Appeal from the United States District Court for the Central District of Illinois. No. 04-CR-30046-Jeanne E. Scott, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
In a multi-count indictment the government charged Henry D. Johnson with overseeing a gang-related crack distribution operation in Quincy, Illinois. After several participants in the operation testified against him at trial, a jury found Johnson guilty on all counts, including a charge that he engaged in a continuing criminal enterprise ("CCE") between the years 2000 and 2002. See 21 U.S.C. § 848. The district court sentenced Johnson to life imprisonment. See id. § 848(a).
Johnson challenges his convictions and sentence in this appeal. He argues that the court committed reversible error in allowing the government to present evidence of his participation in uncharged drug activities and other bad acts. He also argues that the court failed to properly instruct the jurors that they must unanimously agree that Johnson organized, supervised, or managed five or more people to find him guilty of the CCE offense. Finally, Johnson argues-and the government agrees- that his sentence should be vacated and his case remanded for resentencing under Kimbrough v. United States, 552 U.S. 85 (2007). We affirm Johnson's convictions but remand for resentencing.
Johnson was arrested after he sold marijuana and crack to his next-door neighbor who, unbeknownst to Johnson, was cooperating with law enforcement authorities. The government eventually charged Johnson with engaging in a CCE and with nine related conspiracy and drug charges, all involving conduct that occurred between 2000 and 2002. After pleading not guilty, Johnson moved to exclude from trial any testimony describing drug activities or other bad acts that took place before 2000. The district court denied the motion, ruling that evidence of prior bad acts would be allowed to "show the relationship of other individuals to this defendant in an attempt to prove the [CCE] charge."
At Johnson's trial his former best friend, Nolan Nelson, described at length how Johnson rose through the ranks of a street gang known as the Black P-Stone Nation, or the P-Stones, by selling crack and marijuana in Quincy. Over Johnson's objection Nelson provided details regarding Johnson's gang and drug activities from 1993 until 2000. Specifically, Nelson testified that shortly after Johnson moved from Joliet to Quincy in 1993, he encouraged Nelson to join him with the promise that crack sales there were especially lucrative. Nelson agreed and the two became partners, sharing the profits from their drug sales. Their partnership was interrupted in 1994 when Nelson went to prison on drug charges, but when he returned to Quincy in 1998 he and Johnson continued to sell drugs together, with Nelson acting as Johnson's right-hand man. By this time other members of the P-Stones had settled in Quincy, and Johnson was their highest-ranking member. Together, Nelson and Johnson provided crack to lower-ranking P-Stones who would then sell it on the streets. According to Nelson, by 1998 Johnson had the final say on decisions, gave orders to the other gang members regarding drug sales, and meted out punishments (usually, beatings) when he thought his directions were not being followed. During this period Johnson began discussing with Nelson how to better organize the gang to maximize their sales and minimize their risk of being caught.
Nelson also described at length Johnson's drug operations during the period of the charged conduct: 2000 through 2002. He explained that in 2000 he and Johnson had a falling out over whether the amounts of crack that Johnson wanted to sell made their operation too risky. In the wake of the disagreement, Johnson recruited a new right-hand man, Derrick Phillips. That year Johnson also was named a "Prince," which is the second-highest possible rank within the P-Stones hierarchy. Nelson explained that throughout 2000 and 2001 Johnson ran his crack-distribution operation out of his house in Quincy. Johnson obtained powder cocaine from Kevin Turner, a P-Stone Prince in Chicago who purchased large quantities of cocaine from a Mexican source. Throughout this period members of the P-Stones would drive Johnson or travel with him by train to Turner's house, where they would purchase distribution quantities of cocaine. They would then "cook" the powder cocaine into crack. In 2001 Nelson accompanied Johnson on three of these trips and twice watched Johnson and other P-Stones cook powder cocaine into crack. Nelson testified that he quit selling drugs for Johnson in December 2001 because he was worried about being caught, but said that Johnson continued the operation throughout 2002.
Several witnesses corroborated Nelson's account of Johnson's drug activities during the period of the charged conduct. Kevin Turner testified that he met Johnson in 2000 and began supplying him with cocaine a few months later. He confirmed that between 2000 and 2002 Johnson or his operatives would travel to Turner's house in Chicago every couple of months, purchasing up to a quarter of a kilogram of cocaine at a time. Numerous other trial witnesses, including Craig Abbey, Tomekar Robertson, Joe Ball, and Anthony Buckner, testified that they had accompanied Johnson to Turner's house in Chicago or made trips there on Johnson's behalf. Johnson would carry a minimum of $7,500 per trip, and sometimes up to $17,000. The witnesses confirmed that Johnson or his operatives then would return to Quincy where they would cook the cocaine into crack and sell it.
Nelson and Ball testified that Johnson established and enforced rules governing the P-Stones' sales of crack in Quincy. Johnson supplied crack to as many as eight lower-ranking street dealers, including Buckner, Robertson, Craig Abbey, Joe Abbey, and Derrick Phillips. At times they worked on rotation, with each street dealer taking a turn selling the available drugs. At other times they worked on a profit-sharing system. Whoever had drugs on a given day would put five bags into a pot, and when all the bags sold, the contributors would split the proceeds. If the street dealers needed more drugs, they would get them from Ball or Johnson himself. Johnson had the authority to elevate members within the gang hierarchy; Craig Abbey testified that in 2002 Johnson made him a "general." That position falls two levels beneath Johnson's role of prince within the P-Stones structure.
Over Johnson's objection, the government solicited the testimony of Mary Green, a self-described crack addict who testified that she purchased drugs from Johnson four or five times during the period of the charged conduct. The majority of Green's testimony focused on the years 1998 and 1999, when she was spending up to $400 per day on crack. Green testified that she funded her habit in part by stealing clothes, and that in 1998 Johnson asked her to steal children's clothes for him in exchange for crack. She also testified that in 1999 Johnson gave her crack after she built a dog pen in his backyard.
The government also questioned Craig Abbey and Anthony Buckner about Johnson's illegal activities in the years leading up to the charged period. Buckner testified that in 1994 his brother and Johnson were "fighting" and "shooting" at each other in connection with a drug feud. He also explained that throughout 1999 he was purchasing crack from Johnson, whose supplies were plentiful. Buckner gave details about the quantities and costs of crack he bought from Johnson for resale. Abbey testified that he joined the P-Stones in 1998 because he had noticed that Johnson and Nelson wore expensive clothes, shoes, and jewelry despite being unemployed. He also testified that he started selling crack for Johnson that year, giving details about the quantities he sold and the prices he charged.
At the close of evidence, the government and Johnson's attorney disagreed over how the jury should be instructed with respect to the CCE charge. To find Johnson guilty of a CCE offense under 21 U.S.C. § 848, the jury had to conclude that Johnson organized, managed, or supervised at least five or more people in committing a series of underlying drug offenses. ...