Johnson v. United States

• Decision Date: 07 June 1961
• Docket Number: No. 16658.,16658.
• Citation: 291 F.2d 150
• Parties: Ralph Melvin JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

291 F.2d 150 (1961)

Ralph Melvin JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 16658.

United States Court of Appeals Eighth Circuit.

June 7, 1961.

COPYRIGHT MATERIAL OMITTED

William M. Howard, St. Louis, Mo., filed brief and made oral argument for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., made argument; D. Jeff Lance, U. S. Atty., St. Louis, Mo., on the brief for the Government.

Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant Johnson was by indictment charged with the crime of falsely making and counterfeiting $10.00 Federal Reserve Notes with intent to defraud in violation of 18 U.S.C.A. § 471, on or about July 20, 1959. Defendant pleaded not guilty, was tried by a jury, and was convicted and sentenced to a prison term of four years. This timely appeal followed.

Defendant admitted counterfeiting the currency, but defended upon the basis that he lacked the specific intent to defraud required by the statute for the reason that he committed the offense under duress and coercion.

Defendant does not challenge the sufficiency of the evidence to sustain the conviction; hence, a detailed statement of the evidence is not essential.

The jury by its verdict rejected defendant's coercion theory. Barr, Bennett, Lindquist and Koines all participated in the counterfeiting activity here involved and all were convicted for their part therein. Defendant contends that he was originally tricked into contacting the above-named counterfeiters on the pretense that he was to print checks for them and that thereafter he was coerced into printing the counterfeit currency by the display of a gun by Bennett on several occasions. No words were spoken to implement the threat. The counterfeiting ran over a period of several days, during which period the defendant was left alone for substantial intervals. Defendant when first interviewed by the investigating officials denied any participation in the counterfeiting.

Defendant was a skilled printer and a lithographer and offered testimony that he deliberately did a poor job of counterfeiting. He testified that he had no previous acquaintance with any of the counterfeiters except Barr and that his previous relations with Barr had been in connection with legitimate printing business.

Defendant admitted that he had been offered money for supplying counterfeit bills but states that such offers were refused. Lindquist and Koines as rebuttal witnesses for the Government stated that Bennett had paid the defendant $200 to $250 during the course of the counterfeit operations on the night of July 20.

Defendant urges that he is entitled to a reversal for the following reasons:

"I.

"The Court erred in refusing to grant Appellant\'s motion for a continuance filed during the trial.

"II.

"The trial court erred in over-ruling Appellant\'s motion for new trial based on proof of false testimony given at the trial.

"III.

"The trial Court erred in refusing to charge the jury as requested by Defendant\'s Instructions concerning the presumption or inference raised by failure to call certain witnesses.

"IV.

"The trial Court erred in instructing the jury on credibility of witnesses by failing to include Appellant\'s Instruction No. 15 which permitted the jury to consider the effect of impeachment by prior inconsistent statements upon credibility of a witness.

"V.

"The trial Court erred in charging the jury that Appellant had the burden of proving his innocence."

We shall consider the asserted errors in the order stated.

I.

The defendant asserts that the court abused its discretion in denying his motion filed on August 3 during the course of the trial asking for continuance until August 5 to afford defendant an opportunity to produce Stutsman as a witness to impeach Lindquist's testimony. Lindquist at the trial testified that he saw Bennett pay money to defendant. The affidavit supporting the motion for continuance states that Stutsman would testify that when he was present at the jail with Mr. Howard, defendant's counsel, Lindquist in an interview had stated that he had no knowledge as to whether the defendant received money from any persons engaged in the counterfeiting. The affidavit states that Stutsman is in Texas and that he is expected back on or about August 5.

The trial had been postponed at least once and defendant had adequate notice of the trial date and made no objection to proceeding to trial. Defendant's counsel had doubtless taken Stutsman to the jail conference for a purpose and should have been aware of the possibility that Stutsman's testimony might be desired at the trial. Precaution should have been taken to see that Stutsman was subpoenaed as a witness.

Moreover, Stutsman's information was identical with that of Mr. Howard, the defendant's attorney. The court suspended its rules and permitted Mr. Howard to testify without engaging other counsel to examine him. The court also by questioning Howard brought out that Stutsman, who is an attorney, also heard Lindquist's statement at the jail and was unavailable as a witness because of his being out of town.

The trial was completed on August 3 and the verdict was returned on the same day. The continuance would have created at least two days delay in the trial.

The granting of motions for continuance before or during trial is discretionary with the trial court. In the absence of a clear abuse of discretion, the action of the trial court will be sustained. Bunn v. United States, 8 Cir., 260 F.2d 313, 316; Kansas City Star Co. v. United States, 8 Cir., 240 F.2d 643, 651; McKenna v. United States, 8 Cir., 232 F.2d 431, 435.

In the Bunn case we stated, "This Court will not retroactively attempt to substitute its discretion for that of a trial judge as to matters which have to do with the orderly conduct of a trial before him and which concern not only the defendant and the Government, but witnesses, jurors, and the court itself." 260 F.2d 316.

The court did not abuse its discretion in overruling the motion for continuance.

II.

Defendant next asserts that the court erred in denying his motion for a new trial based upon his contention that Mrs. Barr gave false testimony, prejudicial to the defendant at the trial. Defendant testified that he had no previous acquaintance with Bennett. At the trial Mrs. Barr testified defendant and Bennett were present at her husband's shop at the same time on one prior occasion. After the trial, Mrs. Barr had admitted that she had had a number of visits with defendant since the trial, at some of which her testimony was discussed. Attached to the motion for a new trial was Mrs. Barr's affidavit that her testimony at the trial that defendant and Bennett had previously met was erroneous.

Mrs. Barr's testimony was taken in support of the motion. The court, before ruling, procured a transcript of Mrs. Barr's testimony at the trial. In a memorandum opinion the court states, in part:

"From the testimony before the Court on both occasions, and from the Court\'s opportunity to see and observe the witness Mrs. Barr, I am not reasonably well satisfied that her testimony at the trial was false nor that without it the jury might have reached a different conclusion. In fact, to the contrary, I am reasonably well satisfied that her testimony on the trial was true and correct, that her recantation was doubtful, confused, the possible result of suggestion by the defendant and not worthy of belief.

"Further, there was sufficient testimony in the record to satisfy the Court (and evidently the jury) that defendant was not threatened, intimidated, coerced or forced to participate in the offense charged and the result of the trial would have been the same with or without Mrs. Barr\'s testimony."

Courts look upon recantation with suspicion. The trial court, which has had the witness before it, is in a much better position to determine where the truth lies than an appellate court. An appellate court should not interfere with the trial court's findings which have evidentiary support. Motions for new trial based upon factual considerations should not be tried de novo upon appeal. United States v. Johnson, 327 U.S. 106, 111-113, 66 S.Ct. 464, 90 L.Ed. 562; Connelly v. United States, 8 Cir., 271 F.2d 333; United States v. Smith, 7 Cir., 253 F.2d 95, 98; Newman v. United States, 5 Cir., 238 F.2d 861, 863; Jencks v. United States, 5 Cir., 226 F.2d 553, 555.

No useful purpose will be served in setting out the evidence on the recantation issue in detail. A careful examination of the record convinces us that a firm basis exists for the trial court's conclusion that the falsity of Mrs. Barr's evidence at the trial was not established. The court committed no error in denying the motion for new trial.

III.

Barr and Bennett, who had been previously convicted for their part in the counterfeiting, were at the time of the trial serving sentences in a federal prison. Neither of said persons was called as a witness by either party. Defendant requested the court to instruct in substance that if the Government had a person under its exclusive control who had not been called as a witness, and that person if called could give material testimony on the issues presented, the jury may presume (infer in an alternate requested instruction) that because of the Government's failure to call such witnesses, the testimony that would have been given by such person would be adverse to the Government.

Defendant contends that the court's refusal to give such instruction was error.

It is doubtless true that Bennett in particular could have given material testimony on the coercion issue. It is equally clear that the part Bennett and Barr played at counterfeiting activity was at least as well known to the defendant as to the Government. While Bennett and Barr were in custody of the Government serving their sentences, there is no evidence to indicate that the...