United States v. Jeffrey Johnson, United States of America v. Thomas Ash, Also Known as Rhymale Butler

12 F.3d 760
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 23, 1994
Docket92-3777, 92-3778
StatusPublished
Cited by41 cases

This text of 12 F.3d 760 (United States v. Jeffrey Johnson, United States of America v. Thomas Ash, Also Known as Rhymale Butler) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Jeffrey Johnson, United States of America v. Thomas Ash, Also Known as Rhymale Butler, 12 F.3d 760 (8th Cir. 1994).

Opinion

WOLLMAN, Circuit Judge.

In these consolidated appeals, Thomas Ash and Jeffrey Johnson appeal from their convictions for conspiring to attempt to possess with intent to distribute in excess of fifty grams of a substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(A)(iii), and 846; attempting to possess with intent to distribute in excess of fifty *762 grams of a substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(iii), and 846; and using a communication facility in attempting to possess with, intent to distribute in excess of fifty grams of a substance containing cocaine base, in violation of 21 U.S.C. § 843(b). We reject their argument that section 841(b)(l)(A)(iii) is unconstitutional. We find persuasive, however, their argument that evidence obtained following a warrantless entry into a residence should have been' suppressed. Nonetheless, we find that the untainted evidence was so compelling as to render harmless the admission of the illegally-obtained evidence. We also reject the two sentencing challenges raised. Accordingly, we affirm the defendants’ convictions and sentences.

I.

A United States postal inspector in New York received information that a black man wearing a black jacket would mail a package containing crack cocaine to St. Louis from the Uniondale, New York post office. On May 9, 1991, a man fitting this description entered the Uniondale post office and mailed via Express Mail a package addressed to Mrs. Rhymale Buttler, 1 2909 Old Hanley Road, St. Louis, Missouri 63114. The package was removed from the regular mail stream and sent directly to Rod Damery, a postal inspector in St. Louis.

After a narcotics-trained dog indicated that the package contained drugs, Damery applied for and obtained a search warrant for the package. When Damery and another inspector opened the package, they found eighteen plastic bags of cocaine base, or crack, wrapped inside a knit sweater. The package also contained National Supermarket grocery bags and foam as packing material. Planning to execute a controlled delivery, the inspectors removed all but one of the bags and replaced them with a bag of taffy. Additionally, they placed in the package a transmitter, or beeper, which would signal when the package was opened. They then rewrapped the package as it originally appeared.

When a postal inspector dressed as a letter carrier delivered the parcel on May 10, Ash accepted and signed for it, indicating that he was Rhymale Butler. During the delivery, Postal Inspector Ed Moreno was waiting at the federal court' house, where he was to apply for a search warrant as soon as he learned that the parcel had been delivered and taken inside the residence. Within minutes of the delivery and as Moreno was being informed via radio that the package had been accepted, the beeper indicated that the package had been opened. Fearing that evidence would be destroyed, the inspectors decided to enter the residence without waiting for the search warrant to be issued.

Postal Inspector Jerry Post knocked on the door and announced his identity. Receiving no response, he forced the door open. Upon entering the house, he observed the bathroom door closing. He and another officer then forced their way into the bathroom. They observed Johnson attempting to flush the bag of taffy down the toilet and Ash standing in the bathtub. As Johnson flushed the toilet, Post removed the bag from the toilet and threw it on the floor. Post then wrestled with Johnson as he attempted to escape through a window in the bathroom. Johnson was ultimately subdued, and he and Ash were arrested.

The search warrant for the residence was issued some ten minutes after the officers initially entered the house. Postal inspectors then searched the house pursuant to the warrant. In the bedroom where Ash’s girlfriend and child were staying, Inspector Post forrad inside a lock box a small portable scale of thé type commonly used by drug dealers. He also found in a second lock box small baggies used to package cráck and records for a pager in the name of Rhymale Butler. Additionally, Post discovered a piece of paper containing names, dollar amounts, and terms relating to drug quantities. Inspectors recovered the opened package and the sweater in the bathroom, as well as a pager that matched the pager records found in the bedroom. .

*763 At Ash and Johnson’s bench trial, Mr. Kim Smith, a cooperating witness who lived in the residence located at 2909 Old Hanley Road, provided the following testimony. Johnson, who had recently moved from New York, and Ash spent considerable time at the residence. In early May 1991, Smith observed them looking for a box to send money to New York. They found a baby formula box and placed in it a large amount of cash, a sweater of Johnson’s, some National Supermarket grocery bags, and some foam. (At trial, Smith identified the seized box, the foam inside the box, and the recovered sweater as the same items that Ash and Johnson had initially mailed to New York.) Smith drove the two defendants to the United Parcel Service office on Jefferson Avenue in St. Louis, where Ash mailed the package. The next day Smith overheard a telephone conversation in which Ash and Johnson told Johnson’s brother, who lived in New York, that the package was on its way. On May 6, or 7, Smith again observed the defendants placing money in a box so that they could mail it. On May 10, after Ash accepted the parcel from the disguised postal inspector, he and Johnson immediately took it into the bathroom.

Smith’s testimony was corroborated by independent sources. For example, the government- presented UPS records indicating that on May 3, and May 6, 1991, one Rhy-male Butler had sent a package from the UPS office on Jefferson Avenue to Samuel Johnson, 1288 Warwick Street, Uniondale, New York. Additionally, the government offered the testimony of Sharon and Nicole Baird, who in May 1991 lived at 1288 Warwick Street. The Bairds testified that they had rented the lower portion of their home, which is eight-tenths of a mile from the Uniondale post office, to a Samuel Johnson. They recalled that Johnson had received two packages via UPS from St. Louis in early May. Nicole Baird specifically remembered that one of the packages was a brown baby food box.

The district court convicted Ash and Johnson of the three above-described, offenses. The court sentenced Ash to 200 months’ imprisonment, to be followed by five years of supervised release, and Johnson to 228 months’ imprisonment, also to be followed by five years of supervised release.

II.

Ash and Johnson first argue that 21 U.S.C. § 841(b)(l)(A)(iii) is unconstitutional as applied.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

(PC) Elder v. Joksch
E.D. California, 2024
Roberts v. United States
E.D. Missouri, 2022
Swearingen v. Carle
286 F. Supp. 3d 1014 (S.D. Iowa, 2017)
United States v. Cisneros-Gutierrez
598 F.3d 997 (Eighth Circuit, 2010)
United States v. Bell
237 F. App'x 942 (Fifth Circuit, 2007)
United States v. Marasco
446 F. Supp. 2d 1073 (D. Nebraska, 2006)
Higdon v. Wells County Sheriff's Office
426 F. Supp. 2d 854 (N.D. Indiana, 2006)
United States v. Martel Morgan
Eighth Circuit, 2004
Mann v. State
161 S.W.3d 826 (Supreme Court of Arkansas, 2004)
United States v. M. Martinez-Tapia
69 F. App'x 814 (Eighth Circuit, 2003)
United States v. Martinez
264 F. Supp. 2d 298 (D. Maryland, 2003)
United States v. Jesse Campbell
261 F.3d 628 (Sixth Circuit, 2001)
United States v. Justin Webb
Eighth Circuit, 2000
State v. Kelly
963 P.2d 1211 (Idaho Court of Appeals, 1998)
United States v. Eberle
993 F. Supp. 794 (D. Montana, 1998)
United States v. Roman
Third Circuit, 1997

Cite This Page — Counsel Stack

Bluebook (online)
12 F.3d 760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jeffrey-johnson-united-states-of-america-v-thomas-ash-ca8-1994.