United States v. Johnson, James E.

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1414
United States of America,
Plaintiff-Appellee,
v.
James E. Johnson,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97 CR 211--Charles N. Clevert, Judge.
Argued September 10, 1999--Decided January 13, 2000
Before Flaum, Manion, and Diane P. Wood, Circuit
Judges.
Manion, Circuit Judge. James Johnson was
convicted by a jury of one count of conspiracy to
distribute and to possess with intent to
distribute in excess of five kilograms of
cocaine. He was sentenced to 360 months of
imprisonment. He argues on appeal that the
government failed to provide Jencks Act material
and that the district court erred in admitting
hearsay at his trial. As to his sentence, Johnson
argues that the district court erred in adopting
the government’s determination of the amount of
cocaine attributable to him. Finding no error, we
affirm.
I.
The prosecution’s primary witness at Johnson’s
trial was Michael Blake, one of Johnson’s
associates and drug suppliers who had agreed to
cooperate with the authorities. Blake testified
that he began distributing cocaine in the
Milwaukee, Wisconsin area around 1979. He met
Johnson around that time through Johnson’s
brother, Charles, and began distributing drugs to
James Johnson. Blake’s drug distribution was
periodically interrupted by short stints in
prison, but when he was released in 1995, a
former prison buddy--Candelario Nevarez-Diaz--
contacted him and proposed a cocaine dealing
venture. Nevarez-Diaz agreed to front the
cocaine, meaning Blake would pay for it only
after he had sold it to others. That very night,
Nevarez-Diaz fronted Blake 125 grams of cocaine,
which Blake in turn fronted to Johnson and
another individual, Gordon Hagenkord. Blake and
Hagenkord also fronted cocaine to Robert
Schultz/1 and his stepdaughter Colleen Hanson,
who sold it out of Shultz’s Milwaukee bar, the
Blue Ribbon Pub.
The sales continued and increased to a point
where in early 1996, Nevarez-Diaz was supplying
Blake with one kilogram of cocaine every two
months. Blake, in turn, delivered some of the
cocaine to Johnson’s home in Milwaukee. Blake
testified that in 1996, he delivered up to two
kilograms of cocaine to Johnson at any one time,
and Johnson paid him $28,000 for each kilogram.
By this time, Blake was working closely with
Nevarez-Diaz and even used Nevarez-Diaz’s money
to purchase a Chevrolet Lumina to transport drugs
from Arizona. In 1997, Nevarez-Diaz supplied
Blake with around 5 to 10 kilograms of cocaine
every ten to twelve days, for which Blake paid
him $22,000 per kilogram. Blake, in turn,
supplied Johnson with between 3 and 4 kilograms
of cocaine every ten to twelve days, and sold it
on credit for about $27,000 per kilogram. Blake
estimated that between January 1, 1996 and July
24, 1997 he supplied Johnson with between 35 and
45 kilograms of cocaine.
On July 24, 1997, the police finally caught up
with Blake when they pulled his car over for a
traffic violation. A search of his vehicle turned
up cocaine and around $120,000, some of which
Johnson had given to Blake for cocaine. Charged
with possession of cocaine and facing a long
stretch in prison, Blake decided to cooperate
with the government. With the assistance of the
police, he placed recorded telephone calls to
Nevarez-Diaz, Johnson, and Hagenkord. Audio tapes
of Blake’s four conversations with Johnson were
admitted into evidence and played for the jury.
The recorded conversations were consistent with
Blake’s testimony that he fronted cocaine to
Johnson and that Johnson was a willing
participant in the conspiracy.
Johnson testified at his trial, and although he
admitted that he used cocaine, he denied that he
ever was involved in a drug conspiracy. Rather,
Johnson stated that he and Blake sold seafood
products. According to Johnson, Blake would drop
off shrimp, which Johnson would peddle on the
street and for which he would pay Blake some of
the proceeds. Apparently the jury did not believe
him, as it convicted him of one count of
conspiracy with intent to distribute and
possession with the intent to distribute cocaine,
in violation of 21 U.S.C. sec. 841(a)(1). With an
offense level of 37 and a criminal history
category of VI, Johnson was sentenced to 360
months of imprisonment, the shortest sentence
permitted under the Guidelines.
II.
A. Co-Conspirator Exception to the
Hearsay Rule
During direct examination, government witness
Gordon Hagenkord was asked about his duties in
carrying on the drug business after supplier
Michael Blake was arrested. As part of his
response Hagenkord stated that when he started
selling drugs for Blake, "I took over the south
side and J.J. [Johnson] had the north side."
Johnson first contends that the district court
erred in admitting this testimony. Johnson argues
that this statement, "J.J. had the north side",
was inadmissible hearsay not covered by the co-
conspirator exception because Blake’s statement
was not made in furtherance of the conspiracy./2
We review for an abuse of discretion the
district court’s decision to admit testimony
while its factual findings are examined for clear
error. United States v. Mojica, 185 F.3d 780, 788
(7th Cir. 1999); United States v. Petty, 132 F.3d
373, 379 (7th Cir. 1997). A statement is not
considered to be hearsay if it is made by "a co-
conspirator of a party during the course and in
furtherance of the conspiracy." Fed. R. Evid.
801(d)(2)(E). To utilize the co-conspirator
exception the government must show that: (1) a
conspiracy existed; (2) the declarant and the
defendant were both members of the conspiracy;
and (3) the statements were made in the course
and in furtherance of the conspiracy. Mojica, 185
F.3d at 788.
Statements which further the conspiracy must be
distinguished from mere idle chatter, narrative
declarations, and superfluous casual remarks
which do not further the conspiracy. United
States v. Curry, 187 F.3d 762, 766 (7th Cir.
1999); United States v. Santos, 20 F.3d 280, 286
(7th Cir. 1994) (narrative discussions of past
events were not statements made in furtherance of
the conspiracy). Statements made in furtherance
of a conspiracy can take a variety of forms. Some
examples include comments designed to assist in
recruiting potential members, to inform other
members about the progress of the conspiracy, to
control damage to or detection of the conspiracy,
to hide the criminal objectives of the
conspiracy, or to instill confidence and prevent
the desertion of other members. United States v.
Godinez, 110 F.3d 448, 454 (7th Cir. 1997);
United States v. Stephenson, 53 F.3d 836, 845
(7th Cir. 1995); United States v. Brookins, 52
F.3d 615, 623 (7th Cir. 1995); United States v.
Cox, 923 F.2d 519, 527 (7th Cir. 1991). Courts
assess a statement’s ability to advance the
conspiracy in the context in which the statement
was made. United States v. Powers, 75 F.3d 335,
340 (7th Cir. 1996). "The statement need not have
been made exclusively, or even primarily, to
further the conspiracy." Id. Rather, the record
need only contain some reasonable basis for
concluding that the statement in question
furthered the conspiracy in some respect.
Stephenson, 53 F.3d at 845; United States v.
Marin, 7 F.3d 679, 690 (7th Cir. 1993).
Here, Blake’s statement, "J.J. had the north
side", as repeated by Hagenkord, served several
purposes. First the statement gave Hagenkord
confidence in the confederacy through knowledge
that others like Johnson were similarly willing
to participate in the conspiracy. More
importantly, the statement conveyed to Hagenkord
the breadth of the conspiracy, its geographical
divisions, and his role with respect to those
divisions. Blake’s statement could have furthered
the conspiracy by letting Hagenkord know that he
was to concentrate on the south side of town
while leaving the north side for Johnson. By
precluding internecine competition, the
conspiracy could more efficiently allocate its
resources and thereby minimize waste. Thus, we
have held that the "in furtherance" element is
satisfied when the statement conveys information
which helps conspirators perform their designated
roles, as Blake’s comment did in this case.
Godinez, 110 F.3d at 454. Similarly, by
preventing the conspiracy from becoming a house
divided against itself, Blake’s comment helped to
prolong the conspiracy. Because Blake’s statement
to Hagenkord furthered the goals of the
conspiracy in several respects, the district
court did not err in admitting this testimony
under Rule 801(d)(2)(E).
B. Jencks Act
Johnson also argues that the government failed
to provide Jencks Act material, despite the
government’s assurances to the district judge
that it had no such material with respect to
Gordon Hagenkord. In support of this argument,
Johnson directs our attention to his trial
attorney’s cross-examination of Hagenkord.
Defense Counsel:
You said that persons [a prosecuting attorney, an
IRS agent, and DEA agent Rodel Babasa] read
reports to you?
Hagenkord:
They weren’t reports. They were, they read back
my own statements to me as I, they were putting
them down.
Defense Counsel:
That is, they had a document that had your
statement in it?
Hagenkord:
Yes.
Defense Counsel:
And they read your statements back to you?
Hagenkord:
Yes.
Defense Counsel:
And they read your statements back and asked you
if that’s what happened. Do I have that right?
Hagenkord:
Yes.
[Tr. Trans. Vol X pp. 348-49] According to
Johnson, this colloquy demonstrates that Jencks
material existed, and he argues that he never
received this material.
The Jencks Act was enacted in response to the
Supreme Court’s holding in Jencks v. United
States, 353 U.S. 657 (1957). To ensure the
meaningful confrontation of government witnesses,
the Act requires the government, upon the
defendant’s motion, to produce statements made by
any of its witnesses which the particular
witnesses signed, adopted, or approved, and which
pertain to their testimony at trial. 18 U.S.C.
sec. 3500(b); see also Fed. R. Crim. P. 26.2;
United States v. Lopez, 6 F.3d 1281, 1288 (7th
Cir. 1993). The hope is that these statements
will afford the defense a basis for effective
cross-examination of government witnesses and the
possible impeachment of their testimony without
overly burdening the government with a duty to
disclose all of its investigative material. See
United States v. O’Malley, 796 F.2d 891, 900 (7th
Cir. 1986); United States v. Snow, 537 F.2d 1166,
1168 (4th Cir. 1976). To ensure the government’s
compliance with the Act the statute prescribes
penalties for failing to produce Jencks material,
which include the striking of the particular
witness’s testimony or the declaration of a
mistrial. 18 U.S.C. sec. 3500(d).
In addressing Johnson’s argument that the Jencks
Act was violated, the government presents a host
of rather weak arguments. First, the government
argues that Johnson only requested the
prosecutor’s notes, and made no general call for
Jencks material. The trial transcript, however,
indicates that the prosecutor’s notes were merely
one type of material sought by Johnson.
Furthermore, even if Johnson’s request could be
construed as being limited to the prosecutor’s
notes, where (as in this case) the defendant
sought at least some Jencks material and the AUSA
affirmatively represented to the defendant and
the district judge that no additional Jencks
material existed, the defendant is entitled to
rely on this representation. See United States v.
Knapp, 25 F.3d 451, 460 (7th Cir. 1994) (a
defendant need not move for each witness’s Jencks
material where the government promises to produce
it).
The government then contends that Johnson’s
request for the material was not sufficiently
specific. This argument fails because Johnson
requested all Jencks material, and he could
hardly identify documents by name when they are
not in his possession. For this reason, we have
said that a "defendant need not be extremely
particular in requesting such information. A
defendant’s counsel cannot be overly specific
about items he may never have seen." United
States v. Allen, 798 F.2d 985, 997 (7th Cir.
1986).
The government then argues that Hagenkord did
not approve or adopt any statements, thereby
taking them outside the scope of the Act. The key
question here is "’whether the statement can
fairly be deemed to reflect fully and without
distortion the witness’s own words.’" United
States v. Blas, 947 F.2d 1320, 1326 (7th Cir.
1991) (quoting Allen, 798 F.2d at 994).
Hagenkord’s testimony indicates that the
government read his statements back to him and
that he then assented to them. Under longstanding
precedent this constitutes the witness’s approval
of them. Allen, 798 F.2d at 994 (adoption or
approval can be shown by demonstrating that the
interviewer read back to the witness what he
wrote and the witness affirmatively stated his
approval); see United States v. Marrero-Ortiz,
160 F.3d 768, 776 (1st Cir. 1998); United States
v. Roseboro, 87 F.3d 642, 645 (4th Cir. 1996);
United States v. Ogbuehi, 18 F.3d 807, 810-11
(9th Cir. 1994); United States v. Newman, 849
F.2d 156, 160 (5th Cir. 1988). So since this is
precisely the process Hagenkord described, the
government’s argument gets nowhere.
Next, the government seems to argue that the
purported statements at issue here were not
covered by the Jencks Act because the AUSA in
charge of the case was not the prosecuting
attorney who read the statements back to
Hagenkord and that he had no such document in his
immediate possession. But as our colleagues on
the Fifth Circuit have made clear, "[t]he Jencks
Act is not restricted to statements ’in the hands
of, or known to, the particular prosecuting
attorney assigned to the case, the U.S.
Attorney’s office, the Criminal Section of the
Justice Department, or even the entire Justice
Department. Its order is unqualified.’" United
States v. Ramirez, 174 F.3d 584, 588 (5th Cir.
1999); United States v. Bryant, 439 F.2d 642, 650
(D.C. Cir. 1971) (the duty to disclose under the
Jencks Act "affects not only the prosecutor, but
the Government as a whole, including its
investigative agencies."). Thus, the document in
question was required to be turned over to
Johnson so long as any federal prosecuting
attorney or agent had possession of it.
Finally, the government contends that Johnson
has failed to show prejudice. On the surface,
this argument has some legitimacy because
although the text of the Act does not itself
require a demonstration of prejudice, courts have
held that relief may not be granted under the
Jencks Act without such a showing. United States
v. Riley, 189 F.3d 802, 806 (9th Cir. 1999)
("While a defendant need not prove prejudice to
show a violation of the Jencks Act . . . when
there is no prejudice, a witness’s testimony need
not be stricken."); United States v. Rosario-
Peralta, 175 F.3d 48, 53 (1st Cir. 1999)
(statements must be produced under the Jencks Act
whether they are exculpatory or not, but no
relief will be granted unless the failure to
disclose caused prejudice). Furthermore, a
showing of prejudice is part of the harmless
error analysis, which also applies to Jencks
violations. United States v. Wables, 731 F.2d
440, 448 (7th Cir. 1984) (a failure to produce
Jencks material may be a harmless error "only
when it is ’perfectly clear’ that the
nondisclosure of Jencks Act statements did not
prejudice the defendant")./3 But in making this
argument here, where the government allegedly did
not produce the purported Jencks documents for
the defendant to review, the argument’s
limitations become readily apparent. A defendant
who does not know what is contained in unproduced
Jencks documents would be hard pressed to show
how that material would have benefitted his
defense. So assuming that Johnson was never given
the document in question, we can hardly hold
Johnson responsible for his failure to allege
prejudice. Indeed, it would be improper for
counsel who are ignorant of a document’s contents
to argue that the failure to produce such a
document prejudiced the defense.
Ultimately, however, Johnson cannot prevail on
this argument because he neither raised it nor
attempted to develop it before the district
court. Although there is no question that he
initially requested Jencks documents, Johnson
never pursued this request after he learned at
trial about the alleged statements read back to
Hagenkord. Johnson should have informed the
district court about the potential contradiction
created by Hagenkord’s testimony and the AUSA’s
assertion that no Jencks material existed.
Similarly, as Agent Babasa was identified by
Hagenkord as being present while Hagenkord
approved the statements, Johnson’s attorney
should have cross-examined Babasa about the
document and the meeting. Had Johnson done this,
and his efforts demonstrated the existence of a
probable Jencks document that had not been
produced, the district judge would have been
obliged to conduct a hearing on the matter,
thereby preserving the issue for appellate
review. Lopez, 6 F.3d at 1288-89. Alternatively,
if the district judge denied the defendant’s
motion to hold such a hearing, that decision
itself would be subject to appellate scrutiny.
Id. at 1289. But because Johnson failed to take
any of these steps, he has waived this argument,
and we review only for plain error. United States
v. Shorty, 159 F.3d 312, 313 (7th Cir. 1998).
In an effort to get to the bottom of this, at
oral argument we asked AUSA Paul Kanter (who was
also the trial prosecutor) whether he knew to
which document Hagenkord was referring, and
whether the document was produced for Johnson.
Kanter unequivocally insisted that any such
document would have been turned over to Johnson
under the open file discovery policy of the
United States Attorney’s office and that he had
no knowledge of any such government document that
was not given to Johnson. In light of these
assertions, if the document in question existed,
it was available to Johnson. This would certainly
explain why Johnson’s trial counsel declined to
further explore this issue with Hagenkord and
Babasa on cross-examination, and why he didn’t
present this argument to the district court or
seek a hearing on the matter. In short, Johnson
points to nothing in the record which indicates
that he did not receive this document, but
instead asks us to speculate that this may be the
case. Because the open file policy gives defense
counsel access to all information available to
the prosecution and there is nothing in the
record which definitively indicates that a Jencks
document was not produced for the defense, we
cannot say that there was an error here, much
less a manifest error that affected Johnson’s
rights. See United States v. Cusimano, 148 F.3d
824, 828 (7th Cir. 1998)./4 Accordingly, Johnson
cannot prevail on this argument.
C. Calculation of Drug Amounts for
Sentencing
Finally, Johnson attacks the district court’s
decision that, for purposes of determining his
relevant conduct for sentencing, Johnson should
be held responsible for between 15 and 50
kilograms of cocaine. This resulted in a base
offense level of 34. See U.S.S.G. sec.
2D1.1(c)(3). Johnson complains that the district
court adopted the Probation Department’s
calculation of the drug quantity, which Johnson
asserts was just a wholesale adoption of the
government’s position on the matter./5 Thus, he
seems to question the integrity of the
calculations.
We review the district court’s calculations of
drug quantities for clear error. United States v.
Span, 170 F.3d 798, 803 (7th Cir. 1999). We must
affirm unless we are left with the firm
conviction that a mistake has been committed. Id.
The defendant has the right to be sentenced on
the basis of a reasonable quantity of reliable
information. United States v. James, 113 F.3d
721, 730 (7th Cir. 1997). The government has the
burden of establishing the type and amount of
drugs attributable to the defendant by a
preponderance of the evidence. Id. Thus, clear
error can occur with respect to drug calculations
when the government fails to marshal evidence of
a sufficient magnitude or where the calculations
are based on unreliable evidence. Span, 170 F.3d
at 803. In calculating the drug quantities, a
district court may "consider a wide range of
information so long as it has a "’sufficient
indicia of reliability to support its probable accuracy.’"
United States v. Robinson, 164 F.3d 1068, 1070
(7th Cir. 1999) (quoting United States v. Taylor,
72 F.3d 533, 543 (7th Cir. 1995)). In assessing
the reliability of the evidence we will leave
credibility determinations to the sound
discretion of the district court. United States
v. Miner, 127 F.3d 610, 615 (7th Cir. 1997).
Here, the district judge stated his reasons for
calculating the drug quantity as he did, and the
evidence he relied upon in making the
calculation.
Well, I have listened carefully to your
arguments and have had a chance to look at some
of the transcript which is available. Among the
things that I note from my review of the record
set forth in the transcript and my notes as well
as my recollection of the witnesses as they
testified is that there were some places where
there were inconsistencies in the testimony of
Mr. Blake and Mr. Hagenkord and Mr. Babasa.
But notwithstanding that Blake and Hagenkord in
my view were truthful, truthful in the relevant
aspects insofar as drug quantities are concerned.
I note that their testimony was corroborated in
large measure by the tape, the conversations of
Mr. Johnson. This conspiracy lasted at least 21
months. And as Mr. Kanter has pointed out, if at
least one kilogram was delivered each month then
Mr. Johnson was responsible for at least 21 kilos
and the quantity of drugs for which he can be
held responsible is clearly within the 15 and 50
kilograms which would obviously affect the
implications of the guidelines.
[Sent. Tr. Vol. 16 p.14-15]
It is clear from this excerpt that the district
judge based his calculations on the evidence in
the record, and that he did not simply restate
the government’s calculations set forth in the
pre-sentence report without first scrutinizing
them. Rather, he determined that the government’s
calculations were correct, and in fact were quite
conservative. (Recall Blake’s testimony that he
supplied Johnson with between 35 and 45 kilograms
of cocaine.) Johnson correctly notes that there
could be some problem if the district judge
unwittingly relied on the recommended
calculations of the pre-sentence report thinking
that they were non-partisan conclusions, or if he
failed to scrutinize them in any way. But
"district judges have the ability to read a pre-
sentence report without being improperly
influenced." United States v. Sifuentez, 30 F.3d
1047, 1049 (9th Cir. 1994) (emphasis in
original). In this case, not only was the
district judge made aware of the government’s
authorship of the calculations, he based his
adoption of these figures on an independent
review of the record.
Importantly, the Probation Department’s
substantial reliance on the government’s position
does not mean that the information on which it
relied or the calculations that it performed were
inaccurate; it simply means that the Probation
Department also believed that there was a
sufficient basis for these calculations. Notably,
Johnson fails to show that there was insufficient
evidence to support the district court’s
calculations, or that the evidence on which the
calculations were based is unworthy of credence;
rather, his sole complaint is with the PSR’s
conformity with the government’s view. Because
Johnson fails to show that the district court’s
determinations were incorrect or that they were
based on unreliable evidence, we conclude that
the district court did not clearly err in finding
that Johnson should be held responsible for
between 15 and 50 kilograms of cocaine.
For all of these reasons, we affirm.
/1 Both Hagenkord and Shultz pleaded guilty to one
count of conspiracy to distribute and possess
with intent to distribute in excess of five
kilograms of cocaine, in violation of 21 U.S.C.
sec.sec. 841(a)(1) & 846.
/2 Although at first glance this statement may not
appear to be hearsay, the parties agree that
Hagenkord was paraphrasing Blake, and that the
statement was indeed hearsay.
/3 However, in at least one federal circuit,
deliberate misrepresentations to the district
court that no Jencks material exists precludes
harmless error analysis. United States v.
DeFranco, 30 F.3d 664, 667 (6th Cir. 1994).
/4 The present case is much like the one we faced in
United States v. Starnes, 644 F.2d 673, 680 (7th
Cir. 1981). There, we held that the defendants
forfeited their argument that the prosecutor
failed to provide Brady material where the
prosecutor denied having such material and the
defendant failed to explore the issue by cross-
examining government agents or seeking a hearing.
/5 The record supports Johnson’s contention that the
Probation Department relied on the government’s
calculations of drug quantities, as Kanter
specifically stated so during the sentencing
hearing. Johnson argued before the district court
(but not to this court) that the only reliable
evidence showed that he was responsible for 4.5
kilograms of cocaine, thereby giving him a base
offense level of 30.