United States v. White, 30822.

Decision Date27 December 1971
Docket NumberNo. 30822.,30822.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Pauline Clark WHITE, a/k/a Pauline Littlejohn, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Reuben A. Garland, Edward T. M. Garland, Atlanta, Ga., for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., Robert L. Smith, E. Ray Taylor, Jr., Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Before RIVES, AINSWORTH and GODBOLD, Circuit Judges.

RIVES, Circuit Judge:

Pauline White, a/k/a Pauline Littlejohn (defendant-appellant) and Ossie Ligon were arrested and charged with illegal importation of marijuana in violation of 21 U.S.C. § 176a. At a joint trial in the United States District Court for the Northern District of Georgia, both were convicted wholly on circumstantial evidence. From that conviction, Mrs. Littlejohn has filed this appeal.

In July of 1969, United States customs officials in San Francisco, California, intercepted a package with a return address reading, "Sgt. First Class Henry Irby, APO San Francisco, California 96257." The package was addressed to Mrs. Pauline Littlejohn, c/o a Mrs. Russell at Mrs. Russell's home in Atlanta, Georgia.1 Inspection of the package in San Francisco revealed five plastic bags of a substance which appeared to be marihuana in a box wrapped in brown paper and taped with green tape. It was then forwarded to Atlanta customs officials. There Special Customs Agent Buselmeier extracted two samples and forwarded them to the U.S. Customs Chemist's office in Savannah for analysis.

A laboratory test was conducted showing the samples to be marihuana. The bags were dusted with a fluorescent powder and resealed in the original package. That package was then delivered by a postal employee to Mrs. Russell's home at approximately 3:30 P.M. on August 5, 1969. Simultaneously, Mrs. Russell's abode was placed under surveillance. At about 4:00 P.M. that same day, four customs agents entered the Russell residence under authority of a valid search warrant.

Mrs. Russell denied the package was hers, but rather indicated it was for Mrs. Littlejohn. It had not been opened. Mrs. Russell cooperated with the officials by telephoning Mrs. Littlejohn and informing her of the package's arrival.

Mrs. Littlejohn arrived shortly thereafter in a car driven by Ossie Ligon and containing her three children. Mrs. Littlejohn entered the house and, approximately fifteen minutes thereafter, left carrying the package2 to her car. The car drove off, and customs agents proceeded to follow. Mrs. Littlejohn's car was lost from sight for a short time but was relocated, stopped, and searched some ten minutes after her initial departure.

No package was found in the car; nor was any marihuana discovered. The hands of both Mrs. Littlejohn and Ligon were tested for traces of the fluorescent powder with which the bags had been dusted. Both showed traces of the powder on their hands; traces were found under the dashboard; and a small piece of paper and a strip of green tape similar to that with which the package had been wrapped and secured were located in the car.

Mrs. Littlejohn and Ligon were arrested and charged with illegally importing marihuana into the United States. Prior to trial the district judge denied several portions of a motion for discovery, 50 F.R.D. 70. The denied requests sought:

(Nos. 5 and 6) "Any and all books, boxes, pictures of boxes, documents or tangible objects obtained or belonging to the defendant, co-defendant, and/or co-conspirator. Any and all books, papers, documents or tangible objects obtained from any other person or persons by seizure or process and relating to the charges contained in the indictment against the defendant."
(No. 7) "Any and all reports obtained by the Federal Bureau of Investigation, Treasury Customs Agents and United States Postal Inspectors."
(No. 9) Any exculpatory material. Paraphrased and greatly shortened.
(No. 10) "The names, addresses and telephone numbers of any persons the government knows to possess relevant information to the charges in the indictment, including but not limited to any informants or confidential sources."
(No. 11) "The minutes of the Grand Jury testimony of any and all witnesses received in connection with the above-captioned case."

At trial in district court, Mrs. Littlejohn maintained that the package she took from Mrs. Russell's house contained no marihuana, but that it contained a diamond engagement ring and a picture book. A ring and book fitting those descriptions were entered into evidence by Mrs. Littlejohn. Nonetheless the jury convicted both defendants.

On appeal Mrs. Littlejohn urges reversible error in two instances:

I. That the jury was without sufficient evidence to warrant finding her guilty.
II. That the denial of the enumerated portions of a discovery motion constituted a violation of due process and of Rule 16(a) and (b), F.R.Cr.P.

We find both contentions to be without merit and accordingly affirm the judgment below.

I. Sufficiency of the Evidence

It is not the function of this Court to conduct a trial de novo. Rather, the verdict of the jury below must be sustained if, considered in the light most favorable to the Government, the evidence could warrant a guilty verdict.

The basic elements in proof of the offense with which Mrs. Littlejohn was charged are (1) that she had possession of what she knew to be marihuana, and (2) that she knew the marihuana to have been imported.

The facts show that the Government conducted laboratory tests, the results of which were introduced into evidence, which confirmed that the contents of the package was marihuana. The defense proffered no contradictory evidence. Thus, the jury could properly find that the package did contain marihuana. Similarly, there is enough evidence to prove that the package containing the marihuana was delivered to Mrs. Russell's house. When agents entered her home the package was found intact. It was kept in sight until Mrs. Littlejohn arrived. Mrs. Littlejohn admits that when she left she was carrying with her a package. (Appellant's Brief at vii). The question then becomes whether there was substantial evidence that the package with which Mrs. Littlejohn departed was the same package which the customs agents had caused to be delivered to the Russell residence. The answer is that there was such evidence. At trial in district court, Mrs. Russell so testified.3 It was within the province of the jury to believe Mrs. Russell.

Thus the jury could rightfully conclude that Mrs. Littlejohn took the package containing the marihuana. It must next be determined whether there was substantial evidence both that she knew the contents to be marihuana and that she knew the marihuana to be imported.

The jury was presented with two sets of facts to explain the occurrences in question — one from the Government, one from Mrs. Littlejohn. The Government alleged that the package in question contained marihuana. The jury accepted that version rather than Mrs. Littlejohn's contention that the box contained a ring and a picture book. Having adopted the Government's view, the jury could conclude that Mrs. Littlejohn's story was a fabrication designed to obfuscate the truth and that she knew the package contained marihuana. Mrs. Littlejohn even admits that there was some "evidence relating to the fact that she may have received or concealed marihuana after it had been imported * * *." (Appellant's Brief at 3). Had she argued that upon discovery of the contents of the package she had immediately discarded the illegal drug wishing to have no part in an unlawful scheme, the case might be different. Yet she chose not even to admit the existence of the marihuana. Put shortly, the jury could properly conclude that Mrs. Littlejohn took possession of the package in question knowing either at that time or shortly thereafter that it contained marihuana.

The sole remaining question, then, is whether she knew that the marihuana was imported. Mrs. Littlejohn dwells hard on this question. Her argument is strained. As noted above, the return address read: "Sgt. First Class Henry Irby, APO San Francisco, California 96257." Mrs. Littlejohn argues that such a legend is not evidence substantial enough to prove her knowledge of importation. She says that to so prove:

"It is imperative for Mrs. Littlejohn to have known one of several things:
(1) A man named Irby, and that such a man was stationed in Vietnam, or
(2) she needs to have known the practice of the United States Post Office in that only letters or packages coming from outside of the continental United States or Hawaii and Alaska are marked with APO numbers, and knowing this fact, that she in actuality saw the return address along with its APO number."

(Appellant's Brief at 5-6). She may or may not have known a man named Irby,4 but there was ample evidence from which the jury could find that she knew the package in question came from Vietnam. Mrs. Littlejohn denied that the package contained marihuana, but she admitted it came from overseas. (See e. g., R. at 336). Furthermore, having corresponded with her fiance who was then in Vietnam, she was obviously aware of post office practices concerning the legend "APO San Francisco." On the facts presented, the jury had an ample basis from which to conclude that Mrs. Littlejohn had knowledge of importation.

II. The Motion for Discovery

Mrs. Littlejohn alleges that the district court committed reversible error in refusing to grant requests numbers 5, 6, 7, 9, 10 and 11 of her motion for discovery. The district court based its refusal to allow discovery as to the questioned matters on the ground that Mrs. Littlejohn had failed in her burden to show the materiality and reasonableness of her requests. (R. at 521). Furthermore, the trial judge found requests 7, 9, 10 and 11 to be precluded by Rule 16(b)'s exclusion of...

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