[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13196
MAY 24, 2010
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D. C. Docket No. 08-00138-CR-F-E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE CURRY JOHNSON,
a.k.a. Baby J,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(May 24, 2010)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
After a jury trial, Willie Curry Johnson appeals his convictions and 292-
month total sentence for conspiracy to distribute at least 50 grams of cocaine base
and a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846,
possession with intent to distribute at least 5 grams of cocaine base and a
detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1), and being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After
review, we affirm.
I. BACKGROUND
A. Search Warrant and Arrest
In the fall of 2005, investigators with the Tallapoosa County Narcotics Task
Force (“TCNTF”) began investigating Defendant Johnson for drug trafficking.
Using a confidential informant (“CI”), later identified as Coby Taylor,
investigators conducted three controlled buys from Johnson on November 20,
2005, November 22, 2005 and December 9, 2005. Each time, Taylor purchased
crack cocaine and cocaine powder from Johnson near Johnson’s trailer home at 15
Johnson Drive while under surveillance and being recorded. Warrants for
Johnson’s arrest were issued based on the controlled buys.
Johnson, however, was not arrested until October 2007, when investigators
searched Johnson’s trailer home at 15 Johnson Drive. The affidavit for the search
2
warrant indicated that a CI reported seeing Johnson in possession of crack cocaine
in his residence within the last 48 hours. The search of Johnson’s trailer revealed,
inter alia, a shotgun and ammunition, a video camera surveillance system, 41
grams of marijuana and $4,540 in cash. The search of another trailer at 46 Johnson
Drive, owned by Johnson’s sister-in-law, Contessa Ford, revealed, inter alia, a rifle
and ammunition, a set of scales, plastic bags with drug residue, 21.2 grams of crack
cocaine and 9.2 grams of powder cocaine.
Johnson was arrested and read his Miranda rights. Johnson later confessed
to possessing the drugs found in both trailers and the shotgun and signed a written
confession.
B. Trial
A federal grand jury charged Johnson with conspiracy with known and
unknown persons to possess with intent to distribute 50 grams or more of crack
cocaine and a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
and 846 (Count 1); possession with intent to distribute 5 grams or more of crack
cocaine and a detectable amount of cocaine on November 22, 2005, November 30,
2005, and December 9, 2005, in violation of 21 U.S.C. § 841(a)(1) (Counts 2-4);
and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(Count 5).
3
Johnson moved to suppress his confession and the evidence seized from his
trailer. After an evidentiary hearing, a magistrate judge issued a report (“R&R”)
recommending that Johnson’s motions to suppress be denied. The district court
adopted the R&R over Johnson’s objections and denied his motions to suppress.
At trial, the government: (1) presented evidence of CI Taylor’s three
controlled buys from Johnson in the fall of 2005; and (2) called several witnesses,
including Taylor, who said they regularly bought crack and powder cocaine from
Johnson over a period of about five years. Johnson often fronted the drugs to them
and sometimes used “runners” to deliver them his product. Johnson used Contessa
Ford’s trailer as a stash house where he cooked crack cocaine. The jury found
Johnson guilty on Counts 1, 3, 4 and 5, but acquitted him on Count 2 (the
November 22, 2005 controlled buy).
At sentencing, over Johnson’s objection, the district court imposed a 2-level
leadership role enhancement in calculating Johnson’s advisory guidelines range.
After considering Johnson’s advisory guidelines range of 360 months’ to life
imprisonment and the 18 U.S.C. § 3553(a) factors, the district court imposed a
292-month sentence. Johnson appealed.
II. DISCUSSION
A. Motions to Suppress
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1. Evidence from 15 Johnson Drive Trailer
Johnson argues that the district court erred in denying his motion to suppress
the evidence seized from his trailer home because the warrant affidavit lacked
sufficient corroboration of the CI’s information.1
Probable cause to support a search warrant exists when the totality of the
circumstances allows the conclusion that “there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). “The task of the magistrate issuing a
warrant is simply to make a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him, including the ‘veracity’ and
‘basis of knowledge’ of persons supplying hearsay information” that probable
cause exists. Id. Under Gates’s totality-of-the-circumstances evaluation,
“‘veracity’ and ‘basis of knowledge’ are no longer viewed as independent
prerequisites to a finding of probable cause: a deficiency in one may be
compensated for, in determining the overall reliability of the tip, by a strong
1
A district court’s ruling on a motion to suppress presents “a mixed question of law and
fact.” United States v. Steed, 548 F.3d 961, 966 (11th Cir. 2008). We review the district court’s
factual findings for clear error, construing all facts in the light most favorable to the prevailing
party below, and its application of the law to those facts de novo. Id. Accordingly, we review
“determinations of probable cause de novo, but we review findings of historical fact only for
clear error and . . . give due weight to inferences drawn from those facts by resident judges and
local law enforcement officers.” United States v. Talley, 108 F.3d 277, 281 (11th Cir. 1997)
(quotation marks omitted, omission in original).
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showing as to the other, or by some other indicia of reliability such as
corroborating evidence gathered by law enforcement.” United States v. Foree, 43
F.3d 1572, 1576 (11th Cir. 1995) (quotation marks omitted).
Here, the district court did not err in concluding that Investigator Josh
McAlister’s affidavit provided a sufficient basis for finding probable cause to
search Johnson’s trailer home. McAlister averred that a CI, who had “proven to be
reliable in the past,” was at Johnson’s residence within the last 48 hours and saw
Johnson in possession of crack cocaine within that residence. McAlister swore that
the CI had provided similar information that “resulted in numerous narcotics
arrest[s] and convictions.” Additionally, McAlister averred that: (1) over the past
two years, the TCNTF, along with other state and federal agencies, “ha[d] been
receiving information concerning narcotics being distributed from [Johnson’s]
residence”; and (2) Johnson had three outstanding Tallapoosa County arrest
warrants for trafficking in cocaine.2
We reject Johnson’s argument that additional corroborative details were
needed to establish probable cause. According to McAlister’s affidavit, the CI not
2
Although McAlister’s affidavit did not indicate as much, these three outstanding
warrants were based on the three controlled buys McAlister conducted with Taylor in 2005.
However, at the suppression hearing, McAlister testified that he briefly described to the issuing
judge the details of the Johnson investigation, which TCNTF had been working on for several
years, and the outstanding trafficking warrants.
6
only had proved reliable in the past, but also had provided the kind of information
that had led to other narcotics arrests and convictions. Cf. Foree, 43 F.3d 1575-76
(explaining that general allegations of reliability that do not indicate whether the
information provided was important or led to searches, arrests or convictions are
entitled to only slight weight). Further, the CI’s information was based on
firsthand observation and included details such as when and where the CI saw
Johnson in possession of cocaine. See Gates, 462 U.S. at 234, 103 S. Ct. at 2330
(explaining that explicit and detailed firsthand accounts by an informant are given
“greater weight than might otherwise be the case”). And, the CI’s information was
corroborated by two years’ of intelligence from law enforcement indicating
Johnson was dealing drugs from his trailer home and by Johnson’s three
outstanding arrest warrants for cocaine trafficking. See Foree, 43 F.3d at 1576
(stating that police intelligence reports can corroborate the CI’s information).
Under the totality of the circumstances, the issuing judge “had a substantial basis
for concluding that probable cause existed.” Gates, 462 U.S. at 238-39, 103 S. Ct.
at 2332 (quotation marks, ellipsis and brackets omitted). Thus, the district court
did not err in denying the motion to suppress the evidence seized during the search
of Johnson’s trailer home.
2. Confession
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Johnson argues that the district court should have suppressed his confession
because his Miranda rights waiver was the product of coercion and invalid.3
Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), statements
obtained during a custodial interrogation are inadmissible unless the defendant was
first warned of his rights and knowingly waived those rights. United States v. Parr,
716 F.2d 796, 817 (11th Cir. 1983). An accused effectively waives his Miranda
rights if he: (1) voluntarily relinquishes them as the product of a free and deliberate
choice, rather than through intimidation, coercion or deception; and (2) makes his
decision with the full awareness of both the nature of the rights being abandoned
and the consequences of the decision to abandon them. United States v. Barbour,
70 F.3d 580, 585 (11th Cir. 1995). A waiver is effective where the “totality of the
circumstances surrounding the interrogation reveal[s] both an uncoerced choice
and the requisite level of comprehension.” Id. (quotation marks omitted). The
government has the burden to show by a preponderance of the evidence that the
defendant made a knowing, voluntary and intelligent Miranda waiver. United
States v. Farris, 77 F.3d 391, 396 (11th Cir. 1996). “An express written or oral
statement of waiver . . . is usually strong proof of the validity of that waiver, but is
3
Johnson does not dispute that he was informed of his Miranda rights.
8
not inevitably either necessary or sufficient to establish waiver.” North Carolina v.
Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757 (1979).4
We find no error in the district court’s determination that Johnson’s Miranda
waiver and subsequent confession were not coerced, but made knowingly,
intelligently and voluntarily. Johnson was arrested, handcuffed and read his
Miranda rights during the search of his trailer home at 15 Johnson Drive.
Johnson’s common law wife and their children were present, and the children were
crying. Johnson’s wife was handcuffed and detained for questioning, but was later
released. Johnson was taken to the Alabama Bureau of Investigation (“ABI”)
office and his wife was taken to the TCNTF office for questioning.
While being transported to the ABI office, Johnson discussed with two
investigators, Agents Darrell Armour and Tom Halasz, whether either his wife or
his sister-in-law might be arrested or charged with a crime. Agent Armour told
Johnson that his sister-in-law could be arrested for the cocaine found in her trailer.
However, neither agent threatened to arrest or charge the women and did not
promise Johnson anything in exchange for waiving his Miranda rights.
Approximately 30 to 45 minutes later, Investigator McAlister and Agent
Halasz interviewed Johnson at McAlister’s office. The officers reminded Johnson
4
As to the waiver of Miranda rights, we review the district court’s fact findings for clear
error, but review de novo the application of the law to the facts. Farris, 77 F.3d at 396.
9
that Agent Halasz already had read him his rights and confirmed that Johnson
understood his rights and was waiving them. Johnson acknowledged
understanding his Miranda rights, agreed to waive them and then gave a statement.
During the interview, none of the officers discussed with Johnson the
possible arrest of his wife or sister-in-law. Johnson told the officers that his sister-
in-law was unaware of the cocaine stored in her trailer. Johnson’s wife was not
discussed at all. As they talked, Investigator McAlister typed up Johnson’s
statement on his computer. Johnson then read and signed the statement.
Given these facts, the district court did not err in determining that Johnson’s
waiver of his Miranda rights was not the result of intimidation, coercion or
deception and that Johnson decided to waive his Miranda rights knowing the
nature of those rights and the consequences of abandoning them. Contrary to
Johnson’s claim, Agent Armour’s comment in the police car that Johnson’s sister-
in-law might be arrested for the cocaine found in her trailer was not deceptive or
threatening, but merely a statement of a realistic possibility. Cf. United States v.
Nash, 910 F.2d 749, 752-53 (11th Cir. 1990) (explaining that discussions of
realistic penalties for failing to cooperate are normally insufficient to preclude free
choice).5 The other circumstances Johnson claims were coercive – his crying
5
At the suppression hearing, Johnson testified that the officers said they would arrest his
sister-in-law and wife if he did not cooperate. The magistrate judge did not credit this testimony.
10
children, the handcuffs, the battering down of his door – took place at the trailer
home at least 30 minutes before he was interviewed at the ABI office.6 Johnson
does not point to any coercive circumstances during the interview when he was
reminded of his Miranda rights, agreed to waive them and then gave a statement.
Thus, the district court properly admitted Johnson’s confession.
B. Sufficiency of the Conspiracy Evidence
To convict a defendant for conspiracy to possess with intent to distribute
cocaine, the government must prove beyond a reasonable doubt that (1) an illegal
agreement existed, (2) the defendant knew of it, and (3) the defendant knowingly
and voluntarily participated in it. United States v. McDowell, 250 F.3d 1354, 1365
Instead, the magistrate judge found that the agents “discussed with Johnson the possible arrest of
his relatives.” The magistrate judge quoted a portion of Agent Halasz’s testimony that described
as nonthreatening the “minor conversation” the officers had with Johnson that “other people
could be arrested as well, and one of them being [Johnson’s sister-in-law] Contessa Ford.” On
appeal, we view the evidence in the light most favorable to the government, and Johnson has
given us no reason to disturb the magistrate judge’s credibility findings. See United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (explaining that a district court’s credibility
findings are conclusive on this Court unless they are “exceedingly improbable” or
“unbelievable”).
In any event, the magistrate judge also noted that the officers had probable cause to arrest
Johnson’s wife for possession of the marijuana found in the trailer she shared with Johnson and
to arrest Johnson’s sister-in-law for possession of the cocaine found in her trailer. A threat to
arrest someone for whom the police have probable cause to arrest does not constitute coercion.
See Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001) (concluding that police
statements that suspect’s girlfriend would be prosecuted unless defendant confessed were not
coercive because police had probable cause to arrest her).
6
Although Johnson does not claim he was still in handcuffs when he was interviewed, we
note that the use of handcuffs does not establish coercion. Shriner v. Wainwright, 715 F.2d
1452, 1456 (11th Cir. 1983).
11
(11th Cir. 2001). “[The] existence of an agreement in a conspiracy case is rarely
proven by direct evidence that the conspirators formally entered or reached an
agreement. . . . The more common method of proving an agreement is through
circumstantial evidence.” United States v. Glinton, 154 F.3d 1245, 1258 (11th Cir.
1998).
The joint objective of distributing drugs “is missing where the conspiracy is
based simply on an agreement between a buyer and a seller for the sale of drugs.”
United States v. Dekle, 165 F.3d 826, 829 (11th Cir. 1999). However, where there
is evidence of a continuing course of conduct between the buyer and seller
“designed to result in the distribution of cocaine” the evidence is sufficient to
sustain the conviction. See United States v. Beasley, 2 F.3d 1551, 1560 (11th Cir.
1993) (involving seller who “fronted” cocaine to buyer several times over a short
period and knew the buyer was reselling it); see also United States v. Mercer, 165
F.3d 1331, 1335 (11th Cir. 1999) (“[A]greement may be inferred when the
evidence shows a continuing relationship that results in the repeated transfer of
illegal drugs to the purchaser”).7
7
We review a challenge to the sufficiency of the evidence de novo, “viewing the evidence
in the light most favorable to the government, with all reasonable inferences and credibility
choices made in the government’s favor.” United States v. Wright, 392 F.3d 1269, 1273 (11th
Cir. 2004) (quotation marks and brackets omitted). We will affirm a guilty verdict unless no
reasonable trier of fact could have found guilt beyond a reasonable doubt. United States v.
Toler, 144 F.3d 1423, 1428 (11th Cir. 1998).
12
Johnson argues that the government’s evidence proved only buyer-seller
relationships and not an agreement to distribute drugs. We disagree.8
The government presented evidence that Taylor, Dwight Moss, Frank
Clayton, Demetric Cox and Kerry Jackson purchased crack and powder cocaine
from Johnson on a regular basis for as much as five years. Taylor, Moss and Cox
testified that Johnson fronted the drugs to them, and they paid Johnson back from
the proceeds. This evidence amply established more than a buyer/seller
relationship and was sufficient for a reasonable jury to conclude that Johnson had a
continuing relationship with these individuals to distribute drugs.
In addition, several witnesses testified that Johnson sometimes used runners
who delivered drugs for him and that Johnson had a business partner named Doug
Burton, who supplied the cocaine. A reasonable jury could infer from this
evidence that Johnson had an agreement with Burton and the runners to assist him
in the drug distribution. Several witnesses also testified that they saw Johnson sell
drugs to other drug dealers, heard details of Johnson’s supply arrangements
directly from Johnson and observed friends and family allowing Johnson to use
8
The heading in Johnson’s appeal brief states that his sufficiency of the evidence
challenge is “as to all counts.” However, his substantive arguments concern only the sufficiency
of the evidence to sustain his conspiracy conviction and do not address his other convictions.
See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (concluding that an issue
was abandoned where defendant’s brief made only “passing references” to the issue).
13
their residences to cook crack cocaine and distribute drugs. Viewing this evidence
in the light most favorable to the jury’s verdict, a reasonable juror could have
found beyond a reasonable doubt that Johnson entered into an agreement to
distribute crack and powder cocaine.
Johnson argues that his co-conspirators’ testimony was insufficient to
support the jury’s verdict because they were charged with crimes and had a motive
for testifying against him. This argument is unavailing. Credibility determinations
fall within the exclusive province of the jury unless the testimony is “incredible as
a matter of law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997).
The co-conspirators’ motives for testifying do not render their testimony
unbelievable on its face. See id.
C. Leadership Role Enhancement
Under U.S.S.G. § 3B1.1(c), a defendant’s offense level is increased by two
levels when “the defendant was an organizer, leader, manager, or supervisor” of
criminal activity that involved fewer than five participants and was not otherwise
extensive. U.S.S.G. § 3B1.1(c). “[T]he assertion of control or influence over only
one individual is enough to support a § 3B1.1(c) enhancement.” United States v.
14
Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000); see also U.S.S.G. § 3B1.1(c), cmt.
n. 2.9
Johnson asserted influence and control over Taylor, Moss and Cox by
fronting drugs for them to sell and requiring them to pay him out of the proceeds.
Moss testified that when he failed to pay Johnson back in full, Johnson stopped
fronting him drugs. Johnson also sometimes used runners to deliver drugs for him.
Moss testified that at one point he worked as a runner for Johnson. Given this
evidence, we cannot say the district court clearly erred in imposing a two-level
leadership role enhancement.
AFFIRMED.
9
A defendant’s role under U.S.S.G. § 3B1.1 is a factual finding we review for clear error.
United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005).
15