U.S. v. Johnson
| Citation | 584 F.2d 148 |
| Decision Date | 22 December 1978 |
| Docket Number | Nos. 77-5315,s. 77-5315 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Clyde Lee JOHNSON, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gary NOEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeff Davis NOEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edward Joe STEWART, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Earl STEWART, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William R. MORROW, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Margaret NOEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Freeman Turner MONGER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jimmy D. JACKSON, Defendant-Appellant. to 77-5320 and 78-5009 to 78-5011. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Richard W. Foster, Memphis, Tenn. (Court-appointed), for defendant-appellant in No. 77-5315.
W. J. Michael Cody, U. S. Atty., Glen Reid, Jr., Sp. Asst. U. S. Atty., Memphis, Tenn., for United States.
John Allen Fox, Richmond, Va., for defendants-appellants in Nos. 77-5316, 77-5317 and 78-5009.
Arch B. Boyd, III, Memphis, Tenn. (Court-appointed), for defendant-appellant in No. 77-5318.
Kemper B. Durand, Memphis, Tenn. (Court-appointed), for defendant-appellant in No. 77-5319.
William Stephen Crain, Mountain Home, Ark. (Court-appointed), for defendant-appellant in No. 77-5320.
Stanley Fink, Memphis, Tenn. (Court-appointed), for defendant-appellant in No. 78-5010.
James F. Russell, Memphis, Tenn. (Court-appointed), for defendant-appellant in No. 78-5011.
Before CELEBREZZE and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.
Six defendants were convicted in a jury trial and three more defendants were convicted in a separate jury trial on several counts of distribution of heroin and conspiracy under 21 U.S.C. §§ 841(a)(1) and 846. Inasmuch as all charges arose from the same indictment and each appeal raises numerous and often overlapping issues, we have consolidated the appeals for purposes of review. For the reasons stated below, we find no merit in any of appellants' contentions and affirm in full the judgments of the district court.
On November 10, 1976, the grand jury returned an eighteen count indictment charging fourteen defendants with conspiring to possess and distribute heroin (Count I; 21 U.S.C. § 846) and charging each of them, in different combinations or individually, with various substantive counts of distribution of heroin (Counts II-XVIII; 21 U.S.C. § 841(a)(1)). A jury trial was scheduled for ten of the fourteen defendants. The other four were unable to appear: Cicero Johnson had been murdered; Ann Cox had been shot and hospitalized; Clifton Garner had eluded apprehension; and Freeman Monger's attorney was hospitalized. The trial started in early February 1977. A jury was sworn and testimony had just begun when, during an overnight recess, firebombs were thrown into the homes of close relatives of two government witnesses. Advised of the firebombings the next morning, the district court held a hearing on the matter and declared a mistrial.
In the second trial, commenced in mid-February 1977, the jury was sequestered. In due course, the jury returned its verdicts and acquitted Denise Stewart and Willie Payne on all charges and Gary Noel on one substantive count. It returned guilty verdicts against Jeff Noel (conspiracy; four substantive counts), Gary Noel (conspiracy; one substantive count), Robert Stewart (conspiracy; three substantive counts), Edward Stewart (conspiracy; one substantive count), William Morrow (conspiracy; two substantive counts), and Clyde Johnson (conspiracy; three substantive counts). The jury was deadlocked, and a mistrial was declared, on all counts as to Margaret Noel and Jimmy Jackson and on one substantive count (later dismissed) as to Jeff Noel.
A third trial began in mid-April 1977. The jury returned a not guilty verdict as to one substantive count against Margaret Noel. It also returned guilty verdicts against Margaret Noel (conspiracy), Jimmy Jackson (conspiracy; one substantive count), and Freeman Monger (conspiracy; four substantive counts), whose attorney had by this time recovered.
The district court sentenced the defendants to prison terms ranging from four to forty years and to fines of up to $20,000, plus varying special parole terms.
All appellants were acquainted with one another and several were related. Jeff Noel and Margaret Noel were husband and wife and Gary Noel was their teenage son. Two other younger teenage Noel children The government demonstrated at the trials that Jeff Noel and his family were running a large scale heroin distribution center from the Noel residence in Memphis. The Noels supplied at least three subsidiary distribution centers one operated by William Morrow at Morrow's apartment, a second one operated by Robert Stewart at a Bullington Avenue apartment complex, and a third operated by Freeman Monger and Clyde Johnson at a Ford Road room. The government's case was built primarily on a number of "controlled buys" of heroin at these four locations. The buys were made by former heroin users or addicts working as informants for state and federal drug agencies. Most buys were recorded on tape by concealed transmitters on the informants. 1
were apparently involved in heroin sales but not charged. Robert Stewart and Edward Stewart were brothers.
Several witnesses testified that they had obtained heroin at the Noel residence from, Inter alia, Jeff Noel, Margaret Noel and Gary Noel. One witness testified that she had seen Robert Stewart buy heroin at the Noel residence. Robert Stewart and William Morrow were seen there on another occasion. There was testimony about large quantities of heroin and currency often seen lying around the Noel residence. Other testimony related the dilution of pure heroin into marketable portions there. Pursuant to warrants, two searches of the Noel residence occurred. 2 Items seized and introduced at trial included: lactose (often used to dilute pure heroin), disposable syringes, a heroin test kit, several thousand dollars in currency, a plastic bag sealing machine, a burned metal measuring spoon, a box containing measuring spoons, plastic bags and small tin foil squares, metal sifters, a plexiglas board with traces of heroin on it, and photographs. 3
Witnesses testified about several controlled buys at William Morrow's apartment from Morrow. It appeared that Morrow once called either Jeff Noel or Robert Stewart to "check out" one heroin purchaser before making the sale.
Testimony described numerous buys, controlled and otherwise, at the Bullington Avenue apartments. Robert Stewart supervised the sales of heroin there, which was delivered there by Robert Stewart or Freeman Monger. Jimmy Jackson and Edward Stewart were identified as salesmen there. It was shown that Freeman Monger had referred sales from his apartment to this location since the "heat was on" and Monger was turning his "business" over to Robert Stewart. After a fruitless search by the authorities had occurred at the Bullington apartments, Jeff Noel came by and inquired of Robert Stewart, Edward Stewart and Jimmy Jackson if anything had been found by the officers. They responded negatively. One witness testified that Robert Stewart said Jeff Noel was the supplier of heroin there.
Witnesses testified about several controlled buys of heroin from Clyde Johnson and Freeman Monger at their Ford Road room. One buy was preceded by an inquiry at the Noel residence with Monger and Jeff Noel present which resulted in Monger leading the buyers to his Ford Road room. Witnesses said that Clyde Johnson told them he was selling for Freeman Monger.
Each appellant has raised a number of issues on appeal. Since the issues often overlap, we will examine each colorable issue as it relates to each defendant raising it. 4
Two double jeopardy arguments have been raised. First, it is claimed that since jeopardy had attached at the first trial before a mistrial was declared the second trial was prohibited by the fifth amendment proscription against being placed twice in jeopardy for the same offense. 5 The mistrial was declared because of the firebombings of the homes of close relatives of two government witnesses. At the hearing held by the district court on the morning after the bombings, the government attorney disclosed that his intelligence information led him to be concerned about the safety of not only the witnesses but also the jurors. The district court made a "finding that there has been sufficient problem of intimidation of witnesses' families to make this a dangerous situation" and "that there is enough danger (to) declare a mistrial."
The question whether a mistrial granted other than at the defendant's motion 6 bars a subsequent trial turns on whether the government can demonstrate "manifest necessity" for it. Arizona v. Washington, 434 U.S. 497, 505-06, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), and cases cited therein. In a close case, the trial judge's ruling on the need for a mistrial "is entitled to special respect." Id. at 510, 98 S.Ct. 824. But this is not a close case. A reasonable fear for the safety of witnesses or jurors clearly suffices as "manifest necessity." 7 The district court did not abuse its discretion in dismissing the jury which was potentially endangered, and empaneling a new, sequestered jury.
The second double jeopardy issue is raised by Margaret Noel, who argues that the third trial, in which she was convicted, was barred by the second mistrial caused by the deadlocked jury. 8 Suffice it to say that a genuinely...
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