United States v. Johnson

ORDER ON DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This matter is before me on a motion (Doc. 393) for judgment of acquittal or, in the alternative, a new trial by defendant Melroy Johnson, Sr. The Government has filed a resistance (Doc. 401). Oral argument is not necessary. See Local Rule 7(c).

II. FACTUAL AND PROCEDURAL BACKGROUND

Johnson was charged in a Superseding Indictment (Doc. 167) with:

● Count 1 - conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) (b)(1)(A), 846 and 851

● Count 2 - possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 851

● Count 3 - possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 851.^[1]

Doc. 167. The Superseding Indictment also contained a forfeiture allegation seeking forfeiture of $20, 084 cash seized from Johnson's apartment. The case was tried to a jury beginning July 6, 2021. Doc. 358. The Government presented testimony from 11 witnesses and admitted 166 exhibits. Johnson presented testimony from one witness and admitted 19 exhibits. See Doc. 365-1.

The evidence established that in early 2019, Postal Inspector Ryan Brandt noticed a significant number of express mailings going from Sioux City, Iowa, to an address in Orange, California, that were paid for in cash. The packages were usually sent by Kimberly Hansen to Felton Fitzgerald. Hansen had also received packages from southern California weighing two to seven pounds. On June 6, 2019, an express mail package came through the Sioux City post office addressed to Hansen with the same distinctive handwriting that was on previous packages. Brandt and Eric Davis, a Drug Enforcement Administration (DEA) task force officer, conducted a knock-and-talk at Hansen's residence. Hansen accepted the package after which Brandt and Davis identified themselves as federal agents and asked her about the contents of the package. Hansen denied knowing what was in the package and gave Brandt consent to open it. The package contained nearly five pounds of methamphetamine. Hansen then admitted to receiving packages of drugs from Fitzgerald. Hansen allowed law enforcement to search her home and cell phone. Hansen's phone showed direct contact with Fitzgerald regarding the drug packages.^[2] Hansen declined to assist officers with a controlled delivery of the package to Johnson, whom she had identified as the ultimate intended recipient of the package.

Brandt continued to monitor mailings from southern California to Sioux City. He noticed that some mailings were being sent to an address on McDonald Street. On August

2, 2019, DEA task force officers, including Davis, conducted surveillance on the delivery of one such package, addressed to Amanda Ochoa at 2129½ McDonald Street. Desiree Fredrickson accepted the package. Fredrickson and a male later identified as Shawn Hofer then traveled to an electronics business in Sioux City owned by Hofer. Fredrickson subsequently left and traveled back to McDonald Street. Johnson points out that officers did not observe Johnson near the electronics business or McDonald Street and did not observe Fredrickson or Hofer travel toward Johnson's residence on Fieldcrest Drive.

On August 28, 2019, Brandt intercepted another package addressed to Ochoa but at 2119½ McDonald Street. A K9 alerted to the odor of narcotics in the package and Brandt obtained a search warrant. The package contained two purses and a speaker inside of a smaller box. The purses contained a total of approximately 4.6 pounds of methamphetamine. The speaker box contained approximately five ounces of cocaine. The contents were repackaged and Brandt and DEA task force officers performed a controlled delivery of the package.

Brandt, dressed as a postal worker, walked up to 2119½ McDonald Street with the package and saw an unidentified Hispanic female sitting on the step outside the residence. She did not respond when he asked if he was at the correct address. He scanned the package and left it on the step. As he was leaving, Fredrickson hurried toward him and said the package belonged to her. She retrieved the package and took it to a different residence - 2123 McDonald Street.

Law enforcement obtained and executed a search warrant at 2123 McDonald Street. Hofer and another individual were at the residence and police stopped Fredrickson as she was driving away. Police found the package had been opened and the drugs removed. The bags of methamphetamine were in two different drawers of a bedroom dresser in the kitchen and the cocaine was also located in one of the dresser drawers. Officers also found marijuana, scales and other drug paraphernalia in the house.

Brandt interviewed Fredrickson. She claimed she did not know what was in the package and was retrieving it for her friend, Ochoa. Later, she stated she was picking

up the package for Hofer, her boyfriend, and that she did not know what Hofer was getting in exchange for receiving the package. Eventually, she told Brandt that she and Hofer were receiving packages for a black man she and Hofer referred to as “Arkansas”^[3]or “Barbecue Dude.” Brandt showed her a photograph of Johnson and Fredrickson identified him as the person she was talking about, but also said that all black men look alike to her. Davis interviewed Hofer, who claimed he did not know why officers were at the residence. He later agreed to cooperate when Davis confronted him with the information they had gathered in the investigation and showed him a picture of Johnson.

Davis obtained an anticipatory search warrant for Johnson's residence, which authorized a search if Johnson accepted the package. Davis obtained a warrant for an apartment at 3425 Fieldcrest Drive rather than Johnson's address at 4325 Fieldcrest Drive. While officers sought the warrant, Fredrickson and Hofer were taken to a room at the DEA office.

Officers repackaged the contents of the parcel that Fredrickson had taken into 2123 McDonald Street. The majority of methamphetamine was replaced with a non-drug, lookalike substance. Officers also gave Fredrickson and Hofer $500 to give to Johnson as payment towards a drug debt, as they typically brought Johnson some money when they visited his apartment.

On August 28, 2019, officers drove Fredrickson and Hofer to 4325 Fieldcrest for the controlled delivery. As Fredrickson and Hofer walked up, Johnson, who was standing outside on his patio, invited them inside.^[4] After Fredrickson and Hofer entered the apartment and gave an indication to law enforcement that they had given the package to Johnson, law enforcement attempted to enter the apartment through the secured front

door. When they were unable to gain entry, they moved to the glass patio slider door, which had partially closed blinds. Todd Peterson, a Woodbury County Deputy and DEA task force member at the time, testified that he saw Johnson through the slider door and blinds standing in the kitchen with his attention on something on the counter. Officers broke the glass slider door and entered the residence. Johnson ran into the bathroom with the baggies of methamphetamine and locked the door. Agents gained access to the bathroom, arrested Johnson and seized a limited amount of methamphetamine from the area around the toilet near plastic baggies that had been ripped open. The five ounces of cocaine and $500 were on the kitchen counter. Agents also located and seized a total of $20, 084 in cash, primarily from two bundles in bags, in two different bedrooms, along with $1400 in $100 bills in Johnson's wallet. Officers also found a digital scale^[5] in close proximity to one of the large bundles of cash. Officers seized the cash, remaining drugs and baggies, purses, three cell phones, an iPad and a key from Johnson's residence.

Brandt and Davis interviewed Fitzgerald after he was arrested in September 2019 based on the Indictment in this case. Fitzgerald admitted he was supplying drugs to someone named “Melroy” and had conducted business over the phone^[6] without ever having met “Melroy” in person.

Johnson emphasizes that one month after his arrest, Brandt began investigating another Sioux City man based on suspected packages of cash being mailed from Sioux City to California and “heavy” packages coming back to Sioux City. This individual was arrested in early November 2019, after a search of his residence revealed a large quantity

of methamphetamine, cash and firearms. Johnson notes Brandt did not investigate any connection between the two operations.

Hansen, Fitzgerald, Fredrickson and Hofer all testified at Johnson's trial.^[7] Hansen testified that she traveled to California to pick up drugs from Fitzgerald for Johnson on five or six occasions and that Johnson went with her on the first trip. She identified Johnson in open court as the person she conspired with and was known to her as Melroy Johnson. She stated that Tammy Thorson^[8] accompanied her on some of these trips and other times she went alone. Hansen testified she eventually began sending money to Fitzgerald and receiving packages of drugs for Johnson. She received $500 and crack cocaine from Johnson for every trip to California and every package received in the mail. She delivered drugs to Hofer at his business at Johnson's request or to Johnson's apartment on Fieldcrest Drive. Hansen's involvement in the conspiracy included five to six vehicle transports, six to 10 packages by mail and a total of 35 to 45 pounds of methamphetamine, plus a lesser amount of cocaine.

Fitzgerald testified that...