United States v. Audrey Johnson, Jr.

458 F. App'x 464
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 31, 2012
Docket10-5290
StatusUnpublished
Cited by5 cases

This text of 458 F. App'x 464 (United States v. Audrey Johnson, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Audrey Johnson, Jr., 458 F. App'x 464 (6th Cir. 2012).

Opinions

OPINION

McKEAGUE, Circuit Judge.

Defendant-Appellant Audrey Louis Johnson, Jr. was convicted in a jury trial of aiding and abetting another with know[466]*466ingly or intentionally possessing with intent to distribute more than 50 grams of cocaine base (“crack”), in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. He contends that his conviction rests on evidence that was erroneously admitted under Federal Rule of Evidence 404(b) and the prosecutor’s improper closing remarks. He seeks reversal and remand for new trial. Because the district court properly admitted the evidence, any error in admitting the contested evidence was harmless, and the prosecutor’s closing remarks were not flagrant, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual Background

This case arises from a controlled purchase of crack cocaine between a confidential informant, Walter Lee Dominique Smith (“Dominique”) and Kenneth Duncan (“Duncan”), which took place on September 26, 2006. Dominique was a confidential informant (“Cl”) with the Oldham County Police Department in Louisville, Kentucky. His handler was Officer Larry Congleton. During the summer of 2006, Dominique became acquainted with Duncan while getting his hair cut at the Kentucky College of Barbering (“the barber college”), where Duncan was a student, and through their mutual participation in Narcotics Anonymous. Dominique learned of Duncan’s involvement in dealing crack cocaine through “general conversations” with him. Dominique informed Officer Congleton about Duncan, and Duncan became the target of an investigation.

On September 13, 2006, Duncan used Dominique’s cell phone to call another cell phone number. Dominique provided the number of the other cell phone to Agent Congleton, who then obtained an administrative subpoena to get the subscriber information. The subscriber information showed that Audrey Johnson, Jr. (“Johnson”) was the account holder and that he lived on Dumesnil Street in Louisville, KY. Officer Congleton also obtained Johnson’s driver’s license information, which revealed the same address.

Dominique and Officer Congleton began arranging a controlled purchase. In Dominique’s recorded phone calls to Duncan, both Duncan and Dominique referred to a third party who would supply the crack. While discussing the price, Duncan said, “We go see him,” and “That’s what he told me.” When setting up the sale, Dominique said, “Have him meet you at the shop,” and “Tell him to make sure all the weight is there.” At trial, Dominique testified that he did not know exactly who “him” was, just that he understood Duncan would be getting the crack from someone else.

On September 26, Dominique met with Officer Congleton and other Drug Enforcement Agency agents to prepare for a controlled purchase of two ounces of crack. Officers set up surveillance, searched Dominique and his vehicle, counted out $1600 ($800 for each ounce), and outfitted Dominique with a wire. Phone records showed that Duncan called the number attributed to Johnson three times that day. Dominique met Duncan at the barber college, and the two men went inside Dominique’s car. Dominique joked that perhaps he did not want the crack after all, upon which Duncan became upset, saying “no, don’t do this man, you just had this man go whip this shit up.” Duncan then got out of the car, and Dominique observed Duncan meet with a man on a green scooter with a tall pole bearing an orange flag attached to the back. Dominique said, “He on a scooter, he on a scooter at the end of the building” over the wire to relay to the officers that Duncan was meeting with a third man. When Duncan returned to the car, he said, [467]*467“It’s always butter, baby.” Duncan testified that he was referring to the crack. Once Dominique saw that the substance appeared to be crack, he paid Duncan. Duncan then went up to the man on the scooter again, and shortly after, he drove off. Police briefly followed him but broke off after the man began to suspect being followed. Dominique, followed by Officer Congleton, drove to a prearranged meet location, where he handed over the crack and was searched to ensure he did not keep any of the drugs or money. Dominique received $500 for his services.

Three days later, on September 29, 2006, Officer Congleton went to the Du-mesnil Street address. There, parked in a carport behind the residence, Officer Con-gleton saw a green scooter with an orange flag.

B. Procedural Background

On June 4, 2007, Duncan and Johnson were indicted by a grand jury of aiding and abetting each other in knowingly or intentionally possessing with intent to distribute and distributing fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. Duncan pled guilty, but Johnson elected to go to trial. Though Duncan at first refused to testify against Johnson, he later wrote a letter to the U.S. Attorney’s Office offering a “water-tight” conviction of Johnson. Duncan admitted at trial that he was testifying in exchange for a five-year sentence reduction, which would halve his original ten-year sentence.

Before trial, the court heard arguments on the introduction of 404(b) evidence of prior drug transactions in which Johnson supplied crack to Duncan. The Government submitted that the evidence was relevant to establish Johnson’s knowledge and intent regarding drug trafficking. Over Defendant’s objection, the court admitted the evidence on the basis that it was relevant to identity, plan, and intent, and concluded that the probative value of the evidence outweighed the prejudicial value.

At trial, the Government sought to prove that Duncan was not acting alone but had a supplier for the September 26 sale, that Johnson was that supplier, and that Johnson was the man on the green scooter that day. Dominique provided an account of the September 26 sale as related above. Officer Congleton corroborated Dominique’s account, testifying that he observed an exchange of something from the man on the scooter to Duncan, whereupon Duncan immediately turned and walked back to Dominique’s car and consummated the sale. Officer Congleton said he knew the transaction took place once Duncan reentered the car because Dominique was counting out the money, signaling that he had the drugs. Officer Congleton then observed Duncan get out of Dominique’s car, walk back to the man on the scooter, and again saw an exchange of something from Duncan to the man on the scooter. Congleton testified that the scooter was lime green with a large orange flag attached to the back end.

Duncan corroborated this sequence of events and identified Johnson as the man on the scooter and the supplier for this particular deal. He testified that he became acquainted with Johnson in May 2006 at the barber college, where Johnson was also a student. Regarding the sale, Duncan confirmed that when he first got out of Dominique’s car to meet Johnson, Johnson gave him the two ounces of crack, and when he approached Johnson again after the sale, he handed Johnson the money.

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458 F. App'x 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-audrey-johnson-jr-ca6-2012.