                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                   PUBLISH
                                                                      DEC 16 1997
                    UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                           Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

              v.                                      No. 96-6393

 COYETTE DEON JOHNSON,

       Defendant-Appellant.


                    Appeal from United States District Court
                     for the Western District of Oklahoma
                             (D.C. No. 96-CR-80)


William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for the appellant.

David L. Walling, Assistant United States Attorney (Patrick M. Ryan, United
States Attorney, with him on the brief), Oklahoma City, Oklahoma, for the
appellee.


Before TACHA, McKAY, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge.
      Defendant Coyette Johnson appeals his convictions of being a felon in

possession of a firearm, being an unlawful user of controlled substances in

possession of a firearm, and distribution of a controlled substance, and his

concurrent sentences of 237 months’ imprisonment. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291, and affirm in part, reverse in part, and remand with

instructions to vacate Johnson’s conviction for being an unlawful user of

controlled substances in possession of a firearm.

                                         I.

      Johnson was convicted of a felony in Wichita County, Texas, in 1994. In

late July or early August 1995, he and his girlfriend LaKeitha Diggs moved to

Temple, Oklahoma. They initially lived with Diggs’ mother and her mother’s

other three children. During their stay at Diggs’ mother’s house, Johnson smoked

marijuana on a daily basis. He also possessed a 9mm Intratec Tec-9 semi-

automatic handgun, which he stored in a paper sack on the floor of the closet in

one of the children’s rooms. He talked about the handgun on a regular basis with

Diggs’ mother’s sons and other young men who came to the house. In late

August 1995, Johnson and Diggs moved into a house approximately three blocks

from Diggs’ mother’s house. They continued to visit Diggs’ mother’s house on a

daily basis, Johnson continued to smoke marijuana on a regular basis, and

Johnson was seen regularly in possession of the handgun.


                                         -2-
      On October 18, 1995, the local drug task force arranged for Barbara

Watkins, an informant, to attempt a controlled narcotics purchase from Johnson.

Watkins met task force agents at Mooney Lake near Temple and the agents

searched her car, placed a body microphone on her, and provided her with cash to

make the purchase. Watkins, who is Caucasian, picked up Stella Sparks, who is

African-American, because she believed it would increase the chances of making

a narcotics purchase from Johnson, who is also an African-American. Sparks did

not know Watkins was going to make a controlled purchase. Watkins and Sparks

went to Diggs’ mother’s house where Johnson agreed to sell Watkins three rocks

of cocaine for $40. After Watkins and Sparks left the house and returned to the

car, Sparks took one of the rocks of cocaine and walked away. Watkins returned

to Mooney Lake and turned over the remaining rocks of cocaine to the agents. A

chemist at the Oklahoma State Bureau of Investigation confirmed the substance

was cocaine, but he did not determine whether it was cocaine hydrochloride or

cocaine base.

      Later that same evening, Johnson was socializing with several other people

at Diggs’ mother’s house when Sandra Mims arrived and informed them she had

argued with Johnny Green and he pulled a knife on her. A group of nine or ten of

them left the house in Mims’ car to find Green. Some rode inside the car and

others rode on the hood of the car. They first went to Ruby’s Cafe but Green was


                                        -3-
not there. The group then proceeded, some in the car and some on foot, to

Green’s house. They flagged down Jimmy Franklin, and Mims’ daughter

Shatauna Elicks got out of the car, began swinging her arms at him, and asked

Franklin if he knew who had “jumped” her mother. Johnson also got out of the

car, walked to the front of Franklin’s car, aimed his handgun at Franklin, and said

something to the effect of “I am going to get this brother. I am going to kill this

nigger.” R. III at 162. Franklin heard gunshots, realized his passenger window

had been shot, and ducked down in the seat and hit the accelerator pedal. When

he looked up, he saw Johnson on the hood of his car, holding onto the hood with

his left hand and holding his gun in his right hand. Johnson told Franklin to stop

but, after briefly stopping his car, Franklin again hit the accelerator pedal and

drove in an erratic fashion until Johnson fell off the hood of the car. Franklin

noticed Johnson’s handgun was lodged between the hood of the car and the

windshield so he reached his hand out the window and grabbed the gun. He then

drove downtown where he located a police officer and told her what had

happened. Officers determined the gun was loaded. They examined Franklin’s

car and found deep scratches on the hood. Although a bullet was retrieved from

the driver’s seat of the car, subsequent testing determined the bullet had not been

fired by Johnson’s gun.




                                          -4-
      A grand jury returned a three-count indictment against Johnson, charging

him in Count 1 with being a felon in possession of a firearm (18 U.S.C. §

922(g)(1)), in Count 2 with being an unlawful user of controlled substances in

possession of a firearm (18 U.S.C. § 922(g)(3)), and in Count 3 with distribution

of a controlled substance (21 U.S.C. § 841(a)(1)). Although the district court did

not require the government to elect between Count 1 and Count 2 prior to trial, it

concluded that if Johnson was convicted on both counts, it would sentence him on

only one count. Johnson was convicted by jury on all three counts and was

sentenced to 237 months’ imprisonment. The court sentenced him on only one of

the 922(g) counts, but the convictions on both counts remain in place.

                                         II.

                      Denial of pretrial motions to dismiss

      Johnson contends the district court erred in denying his pretrial motions to

dismiss. Johnson sought dismissal of Counts 1 and 2 as multiplicitous, and

dismissal of Count 2 because the charging statute was void for vagueness.

Although he acknowledges he was not punished for Count 2, he argues the alleged

error was prejudicial because it allowed the government to introduce evidence at

trial concerning a prior felony conviction and his drug usage.




                                         -5-
Multiplicity

      Multiplicity refers to multiple counts of an indictment which cover the

same criminal behavior. United States v. Morehead, 959 F.2d 1489, 1505 (10th

Cir. 1992). “While multiplicity is not fatal to an indictment, . . . it poses the

threat of multiple sentences for the same offense and may improperly suggest to

the jury that the defendant has committed more than one crime.” Id. (citation

omitted). The threat of multiple sentences for the same offense raises double

jeopardy implications. Id. We review claims of multiplicity de novo. United

States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir. 1997).

      Counts 1 and 2 both charged Johnson with knowingly possessing the Tec-9

handgun “[f]rom on or about July 1, 1995, up to and including on or about

October 18, 1995.” R. I, doc. 1. The only distinction between the counts is that

Count 1 alleged Johnson had been convicted of a felony and had violated 18

U.S.C. § 922(g)(1), whereas Count 2 alleged he was an unlawful user of

controlled substances and had violated 18 U.S.C. § 922(g)(3). In denying

Johnson’s pretrial motion to dismiss one of the counts, the district court

concluded “it was not the intention of Congress to provide for the punishment of

a defendant under two or more separate subdivisions of § 922(g).” Id., doc. 35 at

5. However, the court concluded the government was not required to elect

between the two counts because it was possible Johnson “could be found guilty of


                                           -6-
one count without necessarily being guilty of the other.” Id. The court concluded

if Johnson was found guilty of both counts, judgment would be entered on only

one count to avoid dual punishment. Id. (citing Ball v. United States, 470 U.S.

856, 865 (1985)). Johnson was convicted on both § 922(g) counts and sentenced

on one count (Count 1), but the record on appeal indicates both convictions

remain in place.

       Three circuits have addressed multiplicity arguments raised by defendants

who, like Johnson, were simultaneously charged with multiple firearm violations

under different subsections of § 922(g). In United States v. Peterson, 867 F.2d

1110 (8th Cir. 1989), one codefendant was convicted of three counts of unlawful

possession of firearms and ammunition by a convicted felon, in violation of §

922(g)(1), and one count of unlawful possession of firearms and ammunition by a

user of controlled substances, in violation of § 922(g)(3). 1 In rejecting the

multiplicity argument, the Eighth Circuit held multiple firearm violation counts

charged under different subsections of § 922(g) but arising out of the same

pattern of conduct were not multiplicitous because, under Blockburger v. United

States, 284 U.S. 299, 304 (1932), the counts each required at least one unique

element of proof.


       1
         Unfortunately, the opinion provides little detail concerning the facts of the case.
In particular, it is unclear whether the (g)(3) charge was based on possession of the same
firearm and at the same time as one of the (g)(1) charges.

                                             -7-
       In United States v. Winchester, 916 F.2d 601 (11th Cir. 1990), defendant

was convicted and sentenced for violations of § 922(g)(1) (felon in possession of

firearm) and (g)(2) (fugitive from justice in possession of firearm), arising out of

the same conduct (i.e., possession of a single firearm). On appeal, defendant

argued the counts were multiplicitous and he should not be sentenced for both.

The Eleventh Circuit agreed, concluding “that, in enacting section 922(g), it was

not within Congress’ comprehension or intention that a person could be

sentenced, for a single incident, under more than one of the subdivisions of

section 922(g).” Id. at 606. Although the court acknowledged that each offense

required proof of a fact the other did not, it distinguished Blockburger on two

grounds. First, the court noted the defendant in Blockburger was convicted and

sentenced under two different statutory sections while the defendant in

Winchester was convicted under two different subsections of the same statute. 2



       2
         Although the discussion of this point is conclusory, it appears to be supported by
Supreme Court precedent and other circuits. For example, in Sanabria v. United States,
437 U.S. 54, 70 n.24 (1978), the Court noted the Blockburger “same evidence” test is
“used to determine whether a single transaction may give rise to separate prosecutions,
convictions, and/or punishments under separate statutes.” Similarly, in Ball v. United
States, 470 U.S. 856, 861 (1985), the Court emphasized that “[t]he assumption underlying
the Blockburger rule is that Congress ordinarily does not intend to punish the same
offense under two different statutes.” See also United States v. Kimbrough, 69 F.3d 723,
729 n.5 (5th Cir. 1995) (Blockburger test “applies to determinations of whether Congress
intended the same conduct to be punishable under two criminal provisions,” and is
inapplicable where multiple counts are charged under “the same criminal provisions”),
cert. denied 116 S. Ct. 1547 (1996).

                                            -8-
Second, the court concluded Blockburger only provided guidance in determining

congressional intent and was therefore inapplicable because “[t]he statutory

language and legislative history of the Gun Control Act of 1968 [§ 922(g)]

reveal[ed] that Congress’ intent was to prohibit the possession of firearms by

classes of individuals it deemed dangerous, rather than to punish persons solely

for having a certain status under the law.” Id. In addition, the court concluded

any other interpretation of § 922(g) “would lead to [the] anomalous and draconian

result” of allowing a defendant having more than one of the statuses listed in the

various subdivisions to be sentenced consecutively for the same incident. Id. at

607.

       In United States v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993), the Fifth

Circuit acknowledged and agreed with Winchester. Although the Fifth Circuit

had originally applied Blockburger and upheld multiple sentences under various

subsections of § 922(g), see United States v. Munoz-Romo, 947 F.2d 170 (5th

Cir. 1991), defendant filed a petition for writ of certiorari and, in response, the

Solicitor General of the United States changed positions, confessed error, and

urged that the case be remanded for dismissal of one of the counts. The Supreme

Court granted certiorari, vacated the judgment, and remanded for further

consideration in light of the position asserted by the Solicitor General. On

remand, the Fifth Circuit concluded that “Congress, by rooting all the [firearm


                                          -9-
possession] offenses in a single legislative enactment and including all the

offenses in subsections of the same statute, signaled that it did not intend multiple

punishments for the possession of a single weapon.” 989 F. 2d at 759. The court

further concluded the test in Blockburger for determining legislative intent was

not controlling because “Congress intended to describe only a single crime that

could be committed by seven types of offenders.” Id.

      In light of the more persuasive reasoning contained in Winchester and

Munoz-Romo, and in light of the Solicitor General’s position maintained in

Munoz-Romo, we conclude Counts 1 and 2 are multiplicitous and that Johnson

can only be convicted and punished for one of the § 922(g) counts. Although

Johnson was properly sentenced on only one count, both convictions remain in

place. Accordingly, we remand this case to the district court with instructions to

vacate Johnson’s conviction on Count 2.

      The only remaining question is whether the district court erred in refusing

to require the government to elect between the two firearm counts prior to trial.

A decision of whether to require the prosecution to elect between multiplicitous

counts before trial is within the discretion of the trial court. See United States v.

Throneburg, 921 F.2d 654, 657 (6th Cir. 1990); United States v. Phillips, 962 F.

Supp. 200, 201 (D.D.C. 1997). The risk of a trial court not requiring pretrial

election is that it “may falsely suggest to a jury that a defendant has committed


                                          -10-
not one but several crimes.” United States v. Duncan, 850 F.2d 1104, 1108 n.4

(6th Cir. 1988); see also United States v. Marquardt, 786 F.2d 771, 778 (7th Cir.

1986) (multiple indictments create the impression of more criminal activity than

in fact occurred). “Once such a message is conveyed to the jury, the risk

increases that the jury will be diverted from a careful analysis of the conduct at

issue,” and will reach a compromise verdict or assume the defendant is guilty on

at least some of the charges. United States v. Clarridge, 811 F. Supp. 697, 702

(D.D.C. 1992).

      We conclude the district court did not abuse its discretion in denying

Johnson’s pretrial motion to dismiss one of the § 922(g) counts. As the court

noted, the possibility (albeit slim) existed that Johnson could be convicted on one

count and acquitted on the other. Even if the court’s denial of the motion could

be considered an abuse of discretion, it is clearly harmless in this case. See

United States v. Lane, 474 U.S. 438, 449 (1986) (misjoinder of counts does not

require reversal if it can be regarded as harmless error). The evidence of

Johnson’s guilt on all of the counts was overwhelming. There is little if any risk

that the evidence pertaining to the multiple firearm counts resulted in the jury

reaching a compromise verdict or in assuming Johnson’s guilt on one or more of

the counts.




                                         -11-
Vagueness

      Count 2 of the indictment charged Johnson with violating § 922(g)(3),

which makes it “unlawful for any person . . . who is an unlawful user of or

addicted to any controlled substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. 802)) . . . to . . . possess . . . any firearm.” According

to Johnson, the statute is unconstitutionally vague because it fails to define the

term “unlawful user of . . . any controlled substance” and does not require a nexus

in time or place between the use and possession of a firearm. As we are reversing

Johnson’s conviction on Count 2 and remanding with instructions to vacate that

conviction, it is unnecessary for us to address this vagueness issue.



Denial of pretrial motion to sever counts

      Johnson contends the district court erred in denying his pretrial motion to

sever Counts 1 and 2 from Count 3 at trial. Under Fed. R. Crim. P. 8(a), joinder

of offenses is permitted if the offenses “are of the same or similar character or are

based on the same act or transaction or on two or more acts or transactions

connected together or constituting parts of a common scheme or plan.” Although

alleged misjoinder under Rule 8 is a question of law subject to de novo review,

we construe Rule 8 broadly to allow liberal joinder to enhance the efficiency of

the judicial system. United States v. Janus Indus., 48 F.3d 1548, 1557 (10th Cir.


                                         -12-
1995). Aside from the provisions of Rule 8, a district court has discretion to

sever under Fed. R. Crim. P. 14 if it appears defendant will be prejudiced by

joinder of the offenses. Whether to grant severance under Rule 14 rests within

the discretion of the district court and the burden on defendant to “‘show an abuse

of discretion in this context is a difficult one.’” Id. (quoting United States v.

Valentine, 706 F.2d 282, 290 (10th Cir. 1983)). Prejudicial joinder occurs under

Rule 14 when an individual’s right to a fair trial is threatened or actually

deprived. United States v. Holland, 10 F.3d 696, 699 (10th Cir. 1993).

      We conclude joinder of the offenses here was proper under Rule 8 because

the handgun was arguably related to and part of Johnson’s drug trafficking

scheme. Although there was no evidence that Johnson actually used or carried the

handgun when he sold cocaine to Watkins on the night of October 18, 1995, there

was evidence he had made previous sales of drugs in Temple. It was reasonable

for the jury to infer the handgun aided or assisted him in those transactions. See

United States v. Hubbard, 61 F.3d 1261, 1270 (7th Cir. 1995) (“natural

inferences” may be drawn from contemporaneous possession of guns and drugs

because “the firearm is an indication of drug activity, and participation in drug

trafficking supplies a motive for having the gun”), cert. denied 116 S. Ct. 1268

(1996); United States v. Hollis, 971 F.2d 1441, 1457 (10th Cir. 1993) (possession

of firearm was part of drug trafficking scheme). Moreover, law enforcement


                                          -13-
officers took possession of the handgun within hours of Johnson making the

cocaine sale to Watkins on October 18, 1995. See United States v. Cox, 934 F.2d

1114, 1119 (10th Cir. 1991) (joinder of marijuana distribution offenses with

possession of firearm offenses proper where firearm was seized at same time and

same place officers seized marijuana).

      Finally, we conclude the district court did not abuse its discretion by

denying severance under Rule 14. The court’s order suggests it considered

possible prejudice from a single trial on all counts against expense and

inconvenience of separate trials and decided severance was not required. Nothing

Johnson has presented demonstrates this was an abuse of discretion. See

generally Hollis, 971 F.2d at 1457 (“The district court was not required to sever

the counts simply because . . . the ‘defendant might have a better chance for

acquittal by separate trials.’”). Moreover, even assuming the court did abuse its

discretion, Johnson has not demonstrated actual prejudice resulting from a single

trial. The evidence of Johnson’s guilt on Count 3 was overwhelming. It was

uncontroverted that Watkins went to Diggs’ mother’s house on October 18, 1995,

where she met with Johnson and left with three rocks of cocaine. Although

Johnson attempted to call into question the identity of the person who sold

cocaine to Watkins, Watkins testified at trial and unequivocally identified

Johnson as the person who had sold the cocaine to her. Accordingly, there is no


                                         -14-
indication that joinder of the firearms offenses or introduction of evidence

concerning those offenses influenced the jury’s verdict on Count 3.



Jury instructions regarding distribution count

      Johnson contends the district court erred in refusing to give his proposed

instruction to the effect that it was the government’s responsibility to prove

beyond a reasonable doubt that the substance sold to Watkins was in fact cocaine

base as alleged in the indictment. Count 3 alleged that Johnson distributed

“approximately .18 grams of a mixture or substance containing a detectable

amount of cocaine base, a Schedule II controlled substance.” R. I, doc. 1 at 2

(emphasis added). The district court rejected Johnson’s proposed instruction and

instructed the jury that it must find beyond a reasonable doubt that Johnson

distributed a “controlled substance.”

      We find United States v. Deisch, 20 F.3d 139 (5th Cir. 1994), persuasive.

In Deisch, the Fifth Circuit addressed and rejected an argument similar to that

now urged by Johnson. The court concluded “that the identity of the involved

controlled substance as being ‘cocaine base’ rather than simply ‘cocaine’ is not an

element of any section 841(a)(1) offense.” Id. at 151. Instead, the court held:

“For a section 841(a)(1) offense involving cocaine base the indictment need only

allege, and the jury need only find, that the substance was cocaine, and whether or


                                         -15-
not it was the ‘cocaine base’ form of cocaine is purely a sentencing factor.” Id.;

see also United States v. Levy, 904 F.2d 1026, 1034 (6th Cir. 1990) (“Under

section 841(b)(1)(B), the district court determines the quantity and type of

controlled substance for the purpose of sentencing.”).

      Here, the jury was instructed that to find Johnson guilty on the distribution

charge, it must find he distributed “a controlled substance,” “knew that he

distributed a controlled substance,” and “intended to distribute the controlled

substance.” R. I, doc. 46, instr. 25. The jury was further instructed that it was

“not necessary for the government to prove that [Johnson] knew the precise nature

of the controlled substance that was distributed.” Id., instr. 26. Finally, the jury

was instructed cocaine was a “controlled substance[] under federal law.” Id.,

instr. 27. These instructions are clearly consistent with Deisch and required the

jury to determine Johnson knew he was distributing a controlled substance and

intended to distribute a controlled substance. No more was required under Deisch

and, more importantly, no more is required to prove a violation of § 841(a)(1).

The district court did not err in rejecting Johnson’s tendered instruction.



Sufficiency of evidence

      Johnson contends the evidence at trial was insufficient to support his

convictions. Sufficiency of the evidence is a question of law subject to de novo


                                         -16-
review. United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). Evidence is

sufficient to support a conviction if the evidence and reasonable inferences drawn

therefrom, viewed in the light most favorable to the government, would allow a

reasonable jury to find defendant guilty beyond a reasonable doubt. Id. In

examining the evidence, “we evaluate the sufficiency of the evidence by

‘consider[ing] the collective inferences to be drawn from the evidence as a

whole.’” Id. (quoting United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.

1986)). We will not overturn a jury’s finding unless no reasonable juror could

have reached the disputed verdict. United States v. Chavez-Palacios, 30 F.3d

1290, 1293 (10th Cir. 1994).

      To support a felon in possession of a firearm conviction under § 922(g)(1),

the evidence must demonstrate defendant was a convicted felon, defendant

knowingly possessed a firearm, and the firearm traveled in or affected interstate

commerce. See United States v. Capps, 77 F.3d 350, 352 (10th Cir.), cert. denied

116 S. Ct. 2568 (1996). Johnson stipulated he was a convicted felon. The

evidence overwhelmingly demonstrated he possessed a Tec-9 handgun from the

time he moved to Temple in late July 1995 until October 18, 1995, when it was

recovered by officers. It was uncontroverted that the handgun had been

manufactured in Florida and had thus traveled in interstate commerce to reach




                                        -17-
Oklahoma. Viewed in the light most favorable to the government, this evidence

is sufficient to support Johnson’s conviction on Count I.

      “Pursuant to the plain language of § 841(a)(1), the essential elements of a

prima facie case of distribution of a controlled substance are: (1) knowing or

intentional; (2) distribution; (3) of a controlled substance.” United States v.

Santistevan, 39 F.3d 250, 255 (10th Cir. 1994). “Distribution” has been defined

by Congress as a “delivery,” which encompasses “the actual, constructive, or

attempted transfer of a controlled substance.” Id. Watkins testified that she and

Sparks went to Diggs’ mother’s house and negotiated the purchase of $40 worth

of cocaine from Johnson. Law enforcement officers corroborated Watkins’

testimony and verified that the substances purchased from Johnson were cocaine.

Although defense counsel attempted to raise doubts concerning identity of the

person who sold the cocaine to Watkins, given Watkins’ in-court identification of

Johnson as the person she dealt with, the jury had an evidentiary basis for

concluding Johnson was the person who sold the cocaine to Watkins. Viewed in

the light most favorable to the government, this evidence is sufficient to support

Johnson’s conviction on Count 3.




                                         -18-
Outrageous governmental conduct

      Johnson contends the district court erred in denying his motion for

judgment of acquittal on Count 3 for outrageous governmental conduct.

Specifically, he complained that after Watkins made the controlled purchase of

cocaine, officers knowingly allowed her to distribute one of the rocks of cocaine

to Sparks. He argued it was outrageous conduct for the government to condone

this illegal conduct.

      In considering a claim of outrageous governmental conduct, our scope of

review is de novo. United States v. Sneed, 34 F.3d 1570, 1576 (10th Cir. 1994).

The defense of outrageous governmental conduct is based on the Due Process

Clause of the Fifth Amendment. Id. Unlike the defense of entrapment, which

considers predisposition of defendant to commit the crime, the defense of

outrageous governmental conduct looks only at governmental conduct. Id. at

1576-77. To date, courts recognizing the outrageous conduct defense “have not

attempted to attach a precise definition to its requirements.” United States v.

Lacey, 86 F.3d 956, 964 (10th Cir.), cert. denied 117 S. Ct. 331 (1996). “Rather,

the relevant inquiry is whether, considering the totality of the circumstances in

any given case, the government’s conduct is so shocking, outrageous and

intolerable that it offends ‘the universal sense of justice.’” Id. We have

previously emphasized the defense “is an extraordinary [one] reserved for only


                                         -19-
the most egregious circumstances,” and “is not to be invoked each time the

government acts deceptively or participates in a crime that it is investigating.”

United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992).

      The facts Johnson points to in support of his contention are essentially

uncontroverted. After making the controlled purchase from Johnson, Watkins

gave one of the three rocks of cocaine to Sparks before meeting with drug task

force agents. However, this fact must be considered in light of other evidence

presented at trial. Watkins testified she had previously attempted to make a

controlled purchase from Johnson but was unsuccessful because he believed she

was a “snitch.” She decided to ask Sparks to accompany her with the hope that

Sparks’ presence would convince Johnson to make a sale. Sparks was unaware

that Watkins was an informant or that a controlled purchase was taking place.

When she returned to Mooney Lake, Watkins informed the agents that she had

given Sparks a rock of cocaine. Although the agents testified they would have

preferred her not giving Sparks a rock of cocaine, they concluded it was Watkins’

“only way out” of the situation. Considering all of these facts together, we reject

Johnson’s outrageous conduct defense. Although Watkins violated the law, the

government’s acknowledgment of this conduct was not “so shocking, outrageous

and intolerable” as to “offend[] the universal sense of justice.” Lacey, 86 F.3d at

964. Moreover, the alleged outrageous conduct had no connection to Johnson.


                                         -20-
The government did not induce Johnson to become involved in drug distribution

for the first time, nor did it substantially coerce him into committing the crime.

See Mosley, 965 F.2d at 911 (“two factors . . . form the underpinning for most

cases where the outrageous conduct defense has been upheld: government

creation of the crime and substantial coercion”); see also Sneed, 34 F.3d at 1577-

78.



Sentence enhancement

      Johnson challenges the district court’s decision to sentence him as a career

criminal under 18 U.S.C. § 924(e)(1). The government filed a notice of its intent

to seek sentence enhancement prior to trial. After trial, Johnson objected on the

grounds that three of the four convictions listed in the government’s notice were

controlled substances offenses that occurred in Wichita Falls, Texas, on March

23, March 26, and August 26, 1993; that the offenses “were part of the same

course of conduct or common scheme or plan”; and that the offenses should be

treated as a single conviction for purposes of § 924(e)(1).

      We review de novo a sentence enhancement imposed under the Armed

Career Criminal Act. United States v. Romero, 122 F.3d 1334, 1340 (10th Cir.

1997); see also United States v. Murphy, 107 F.3d 1199, 1208 (6th Cir. 1997)

(“Since determining whether the conduct was a single occasion or multiple


                                         -21-
occasions presents a legal question concerning the interpretation of a statute, we

review the district court’s decision de novo.”). The government carries the

burden of proving by a preponderance of the evidence that an enhancement is

appropriate. Id. The Act authorizes an enhanced prison term for a defendant who

is convicted of being a felon in possession of a firearm, who has “three previous

convictions by any court . . . for a violent felony or a serious drug offense, or

both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1)

(emphasis added); see Romero, 122 F.3d at 1340.

      We have not considered the precise question raised by Johnson--whether

multiple drug offenses, committed close in time, constitute a single conviction or

multiple convictions for purposes of § 924(e)(1). However, we have analyzed §

924(e)(1) on numerous occasions and adopted the view, which is shared by most

other circuits, that the statutory reference to offenses “committed on occasions

different from one another” “was intended to reach multiple criminal episodes

distinct in time.” United States v. Tisdale, 921 F.2d 1095, 1098-99 (10th Cir.

1991) (concluding three separate burglary offenses had occurred for purposes of §

924(e)(1) when defendant broke into a shopping mall and burglarized two private

businesses and a post office); see also United States v. Green, 967 F.2d 459, 461-

62 (10th Cir. 1992) (reaffirming Tisdale and rejecting notion that § 924(e)(1)

requires predicate convictions to be result of separate judicial proceedings).


                                          -22-
      At least five other circuits have addressed and rejected the precise question

raised by Johnson. In United States v. Maxey, 989 F.2d 303, 306 (9th Cir. 1993),

the defendant urged the court “to apply the single criminal episode rule to

multiple drug offenses differently from violent felonies.” Specifically, the

defendant argued “that convictions that result from a continuous, ongoing

business of selling drugs should comprise a single criminal episode for purposes

of section 924(e).” Id. The Ninth Circuit rejected this argument and held “that

no less than violent felonies, drug offenses committed at distinct, different times

are separate predicate offenses for purposes of section 924(e),” id. at 307, “even

if committed within hours of each other, similar in nature, and consolidated for

trial or sentencing.” Id. at 306. The court concluded two sales of PCP-laced

cigarettes that occurred in the same state and county within twenty-four days of

each other were separate offenses for purposes of § 924(e)(1). Id. at 305-06. See

also United States v. Kelley, 981 F.2d 1464, 1473-74 (5th Cir. 1993) (two

deliveries of cocaine two weeks apart in different counties were separate offenses

for purposes of § 924(e)(1)); United States v. Samuels, 970 F.2d 1312, 1315 (4th

Cir. 1992) (two drug offenses one day apart were separate offenses for purposes

of § 924(e)(1)); United States v. Roach, 958 F.2d 679, 683-84 (6th Cir. 1992)

(three drug sales on March 11, 12, and 26, 1981, were separate offenses for

purposes of § 924(e)(1)); United States v. McDile, 914 F.2d 1059, 1061-62 (8th


                                         -23-
Cir. 1990) (sales of drugs on September 15, November 15, 17, and 23, 1983, were

separate offenses for purposes of § 924(e)(1)).

      Having already adopted and applied the “single criminal episode” rule in

other contexts, we find it appropriate to follow the Fourth, Fifth, Sixth, Eighth,

and Ninth Circuits (all of whom have adopted the “single criminal episode” rule)

and apply the rule to cases such as the one at bar involving prior drug offenses.

The result is that drug offenses committed at “distinct, different times” will be

treated as separate predicate offenses for purposes of § 924(e)(1).

      Applying the “single criminal episode” rule here, we conclude the three

underlying drug convictions constitute separate offenses for purposes of §

924(e)(1). The presentence report indicated that, on March 23, 1993, Johnson

approached an undercover officer in Wichita Falls, Texas, and sold him a quantity

of crack cocaine for $20. Three days later he again approached an undercover

officer and sold him a quantity of crack cocaine for $20 (the report does not

indicate whether it was the same officer). Finally, on August 26, 1993, he

committed a third, similar offense by delivering $20 worth of crack cocaine to an

undercover officer. Although the three offenses were similar in nature, they were

clearly distinct in time and separate criminal episodes for purposes of § 924(e)(1).




                                         -24-
                                       III.

      We AFFIRM Johnson’s convictions on Counts 1 and 3, but REVERSE

Johnson’s conviction on Count 2 and REMAND the case to the district court with

instructions to VACATE that conviction. Because the district court did not

consider Count 2 in imposing Johnson’s sentence, we AFFIRM his sentence.




                                       -25-
No.96-6393, U.S. v. Johnson

TACHA, J., dissenting.



      I respectfully dissent from that portion of the majority opinion that finds

the convictions on Counts I and II multiplicitous. I do not find in the language

and structure of 18 U.S.C. § 922(g) a clear Congressional intent not to impose

cumulative punishment when possession of a weapon violated more than one of

the subdivisions of subsection (g). Congress clearly expressed in the statutory

language the intent to bar possession of a firearm by the classes of persons that

Congress determined were dangerous. Nothing in the statutory language suggests

that because an individual defendant may be proved to fall into several categories,

Congress intended that the defendant should be punished under only one of the

enumerated subdivisions. The contrary is true and, for me, dictates that the

Blockburger test should apply. Clearly, each offense enumerated under the

subdivisions of section 922(g) requires proof of a fact that the other subdivisions

do not. The majority and the other circuits which the majority follows rely

largely on a statutory organization rationale and on the about-face of the Solicitor

General in United States v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993). Neither

of these reasons overcomes, for me, the clearly-stated statutory provisions

delineating separate enhancements and requiring different proof of the elements

of each to which the Blockburger test should be applied. I would follow the
Eighth Circuit in United States v. Peterson, 867 F.2d 1110, 1115 (8th Cir. 1989)

for the reasons ably stated by Judge Barksdale in the dissent in Munoz-Romo.

See 989 F.2d at 760 (Barksdale, J., dissenting).




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