United States v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 97-30519
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD EARL JOHNSON; RICKY PHILLIP;
NORWOOD JOSEPH JOHNSON,
Defendants-Appellants.
___________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(96-CR-60031)
___________________________________________________
August 6, 1999
Before JONES, WIENER, Circuit Judges, and LITTLE,* District Judge.
PER CURIAM:**
This appeal arises from the prosecution of three members of a
drug conspiracy who were found to have trafficked crack cocaine
from Houston, Texas to various areas in Louisiana and Texas.
Defendants-Appellants, Richard Earl Johnson (“R.E. Johnson”), Ricky
Phillip (“Phillip”), and Norwood Joseph Johnson (“N.J. Johnson”),
were charged with 11 other defendants in a 23-count indictment
consisting of one count of conspiracy to engage in narcotics
*
District Judge of the Western District of Louisiana, sitting
by designation.
**
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this opinion should not be published and is not precedent except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.
offenses and various counts of substantive narcotics offenses. In
a consolidated trial of these three defendants, the jury found each
guilty of different counts under the indictment. On appeal, each
defendant raises separate challenges to the district court
proceedings, implicating sufficiency and admissibility of evidence,
as well as juror misconduct. Concluding that the district court
acted well within its discretion and that the jury verdicts were
not against the weight of the evidence, we affirm.
I.
FACTS AND PROCEEDINGS
The facts of this case span seven years and involve countless
incidents of manufacturing, transporting, and distributing crack
cocaine. As each defendant played a different role in the criminal
enterprise and each challenges different aspects of the district
court’s conduct of the trial, we present separately the facts and
analysis pertinent to each defendant’s appeal.
A. Norwood Joseph Johnson
1. Factual Background
As the leader of the drug conspiracy, N.J. Johnson was named
in 17 of the indictment’s 23 counts, including conspiracy to
possess and distribute cocaine base in violation of 21 U.S.C. § 846
(count 1), possession with intent to distribute cocaine base on
February 4, 1995 in violation of 21 U.S.C. § 841(a)(1) (count 19),
2
carrying a firearm during and in relation to a drug crime in
violation of 18 U.S.C. § 924(c)(1) (count 20), and assuming a
leadership role in a continuing criminal enterprise in violation of
21 U.S.C. § 848 (count 22). On appeal, N.J. Johnson challenges the
sufficiency of the evidence to convict him of count 20, carrying a
firearm “during and in relation to” a drug trafficking offense.
The specific drug trafficking offense referred to in count 20
took place on February 4, 1995. Appellant N.J. Johnson and his
wife traveled in a Chevrolet Impala from Houston to a hotel in
Lafayette where, according to plan, they met three co-conspirators
to conduct a drug transaction. These three co-conspirators were
also traveling from Houston, allegedly carrying over 37 ounces of
crack cocaine hidden in the door panel of their Crown Victoria.
Having been “tipped off” about this meeting, federal agents set up
surveillance in the hotel and its parking lot. The agents observed
the arrival and departure of different co-conspirators, including
N.J. Johnson and his wife, but did not witness the actual exchange
of drugs and money.
Later that afternoon, when the Johnsons left the hotel in
their Impala, Lafayette police pulled them over for an improper
lane change. The officers conducted a lawful search of the vehicle
and recovered a 9mm semiautomatic pistol. The officers testified
that, on careful scrutiny of the vehicle, they determined that the
plastic fasteners and metal screws securing the door panels were
marred and loose, indicative of frequent removal in the past. This
evidence, noted the officers, was consistent with the fact that the
3
Johnsons drove a Chevrolet Impala, which is known as a high
performance vehicle having very large natural cavities for hiding
drug contraband.
Later that evening, the Lafayette police stopped the other co-
conspirators’ Crown Vic, and from the officers’ lawful search of
that vehicle, marijuana residue and $12,000 in cash were recovered.
Federal agents also searched the then-empty hotel rooms in which
the drug transaction had transpired and found, among other things,
shredded paper, marijuana, cocaine residue, and duct tape.
During trial, Mrs. Johnson testified that she had purchased
the pistol recovered from their Impala by the police on February 4
for personal protection at home. She explained that, at the
request of her husband, she had purchased two firearms, one of
which was the 9mm pistol taken with them to Lafayette and later
recovered from the Impala by the Lafayette police, and the other of
which was seized that day from Mrs. Johnson’s brother.1 She
further testified that this was the first time they had taken any
gun with them while traveling in the car. In contrast to his
wife’s testimony, N.J. Johnson stated that the couple always
carried a gun when traveling by car. Based inter alia on this
conflicting testimony, the jury convicted N.J. Johnson of carrying
a firearm during and in relation to a drug trafficking offense.
2. Sufficiency of the evidence: § 924(c)(1)
1
Mrs. Johnson’s brother was not involved in this particular
drug transaction, but had been arrested on the same day in Mt.
Vernon, Alabama while in possession of 6 grams of crack and a 9mm
semiautomatic pistol.
4
N.J. Johnson argues that the evidence adduced at trial was
insufficient to support his conviction of carrying a firearm during
and in relation to a drug trafficking crime. We review the
evidence in a light most favorable to the verdict to determine
whether a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.2 Regardless of
whether the evidence presented is direct or circumstantial, we must
accept all reasonable inferences and credibility choices that
support the jury’s verdict.3
Section 924(c)(1) criminalizes the use or carrying of a
firearm “during and in relation to any crime of violence or drug
trafficking crime.”4 In this circuit, transporting a firearm in an
automobile constitutes “carrying,” regardless of the specific
location of the gun in the vehicle.5 It is undisputed that the
police discovered the 9mm pistol in the automobile driven by N.J.
Johnson; it was therefore “carried” for purposes of section
924(c)(1).
The thrust of N.J. Johnson’s argument is that, even if he
“carried” the gun, he did not do so “during and in relation to” a
2
Jackson v. Virginia, 443 U.S. 307, 324 (1979); United States
v. Greenwood, 974 F.2d 1449, 1456 (5th Cir. 1992), cert. denied, 113
S. Ct. 2354 (1993).
3
United States v. Gonzales, 866 F.2d 781 (5th Cir.), cert.
denied, 490 U.S. 1093 (1989); Greenwood, 974 F.2d at 1458
(“Assessing the credibility of witnesses and weighing the evidence
is the exclusive province of the jury.”).
4
11 U.S.C. § 924(c)(1) (1994).
5
United States v. Brown, 161 F.3d 256, 258 (5th Cir. 1998);
United States v. Harlan, 130 F.3d 1152, 1153 (5th Cir. 1997).
5
drug trafficking offense on February 4, 1995.6 He correctly
contends that the mere possession of a gun in the proximity of the
crime is insufficient to show that the gun was related to the
underlying drug offense.7 He claims that the only connection
between the car and the drug offense was that the car containing
the gun had been driven to and from the site of the drug
transaction. As no drugs were found in the car, and at no time did
the pistol facilitate the drug transaction, argues N.J. Johnson,
the carrying of the pistol did not occur “during and in relation
to” the offense.
We agree that the mere possession of a gun in the proximity of
the crime is not enough to support a conviction under section
924(c)(1). We note, however, that the gun need not be in the
immediate vicinity of the drugs to satisfy the statute, either.8
In fact, to satisfy the statute, the firearm need only “have the
potential of facilitating the underlying drug trafficking
6
Regardless of whether the pistol was carried “during and in
relation to” the singular drug offense committed on February 4, it
was clearly carried “during and in relation to” the entire drug
trafficking conspiracy. Even though Appellant was not ultimately
convicted of conspiracy, as it is a lesser included offense of a
continuing criminal enterprise, the jury’s finding that Appellant
engaged in the conspiracy is sufficient to establish a predicate
offense. See United States v. Thomas, 12 F.3d 1350, 1362-63 (5th
Cir. 1994).
7
See Smith v. United States, 508 U.S. 223, 238 (1993) (“The
phrase ‘in relation to’ thus, at a minimum, clarifies that the
firearm must have some purpose or effect with respect to the drug
trafficking crime; its presence or involvement cannot be the result
of accident or coincidence.”).
8
See United States v. Tolliver, 116 F.3d 120, 126 n.6 (5th
Cir.), cert. denied, 118 S. Ct. 324 (1997).
6
offense.”9 To determine whether the pistol had this potential, we
must consider the entire voyage embarked on by the Johnsons and the
three co-conspirators, rather than taking a snapshot view of only
the short time in which the drugs physically changed hands inside
the hotel.
When the Johnsons and the three co-conspirators left Houston
in two separate cars, they planned to meet at a pre-determined
hotel where they believed their activities would be undetected. It
would be reasonable for a jury to infer that, as the kingpin of the
conspiracy, N.J. Johnson took care not to travel with the drugs or
the resulting proceeds in the car he was occupying. This inference
is supported by the testimonial evidence of the co-conspirators who
transported the drugs to Lafayette and left with the resulting
proceeds. Even though the pistol remained in N.J. Johnson’s car,
it was available to him or his passenger at any time in the event
of trouble with any of the co-conspirators or unexpected
authorities.
In fact, Mrs. Johnson testified, in direct contradiction to
her husband, that this was the only time the couple had carried the
pistol with them in the car. She further testified that, at her
husband’s request, she had recently purchased two firearms, one of
which was the pistol seized in their car by the Lafayette police.
The proximity of this purchase to the drug transaction raises an
additional inference that it was purchased to carry along with the
Johnsons on this drug transaction. Finally, the pistol was found
9
Id. at 126.
7
in the middle console of the car and was easily accessible to N.J.
Johnson and his wife in the event the drug transaction went awry.
Viewing the drug transaction from portal to portal, i.e. from
Houston to Lafayette and back, we conclude that a reasonable jury
could infer that the pistol was used “during and in relation to”
the drug trafficking offense that took place on February 4.
B. Ricky Phillip
1. Factual Background
Phillip allegedly supplied cocaine to N.J. Johnson. He was
indicted under count 1 for conspiracy to possess with intent to
distribute cocaine. Phillip challenges the sufficiency of the
evidence to convict him of conspiracy and further argues that the
jury’s use of extrinsic evidence during the trial affected the
verdict and resulted in prejudice against him, mandating a new
trial.
During trial, the government called eight co-conspirators who
had previously pled guilty but had yet to be sentenced, to testify
against Phillip.10 These eight witnesses, each of whom were
involved in different aspects of the cocaine trafficking operation,
identified Phillip but knew him only as “Rick” or “Slick Rick,”
absent any surname. Most of the eight testified that “Rick”
10
The witnesses included (1) Reginald Bernard, N.J. Johnson’s
right-hand man; (2) Ernest Lowery, who was involved in “cooking”
the cocaine into crack and transporting the crack; (3) Shannon
Martin, N.J. Johnson’s prior girlfriend who rented apartments for
N.J. Johnson and participated in transporting crack; (4) Douglas
Green, N.J. Johnson’s gopher and bodyguard; (5) Mrs. Johnson,
N.J.’s wife; (6) Gregory Hancock, who transported crack; (7) Dion
Eaglin, who transported crack, and (8) Suzanne Moses Grueso, who
supplied N.J. Johnson with cocaine.
8
supplied cocaine to N.J. Johnson. Although some of them observed
the drugs change hands, others had never seen an actual
transaction.
On his behalf, Phillip called his wife and his parents, who
testified that he maintained a full-time job at Brown & Root and
never possessed more than $30 or $40 in cash at any time.
Additionally, the testimony of each family member addressed
Phillip’s living arrangements. At some point during the four years
of his alleged involvement in the drug conspiracy, Phillip resided
in an apartment complex that was gated and protected by a full-time
security guard, facts not recalled by any witness who claimed to
have met Phillip at his apartment. Even though the evidence was
conflicting, the jury convicted Phillip of conspiracy to distribute
cocaine in violation of 21 U.S.C. § § 841(b)(1)(A) and 846.
At the end of trial but immediately before deliberations,
Phillip moved for a mistrial based on the discovery that jurors had
been using extraneous documents not placed into evidence during the
pendency of trial. A court security officer had discovered maps of
Houston and Lafayette while he was clearing out the jury
deliberation room prior to formal deliberations. On learning of
the maps’ removal from the room, the jury had made it clear that
they wanted to use the maps during their deliberations.
Defendants’ counsel would not agree to allow the jury to use
the maps during deliberations, and, instead, moved for a mistrial.
In connection with the denial of the mistrial motions, the court
admonished the jury members for their actions and instructed the
9
sole juror who had attempted to locate particular addresses on the
maps to disregard anything he had learned from the maps.
Ultimately, the court concluded that the jurors’ consideration of
two maps had not prejudiced any defendant. In passing, the court
noted that the maps could have been properly authenticated and
offered into evidence had either party so desired.
2. Sufficiency of the evidence: Conspiracy
Phillip challenges the sufficiency of the evidence to support
his conspiracy conviction. We review this issue exactly as we did
regarding N.J. Johnson: There must be evidence from which a jury
could find each element of the offense charged beyond a reasonable
doubt.11
To gain a conviction of conspiracy under 21 U.S.C § 841(a)(1)
and 846, the government had to prove that: (1) an agreement existed
between two or more persons to violate narcotics laws; (2) the
defendant knew of the conspiracy; and (3) the defendant
participated in the conspiracy.12 A person may be guilty as a co-
conspirator even if he plays only a minor role, but mere
association with other persons involved in a criminal enterprise is
insufficient to prove participation in a conspiracy.13 Proof of the
existence of the predicate agreement, however, may be tacit and
inferred from circumstantial evidence.14
11
Jackson, 443 U.S. at 307.
12
United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997).
13
Greenwood, 974 F.2d at 1457.
14
Thomas, 12 F.3d at 1356-57.
10
Even though we discern minor variations in witness testimony,
we must defer to the trier of fact for determinations of
credibility. The government presented evidence, through eight
witnesses, that Phillip supplied the cocaine, was aware that it was
“cooked” into crack, and knew that it was distributed throughout
Texas and Louisiana. Additional evidence showed that Phillip met
with N.J. Johnson and provided him with cocaine base. Although
Phillip’s wife, mother, and father protested that they knew nothing
of his alleged drug dealing, the jury was entitled to discount this
testimony and credit the government’s witnesses. The testimony in
the record supports the jury’s determination that Phillip’s
activities constituted conspiracy to possess with the intent to
distribute cocaine.
3. Juror impropriety: Extrinsic evidence in jury room
Next, Phillip argues that he is entitled to a new trial
because the jury’s consideration of the maps of Houston and
Lafayette, which had not been admitted into evidence, resulted in
undue prejudice against him. We review a denial of a motion for a
mistrial for abuse of discretion.15
During trial, the jury is allowed to consider only evidence
that is offered by either party and deemed admissible by the court.
When the presence of extrinsic material in the jury room
constitutes error, such error can be harmless if it “did not create
any reasonable possibility of prejudice.”16 If, however, there is
15
United States v. Mitchell, 166 F.3d 748, 751 (5th Cir. 1999).
16
Llewellyn v. Stynchcombe, 609 F.2d 194, 195 (5th Cir. 1980).
11
a reasonable possibility that consideration of the extrinsic
material had a prejudicial effect on the jury’s verdict, a
defendant is entitled to a new trial.17
Phillip contends that the map of Houston had been used by the
jury as further “evidence” to support the testimony of government
witnesses as to the location of his apartment. Without this
evidence, Phillip claims, the jury could have inferred that the co-
conspirators identified him to gain favor with the government. We
find Phillip’s argument unavailing. Location was not a vital issue
at this trial, as reflected by the vague testimony of witnesses
concerning the places where Phillip allegedly delivered cocaine.
The prosecution’s evidence focused on the activities and persons
involved in the drug transaction, rather than on specific
locations. Additionally, if the location of Phillip’s apartment
had the potential to affect the verdict, either side could have
entered the maps into evidence at trial.18 Moreover, on learning
that the jury had studied the maps, the court instructed the jurors
to disregard any information they had gleaned from that
examination, and the jury is presumed to follow curative
instructions. We therefore conclude that the trial court did not
abuse its discretion when it held that there was no reasonable
17
United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995),
cert. denied, 516 U.S. 979 (1995).
18
The district judge correctly commented, “I really believe
those maps could have been authenticated and sent to the jury if
anybody would have wanted it.”
12
possibility that the jury’s consideration of the maps had a
prejudicial effect on the verdict against Phillip.
C. Richard Earl Johnson
1. Factual Background
R.E. Johnson is the brother of N.J. Johnson. He was indicted
on counts 6 and 9 for possession with the intent to distribute
crack cocaine. R.E. Johnson argues that the court abused its
discretion in admitting Rule 404(b) evidence, under the Federal
Rules of Evidence (“FRE”), of his involvement in extrinsic drug
offenses, specifically this conspiracy, of which he had previously
been acquitted.19 He claims that the government used inadmissible
character evidence of his involvement in prior drug activities to
prove that he had a propensity to act in conformity therewith.
The drug transaction indicted as count 6 allegedly took place
in May of 1993. Ernest Lowery, a drug runner for N.J. Johnson,
testified that he believed crack cocaine was cooked at R.E.
Johnson’s apartment, although he was unable to describe the
interior of the apartment. Lowery further testified that when he
arrived at the apartment, everyone, including R.E. Johnson, left
the building while he and N.J. Johnson cooked the cocaine. The
jury acquitted R.E. Johnson on count 6.
19
R.E. Johnson had been indicted, tried, and acquitted in the
Eastern District of Louisiana on a conspiracy charge arising from
the same incidents alleged in count 1 of the instant indictment.
Although the government has collected extensive evidence supporting
the conspiracy, Defendant is protected from prosecution for
conspiracy on double jeopardy grounds. Defendant remains an
acquitted co-conspirator and was only charged in this indictment
with two substantive drug offenses.
13
The activities underlying count 9 are alleged to have occurred
in August of 1993. Lowery testified that he and R.E. Johnson
traveled from Houston to Lafayette on a Greyhound bus and stayed in
a Travelodge hotel. According to Lowery, R.E. Johnson was carrying
approximately 18 ounces of cocaine. Reginald Bernard, N.J.
Johnson’s right-hand man, testified that he picked up Lowery and
R.E. Johnson at the bus station and took them to the Travelodge,
where there are records of Bernard’s stay and of a phone call made
to a number associated with N.J. Johnson. The jury found R.E.
Johnson guilty of count 9.
At trial, the prosecution presented additional “other crimes”
evidence pursuant to FRE 404(b) to demonstrate R.E. Johnson’s state
of mind at the time he participated in the offenses for which he
was charged. Seven witnesses testified against R.E. Johnson and
provided numerous accounts of drug transporting, cooking, and
distributing in which he was involved. He specifically complains
of testimony regarding an incident involving federal agents who
stopped a truck in which he was allegedly traveling with two other
persons. In the truck, the agents discovered a bag containing
large quantities of cocaine and a handgun. The three suspects were
then ordered to get down on the ground, but one of them ——
allegedly R.E. Johnson —— ran away and evaded the agents.
Prior to trial, R.E. Johnson filed a motion in limine to
exclude the “other crimes” evidence pursuant to Rule 404(b). The
district court denied the motion, concluding that (1) the extrinsic
evidence is “relevant to the issue of defendant’s intent to
14
distribute a controlled substance as alleged in Counts Six and
Nine,” and (2) “the evidence’s probative value is not outweighed by
undue prejudice.” Over objections at trial, the court admitted
testimony of other crimes involving R.E. Johnson, but issued
precautionary instructions. Then, on the fourth day of testimony,
the district court ruled that the admission of more 404(b) evidence
would unfairly prejudice R.E. Johnson. Accordingly, the court
forbade the government from referencing R.E. Johnson’s involvement
in other crimes, with the exception of the truck incident when he
allegedly evaded the federal agents.
2. Admission of evidence: Rule 404(b)
R.E. Johnson challenges the district court’s admission of
other crimes evidence pursuant to FRE 404(b). The district court’s
decision to admit the evidence under FRE 404(b) will not be
disturbed absent an abuse of discretion.20
R.E. Johnson advances three principal arguments: (1) the
government did not provide adequate notice of its intent to elicit
404(b) evidence from Gidget Jolivette, (2) the government invoked
no permissible use for the other crimes evidence, and (3) the
danger of unfair prejudice substantially outweighed the probative
value of this evidence. FRE 404(b) permits the government to
introduce extrinsic offense evidence for the limited purpose of
establishing “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”21 If
20
United States v. Bermea, 30 F.3d 1539, 1561 (5th Cir. 1994).
21
FED. R. EVID. 404(b).
15
requested, the government is required to give notice “of the
general nature of any such evidence it intends to introduce at
trial.”22 Extrinsic evidence is properly admitted under FRE 404(b)
if the evidence is relevant to an issue other than defendant’s
character and the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice under
FRE 403.23
R.E. Johnson first insists that the government failed to
notify him of other crimes evidence that it intended to elicit from
Jolivette. We find this argument tenuous at best, as the plain
language of the rule merely requires the government to provide
notice of the “general nature” of any extrinsic evidence that it
intends to offer. In its response to R.J. Johnson’s motion in
limine, the government explained that the evidence it intended to
introduce “relates not only to the defendant’s involvement in an
incident at the Greyhound Bus Station . . . but other loads of
“crack” he transported. . . .” It was not necessary for the
government to identify by name every witness that it believed would
substantiate R.E. Johnson’s involvement in other crimes. We
therefore reject R.E. Johnson’s first challenge under FRE 404(b).
R.E. Johnson next claims that the government advanced no valid
need for introduction of other crimes evidence. The district court
concluded, however, that such extrinsic evidence was relevant to
22
Id.
23
United States v. Chavez, 119 F.3d 342, 346 (5th Cir.) (citing
United States v. Beechum, 582 F.2d 898, 911 (5th Cir, 1978)), cert.
denied, 118 S. Ct. 615 (1997).
16
his intent and knowledge to commit the acts described in counts 6
and 9. We agree. We have frequently held that extrinsic drug
offense evidence is admissible in drug prosecutions, subject to the
limitations of FRE 404(b) and 403.24 R.E. Johnson was indicted in
two substantive offenses of possession with the intent to
distribute cocaine, and the government proceeded on the theory that
he was both a principal and an “aider and abettor.”25 Evidence of
R.E. Johnson’s intent to join the enterprise supports a conviction
for aiding and abetting the offenses detailed in counts 6 and 9.26
Additionally, even though in his prior trial R.E. Johnson was
acquitted on the charge of conspiracy, extrinsic evidence
surrounding that conspiracy is admissible under FRE 404(b) when the
prosecution proves the defendant’s involvement in the offense by a
preponderance of the evidence.27 This the government did. We
therefore conclude that R.E. Johnson’s second assignment of error
under FRE 404(b) is without merit.
R.E. Johnson claims finally that even if the government’s
purpose in admitting the evidence was proper, the prejudicial
24
Bermea, 30 F.3d at 1562.
25
United States v. Dodd, 43 F.3d 759, 763 (1st Cir. 1995)
(concluding that the aider and abetter basis for criminal liability
is implicit in all indictments for substantive offenses and need
not be plead in the indictment); United States v. Bullock, 451 F.2d
884, 888 (5th Cir. 1971) (same).
26
See United States v. Phillips, 664 F.2d 971 (5th Cir.) (noting
that aiding and abetting requires a community of unlawful intent
between the principal and the aider and abetter), cert. denied, 457
U.S. 1136 (1981).
27
Huddleston v. United States, 485 U.S. 681, 687-88 (1988).
17
nature of the evidence greatly outweighed its minimal probative
value. The district court expressly found, however, that the
probative value of the extrinsic evidence was not outweighed by
undue prejudice. In fact, the court’s continuing sensitivity to
maintaining the proper balance between probative value and
prejudice was demonstrated when, on the fourth day of trial, the
district court prohibited the admission of any additional FRE
404(b) evidence against R.E. Johnson. Presumably the court
determined that the probative value of the 404(b) evidence had
decreased or the danger of unfair prejudice against him had
increased, or both. The district court was well within its
discretion in making these determinations under FRE 403, so we
reject R.E. Johnson’s final argument.28
CONCLUSION
For the reasons expressed above, we affirm the convictions of
Norwood Joseph Johnson, Ricky Phillip, and Richard Earl Johnson.
AFFIRMED.
28
Even if the FRE 404(b) evidence was admitted in error, that
error was harmless. As he himself points out, R.E. Johnson’s
conviction on count 9 was based solely on the jury’s evaluation of
the credibility of witnesses who provided an account of the events
that transpired at the time of the charged offense. It is
axiomatic that determination of witness credibility is the
exclusive province of the jury, and we cannot overturn that
determination absent clear error. We conclude that the jurors were
presented with sufficient, non-404(b) evidence of R.E. Johnson’s
arrival at the bus station carrying drugs and the distribution of
these drugs from a Travelodge hotel room. Any error was therefore
harmless.
18