IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50863

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

TUCKER JAMES FLORES, also known as James Flores Tucker, also known

as Tut; MICHAEL KEVIN JOHNSON, also known as Big Mike UNK,

Defendants – Appellants

Appeals from the United States District Court

for the Western District of Texas

Before JOLLY, ELROD, and HAYNES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Appellants Tucker James Flores (“Flores”) and Michael Kevin Johnson

(“Johnson”) appeal their convictions and sentences for aiding and abetting

possession with intent to distribute phencyclidine (“PCP”), a controlled

substance. Flores challenges, on Fourth Amendment grounds, the admissibility

of drug evidence obtained from the search of a home in Compton, California.

Johnson challenges as extrinsic to the charged offense the admission of evidence

of a PCP lab at his home and evidence that he participated in a controlled buy

of PCP. Both Appellants contest the district court’s assessment of a two-level

sentencing enhancement for obstruction of justice, and Flores challenges the

United States Court of Appeals

Fifth Circuit

F I L E D

May 4, 2011

Lyle W. Cayce

Clerk

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two-point sentencing enhancement he received for playing a leadership role in

the drug organization. We AFFIRM the judgment of the district court on all

grounds except the finding that Flores was a leader or organizer for sentencing

purposes. We therefore VACATE Flores’s sentence and REMAND for

resentencing.

I.

Appellants Flores (a.k.a. “Tut”) and Johnson (a.k.a. “Unk”) came under

investigation after two individuals, transporting over 900 grams of PCP, were

arrested near Pecos, Texas on February 18, 2008. Choyce Mitchell (“Mitchell”)

and Demetrius Williams (“Williams”) explained to Texas law enforcement

officials that they were transporting the PCP to Houston for distribution, and

that the narcotics had been supplied by Flores and Johnson during a recent trip

to Los Angeles, California. Williams and Mitchell testified that on or about the

weekend of February 16 and 17, 2008, they arrived in Los Angeles after driving

from Houston and coordinated a pick-up of PCP from Johnson, which then would

be packaged by Flores at another location. Williams and Mitchell obtained the

PCP from Johnson and dropped it off with other supplies at a house on South

Central Avenue in Compton (the “Central Avenue house”), where Flores’s sister

lived and where Flores had requested that the narcotics be delivered for

packaging. The next day, Williams and Mitchell retrieved the PCP, which was

packaged in gallon-sized green bean cans, from the same house, and

subsequently began their journey back to Houston. Their vehicle was stopped

by Texas law enforcement en route, and a search of the vehicle yielded the PCP

in question.

Thereafter, agents of the Drug Enforcement Administration’s High

Intensity Drug Trafficking Area Task Force in Alpine, Texas (“Texas DEA”)

began an investigation targeting Flores and Johnson. A confidential informant

testified that he made a controlled buy of PCP from Johnson at his house in July

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2008. An agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) surveilled the buy and identified Johnson’s house as the location of the

transaction. In November 2008, acting largely on information supplied to them

by Texas DEA, Los Angeles law enforcement authorities executed search

warrants on three residences in the Los Angeles area: (1) on South Royal Ridge

in Anaheim (the “Royal Ridge house”); (2) on East Tichenor Street in Compton,

where Johnson resided (the “Tichenor house”); and (3) on South Tajuata Avenue

in Compton (the “Tajuata house”). Flores was located and arrested at the Royal

Ridge house. The police found a working PCP lab at the Tichenor house and a

substantial supply of equipment used to package PCP at the Tajuata house.

The Tajuata house, which turned out to be the former residence of Flores’s

grandmother, was not the house that Texas DEA had actually intended for the

Los Angeles authorities to search and was different from the physical description

on the search warrant. The address was entered on the search warrant—by

accident, the government argues—after Texas DEA’s surveillance of the original

target home revealed that the vehicles located there were registered to the

Tajuata address. Texas DEA later communicated this incorrect address to Los

Angeles police, who executed the search warrant. The actual target home was

the Central Avenue house—the home of Flores’s sister, where Williams and

Mitchell had dropped off the PCP and later retrieved it in packaged form.

Flores and Johnson were charged in a single-count indictment with aiding

and abetting possession with intent to distribute PCP on or about February 18,

2008, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. Prior to trial, Flores filed

a motion to suppress evidence found in a search of the Tajuata house, which was

denied. Johnson filed a motion in limine seeking to exclude evidence of the

controlled purchase of PCP and the evidence derived from the search of the

Tichenor house. These motions were denied, and Flores and Johnson were

ultimately convicted by a jury. Flores was sentenced to 293 months in prison

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and five years of supervised release; Johnson was sentenced to 324 months in

prison and 10 years of supervised release. We have jurisdiction over their timely

appeal under 28 U.S.C. § 1291.

II.

Appellants challenge the admissibility of certain evidence and contest the

basis for their sentences. We first address the evidentiary issues and then turn

to Appellants’ sentencing challenges.

A.

Flores argues that the district court erred in denying his motion to

suppress evidence obtained during the search of the Tajuata house in November

2008. He contends that the search of that residence violated his Fourth

Amendment rights and that the evidence should have been suppressed. The

district court held that Flores had no reasonable expectation of privacy in the

Tajuata house, and thus no standing to challenge the search. The district court

further concluded that, assuming Flores had standing to challenge the search,

the good-faith exception to the exclusionary rule applies. We review the district

court’s factual findings for clear error and its ultimate determination of

constitutionality de novo. United States v. London, 568 F.3d 553, 561 (5th Cir.

2009).

The district court, in explaining the lack of standing, found that Flores had

produced no evidence that he resided or kept personal belongings at the Tajuata

house, and no evidence that he had a right to exclude others from the premises.

The evidence showed that Flores had moved out of the home two to three years

prior to the search, and that no one was living there in November 2008.

Although Flores had keys to the house, visited there occasionally to collect mail,

and had durable power of attorney from the owner of the home (his

grandmother), the district court concluded that Flores had failed to demonstrate

a possessory interest in the property.

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The Supreme Court has “left it to the sound discretion of the lower courts

to determine the order of decision” between (1) whether the Fourth Amendment

has been violated or (2) whether officers’ conduct manifested objective good faith.

Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 821 (2009). It thus will be

unnecessary for us to decide whether Flores had a reasonable expectation of

privacy in the Tajuata house, because even assuming Flores has standing to

challenge the search, the good-faith exception to the exclusionary rule applies

under these facts.

We have consistently followed the Supreme Court’s directive in Leon that,

“[i]n the absence of allegations of judicial misconduct, ‘suppression is appropriate

only if the officers were dishonest or reckless in preparing their affidavit or could

not have harbored an objectively reasonable belief in the existence of probable

cause.’” United States v. Gibbs, 421 F.3d 352, 358 (5th Cir. 2005) (quoting United

States v. Leon, 468 U.S. 897, 926 (1984)). In this case the district court correctly

explained that, in addition to mistaken information provided to him by Texas

DEA, the Los Angeles detective responsible for the search warrant application

relied upon information obtained from his own research in completing the search

warrant for the Tajuata house, including Flores’s use of the Tajuata address in

prior arrest records derived from police databases. The court further found no

evidence indicating that the information supplied by Texas DEA—which cited

the address to which vehicles parked at the Central Avenue house were

registered—was provided in bad faith. In short, we conclude that the district

court did not clearly err in any question of fact. Under these circumstances, and

in the light of Flores’s failure on appeal to demonstrate that Los Angeles police

were dishonest or reckless in relying on the Tajuata house warrant, we conclude

as a matter of law that the good-faith exception applies and the district court

properly denied Flores’s motion to suppress.

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B.

We turn now to Johnson’s evidentiary challenges. Johnson contests the

admission of evidence obtained from the search of his residence (the Tichenor

house) in November 2008 and, secondly, evidence involving the controlled PCP

buy in July 2008. We review the district court’s evidentiary rulings under the

abuse of discretion standard. United States v. Navarro, 169 F.3d 228, 232 (5th

Cir. 1999).

1.

Johnson argues that the district court abused its discretion in overruling

his objection to the November 2008 search and finding that evidence intrinsic to

the charged offense. Johnson asserts that the evidence obtained from the

Tichenor house search, which took place nine months after the charged crime,

was of a distinct event extrinsic to the offense and thus governed by Federal

Rule of Evidence 404(b). “We find ‘other act’ evidence to be intrinsic to the

charged crime when the evidence of the other act and the evidence of the crime

charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal

episode’ or the other acts were ‘necessary preliminaries’ to the crime charged.”

United States v. Stephens, 571 F.3d 401, 410 (5th Cir. 2009). The government

argues that the PCP lab discovered in the November 2008 search is “inextricably

intertwined” with other evidence used to prove the crime of aiding and abetting

possession with intent to distribute PCP, because it demonstrates the continuing

nature and structure of the drug organization in which Johnson participated.

The district court held that it was evidence of “continuing acts since the arrest

of [Williams and Mitchell] in February of 2008.”

We are persuaded that the district court did not abuse its discretion in

determining that the evidence of PCP production obtained in the search of the

Tichenor house was intrinsic to the crime charged. This circumstantial evidence

corroborates Williams’s and Mitchell’s testimony that they received PCP from

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Johnson at the Tichenor house. The evidence was discovered pursuant to a

search warrant based in part on Williams’s and Mitchell’s statements to Texas

DEA, and Johnson was arrested during the execution of that warrant. Indeed,

the statements from Williams and Mitchell prompted an investigation that

placed Johnson under surveillance for some time subsequent to the February

2008 arrests. That surveillance in turn supported the application for a search

warrant for the Tichenor house. Although one might speculate that the PCP lab

at Johnson’s house was begun after the arrest of Williams and Mitchell, the

evidence we have recounted earlier weighs heavily against such a conclusion,

especially when considered as a whole. We thus conclude that the Tichenor

house evidence is inextricably intertwined with evidence tending to prove that

Johnson aided and abetted Williams and Mitchell to possess with intent to

distribute PCP.

2.

Johnson also contests the admission of evidence that law enforcement

observed him participating in a controlled buy of PCP in July 2008. We find it

unnecessary to resolve whether this evidence was extrinsic to the charged

offense, and thus whether Rule 404(b) was implicated by its admission, because

we conclude that any error in admitting this evidence was harmless. “Reversal

is not required unless there is a reasonable possibility that the improperly

admitted evidence contributed to the conviction. When the other evidence of

guilt is overwhelming, and the error would not have substantially influenced the

jury’s verdict, the error is harmless.” United States v. Hawley, 516 F.3d 264, 268

(5th Cir. 2008). Here, the government presented considerable other evidence

connecting Flores to a PCP transaction at his home in Compton on the weekend

at issue. This evidence included detailed testimony from Williams and Mitchell,

as well as the evidence of PCP production at the Tichenor house where Johnson

lived. In the light of this other evidence implicating Johnson in a scheme to aid

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and abet possession with intent to distribute PCP, we conclude that any error

in admitting evidence of the July 2008 controlled buy was harmless.

C.

Flores and Johnson further challenge the sentencing enhancements

assessed by the district court. We first review their challenge to the district

court’s two-point enhancement for obstruction of justice, and then consider

Flores’s argument that the district court erred in concluding he was a leader or

organizer of the drug organization. We review the district court’s interpretation

and application of the Sentencing Guidelines de novo and its factual findings for

clear error. United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009).

1.

Flores and Johnson contest the district court’s finding that they committed

perjury at trial and its consequent application of a two-level sentencing

enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The court

determined that both defendants intentionally provided false testimony by

giving materially false statements at trial that were not the product of confusion,

mistake, or faulty memory. See United States v. Dunnigan, 507 U.S. 87, 95

(1993). We note, by way of example, that Flores denied any involvement in the

production, receipt, or handling of PCP, and denied having ever met Williams

and Mitchell. Johnson similarly testified that he had no involvement with PCP

or with Williams and Mitchell on the weekend in question. These and other

material assertions were not worthy of credence in the light of the weight of the

physical evidence, and were flatly contradicted by other witnesses and the

ultimate finding of the jury. We therefore conclude that the district court’s

factual findings and application of U.S.S.G. § 3C1.1 were not erroneous.

2.

Flores further argues that the district court erred in finding that the

requirements for a leadership enhancement under the Sentencing Guidelines

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were met. The Guidelines provide for a two-level sentencing enhancement “[i]f

the defendant was an organizer, leader, manager, or supervisor” of criminal

activity. U.S.S.G. § 3B1.1(c). In the district court, in both written and oral

objections, Flores objected to this enhancement as unsupported by the evidence.

The district court seems to have relied on the Presentence Investigation Report

(“PSR”), which sought to summarize the trial testimony supporting this

enhancement. A comparison of the PSR with the trial testimony, however,

demonstrates that the PSR differs in several material respects from the actual

testimony. For example, the PSR states that “Williams testified Flores would

come down to Ho[u]ston to insure proper operation of the PCP distribution,” a

statement the district court repeated at sentencing. Although there is testimony

from Williams and Mitchell that Flores had been to Houston, there is no clarity

in that testimony that Flores did this in an oversight capacity for the

distribution of PCP. Flores testified that he traveled to Houston regularly when

he worked for two companies based in the Houston area, and that he had

considered relocating his family there. At trial, Williams and Mitchell did not

specify what Flores was doing when they had seen him in Houston. Because it

appears that the district court relied upon the PSR’s erroneous recitation of

facts, we cannot determine whether the district court would have applied this

enhancement if the trial testimony were correctly summarized. As a result, we

cannot conclude that this error was harmless. We therefore vacate Flores’s

sentence and remand for further consideration and for resentencing.

III.

To recap, we hold that the good-faith exception applies to cure any error

in the admission of narcotics evidence obtained from the search of the Tajuata

house. We further hold that the district court did not err in admitting evidence

obtained from a search of Johnson’s home, and that any error in the admission

of controlled-buy evidence against Johnson was harmless. The district court did

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not err in applying a sentencing enhancement to both Appellants for obstruction

of justice. The sentencing enhancement for Flores’s leadership role, however,

was based on an erroneous recitation of facts. Consequently, we AFFIRM the

judgment of the district court in all respects, except as to the leadership

enhancement for Flores. We VACATE the judgment only on the sentence of

Flores and REMAND for Flores to be resentenced.

AFFIRMED in part, VACATED in part, and REMANDED.

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