United States v. Johnson

655 F.3d 594, 2011 U.S. App. LEXIS 16517, 2011 WL 3506098
Court of Appeals for the Seventh Circuit·Decided August 11, 2011·No. 10-1762, 10-2230·Published·Cited by 53 cases

Opinion

MANION, Circuit Judge.

After a two-year investigation, Scott Johnson was indicted and eventually convicted on charges arising from a large cocaine-dealing conspiracy that he ran; he was sentenced to life in prison. His girlfriend, Lisa Lamb, was convicted on a lesser charge of obstructing justice for destroying cocaine base to prevent its discovery by the government and its use against her and Johnson in a criminal prosecution. Both appeal. Johnson challenges the district court’s refusal to suppress certain evidence, to give requested jury instructions, and to order a mistrial based on a comment by the prosecutor during opening statements. Lamb argues that the criminal statute under which she was convicted does not apply to her conduct. She also challenges her sentence. We affirm the convictions and sentences in all respects.

I.

In 2006, federal law enforcement authorities began investigating Scott Johnson. As part of the investigation, the Drug Enforcement Agency observed three properties in Washington Park, Illinois, linked to Johnson: his restaurant (the Best Fish House), his residence (the State Street residence), and another residence that he used as a distribution point for cocaine (the Westmoreland residence). Based on its surveillance, records from the utility company, and information from four confidential informants, the government linked Johnson, along with his associates and his girlfriend Lisa Lamb, and these three properties to cocaine dealing. In early April 2008, federal agents coordinated a controlled purchase of cocaine from Johnson at the Westmoreland residence by one of the confidential informants. That informant met with Johnson and returned with 250 grams of cocaine. On the same day, agents stopped a vehicle they observed leaving the Westmoreland residence and recovered 125 grams of cocaine. Based on the evidence gained from the four confidential informants and direct surveillance, a magistrate judge issued search warrants for all three properties in question.

While observing the Westmoreland residence on the day of the controlled purchase, agents had seen Johnson come and go several times. When they attempted to stop his vehicle, Johnson led the agents on a high-speed chase. Agents eventually apprehended Johnson and discovered $16,400 in cash on his person. They then took him with them while they executed the search warrants. At the Best Fish House, agents discovered a large amount of money and several firearms. And at the State Street residence they found a vacuum heat sealer and a big bag of rubber bands — items commonly used in processing cocaine for distribution. During this period, Johnson made several incriminating confessions: he had received seven kilograms of cocaine *599 the day before and had already sold it all; and he had distributed another ten to twelve kilograms in the past two to three weeks.

During Johnson’s chase, some agents attempted to execute the search warrant at the Westmoreland residence. At that time, Lamb and Johnson’s brother were still at the residence. When one agent approached and knocked on the door, Lamb answered through an iron gate on the door and refused to let him in, demanding a copy of the search warrant (which was with other agents at the time). The agent told her that he would obtain a copy of the warrant, but that she needed to remain in front of the open door, for his safety and to prevent the destruction of evidence. In response, Lamb slammed the metal inner door. It took agents between 20 and 30 minutes — and the assistance of local police and firefighters, who eventually cut out the entire door frame— to breach the house. During that time, agents heard toilets flushing and saw Lamb standing at the kitchen sink, where she was apparently washing dishes. When the agents finally entered the house, they discovered a glass measuring dish with cocaine base residue on it. They also found typical tools of the cocaine and crack trafficking trade in the house, including small plastic bags, scales, and latex gloves.

Both Johnson and Lamb were indicted. Johnson was charged with distributing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Lamb was charged with obstruction of justice in violation of 18 U.S.C. § 1512(c)(1). Both were also charged with a conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, but the government dropped that count against Lamb on the eve of trial. 1

Before trial, Johnson moved to suppress the evidence recovered from the Westmoreland residence, arguing that the search warrant was not supported by probable cause. The district court denied the motion. The sixteen-page affidavit in support of the application detailed an extensive investigation that supported a finding of probable cause. Lamb moved to sever her case from Johnson’s, but the district court denied the motion. Lamb was still charged as a co-conspirator at the time, and she did not renew her motion once that conspiracy charge had been dropped.

During opening statement, the prosecutor initially overstated the quantity of cocaine the government had found. Rather than the 375 grams recovered from purchases on the day of the arrest, the prosecutor referred to 5 kilograms. The misstatement was corrected immediately, and no evidence was presented that the government had discovered so much cocaine. Johnson unsuccessfully moved for a mistrial. Johnson’s main associate testified about an extensive cocaine distribution conspiracy. Others who had purchased cocaine from Johnson testified, including the informant who had made a controlled purchase on the day of Johnson’s arrest. Federal agents told the jury about the investigation and Johnson’s confessions.

Against Lamb, the agents testified about her actions when they tried to search the Westmoreland residence. The jury also heard from an associate of Johnson that Lamb had often been present when Johnson picked up and sold cocaine.

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United States v. Johnson, 655 F.3d 594, 2011 U.S. App. LEXIS 16517, 2011 WL 3506098 (7th Cir. 2011).

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