United States v. JohnsonUnited States v. Johnson
David L. Walling, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for the appellee.
BRISCOE, Circuit Judge.
Defendant Coyette Johnson appeals his convictions of being a felon in possession of a firearm, being an unlawful user of controlled substances in possession of a firearm, and distribution of a controlled substance, and his concurrent sentences of 237 months’ imprisonment. We exercise jurisdiction pursuant to
I.
Johnson was convicted of a felony in Wichita County, Texas, in 1994. In late July or early August 1995, he and his girlfriend LaKeitha Diggs moved to Temple, Oklahoma. They initially lived with Diggs’ mother and her mother‘s other three children. During their stay at Diggs’ mother‘s house, Johnson smoked marijuana on a daily basis. He also possessed a 9mm Intratec Tec-9 semi-automatic handgun, which he stored in a paper sack on the floor of the closet in one of the children‘s rooms. He talked about the handgun on a regular basis with Diggs’ mother‘s sons and other young men who came to the house. In late August 1995, Johnson and
On October 18, 1995, the local drug task force arranged for Barbara Watkins, an informant, to attempt a controlled narcotics purchase from Johnson. Watkins met task force agents at Mooney Lake near Temple and the agents searched her car, placed a body microphone on her, and provided her with cash to make the purchase. Watkins, who is Caucasian, picked up Stella Sparks, who is African-American, because she believed it would increase the chances of making a narcotics purchase from Johnson, who is also an African-American. Sparks did not know Watkins was going to make a controlled purchase. Watkins and Sparks went to Diggs’ mother‘s house where Johnson agreed to sell Watkins three rocks of cocaine for $40. After Watkins and Sparks left the house and returned to the car, Sparks took one of the rocks of cocaine and walked away. Watkins returned to Mooney Lake and turned over the remaining rocks of cocaine to the agents. A chemist at the Oklahoma State Bureau of Investigation confirmed the substance was cocaine, but he did not determine whether it was cocaine hydrochloride or cocaine base.
Later that same evening, Johnson was socializing with several other people at Diggs’ mother‘s house when Sandra Mims arrived and informed them she had argued with
not there. The group then proceeded, some in the car and some on foot, to Green‘s house. They flagged down Jimmy Franklin, and Mims’ daughter Shatauna Elicks got out of the car, began swinging her arms at him, and asked Franklin if he knew who had “jumped” her mother. Johnson also got out of the car, walked to the front of Franklin‘s car, aimed his handgun at Franklin, and said something to the effect of “I am going to get this brother. I am going to kill this nigger.” R. III at 162. Franklin heard gunshots, realized his passenger window had been shot, and ducked down in the seat and hit the accelerator pedal. When he looked up, he saw Johnson on the hood of his car, holding onto the hood with his left hand and holding his gun in his right hand. Johnson told Franklin to stop but, after briefly stopping his car, Franklin again hit the accelerator pedal and drove in an erratic fashion until Johnson fell off the hood of the car. Franklin noticed Johnson‘s handgun was lodged between the hood of the car and the windshield so he reached his hand out the window and grabbed the gun. He then drove downtown where he located a police officer and told her what had happened. Officers determined the gun was loaded. They examined Franklin‘s car and found deep scratches on the hood. Although a bullet was retrieved from the driver‘s seat of the car, subsequent testing determined the bullet had not been fired by Johnson‘s gun.
A grand jury returned a three-count indictment against Johnson, charging him in Count 1 with being a felon in possession of a firearm (
II.
Denial of pretrial motions to dismiss
Johnson contends the district court erred in denying his pretrial motions to dismiss. Johnson sought dismissal of Counts 1 and 2 as multiplicitous, and dismissal of Count 2 because the charging statute was void for vagueness. Although he acknowledges he was not punished for Count 2, he argues the alleged error was prejudicial because it allowed the government to introduce evidence at trial concerning a prior felony conviction and his drug usage.
Multiplicity
Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior. United States v. Morehead, 959 F.2d 1489, 1505 (10th Cir. 1992). “While multiplicity is not fatal to an indictment, . . . it poses the threat of multiple sentences for the same offense and may improperly suggest to the jury that the defendant has committed more than one crime.” Id. (citation omitted). The threat of multiple sentences for the same offense raises double jeopardy implications. Id. We review claims of multiplicity de novo. United States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir. 1997).
Counts 1 and 2 both charged Johnson with knowingly possessing the Tec-9 handgun “[f]rom on or about July 1, 1995, up to and including on or about October 18, 1995.” R. I, doc. 1. The only distinction between the counts is that Count 1 alleged Johnson had been convicted of a felony and had violated
one count without necessarily being guilty of the other.”
Three circuits have addressed multiplicity arguments raised by defendants who, like Johnson, were simultaneously charged with multiple firearm violations under different subsections of
In United States v. Winchester, 916 F.2d 601 (11th Cir. 1990), defendant was convicted and sentenced for violations of
Second, the court concluded Blockburger only provided guidance in determining congressional intent and was therefore inapplicable because “[t]he statutory language and legislative history of the Gun Control Act of 1968 [
In United States v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993), the Fifth Circuit acknowledged and agreed with Winchester. Although the Fifth Circuit had originally applied Blockburger and upheld multiple sentences under various subsections of
possession] offenses in a single legislative enactment and including all the offenses in subsections of the same statute, signaled that it did not intend multiple punishments for the possession of a single weapon.” 989 F. 2d at 759. The court further concluded the test in Blockburger for determining legislative intent was not controlling because “Congress intended to describe only a single crime that could be committed by seven types of offenders.” Id.
In light of the more persuasive reasoning contained in Winchester and Munoz-Romo, and in light of the Solicitor General‘s position maintained in Munoz-Romo, we conclude Counts 1 and 2 are multiplicitous and that Johnson can only be convicted and punished for one of the
The only remaining question is whether the district court erred in refusing to require the government to elect between the two firearm counts prior to trial. A decision of whether to require the prosecution to elect between multiplicitous counts before trial is within the discretion of the trial court. See United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990); United States v. Phillips, 962 F. Supp. 200, 201 (D.D.C. 1997). The risk of a trial court not requiring pretrial election is that it “may falsely suggest to a jury that a defendant has committed
not one but several crimes.” United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988); see also United States v. Marquardt, 786 F.2d 771, 778 (7th Cir. 1986) (multiple indictments create the impression of more criminal activity than in fact occurred). “Once such a message is conveyed to the jury, the risk increases that the jury will be diverted from a careful analysis of the conduct at issue,” and will reach a compromise verdict or assume the defendant is guilty on at least some of the charges. United States v. Clarridge, 811 F. Supp. 697, 702 (D.D.C. 1992).
We conclude the district court did not abuse its discretion in denying Johnson‘s pretrial motion to dismiss one of the
Vagueness
Count 2 of the indictment charged Johnson with violating
Denial of pretrial motion to sever counts
Johnson contends the district court erred in denying his pretrial motion to sever Counts 1 and 2 from Count 3 at trial. Under
1995). Aside from the provisions of Rule 8, a district court has discretion to sever under
We conclude joinder of the offenses here was proper under Rule 8 because the handgun was arguably related to and part of Johnson‘s drug trafficking scheme. Although there was no evidence that Johnson actually used or carried the handgun when he sold cocaine to Watkins on the night of October 18, 1995, there was evidence he had made previous sales of drugs in Temple. It was reasonable for the jury to infer the handgun aided or assisted him in those transactions. See United States v. Hubbard, 61 F.3d 1261, 1270 (7th Cir. 1995) (“natural inferences” may be drawn from contemporaneous possession of guns and drugs because “the firearm is an indication of drug activity, and participation in drug trafficking supplies a motive for having the gun“), cert. denied 116 S. Ct. 1268 (1996); United States v. Hollis, 971 F.2d 1441, 1457 (10th Cir. 1993) (possession of firearm was part of drug trafficking scheme). Moreover, law enforcement
officers took possession of the handgun within hours of Johnson making the cocaine sale to Watkins on October 18, 1995. See United States v. Cox, 934 F.2d 1114, 1119 (10th Cir. 1991) (joinder of marijuana distribution offenses with possession of firearm offenses proper where firearm was seized at same time and same place officers seized marijuana).
Finally, we conclude the district court did not abuse its discretion by denying severance under Rule 14. The court‘s order suggests it considered possible prejudice from a single trial on all counts against expense and inconvenience of separate trials and decided severance was not required. Nothing Johnson has presented demonstrates this was an abuse of discretion. See generally Hollis, 971 F.2d at 1457 (“The district court was not required to sever the counts simply because . . . the ‘defendant might have a better chance for acquittal by separate trials.‘“). Moreover, even assuming the court did abuse its discretion, Johnson has not demonstrated actual prejudice resulting from a single trial. The evidence of Johnson‘s guilt on Count 3 was overwhelming. It was uncontroverted that Watkins went to Diggs’ mother‘s house on October 18, 1995, where she met with Johnson and left with three rocks of cocaine. Although Johnson attempted to call into question the identity
indication that joinder of the firearms offenses or introduction of evidence concerning those offenses influenced the jury‘s verdict on Count 3.
Jury instructions regarding distribution count
Johnson contends the district court erred in refusing to give his proposed instruction to the effect that it was the government‘s responsibility to prove beyond a reasonable doubt that the substance sold to Watkins was in fact cocaine base as alleged in the indictment. Count 3 alleged that Johnson distributed “approximately .18 grams of a mixture or substance containing a detectable amount of cocaine base, a Schedule II controlled substance.” R. I, doc. 1 at 2 (emphasis added). The district court rejected Johnson‘s proposed instruction and instructed the jury that it must find beyond a reasonable doubt that Johnson distributed a “controlled substance.”
We find United States v. Deisch, 20 F.3d 139 (5th Cir. 1994), persuasive. In Deisch, the Fifth Circuit addressed and rejected an argument similar to that now urged by Johnson. The court concluded “that the identity of the involved controlled substance as being ‘cocaine base’ rather than simply ‘cocaine’ is not an element of any section 841(a)(1) offense.” Id. at 151. Instead, the court held: “For a section 841(a)(1) offense involving cocaine base the indictment need only allege, and the jury need only find, that the substance was cocaine, and whether or
not it was the ‘cocaine base’ form of cocaine is purely a sentencing factor.” Id.; see also United States v. Levy, 904 F.2d 1026, 1034 (6th Cir. 1990) (“Under section 841(b)(1)(B), the district court determines the quantity and type of controlled substance for the purpose of sentencing.“).
Here, the jury was instructed that to find Johnson guilty on the distribution charge, it must find he distributed “a controlled substance,” “knew that he distributed a controlled substance,” and “intended to distribute the controlled substance.” R. I, doc. 46, instr. 25. The jury was further instructed that it was “not necessary for the government to prove that [Johnson] knew the precise nature of the controlled substance that was distributed.”
Sufficiency of evidence
Johnson contends the evidence at trial was insufficient to support his convictions. Sufficiency of the evidence is a question of law subject to de novo
review. United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). Evidence is sufficient to support a conviction if the evidence and reasonable inferences drawn therefrom, viewed in the light most favorable to the government, would allow a reasonable jury to find defendant guilty beyond a reasonable doubt. Id. In examining the evidence, “we evaluate the sufficiency of the evidence by ‘consider[ing] the collective inferences to be drawn from the evidence as a whole.‘” Id. (quoting United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir. 1986)). We will not overturn a jury‘s finding unless no reasonable juror could have reached the disputed verdict. United States v. Chavez-Palacios, 30 F.3d 1290, 1293 (10th Cir. 1994).
To support a felon in possession of a firearm conviction under
Oklahoma. Viewed in the light most favorable to the government, this evidence is sufficient to support Johnson‘s conviction on Count I.
“Pursuant to the plain language of
Outrageous governmental conduct
Johnson contends the district court erred in denying his motion for judgment of acquittal on Count 3 for outrageous governmental conduct. Specifically, he complained that after Watkins made the controlled purchase of cocaine, officers knowingly allowed her to distribute one of the rocks of cocaine to Sparks. He argued it was outrageous conduct for the government to condone this illegal conduct.
In considering a claim of outrageous governmental conduct, our scope of review is de novo. United States v. Sneed, 34 F.3d 1570, 1576 (10th Cir. 1994). The defense of outrageous governmental conduct is based on the Due Process Clause of the Fifth Amendment. Id. Unlike the defense of entrapment, which considers predisposition of defendant to commit the crime, the defense of outrageous governmental conduct looks only at governmental conduct. Id. at 1576-77. To date, courts recognizing the outrageous conduct defense “have not attempted to attach a precise definition to its requirements.” United States v. Lacey, 86 F.3d 956, 964 (10th Cir.), cert. denied 117 S. Ct. 331 (1996). “Rather, the relevant inquiry is whether, considering the totality of the circumstances in any given case, the government‘s conduct is so shocking, outrageous and intolerable that it offends ‘the universal sense of justice.‘” Id. We have previously emphasized the defense “is an extraordinary [one] reserved for only
the most egregious circumstances,” and “is not to be invoked each time the government acts deceptively or participates in a crime that it is investigating.” United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992).
The facts Johnson points to in support of his contention are essentially uncontroverted. After making the controlled purchase from Johnson, Watkins gave one of the three rocks of cocaine to Sparks before meeting with drug task force agents. However, this fact must be considered in light of other evidence presented at trial. Watkins testified she had previously attempted to make a controlled purchase from Johnson but was unsuccessful because he believed she was a “snitch.” She decided to ask Sparks to accompany her with the hope that Sparks’ presence would convince Johnson to make a sale. Sparks was unaware that Watkins was an informant or that a controlled purchase was taking place.
The government did not induce Johnson to become involved in drug distribution for the first time, nor did it substantially coerce him into committing the crime. See Mosley, 965 F.2d at 911 (“two factors . . . form the underpinning for most cases where the outrageous conduct defense has been upheld: government creation of the crime and substantial coercion“); see also Sneed, 34 F.3d at 1577-78.
Sentence enhancement
Johnson challenges the district court‘s decision to sentence him as a career criminal under
We review de novo a sentence enhancement imposed under the Armed Career Criminal Act. United States v. Romero, 122 F.3d 1334, 1340 (10th Cir. 1997); see also United States v. Murphy, 107 F.3d 1199, 1208 (6th Cir. 1997) (“Since determining whether the conduct was a single occasion or multiple
occasions presents a legal question concerning the interpretation of a statute, we review the district court‘s decision de novo.“). The government carries the burden of proving by a preponderance of the evidence that an enhancement is appropriate. Id. The Act authorizes an enhanced prison term for a defendant who is convicted of being a felon in possession of a firearm, who has “three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.”
We have not considered the precise question raised by Johnson--whether multiple drug offenses, committed close in time, constitute a single conviction or multiple convictions for purposes of
At least five other circuits have addressed and rejected the precise question raised by Johnson. In United States v. Maxey, 989 F.2d 303, 306 (9th Cir. 1993), the defendant urged the court “to apply the single criminal episode rule to multiple drug offenses differently from violent felonies.” Specifically, the defendant argued “that convictions that result from a continuous, ongoing business of selling drugs should comprise a single criminal episode for purposes of section 924(e).” Id. The Ninth Circuit rejected this argument and held “that no less than violent felonies, drug offenses committed at distinct, different
Cir. 1990) (sales of drugs on September 15, November 15, 17, and 23, 1983, were separate offenses for purposes of
Having already adopted and applied the “single criminal episode” rule in other contexts, we find it appropriate to follow the Fourth, Fifth, Sixth, Eighth, and Ninth Circuits (all of whom have adopted the “single criminal episode” rule) and apply the rule to cases such as the one at bar involving prior drug offenses. The result is that drug offenses committed at “distinct, different times” will be treated as separate predicate offenses for purposes of
Applying the “single criminal episode” rule here, we conclude the three underlying drug convictions constitute separate offenses for purposes of
III.
We AFFIRM Johnson‘s convictions on Counts 1 and 3, but REVERSE Johnson‘s conviction on Count 2 and REMAND the case to the district court with instructions to VACATE that conviction. Because the district court did not consider Count 2 in imposing Johnson‘s sentence, we AFFIRM his sentence.
TACHA, J., dissenting.
I respectfully dissent from that portion of the majority opinion that finds the convictions on Counts I and II multiplicitous. I do not find in the language and structure of