United States v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4430
BRIAN ANTWANINE JOHNSON, a/k/a
Fudd,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-98-283-A)
Argued: April 6, 2001
Decided: June 28, 2001
Before WIDENER and WILKINS, Circuit Judges, and
Patrick Michael DUFFY, United States District Judge
for the District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Joseph John McCarthy, DELANEY, MCCARTHY,
COLTON & BOTZIN, P.C., Alexandria, Virginia, for Appellant.
Gordon Dean Kromberg, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
2 UNITED STATES v. JOHNSON
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Brian Antwanine Johnson appeals his convictions for money laun-
dering and conspiracy to commit money laundering, see 18 U.S.C.A.
§ 1956(a)(1)(B)(i), 1956(h) (West 2000), and his conviction and sen-
tence for conspiracy to distribute 50 grams or more of cocaine base,
see 21 U.S.C.A. § 846 (West 1999). We affirm.
I.
Since Johnson’s appeal presents only legal questions, the facts may
be summarized briefly. The evidence presented at trial established
that between 1992 and 1997 Johnson engaged in the sale of cocaine
base in Baltimore, Maryland. Johnson laundered the proceeds of this
activity through successive purchases of vehicles of increasing value;
the vehicles were titled in the names of various friends and family
members who acted as straw purchasers. Based upon this evidence,
the jury convicted Johnson of one count each of conspiracy to launder
money and conspiracy to distribute cocaine base and of five substan-
tive counts of money laundering.
II.
We first consider Johnson’s assertion that the district court violated
his rights under the Confrontation Clause by admitting the grand jury
testimony of Robert Riddick, Jr., who testified regarding Johnson’s
drug-dealing activities. The district court admitted the grand jury tes-
timony pursuant to the "residual" hearsay exception. See Fed. R. Evid.
UNITED STATES v. JOHNSON 3
807. Johnson maintains that the admission of the testimony was
improper because the Government failed to exert good faith efforts to
secure Riddick’s presence at trial and because Riddick’s grand jury
testimony did not bear sufficient indicia of reliability. We reject both
contentions.
The Confrontation Clause provides that "[i]n all criminal prosecu-
tions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him." U.S. Const. amend. VI. This protection is not
absolute, however; "the Clause permits, where necessary, the admis-
sion of certain hearsay statements against a defendant despite the
defendant’s inability to confront the declarant at trial." Maryland v.
Craig, 497 U.S. 836, 847-48 (1990). For example, hearsay is admissi-
ble "if the prosecution establishes that the declarant is unavailable and
that the evidence bears indicia of reliability sufficient to afford the
trier of fact a satisfactory basis for evaluating the truth of the prior
statement." United States v. Shaw, 69 F.3d 1249, 1253 (4th Cir. 1995)
(internal quotation marks omitted).
Johnson first challenges the conclusion of the district court that
Riddick was unavailable. Following Riddick’s testimony before the
grand jury in 1998, the Government maintained contact with Riddick
through an agent of the Drug Enforcement Administration. Johnson
was a fugitive for approximately one year following his indictment,
and during that time Riddick’s controlling agent was reassigned and
the Government lost contact with Riddick. After efforts to locate Rid-
dick at various former addresses failed, the Government notified local
law enforcement authorities to be on the lookout for Riddick. One
week before trial, the Government issued a material witness warrant
so that Riddick could be taken into custody if he were located. Based
on this sequence of events, the district court determined that Riddick
was unavailable.
Johnson does not contest the factual accuracy of the Government’s
account, but rather maintains that the Government’s efforts to locate
Riddick were inadequate as a matter of law. See United States v.
Thomas, 705 F.2d 709, 711-12 (4th Cir. 1983) (explaining that a wit-
ness is not unavailable if the Government has failed to employ rea-
sonable means to obtain the witness’ presence (citing Fed. R. Evid.
804(a)(5))). Under similar circumstances, however, we have con-
4 UNITED STATES v. JOHNSON
cluded that the Government made a good faith effort to obtain the
presence of a witness. See id. at 712 (holding that witnesses were
unavailable when Government maintained contact with one witness
directly and with the other through his attorney, but both witnesses
absconded following their grand jury testimony and could not be
located by service of process). We therefore conclude that the district
court correctly determined that Riddick was unavailable.
Johnson next contends that the district court erred in concluding
that Riddick’s grand jury testimony bore sufficient indicia of reliabil-
ity. In United States v. McHan, 101 F.3d 1027 (4th Cir. 1996), we
identified several factors relevant to a determination of whether grand
jury testimony bears sufficient indicia of reliability to be admitted
under Rule 807. See id. at 1038.1 In particular, we noted that such tes-
timony is, to some degree, inherently reliable because it "is given in
the solemn setting of the grand jury, under oath and the danger of per-
jury, and in the presence of jurors who are free to question witnesses
and assess their credibility and a court reporter who prepares an offi-
cial transcript of the testimony." Id. We cautioned, however, that
grand jury testimony is not per se reliable. Rather, other factors
should be considered, including whether the witness appeared volun-
tarily, whether the witness testified from personal knowledge, and
whether the testimony was accurate. See id.Applying the factors identified in McHan, we conclude that the dis-
trict court did not commit clear error in determining that Riddick’s
grand jury testimony bore sufficient indicia of reliability to be admit-
ted under Rule 807. In addition to the indicia of reliability applicable
to all grand jury testimony, Riddick appeared voluntarily and testified
from personal knowledge. And, as the district court noted, the major-
ity of Riddick’s testimony was elicited through non-leading questions.2
1
McHan discusses Federal Rule of Evidence 804(b)(5). Subsequent to
the decision in McHan, Rule 804(b)(5) was recodified as Rule 807 with
no change in meaning. See United States v. Bros. Constr. Co. of Ohio,
219 F.3d 300, 309 n.2 (4th Cir. 2000), cert. denied, 121 S. Ct. 628(2000).
2
Moreover, any possibility of prejudice was obviated by repeated cau-
tionary instructions of the district court regarding Riddick’s testimony.
See United States v. Powers, 59 F.3d 1460, 1468 (4th Cir. 1995).
UNITED STATES v. JOHNSON 5
Cf. United States v. Flores, 985 F.2d 770, 776 n.14 (5th Cir. 1993)
(observing that grand jury testimony elicited through leading ques-
tions is less reliable).
III.
During the trial, Ivan Burrell, a Government informant, testified
regarding an aborted drug transaction involving Johnson. On cross-
examination, Burrell denied that he was under the influence of drugs
at the time of his interaction with Johnson but acknowledged that he
had used drugs "around the time" of the events in question. J.A. 457.
Based upon this admission, Johnson maintains that he was entitled to
a jury instruction that "[t]he testimony of a witness who was using
drugs at the time of the events he is testifying about . . . may be less
believable because of the effect the drugs may have [had] on his abil-
ity to perceive . . . the events in question." Id. at 52. We review the
refusal of a requested jury instruction for abuse of discretion. See
United States v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996).
An "addict instruction" such as the one requested by Johnson is not
required when, inter alia, the district court provides other cautionary
instructions. See United States v. Vgeri, 51 F.3d 876, 881 (9th Cir.
1995). Here, the district court provided lengthy instructions regarding
the assessment of a witness’ credibility. In particular, the district court
instructed the jury that an "informant’s testimony must be examined
with greater scrutiny than the testimony of an ordinary witness." J.A.
811. The court further warned the jury to be cautious of the testimony
of an informant who had received benefits from the Government—as
Burrell had, in the form of living expenses and rewards for helpful
information—because "the witness may believe that he will only con-
tinue to receive these benefits if he produces evidence of criminal
conduct." Id. at 812. In light of Burrell’s explicit denial that he was
intoxicated at the time of the events in question and the other caution-
ary instructions given by the district court, the refusal to give the
requested instruction was not an abuse of discretion. See Vgeri, 51
F.3d at 881.
IV.
Johnson raises several challenges to his drug trafficking conviction.
We address these challenges seriatim, concluding that all of them are
without merit.
6 UNITED STATES v. JOHNSON
A.
Johnson first contends that Congress exceeded its authority under
the Commerce Clause in enacting the drug trafficking statute, 21
U.S.C.A. § 841 (West 1999 & Supp. 2001).3 Specifically, Johnson
maintains that drug trafficking is not an activity affecting interstate
commerce that Congress may regulate pursuant to the Commerce
Clause. We rejected this claim in United States v. Leshuk, 65 F.3d
1105, 1111-12 (4th Cir. 1995), concluding that under United States
v. Lopez, 514 U.S. 549 (1995), intrastate drug trafficking activity had
a substantial effect on interstate commerce. The decision cited by
Johnson, United States v. Morrison, 529 U.S. 598 (2000), does not
undermine our prior holding because it "did not modify the Lopez
framework in any manner relevant to this case." United States v. Gal-
limore, 247 F.3d 134, 138 (4th Cir. 2001).
B.
Johnson next argues that venue in the Eastern District of Virginia
was improper on the drug trafficking charge. Because Johnson failed
to raise this issue before the trial court, our review is for plain error.
See United States v. Olano, 507 U.S. 725, 731-32 (1993). In order to
establish our authority to notice an error not preserved by timely
objection, Johnson must demonstrate that an error occurred, that the
error was plain, and that the error affected his substantial rights. See
id. at 732. Even if Johnson can satisfy these requirements, correction
of the error remains within our discretion, which we "should not exer-
cise . . . unless the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’" Id. (second alteration in
original) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
Because we conclude that venue was proper in the Eastern District of
Virginia, there was no error.
3
Johnson was not charged with a substantive drug offense, but with
conspiracy. However, 21 U.S.C.A. § 846 specifies that "[a]ny person
who . . . conspires to commit any offense" under, inter alia, 21 U.S.C.A.
§ 841 "shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the . . . conspiracy."
UNITED STATES v. JOHNSON 7
Article III of the Constitution provides, as is relevant here, that
"[t]he Trial of all Crimes . . . shall be held in the State where the said
Crimes shall have been committed." U.S. Const. art. III, § 2, cl. 3. The
Sixth Amendment reinforces this command, stating that "[i]n all crim-
inal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the
crime shall have been committed." U.S. Const. amend. VI; see Fed.
R. Crim. P. 18 ("Except as otherwise permitted by statute or by these
rules, the prosecution shall be had in a district in which the offense
was committed."). When multiple counts are alleged in an indictment,
venue must be proper on each count. See United States v. Bowens,
224 F.3d 302, 308 (4th Cir. 2000), cert. denied, 121 S. Ct. 1408(2001). In a conspiracy case, venue is proper in any district in which
an act in furtherance of the conspiracy was committed. See United
States v. Al-Talib, 55 F.3d 923, 928 (4th Cir. 1995). The burden is on
the Government to prove venue by a preponderance of the evidence.
See id.Johnson maintains that the Government failed to provide any evi-
dence that any drug trafficking activity took place in the Eastern Dis-
trict of Virginia. Johnson overlooks the fact that the evidence
indicated that on one occasion Johnson and a cohort traveled to the
Eastern District of Virginia to retrieve narcotics from a vehicle of
Johnson’s that had been impounded. Because the retrieval of the nar-
cotics was an act in furtherance of the conspiracy, venue was proper
in the Eastern District of Virginia.
C.
Finally, Johnson contends, based upon Apprendi v. New Jersey,
530 U.S. 466 (2000), that the life sentence imposed for the drug con-
spiracy conviction was improper because the jury was not required to
find drug quantity beyond a reasonable doubt in order to convict.
Johnson failed to raise this issue before the district court; accordingly,
we review for plain error. See Olano, 507 U.S. at 731-32.
We conclude that there was no Apprendi error here. Johnson’s
indictment specifically charged him with conspiring to "distribute 50
grams or more of a mixture and substance containing a detectable
amount of cocaine base." J.A. 24. And, the district court explicitly
8 UNITED STATES v. JOHNSON
instructed the jury that in order to convict Johnson, it had to find
beyond a reasonable doubt that he was a member of the conspiracy
alleged in the indictment:
[C]ount two is the drug conspiracy count, and that count
alleges that . . . the defendant unlawfully, knowingly, and
intentionally . . . conspired . . . to unlawfully, knowingly,
and intentionally distribute 50 grams or more of "crack"
cocaine. . . .
....
The first element for the drug conspiracy is . . . that the
Government must prove beyond a reasonable doubt . . . that
the agreement as described in the indictment, did in fact
exist . . . . So that, in other words, they have alleged a con-
spiracy between the defendant and at least one other person
to distribute 50 grams or more of "crack" cocaine . . . .
....
So to establish the drug conspiracy, they must prove
beyond a reasonable doubt three facts: That the specific con-
spiracy they have described in count two of the indictment
did, in fact, exist and that the defendant knowingly became
a member of that conspiracy. That is the second element.
The third element is that he voluntarily became a member
of that conspiracy.
Id. at 823-24. The finding by the jury that Johnson agreed to distribute
more than 50 grams of cocaine base is sufficient to authorize the
imposition of a life sentence under Apprendi. See United States v.
Hoover, 246 F.3d 1054, 1058 (7th Cir. 2001); United States v. Irvin,
2 F.3d 72, 75 (4th Cir. 1993) (explaining that a conspirator is crimi-
nally liable for all acts within the scope of the conspiratorial agree-
ment); see also United States v. Richardson, 233 F.3d 223, 230-31
(4th Cir. 2000) (holding that no Apprendi error occurred when indict-
ment charged drug quantity and district court instructed jury that Gov-
ernment was required to prove offense as charged in indictment),
petition for cert. filed, No. 00-9234 (U.S. Mar. 19, 2001).
UNITED STATES v. JOHNSON 9
V.
For the reasons set forth above, we conclude that there was no error
in Johnson’s convictions or sentence.4 Accordingly, we affirm.
AFFIRMED
4
In addition to the issues discussed above, Johnson challenges the
admission of certain testimony by two witnesses. We have carefully con-
sidered Johnson’s arguments with respect to this testimony, and we con-
clude that his challenges are without merit.