U.S. v. Johnson

• Decision Date: 29 August 1983
• Docket Number: No. 82-8305,82-8305
• Citation: 713 F.2d 654
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin Percival JOHNSON, Kathleen M. Johnson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 654

713 F.2d 654

UNITED STATES of America, Plaintiff-Appellee, v. Marvin Percival JOHNSON, Kathleen M. Johnson, Defendants-Appellants.

No. 82-8305.

United States Court of Appeals Eleventh Circuit.

Aug. 29, 1983.

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

Mary S. Donovan, Federal Defender Program, Inc., Atlanta, Ga., for Kathleen M. Johnson.

Anthony L. Cochran, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before HILL, KRAVITCH and HENDERSON, Circuit Judges.

ALBERT J. HENDERSON, Circuit Judge:

Marvin and Kathleen Johnson appeal their convictions in the United States District Court for the Northern District of Georgia for endeavoring to obstruct the due administration of justice. 18 U.S.C. § 1503. ¹ In this court, they assert several grounds of error including improper venue, insufficiency of the evidence, the unconstitutionality of a search and the denial of a new trial based on newly discovered evidence. Finding no error, we affirm.

On June 6, 1981, Kathy Hargan was arrested in Atlanta, Georgia when she was discovered attempting to stowaway in a trunk in the luggage compartment of a Delta Airlines airplane. Shortly after her arrest she informed the authorities of her involvement in a scheme to steal certain property aboard the aircraft. During this interview she implicated the appellant, Marvin Johnson, as a co-conspirator in the unlawful enterprise. As a result, Johnson was indicted in the Northern District of Georgia for conspiracy to violate 18 U.S.C. §§ 2199 and 659. Hargan negotiated a plea agreement with the government, consenting to testify against Johnson in the upcoming trial. Thereafter she apparently entered the government's witness protection program and was relocated to an undisclosed destination.

Sarah Kissell, Kathy Hargan's very close friend, worked at the "Wanna Sauna", a "health spa" in Royal Oak, Michigan, an area just outside Detroit. On September 10, 1981, while she was at work, the manager of the spa, Dana Lucas, asked Kissell to follow him in her automobile to an Arco service station so that he could leave his car for repairs. Kissell complied with this request. While she was waiting for Lucas in her automobile, she noticed that the passengers of another car at the station were sounding their horn to attract her attention. Believing that the automobile belonged to a friend, she told Lucas to take her car back to their place of employment. When she stepped up to the other automobile, Kathleen Johnson got out and forced her to get in the vehicle, threatening to kill her if she refused. Mrs. Johnson also directed Kissell's attention to an automobile located some distance away which contained several men and appeared to have a shotgun or a pipe protruding from the rear window. When Kissell got into the car, she recognized Marvin Johnson, Kathleen Johnson's husband, who was sitting in the driver's seat. Kissell knew both Johnsons; she and Marvin Johnson had been lovers at one time. When Kissell entered the Johnsons' vehicle, she was not wearing shoes and did not have any personal belongings with her.

The Johnsons drove around for a while and questioned Kissell concerning the whereabouts of Kathy Hargan. During this time, in response to Marvin Johnson's instructions, Kissell telephoned the Wanna Sauna and told her boss that she would be in the hospital for three months. She asked him to clear out her apartment and place her things in storage and to retain her purse, keys and car at the Wanna Sauna.

The Johnsons then removed Kissell to the Easy Rest Motel, where the group stayed until the morning of September 13, 1981. In the interim, Kissell was questioned further about Kathy Hargan's current address. Marvin Johnson indicated that he intended to have Hargan killed. While in the Johnsons' custody, Kissell was never tied up or bound in any manner nor did she see any weapons. She testified, however, that Johnson threatened to kill her if she tried to escape and that she knew Marvin Johnson customarily carried a gun.

During the period in which the Johnsons had custody of Kissell, the group ventured out of the motel room on several occasions. On Friday, September 11, 1981, Kathleen Johnson went out to get them breakfast and purchased underclothing, birth control pills, a toothbrush, a sweatshirt and shoes for Kissell. Kissell remained with Marvin Johnson in the motel room while Kathleen Johnson ran these errands. That evening Kissell and the Johnsons went to a Bonanza steak house for dinner. On Saturday, September 12, Kissell accompanied Kathleen Johnson to several locations including a laundromat, a K-Mart, a liquor store and a fast food restaurant. On Saturday, Kissell and Mrs. Johnson also went to the home of an acquaintance of Kissell for the purpose of purchasing drugs.

The group moved to another motel, the Red Roof Inn, on Sunday morning. When they drove up to the motel, Marvin Johnson instructed Kissell to hide on the floor in the back seat. After they moved into the new motel room, Kissell and Kathleen Johnson left to purchase cigars and food. On this trip, Kissell remained alone in the car while Kathleen Johnson entered a store to buy the cigars. Kissell and Mrs. Johnson then went to a Kroger grocery store. While Mrs. Johnson was in the supermarket, Kissell got out of the car and ran into a Kinney shoe store, located approximately three doors down from the grocery. She hurried to the back of the establishment, told a clerk that she had been kidnapped and asked her to call the FBI. In a very excited tone she also requested that the clerk hide her, exclaiming that "they" would hurt her and "they" had guns. Shortly thereafter, Sergeant Switzer from the local Farmington police department arrived and removed Kissell to the police station.

When Kathleen Johnson came out of the grocery store and noticed that Kissell was missing, she looked for her and telephoned her husband. Mrs. Johnson was arrested as she attempted to drive away. Marvin Johnson was later arrested in a parking lot at a local Holiday Inn.

At the trial, Kissell testified that she did not try to escape at an earlier time because she feared that she would be killed. According to her testimony, Marvin Johnson said that he would release her if she told him where Kathy Hargan was located. Kissell never revealed Hargan's whereabouts.

The Johnsons were indicted in the Northern District of Georgia for endeavoring to obstruct the upcoming criminal trial of Marvin Johnson, which was pending in the Northern District of Georgia. They were each convicted after a jury trial.

The appellants first attack venue in the Northern District of Georgia. They urge that because the alleged kidnapping occurred in Detroit, Michigan, they should have been tried in that district. They claim that they were prejudiced by their inability to investigate, to call witnesses and to have a jury composed of people with knowledge of the location of the crime.

This argument, however, is foreclosed by United States v. Barham, 666 F.2d 521 (11th Cir.) cert. denied, 456 U.S. 947, 102 S.Ct. 2015, 72 L.Ed.2d 470 (1982). In Barham, the defendant was charged with a violation of 18 U.S.C. § 1503 arising from his attempt to kill a witness who was scheduled to testify against him in the Northern District of Alabama. The shooting occurred in Tennessee. This court rejected the defendant's contention that his trial on the section 1503 charge should have been held in Tennessee. The court determined that venue was properly laid in the Northern District of Alabama because the judicial proceeding which could have been impeded by the defendant's conduct was pending in that district. In so holding, the court adhered to the decisions of the United States Court of Appeals for the First and Sixth Circuits and declined to follow the contrary conclusion of the District of Columbia Circuit. See United States v. O'Donnell, 510 F.2d 1190 (6th Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975); United States v. Tedesco, 635 F.2d 902 (1st Cir.1980), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 974 (1981); United States v. Swann, 441 F.2d 1053 (D.C.Cir.1971). Thus, in a section 1503 prosecution " 'venue ... is to be determined by focusing on which court is affected by the attempt to influence, obstruct, or impede the due administration of justice. It is the impact of the acts, not their location, that controls.' " Barham, 666 F.2d at 524 (quoting Tedesco, 635 F.2d at 906) (emphasis supplied) (footnote omitted). The appellants were charged with endeavoring to obstruct the upcoming criminal trial in the Northern District of Georgia. Under Barham, which is binding precedent, venue for their section 1503 trial was proper in that district.

Turning to the trial itself, the appellants complain of the conduct of the government in calling an expert to testify without prior notification. During the trial, Sergeant Switzer, the Farmington, Michigan police officer who saw Kissell at the Kinney shoe store shortly after she escaped, was qualified as an Emergency Medical Technician expert. Over defense objection, he testified that in his expert opinion Kissell was in a state of shock when he first saw her. The appellants contend that the government should have informed them before the trial that Sergeant Switzer would testify as an expert. They claim that this testimony was highly prejudicial because it tended to contradict their defense that Kissell was not being held against her will.

A criminal defendant has no absolute right to a list of the government's witnesses in advance of the trial. See United States v. Colson, 662 F.2d 1389, 1391 (11th Cir.1981); United States v. Hancock, 441 F.2d 1285 (5th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 81, 30 L.Ed.2d 63 (1971). ² Although in civil cases litigants may be required to...