United States v. Jimmie C. Johnson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 98-2671
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United States of America, *
*
Plaintiff-Appellee, *
*
v. *
* Appeal from the United States
Jimmie C. Johnson, * District Court for the District of
* Nebraska.
Defendant-Appellant. *
*
*
___________

Submitted: January 12, 1999
Filed: February 8, 1999
___________

Before BOWMAN, Chief Judge, MURPHY, Circuit Judge, and ALSOP,* District
Judge.
___________

MURPHY, Circuit Judge.

Jimmie C. Johnson was convicted by a jury of conspiracy to distribute and
possess with intent to distribute cocaine base (crack cocaine) in violation of 21 U.S.C.

*
The Honorable Donald D. Alsop, United States District Judge for the
District of Minnesota, sitting by designation.
§§ 841(a)(1) and 846, and 18 U.S.C. § 2. He was sentenced by the district court1 to life
imprisonment, and he raises a number of issues on his appeal. He argues that this
federal prosecution is barred by double jeopardy, that the method used to make up jury
panels in the District of Nebraska is unconstitutional, that several evidentiary rulings
require reversal, and that the court erred in calculating his sentence.2 We affirm.

I.

Jimmie C. Johnson was arrested on federal charges on May 24, 1996 and
indicted on one count of conspiracy to distribute crack. Johnson and his brother Jerry
were alleged to have been central figures in a conspiracy which procured crack cocaine
in Omaha for resale in Lincoln. Numerous witnesses testified at trial regarding their
drug dealings with Johnson, providing evidence that Stacy Horn, Heather Roberts, Lori
Howard, Penny McIntosh, Albert Lucky Williams, and others sold crack they received
from him. Witnesses also provided evidence that Johnson personally cut and packaged
crack cocaine for resale, that he directed the selling activities of others, and that he
assisted in the collection of drug debts.

Lori Howard was one key prosecution witness. She testified that during 1995
and 1996 she sold crack for Johnson and that during 1996 he came to her house at least
twice to package and sell crack. She also testified that Johnson and his brother Jerry
had physically and sexually assaulted her because of a cocaine debt. She stated that
Jerry Johnson found her hiding in the closet of a friend’s house, hit her, and forced her
into an automobile. He told her that she would have to get the money she owed his
brother and forced her to have sex with him, then sodomized her with transmission

1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
2
Johnson raises additional arguments in a supplemental pro se brief which are
without merit.
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fluid. He called Johnson for further directions and drove her to York, Nebraska where
she was placed in Johnson’s automobile and forced to perform oral sex on him.
Howard said Johnson then threatened that she would be “found in a river” if she did
not get the money to him by 11:00 that morning.

Lincoln Police Officer Gregory Sorensen testified about an interview he had
with Johnson in April 1996 while he was investigating the reported assault on Lori
Howard. After speaking with his attorney, Johnson agreed to discuss the alleged
assault with Sorensen, but said he was not willing to answer questions about other
potentially incriminating issues. During the interview, Sorensen told Johnson that Lori
Howard said the reason she owed Johnson money was over drugs. Johnson said that
was not true and that he had loaned her money to pay her rent. Sorensen asked
Johnson whether he would normally give somebody five hundred dollars for rent, and
Johnson responded, “what they call me in the streets is a, is a kind dope dealer.”

Johnson was found guilty after a six day jury trial, and the court then held a two
day sentencing hearing. Johnson raised objections to the presentence report and
requested a downward departure. The court heard additional testimony related to the
disputed facts. It found that Johnson was responsible for at least 500 to 1500 grams
of cocaine base and then assessed a two level enhancement for possession of a deadly
weapon, a four level enhancement for his role in the offense, a two level enhancement
for use of a minor, and a two level enhancement for obstruction of justice. Johnson’s
base offense level was determined to be 43,3 and his past criminal history was found
to warrant a criminal history score of IV. He was sentenced to life imprisonment.

Prior to this federal indictment and conviction, Johnson had been convicted of
a state drug offense. An April 1995 search of his residence had revealed cocaine,
marijuana, and a significant amount of cash, and he was charged in the district court

3
The total level was actually 46, but was reduced to the maximum provided in
the sentencing guidelines. See U.S.S.G. Ch.5 Pt. A, comment (n.2).
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in Lancaster County with possession with intent to distribute a controlled substance.
He ultimately negotiated a plea agreement with county attorney James Rocke. In
exchange for his plea of guilty to the lesser charge of possession of a controlled
substance, the state agreed not to bring additional charges related to its investigation.
Johnson’s plea was entered on October 12, 1995. He was sentenced to two to four
years imprisonment, but released pending appeal.

Johnson and his brother Jerry were initially indicted by a federal grand jury in
May 1996 for a conspiracy alleged to have run from January 1995 through at least May
23, 1996, but a superseding indictment alleged that it had begun in November 1994.
After Johnson raised a double jeopardy challenge, the government dismissed the
indictment and filed a new one alleging a conspiracy beginning October 13, 1995 --
one day after the entry of Johnson’s guilty plea to the state charges. The United States
Attorney’s office assigned primary responsibility for prosecuting the federal case to
Richard E. Rothrock, a Lancaster County attorney who had also been serving as a
Special Assistant United States Attorney since September 1995.

II.

On appeal, Johnson raises constitutional, evidentiary, and sentencing issues. He
argues that the federal prosecution violated his Fifth Amendment right not to be placed
in double jeopardy and that the method used by the District of Nebraska for impaneling
jurors violated his Sixth Amendment right to trial by a fair cross section of the
community. He also asserts that it was reversible error for the district court to admit
evidence of the assault on Lori Howard, to allow government witnesses to testify
pursuant to cooperation agreements, and to fail to suppress his incriminating statement
to officer Sorensen. Finally, he argues the court erred in calculating the amount of
cocaine for which he was held responsible and in enhancing his base offense level for
possessing a dangerous weapon, for his role in the offense, for use of a minor, and for
obstruction of justice. He seeks dismissal of the indictment, a new trial, or

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resentencing.

A.

Johnson argues that his federal prosecution is barred by the double jeopardy
clause because it amounted to a second state prosecution for the same conduct. The
district court disagreed, and the standard of review for this issue is de novo. United
States v. Brekke, 97 F.3d 1043, 1046-47 (8th Cir. 1996).

The dual sovereignty doctrine provides that although a defendant may not be
prosecuted twice by the same sovereign for the same acts, a subsequent prosecution by
a separate sovereign does not violate the Constitution. Abbate v. United States, 359
U.S. 187 (1959); United States v. Basile, 109 F.3d 1304, 1306-07 (8th Cir. 1997).
Nevertheless, a state prosecution that is merely “a sham and a cover for a federal
prosecution” such that it is in essence a second federal prosecution may violate the
double jeopardy clause. Bartkus v. Illinois, 359 U.S. 121, 124 (1959). The scope of
this exception remains somewhat unclear. Compare Basile, 109 F.3d at 1307 (noting
that this court has never explicitly held that the Bartkus exception applies when a
federal prosecution follows a state prosecution -- the reverse of the situation in
Bartkus), with United States v. Williams, 104 F.3d 213, 216 (8th Cir. 1997) (facts
analyzed as if Bartkus exception were applicable to federal prosecution after a state
prosecution); United States v. Garner, 32 F.3d 1305, 1310 (8th Cir. 1994) (same). It
is not necessary to define the exact scope of the exception here because the facts of this
case do not establish that there was a sham prosecution.

Cooperation between local and federal law enforcement officers does not in
itself affect the identity of the prosecuting sovereign. Bartkus, 359 U.S. at 123; United
States v. Moore, 822 F.2d 35, 38 (8th Cir. 1987); see also United States v. All Assets
of G.P.S. Automotive Corp., 66 F.3d 483, 495 (2nd Cir. 1995) (“And every circuit to
consider the issue has also held that the cross-designation of a state district attorney as

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a federal official to assist or even to conduct a federal prosecution does not by itself
bring a case within the Bartkus exception to the dual sovereignty doctrine.”). The
critical factor is whether or not the sovereign bringing the second prosecution was
acting independently. Bartkus, 359 U.S. at 124.

The state and federal prosecutions of Johnson were conducted independently by
different prosecutors. The state prosecution and plea negotiations were handled by a
deputy county attorney, James Rocke. Assistant United States Attorney Michael G.
Heavican later assigned Richard E. Rothrock to handle the federal prosecution.
Rothrock was at that time a county attorney holding a dual appointment as a Special
Assistant United States Attorney beginning in September 1995. No evidence was
produced to indicate that Rothrock had been involved in the state prosecution and plea
agreement or that he went to work on the federal side only to prosecute Johnson. The
state court plea agreement and conviction occurred one year before the federal
indictment, and no federal officials were involved in it. As the Fifth Circuit has noted
“‘unless a federal agent actually participates in a state court plea bargain, subsequent
prosecution in federal court does not violate the defendant’s constitutional rights.’”
United States v. Harrison, 918 F.2d 469, 475 (5th Cir. 1990) (citation omitted). The
district court did not err in determining that the federal prosecution did not violate
Johnson’s rights against double jeopardy.

B.

At the time of Johnson’s trial, potential jurors in the district of Nebraska were
selected exclusively from voter registration lists. Johnson claims that this method of
selection violated his Sixth Amendment rights and points to evidence that the voter
registration lists under-represented Hispanic and black populations. He identifies
himself as African-American or black, and he was convicted by a petit jury that did not
contain any people of color. He alleges that the process systematically excludes
Hispanics and blacks.

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 The process formerly used in the district of Nebraska to summon jurors from
voter registration lists has recently been upheld by this court against a similar
constitutional challenge. United States v. Sanchez, 156 F.3d 875 (8th Cir. 1998). Only
the court sitting en banc could reconsider the issue. See, e.g., Malone v. Vasquez, 138
F.3d 711, 718 (8th Cir. 1998).

C.

The government presented evidence at trial regarding allegations that Johnson
and his brother Jerry physically and sexually assaulted Lori Howard because of an
unpaid crack debt. Johnson argues that this evidence should have been excluded as
irrelevant and unduly prejudicial. A district court’s evidentiary decisions are reviewed
for abuse of discretion. United States v. Mosby, 101 F.3d 1278, 1282 (8th Cir. 1996).

Evidence of the assault on Howard was relevant to show means used by the
Johnsons to obtain payment of a drug debt in furtherance of the conspiracy to distribute
cocaine. In deciding if evidence is unduly prejudicial, the court should consider “‘the
degree of unfairness of the prejudicial evidence and whether it tends to support a
decision on an improper basis.’” United States v. Dierling, 131 F.3d 722, 730 (8th Cir.
1997)(citation omitted). In Dierling, it was not error to allow testimony about the
display of an associate’s decapitated head because the evidence illustrated the means
used by the conspirators to enforce the rules of their drug business. Id. at 731.
Similarly, the district court here did not abuse its discretion in determining that the
assault evidence was relevant to Johnson’s drug dealings and that its probative value
outweighed any prejudicial effect.

D.

Johnson also challenges the court’s refusal to suppress a statement he made in

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an interview with officer Sorensen when he said that he was a “kind dope dealer.”
Before the interview Johnson spoke with his attorney and told Sorensen that he would
answer questions about the Howard assault, but that he would not answer questions
about other potentially incriminating issues. Johnson now argues that by bringing up
the subject of Howard’s explanation as to why she owed him money, Sorensen violated
his rights under the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966).
See Michigan v. Mosley, 423 U.S. 96, 104 (1975); Otey v. Grammar, 859 F.2d 575,
579 (8th Cir. 1980) (“The admission of statements obtained after a person in custody
has decided to remain silent depends on whether his right to cut off questioning has
been scrupulously honored.”). The court’s ultimate determination of whether there
was a constitutional violation is reviewed de novo, and its findings of fact are reviewed
for clear error. United States v. Byrne, 83 F.3d 984, 988 (8th Cir. 1996).

A person in custody may selectively waive the right to remain silent by
indicating a willingness to answer only certain questions. Otey v. Grammar, 859 F.2d
575, 579 (1980). When approached by officer Sorensen, Johnson indicated that he
would answer questions about the alleged assault, but no other potentially
incriminating issues. We have reviewed the taped interview by Sorensen, and he did
not initially ask any question when he brought up Howard’s statement that she owed
Johnson money over drugs. Before mentioning the statement, however, he said that
this could be a question Johnson might not want to answer. Johnson did nothing to
suggest that a question had been raised outside the permissible scope of the interview.
Instead, he responded that Howard’s statement was not true and affirmed that he had
loaned her the money for rent. Sorensen then asked him whether he would normally
give someone five hundred dollars for rent. Johnson proceeded to answer this question
by explaining that he was considered a “kind dope dealer.” The interview remained
focused on the assault on Howard, an assault that she had said was related to a drug
debt, and Sorensen gave Johnson an opportunity to refuse to comment. The district
court’s findings that Johnson volunteered the incriminating statement and that
Sorensen did not unscrupulously violate Johnson’s right to cut off any questioning are

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not clearly erroneous. We conclude that Johnson’s Miranda rights were not violated.

E.

Johnson argues that the testimony of several government witnesses who testified
pursuant to cooperation agreements should have been suppressed because it was
obtained in violation of 18 U.S.C. § 201(c)(2). Since Johnson failed to object to the
testimony of these witnesses at trial, the standard of review would ordinarily be for
plain error only. United States v. Millard, 139 F.3d 1200, 1203 (8th Cir. 1998).

18 U.S.C. § 201(c)(2) is a criminal statute making it illegal for “whoever” to
give anything of value to another for testimony under oath at trial. Johnson argues that
section 201(c)(2) applies to cooperation agreements made by prosecutors. See United
States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev’d en banc, United States v.
Singleton, ___ F.3d ___, 1999 WL 6469 (10th Cir. Jan. 8, 1999); United States v.
Lowery, 15 F. Supp. 2d 1348 (S.D. Fla. 1998). This argument has now been rejected
by the circuits which have considered it. United States v. Singleton, ___ F.3d ___,
1999 WL 6469 (10th Cir. Jan. 8, 1999) (en banc); United States v. Haese, 162 F.3d
359 (5th Cir. 1998); United States v. Ware, 161 F.3d 414 (6th Cir. 1998). We agree
that the statute does not sweep so broadly as to prevent prosecutors from offering
leniency to an individual in exchange for truthful testimony. We have previously
recognized that such plea agreements are not unlawful. United States v. Garcia, 785
F.2d 214, 221 (8th Cir. 1986) (“a plea agreement that grants favors to a prosecution
witness in return for truthful testimony about the defendant is not unlawful”). Section
201(c)(2) cannot be considered in isolation since courts and prosecutors are authorized
to consider substantial assistance in the sentencing process. See 18 U.S.C. § 3553(e);
see also U. S. Sentencing Guidelines Manual §§ 5K1.1 [U.S.S.G.]; Singleton, 1999
WL 6469, at *6 (Lucero, J. concurring). The court did not err in permitting the
testimony of the cooperating witnesses.

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 F.

Johnson asserts that several of the court’s factual findings at sentencing were
clearly erroneous. He argues that the court erred in accepting the testimony of
government witnesses regarding the quantity of crack cocaine attributable to Johnson
and that it erred in increasing his base offense level for use of a weapon (U.S.S.G. §
2D1.1(b)(1)), for his role in the offense (U.S.S.G. § 3B1.1(a)), for using a minor
(U.S.S.G. § 3B1.4), and for obstructing justice (U.S.S.G. § 3C1.1). The United States
argues that the court did not err in rejecting the objections after a full trial and a two
day evidentiary hearing and that it properly calculated his base level to be 43. The
district court’s findings of fact at sentencing are reviewed for clear error. United States
v. Brown, 148 F.3d 1003, 1007 (8th Cir. 1998).

The district court held Johnson accountable for between 500 and 1500 grams of
crack cocaine, resulting in a base offense level of 36. Johnson argues the appropriate
quantity was between 50 and 150 grams. When “determining base offense levels, the
district court may rely upon evidence including drug prices and organizational
capability to approximate total drug quantities beyond the amount of drugs actually
seized.” United States v. Padilla-Pena, 129 F.3d 457, 467 (8th Cir. 1997) (citation
omitted). In such circumstances, it is proper to rely on the testimony of witnesses to
establish drug amounts. United States v. Dierling, 131 F.3d 722, 736 (8th Cir. 1997).
The district court determined that the government reliably established that the court
could conservatively hold Johnson accountable for between 1080 and 1419.67 grams
of crack. This finding was based on testimony introduced at trial and at the sentencing
hearing from an undercover officer and several individuals involved in Johnson’s
distribution network. Johnson alleges that the court did not judge the credibility of the
testimony properly so its quantity finding is clearly erroneous. The district court,
however, is best able to assess the value of testimony in light of corroborating and
conflicting evidence, witness demeanor, and numerous other factors; its findings
regarding witness credibility are thus given great deference and are “‘virtually

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unreviewable on appeal.’” United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.
1993).

The district court also increased Johnson’s base offense level pursuant to
U.S.S.G. § 2D1.1(b)(1), after it found that he had used a dangerous weapon, a baseball
bat, as part of the conspiracy. Johnson argues this finding was clearly erroneous.
Section 2D1.1(b)(1) indicates that the base offense level should be increased by two
levels if a dangerous weapon was possessed, and a “dangerous weapon” is defined as
“an instrument capable of inflicting death or great bodily harm.” U.S.S.G. § 1B1.1,
comment (n.1). A baseball bat, when used as a club, meets this definition, see, e.g,
United States v. Kushmaul, 147 F.3d 498 (6th Cir. 1998), and the court did not clearly
err in accepting Odell Reed’s testimony that both Jimmie and Jerry Johnson beat him
with baseball bats.

The guidelines also provide for a four level enhancement if the defendant was
an organizer or leader of criminal activity involving five or more participants.
U.S.S.G. § 3B1.1(a). More than five individuals, including Jerry Johnson, Albert
Lucky Williams, Percy Webster, Odell Reed, Penny McIntosh, Stacy Horn, Lori
Howard, and Heather Roberts, testified that they were involved in the conspiracy. The
district court found that Johnson was the “CEO” of the operation and that he directed
the crack selling activities of Williams, Howard, Horn, and Roberts, directed drug debt
collection activities, directed the kidnaping and sexual assault of Howard, packaged
and cooked crack, and had others cook and test crack for him. These findings were
based on testimony at trial and the sentencing hearing and were not clearly erroneous.

Johnson also challenges the increases added under U.S.S.G. § 3B1.4 and §
3G1.4. He argues the court erred in finding that he used a minor, Heather Roberts, to
commit the offense. The court did not clearly err in accepting testimony that Roberts
sold crack for Johnson and that he was aware of her age because she had told him
about it when he helped secure her release from a juvenile detention facility. This

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evidence provided a proper basis for a two level enhancement under U.S.S.G. § 3G1.4.
Johnson also asserts that the court clearly erred in finding that he obstructed justice.
This finding, based on testimony by Williams that Johnson attempted to have him sign
a false affidavit, was not erroneous and supported an enhancement under U.S.S.G. §
3C1.1 for obstruction of justice.

III.

After carefully examining the record, we conclude Johnson is not entitled to
prevail on any of his constitutional, evidentiary, or sentencing issues. The judgment
of the district court is therefore affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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