United States v. Tom B. Johnson, Jr. ( 1996 )

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No. 95-3927
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Tom Boston Johnson, Jr., * [UNPUBLISHED]
*
Appellant. *
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Submitted: July 26, 1996
Filed: August 2, 1996
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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Tom Boston Johnson appeals his
conviction and resulting 89-month sentence imposed by the district court,1
after a jury found him guilty of possessing crack cocaine with intent to
distribute within 1,000 feet of a school, in violation of 21 U.S.C. §§
841(a)(1) and 860. We affirm.
Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and was granted leave to withdraw. Counsel argues that Johnson was
selectively prosecuted, and that insufficient evidence supported Johnson's
convictions. In a supplemental brief, Johnson argues that his conviction
violates the Double Jeopardy Clause, that police lacked a reasonable,
articulable suspicion for the initial stop which led to his arrest, and
that he was stopped only because he is an African-American.
1
The Honorable Charles R. Wolle, Chief Judge, United States
District Court for the Southern District of Iowa.
Viewed in a light most favorable to the government, the evidence was
sufficient to support Johnson's convictions. United States v. Quintanilla,
25 F.3d 694, 699 (8th Cir.) (standard of review), cert. denied, 115 S. Ct.
457 (1994). From the evidence presented, a reasonable jury could conclude
Johnson dropped a baggie of crack he knowingly possessed within 1,000 feet
of a school. Johnson's intent to distribute could reasonably be inferred
by the amount of crack, the fact it was broken up into individual rocks,
and testimony that this amount was much larger than that a typical user
would possess for personal use. See United States v. Lopez, 42 F.3d 463,
467 (8th Cir. 1994) (listing factors which lead to reasonable inference of
intent to distribute).
As to Johnson's selective prosecution claim, Johnson has not shown
plain error, because he has not produced "clear and convincing evidence"
that the decision to prosecute him was motivated by a discriminatory
purpose. See United States v. Armstrong, 116 S. Ct. 1480, 1486-87 (1996);
Fritz v. United States, 995 F.2d 136, 137 (8th Cir. 1993) (plain error
review for issue not raised below), cert. denied, 114 S. Ct. 887 (1994).
Johnson also has not shown plain error as to his claims that officers
had no probable cause to stop him, and that he was stopped only because he
is an African-American. Given the location of the lot where police
officers observed Johnson drop the baggie of crack, the time of night, and
the officers' observations of the actions of Johnson and his companions,
the officers had reasonable, articulable suspicion to detain Johnson for
a Terry-stop. See United States v. Dawdy, 46 F.3d 1427, 1429-30 (8th Cir.)
(reasonable suspicion determined on totality of circumstances; listing
factors that may lead experienced officer to stop individual), cert.
denied, 116 S. Ct. 195 (1995); United States v. Hawthorne, 982 F.2d 1186,
1190 (8th Cir. 1992) (although court "concerned" by Hawthorne's allegation
he was targeted because he
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was young black male, relevant facts supporting Terry-stop were non-race
based and sufficient to justify stop). Johnson has not raised an issue of
selective enforcement, as he has not shown that the officers did not stop
persons of a different race under similar circumstances, or that their
decision to stop him was at least partially based on his race. Cf. United
States v. Bell, 1996 WL 333447, at *2 (8th Cir. June 19, 1996) (person
claiming unequal enforcement of facially neutral statute must show that
enforcement had discriminatory effect, and motivated by discriminatory
purpose).
Johnson's double jeopardy argument is baseless, because his sentence
was determined solely on the basis of the crack seized when he was
arrested, not on the prior conduct he refers to in his brief. We have
reviewed the record to determine whether any other nonfrivolous issues
exist, in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), and have
found no such issues. Johnson's motion for transcript copies is denied.
Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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