United States v. Johnson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 22, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-3023
v. (D. Kansas)
LARRY “MISSISSIPPI” JOHNSON, (D.C. No. 04-10104-MLB)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, ANDERSON, and O’BRIEN, Circuit Judges.
Larry Johnson, a federal prisoner, was convicted after a jury trial in 2004 of seven
drug distribution and firearms offenses. Mr. Johnson raises various challenges to his
convictions, and for the following reasons, we affirm.
I. BACKGROUND
In early 2004, undercover federal agent Wes Williamson began to investigate a
group of individuals suspected of selling drugs and guns. Agent Williamson first learned
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
about Mr. Johnson while investigating this operation, which involved one of Mr.
Johnson’s acquaintances. Rec. vol. III, at 30-32. From February to April of 2004, Agent
Williamson made four purchases of cocaine base (crack) from Mr. Johnson. The first, on
February 24th, was facilitated by the acquaintance. Agent Williamson purchased
approximately half an ounce of crack from Mr. Johnson for $400. Id. at 30-34. Two days
later, he purchased one ounce of crack from Mr. Johnson. During this second purchase,
Agent Williamson had a gun in his car that he had purchased from Mr. Johnson’s
acquaintance. Mr. Johnson asked Agent Williamson “how much [he wanted] for the
firearm.” Id. at 45.
In mid-April, additional purchases were arranged. On April 14th, Agent
Williamson purchased one ounce of crack from Mr. Johnson. During this purchase, he
provided Mr. Johnson with a list of firearms that he would sell, since Mr. Johnson had
inquired about purchasing a gun during the second February purchase. Id. at 55-56. At
this meeting, Mr. Johnson told Agent Williamson that he already had a Colt .45. Id. vol.
II (Government Exhibit 9, tape recording of meeting, 4/14/04, between Agent and
Defendant). On April 16th, Agent Williamson again provided Mr. Johnson with a list of
firearms for sale. Id. vol. III, at 64, 69. On April 20th, Agent Williamson arranged a
larger purchase: two and a half ounces of crack in exchange for firearms and cash. Id. at
75. Mr. Johnson brought Antoine Washington with him to the pre-determined purchase
location, arriving in Mr. Washington’s car. Id. at 84. Mr. Washington was ultimately
charged and tried with Mr. Johnson.
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Immediately after the April 20th exchange, Mr. Johnson and Mr. Washington were
arrested. Police located a Colt .45 in the car on the backseat floorboard, behind the
passenger seat in which Mr. Johnson had been sitting. Id. at 170, 176. A subsequent
search of Mr. Johnson’s house revealed .45 caliber ammunition in a bag that also
contained Mr. Johnson’s social security card. The ammunition found in the Colt .45 was
the same brand as the ammunition located in the bag. Id. at 244-46, 282-83.
The government charged Mr. Johnson and Mr. Washington with various drug and
firearm offenses. A jury convicted Mr. Johnson of seven counts: conspiracy to distribute
cocaine base after a prior felony conviction, in violation of 21 U.S.C. § 846 (count one);
distribution of cocaine base after a prior felony conviction, in violation of 21 U.S.C. §
841 (counts two through five); possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1) (count six); and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (count seven). The district court
sentenced Mr. Johnson to 240 months for counts one through five, and 120 months for
count seven, to be served concurrently. The court also imposed a sixty-month sentence
on count six, to be served consecutively.
II. DISCUSSION
On appeal, Mr. Johnson presents various arguments attacking his conviction and
sentence. First, he contends the government failed to timely file an information regarding
his prior convictions, thereby violating his due process rights and requiring resentencing.
Second, he argues that the government did not present sufficient evidence that the
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substances he sold to Agent Williamson actually contained crack cocaine, thereby
obviating his convictions for counts two through six. Third, Mr. Johnson argues that the
district court should have dismissed counts one, five, six, and seven because Agent
Williamson engaged in outrageous conduct or sentence factor manipulation; alternatively,
he contends that whether Agent Williamson’s conduct was outrageous was a question that
the district court should have submitted to the jury. Finally, Mr. Johnson argues that the
government did not present sufficient evidence to support his conviction on count seven.
We examine each argument below.
A. Filing of Information Regarding Prior Convictions
Mr. Johnson first argues that the government did not timely file the information
regarding his prior convictions. Filing an information regarding prior convictions permits
the district court to apply a sentencing enhancement. 21 U.S.C. § 851. Here, the
government filed the information on the morning that jury selection began, prior to voir
dire. Mr. Johnson argues that the government should have filed the information earlier,
and that not doing so violated his due process rights. Whether a sentence imposed
violates a defendant’s due process rights presents a question of law, which we review de
novo. United States v. Gonzalez-Lerma, 14 F.3d 1479, 1484 (10th Cir. 1994).
In Gonzalez-Lerma, we encountered a situation similar to Mr. Johnson’s. There,
the government filed the information of prior convictions the day before trial, but waited
until the morning of trial to serve the defendant’s counsel. We held that this constituted
timely filing, noting that “the circuits that have considered this issue in the context of jury
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trials have concluded that filing anytime before jury selection begins is sufficient for
purposes of 21 U.S.C. § 851. Id. at 1484 (emphasis added). We further concluded that §
851 is intended to fulfil the due process requirements “that a defendant receive reasonable
notice and opportunity to be heard relative to the recidivist charge.” Id. at 1485 (internal
quotation marks omitted). Thus, the timely filing and service of an information under §
851 is sufficient to satisfy the due process requirements of notice and an opportunity to be
heard. See id.
Even though he couches his argument in due process terms, rather than as a
violation of § 851, Mr. Johnson acknowledges that the case law in our circuit is clearly
against him. See Aplt’s Br. at 15 (“Johnson understands that case law supports the filing
of the Information just before voir dire.”). We see nothing in Mr. Johnson’s argument to
convince us that his case is substantially different than Gonzalez-Lerma and therefore
hold that the government timely filed and served the information in compliance with §
851 and Mr. Johnson’s due process rights.
B. Sufficiency of the Evidence: Counts two through six
Mr. Johnson next argues that the government failed to prove that the substance he
allegedly distributed contained cocaine base because the expert who testified as to the
substance did not explicitly testify “that his opinions were based either upon a reasonable
degree of probability or certainty.” Aplt’s Br. at 16. Therefore, Mr. Johnson contends,
the district court erred by not dismissing counts two through six due to insufficient
evidence. We review the district court’s decision de novo. See United States v. Vallo,
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238 F.3d 1242, 1246 (10th Cir. 2001). We must affirm the jury’s verdict so long as,
viewing the evidence in the light most favorable to the government, a reasonable jury
could have found Mr. Johnson guilty. Id. at 1247.
To convict Mr. Johnson of the offenses charged in courts two through six, the
government was required to prove beyond a reasonable doubt that the substance he
distributed contained a detectable amount of cocaine. 21 U.S.C. § 841(a)(1). Scientific
evidence is admissible to prove that contention if it is reliable and relevant, and here there
was no objection made to the witness’s report or proffered testimony on either ground.
See F ED. R. E VID. 702. The government may also use other testimony and circumstantial
evidence to show that the substance in question contained cocaine, including:
evidence of the physical appearance of the substance involved in the
transaction, evidence that the substance produced the expected effects when
sampled by someone familiar with the illicit drug, evidence that the substance
was used in the same manner as the illicit drug, testimony that a high price
was paid in cash for the substance, evidence that transactions involving the
substance were carried on with secrecy or deviousness, and evidence that the
substance was called by the name of the illegal narcotic by the defendant or
others in [her] presence.
United States v. Sanchez-DeFundora, 893 F.2d 1173, 1175 (10th Cir. 1990) (internal
quotation marks omitted).
Mr. Johnson essentially argues that, no matter how reliable the tests used, and
regardless of what the scientific testing shows, if the expert witness does not use the
particular phrase “reasonable degree of scientific certainty,” then a jury cannot rely upon
the expert’s testimony or the scientific testimony. He does not cite, nor can we locate,
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any case that actually requires the use of this phrase. The cases that he does cite are
distinguishable and do not address whether an expert must testify to something to a
reasonable degree of certainty in order for that evidence to be admissible, relevant, and
relied upon by a jury.
Here, the expert testified that he used tests commonly used in the scientific
community for the identification of unknown substances. In light of the expert’s
testimony, as well as the circumstantial evidence identified by the government (the high
price of $400 paid for the substance, the code word “z” used to describe an ounce of
drugs, the guns present during one of the transactions, and Mr. Johnson referring to the
substance as crack cocaine), there was sufficient evidence for a reasonable jury to
conclude that Mr. Johnson distributed a substance containing crack cocaine, as alleged in
counts two through six.
C. Outrageous Conduct and Sentence Factor Manipulation: Counts one, five,
six and seven
Mr. Johnson next contends that the district court erred by not dismissing counts
one, five, six, and seven of the indictment because of the government’s outrageous
conduct during the course of its undercover investigation. Alternatively, Mr. Johnson
asks that his case be remanded for resentencing because the government’s undercover
investigation constituted sentence factor manipulation, which may justify a downward
departure from the guideline range. See United States v. Lacey, 86 F.3d 956, 966 (10th
Cir. 1996). We examine de novo the issue of whether the district court should have
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dismissed these counts of the indictment because of outrageous conduct. United States v.
Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994). As to Mr. Johnson’s allegation of
sentence factor manipulation, we review the district court’s legal conclusions regarding
the sentencing guidelines de novo, but we examine its factual findings only for clear error.
See Lacey, 86 F.3d at 962; Pedraza, 27 F.3d at 1521. Although there is some question as
to whether Mr. Johnson properly preserved these issues with respect to counts one and
seven, we need not decide whether to review these arguments with respect to those counts
under a plain error standard of review. Even under a de novo standard, his arguments fail.
This court has recognized that “‘the conduct of law enforcement agents [may be]
so outrageous that due process principles would absolutely bar the government from
invoking judicial processes to obtain a conviction.’” Lacey, 86 F.3d at 964 (quoting
United States v. Russell, 411 U.S. 423, 431-32) (1973)). If “the government’s conduct is
so shocking, outrageous and intolerable that it offends the universal sense of justice,”
Lacey, 86 F.3d at 964 (quotation marks omitted), then dismissal of the indictment may be
warranted.
In Lacey we also observed that “we may someday be presented with a situation in
which the conduct of law enforcement agents is so outrageous that due process principles
would warrant a downward departure from the sentencing guidelines.” Id. (internal
quotation marks omitted). However, we concluded that such a departure was not
warranted in light of the facts before us. Id.; see also United States v. Sanchez, 138 F.3d
1410, 1414 (11th Cir. 1998) (explaining that a sentencing factor manipulation argument
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“‘requires us to consider whether the manipulation inherent in a sting operation, even if
insufficiently oppressive to support an entrapment defense, . . . or due process claim, . . .
must sometimes be filtered out of the sentencing calculus.’”) (quoting United States v.
Connell, 960 F.2d 191, 194 (1st Cir. 1992)).
According to Mr. Johnson, “in order to avail himself of the protection against
sentence factor manipulation, his burden [is] to prove by a preponderance of the evidence
that the government engaged in conduct, not sufficiently oppressive to constitute
outrageous conduct, but sufficiently oppressive to merit filtering the results of the
manipulation from his sentence.” Aplt’s Br. at 29. Mr. Johnson contends this approach
would not conflict with Lacey.
We need not examine whether Mr. Johnson’s suggestion actually conflicts with
our opinion in Lacey, or under what circumstances sentence factor manipulation may
require relief apart from that available because of outrageous governmental conduct.
Even under the less-stringent standard suggested by Mr. Johnson, his argument fails. The
government’s conduct was neither outrageous nor oppressive, nor was it “designed solely
to increase the severity of a criminal sentence.” United States v. Maldonado-Montalvo,
356 F.3d 65, 72 (1st Cir. 2003) (emphasis added). In Lacey, agents had attempted to
collect evidence to break up an entire drug ring and secure convictions of co-conspirators.
86 F.3d at 965. In those circumstances, we explained that officers are “often justified in
increasing the scope of criminal activity in a sting operation, especially when attempting
to ensnare those persons higher up on the distribution ladder.” Id.9
The same principle holds true here: the government already knew that others
involved in the same drug ring as Mr. Johnson had been involved in selling and/or buying
guns. Aplt’s Br. at 31. Moreover, although it was a government agent who offered the
guns for sale or exchange, Mr. Johnson had previously asked to purchase a gun that was
in the agent’s backseat during one of the drug sales. Aple’s Br. at 15 n.11; Rec. vol. III,
at 149. Significantly, on the last purchase that Mr. Johnson argues was improperly set up
by the government “for the sole purpose of manipulating the sentence that [Mr.] Johnson
might receive,” Aplt’s Br. at 31, Johnson brought another member of the alleged
conspiracy with him. Aple’s Br. at 17; Rec. vol. III, at 89. Thus, it was through this final
purchase that the government was able to obtain evidence against someone else involved
in the illegal activity. See United States v. Scull, 321 F.3d 1270, 1276-78 (10th Cir. 2003)
(even though government agents could have arrested the defendant after their first contact
with him, they continued to engage in drug buys and were able to identify other members
of the conspiracy; therefore, their conduct was not targeted solely at the defendant and
was not outrageous).
Accordingly, there were legitimate purposes for the government’s conduct while
engaging Mr. Johnson in further criminal activity. The district court was correct not to
dismiss any counts of the indictment, and a remand for resentencing is not warranted.
Mr. Johnson argues in the alternative that the district court should have submitted
the question of whether the government’s conduct was outrageous to the jury. He
recognizes, however, that “it is settled law that the proposition of whether outrageous
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government conduct exists is a question of law for the court.” Aplt’s Br. at 33; see
United States v. Gell-Iren, 146 F.3d 827, 831 (10th Cir. 1998); see also United States v.
Nguyen, 250 F.3d 643, 645 (8th Cir. 2001) (“Outrageous government conduct is a
question of law and is resolved by the court, not the jury.”). Therefore, the district court
properly refused to submit this question to the jury.
D. Sufficiency of the Evidence: Count seven
Finally, Mr. Johnson argues that the district court should have dismissed the §
922(g)(1) charge for possession of a firearm by a convicted felon because no reasonable
jury could have concluded that he was guilty. Again, we review the district court’s
decision de novo, viewing the evidence in the light most favorable to the government.
Vallo, 238 F.3d at 1246-47. We affirm if a rational jury could have found Mr. Johnson
guilty beyond a reasonable doubt. Id. at 1247. “We must not weigh conflicting evidence
or consider the credibility of the witnesses, but simply determine whether the evidence, if
believed, would establish each element of the crime.” Id. (internal quotation marks and
alteration omitted).
Mr. Johnson points out that the Colt .45 was discovered in Mr. Washington’s car
and argues that because of this, no rational jury could have found that Mr. Johnson was
the person who possessed the firearm. Our opinion in United States v. Hishaw, 235 F.3d
565 (10th Cir. 2000), is instructive. There, a gun was discovered under the passenger seat
of a car driven by the defendant. The defendant argued that he had neither actual nor
constructive possession of the gun, given that he was the driver of the car and not the
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passenger, and therefore there was insufficient evidence to support the jury’s conviction
on his issue. The court explained that “in cases of joint occupancy in which the
government relies on circumstantial evidence of dominion, control, and knowledge, it
must present evidence to show some connection or nexus between the defendant and the
firearm or other contraband.” Id. at 571 (internal quotation marks omitted).
Here, there was a sufficient nexus for the jury to convict Mr. Johnson of
possessing the Colt .45 located in Mr. Washington’s car. He told the undercover agent
that he owned a Colt .45, and a Colt .45 was discovered on the back passenger-side
floorboard of Mr. Washington’s car, near where Mr. Johnson had been sitting. Moreover,
.45 caliber ammunition was found in a bag at Mr. Johnson’s house that also contained Mr.
Johnson’s social security card. Finally, the ammunition found in the Colt .45 and the
ammunition found in the bag were the same brands.
III. CONCLUSION
Accordingly, we AFFIRM Mr. Johnson’s convictions.
Entered for the Court,
Robert H. Henry
Circuit Judge
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