United States v. Clarence Johnson , 42 F. App'x 902 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1116
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United States of America, *
*
Appellee, *
*
v. *
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Clarence Johnson, also known as *
D-dog, *
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Appellant. *
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Appeals from the United States
No. 02-1145 District Court for the
___________ Southern District of Iowa.
[UNPUBLISHED]
United States of America, *
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Appellee, *
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v. *
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Frederick L. Roache, *
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Appellant. *
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Submitted: June 14, 2002
Filed: July 29, 2002
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Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
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PER CURIAM.
Frederick L. Roache and Clarence Johnson were charged with conspiracy to
distribute cocaine base and related offenses. Roache pleaded guilty to conspiracy to
distribute drugs and related offenses and now appeals the sentence imposed by the
district court.1 Johnson, who was found guilty by a jury of conspiracy to distribute
and possess with intent to distribute cocaine base and possession with intent to
distribute cocaine base, appeals from his conviction, contending that the district court
erred in denying his motion to suppress evidence. We affirm.
I.
On March 8, 2001, a confidential informant made a controlled purchase of
cocaine from Roache, who lived in the same apartment complex in Iowa City, Iowa,
as both the informant and Johnson’s girlfriend, Amy Vest. The informant went to
Roache’s apartment and then drove with him to another location in order to obtain the
cocaine. On March 14, 2001, the confidential informant contacted Roache and told
him she wanted to buy cocaine base. After the informant had returned to her
apartment, undercover policemen observed Roache go to Vest’s apartment, which
was used by Johnson. Roache entered Vest’s apartment, returned briefly to his
apartment, and then delivered the cocaine base to the informant. The policemen then
observed Johnson emerge from Vest’s apartment with a woman and drive to the
Lakeside Apartments in Iowa City.
1
The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
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Based on the drugs purchased by the confidential informant and the activity
observed by the policemen, the Iowa City police officers obtained search warrants for
Vest’s and Roache’s apartments. The search of Vest’s apartment uncovered photos
of Johnson and a letter bearing his name, as well as three bags of marijuana. A search
of Roache’s apartment uncovered pipes, rolling papers, a metal scale, and other drug
paraphernalia. Officers also encountered Roache’s wife, Patricia Roache, who
volunteered that Roache had accompanied Johnson to Chicago in order to purchase
drugs. Mrs. Roache made several phone calls to her husband on her cellular phone
during the course of his trip, which were monitored by the officers in an attempt to
determine Roache’s location.
When the vehicle driven by Roache reentered Iowa City, officers followed it
to the Lakeside Apartments, where Johnson got out. One officer was already
stationed at the apartment building and another followed Johnson after he exited
Roache’s vehicle. When Johnson reached the door to the apartment, one of the
officers greeted him. Johnson tried to run from the building, but was restrained by
the officers. A plastic bag containing 154 rocks of cocaine base was recovered from
the floor where Johnson had been lying after being restrained.
Roache pleaded guilty to conspiracy to distribute and possess with intent to
distribute cocaine base, distribution of cocaine, and distribution of cocaine base. He
was sentenced to 77 months’ imprisonment after the district court found that he was
responsible for the drugs he distributed to the confidential informant and for the drugs
that were found on Johnson after their trip to Chicago. On appeal, Roache argues that
he should not be held accountable for the drugs found on Johnson because he was
unaware that Johnson had purchased the drugs until they were returning to Iowa City.
At trial, Johnson moved to suppress the plastic bag containing the rocks of
cocaine base, arguing that the police did not have probable cause to stop and arrest
him. The district court denied this motion, and following the jury’s verdict sentenced
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Johnson to 262 months’ imprisonment on each of the two counts on which he was
convicted, with the sentences to run concurrently.
II.
Roache contends that the district court erred in determining the amount of
drugs attributable to him at sentencing because he should not be held responsible for
the amount of drugs purchased by Johnson during their trip to Chicago. We do not
agree. “We review the district court’s factual determinations leading to the
application of a sentence enhancement for clear error and its legal conclusions de
novo.” United States v. Cave, ___ F.3d ___, 2002 WL 1307106, *2 (8th Cir. June 10,
2002). The amount of drugs attributable to the defendant is a factual determination
for the sentencing court that is reviewed for clear error. United States v. Atkins, 250
F.3d 1203, 1211 (8th Cir. 2001).
The determination of drug quantity attributable to a defendant convicted of
conspiracy is determined as follows:
A defendant convicted of conspiracy is properly held accountable for all
reasonably foreseeable acts and omissions of any co-conspirator taken
in furtherance of the conspiracy. Thus, in a drug conspiracy, the district
court may consider amounts from drug transactions in which the
defendant was not directly involved, provided that those other dealings
were part of the same course of conduct or scheme. Before a quantity
of drugs may be attributed to a particular defendant, the sentencing court
is required to find by a preponderance of the evidence that the
transaction or activity involving those drugs was in furtherance of the
conspiracy and either known to that defendant or reasonably foreseeable
to him.
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Id. at 1211-1212 (quoting United States v. Brown, 148 F.3d 1003, 1008 (8th Cir.
1998)). The district court determined that Roache knew or had reason to suspect that
Johnson would be purchasing drugs in Chicago. The district court also found that
because Roache’s criminal background made him well acquainted with the drug
business, he should have known that his providing transportation to Johnson was a
criminal act. These findings are not clearly erroneous, and thus we affirm the
sentence.
III.
Johnson contends that the district court erred in denying his motion to suppress
the evidence found in the plastic bag lying next to him after his arrest. “While we
review the district court’s findings of fact for clear error, we review de novo the
district court’s ultimate finding of reasonable suspicion.” United States v. Dodson,
109 F.3d 486, 488 (8th Cir. 1997) (citing Ornelas v. United States, 517 U.S. 690,
699 (1996)). There is no violation of the Fourth Amendment if police officers have
reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30-31
(1968). To determine whether an officer had reasonable suspicion to stop a suspect,
we look at the “totality of the circumstances, in light of the officer’s experience.”
Dodson, 109 F.3d at 488. The Supreme Court defines “reasonable suspicion” as “‘a
particularized and objective basis’ for suspecting the person stopped of criminal
activity.” Ornelas, 517 U.S. at 696 (quoting United States v. Cortez, 449 U.S. 411,
417-18 (1981)).
The officers arresting Johnson knew that the previous day, Roache went to
Johnson’s girlfriend’s apartment shortly after agreeing to provide drugs to a
confidential informant. Roache then provided cocaine base to the informant shortly
after leaving Johnson’s girlfriend’s apartment, with only a brief stop at his own
apartment intervening. Johnson was seen exiting his girlfriend’s apartment minutes
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after this transaction. The police knew that Roache and Johnson had gone to Chicago
to buy drugs. When one of the officers greeted Johnson in the hallway of an
apartment building upon his return from Chicago, he attempted to run. See United
States v. Willis, 967 F.2d 1220, 1223 (8th Cir. 1992) (citing Sibron v. New York, 392
U.S. 40, 66 (1968) for the proposition that “deliberately furtive actions and flight at
the approach of strangers or law officers are strong indicia of mens rea”); see also
Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). These facts provided a substantial
basis for the officers’ belief that Johnson was involved in the transportation of drugs.
Accordingly, the district court did not err in denying the motion to suppress.
The judgments are affirmed.2
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
2
Johnson’s pending pro se motions are denied.
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