United States v. Melroy Johnson, Sr. ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1332
___________________________
United States of America
Plaintiff - Appellee
v.
Melroy Johnson, Sr.
Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Western
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Submitted: April 13, 2023
Filed: July 27, 2023
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Before LOKEN, SHEPHERD, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Melroy Johnson, Sr., was convicted by a jury of conspiracy to distribute and
possession with intent to distribute methamphetamine. On appeal, Johnson argues
that the district court1 erred by denying his motion to suppress and his motion for
1
The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa, adopting the report and recommendations of the
judgment of acquittal or a new trial, and in calculating the drug quantity for purposes
of sentencing.
I.
Early in 2019, law enforcement began an investigation after it learned of
several suspicious mailings between Kimberly Hansen in Sioux City, Iowa, and
Felton Fitzgerald in Orange, California. Inspector Ryan Brandt of the United States
Postal Service (USPS) reviewed USPS records and discovered that Hansen had
received 10 or 11 packages, totaling 40 pounds, from Fitzgerald, and that Hansen
had mailed 20 to 24 packages weighing less than a pound to Fitzgerald. Inspector
Brandt suspected that Fitzgerald was mailing Hansen drugs and that Hansen was
mailing money to Fitzgerald.
On June 6, 2019, Inspector Brandt and Sioux City Police Officer Eric Davis
intercepted a package sent by Fitzgerald as it was being delivered to Hansen’s home
and performed a “knock-and-talk” with Hansen. Hansen consented to a search of
the package, which contained roughly five pounds of methamphetamine. Hansen’s
phone records showed multiple communications between herself and Fitzgerald, and
she told the officers that the package’s intended recipient was Johnson. Hansen said
that Johnson typically gave her money to send back to Fitzgerald to pay for the
packages, and she received cocaine and cash from Johnson in exchange for her
participation in the arrangement. Hansen later identified Johnson from a three-
person lineup.
In the following months, Fitzgerald stopped sending packages to Hansen’s
address. But Inspector Brandt and Officer Davis continued to monitor mailings from
the Orange, California, area to the Sioux City area. Soon, Inspector Brandt noticed
a “money mailing” sent to Fitzgerald’s address from a new location in Sioux City,
Honorable Kelly K.E. Mahoney, Chief United States Magistrate Judge for the
Northern District of Iowa.
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and he suspected that the “drug mailings were continuing.” On August 2, 2019,
Inspector Brandt flagged “two sets” of suspicious packages he believed were mailed
by Fitzgerald under a fictitious name to an address in Sioux City. The first set had
already been delivered, but two other packages were still “in the mail stream” and
on their way to Sioux City. Officer Davis and Drug Enforcement Administration
agents surveilled the intended destination of these packages for about five hours but
were unable to identify the woman who picked up the packages or where she took
them.
On August 27, 2019, Inspector Brandt flagged another suspicious package
mailed from Fitzgerald to Sioux City. Agents intercepted the package, which
contained 4.6 pounds of methamphetamine. Agents repackaged the drugs and
planned a controlled delivery. The next day, Inspector Brandt, dressed as a postal
worker, delivered the package to the listed address, where he observed the same
unidentified woman from the August 2 delivery retrieve the package and take it into
her home. Agents identified the woman as Desiree Fredrickson and executed a
search warrant at her residence. During the search, agents saw methamphetamine
next to the opened package, and discovered they had missed a compartment inside
the package that contained five ounces of cocaine. Fredrickson and her then-
boyfriend, Shawn Hofer,2 were detained and interviewed by Inspector Brandt and
Officer Davis.
In separate post-Miranda interviews, Hofer and Fredrickson admitted to
retrieving these packages for a black man they nicknamed “Barbecue Dude” or
“Arkansas.” Hofer said that Barbecue Dude would inform Hofer when a package
was on its way from California, and once Hofer and Fredrickson retrieved the
package, they would call Barbecue Dude and take it over to his apartment. In
exchange, Barbecue Dude would advance one pound of methamphetamine to Hofer.
Hofer said that, prior to August 28, he and Fredrickson had received two other
2
Fredrickson and Hofer married in September 2019, and Fredrickson changed
her name to Desiree Hofer. For clarity, we will refer to her as Fredrickson.
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packages with drugs for Barbecue Dude. Hofer identified Johnson as Barbecue
Dude from a two-person lineup, while Fredrickson identified Johnson as the man
from a single-person lineup. Hofer and Fredrickson agreed to cooperate with
officers in a controlled delivery of the package to Johnson’s apartment.
Officers decided to conduct the controlled delivery to Johnson that same day.
They repackaged the drugs, and established surveillance around Johnson’s
apartment. Relying on the information Hofer and Fredrickson provided, Officer
Davis also prepared an affidavit that was used to obtain an anticipatory search
warrant for Johnson’s apartment. That evening, Hofer was equipped with an audio
recording device, and consistent with his and Fredrickson’s previous practice, they
called Johnson and told him they were on their way to his apartment with his
“shoes,” their code word for drugs. When Hofer and Fredrickson arrived at
Johnson’s apartment, Johnson welcomed them inside through his patio entrance.
Officers watched Hofer and Fredrickson enter with the package and heard the pair
ask Johnson, using coded language, whether the product was what Johnson expected.
Officers then entered Johnson’s apartment and executed the search warrant. When
Johnson saw the officers, he ran into a bathroom and attempted to dispose of the
drugs in the toilet. Officers recovered cocaine, some of the packaged
methamphetamine, and approximately $20,000 in cash from Johnson’s apartment.
On August 12, 2020, a federal grand jury returned a superseding indictment
charging Johnson with conspiracy to distribute a controlled substance, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851 (Count 1); possession with
intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 851 (Count 2); and possession with intent to distribute a controlled
substance and aiding and abetting the possession with intent to distribute, in
violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851 (Count
3). Fitzgerald, Hofer, and Fredrickson were charged as co-conspirators, and each
later pleaded guilty. Johnson pleaded not guilty. Before trial, Johnson moved to
suppress the evidence obtained from the search warrant executed on his apartment,
which the district court denied, and the case proceeded to trial.
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During the trial, Fitzgerald, Hansen, Hofer, and Fredrickson testified as
cooperating witnesses for the government and described in detail Johnson’s
involvement in the drug distribution scheme. Their collective testimony established
the following. Hansen had known Johnson for over 30 years, and in 2018, she began
taking trips to California on Johnson’s behalf to retrieve methamphetamine from
Fitzgerald. Fitzgerald was introduced to Johnson by their mutual friend, Tammy
Thorson. According to Fitzgerald, Johnson told him that Thorson and Hansen were
“working for” him by “[p]icking up meth . . . and bringing it back to Iowa,” and
Johnson discussed the “future amounts” of methamphetamine he wanted to purchase
from Fitzgerald and the cost. Hansen took at least five trips to California to acquire
drugs for Johnson; she was once accompanied by Johnson, and the other times she
traveled by herself or with Thorson. Johnson would call Fitzgerald to tell him that
Hansen or Hansen and Thorson were on their way to California, the amount of
methamphetamine he needed, and how much money the women would bring to pay
for the drugs. At some point, Johnson told Fitzgerald that Hansen and Thorson
would no longer transport the drugs by car and asked Fitzgerald to start sending the
drugs by mail to Hansen’s address in Iowa. Once Fitzgerald began mailing the
methamphetamine, he would inform Johnson of the package’s tracking number, and
Johnson would send Hansen a text message to let her know when the package would
arrive at her residence.
According to Hofer, his relationship with Johnson began with transactions
involving personal-use amounts of methamphetamine, and it developed when
Johnson began to advance, or “front,” Hofer four to five ounces of
methamphetamine “[e]very week or two” for about three months. After Johnson
told Hofer and Fredrickson about the package of methamphetamine that was
intercepted at Hansen’s home, the three discussed an “idea” to start having the
packages sent to the address of Hofer and Fredrickson’s unsuspecting neighbor.
Johnson then directed Fitzgerald to start mailing his packages to this new location
in Sioux City. Johnson would tell Hofer when a package was on its way, and once
it arrived, Hofer and Fredrickson would drive to Johnson’s apartment the same night
to deliver the drugs.
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At the close of the government’s evidence, Johnson moved for judgment of
acquittal, which was denied. The jury ultimately convicted Johnson on Counts 1 and
2 and acquitted him on Count 3. The district court denied Johnson’s post-verdict
motion for judgment of acquittal or a new trial.
At sentencing, the presentence investigation report (PSR) recommended a
base offense level of 38, resulting in an advisory Guidelines range of 360 months to
life. The district court overruled Johnson’s objection to the drug quantity calculation
but granted a downward variance and sentenced Johnson to 264 months of
imprisonment, to be followed by 10 years of supervised release. Johnson now
appeals, and we address each argument in turn.
II.
A.
We begin with Johnson’s assertion that the district court erred in denying his
motion to suppress the evidence seized from his residence. 3 On appeal from the
denial of a motion to suppress, we review the district court’s findings of fact for clear
error and its legal conclusions de novo. United States v. Farnell, 701 F.3d 256, 260
(8th Cir. 2012). We affirm unless the denial of the motion “is unsupported by
substantial evidence, is based on an erroneous view of the applicable law, or in light
of the entire record, we are left with a firm and definite conviction that a mistake has
3
The government contends that Johnson’s suppression motion was untimely.
But Johnson’s motion to suppress was filed within the deadline set by the magistrate
judge’s amended scheduling order. And though the government argues the
magistrate judge improperly extended pre-trial deadlines, the government failed to
timely challenge the court’s scheduling order, see Fed. R. Crim. P. 59(a), and we
discern no error or abuse of discretion from our review of the record. See United
States v. Smith, 422 F.3d 715, 725 (8th Cir. 2005) (explaining that a district court
has “broad discretion to control the scheduling of events in matters on its docket,”
which includes “the ability to make decisions regarding the deadline for pretrial
filings, and whether to grant a motion to continue that deadline” (citations omitted)).
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been made.” Id. at 260–61 (quoting United States v. Rodriguez-Hernandez, 353
F.3d 632, 635 (8th Cir. 2003)).
1.
First, Johnson argues that the affidavit supporting the warrant application to
search his residence omitted material information. See Franks v. Delaware, 438 U.S.
154, 171–72 (1978). The Fourth Amendment requires probable cause for the
issuance of a search warrant. U.S. Const. amend. IV. However, a search warrant
may be invalid “if the issuing judge’s probable cause determination was based on an
affidavit containing false or omitted statements made knowingly and intentionally
or with reckless disregard for the truth.” United States v. Conant, 799 F.3d 1195,
1199 (8th Cir. 2015) (quoting United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.
2001)).
To prevail on a Franks challenge4 to a warrant affidavit for omissions of fact,
Johnson must show: “(1) that facts were omitted with the intent to make, or in
reckless disregard of whether they make, the affidavit misleading; and (2) that the
affidavit, if supplemented by the omitted information, could not support a finding of
probable cause.” Id. at 1200 (quoting Reinholz, 245 F.3d at 774). “Reckless
disregard requires showing that the officer ‘must have entertained serious doubts as
to the truth of his statements or had obvious reasons to doubt the accuracy of the
information.’” United States v. Reed, 921 F.3d 751, 756 (8th Cir. 2019) (quoting
4
Johnson contends that the district court abused its discretion by failing to hold
a Franks hearing. But the magistrate judge in her report and recommendations noted
that she “granted Johnson a Franks hearing.” At this hearing, the magistrate judge
heard testimony from Officer Davis, the affiant, as well as Inspector Brandt, and
Woodbury County, Iowa, Sheriff’s Deputy Todd Peterson. See Conant, 799 F.3d at
1199 (recognizing that “a Franks hearing was, in effect, conducted when the officers
involved were questioned at the evidentiary hearing, and the district court treated the
evidentiary hearing as a Franks hearing” (quotations omitted)). To the extent
Johnson argues he needed another Franks hearing, he fails to show what additional
information would be elicited at such a hearing.
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Conant, 799 F.3d at 1200); see also United States v. McIntyre, 646 F.3d 1107, 1114
(8th Cir. 2011) (“Recklessness . . . may be inferred from the fact of omission of
information from an affidavit when the material omitted would have been clearly
critical to the finding of probable cause.” (cleaned up)).
Johnson asserts that Officer Davis’s affidavit omitted important information
about Hofer and Fredrickson, including their romantic relationship, Hofer’s outsized
role as the source of the information that the two provided in their interviews, and
the suggestive lineup and circumstances that led to Fredrickson’s identification of
Johnson. Johnson contends the affidavit also should have included the fact that law
enforcement provided Hofer and Fredrickson money to give Johnson during the
controlled delivery, which “increase[d] the odds” that Johnson would accept the
package, and the fact that surveillance in connection with the August 2, 2019,
packages showed no involvement by Johnson.
The magistrate judge acknowledged that the warrant affidavit failed to include
“a lot of information relevant to probable cause” and was “misleading,” but she
found that there was no evidence that Officer Davis “acted intentionally or with
reckless disregard for the truth in drafting the affidavit.” We see no error in this
conclusion. As the court observed, law enforcement faced a “time crunch” to obtain
the search warrant before Hofer and Fredrickson delivered the package at their
regularly scheduled time. Thus, in his rush, Officer Davis “left out some details”
from the affidavit—“including facts bolstering the existence of probable cause”—
and “summarized others.” The magistrate judge, after hearing testimony from
Officer Davis, concluded that his conduct in drafting the affidavit amounted to
negligence. But to prevail here, Johnson “must show more than negligence or an
innocent mistake.” United States v. Finley, 612 F.3d 998, 1002 (8th Cir. 2010). And
we agree with the district court that Officer Davis did not act recklessly in his efforts
to obtain a search warrant, despite the time pressure. The record does not indicate
that Officer Davis entertained serious doubts about, or had obvious reasons to
question, the accuracy of his statements. Therefore, Johnson is not entitled to
suppression under Franks.
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2.
Next, Johnson argues that the warrant application did not establish probable
cause to search his residence. “Probable cause exists when the affidavit sets forth
sufficient facts to lead a prudent person to believe that there is a ‘fair probability that
contraband or evidence of a crime will be found in a particular place.’” United States
v. Warford, 439 F.3d 836, 841 (8th Cir. 2006) (quoting Illinois v. Gates, 462 U.S.
213, 238 (1983)).
The information Officer Davis included in the affidavit about Johnson came
from Hofer and Fredrickson. Yet, according to Johnson, the warrant application
provided “no information suggesting that” Officer Davis “corroborated any aspect
of Fredrickson and Hofer’s accusations against Johnson.” And he argues the warrant
lacked “any information from which a reviewing magistrate [judge] could
reasonably assess Fredrickson or Hofer’s truthfulness, credibility, reliability, or
motivations.”
Even if we assume that the warrant application was insufficient to establish
probable cause, we conclude that the good-faith exception to the exclusionary rule
applies in this case. “Under the Leon good-faith exception, disputed evidence will
be admitted if it was objectively reasonable for the officer executing a search warrant
to have relied in good faith on the judge’s determination that there was probable
cause to issue the warrant.” United States v. Hudspeth, 525 F.3d 667, 676 (8th Cir.
2008) (quoting United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007)); see United
States v. Leon, 468 U.S. 897, 922 (1984). In determining whether the officer relied
in good faith on the validity of a warrant, we consider the totality of the
circumstances, including any information known to the officer but not included in
the search warrant application. See Grant, 490 F.3d at 632.
Considering the information known to law enforcement at the time the officers
searched Johnson’s home, it was objectively reasonable for them to believe that the
search was supported by probable cause. See, e.g., United States v. Thompson, 976-9-
F.3d 815, 822 (8th Cir. 2020) (concluding that information known by an officer but
not included in a search warrant application nonetheless “bolstered” the officer’s
belief in the validity of the warrant). Officers had conducted a months long
investigation into a methamphetamine-by-mail scheme, and after they intercepted
one package containing a distribution-level quantity of methamphetamine, a
source—Hansen—identified Johnson as a key suspect. Hansen said that she
delivered packages to Johnson at his apartment in exchange for money and drugs.
When officers later intercepted a similar package, the investigation further led them
to Hofer and Fredrickson, who separately gave statements against their penal interest
and provided specific details about delivering the packages to a man they identified
as Johnson. Officers independently verified Johnson’s address using public sources,
and this information was consistent with the information provided by Hansen, Hofer,
and Fredrickson. Based on these additional facts, along with the information
included in the warrant affidavit, the officers’ good-faith reliance on the search
warrant for Johnson’s home was objectively reasonable.
3.
Finally, Johnson argues that officers impermissibly executed the anticipatory
warrant at his apartment. “An anticipatory warrant is a warrant based upon an
affidavit showing probable cause that at some future time (but not presently) certain
evidence of crime will be located at a specified place.” United States v. Grubbs, 547
U.S. 90, 94 (2006) (cleaned up and citation omitted). Anticipatory warrants often
condition their execution on an event called a “triggering condition.” Id. The
“[o]ccurrence of the triggering condition establishes the requisite connection
between ‘the item described in the warrant’ and ‘the searched location.’” United
States v. Brown, 929 F.3d 1030, 1038 (8th Cir. 2019) (quoting Grubbs, 547 U.S. at
94).
Johnson contends that based on the language of the warrant affidavit, the
warrant could be executed only after delivery of the package “in accordance with
[Hofer and Fredrickson’s] previous practice.” But this was not a condition specified
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in the warrant. By its express terms, the warrant’s triggering condition was defined
only as “[t]he delivery of the subject package of methamphetamine” to Johnson’s
apartment. The warrant contained no condition regarding the manner of the
package’s delivery, nor did it incorporate by reference the “previous practice”
described in the affidavit.
Johnson also asserts that the officers executed the warrant “contrary to its very
terms.” According to Johnson, a “triggering condition” for the warrant was delivery
to “3425 Fieldcrest Drive.” But Johnson lived, and the warrant was executed, at
“4325 Fieldcrest Drive.” True, the search warrant’s condition precedent included
the wrong street number for Johnson’s residence. However, “[m]ere technical
errors . . . are not enough to invalidate a search warrant.” United States v. Valentine,
984 F.2d 906, 909 (8th Cir. 1993). And we have held that “an incorrect street address
of the place to be searched is not necessarily fatal” to a warrant’s validity. United
States v. Thurman, 625 F.3d 1053, 1057 (8th Cir. 2010) (quoting United States v.
Ridinger, 805 F.2d 818, 819 (8th Cir. 1986)). The relevant inquiry is whether the
warrant “described the place to be searched ‘with sufficient particularity as to enable
the executing officer to locate and identify the premises with reasonable effort,’ and
that there was no ‘reasonable probability that another premise[s] might be
mistakenly searched.’” Id. (quoting United States v. Gitcho, 601 F.2d 369, 371 (8th
Cir. 1979)).
The warrant here expressly authorized the search of Johnson’s apartment at
“4325 Fieldcrest Drive Apartment 1D,” and described the building to be searched as
“a three-story grey brick and siding apartment building with a secured entrance.”
See, e.g., Valentine, 984 F.2d at 909 (finding a warrant sufficient though it
authorized a search at “3048 Thomas” instead of “3050 Thomas,” where it correctly
described the place to be searched as “a 2 story, single family brick dwelling with
an alluminum [sic] storm door and sits back from the street . . . 1 door east of 3050
Thomas”). And because officers had conducted surveillance of Johnson’s apartment
before the warrant was executed, they had personal knowledge of its location; and
the premises that they intended to search were, in fact, searched. See Gitcho, 601
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F.2d at 372 (deeming a search lawful, despite the warrant containing an erroneous
address, in part because “the agents executing the warrant personally knew which
premises were intended to be searched, and those premises were under constant
surveillance while the warrant was obtained”). Because the description of Johnson’s
residence was sufficiently particular and there was no reasonable probability of a
mistaken search, the typographical error in the warrant’s condition precedent does
not require suppressing the evidence seized.
B.
1.
We next address Johnson’s argument that the district court erred in denying
his motion for a judgment of acquittal. We review a district court’s denial of a
motion for judgment of acquittal de novo. United States v. Augustine, 663 F.3d 367,
373 (8th Cir. 2011). “In reviewing the sufficiency of the evidence to support a guilty
verdict, we look at the evidence in the light most favorable to the verdict and accept
as established all reasonable inferences supporting the verdict.” Id. (quoting United
States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir. 2000)).
To convict Johnson of conspiracy to distribute methamphetamine as charged
in Count 1, the government had to prove (1) “a conspiracy to distribute
methamphetamine existed”; (2) Johnson “knew about the conspiracy”; and (3)
Johnson “knowingly became a part of the conspiracy.” United States v. Lewis, 976
F.3d 787, 794 (8th Cir. 2020). “The conspiracy’s existence may be proved by direct
or circumstantial evidence.” United States v. Milk, 66 F.4th 1121, 1135 (8th Cir.
2023) (quoting United States v. Cain, 487 F.3d 1108, 1111 (8th Cir. 2007)).
On appeal, Johnson principally challenges the credibility of the cooperating
witnesses, alleging that “a reasonable jury should have not discounted the very
realistic possibility that” Hansen, Fitzgerald, Fredrickson, and Hofer sought to
“scapegoat” Johnson and “minimize their own culpability.” “[B]ut we defer to the
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jury’s assessment of witness credibility and will not reweigh the evidence or the
credibility of the government’s witnesses.” Milk, 66 F.4th at 1136; see United States
v. Hodge, 594 F.3d 614, 618 (8th Cir. 2010) (“Only when credibility determinations
are internally inconsistent, based upon incoherent or implausible testimony, or
directly at odds with objective evidence is a more searching review warranted.”).
The evidence demonstrated that Johnson enlisted the help of Hansen, Fredrickson,
and Hofer to acquire methamphetamine by car or by mail from Fitzgerald in
California, and that it was Johnson who coordinated the transport, shipment, or
delivery of the drugs to Iowa. That Johnson provided Hansen, Fredrickson, and
Hofer with drugs or money in exchange for their assistance shows both that there
was an agreement or understanding between Johnson and these co-conspirators, and
that Johnson knew about and knowingly became a part of the agreement or
understanding. Accordingly, sufficient evidence supports Johnson’s conviction on
Count 1.
To convict Johnson on Count 2, the government had to prove that Johnson
knowingly possessed methamphetamine with the intent to distribute it. See United
States v. Vore, 743 F.3d 1175, 1180 (8th Cir. 2014). Actual or constructive
possession is sufficient to satisfy the element of knowing possession. See United
States v. Corrales-Portillo, 779 F.3d 823, 832 (8th Cir. 2015). The evidence at trial
established that Johnson took physical possession of the methamphetamine
delivered to his apartment by Hofer and Fredrickson, and officers recovered roughly
31 grams of methamphetamine and 15 grams of actual methamphetamine from
Johnson’s bathroom floor. The quantity of the drugs as well as the amount of cash
recovered from Johnson’s apartment were sufficient to allow the jury to infer
Johnson’s intent to distribute. See United States v. Knox, 888 F.2d 585, 588 (8th
Cir. 1989) (explaining that “intent to distribute, may be inferred from circumstantial
evidence such as a large sum of cash, and a quantity of a controlled substance,” such
that “$5000 cash and over 14 grams of cocaine” was sufficient to infer intent);
United States v. Thompson, 686 F.3d 575, 585 (8th Cir. 2012) (“Thompson’s
possession of more than 33 grams and his unexplained cash resources support the
jury’s inference that he possessed the cocaine with the intent to distribute it.”). A
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rational jury could have found Johnson guilty of this charge beyond a reasonable
doubt.
2.
Johnson argues that the district court also erred in denying his motion for a
new trial based on “newly discovered evidence,” an error he asserts stems from the
government’s failure to disclose Brady 5 evidence. See Fed. R. Crim. P. 33(a)
(permitting the district court to grant a new trial “if the interest of justice so
requires”). We review the denial of a motion for a new trial for abuse of discretion.
United States v. Delgrosso, 852 F.3d 821, 827 (8th Cir. 2017).
Brady requires prosecutors to disclose to the defense “all material evidence
favorable to the accused, including impeachment and exculpatory evidence.” United
States v. Robinson, 809 F.3d 991, 996 (8th Cir. 2016). To prevail on this claim,
Johnson must establish that “(1) the government suppressed evidence; (2) the
evidence was favorable to him; and (3) the evidence was material to the outcome of
the trial.” United States v. Garrett, 898 F.3d 811, 816 (8th Cir. 2018); see also United
States v. Dittrich, 204 F.3d 819, 822 (8th Cir. 2000). “For evidence to be material,
there must be a ‘reasonable probability that had it been disclosed, the result of the
proceeding would have been different.’” Garrett, 898 F.3d at 816 (quoting
Robinson, 809 F.3d at 996).
Johnson alleges the government failed to disclose evidence from a separate
pending criminal matter, United States v. Gentry, which he contends involved the
“existence of a black methamphetamine dealer nicknamed ‘Arkansas’” who had
“similar characteristics to Johnson, [and] was sentenced the week after Johnson’s
trial for a methamphetamine offense.” The district court reviewed relevant
documents from Gentry and found that this evidence was not material. We agree.
5
Brady v. Maryland, 373 U.S. 83 (1963).
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First, the evidence at trial showed that Johnson did not go by the nickname
“Arkansas.” Rather, Hofer and Fredrickson referred to Johnson as “Arkansas” based
on the area code of his personal phone number, and they did so only between
themselves, not to Johnson “in person.” Second, while Johnson and Gentry “are
both black men, they have significantly different physical traits.” Law enforcement
records show that Johnson is about six inches taller and 30 years older than Gentry.
Finally, as the district court recognized, “Gentry’s case involved a conspiracy to
distribute methamphetamine in the Fort Dodge area[,] utilized a different scheme,”
and had “no overlapping participants with Johnson’s conspiracy.” While Johnson
maintains that a retrial is warranted because the Gentry evidence bears on “the
reliability of Fredrickson and Hofer’s identification of Johnson,” the government’s
case was not dependent on their identification testimony, and it had identified
Johnson as a suspect months before Hofer and Fredrickson’s involvement. In sum,
there was no abuse of discretion in denying Johnson’s motion for a new trial because
there was no reasonable probability that the result of the proceeding would have
been different had the Gentry evidence been produced.
C.
Finally, we address Johnson’s argument that the district court erred in its
calculation of the drug quantities attributable to him for purposes of sentencing.
“The government bears the burden of proving drug quantity by a preponderance of
the evidence.” United States v. Sainz Navarrete, 955 F.3d 713, 720 (8th Cir. 2020)
(quoting United States v. Plancarte-Vazquez, 450 F.3d 848, 852 (8th Cir. 2006)).
“When calculating drug quantity, ‘the sentencing court may consider all transactions
known or reasonably foreseeable to the defendant that were made in furtherance of
the conspiracy.’” Id. (quoting Plancarte-Vazquez, 450 F.3d at 852). The court’s
approximation may be “based on imprecise evidence so long as the record reflects a
basis for the court’s decision.” United States v. Yellow Horse, 774 F.3d 493, 497
(8th Cir. 2014) (quoting United States v. Roach, 164 F.3d 403, 413–14 (8th Cir.
1998)). We review the district court’s drug quantity determination for clear error,
and we will reverse “only if the entire record definitively and firmly convinces us
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that a mistake has been made.” United States v. Shaw, 965 F.3d 921, 926 (8th Cir.
2020) (quoting United States v. Quintana, 340 F.3d 700, 702 (8th Cir. 2003)).
First, Johnson asserts that the district court improperly relied on acquitted
conduct to calculate his base offense level. The jury acquitted Johnson on Count 3,
which charged him with possession-with-intent and aiding-and-abetting based on
the methamphetamine seized from Hansen on June 6, 2019. Yet the district court
included the full amount of methamphetamine seized on June 6 in its drug quantity
calculation. As Johnson acknowledges, however, under our existing precedent, “an
acquittal does not prevent the sentencing court from considering conduct underlying
the acquitted charge, so long as that conduct has been proved by a preponderance of
the evidence.” United States v. Ruelas-Carbajal, 933 F.3d 928, 930 (8th Cir. 2019)
(cleaned up); United States v. Crippen, 627 F.3d 1056, 1066 (8th Cir. 2010) (“We
have rejected the contention that counting acquitted conduct as relevant conduct
violates a defendant’s due process rights.”). The government presented sufficient
evidence at trial to permit the district court to find by a preponderance of the
evidence that Johnson was responsible for this drug quantity. Hansen testified that
Johnson was the intended recipient of the intercepted June 6 package, and she
described her routine: retrieve a package when it arrived at her residence, take it to
Johnson’s apartment, and mail money she got from Johnson to Fitzgerald to cover
the drug sale. Whatever the merits of Johnson’s argument regarding the use of
acquitted conduct at sentencing, we are bound by precedent to conclude that the
district court did not err when it considered this conduct in determining Johnson’s
base offense level.
Johnson also argues that the district court relied on “unreliable evidence” by
considering testimony from Hansen, Fitzgerald, Hofer, and Fredrickson in
calculating the drug quantity attributable to him. But the district court was entitled
to rely on the trial testimony of the co-conspirators in determining the drug quantity
amount. See Plancarte-Vazquez, 450 F.3d at 852 (“It is well-established that the
testimony of co-conspirators may be sufficiently reliable evidence upon which the
court may base its drug quantity calculation for sentencing purposes.”). And the
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testimony of the co-conspirators was corroborated in part by USPS records showing
mailings between Fitzgerald and Hansen, Hofer, and Fredrickson, as well as law
enforcement surveillance or interdiction of several packages containing or
reasonably suspected to contain large quantities of methamphetamine. We therefore
see no clear error in the district court’s drug-quantity calculation.
III.
Based on the foregoing, we affirm the judgment of the district court. 6
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6
We grant Johnson’s pro se motion to file a supplemental brief. We discern
no plain error in the district court’s failure to grant a mistrial based on the admission
of alleged hearsay testimony, see Fed. R. Evid. 801(d)(2)(E) (noting that a statement
is not hearsay if offered against an opposing party and “made by the party’s
coconspirator during and in furtherance of the conspiracy”).
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