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United States v. Johnson

United States District Court, N.D. Alabama, Southern Division

March 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DERRICK GLENN JOHNSON, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         This 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 motion.

         On 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.

         On 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. (Id.).

         Mr. 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).

         On 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.

         I. Background

         The 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.

         a. Government's account

         On 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).

         Trooper 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).

         When 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).

         Trooper 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).

         Trooper 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.).

         Trooper 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.).

         During 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.).

         At the 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. (Id.).

         This 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.).

         Ms. 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).

         That 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.).

         Using 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).

         The DEA 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).

         At 8:40 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 77-78).

         After 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).

         The law 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).

         After 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. at 122).

         While 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.).

         Once 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).

         After 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).

         Agent 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. (Id.).

         Trooper 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).

         b. Mr. ...


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