713 F.2d 633 (11th Cir. 1983), 82-8293, United States v. Johnson

Docket Nº:82-8293.
Citation:713 F.2d 633
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marvin P. JOHNSON, Robert A. Wilkins, Duane Quamina, Patricia Gordon, Mark Francis Johnson, Defendants-Appellants.
Case Date:August 29, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 633

713 F.2d 633 (11th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marvin P. JOHNSON, Robert A. Wilkins, Duane Quamina,

Patricia Gordon, Mark Francis Johnson,

Defendants-Appellants.

No. 82-8293.

United States Court of Appeals, Eleventh Circuit

August 29, 1983

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Stanley M. Baum (Court-appointed), Atlanta, Ga., for Marvin P. johnson.

Hugh Peterson, Jr. (Court-appointed), Atlanta, Ga., for Wilkins.

J. Richard Young (Court-appointed), Atlanta, Ga., for Quamina.

P. Bruce Kirwan (Court-appointed), Atlanta, Ga., for Gordon.

William S. Sutton (Court-appointed), Atlanta, Ga., for Mark Francis Johnson.

Julie E. Carnes, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before HILL and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

Soon after midnight, on June 5, 1981, Delta Airlines employees in Atlanta discovered a young woman, Kathy Hargan, hiding in the cargo bin of a plane preparing for departure to New York. Through subsequent conversations with Hargan, law enforcement officials began to unravel an elaborate stowaway scheme. As the officers learned, the object of the plot was to steal assorted valuables being transported by the courier services of Wells Fargo, Brinks and Purolator aboard the flight. The investigation eventually resulted in the indictment of several persons involved in that scheme. In this appeal, we review the convictions of five of those participants: Marvin Johnson, Mark Johnson, Robert Wilkins, Duane Quamina, and Patricia Gordon. Finding no error of consequence, we affirm.

I.

In early January of 1981, Hargan met Marvin Johnson through an employee at the Wanna-Sauna Health Spa in Detroit, Michigan. Several months later, she traveled

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with Johnson first to Rochester, New York then to New York City, and finally to Long Island to visit one of Johnson's relatives. During that time, the pair met with Robert Wilkins who, as Hargan had previously learned, was an employee of Wells Fargo. Wilkins explained to Johnson the logistical details concerning the company's transfer of its daily shipments of negotiable instruments, gold, cash and other valuables on various flights. He further informed them of the procedures employed to transport those shipments from the airport to the Wells Fargo office upon their arrival in New York. Based on that information, they concluded that the shipments were probably vulnerable to a theft only during the actual flight. After that meeting, Johnson began formulating a plan to secrete someone in the luggage compartment of the plane in an effort to steal the valuables. He and Hargan tentatively agreed that she would be an appropriate person to attempt the theft.

Several days later, Wilkins brought Johnson an assortment of clamps, locks, tags and lead seals, many of which were stamped with the Wells Fargo emblem. Wilkins explained to Hargan how those items were used to package the daily loads and further instructed her in skills associated with the identification of the company's bags. About this same time, Mark Johnson (Marvin's brother) joined the group at a motel in Hempstead, Long Island. Marvin obtained a large trunk and he and Mark went about the task of outfitting it for the project. To that end, they lined the trunk with foam rubber and installed an oxygen tank and an electric fan.

The group then made final preparations for the execution of the scheme. They chose the daily Atlanta to New York flight because Wilkins was most familiar with that route. The plan called for Hargan to hide in the trunk until it was safely placed in the plane's cargo bin. 1 After the departure, she was to exit from the trunk and open the various bags containing the Wells Fargo shipments and then reseal them in accordance with Wilkins's instructions. She was also to steal any other valuable freight that she might discover, such as Brinks or Purolator shipments. After having secured the items, she intended to place them in duffel bags carried along with the trunk. If she located any gold, she would replace it with bricks that were brought aboard in the same duffel bags.

On June 2, 1981, various persons connected with the enterprise arrived in Atlanta and assembled at a motel near the airport. That group included Mark Johnson, Hargan, Gordon, James Wright, Duane Quamina (whom Hargan had met earlier), and several other persons. At the motel, they readied the trunk, duffel bags and other items for the flight. Hargan was loaded in the trunk and the others donned matching shirts bearing the insignia, "Wayne County Gospel Choir." Several members of the group carried Bibles. When they reached the airport, they told Delta employees that the trunk contained their "stereo equipment." They succeeded with the charade to the point of getting Hargan safely stored away in the luggage compartment. But once the flight departed, she could not leave the trunk because it had been placed on a shelf thereby blocking her escape.

After they arrived in New York empty handed, Marvin Johnson bought a new trunk and made preparations for another attempt. Quamina, Mark Johnson and Hargan adapted that trunk in a manner similar to the original one. Then, on June 4, 1981, Hargan, Wright and Mark Johnson flew back to Atlanta. 2 They checked into a motel and quickly prepared everything for the flight that night. Upon returning to the airport, they learned that they had arrived

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too late. While Wright and Johnson had sufficient time to board the flight as passengers, they were informed that their luggage, including the trunk, would have to be loaded on the next flight. They therefore abandoned the attempt that night. Back at the motel, they called Marvin Johnson who instructed them to remain in Atlanta overnight and try again the next day. Unfortunately, they lacked sufficient funds to stay another day. After another telephone exchange, Marvin sent them $100.00 by telegram for food and lodging.

The next night, they once again undertook their mission. When Delta baggage handlers loaded the trunk, Hargan's oxygen equipment came unattached. She consequently had difficulty breathing and began to panic. At that point, an airline employee thought he heard a sound originating from the trunk. He conferred with a co-worker and, after listening for a few more moments, decided that there was no reason to investigate further. Then, as one of the baggage handlers raised the loading platform to the cargo bin, he observed the trunk shaking noticeably. The employee alerted his supervisor and the plane was detained. Delta officials then lowered the door to the cargo bin and discovered Hargan sitting on top of the trunk.

The subsequent investigation eventually led to an indictment against both Johnsons, Wilkins, Quamina, Gordon, and Wright. After indictment, they were tried for conspiracy to commit offenses against the United States (18 U.S.C. § 371), wire fraud (18 U.S.C. § 1343), and aiding and abetting a stowaway (18 U.S.C. §§ 2 and 2199). 3 At the ensuing trial, the government's case consisted primarily of the extensive testimony of both Hargan and Wright, 4 as well as motel records, airline records, physical exhibits, and fingerprints that corroborated many of the details of their story. The jury found each defendant guilty on all three counts. On appeal, the defendants assign numerous errors in the district court trial. 5

II.

The defendants first contend that the district court erred in refusing to grant their various motions for a severance. Each of the defendants, either expressly or by adoption of their co-defendants' motions, maintain that they were unduly prejudiced by a "spill-over" effect from the evidence. In addition, Mark Johnson, Wilkins, and Quamina insist that the joint trial impermissibly deprived them of significant exculpatory evidence. Both of these arguments are premised on Fed.R.Crim.P. 14, which permits a severance if it appears that the defendants or the government will be prejudiced by the joinder. That decision is entrusted to the discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion. E.g., United States v. Bovain, 708 F.2d 606, 608 (11th Cir.1983). Mindful of the latitude afforded the district court in such situations, we turn to an examination of the defendants' particular claims.

A.

In evaluating whether the evidence against one defendant had a harmful spill-over effect on the jury's deliberations of the other defendant's guilt, the court must consider

[w]hether under all circumstances of the particular case ... it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury

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keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.

Peterson v. United States, 344 F.2d 419, 422 (5th Cir.1965); see also United States v. Lippner, 676 F.2d 456, 464-65 (11th Cir.1982). In this inquiry, a defendant must demonstrate "compelling prejudice" caused by the alleged evidentiary spill-over, which effectively precluded the jury's ability to make the necessary individualized determination. See, e.g., United States v. Varella, 692 F.2d 1352, 1360 (11th Cir.1982); United States v. Phillips, 664 F.2d 971, 1016-17 (5th Cir.1981)...

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