In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3558
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ENDELL JOHNSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09 CR 30025 WDS—William D. Stiehl, Judge.
____________
A RGUED A PRIL 23, 2010—D ECIDED O CTOBER 26, 2010
____________
Before M ANION, R OVNER , Circuit Judges, and H IBBLER,
District Judge. †
H IBBLER, District Judge. This is an appeal from a judgment
and sentence entered by the district court. After a two-day
trial, a jury found Defendant-Appellant Wendell Johnson
guilty of two counts of distribution of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). There-
after, the district court calculated the proper sentencing
†
Of the Northern District of Illinois, sitting by designation.
2 No. 09-3558
range under the United States Sentencing Guidelines to be
262 to 327 months of incarceration and sentenced him to
300 months in prison. Johnson first challenges his convic-
tion on the ground that four types of evidence that the
court admitted during his trial were unfairly prejudicial.
Second, although he does not dispute the court’s calcula-
tion of the applicable Guidelines range, he contends that
the court abused its discretion when it declined to sentence
him to a term of incarceration substantially shorter than
the minimum suggested by the Guidelines. We affirm.
I. Background
At trial, the Government relied primarily on evidence
presented by a confidential informant and two police
officers regarding two “controlled buys” of crack cocaine
conducted by the informant. The police officers testified
that on two separate occasions in February 2009 the
informant called Johnson in order to schedule meetings
with him. The Government introduced recordings of those
telephone conversations, which contained what they
contended were coded plans for the informant to purchase
crack cocaine from Johnson.
The officers testified that prior to the meetings, they
strip-searched the informant to confirm that he was not in
possession of any drugs. They outfitted him with concealed
audio and video recording devices and provided him with
money to pay for the crack cocaine he was to purchase
from Johnson. Then they monitored the informant as he
met with Johnson and, after taking him back to the police
station, performed another strip-search. According to the
officers, on both occasions, the informant returned from his
No. 09-3558 3
meetings with Johnson in possession of crack cocaine and
without the money. The officers’ testimony corroborated
the informant’s testimony that on both occasions he
arranged meetings with Johnson in order to purchase crack
cocaine and then successfully purchased the substance
from Johnson using the money provided by the police
officers.
The Government also introduced the audiovisual record-
ings obtained during those meetings through the police
officers. The recordings contained footage of Johnson
meeting with the informant, as well as footage of crack
cocaine in the informant’s hand.
Finally, the Government examined Johnson’s brother,
who testified that he also sold crack cocaine to the infor-
mant and that he introduced the informant to Johnson and
referred him to Johnson for the purpose of buying crack
cocaine.
Johnson’s defense focused primarily on two main issues.
First and foremost, he relied heavily on the fact that the
video recordings did not show an actual exchange of
money or drugs between Johnson and the informant. He
pointed out that while Johnson and the informant did not
explicitly mention drugs in their vague conversations, they
definitely did discuss guns. Thus, Johnson argued, the
meetings concerned the informant’s attempts to sell guns
to Johnson rather than Johnson’s sale of drugs to the
informant. Johnson’s second strategy was to call into
question the credibility of the informant and his brother by
focusing on their ulterior motives in testifying against him.
Johnson noted that the informant, an admitted crack
addict, received compensation for his cooperation in the
4 No. 09-3558
investigation. Similarly, Johnson argued that his brother,
who was facing a long prison sentence for his own drug
conviction, also had a motive to cooperate with the Gov-
ernment.
Johnson bases the appeal of his conviction on a few
additional pieces of evidence the Government introduced
that relate more to surrounding circumstances than the
narrative of the crimes charged. First, Johnson argues that
the district court should have excluded his 2007 conviction
for distributing cocaine. The court took judicial notice of
that conviction over Johnson’s pre-trial objection.1 Second,
the Government also elicited testimony through the police
officers, the informant, and Johnson’s brother that Johnson
had previously engaged in at least fifteen prior crack
cocaine transactions with the informant and at least one
with his brother. Third, the district court allowed the
Government to play recordings of telephone conversations
Johnson had with an associate while in jail awaiting trial,
which the Government claimed contained Johnson’s coded
instructions to threaten the informant prior to trial. John-
son argues that the district court should not have allowed
the Government to publish the recordings to the jury, but
that at the very least the court should have required the
Government to redact the recordings or provided a limit-
ing instruction to the jury regarding their use. Fourth, and
finally, the Government elicited testimony from one of the
1
Johnson also argues that the district court erred by failing to
give a cautionary instruction regarding the use of his 2007
conviction. However, Johnson is mistaken; the district court
gave such an instruction.
No. 09-3558 5
police officers indicating that Johnson had prior contact
with law enforcement.
As noted above, Johnson also challenges the district
court’s decision to impose a sentence of 300 months of
incarceration. He argues that the district court should have
granted his motion for a downward departure from the
guideline range based on his troubled childhood and his
resulting struggles with substance abuse and psychological
disorders.
II. Discussion
A. Standard of review
1. Evidentiary rulings
Johnson preserved his objections to the admission of the
jail telephone call recordings and his 2007 conviction by
raising them before the district court. Thus, we review the
district court’s decision to admit that evidence for an abuse
of discretion. United States v. Cunningham, 462 F.3d 708,
712 (7th Cir. 2006). In other words, an admission is only
improper under this standard “when no reasonable person
could take the view adopted by the trial court.” United
States v. Ozuna, 561 F.3d 728, 738 (7th Cir. 2009) (internal
quotation omitted). We will reverse and order a new trial
only if we find that an improper admission was not
harmless, “which is to say only if the error had a substan-
tial influence over the jury, and the result reached was
inconsistent with substantial justice.” United States v.
Owens, 424 F.3d 649, 653 (7th Cir. 2005) (internal quotation
omitted).
6 No. 09-3558
Because Johnson did not object to the admission of the
evidence that he had previously sold drugs to the infor-
mant or the evidence of his prior law enforcement contact
at trial, we review the district court’s decision to admit that
evidence for plain error. Fed. R. Crim. P. 52(b); United
States v. Sebolt, 460 F.3d 910, 916 (7th Cir. 2006). Johnson
can prevail under this standard only if he shows that “(1)
an error occurred; (2) the error was ‘plain,’ that is, it was
clear or obvious; and (3) the error affected the outcome of
the district court proceedings.” United States v. Shearer,
379 F.3d 453, 456 (7th Cir. 2004) (citing United States v.
Olano, 507 U.S. 725, 731-35, 113 S.Ct. 1770, 123 L.Ed.2d
508 (1993)). We will reverse the decision of the district
court“ only if the errors resulted in an actual miscarriage
of justice such that the defendant probably would have
been acquitted but for the erroneously admitted evidence.”
United States v. Avila, 557 F.3d 809, 820 (7th Cir. 2009)
(internal quotations omitted).
2. Sentencing
The district court imposed a sentence that falls within the
range suggested by the United States Sentencing Guide-
lines. Thus, we must presume that it was reasonable.
United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th
Cir. 2008). We review the sentence for an abuse of discre-
tion and will affirm if the district court gave meaningful
consideration to the sentencing factors and arrived at an
objectively reasonable sentence. United States v. Wachowiak,
496 F.3d 744, 748 (7th Cir. 2007).
No. 09-3558 7
B. Prior drug conviction
Johnson believes the district court should have excluded
his 2007 conviction for distributing cocaine. The Govern-
ment claims it offered the evidence to show Johnson’s
knowledge and lack of mistake, but Johnson contends that
the conviction was improper propensity evidence under
Rule 404(b) of the Federal Rules of Evidence. Because we
find that any error in admitting Johnson’s prior conviction
was harmless, we need not address the question of whether
Rule 404(b) permitted it.
The Government presented very strong evidence
of Johnson’s guilt in the form of audio and video record-
ings of Johnson making arrangements to meet with
the informant and then apparently selling him drugs
at those meetings. The officers’ testimony regarding the
procedures they followed in monitoring those con-
trolled buys corroborated the informant’s testimony. Thus,
even assuming that the district court erred by taking notice
of Johnson’s prior conviction, and taking into account
the other evidence admitted regarding his prior acts, we
cannot say that “the error had a substantial influence over
the jury.” See Owens, 424 F.3d at 653 (internal quotation
omitted). Nor can we say that “the result reached was
inconsistent with substantial justice.” See id. Therefore,
we will not reverse the trial court on this ground.
C. Prior drug sales evidence
For similar reasons, we come to the same conclusion with
regard to Johnson’s challenge to the district court’s admis-
sion of evidence that he previously sold crack cocaine to
8 No. 09-3558
the informant at least fifteen times and to his brother on at
least one occasion. He once again argues that the district
court’s decision was improper under Federal Rule of
Evidence 404(b). First, he argues that the Government
failed to provide notice that it planned to introduce the
evidence prior to trial, as the rule requires. See Fed. R. Evid.
404(b). Second, he argues that the Government offered the
evidence in order to show his propensity for selling drugs,
a purpose the rule prohibits. See id. Johnson’s first claim
clearly falls flat because the Government did in fact
provide him with notice of its intent to use this evidence
more than two months in advance of trial. Thus, we focus
on his second argument.
Once again, however, we need not decide whether the
admission of this evidence was error. As noted above,
Johnson is held to an even higher standard in this case than
with regard to the admission of his prior conviction
because he failed to object to the evidence at trial. See
Sebolt, 460 F.3d at 916. Johnson fails to meet this higher,
plain error standard because the error was harmless here
as well. The fact remains that the evidence of Johnson’s
guilt was substantial. Thus, we cannot say that “the error
affected the outcome of the district court proceedings,” see
Shearer, 379 F.3d at 456, and we will not reverse on this
ground.
D. Jail telephone calls
Next, we address Johnson’s challenge of the district
court’s decision to allow the Government to play the
recordings of telephone calls he made while in jail awaiting
No. 09-3558 9
trial. The recordings began with statements identifying
them as calls made from the Perry County Jail. Johnson
argues that the calls unfairly prejudiced him by putting the
jury on notice that he was incarcerated, a fact that the
Government reiterated during closing arguments. He also
argues that they were irrelevant to the issues presented by
the case. Johnson objected to the tapes both at and before
trial.
The Government offered the recordings as evidence of
Johnson’s consciousness of guilt, which is an appropriate
basis for admitting evidence of threats. See, e.g., United
States v. Calabrese, 572 F.3d 362, 368 (7th Cir. 2009) (citing
cases). However, Johnson claims the recordings do not
contain threats or that concluding that they do would
require too much speculation. He notes that the trial court
found the Government’s conclusions regarding the alleged
threats too speculative to support an enhancement for
obstruction of justice at the sentencing stage. He also
points out that, by the Government’s admission, the
recordings were of poor quality. He argues, on the other
hand, that by allowing the Government to play the tapes,
the district court placed him in a position similar to a
defendant forced to wear prison attire at trial. See United
States v. Martin, 964 F.2d 714, 719 (7th Cir. 1992) (noting
that this practice is forbidden).
There is no question that the recorded conversations in
question may not have had anything to do with threaten-
ing or intimidating the informant. They ostensibly concern
Johnson’s attempt to sell a car to somebody. On the first
recording, Johnson asks his associate if he remembers a
10 No. 09-3558
white man who was sitting on the curb one day and
wanted to buy a car from the informant. He says that he
needs to find the man to see if he still wants to buy the car
“[b]ecause that’s what’s f---ing me up, you know?” On the
second recording, Johnson tells the associate that he
misunderstood Johnson in their last conversation. He
repeats his description of the man trying to buy the car.
Once again, he says that he needs to find the man to see if
he still wants to buy the car, and describes two motels
where the man stays—the Highway House and another
motel near a middle school. He ends the conversation by
saying, “I can use that money to get out of here, you
know?”
Johnson claims that this conversation did in fact concern
his attempts to sell a car and his hope that he could use
the money from the sale to post bond. At trial, he pre-
sented evidence that he did, in fact, sell old cars that he
fixed up. The Government counters by arguing that
Johnson was actually describing the informant when
he described the man trying to buy the car. The Govern-
ment presented evidence that the informant, a white man,
stayed at the Highway House and another motel that was
near a middle school. Noting that Johnson would have
known that he was being recorded, the Government argues
that one could easily conclude that his vague references
to selling the informant a car because that will help him
“get out of here” are coded suggestions that his associate
intimidate or threaten the informant. The district court
agreed that such an interpretation was possible and
reasonable, and thus admitted the recordings into evi-
dence.
No. 09-3558 11
The fact that the district court interpreted the recordings
as something other than threats during sentencing does not
undermine the court’s determination that another interpre-
tation was reasonable. The trial court simply allowed the
jury to choose from more than one reasonable interpreta-
tion, and then later made its own decision as to the most
reasonable.
We agree with the district court that while Johnson did
not explicitly instruct his associate to threaten the infor-
mant in the recordings, the jury could reasonably interpret
the phone conversations in that manner. Thus, the trial
court did not abuse its discretion in determining that the
evidence was relevant. The only remaining question is
whether its prejudicial effect outweighed its probative
value.
We find the case law regarding the practice of requiring
defendants to wear prison attire at trial to be distinguish-
able. We agree that Johnson may have been somewhat
prejudiced by the fact that the jury learned that the calls
were recorded while he was in jail. However, the occa-
sional reference to the fact that Johnson had at some point
been in jail is quite different than the “constant reminder
of the accused’s condition implicit in such distinctive,
identifiable attire” that underlies the injustice inherent in
requiring a defendant to stand trial in prison garb. See
Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 1693,
48 L.Ed.2d 126 (1976). The Supreme Court has found that
the defendant’s prison attire is “likely to be a continuing
influence throughout the trial” and that requiring such
attire during trial is thus likely to undermine the presump-
12 No. 09-3558
tion of innocence and the defendant’s right to a fair trial. Id.
Given that Johnson faced a much diminished form of
prejudice, and that the district court had to weigh this
prejudice against the probative nature of the recordings,
we find that the court did not abuse its discretion in
admitting the tapes.
Johnson argues that, at the very least, the district court
should have ordered the tapes redacted so that the jury
would not hear the portion identifying the recordings as
calls made from jail and given a limiting instruction
regarding their use. However, Johnson did not make either
of those requests at trial. Additionally, it is not clear that
the Government could have redacted the tapes in a way
that preserved their probative value but yet removed any
reference to Johnson’s presence in jail. One of the reasons
Johnson’s statements on the recordings can be interpreted
as a threat is because he mentions that finding the man in
question will help him “get out of here.” (In fact, that
statement also forms the basis for Johnson’s innocent
interpretation of the conversation.) Under the plain error
standard, these additional arguments fail as well.
E. Prior law enforcement contact evidence
Finally, we address Johnson’s claim that it was improper
for the Government to elicit testimony from one of the
police officers indicating that Johnson had previously
crossed paths with law enforcement. First, the officer
testified that he was familiar with Johnson from previous
“police-related” encounters he and his partner had with
No. 09-3558 13
Johnson. Second, he testified that he showed the informant
a color booking photograph of Johnson prior to conducting
the controlled buys so that the informant could verify the
identity of the target of the investigation. Johnson argues
that the prejudicial effect of this evidence outweighed any
probative value it had in violation of Federal Rule of
Evidence 403. While his brief is somewhat unclear, his
reliance on Owens, 424 F.3d 649, a case concerning im-
proper prior bad acts evidence under Rule 404(b), indicates
he may also be objecting to the evidence on that ground.
The Government first argues that the officer’s testimony
that he knew Johnson from previous “police-related”
conduct was not even necessarily prejudicial as Johnson’s
contact with the police might have been completely
innocent. This is true, though it seems unlikely that the
jury would come to such a conclusion in the context of a
criminal trial, especially in light of the officer’s reference to
Johnson’s booking photograph.
More importantly, we reject Johnson’s claim that this
case is akin to Owens. In Owens, we held that the district
court committed error by admitting evidence that defen-
dant, who was charged with bank robbery, had previously
robbed the same bank branch years earlier. 424 F.3d at 656-
57. In addition, we held that “[t]he egregiousness of the
error [was] exacerbated” by the admission of a lineup
photo taken in the aftermath of the earlier robbery showing
the defendant and five other men seated, barefoot, and
wearing identical prison jump suits and large signs with
numbers around their necks. Id. at 657. This case is distin-
guishable from Owens for a number of reasons. First, in
14 No. 09-3558
the instant case, the officer simply made reference to
a “booking photograph.” In Owens, on the other hand, we
noted the significance of the photo’s publication, as well
as the fact that the photo accompanied the jury into
deliberations, where it “festered as a constant reminder
that [the defendant] had at least once before been a pris-
oner.” Id. Second, we reviewed the district court’s decision
for an abuse of discretion rather than for plain error. Id.
at 653. Finally, we found that the error was not harmless
given the relatively limited evidence of the defendant’s
guilt. Id. at 656-57.
Instead, this case is more analogous to United States v.
Simmons, 581 F.3d 582 (7th Cir. 2009). In that case, the
Government displayed a mug shot showing the top part of
the defendant’s bright orange jump suit to the jury during
its closing argument. Id. at 586. After the defendant
objected, the district court ordered the prosecution to take
down the photo and proceed. Id. We reviewed the district
court’s decision for an abuse of discretion and held that
because the court corrected the error immediately, the
resulting harm was negligible. Id. at 588-89 (noting that
ruling was not dependent on the fact that the average juror
may not have been able to tell that the photograph was a
mug shot). If the brief display of a mug shot to the jury is
not reversible error under an abuse of discretion standard
of review, then the brief mention of such a photograph
cannot be reversible under the plain error standard.
We therefore affirm Johnson’s conviction.
No. 09-3558 15
F. Sentencing
Johnson’s final challenge is to the district court’s decision
to impose a sentence of 300 months’ incarceration. Johnson
concedes that he qualified as a career offender with a
criminal history category score of VI and thirteen prior
convictions, including multiple crimes of violence, and
accepts that this sentence falls within the applicable
Guidelines range of 262 to 327 months. But, he takes issue
with the district court’s decision not to depart downward
from the Guidelines range in light of his troubled child-
hood, history of substance abuse, and untreated psycholog-
ical disorders.
Johnson did suffer through a tremendously difficult
childhood. At the age of 8, he witnessed his father kill his
mother and inflict a non-fatal gunshot wound on his
grandmother. His father committed suicide several days
later. Johnson never received counseling to help him cope
with those events. Since then, and as a result of those
incidents, Johnson has struggled with substance abuse and
various psychological disorders. In fact, he apparently
turned to alcohol in part because his father forced him and
his siblings to drink when they were children.
Given this background, a twenty-five year sentence for
selling $150 worth of crack cocaine may seem harsh at first
blush. Indeed, the district court noted the severity of the
tragedy that Johnson endured and stated that his difficult
childhood was “clearly a mitigating factor.” But, the court
also considered Johnson’s extensive criminal history, as
well as factors such as deterrence, protecting society, and
providing necessary treatment. On balance, the court
16 No. 09-3558
decided that 300 months was an appropriate sentence.
Because the court did give meaningful consideration to the
sentencing factors, we will only overturn the sentence if it
was objectively unreasonable. Wachowiak, 496 F.3d at 748.
We are not unmoved by Johnson’s disturbing history, but
we also see the merit to the district court’s concern that
giving a reduced sentence would not be in society’s best
interest. Thus, we find that the district court did not abuse
its discretion and we affirm Johnson’s sentence.
III. Conclusion
For the foregoing reasons, we A FFIRM defendant’s
conviction and sentence.
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