F I L E D United States Court of Appeals Tenth Circuit PUBLISH DEC 16 1997 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6393
COYETTE DEON JOHNSON,
Defendant-Appellant.
Appeal from United States District Court for the Western District of Oklahoma (D.C. No. 96-CR-80)
William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for the appellant.
David L. Walling, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for the appellee.
Before TACHA, McKAY, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge. Defendant Coyette Johnson appeals his convictions of being a felon in
possession of a firearm, being an unlawful user of controlled substances in
possession of a firearm, and distribution of a controlled substance, and his
concurrent sentences of 237 months’ imprisonment. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291, and affirm in part, reverse in part, and remand with
instructions to vacate Johnson’s conviction for being an unlawful user of
controlled substances in possession of a firearm.
I.
Johnson was convicted of a felony in Wichita County, Texas, in 1994. In
late July or early August 1995, he and his girlfriend LaKeitha Diggs moved to
Temple, Oklahoma. They initially lived with Diggs’ mother and her mother’s
other three children. During their stay at Diggs’ mother’s house, Johnson smoked
marijuana on a daily basis. He also possessed a 9mm Intratec Tec-9 semi-
automatic handgun, which he stored in a paper sack on the floor of the closet in
one of the children’s rooms. He talked about the handgun on a regular basis with
Diggs’ mother’s sons and other young men who came to the house. In late
August 1995, Johnson and Diggs moved into a house approximately three blocks
from Diggs’ mother’s house. They continued to visit Diggs’ mother’s house on a
daily basis, Johnson continued to smoke marijuana on a regular basis, and
Johnson was seen regularly in possession of the handgun.
-2- On October 18, 1995, the local drug task force arranged for Barbara
Watkins, an informant, to attempt a controlled narcotics purchase from Johnson.
Watkins met task force agents at Mooney Lake near Temple and the agents
searched her car, placed a body microphone on her, and provided her with cash to
make the purchase. Watkins, who is Caucasian, picked up Stella Sparks, who is
African-American, because she believed it would increase the chances of making
a narcotics purchase from Johnson, who is also an African-American. Sparks did
not know Watkins was going to make a controlled purchase. Watkins and Sparks
went to Diggs’ mother’s house where Johnson agreed to sell Watkins three rocks
of cocaine for $40. After Watkins and Sparks left the house and returned to the
car, Sparks took one of the rocks of cocaine and walked away. Watkins returned
to Mooney Lake and turned over the remaining rocks of cocaine to the agents. A
chemist at the Oklahoma State Bureau of Investigation confirmed the substance
was cocaine, but he did not determine whether it was cocaine hydrochloride or
cocaine base.
Later that same evening, Johnson was socializing with several other people
at Diggs’ mother’s house when Sandra Mims arrived and informed them she had
argued with Johnny Green and he pulled a knife on her. A group of nine or ten of
them left the house in Mims’ car to find Green. Some rode inside the car and
others rode on the hood of the car. They first went to Ruby’s Cafe but Green was
-3- not there. The group then proceeded, some in the car and some on foot, to
Green’s house. They flagged down Jimmy Franklin, and Mims’ daughter
Shatauna Elicks got out of the car, began swinging her arms at him, and asked
Franklin if he knew who had “jumped” her mother. Johnson also got out of the
car, walked to the front of Franklin’s car, aimed his handgun at Franklin, and said
something to the effect of “I am going to get this brother. I am going to kill this
nigger.” R. III at 162. Franklin heard gunshots, realized his passenger window
had been shot, and ducked down in the seat and hit the accelerator pedal. When
he looked up, he saw Johnson on the hood of his car, holding onto the hood with
his left hand and holding his gun in his right hand. Johnson told Franklin to stop
but, after briefly stopping his car, Franklin again hit the accelerator pedal and
drove in an erratic fashion until Johnson fell off the hood of the car. Franklin
noticed Johnson’s handgun was lodged between the hood of the car and the
windshield so he reached his hand out the window and grabbed the gun. He then
drove downtown where he located a police officer and told her what had
happened. Officers determined the gun was loaded. They examined Franklin’s
car and found deep scratches on the hood. Although a bullet was retrieved from
the driver’s seat of the car, subsequent testing determined the bullet had not been
fired by Johnson’s gun.
-4- A grand jury returned a three-count indictment against Johnson, charging
him in Count 1 with being a felon in possession of a firearm (18 U.S.C. §
922(g)(1)), in Count 2 with being an unlawful user of controlled substances in
possession of a firearm (18 U.S.C. § 922(g)(3)), and in Count 3 with distribution
of a controlled substance (21 U.S.C. § 841(a)(1)). Although the district court did
not require the government to elect between Count 1 and Count 2 prior to trial, it
concluded that if Johnson was convicted on both counts, it would sentence him on
only one count. Johnson was convicted by jury on all three counts and was
sentenced to 237 months’ imprisonment. The court sentenced him on only one of
the 922(g) counts, but the convictions on both counts remain in place.
II.
Denial of pretrial motions to dismiss
Johnson contends the district court erred in denying his pretrial motions to
dismiss. Johnson sought dismissal of Counts 1 and 2 as multiplicitous, and
dismissal of Count 2 because the charging statute was void for vagueness.
Although he acknowledges he was not punished for Count 2, he argues the alleged
error was prejudicial because it allowed the government to introduce evidence at
trial concerning a prior felony conviction and his drug usage.
-5- Multiplicity
Multiplicity refers to multiple counts of an indictment which cover the
same criminal behavior. United States v. Morehead, 959 F.2d 1489, 1505 (10th
Cir. 1992). “While multiplicity is not fatal to an indictment, . . . it poses the
threat of multiple sentences for the same offense and may improperly suggest to
the jury that the defendant has committed more than one crime.” Id. (citation
omitted). The threat of multiple sentences for the same offense raises double
jeopardy implications. Id. We review claims of multiplicity de novo. United
States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir. 1997).
Counts 1 and 2 both charged Johnson with knowingly possessing the Tec-9
handgun “[f]rom on or about July 1, 1995, up to and including on or about
October 18, 1995.” R. I, doc. 1. The only distinction between the counts is that
Count 1 alleged Johnson had been convicted of a felony and had violated 18
U.S.C. § 922(g)(1), whereas Count 2 alleged he was an unlawful user of
controlled substances and had violated 18 U.S.C. § 922(g)(3). In denying
Johnson’s pretrial motion to dismiss one of the counts, the district court
concluded “it was not the intention of Congress to provide for the punishment of
a defendant under two or more separate subdivisions of § 922(g).” Id., doc. 35 at
5. However, the court concluded the government was not required to elect
between the two counts because it was possible Johnson “could be found guilty of
-6- one count without necessarily being guilty of the other.” Id. The court concluded
if Johnson was found guilty of both counts, judgment would be entered on only
one count to avoid dual punishment. Id. (citing Ball v. United States, 470 U.S.
856, 865 (1985)). Johnson was convicted on both § 922(g) counts and sentenced
on one count (Count 1), but the record on appeal indicates both convictions
remain in place.
Three circuits have addressed multiplicity arguments raised by defendants
who, like Johnson, were simultaneously charged with multiple firearm violations
under different subsections of § 922(g). In United States v. Peterson, 867 F.2d
1110 (8th Cir. 1989), one codefendant was convicted of three counts of unlawful
possession of firearms and ammunition by a convicted felon, in violation of §
922(g)(1), and one count of unlawful possession of firearms and ammunition by a
user of controlled substances, in violation of § 922(g)(3). 1 In rejecting the
multiplicity argument, the Eighth Circuit held multiple firearm violation counts
charged under different subsections of § 922(g) but arising out of the same
pattern of conduct were not multiplicitous because, under Blockburger v. United
States, 284 U.S. 299, 304 (1932), the counts each required at least one unique
element of proof.
1 Unfortunately, the opinion provides little detail concerning the facts of the case. In particular, it is unclear whether the (g)(3) charge was based on possession of the same firearm and at the same time as one of the (g)(1) charges.
-7- In United States v. Winchester, 916 F.2d 601 (11th Cir. 1990), defendant
was convicted and sentenced for violations of § 922(g)(1) (felon in possession of
firearm) and (g)(2) (fugitive from justice in possession of firearm), arising out of
the same conduct (i.e., possession of a single firearm). On appeal, defendant
argued the counts were multiplicitous and he should not be sentenced for both.
The Eleventh Circuit agreed, concluding “that, in enacting section 922(g), it was
not within Congress’ comprehension or intention that a person could be
sentenced, for a single incident, under more than one of the subdivisions of
section 922(g).” Id. at 606. Although the court acknowledged that each offense
required proof of a fact the other did not, it distinguished Blockburger on two
grounds. First, the court noted the defendant in Blockburger was convicted and
sentenced under two different statutory sections while the defendant in
Winchester was convicted under two different subsections of the same statute. 2
2 Although the discussion of this point is conclusory, it appears to be supported by Supreme Court precedent and other circuits. For example, in Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978), the Court noted the Blockburger “same evidence” test is “used to determine whether a single transaction may give rise to separate prosecutions, convictions, and/or punishments under separate statutes.” Similarly, in Ball v. United States, 470 U.S. 856, 861 (1985), the Court emphasized that “[t]he assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes.” See also United States v. Kimbrough, 69 F.3d 723, 729 n.5 (5th Cir. 1995) (Blockburger test “applies to determinations of whether Congress intended the same conduct to be punishable under two criminal provisions,” and is inapplicable where multiple counts are charged under “the same criminal provisions”), cert. denied 116 S. Ct. 1547 (1996).
-8- Second, the court concluded Blockburger only provided guidance in determining
congressional intent and was therefore inapplicable because “[t]he statutory
language and legislative history of the Gun Control Act of 1968 [§ 922(g)]
reveal[ed] that Congress’ intent was to prohibit the possession of firearms by
classes of individuals it deemed dangerous, rather than to punish persons solely
for having a certain status under the law.” Id. In addition, the court concluded
any other interpretation of § 922(g) “would lead to [the] anomalous and draconian
result” of allowing a defendant having more than one of the statuses listed in the
various subdivisions to be sentenced consecutively for the same incident. Id. at
607.
In United States v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993), the Fifth
Circuit acknowledged and agreed with Winchester. Although the Fifth Circuit
had originally applied Blockburger and upheld multiple sentences under various
subsections of § 922(g), see United States v. Munoz-Romo, 947 F.2d 170 (5th
Cir. 1991), defendant filed a petition for writ of certiorari and, in response, the
Solicitor General of the United States changed positions, confessed error, and
urged that the case be remanded for dismissal of one of the counts. The Supreme
Court granted certiorari, vacated the judgment, and remanded for further
consideration in light of the position asserted by the Solicitor General. On
remand, the Fifth Circuit concluded that “Congress, by rooting all the [firearm
-9- possession] offenses in a single legislative enactment and including all the
offenses in subsections of the same statute, signaled that it did not intend multiple
punishments for the possession of a single weapon.” 989 F. 2d at 759. The court
further concluded the test in Blockburger for determining legislative intent was
not controlling because “Congress intended to describe only a single crime that
could be committed by seven types of offenders.” Id.
In light of the more persuasive reasoning contained in Winchester and
Munoz-Romo, and in light of the Solicitor General’s position maintained in
Munoz-Romo, we conclude Counts 1 and 2 are multiplicitous and that Johnson
can only be convicted and punished for one of the § 922(g) counts. Although
Johnson was properly sentenced on only one count, both convictions remain in
place. Accordingly, we remand this case to the district court with instructions to
vacate Johnson’s conviction on Count 2.
The only remaining question is whether the district court erred in refusing
to require the government to elect between the two firearm counts prior to trial.
A decision of whether to require the prosecution to elect between multiplicitous
counts before trial is within the discretion of the trial court. See United States v.
Throneburg, 921 F.2d 654, 657 (6th Cir. 1990); United States v. Phillips, 962 F.
Supp. 200, 201 (D.D.C. 1997). The risk of a trial court not requiring pretrial
election is that it “may falsely suggest to a jury that a defendant has committed
-10- not one but several crimes.” United States v. Duncan, 850 F.2d 1104, 1108 n.4
(6th Cir. 1988); see also United States v. Marquardt, 786 F.2d 771, 778 (7th Cir.
1986) (multiple indictments create the impression of more criminal activity than
in fact occurred). “Once such a message is conveyed to the jury, the risk
increases that the jury will be diverted from a careful analysis of the conduct at
issue,” and will reach a compromise verdict or assume the defendant is guilty on
at least some of the charges. United States v. Clarridge, 811 F. Supp. 697, 702
(D.D.C. 1992).
We conclude the district court did not abuse its discretion in denying
Johnson’s pretrial motion to dismiss one of the § 922(g) counts. As the court
noted, the possibility (albeit slim) existed that Johnson could be convicted on one
count and acquitted on the other. Even if the court’s denial of the motion could
be considered an abuse of discretion, it is clearly harmless in this case. See
United States v. Lane, 474 U.S. 438, 449 (1986) (misjoinder of counts does not
require reversal if it can be regarded as harmless error). The evidence of
Johnson’s guilt on all of the counts was overwhelming. There is little if any risk
that the evidence pertaining to the multiple firearm counts resulted in the jury
reaching a compromise verdict or in assuming Johnson’s guilt on one or more of
the counts.
-11- Vagueness
Count 2 of the indictment charged Johnson with violating § 922(g)(3),
which makes it “unlawful for any person . . . who is an unlawful user of or
addicted to any controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)) . . . to . . . possess . . . any firearm.” According
to Johnson, the statute is unconstitutionally vague because it fails to define the
term “unlawful user of . . . any controlled substance” and does not require a nexus
in time or place between the use and possession of a firearm. As we are reversing
Johnson’s conviction on Count 2 and remanding with instructions to vacate that
conviction, it is unnecessary for us to address this vagueness issue.
Denial of pretrial motion to sever counts
Johnson contends the district court erred in denying his pretrial motion to
sever Counts 1 and 2 from Count 3 at trial. Under Fed. R. Crim. P. 8(a), joinder
of offenses is permitted if the offenses “are of the same or similar character or are
based on the same act or transaction or on two or more acts or transactions
connected together or constituting parts of a common scheme or plan.” Although
alleged misjoinder under Rule 8 is a question of law subject to de novo review,
we construe Rule 8 broadly to allow liberal joinder to enhance the efficiency of
the judicial system. United States v. Janus Indus., 48 F.3d 1548, 1557 (10th Cir.
-12- 1995). Aside from the provisions of Rule 8, a district court has discretion to
sever under Fed. R. Crim. P. 14 if it appears defendant will be prejudiced by
joinder of the offenses. Whether to grant severance under Rule 14 rests within
the discretion of the district court and the burden on defendant to “‘show an abuse
of discretion in this context is a difficult one.’” Id. (quoting United States v.
Valentine, 706 F.2d 282, 290 (10th Cir. 1983)). Prejudicial joinder occurs under
Rule 14 when an individual’s right to a fair trial is threatened or actually
deprived. United States v. Holland, 10 F.3d 696, 699 (10th Cir. 1993).
We conclude joinder of the offenses here was proper under Rule 8 because
the handgun was arguably related to and part of Johnson’s drug trafficking
scheme. Although there was no evidence that Johnson actually used or carried the
handgun when he sold cocaine to Watkins on the night of October 18, 1995, there
was evidence he had made previous sales of drugs in Temple. It was reasonable
for the jury to infer the handgun aided or assisted him in those transactions. See
United States v. Hubbard, 61 F.3d 1261, 1270 (7th Cir. 1995) (“natural
inferences” may be drawn from contemporaneous possession of guns and drugs
because “the firearm is an indication of drug activity, and participation in drug
trafficking supplies a motive for having the gun”), cert. denied 116 S. Ct. 1268
(1996); United States v. Hollis, 971 F.2d 1441, 1457 (10th Cir. 1993) (possession
of firearm was part of drug trafficking scheme). Moreover, law enforcement
-13- officers took possession of the handgun within hours of Johnson making the
cocaine sale to Watkins on October 18, 1995. See United States v. Cox, 934 F.2d
1114, 1119 (10th Cir. 1991) (joinder of marijuana distribution offenses with
possession of firearm offenses proper where firearm was seized at same time and
same place officers seized marijuana).
Finally, we conclude the district court did not abuse its discretion by
denying severance under Rule 14. The court’s order suggests it considered
possible prejudice from a single trial on all counts against expense and
inconvenience of separate trials and decided severance was not required. Nothing
Johnson has presented demonstrates this was an abuse of discretion. See
generally Hollis, 971 F.2d at 1457 (“The district court was not required to sever
the counts simply because . . . the ‘defendant might have a better chance for
acquittal by separate trials.’”). Moreover, even assuming the court did abuse its
discretion, Johnson has not demonstrated actual prejudice resulting from a single
trial. The evidence of Johnson’s guilt on Count 3 was overwhelming. It was
uncontroverted that Watkins went to Diggs’ mother’s house on October 18, 1995,
where she met with Johnson and left with three rocks of cocaine. Although
Johnson attempted to call into question the identity of the person who sold
cocaine to Watkins, Watkins testified at trial and unequivocally identified
Johnson as the person who had sold the cocaine to her. Accordingly, there is no
-14- indication that joinder of the firearms offenses or introduction of evidence
concerning those offenses influenced the jury’s verdict on Count 3.
Jury instructions regarding distribution count
Johnson contends the district court erred in refusing to give his proposed
instruction to the effect that it was the government’s responsibility to prove
beyond a reasonable doubt that the substance sold to Watkins was in fact cocaine
base as alleged in the indictment. Count 3 alleged that Johnson distributed
“approximately .18 grams of a mixture or substance containing a detectable
amount of cocaine base, a Schedule II controlled substance.” R. I, doc. 1 at 2
(emphasis added). The district court rejected Johnson’s proposed instruction and
instructed the jury that it must find beyond a reasonable doubt that Johnson
distributed a “controlled substance.”
We find United States v. Deisch, 20 F.3d 139 (5th Cir. 1994), persuasive.
In Deisch, the Fifth Circuit addressed and rejected an argument similar to that
now urged by Johnson. The court concluded “that the identity of the involved
controlled substance as being ‘cocaine base’ rather than simply ‘cocaine’ is not an
element of any section 841(a)(1) offense.” Id. at 151. Instead, the court held:
“For a section 841(a)(1) offense involving cocaine base the indictment need only
allege, and the jury need only find, that the substance was cocaine, and whether or
-15- not it was the ‘cocaine base’ form of cocaine is purely a sentencing factor.” Id.;
see also United States v. Levy, 904 F.2d 1026, 1034 (6th Cir. 1990) (“Under
section 841(b)(1)(B), the district court determines the quantity and type of
controlled substance for the purpose of sentencing.”).
Here, the jury was instructed that to find Johnson guilty on the distribution
charge, it must find he distributed “a controlled substance,” “knew that he
distributed a controlled substance,” and “intended to distribute the controlled
substance.” R. I, doc. 46, instr. 25. The jury was further instructed that it was
“not necessary for the government to prove that [Johnson] knew the precise nature
of the controlled substance that was distributed.” Id., instr. 26. Finally, the jury
was instructed cocaine was a “controlled substance[] under federal law.” Id.,
instr. 27. These instructions are clearly consistent with Deisch and required the
jury to determine Johnson knew he was distributing a controlled substance and
intended to distribute a controlled substance. No more was required under Deisch
and, more importantly, no more is required to prove a violation of § 841(a)(1).
The district court did not err in rejecting Johnson’s tendered instruction.
Sufficiency of evidence
Johnson contends the evidence at trial was insufficient to support his
convictions. Sufficiency of the evidence is a question of law subject to de novo
-16- review. United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). Evidence is
sufficient to support a conviction if the evidence and reasonable inferences drawn
therefrom, viewed in the light most favorable to the government, would allow a
reasonable jury to find defendant guilty beyond a reasonable doubt. Id. In
examining the evidence, “we evaluate the sufficiency of the evidence by
‘consider[ing] the collective inferences to be drawn from the evidence as a
whole.’” Id. (quoting United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.
1986)). We will not overturn a jury’s finding unless no reasonable juror could
have reached the disputed verdict. United States v. Chavez-Palacios, 30 F.3d
1290, 1293 (10th Cir. 1994).
To support a felon in possession of a firearm conviction under § 922(g)(1),
the evidence must demonstrate defendant was a convicted felon, defendant
knowingly possessed a firearm, and the firearm traveled in or affected interstate
commerce. See United States v. Capps, 77 F.3d 350, 352 (10th Cir.), cert. denied
116 S. Ct. 2568 (1996). Johnson stipulated he was a convicted felon. The
evidence overwhelmingly demonstrated he possessed a Tec-9 handgun from the
time he moved to Temple in late July 1995 until October 18, 1995, when it was
recovered by officers. It was uncontroverted that the handgun had been
manufactured in Florida and had thus traveled in interstate commerce to reach
-17- Oklahoma. Viewed in the light most favorable to the government, this evidence
is sufficient to support Johnson’s conviction on Count I.
“Pursuant to the plain language of § 841(a)(1), the essential elements of a
prima facie case of distribution of a controlled substance are: (1) knowing or
intentional; (2) distribution; (3) of a controlled substance.” United States v.
Santistevan, 39 F.3d 250, 255 (10th Cir. 1994). “Distribution” has been defined
by Congress as a “delivery,” which encompasses “the actual, constructive, or
attempted transfer of a controlled substance.” Id. Watkins testified that she and
Sparks went to Diggs’ mother’s house and negotiated the purchase of $40 worth
of cocaine from Johnson. Law enforcement officers corroborated Watkins’
testimony and verified that the substances purchased from Johnson were cocaine.
Although defense counsel attempted to raise doubts concerning identity of the
person who sold the cocaine to Watkins, given Watkins’ in-court identification of
Johnson as the person she dealt with, the jury had an evidentiary basis for
concluding Johnson was the person who sold the cocaine to Watkins. Viewed in
the light most favorable to the government, this evidence is sufficient to support
Johnson’s conviction on Count 3.
-18- Outrageous governmental conduct
Johnson contends the district court erred in denying his motion for
judgment of acquittal on Count 3 for outrageous governmental conduct.
Specifically, he complained that after Watkins made the controlled purchase of
cocaine, officers knowingly allowed her to distribute one of the rocks of cocaine
to Sparks. He argued it was outrageous conduct for the government to condone
this illegal conduct.
In considering a claim of outrageous governmental conduct, our scope of
review is de novo. United States v. Sneed, 34 F.3d 1570, 1576 (10th Cir. 1994).
The defense of outrageous governmental conduct is based on the Due Process
Clause of the Fifth Amendment. Id. Unlike the defense of entrapment, which
considers predisposition of defendant to commit the crime, the defense of
outrageous governmental conduct looks only at governmental conduct. Id. at
1576-77. To date, courts recognizing the outrageous conduct defense “have not
attempted to attach a precise definition to its requirements.” United States v.
Lacey, 86 F.3d 956, 964 (10th Cir.), cert. denied 117 S. Ct. 331 (1996). “Rather,
the relevant inquiry is whether, considering the totality of the circumstances in
any given case, the government’s conduct is so shocking, outrageous and
intolerable that it offends ‘the universal sense of justice.’” Id. We have
previously emphasized the defense “is an extraordinary [one] reserved for only
-19- the most egregious circumstances,” and “is not to be invoked each time the
government acts deceptively or participates in a crime that it is investigating.”
United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992).
The facts Johnson points to in support of his contention are essentially
uncontroverted. After making the controlled purchase from Johnson, Watkins
gave one of the three rocks of cocaine to Sparks before meeting with drug task
force agents. However, this fact must be considered in light of other evidence
presented at trial. Watkins testified she had previously attempted to make a
controlled purchase from Johnson but was unsuccessful because he believed she
was a “snitch.” She decided to ask Sparks to accompany her with the hope that
Sparks’ presence would convince Johnson to make a sale. Sparks was unaware
that Watkins was an informant or that a controlled purchase was taking place.
When she returned to Mooney Lake, Watkins informed the agents that she had
given Sparks a rock of cocaine. Although the agents testified they would have
preferred her not giving Sparks a rock of cocaine, they concluded it was Watkins’
“only way out” of the situation. Considering all of these facts together, we reject
Johnson’s outrageous conduct defense. Although Watkins violated the law, the
government’s acknowledgment of this conduct was not “so shocking, outrageous
and intolerable” as to “offend[] the universal sense of justice.” Lacey, 86 F.3d at
964. Moreover, the alleged outrageous conduct had no connection to Johnson.
-20- The government did not induce Johnson to become involved in drug distribution
for the first time, nor did it substantially coerce him into committing the crime.
See Mosley, 965 F.2d at 911 (“two factors . . . form the underpinning for most
cases where the outrageous conduct defense has been upheld: government
creation of the crime and substantial coercion”); see also Sneed, 34 F.3d at 1577-
78.
Sentence enhancement
Johnson challenges the district court’s decision to sentence him as a career
criminal under 18 U.S.C. § 924(e)(1). The government filed a notice of its intent
to seek sentence enhancement prior to trial. After trial, Johnson objected on the
grounds that three of the four convictions listed in the government’s notice were
controlled substances offenses that occurred in Wichita Falls, Texas, on March
23, March 26, and August 26, 1993; that the offenses “were part of the same
course of conduct or common scheme or plan”; and that the offenses should be
treated as a single conviction for purposes of § 924(e)(1).
We review de novo a sentence enhancement imposed under the Armed
Career Criminal Act. United States v. Romero, 122 F.3d 1334, 1340 (10th Cir.
1997); see also United States v. Murphy, 107 F.3d 1199, 1208 (6th Cir. 1997)
(“Since determining whether the conduct was a single occasion or multiple
-21- occasions presents a legal question concerning the interpretation of a statute, we
review the district court’s decision de novo.”). The government carries the
burden of proving by a preponderance of the evidence that an enhancement is
appropriate. Id. The Act authorizes an enhanced prison term for a defendant who
is convicted of being a felon in possession of a firearm, who has “three previous
convictions by any court . . . for a violent felony or a serious drug offense, or
both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1)
(emphasis added); see Romero, 122 F.3d at 1340.
We have not considered the precise question raised by Johnson--whether
multiple drug offenses, committed close in time, constitute a single conviction or
multiple convictions for purposes of § 924(e)(1). However, we have analyzed §
924(e)(1) on numerous occasions and adopted the view, which is shared by most
other circuits, that the statutory reference to offenses “committed on occasions
different from one another” “was intended to reach multiple criminal episodes
distinct in time.” United States v. Tisdale, 921 F.2d 1095, 1098-99 (10th Cir.
1991) (concluding three separate burglary offenses had occurred for purposes of §
924(e)(1) when defendant broke into a shopping mall and burglarized two private
businesses and a post office); see also United States v. Green, 967 F.2d 459, 461-
62 (10th Cir. 1992) (reaffirming Tisdale and rejecting notion that § 924(e)(1)
requires predicate convictions to be result of separate judicial proceedings).
-22- At least five other circuits have addressed and rejected the precise question
raised by Johnson. In United States v. Maxey, 989 F.2d 303, 306 (9th Cir. 1993),
the defendant urged the court “to apply the single criminal episode rule to
multiple drug offenses differently from violent felonies.” Specifically, the
defendant argued “that convictions that result from a continuous, ongoing
business of selling drugs should comprise a single criminal episode for purposes
of section 924(e).” Id. The Ninth Circuit rejected this argument and held “that
no less than violent felonies, drug offenses committed at distinct, different times
are separate predicate offenses for purposes of section 924(e),” id. at 307, “even
if committed within hours of each other, similar in nature, and consolidated for
trial or sentencing.” Id. at 306. The court concluded two sales of PCP-laced
cigarettes that occurred in the same state and county within twenty-four days of
each other were separate offenses for purposes of § 924(e)(1). Id. at 305-06. See
also United States v. Kelley, 981 F.2d 1464, 1473-74 (5th Cir. 1993) (two
deliveries of cocaine two weeks apart in different counties were separate offenses
for purposes of § 924(e)(1)); United States v. Samuels, 970 F.2d 1312, 1315 (4th
Cir. 1992) (two drug offenses one day apart were separate offenses for purposes
of § 924(e)(1)); United States v. Roach, 958 F.2d 679, 683-84 (6th Cir. 1992)
(three drug sales on March 11, 12, and 26, 1981, were separate offenses for
purposes of § 924(e)(1)); United States v. McDile, 914 F.2d 1059, 1061-62 (8th
-23- Cir. 1990) (sales of drugs on September 15, November 15, 17, and 23, 1983, were
separate offenses for purposes of § 924(e)(1)).
Having already adopted and applied the “single criminal episode” rule in
other contexts, we find it appropriate to follow the Fourth, Fifth, Sixth, Eighth,
and Ninth Circuits (all of whom have adopted the “single criminal episode” rule)
and apply the rule to cases such as the one at bar involving prior drug offenses.
The result is that drug offenses committed at “distinct, different times” will be
treated as separate predicate offenses for purposes of § 924(e)(1).
Applying the “single criminal episode” rule here, we conclude the three
underlying drug convictions constitute separate offenses for purposes of §
924(e)(1). The presentence report indicated that, on March 23, 1993, Johnson
approached an undercover officer in Wichita Falls, Texas, and sold him a quantity
of crack cocaine for $20. Three days later he again approached an undercover
officer and sold him a quantity of crack cocaine for $20 (the report does not
indicate whether it was the same officer). Finally, on August 26, 1993, he
committed a third, similar offense by delivering $20 worth of crack cocaine to an
undercover officer. Although the three offenses were similar in nature, they were
clearly distinct in time and separate criminal episodes for purposes of § 924(e)(1).
-24- III.
We AFFIRM Johnson’s convictions on Counts 1 and 3, but REVERSE
Johnson’s conviction on Count 2 and REMAND the case to the district court with
instructions to VACATE that conviction. Because the district court did not
consider Count 2 in imposing Johnson’s sentence, we AFFIRM his sentence.
-25- No.96-6393, U.S. v. Johnson
TACHA, J., dissenting.
I respectfully dissent from that portion of the majority opinion that finds
the convictions on Counts I and II multiplicitous. I do not find in the language
and structure of 18 U.S.C. § 922(g) a clear Congressional intent not to impose
cumulative punishment when possession of a weapon violated more than one of
the subdivisions of subsection (g). Congress clearly expressed in the statutory
language the intent to bar possession of a firearm by the classes of persons that
Congress determined were dangerous. Nothing in the statutory language suggests
that because an individual defendant may be proved to fall into several categories,
Congress intended that the defendant should be punished under only one of the
enumerated subdivisions. The contrary is true and, for me, dictates that the
Blockburger test should apply. Clearly, each offense enumerated under the
subdivisions of section 922(g) requires proof of a fact that the other subdivisions
do not. The majority and the other circuits which the majority follows rely
largely on a statutory organization rationale and on the about-face of the Solicitor
General in United States v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993). Neither
of these reasons overcomes, for me, the clearly-stated statutory provisions
delineating separate enhancements and requiring different proof of the elements
of each to which the Blockburger test should be applied. I would follow the Eighth Circuit in United States v. Peterson, 867 F.2d 1110, 1115 (8th Cir. 1989)
for the reasons ably stated by Judge Barksdale in the dissent in Munoz-Romo.
See 989 F.2d at 760 (Barksdale, J., dissenting).
-2-