                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 20 2005
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-3014
          v.                                            (D. of Kan.)
 SHERIE A. JOHNSON,                          (D.C. No. 03-CR-20013-04-JWL)

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.          **




      A federal jury in the District of Kansas convicted Sherie A. Johnson on

three drug related charges. She was convicted of conspiracy to possess with the

intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846;

aiding and abetting the distribution of 50 grams or more of crack cocaine in

violation of 21 U.S.C. 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2; and maintaining a


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
dwelling for the purpose of distributing crack cocaine in violation of 21 U.S.C.

§ 856(a)(1). Following her conviction, Ms. Johnson filed a renewed motion for

judgment of acquittal under Federal Rule of Criminal Procedure 29, which the

district court denied. This appeal followed.

      On appeal, Ms. Johnson’s counsel, who represented her at trial, filed a brief

as permitted by Anders v. California , 386 U.S. 738 (1967), asserting there are no

non-frivolous issues for this court to review and seeking permission to withdraw

as appellate counsel. Ms. Johnson, proceeding pro se, urges this court to evaluate

the record and address six allegations of error. For the reasons set forth below,

we grant the motion to withdraw and dismiss the appeal.

                                  DISCUSSION

      1. Sufficiency of the Evidence

      Ms. Johnson first challenges the sufficiency of the evidence supporting her

convictions. “In making this argument, [Ms. Johnson is] faced with a high

hurdle.” United States v. Voss, 82 F.3d 1521, 1524 (10th Cir. 1996). In

reviewing the sufficiency of the evidence to support a jury verdict, we review the

record de novo “and ask only whether, taking the evidence—both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom—in

the light most favorable to the government, a reasonable jury could find the

defendant guilty beyond a reasonable doubt.” Id. at 1525 (citations and quotation


                                         -2-
omitted). We do not assess the credibility of witnesses or weigh conflicting

evidence since these tasks are exclusively those of the jury. United States v.

Castorena-Jaime, 285 F.3d 916, 933 (10th Cir. 2002). We may reverse “only if

no rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Brown, 400 F.3d 1242, 1247 (10th

Cir. 2005) (citations and quotation omitted).

                                         A.

      To prove a conspiracy to possess with the intent to distribute narcotics in

violation of 21 U.S.C. § 846, the government had to prove the following

elements: (1) an agreement with another person to violate the law; (2) knowledge

of the essential objectives of the conspiracy; (3) knowing and voluntary

involvement; and (4) interdependence among the alleged coconspirators. United

States v. Riggins, 15 F.3d 992, 994 (10th Cir. 1994) (citation omitted). The jury

may infer an agreement constituting a conspiracy “from the acts of the parties and

other circumstantial evidence indicating concert of action for the accomplishment

of a common purpose.” United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir.

1994). The jury is also entitled to “presume that a defendant is a knowing

participant in the conspiracy when he acts in furtherance of the objective of the

conspiracy.” United States v. Brown, 995 F.2d 1493, 1502 (10th Cir. 1993)

(citations and quotation omitted), overruled on other grounds by United States v.


                                         -3-
Prentiss, 256 F.3d 971 (10th Cir. 2001). As to the interdependence prong, the

government need only show a defendant’s actions “facilitated the endeavors of

other coconspirators or facilitated the venture as a whole.” United States v.

Powell, 982 F.2d 1422, 1429 (10th Cir. 1992) (citations omitted). Thus, “[a]

defendant’s connection to a conspiracy may be slight, as long as the government

proves defendant’s knowing participation.” Id.

      In this case, it is abundantly clear that a rational trier of fact could have

concluded Ms. Johnson knew the essential objectives of the conspiracy and

voluntarily became a part of it. As presented by the government, Ms. Johnson’s

father, Donald Johnson, Sr., and her brother, Donald Johnson, Jr., led a

conspiracy to manufacture and distribute crack cocaine. The evidence against

these two co-defendants was overwhelming. Donald Johnson, Jr. pled guilty to

the conspiracy, and a jury convicted Donald Johnson, Sr. Another coconspirator,

James Gaskin, also pled guilty. In the words of an experienced officer that

testified at Ms. Johnson’s trial, this drug conspiracy was “probably the biggest”

he had ever investigated.

      Regarding the evidence against Ms. Johnson, Gaskin testified that Donald

Johnson, Sr. would set aside quantities of crack cocaine for her to distribute. This

happened, according to Gaskin, “quite a few times” when Ms. Johnson was living

at a home on 1515 Wood in Kansas City. She also allowed this residence to be


                                          -4-
used by her coconspirators to “cook” powder cocaine into crack, although Ms.

Johnson herself did not participate in the cooking process. According to Gaskin,

each member of the conspiracy had a defined role, and Ms. Johnson’s role was to

distribute crack to her own clientele. On several occasions, in fact, Gaskin

purchased crack from Ms. Johnson which he subsequently distributed to others.

Ms. Johnson also lent her car in furtherance of the conspiracy. Ms. Johnson’s

brother, Donald Jr., used her car on several occasions to pick up and transport

packages containing powder cocaine. In addition to Gaskin’s testimony, Brian

Faulkner, a confidential informant, testified that he observed Ms. Johnson sell

crack cocaine to several individuals at her residence on 1515 Wood, and that on

one occasion she told Faulkner that “soup” (meaning crack) would be cooked that

night.

         In sum, in addition to testimony that Ms. Johnson directly participated in

distributing crack, she also facilitated the conspiracy through the use of her

residence and car. We therefore hold that the testimony given at trial, when

viewed in the light most favorable to the government, easily establishes that Ms.

Johnson participated in the conspiracy to manufacture and distribute crack

cocaine.




                                           -5-
                                             B.

       To sustain a conviction of possession with intent to distribute under 21

U.S.C. § 841(a)(1), the government must prove the defendant (1) possessed a

controlled substance, (2) knew she possessed a controlled substance, and (3)

intended to distribute the controlled substance.   United States v. Jenkins ,

175 F.3d 1208, 1216 (10th Cir. 1999) (citation and quotation omitted). Even if

there was not evidence that Ms. Johnson herself distributed more than 50 grams

of crack cocaine, a jury could still convict under aider and abetter liability. 18

U.S.C. § 2. “To be guilty of aiding and abetting, a defendant must willfully

associate with the criminal venture and aid such venture through affirmative

action.” United States v. Jones , 44 F.3d 860, 869 (10th Cir. 1995). “The

evidence that supports a conviction for conspiracy can also be used to support a

conviction for aiding and abetting in the possession of illegal narcotics with intent

to distribute.”   United States v. Gallo , 927 F.2d 815, 822 (5th Cir. 1991) (citation

omitted).

       In this case, the facts established that Ms. Johnson directly participated in

crack distribution and that her actions affirmatively aided distribution by others.

In addition to the facts discussed above, Faulkner testified regarding a controlled

purchase set up by law enforcement officials. Faulkner attempted to contact

Donald Johnson, Sr. to arrange for the purchase of 60 grams of crack. Faulkner


                                             -6-
contacted Ms. Johnson in an attempt to locate her father. During their

conversation, which was taped and introduced into evidence, Faulkner asked Ms.

Johnson whether she was “playing basketball,” a code phrase for selling crack.

As a result of this conversation, Faulkner came to Ms. Johnson’s residence at

1515 Wood and completed a purchase from Donald Johnson, Sr. Ms. Johnson

was present throughout the course of the transaction. Therefore, we hold that a

reasonable jury could find her guilty on the drug distribution charge beyond a

reasonable doubt .

                                         C.

      Finally, 21 U.S.C. § 856(a)(1) makes it unlawful to “knowingly open or

maintain any place for the purpose of manufacturing, distributing, or using any

controlled substance.” In order to convict a defendant of this charge, the

prosecution must prove that she (1) knowingly (2) opened or maintained a place

(3) for the purpose of manufacturing a controlled substance. United States v.

Higgins, 282 F.3d 1261, 1276 (10th Cir. 2002) (citation omitted).

      Both Gaskin and Faulkner testified that Ms. Johnson’s primary residence

was the house at 1515 Wood. Additionally, the government introduced school

enrollment forms and free lunch applications for Ms. Johnson’s two children.

These documents, signed by Ms. Johnson, indicated the children lived with their

mother at 1515 Wood. Therefore, notwithstanding the fact that the residence was


                                         -7-
owned by Donald Johnson, Sr., the evidence sufficiently established that Ms.

Johnson resided there. Furthermore, as discussed above, the evidence established

that the residence was used to cook crack cocaine and as a place from which crack

was distributed. We therefore hold the government provided sufficient evidence

to convict under § 856(a)(1).

       2. Admissibility of Photographs

       Ms. Johnson next argues the district court erred in admitting two

photographs of packaged cocaine that belonged to a non-defendant, Van Spears.

At trial Ms. Johnson’s counsel objected to the photographs on relevancy grounds,

which was overruled by the district court. We review evidentiary objections for

abuse of discretion.   United States v. Davis , 40 F.3d 1069, 1073 (10th Cir. 1994).

       Here, the district court did not abuse its discretion in admitting the

photographs. Gaskin testified at length regarding how the Johnsons obtained

powder cocaine and cooked it into crack for distribution. He stated that Van

Spears was the Johnsons’ source of cocaine, and that Donald Jr., often using Ms.

Johnson’s car, made regular trips to Van Spears’ house to purchase cocaine. The

photographs at issue depicted packaged cocaine seized by law enforcement

officers during a raid of Van Spears’ house. At Ms. Johnson’s trial, the

government used the photographs to show that the packaging found during Van

Spears’ raid matched packaging that was seized in connection with the Johnsons’


                                          -8-
conspiracy. Thus, by establishing the source of the Johnsons’ cocaine, the

photographs were relevant to the creation of the conspiracy, its scope, and the

actions taken by Ms. Johnson’s coconspirators in furtherance of the conspiracy.

See United States v. Mendoza-Salgado     , 964 F.2d 993, 1006–07 (10th Cir. 1992)

(actions taken by coconspirators in furtherance of conspiracy are relevant under

Fed. R. Evid. 401).

      3. Admissibility of Free Lunch Form

      Ms. Johnson also challenges the admission into evidence of a school lunch

form that she signed in January 2003, approximately one month after the

conclusion of the conspiracy alleged in the superceding indictment. Ms.

Johnson’s counsel objected to the admission of this exhibit on relevancy grounds.

Again, we find the district court did not abuse its discretion in admitting the

exhibit.

      The government used the school lunch form to establish that Ms. Johnson

maintained the residence at the 1515 Wood for purposes of      21 U.S.C. § 856(a)(1).

The district court overruled the objection, noting “the law is clear that something

that occurs after a particular date is still relevant as to whether the fact was in

existence before that date.” We need not address the issue in this fashion,

however, because the school lunch form was not the government’s only evidence.

The government also introduced school enrollment documents that were signed


                                           -9-
and dated by Ms. Johnson in August 2002, which was within the conspiracy dates

alleged in the superceding indictment. Ms. Johnson’s counsel conceded at trial

that these documents were admissible. Gaskin and Faulkner also testified that

Ms. Johnson used 1515 Wood as her primary residence. Thus, even if it was error

to admit the school lunch forms, we would hold that such error was harmless.     See

United States v. Vaughn , 370 F.3d 1049, 1051–52 (10th Cir. 2004) (evidentiary

errors reviewed for harmless error).

      4. Improper Witness Statements Regarding Truthfulness

      Ms. Johnson’s next allegation of error relates to the following testimony by

coconspirator Gaskin during direct examination by the government:

      Q:     What’s your understanding if you provide information that’s not
             truthful or that we establish you’re not telling the truth about?

      A:     Then the plea agreement is no good. It would be withdrawn.

      Q:     Okay. And throughout the debriefing, throughout any testimony
             you’ve provided in this case, have you provided truthful and accurate
             information to the best—

             Counsel:      Objection; self serving, your Honor. May we approach?
             The Court:    No, you may not. Overruled.

      Q:     Have you provided truthful and accurate information?

      A:     Yes, I have, to the best of my ability.

      According to Ms. Johnson, the district court should have excluded this

testimony because Gaskin improperly bolstered his own testimony, which, she


                                            -10-
alleges, invades the province of the jury. It is true, of course, the prosecution

may not vouch for the credibility of its witnesses.    United States v. Bowie , 892

F.2d 1494, 1498 (10th Cir. 1990). It is equally true, however, that presenting

evidence of a witness’s obligation to testify truthfully pursuant to an agreement

with the government is not, by itself, improper vouching.      Id. Impermissible

vouching occurs “only if the jury could reasonably believe that the prosecutor is

indicating a personal belief in the witness’ credibility, either through explicit

personal assurances of the witness’ veracity or by implicitly indicating that

information not presented to the jury supports the witness’ testimony.”     Id.

(citations omitted). Such was not the case here. In this case, the government did

not vouch for Gaskin’s veracity, but merely solicited statements in an attempt to

preempt Ms. Johnson’s argument that Gaskin had an incentive to embellish or

even lie in order to obtain more favorable treatment. Gaskin’s statements did not

invade the province of the jury, and the district court did not abuse its discretion

in allowing such testimony.

       5. Hearsay Statement of Donald Johnson, Sr.

       Ms. Johnson also contends the district court erred in allowing out-of-court

statements made by her father, Donald Johnson, Sr. The following colloquy

occurred during Gaskin’s direct testimony:

       Q:     Do you have personal knowledge about where [Ms. Johnson] would
              get her crack?

                                            -11-
      A:     Yes.

      Q:     Where did she get her crack?

      A:     From her father.

      Q:     And how is it that you would know that?

      A:     Because he would have to set aside what he was going to take, and
             he would say this was what he was taking to Ms. Johnson.

             Counsel:      Objection as to hearsay.

      The district court overruled the objection, noting the statements were

properly admitted under Fed. Rule of Evid. 801(d)(2)(E). This Rule establishes

that a statement is not hearsay if it is made by “a coconspirator of a party during

the course and in furtherance of the conspiracy.” Interpreting this Rule, we have

held that a coconspirator’s statements are properly admitted where the court finds

by a preponderance of evidence that (1) a conspiracy existed, (2) the declarant

and the defendant were both members of the conspiracy, and (3) the statements

were made in the course of and in furtherance of the conspiracy.   United States v.

Urena , 27 F.3d 1487, 1490 (10th Cir. 1994) (citation and quotation omitted). In

overruling the hearsay objection, the district court noted that a preponderance of

the evidence established the declarant, Donald Johnson, Sr., was involved in a

drug distribution conspiracy with Ms. Johnson and others. Thus, the court ruled




                                           -12-
that the testimony was proper under Rule 801(d)(2)(E), and we agree. The district

court did not err in admitting the statements made by Donald Johnson, Sr.

      6. Transcript of Recorded Conversation

      Finally, Ms. Johnson alleges the district court erred in allowing the jury to

see written transcripts of certain recorded conversations. At trial, the court

allowed the government to play audio tapes of Faulkner’s recorded conversations

with Ms. Johnson and Donald Johnson Sr. The court also allowed the government

to present transcripts of these conversations. According to Ms. Johnson,

introduction of the written transcripts violated her constitutional rights because

the tapes themselves were frequently inaudible and the transcripts were

inaccurate. Prior to playing the tapes, the district court instructed the jury as

follows:

      Now, the evidence is what you hear on the tapes. What has been put
      on the transcript is simply counsel for the prosecution’s best attempt
      to decipher what they think they have heard and attempt as accurately
      as possible to put that down in the transcript. But if you listen to that
      tape and you can’t make out what it says, then you should not simply
      accept what the transcript says as accurate. You’re the one—you’re
      the triers of fact; you’re the ones that have to decide what the tape
      says, not the government or the judge or the defendant. So you have
      to listen to the tape. Similarly, if you listen to the tape and you think
      the tape says something different from what the transcript says,
      again, you are to be guided by the tape, not the transcript. . . . So for
      that limited purpose I will admit Exhibit 104 to be used as
      demonstrative evidence.

      “The admission of transcripts to assist the trier of fact . . . lies within the


                                          -13-
discretion of the trial court.”   United States v. Devous , 764 F.2d 1349, 1354 (10th

Cir. 1985) (citation omitted). Cautionary instructions are instrumental to the

analysis of whether the district court has abused its discretion with respect to

written transcripts.   See United States v. Davis,     929 F.2d 554, 559 (10th Cir.

1991). In light of the detailed cautionary instruction given in this case, we cannot

say the district court abused its discretion in admitting the transcripts.   Hale v.

Gibson , 227 F.3d 1298, 1325 (10th Cir. 2000) (juries are presumed to have

followed instructions).

                                      CONCLUSION

       For the aforementioned reasons, counsel’s motion to withdraw is

GRANTED and we DISMISS the appeal.



                                                     Entered for the Court



                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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