United States v. Johnson

680 F.3d 966

UNITED STATES of America, Plaintiff–Appellee,

v.Ronald L. JOHNSON, also known as Joshua McGhee, Defendant–Appellant.

No. 11–2690.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 9, 2012.

Decided May 24, 2012.

Jonathan H. Koenig (argued), Lisa A. Wesley, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Russell J.A. Jones, Attorney, Jones Law firm LLC, Brookfield, WI, Bradley L. Williams (argued), Attorney, Ice Miller LLP, Indianapolis, IN, for Defendant–Appellant.

Before FLAUM and KANNE, Circuit Judges, and CHANG, District Judge. ^*

KANNE, Circuit Judge.

Ronald L. Johnson was convicted of possession with intent to distribute 50 grams or more of crack cocaine and possession of a firearm by a convicted felon. He was sentenced to 300 months' imprisonment. On appeal, Johnson challenges his conviction and sentence on several grounds, arguing that (1) his motion to suppress was improperly denied; (2) the trial judge should have recused himself sua sponte; (3) an aiding and abetting instruction was given in error; (4) the obstruction of justice enhancement should not apply; and (5) the sentencing judge improperly determined that Johnson is a career offender. After considering all of these arguments, we affirm Johnson's conviction and sentence.

I. Background

Sometime in late 2008, an informant told Milwaukee police officers that a man known as “Loc” was dealing large amounts of cocaine out of his residence on West Vliet Street, part of the Hillside Terrace Housing Project in Milwaukee. Loc and his girlfriend, Nina Fenske, resided in Unit 301, although only Fenske's name was on the lease. The informant also told officers that Loc had a gun and prior criminal history. Armed with this information, Milwaukee police officers conducted surveillance of Unit 301 for approximately two months. During this time, they observed only Fenske and a man later identified as Johnson coming and going from the residence.

On the morning of January 29, 2009, police officers arranged to execute a search warrant at the West Vliet address. Officers Todd Bohlen and James Henry set up surveillance in an unmarked police car. They observed Johnson exit the residence and drive away in a silver Chevy Impala. Officers Bohlen and Henry followed Johnson for approximately four blocks before pulling him over, even though Johnson did not commit a traffic violation. Officer Bohlen testified at the suppression hearing that the purpose of this stop was to ensure the preservation of evidence and safety of the officers while they executed the search warrant.

Officer Bohlen approached Johnson's vehicle and requested his driver's license. In response, Johnson handed Officer Bohlen a driver's license issued in the name of Joshua McGhee.¹ Officer Bohlen then inquired if Johnson had any aliases, to which Johnson replied, “Loc, Ron Loc.” Upon request, Johnson also provided his current address on West Vliet Street. After this short exchange, Officer Bohlen asked Johnson to exit the vehicle to conduct a patdown for safety purposes. During this pat-down, Officer Bohlen asked if Johnson had anything on him and Johnson stated that he had some weed in his shoe. Johnson was then placed in handcuffs and taken to Officer Bohlen's vehicle. While Johnson sat in the back seat, Officer Bohlen removed Johnson's left shoe and discovered a small baggie of marijuana.

At this point, Officer Bohlen informed Johnson of the search warrant for his residence on West Vliet Street. Johnson remained in the back of Officer Bohlen's vehicle while Officer Bohlen called for assistance and a police wagon. Approximately thirty to forty minutes after the initial traffic stop, Johnson was transported to his residence in the police wagon, where he remained in handcuffs while officers searched his apartment.

As Johnson waited in the police wagon, Officer Bohlen read a copy of the search warrant to him. Johnson and Officer Bohlen disagree on the ensuing dialogue. Officer Bohlen testified that immediately after he read the search warrant aloud, Johnson confessed that everything in the apartment was his. In contrast, Johnson testified that Officer Bohlen read the warrant and then asked him, “Is there anything that you want to talk to me about, that you want to tell me right now?” (Supp. Tr. at 87.) Johnson responded that he didn't know what Officer Bohlen was talking about, to which Officer Bohlen replied, “Well, you know, if we go in here and find anything we cannot only arrest you but we can arrest who's ever [sic] on the lease.” Id. According to Johnson, it was only after Officer Bohlen made this statement that Johnson confessed that anything found in the apartment belonged to him.

Following Johnson's confession, he and Officer Bohlen spoke for a while longer, although Officer Bohlen did not recall the specifics of their conversation. At one point, Officer Bohlen asked Johnson for the combination to a safe discovered in the apartment, but Johnson told Officer Bohlen the safe belonged to his girlfriend. Johnson confessed during the suppression hearing that this was a lie and he later gave the combination to officers at the police station. Officers discovered a firearm and a large amount of cash in the safe.

In the end, police officers recovered crack cocaine, marijuana, ecstasy pills, a scale, a firearm, and $19,940 cash from the apartment. The search lasted approximately one hour, after which Johnson was transported to the Milwaukee police department's administration building for booking. There, Johnson was taken to an interview room. According to Johnson's testimony, Officer Bohlen entered the room first. He asked Johnson if he knew about the items found in the apartment, implied that Johnson's girlfriend would be kicked off of housing assistance, and asked if Johnson wanted his girlfriend's daughter to end up in state custody. Johnson maintains that no one else was present during this questioning. According to the government, Officer Andrew Bell advised Johnson of his Miranda rights and interviewed Johnson for approximately forty minutes. Officer Bohlen was present for a majority of the interview but did not enter the room until after Officer Bell began questioning Johnson. During the interview, Johnson admitted that the apartment contained a scale, crack cocaine on a shelf in the bedroom closet, and a safe that held a gun and approximately $20,000. He also discussed his knowledge of drug distribution and estimated that in two years he sold approximately ten to fifteen kilograms of cocaine. He identified his supplier as a man from Chicago named “Simon,” and remarked that Simon never brought the cocaine to Johnson's house.

On March 24, 2009, a federal grand jury charged Johnson with possession of cocaine base with intent to distribute, possession of MDMA (Ecstasy) with intent to distribute, and possession of a firearm by a convicted felon. Johnson's case was docketed as 09–CR–83 and assigned to the Honorable J.P. Stadtmueller. Johnson filed a motion to suppress, which argued that Johnson's statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This motion was assigned to Magistrate Judge Aaron E. Goodstein. While the motion to suppress was pending, Judge Stadtmueller recused himself from the case, citing 28 U.S.C. § 455(a) and (b)(3). Judge Stadtmueller provided no additional explanation for his recusal. The Honorable Rudolph T. Randa was thereafter assigned to the case.

The magistrate judge held an evidentiary hearing on Johnson's motion to suppress on September 2, 2009. Following this hearing and additional briefing, Magistrate Judge Goodstein recommended that the motion be denied. Judge Randa adopted this recommendation on February 24, 2010, and scheduled Johnson's trial for June 1, 2010. In May, Johnson filed a motion to dismiss, arguing that his trial was not conducted within the time requirements of the Speedy Trial Act, 18 U.S.C. § 3162(a)(2). The government agreed that a speedy trial violation occurred but asked that the case be dismissed without prejudice. Judge Randa dismissed the case without prejudice on June 10, 2010.

On June 22, 2010, a federal grand jury returned another three-count indictment against Johnson based upon the same evidence as Johnson's first case. This second case, docketed as 10–CR–121, was again assigned to Judge Stadtmueller. Johnson was arraigned for a second time and new motions deadlines were set. This time, Johnson filed a motion to suppress based on an alleged Franks violation. See Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (permitting a defendant to challenge the constitutionality of a search if he can show intentional or reckless misrepresentations in the warrant affidavit). Johnson did not file a Miranda motion in the second case and his Franks motion was ultimately denied.

Judge Stadtmueller presided over Johnson's two-day jury trial. Johnson testified and claimed that his girlfriend's friend, Jamie, and her boyfriend, Simon, had moved into the residence on West Vliet Street. Johnson felt Simon staying there was a problem because he was selling drugs from that address. Johnson admitted that the gun belonged to him but denied that the drugs were his. He stated that he lied to officers following his arrest because he was concerned that they would arrest his girlfriend instead. After the close of evidence, Judge Stadtmueller instructed the jury and, at the government's request and over Johnson's objection, included an aiding and abetting instruction on the basis of Johnson's testimony that Simon sold drugs out of the West Vliet address. The jury convicted Johnson on two counts: possession with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).²

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