rely on his prior convictions.
Section 851(a)(1) of 21 U.S.C. provides:
No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
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convictions, unless before trial, . . . the United States attorney files an
information with the court (and serves a copy of such information on the
person or counsel for the person) stating in writing the previous
convictions to be relied upon.
We have noted that the purpose of notice under § 851 is to comply with the
constitutional requirements of due process. United States v. Curiale, 390 F.3d 1075,
1076 (8th Cir. 2004). "In applying the statute's requirements, courts are careful not
to elevate form over substance." Id. at 1077. In applying this principle, we have
placed the greatest weight on whether the defendant enjoyed "full knowledge of the
consequences" of his prior convictions when making strategic decisions in the course
of his defense, including whether to challenge the fact of prior conviction or whether
to plead guilty or to go to trial. See id.; United States v. Timley, 443 F.3d 615, 625–27
(8th Cir. 2006).
Johnson correctly asserts that the general procedure is for the government to
file a separate notice pursuant to § 851. E.g., Timley, 443 F.3d at 621, 626. However,
Johnson's argument for reversal fails because the government's reliance on prior
convictions was apparent from the face of the indictment, which listed the prior
convictions on which the government relied and expressly cited to § 851. See id. at
625–27. Contrary to Johnson's argument, § 851 does not require the government to
provide notice of its intent to enhance a defendant's sentence. Instead, the statute
requires notice that "stat[es] in writing the previous convictions to be relied upon."
The indictments filed against Johnson listed the prior convictions on which the
government intended to rely, cited § 851, and cited the relevant sections providing for
an enhanced sentence on the basis of prior convictions.
Furthermore, as in Curiale and Timley, the plea negotiations prior to trial
provided the defendant with explicit notice of the government's intent at trial to seek
a life sentence. The initial indictment charged Johnson with possession with intent
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to distribute or attempted distribution of cocaine base after having been convicted of
one or more felony drug offenses following his arrest for gambling. However, the
indictment did not include an allegation that the offense took place within 1,000 feet
of a protected location, which would carry a mandatory sentence of life
imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 851.
The government intended to seek a superseding indictment including the
"protected location" charge. Prior to the return of the superseding indictment, the
government sent Johnson two letters providing him with notice of the possibility of
a mandatory life sentence if convicted of the anticipated superseding indictment.
During a meeting with Johnson, the Assistant United States Attorney offered Johnson
the opportunity to plead guilty, warning him that he would face a mandatory sentence
of life imprisonment if convicted of the anticipated superseding indictment.
Approximately one month later, the grand jury returned the first superseding
indictment, which added the "protected location" allegation and specifically
referenced §§ 851, 860. The grand jury returned a second superseding indictment
containing the same charge. The government then filed a motion in limine, seeking
to bar the defendant from commenting on the fact that he faces a mandatory life
sentence if convicted. One week later, the government filed a trial memorandum,
noting that Johnson's two prior narcotics felonies subject him to enhanced penalties
pursuant to §§ 851 and 860. The grand jury then returned a third superseding
indictment with no material changes.
On this record, we believe that the government provided Johnson with adequate
notice that he faced a mandatory life sentence if convicted of narcotics distribution
near a protected location after having been convicted of prior narcotics felonies. A
contrary ruling would place form over substance, which we decline to do.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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