IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40976

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROY CORNELL JOHNSON,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:09-CR-167-1

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Roy Cornell Johnson was convicted, following a jury trial, of conspiracy to

distribute or dispense or possess with intent to distribute or dispense 50 grams 

or more of cocaine base; two counts of possession with intent to distribute less

than five grams of cocaine base; and possession with intent to distribute 50

grams or more of cocaine base. Johnson was sentenced to a total of 360 months

of imprisonment and eight years of supervised release. He argues that the

district court abused its discretion in admitting evidence of his “extraneous acts”

United States Court of Appeals

Fifth Circuit

F I L E D

October 24, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-40976

because the Government failed to file timely notice of its intent to do so or

provide good cause for its failure. At issue was testimony from a confidential

informant (CI) that Johnson sold crack cocaine to others prior to the conspiracy

offense alleged in the superseding indictment. 

Because Johnson raises this argument for the first time on appeal, review

is for plain error. See Puckett v. United States, 556 U.S. 129, 135-36 (2009). As

the Government asserts, after the district court issued its evidentiary ruling, the

Government narrowed its questioning of the CI to illicit testimony regarding

drug transactions that occurred only during the period charged in the

indictment. As such, this court need not decide the propriety of the district

court’s earlier evidentiary ruling since evidence of transactions preceeding the

charged conspiracy was not introduced. See United States v. Garcia Abrego, 141

F.3d 142, 175 (5th Cir. 1998); United States v. Sumlin, 489 F.3d 683, 689 (5th

Cir. 2007); United States v. Rice, 607 F.3d 133, 141 (5th Cir. 2010). Accordingly,

Johnson’s challenge to the district court’s evidentiary is unavailing.

Johnson contends that there was insufficient evidence to prove that he

possessed the backpack containing crack cocaine recovered from Amanda

Frank’s closet, which was used by the Government to prove the 50 grams or

more of cocaine base alleged in counts one and four of the superseding

indictment. Because Johnson moved for a judgment of acquittal at the close of

all the evidence, the issue is preserved for review. FED. R. CRIM. P. 29. 

Therefore, “the standard of review in assessing the sufficiency challenge is

whether, considering all the evidence in the light most favorable to the verdict,

a reasonable trier of fact could have found that the evidence established guilt

beyond a reasonable doubt.” United States v. Mendoza, 226 F.3d 340, 343 (5th

Cir. 2000). 

The CI testified that Johnson had told her that he was “staying” with

Frank, his girlfriend, and that he stored his drugs near “clothes in the closet.” 

Frank testified that Johnson slept at her house on June 11, 2009, and then drove

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her to work the next morning in her vehicle. Frank allowed Johnson to use her

vehicle all day and did not see him until he picked her up at work at

approximately 5:15 p.m. Frank stated that the backpack found in the closet did

not belong to her and that she did not see it when she left for work on the

morning of June 12, 2009, the day that the search warrant was executed. 

The testimony of the above witnesses was sufficient for a reasonable jury

to find that Johnson, a proven drug dealer, had knowledge of, and access to, the

backpack containing the crack cocaine found in his girlfriend’s closet. See United

States v. Brito, 136 F.3d 397, 411 (5th Cir. 1998); United States v. Hinojosa, 349

F.3d 200, 204 (5th Cir. 2003). To the extent that Johnson challenges the

sufficiency of the evidence by attacking the credibility of the Government’s

witnesses, his argument is without merit. See United States v. Polk, 56 F.3d

613, 620 (5th Cir. 1995). Viewing the evidence in favor of the verdict, there was

sufficient evidence presented at trial to sustain Johnson’s convictions. See

United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995). Accordingly, the

judgment of the district court is AFFIRMED.

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