United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant's
“Renewal of Defendant's Fed. R. Crim. P. 29 Motion
for Judgment of Acquittal, ” (doc. 166), and
“Motion for New Trial, ” (doc. 167). Defendant
Derrick Glenn Johnson was tried by jury from October 22
through October 24, 2018. At the close of the
Government's evidence, but prior to the case being
submitted to the jury, Mr. Johnson orally moved for a
judgment of acquittal. The court reserved judgment on the
October 24, 2018, the jury trial found that Mr. Johnson was
guilty as to Count 1 of the Indictment, charging conspiracy
to possesses with intent to distribute cocaine hydrochloride
weighing 10 kilograms or more. (Doc. 163). The jury was
unable to return a verdict on Count 2 of the Indictment,
charging possession with intent to distribute cocaine
hydrochloride weighing 10 kilograms or more.
November 12, 2018, Mr. Johnson filed his “Renewal of
Defendant's Fed. R. Crim. P. 29 Motion for Judgment of
Acquittal.” (Doc. 166). Mr. Johnson contends that
“there is a fatal variance between the allegations of
the indictment and the proof offered by the Government or the
Government failed to present sufficient evidence” upon
which the jury could convict Mr. Johnson of either count.
Johnson also filed his “Motion for New Trial”
that same day. (Doc. 167). The motion for new trial raises
four grounds for new trial: (1) the court “committed
prejudicial error in failing to rule on Mr. Johnson's
Motion for Judgment of Acquittal made at the close of the
Government's case”; (2) the court “committed
prejudicial error in failing to rule on Defendant's
Motion for Judgment of Acquittal at the close of all the
evidence”; (3) “[t]he verdict is contrary to the
weight of the evidence”; and (4) “Defendant has
learned that at least one juror knew the Defendant but did
not disclose that to the court during voir dire.”
(Id. at 1).
November 28, 2018, the prosecution filed “United
States' response to Defendant's Motion for Judgment
of Acquittal.” (Doc. 171). That same day, the
prosecution also filed “United States' Response to
Defendant's Motion for New Trial.” (Doc. 172). The
motion for new trial and motion for judgment of acquittal are
now ripe for review.
Government's and Mr. Johnson's accounts of the events
of March 26, 2015, the date of Mr. Johnson's arrest,
differ in several important respects. The court will recount
both versions of the events.
March 26, 2015, Ms. Alondra Melgar was driving a silver
Mercedes SUV containing drugs from Houston, Texas to
Birmingham, Alabama. (Doc. 177 at 121, 124-25). While Ms.
Melgar was driving on I-59 near Eutaw, Alabama, Alabama Law
Enforcement Agency Trooper Mike Harris pulled over her
vehicle at 3:00 pm. (Doc. 178 at 8).
Harris testified that he pulled over Ms. Melgar's vehicle
because he noticed the vehicle had a temporary tag, which,
through his training and experience as a law enforcement
officer with specialized training in the Drug Interdiction
Assistance Program, sometimes indicates the vehicle may be
stolen. (Doc. 178 at 8-9). When Trooper Harris approached Ms.
Meglar, he became suspicious that she was transporting
narcotics. Ms. Melgar consented to a vehicle search. (Doc.
177 at 136). Trooper Harris moved Ms. Melgar to the patrol
vehicle before searching the SUV. (Doc. 178 at 13).
Trooper Harris began the search, he testified that he noticed
that the front seat belts had recently been tooled, “an
indicator . . . that the vehicle had some after market work
done to it, something other than what the factory did back in
2007.” (Doc. 178 at 13). He also smelled a strong scent
of Bondo, a product used in mechanic shops when doing body
work. (Id. at 14). According to Trooper Harris,
Bondo is not smelled after professional use, because
professionals bake Bondo on to remove the smell, but can be
smelled when used by nonprofessionals. (Id.). He
described Bondo smelling simply “like Bondo”-a
distinctive scent. (Id. at 49). Trooper Harris
pulled the carpet back by the front passenger's door and
noticed an aftermarket compartment was constructed in the
vehicle. (Id. at 14).
Harris retrieved a drill from his patrol car to access the
compartment. (Doc. 178 at 14). He used a fiber optic scope
and saw nothing in the passenger side compartment.
(Id. at 14-15). Trooper Harris noticed a similar
compartment on the driver's side, which bore the same
signs of aftermarket work: tooled seat belts and an
aftermarket compartment under the carpet. (Id. at
15). When drilling the driver's side compartment, Trooper
Harris noticed a white powdery substance, which later tested
positive for cocaine. (Id. at 16).
Harris returned to the patrol car, arrested Ms. Melgar, and
read her Miranda warnings. (Doc. 178 at 16). About
10 to 20 minutes after returning to the patrol car, Ms.
Melgar began to open up about the SUV. She told Trooper
Harris that she was driving the car for someone else to
Birmingham, where she was to pick a hotel to drop off the
car, and a gentleman would pick up the car. (Id.).
Harris then contacted the Drug Enforcement Agency. DEA agent
Russell Morrison instructed Trooper Harris to come to the DEA
office. (Doc. 178 at 18). Trooper Harris noted the operation
was “time sensitive because of the trust between the
seller and the receiver.” (Id.). Another law
enforcement trooper followed Trooper Harris and Ms. Melgar to
the DEA office driving the Mercedes SUV. (Id.).
this time, Ms. Melgar received phone calls from Pete and
Blue, the two men for whom she drove the car, which she did
not answer because Trooper Harris had her phone. (Doc. 177 at
139). To prevent Pete and Blue from becoming suspicious,
Trooper Harris told Ms. Melgar to answer the next call.
(Id.). Ms. Melgar answered Pete's next call and
explained that she had stopped at a gas station because she
felt sick. (Id.). Pete told her to get what she
needed and to take her time. (Id.).
DEA office, Trooper Harris again accessed the aftermarket
compartment on the driver's side. Trooper Harris removed
the seats from the vehicle by undoing four bolts with a
socket and ratchet and pulling the carpet back. (Doc. 178 at
19). Trooper Harris testified that it took him approximately
five minutes to access the compartment, now that he knew
where it was. (Id. at 28). In the compartment,
Trooper Harris found 14 bundles of cocaine. (Id. at
19). The 14 bundles equated to 14 kilograms of cocaine.
(Id. at 74). In 2015, cocaine was sold for between
$1, 200 and $1, 500 per ounce. (Id. at 88). One
kilogram of cocaine would fetch $55, 250 if sold in ounces.
trip was not Ms. Melgar's first time transporting
cocaine. Ms. Melgar also drove the Mercedes SUV and a load of
cocaine to Birmingham the week prior to getting arrested. She
testified that she agreed to drive the Mercedes SUV carrying
drugs from Houston to Birmingham in January 2015. (Doc. 177
at 123-24). Ms. Melgar's hairdresser put her in contact
with a man named Pete in Houston, who organized for Ms.
Melgar to drive the SUV full of cocaine so she could make
some extra money. (Id.). Pete informed Ms. Melgar
that she would be working with another man, Blue.
(Id. at 125). Ms. Melgar described Blue as a
middle-aged “tall, white, Caucasian” man with a
“military hair cut.” (Id.).
Melgar first drove the Mercedes SUV from Houston to
Birmingham on March 19 or 20. (Doc. 177 at 126). The whole
trip, she was closely followed by a silver Cadillac, driven
by a male with a female passenger. (Id. at 126,
128). Ms. Melgar identified the male as Blue. (Id.
at 128). Pete told Ms. Melgar that they needed to ensure she
was trustworthy. (Id. at 124). In December, Pete and
Blue lost a large amount of cocaine between Houston and
Birmingham. (Doc. 178 at 124-25). Pete called Ms. Melgar
continuously throughout the trip, telling her if she was
going too fast and where to pull over. (Doc. 177 at 125).
Blue also called Ms. Melgar, asking if she needed rest, gas,
or something to drink (Id. at 128). Blue and Pete
told Ms. Melgar to select a hotel near Birmingham and to let
them know which one she chose. (Id. at 130). At the
end of the trip, Ms. Melgar selected a hotel as instructed,
left the key in the bottom of the mat, and went into her
hotel room. (Id. at 129).
night, Ms. Melgar saw the man who had driven the Cadillac
pick up the SUV. (Doc. 177 at 130). The man returned the car
around midnight. (Id.). Around 5:00 am, she drove
back to Houston. (Id. at 131). In Houston, Pete and
his wife picked up the SUV from Ms. Melgar's house.
(Id.) She was paid after the money she drove back to
Houston was counted. (Id.).
the information Ms. Melgar shared with the DEA regarding how
the drop-off process worked, DEA Agent Sean Stephen, whom
Trooper Harris contacted, decided to complete Ms.
Melgar's delivery. (Doc. 178 at 72-73). Agent Stephen
hoped that completing the delivery would lead the DEA to more
people connected with this drug trade. (Id. at 73).
But, to avoid potentially losing all 14 kilograms of cocaine
if the agents' plan failed, the agents removed all but
two ounces of cocaine from the SUV. (Id. at 73-74).
picked the Fultondale LaQuinta Hotel-a different hotel from
the one Ms. Melgar selected for her first trip-for Ms. Melgar
to complete the drop-off. (Doc. 177 at 139-40; Doc. 178 at
75). Ms. Melgar testified that she called Blue a little after
6:00 pm, during which she explained her delay due to being
sick and traffic from President Obama's visit to Alabama,
and that the car was at the Fultondale LaQuinta. (Doc. 177 at
140-41). Agent Stephen testified that Ms. Melgar made calls
to Pete and Blue at 6:15 pm and 6:37 pm. (Doc. 178 at 75).
During the 6:37 call with Blue, Ms. Melgar identified the
hotel where she would leave the car. (Id.). Ms.
Melgar dropped the car off, while DEA agents in two
undercover cars parked around the back of the hotel at
approximately 7:00 pm. (Doc. 177 at 141; Doc. 178 at 76). Ms.
Melgar walked in through the front of the hotel, like she was
checking into a room, and then exited out the back into the
custody of DEA. (Doc. 177 at 141).
pm, a green pickup truck with two individuals pulled up by
the Mercedes SUV. (Doc. 178 at 77). The passenger exited the
truck and got into the Mercedes SUV. (Id.). The
Mercedes drove away with the green truck following.
(Id.). The vehicles exited the hotel and merged onto
I-65 south. (Id.). The DEA's two undercover cars
followed at a distance. (Id.). The SUV and pickup
truck stayed together heading south on I-20/59.
(Id.). Around Fairfield and Bessemer, the green
truck exited at Exit 115, while the Mercedes SUV continued
until the 18th or 19th Street exit by the Lowe's in
Bessemer. (Id.). When the truck and SUV split up,
the DEA agents only followed the SUV. (Id. at
exiting the highway, the Mercedes SUV drove to Trail's
End Deer Processing Plant in Bessemer, arriving at
approximately 9:00 pm. (Doc. 178 at 78). Trail's End is a
small warehouse building with a roll-up garage door to the
right of the entry door. (Id.). Both doors are on
the front of the building. (Id.). When the Mercedes
SUV arrived, Mr. Johnson got out of the vehicle and entered
the building through the normal door. (Id. at 102).
The roll-up door went up, Mr. Johnson got back in the
Mercedes SUV, and he drove the SUV into the garage bay.
(Id. at 102). Once inside, the roll-up door closed.
(Id.). Several minutes later, the green pickup truck
arrive, and the driver entered the building through the front
door. (Id. at 79).
enforcement agents drove to a nearby Lowe's parking lot
to devise a plan for entering the facility. (Doc. 178 at 79).
A few agents were left behind to keep watch over the
building. (Id. at 104). After devising the plan, the
agents returned to Trail's End at 9:15 pm in tactical
gear to enter the building. (Id. at 81). One agent
knocked on the door and yelled “police.”
(Id. at 82). Then, the agents began hitting the door
with a battering ram. (Id.) After realizing that the
door opened out, not in, the agents used another tool to
finally pry the door open. (Id. at 83).
entering the building, Agent Stephen testified that the
agents' purpose was to find any people located in the
building, including the two individuals they watched enter
the building. (Doc. 178 at 84). The Mercedes SUV was in front
of and slightly to the right of the agents as they entered.
(Id.). Agent Stephen testified that both front doors
of the SUV were open, and no people were in the vehicle.
(Id.). On the left side of the room, an open area
leads to the processing room. (Id. at 85). The
processing room can also be reached by traveling down a
hallway on the right side of the bay. (Id.). The two
individuals ran toward the back of the building. Once the two
individuals inside were detained, the agents vacated the
building until they obtained a search warrant. (Id.
the agents were breaking open the front door, Trooper Harris
and at least one other agent approached the building from the
rear. (Doc. 178 at 22, 104). Trooper Harris testified that an
aluminum tin fence, approximately 10 to 12 feet high and
constructed with wood two-by-fours as supports, surrounded
the back of the building. (Id. at 23, 55-56). A
small field was behind the fence. (Id. at 23). These
agents provided security to the back of the building during
the front entry. (Id. at 58). Trooper Harris
testified that the only way around the fence from the back of
the building was over the fence. (Id.).
the agents entered the front door, Trooper Harris heard loud
banging on the aluminum fence. (Doc. 178 at 23). The banging
continued, until Mr. Johnson jumped over the fence.
(Id.). The other agent detained Mr. Johnson while
Trooper Harris provided security. (Id. at 24).
obtaining a search warrant, the agents reentered Trail's
End. (Doc. 178 at 122). The processing room contained several
large galvanized steel tables. (Id. at 86). The
tables held stacks of U.S. currency and two money counters.
(Id.). At least one money counter was turned on.
(Id. at 112). The cash was bundled with rubber
bands; the agents counted $455, 025 on the table.
(Id. at 86). The agents also found five cell
phones-including one in Mr. Johnson's pocket-throughout
the plant and 499 grams of cocaine in bags in a closet.
(Id.). One phone was found in the processing room
hooked up to a charger. (Id. at 111). Agents also
found in the closet a suitcase containing more multicolored
rubber bands, like the ones used to bundle the cash on the
table. (Id. at 91).
Stephen testified that the Mercedes SUV had a socket wrench
laying in the driver's seat and tools on the ground next
to the driver's side. (Doc. 178 at 87). He also saw a
pair of work gloves on the floor of the vehicle.
(Id.). However, Agent Stephen signed off on
government reports with no mention of tools on the seat.
(Id. at 113). The tools on the floor and in the
vehicle were not collected or checked for prints.
Harris, who also participated in the search once the warrant
was obtained, testified that the driver's side door was
open. (Doc. 178 at 24). He also testified that a socket with
a ratchet on it was lying in the front seat of the car.
(Id.). He saw more tools on a shelf to the right of
the vehicle. (Id. at 25).