United States of America v. Cleve Alexander Johnson, a/k/a Cuz

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4837
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLEVE ALEXANDER JOHNSON, a/k/a Cuz,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00233-TDS-1)
Submitted: December 16, 2010 Decided: January 31, 2011
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Cleve Alexander Johnson (hereinafter, “Cleve” or
“Johnson”) appeals from his convictions for conspiracy to
distribute methamphetamine and attempt to possess with intent to
distribute methamphetamine and his resulting 200 month sentence.
After carefully considering his claims on appeal, we affirm.
I.
Johnson first asserts that there was insufficient
evidence to show that he and his cousin Melvin Johnson conspired
during the charged time period. Johnson argues that the
evidence concerning a November 2007 transaction predated the
charged conspiracy1
1 Johnson also claims that the evidence of the deal before
the charged dates in the conspiracy resulted in a constructive
amendment to his indictment. However, the beginning and ending
dates of a conspiracy are not elements of the offense, so proof
of different dates could never raise the specter of conviction
for a different crime. See United States v. Benson, 591 F.3d
491, 497 (6th Cir. 2010) (holding that “[w]hen an indictment
uses the language ‘on or about,’ a constructive amendment does
not exist when ‘the proof offered regards a date reasonably near
the date alleged in the indictment’”).
and that Melvin was not involved in any
planned distribution of a pound of methamphetamine in December —
he only acted a facilitator. According to Johnson, since the
other conspirators were Government agents, the elimination of
Melvin as a conspirator would clear Cleve, as well.

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A defendant challenging the sufficiency of the
evidence faces a heavy burden. See United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997). “[A]n appellate court’s
reversal of a conviction on grounds of insufficient evidence
should be ‘confined to cases where the prosecution’s failure is
clear.’” United States v. Jones, 735 F.2d 785, 791 (4th Cir.
1984). In reviewing a sufficiency challenge, “[t]he verdict of
a jury must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support
it.” Glasser v. United States, 315 U.S. 60, 80 (1942). This
court “ha[s] defined ‘substantial evidence,’ in the context of a
criminal action, as that evidence which ‘a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.’”
United States v. Newsome, 322 F.3d 328, 333 (4th Cir. 2003).
Where the evidence supports differing reasonable
interpretations, the jury will decide which interpretation to
believe. United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997). Furthermore, “[t]he Supreme Court has admonished that we
not examine evidence in a piecemeal fashion, but consider it in
cumulative context.” United States v. Burgos, 94 F.3d 849, 863
(4th Cir. 1996). “The focus of appellate review, therefore, of
the sufficiency of evidence to support a conviction is on the
complete picture, viewed in context and in the light most

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favorable to the Government, that all of the evidence
portrayed.” Id.
Johnson’s assertion that Melvin was a mere facilitator
and, thus, could not be a conspirator is without merit. This
court held in Burgos that “a variety of conduct, apart from
selling narcotics, can constitute participation in a conspiracy
sufficient to sustain a conviction,” such as supplying firearms,
purchasing money orders for co-conspirators, or allowing
co-conspirators to store narcotics or other contraband in one's
home. Burgos, 94 F.3d at 859. We conclude that facilitating
the sale of drugs falls into the above category. Even if Melvin
never intended to possess the drugs or distribute drugs himself,
the evidence showed that he conspired with Cleve for Cleve to
possess and distribute cocaine.
Moreover, the evidence could suggest that Melvin was
more than a mere facilitator. Melvin and Cleve had an ongoing
methamphetamine “fronting” relationship whereby Melvin sold
methamphetamine and paid Cleve with the proceeds. In addition,
Melvin was Cleve’s “go-between.” The Government informant in
this case negotiated the planned purchase of a pound of
methamphetamine with Melvin, not Cleve, as the informant was not
able to talk to Cleve directly. In addition, Melvin was to be
paid for the pound deal that he set up, so he had a vested
interest in completing the deal and assisting Cleve in obtaining

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methamphetamine for distribution. Based on the foregoing, we
find that the evidence was sufficient to support Cleve’s
conspiracy conviction.
II.
Johnson next asserts that the evidence was
insufficient to support his conviction for attempting to possess
with intent to distribute methamphetamine because (1) both the
methamphetamine and the seller were imaginary (set up by the
Government) and (2) any agreement was dependent on Johnson’s
inspection of the methamphetamine which did not (and could not)
happen.
“An attempt to commit a crime, which is recognized as
a crime distinct from the crime intended by the attempt,
punishes conduct that puts in motion events that would, from the
defendant’s point of view, result in the commission of a crime
but for some intervening circumstance.” United States v. Pratt,
351 F.3d 131, 135 (4th Cir. 2003). In order to prove an
attempt, the Government must establish that:
(1) the defendant had the requisite intent to commit a
crime; (2) the defendant undertook a direct act in a
course of conduct planned to culminate in his
commission of the crime; (3) the act was substantial,
in that it was strongly corroborative of the
defendant’s criminal purpose; and (4) the act fell
short of the commission of the intended crime due to
intervening circumstances.

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Id.
Mere preparation is insufficient to establish an
attempt. United States v. Sutton, 961 F.2d 476, 478 (4th Cir.
1992). However, the defendant need not commit the last act
necessary before the actual commission of the substantive crime
to be guilty of an attempt. Id. Whether a defendant has
engaged in a substantial act beyond mere preparation is a
factual question. Pratt, 351 F.3d at 136. Facts that strongly
corroborate a defendant’s criminal purpose and may constitute a
substantial step toward commission of the substantive crime
include: (1) lying in wait, searching for, or following the
contemplated victim; (2) reconnoitering the place contemplated
for the commission of the crime; (3) possession of materials to
be employed in the commission of a crime; and (4) possession or
fabrication of materials to be used in the commission of the
crime, at or near the place contemplated for its commission.
Id. at 135. Factual impossibility is not a defense to a charge
of attempt. See United States v. Partida, 385 F.3d 546, 560
(5th Cir. 2004).
The evidence presented at trial, viewed in the light
most favorable to the Government, establishes that Johnson was
guilty of attempt. Johnson negotiated a set price for the
methamphetamine, through Melvin and the informant, and indicated
his intent to purchase the drugs, both before the intended buy

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and after. He procured the cash and went with Melvin to the
informant’s residence to contact the supplier (a Government
agent). The meeting was arranged, and Johnson drove to the
appointed place with cash in hand. Before he could make it to
his destination, Government agents stopped him and seized the
money. This evidence was sufficient to support Johnson’s
attempt conviction. See United States v. Scott, 767 F.2d 1308,
1312 (9th Cir. 1985) (upholding attempt conviction where
defendant called seller expressing interest in purchasing
cocaine and brought money to agreed upon place of sale); United
States v. Williams, 704 F.2d 315, 321 (6th Cir. 1983) (affirming
conviction where defendant inquired into possibility of
purchasing cocaine and arrived at seller’s house with funds).2
2 Johnson cites United States v. Joyce, 693 F.2d 838 (8th
Cir. 1982), in support of his contention that his actions did
not constitute a substantial step. In Joyce, the defendant
traveled from Oklahoma to Missouri for the purpose of obtaining
cocaine. When he met with the dealers — Government agents
involved in a reverse sting operation — he asked to see the
cocaine. After some discussion regarding prices, the Government
officers retrieved the cocaine from another location and handed
to it Joyce in a plastic package wrapped with duct-tape. Joyce
asked the agents to open the package so that he could examine
the cocaine. The officers refused to open the package until
Joyce showed them the cash he intended to use to purchase the
drug. After a heated discussion, Joyce stated that he would not
deal with the agents, and he left. He was then arrested. Id.
at 840.
The Eighth Circuit found these facts insufficient to
demonstrate a substantial step towards the completion of the
offense, reasoning that Joyce, despite having both the
(Continued)

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III.
Johnson next asserts that the district court erred in
failing to remove a sleeping juror. Because this issue was not
raised in district court, we review for plain error. See Fed.
R. Crim. P. 52(b). In United States v. Freitag, 230 F.3d 1019
(7th Cir. 2000), the Seventh Circuit discussed the standard for
addressing the issue of sleeping or dozing jurors:
If sleep by a juror makes it impossible for that juror
to perform his or her duties or would otherwise deny
the defendant a fair trial, the sleeping juror should
be removed from the jury. See United States v.
Kimberlin, 805 F.2d 210, 244 (7th Cir. 1986); United
States v. Bradley, 173 F.3d 225, 230 (3d Cir. 1999);
United States v. Springfield, 829 F.2d 860, 864 (9th
Cir. 1987). However, a court is not invariably
required to remove sleeping jurors, Springfield, 829
F.2d at 864, and a court has considerable discretion
in deciding how to handle a sleeping juror, United
States v. Wilcox
opportunity and ability to purchase the drugs, unambiguously
refused to do so. See id. at 841-42. A later Eighth Circuit
case explains that part of the rationale underlying this opinion
was the fact that Joyce, rather than the Government agents,
terminated the events leading up to the sale. See United
States v. Burks, 135 F.3d 582, 584 (8th Cir. 1998). Applying
this rationale to Johnson’s case, we conclude that it is
distinguishable from Joyce. While Johnson did state that he
wanted to examine the drugs prior to purchase, it was the
officers who interrupted the proceedings by stopping Johnson and
seizing his money. Rather than terminating the transaction,
Johnson was driving to the location of the deal with the
agreed-upon funds when police stopped his car. Further, after
the deal was aborted, Johnson continued to deal with the
informant and the Government agent in an attempt to purchase
methamphetamine.
, 50 F.3d 600, 603 (8th Cir. 1995).
Reversal is appropriate only if the defendant was

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deprived of his Fifth Amendment due process rights or
his Sixth Amendment right to an impartial jury.
Springfield
Freitag, 230 F.3d at 1023.
, 829 F.2d at 864.
Here, there is no evidence that the juror was
sleeping. At worst, the record reflects that the juror was
tired and perhaps inattentive for an undefined period of time
during the Defense’s opening argument and the informant’s direct
testimony. In addition, once the court noticed the juror, the
court took a momentary break and instructed the jury on the
importance of being alert. Absent any evidence that the juror
was unable to consider the case fairly, Johnson has failed to
show error, much less plain error.
IV.
Finally, Johnson claims that methamphetamine offenses
are treated more harshly than powder cocaine offenses, resulting
in a violation of the Equal Protection Clause because
methamphetamine offenses are more often than not committed by
Caucasians. Because Johnson did not raise an objection on this
basis below, his claim is reviewed for plain error. As Johnson
presents no evidence or legal authority supporting the
conclusion that (1) Caucasians are unequally impacted by
methamphetamine sentencing statutes or (2) that any inequality

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is not justified based on variables specific to methamphetamine
offenses, he has failed to show error, much less plain error.
Accordingly, we affirm Johnson’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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