UNITED STATES of America, Plaintiff-Appellee, v. Michael JOHNSON, Defendant-Appellant.
No. 06-6545.
United States Court of Appeals, Sixth Circuit.
Jan. 30, 2009.
307 Fed. Appx. 969
Before: GUY, CLAY, and COOK, Circuit Judges.
Defendant Michael Johnson was convicted by a jury of: (1) conspiracy to distribute and possess with intent to distribute 5 grams or more of cocaine base (
Defendant, through counsel, appeals from the denial of his motion for a new trial based on the jury‘s exposure to extrajudicial matters during deliberations. Raising other claims pro se, defendant challenges the sufficiency of the evidence to support the conspiracy conviction, the
I.
On April 7, 2004, police executed a search warrant at 3011 North Cumberland Avenue in Chattanooga, Tennessee, and arrested defendant and Akil Lee. Making forced entry through the front door, police saw Lee and at least one other person run out the back door. Lee was apprehended outside, a small amount of powder cocaine was seized near him, and $190 was found in his pocket. Defendant was seen ducking into a bedroom. Officers followed, heard a thud, and caught up with defendant in the bathroom, where defendant held the officers away from the already flushing toilet. One officer testified that he could see “crumbs” of what appeared to be “easily an ounce” of crack cocaine, although no drugs were recovered. Defendant had $230 in cash in his pocket, and no drugs were found on his person.
Once defendant was secured, officers backtracked and discovered a loaded .38 caliber Rossi revolver lying in a box with trash located along the route defendant had taken to the bathroom. In a further search of the premises, officers also found a set of digital scales on top of a speaker in the living room, .9 grams of crack cocaine on the living room floor, and a bag containing 110 white pills. Lee initially claimed that he no longer lived there, but that defendant and a cousin named Shaun Robinson did. However, a letter addressed to Lee was found in the house, and Lee‘s driver‘s license—renewed that same day—listed the 3011 North Cumberland address as his residence. It was stipulated at trial that this was not defendant‘s permanent residence.
After initial denials from defendant, Lee was heard urging defendant to “take his charges” and admit responsibility for the firearm and the crack cocaine. Lee said he would admit that the pills and powder cocaine were his. Later, defendant did admit to possessing the firearm and the .9 grams of crack cocaine found in the living room. An officer testified that one gram of crack cocaine would represent a distribution quantity, explaining that a single rock of crack usually weighed approximately one tenth of a gram and was worth about $20. As a result, the .9 grams of crack cocaine was estimated to be worth approximately $200.
Separate four-count indictments were returned against defendant and Lee. Lee cooperated, pleaded guilty to one count, and testified for the government at defendant‘s trial. Lee specifically testified that he had been friends with defendant for 11 or 12 years, and that he had sold crack cocaine to the defendant once or twice a week from October 2003 until their arrest
Lee testified that defendant came over with his clothes and other belongings on the day of their arrest and said he had a fight with his girlfriend. Lee told defendant he could stay with him, and then Lee went to get a new driver‘s license. Lee testified that he sold defendant “a quarter,” or seven grams of crack cocaine, that day, and sold someone else 1.2 grams of powder cocaine. Later, Lee‘s cousin spotted the police van, alerted everyone, and they ran out the back door.
Timothy Henderson, defendant‘s cell mate, testified that defendant said that he took clothes, a firearm, and crack cocaine to Lee‘s house after a fight with his girlfriend. Defendant told Henderson that the gun was his and that he never left home without it. Henderson also reported that defendant said he flushed two ounces of crack cocaine down the toilet before his arrest. This was the only reference to a two-ounce quantity of cocaine, which is equivalent to 56.67 grams.
The defense offered testimony from fingerprint examiner Robert Rittenour, who stated that the only usable fingerprint on the firearm belonged to an ATF agent. There was also evidence that a “firearm trace” did not identify defendant or Lee as its purchaser. Next, defendant‘s probation officer testified that defendant was living with his girlfriend and her mother, and that defendant was receiving $400 per month in social security disability benefits. Finally, defendant‘s girlfriend‘s mother and sister testified that defendant was living with them at the time of his arrest. The sister, Chiemeka Jones, also testified that she never saw defendant with a gun.
Trial commenced on December 18, 2005, and the jury was charged and deliberated for several hours on December 19, 2005. When the court clerk brought the trial exhibits to the jury room the next morning, she saw a clear plastic bag containing white powder on the table in the jury room. One juror told her that it contained baking powder. The district judge was alerted, counsel was consulted, and the juror who brought it in was questioned. After consultation with counsel, the district court denied defendant‘s motion for a new trial and instructed the jury that it must make its findings based only on the evidence admitted during trial. Deliberations continued, and the jury found defendant guilty on all counts. Although the conspiracy charged was alleged to have involved more than 50 grams of crack cocaine, the jury specifically found that the conspiracy involved more than 5 but less than 50 grams of crack cocaine. Defendant filed a renewed motion for judgment of acquittal and/or for a new trial, which was denied in a written order entered February 7, 2006.
On December 6, 2006, the district court sentenced defendant to a total of 360 months’ imprisonment—including concurrent terms of 300 months, 120 months, and 240 months on counts 1-3, respectively, to be followed by a consecutive 60-month term on count 4. Defendant raised numerous objections, both pro se and through counsel, two of which are at issue in this appeal. In calculating the guidelines range for the three grouped offenses, the presentence report held defendant accountable for at least 35 and less than 50 grams of crack cocaine, which corresponded to an offense level of 30. Defendant‘s
II.
A. New Trial
Alerted to the presence of the bag of white powder, the district court sought guidance from counsel. The government requested that the juror who brought it in be questioned separately, and defense counsel moved for a mistrial. The district court conducted a voir dire, taking care to instruct the juror not to convey any information about the jury‘s deliberations, confirming that the bag contained baking powder, and asking why it was brought into the jury room. In response, the juror explained:
THE JUROR: Yes, sir. We got hung up yesterday. Part of it was on—Half of them didn‘t know what 2 ounces was. I do a lot of my own gun loading, and I have scales for loading my own bullets. So they told me if I could show them what 2 ounces was—because nobody knowed. So that‘s what I done. I was up to 11:00 last night—which my wife‘s already run me off—weighing 2 ounces of baking powder, just to show them what 2 ounces looked like. And that was the whole deal.
The juror also confirmed that he had shown the other jurors what two ounces of baking powder looked like.
Outside the presence of the jury, the district judge and counsel agreed that Henderson‘s testimony included the only mention of a 2-ounce quantity of drugs at trial. After an opportunity to research the issue, and with the benefit of argument from counsel, the district court found that defendant had not demonstrated prejudice from the juror‘s improper injection of this demonstrative aid into the deliberations. The district court emphasized that the government had not alleged a 2-ounce quantity in the indictment, and explained that “the most logical reason that the jury would have wanted to conduct their own experiment with the 2 ounces was to test the testimony of one of the witnesses ... [whose] testimony did not go directly to an element of the offense at all.” In other words, this was probably an effort to test the credibility of Henderson and did not pertain to an element of either of the drug offenses.
Denying defendant‘s motion for a mistrial, the district court nonetheless agreed that it was improper for the jury to consider it and instructed the jury accordingly. Specifically, with the approval of counsel, the jury was instructed in pertinent part as follows:
It has come to the Court‘s attention that this morning the jury discussed and had available to it a plastic bag containing a white powder. This was not introduced as evidence during the trial by the parties. I remind you that you are to render your verdict based solely upon the evidence that was presented to you during the trial. The evidence in this case includes only what the witnesses said while they were testifying under oath, the exhibits that I allowed into evidence, and the stipulations of the parties. Nothing else is evidence. You should make your decision based only on the evidence, as I have defined it here,
and nothing else. Therefore you must disregard any discussions you had this morning regarding the plastic bag containing the powder and its contents. However, you may, and should, use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.
Deliberations resumed, and the jury returned its verdicts later day. As previously mentioned, the jury found that the conspiracy involved more than 5 grams but less than 50 grams of crack cocaine. In denying the renewed motion for new trial, the district court found that defendant was not prejudiced by the jury‘s improper use and/or consideration of extrinsic evidence, and that there was no reason to believe the jurors did not heed the curative instructions or base their verdicts solely on the evidence adduced at trial.
Under
In the district court‘s estimation, the jury‘s investigation into the 2-ounce quantity was related to the weighing of Henderson‘s testimony and did not concern an element of the charges. The danger that the jury might consider evidence that had not been admitted at trial was ameliorated by the district court‘s cautionary instructions, which advised the jurors that their verdict must be based solely on the evidence admitted during trial and that their discussions concerning the bag of powder must be disregarded in reaching their verdict. It is true that the charges against defendant involved only crack cocaine, not powder cocaine, but defendant cannot show that this prejudiced his defense where, in fact, the jury found that the charged quantity had not been proved and that the conspiracy involved a lesser quantity of crack cocaine. The district court did not abuse its discretion in denying defendant‘s motion for new trial.2
B. Sufficiency of Evidence
This court reviews de novo a district court‘s denial of a motion for judgment of acquittal challenging the sufficiency of the evidence. United States v. Keeton, 101 F.3d 48, 52 (6th Cir.1996).
Arguing pro se, defendant reasserts the contention that the evidence established, at most, a buyer-seller relationship that was insufficient to establish the existence of the conspiracy. Proof of a formal agreement is not necessary, however, and a defendant‘s knowledge of and participation in a conspiracy may be inferred from circumstantial evidence. United States v. Avery, 128 F.3d 966, 970-71 (6th Cir.1997). Repeated purchases for further distribution provide evidence that there was more than a buyer-seller relationship, and the quantity of drugs involved may also support an inference that there was a conspiracy. United States v. Martinez, 430 F.3d 317, 332-33 (6th Cir.2005).
Here, Lee testified that defendant purchased crack cocaine once or twice per week over a six-month period for further distribution by defendant. Although the jury did not accept Lee‘s testimony that he sold defendant a total of 4.5 ounces of crack cocaine (equal to more than 125 grams), the jury found the conspiracy between defendant and Lee involved more than 5 but less than 50 grams of crack cocaine. As mentioned earlier, there was evidence that a single gram of crack cocaine, which is a little more than the quantity seized at the time of defendant‘s arrest, represented a distribution quantity worth approximately $200. Lee also testified that he sold defendant six or seven grams of crack cocaine on the day of their arrest. After reviewing the trial testimony in this case, we find that the evidence was sufficient to lead a rational trier of fact to conclude that the conspiracy existed and that defendant was a knowing participant. United States v. Paige, 470 F.3d 603, 608 (6th Cir.2006). Accordingly, the district court did not err in denying defendant‘s motion for judgment of acquittal.
III.
Sentences imposed post-Booker are reviewed for reasonableness, which encompasses both procedural and substantive reasonableness. Gall v. United States, — U.S. —, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007); United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). A sentence may be procedurally unreasonable if, among other things, the district court improperly calculated the sentencing guidelines range, treated the guidelines as mandatory, or failed to consider relevant sentencing factors under
A. Career Offender
First, defendant argues that the district court improperly calculated his guidelines range based on an erroneous determination that his prior state convic-
A “crime of violence” is defined to mean any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
- has as an element the use, attempted use, or threatened use of physical force against the person of another, or
- is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Although the presentence report, which is the only evidence in the record concerning this conviction, recounts the factual basis for the conviction, the district court properly focused on the statutory definition in concluding that the offense “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
However, the Supreme Court‘s recent decision in Begay v. United States, — U.S. —, 128 S.Ct. 1581, 1584-85, 170 L.Ed.2d 490 (2008), makes clear that the
Accordingly, we find that the district court‘s determination in this case that defendant‘s reckless endangerment conviction constituted a “crime of violence” should be revisited in light of the recent pronouncements in Begay.3
B. 100:1 Ratio
In the calculation of the guidelines range, defendant was held accountable for more than 35 and less than 50 grams of crack cocaine, which corresponded to a base offense level of 30 under
The record indicates, however, that the district court actually rejected defendant‘s request on the belief that it was without authority to depart or vary from the guidelines on this basis. This is clear from the district court‘s express reliance on the Eighth Circuit‘s recently articulated—now twice reversed—view that “neither Booker nor
Accordingly, we AFFIRM defendant‘s convictions, VACATE defendant‘s sentences, and REMAND for resentencing consistent with Begay and Kimbrough.