Ewing v. United States

• Decision Date: 21 November 1967
• Docket Number: No. 21055.,21055.
• Citation: 386 F.2d 10
• Parties: James EWING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

386 F.2d 10 (1967)

James EWING, Appellant, v. UNITED STATES of America, Appellee.

No. 21055.

United States Court of Appeals Ninth Circuit.

November 21, 1967.

Harvey E. Byron (argued), Los Angeles, Cal., for appellant.

Edwin L. Miller, U. S. Atty., Phillip Johnson (argued), Asst. U. S. Atty., San Diego, Cal., for appellee.

Before BARNES and DUNIWAY, Circuit Judges, and FERGUSON,^* District Judge.

BARNES, Circuit Judge:

Three indictments were filed on differing dates in the United States District Court for the Southern District of California, Southern Division (now the United States District Court for the Southern District). The first, No. 33729, named as defendants James Thomas and James (Clarence) LaVerne Currie. When the case was called, the Government announced that James Thomas had died, and moved to dismiss the indictment. This motion was granted.

The second indictment, No. 34738, was in four counts, and named as defendants James (Clarence) LaVerne Currie and James Ewing.

The third, No. 36097, was in two counts, and named James Ewing alone as a defendant, with James Thomas and Jefferson Sutton as named unindicted coconspirators, and certain unknown persons as unnamed conspirators. (This indictment is the only one appearing in the record before us for reasons hereinafter apparent.) It charges in Count I a conspiracy to import heroin and cocaine from Mexico into this country, 21 U.S.C. § 174, by an overt act of James Thomas on October 29, 1964 (importation of three ounces of cocaine), and in Count II a conspiracy to smuggle marijuana from Mexico into the United States, 21 U.S.C. § 176a, alleging an overt act of James Thomas on March 15, 1963, and overt acts of Jefferson Sutton on December 20, 1963 and February 8, 1964.

The second and third indictments, consisting of six counts were consolidated for trial. R.T. 10.

We adopt the statement of facts presented by appellee:

"In 1957 Marilyn Jackson met James Thomas in New Jersey and began living with him in a common-law relationship. In 1958 they moved to California and lived in Los Angeles, along with her minor son R.T. 49-51, 56.

"In early 1963 James Thomas was introduced to James Ewing by William Carter at the Thomas residence in Los Angeles. Discussions took place regarding the transportation of marihuana from Tijuana, Mexico, to Los Angeles, California. It was determined that James Thomas would be paid $200 for each trip he made to Tijuana, Mexico, to pick up marihuana for James Ewing R.T. 40, 42-44, 51, 53, 57, 68, 85, 88-89, 109.

"As a result of the discussions, James Thomas agreed to drive to Tijuana, Mexico, to pick up marihuana and deliver it to Los Angeles for James Ewing. Usually James Thomas was accompanied by Marilyn Jackson and her minor son, and occasionally James Ewing rode with them, though he normally met them in Tijuana, Mexico. James Ewing furnished his car to James Thomas and paid him approximately $200 after each trip was completed R.T. 54, 55, 58, 69, 71-72, 89, 95-101.

"The normal procedure that was followed was that James Ewing would contact a Mexican after they arrived in Tijuana, Mexico. James Thomas and Marilyn Jackson, along with her son, would drive James Ewing\'s car and follow James Ewing and the Mexican to a location outside of town. Then potato or gunny sacks containing marihuana would be placed in the trunk of the Ewing vehicle. They would then drive from Tijuana, Mexico, to the Ewing residence in Los Angeles, California R.T. 58-60, 65-66, 95.

"James Ewing would then take the sacks into his garage. He on one occasion brought two boxes wrapped in brown paper from the garage into his house. Ewing and Thomas weighed the boxes and commented that they did not weigh as much as they thought. Ewing gave James Thomas and Marilyn Jackson some marihuana in a brown paper bag. They then rolled and smoked some marihuana cigarettes and Marilyn Jackson, who was familiar with marihuana, got high. R.T. 65-69, 89, 96-98.

"Similar trips were made by James Thomas, Marilyn Jackson and her son during 1963 R.T. 64-65, 71-72, 101-103, 105-107.

"On one occasion in Tijuana, Mexico, James Ewing gave James Thomas some powder in a cellophane package. This was also delivered to the Ewing residence. Ewing told James Thomas that the buyer in Chicago was complaining that it was too weak R.T. 72.

"James Thomas decided to stop going to Tijuana, Mexico, for James Ewing. At this time James Ewing reached an arrangement with Jefferson Sutton who agreed to go to Tijuana, Mexico, and pick up and deliver marihuana for James Ewing. Marilyn Jackson went down with Jefferson Sutton on the first trip he made in order to show him where to go. R.T. 75-76.

"On April 23, 1965, James Ewing was arrested by federal agents near his residence in Los Angeles, California. James Ewing told the federal officers that he had never been to the residence of James Thomas and had never met Marilyn Jackson. He also stated that he had never socialized with James Thomas and had never sent him to Tijuana, Mexico, to pick up marihuana. James Ewing also said that he had only been in Tijuana, Mexico once or twice since 1960 and had never been there with James Thomas. He also denied paying James Thomas any money. R.T. 176-177, 179-180, 182.

"On September 30, 1965, after he was arrested and indicted, James Ewing visited Marilyn Jackson at her residence in New Jersey. James Ewing tried to convince Marilyn Jackson that she should not appear and testify in California in this case. He offered her $500 if she would agree not to appear. R.T. 92-93, 108, 111, 118-121, 123, 244." Brief for Appellee at 4-6.

After trial by jury, Ewing's motion for acquittal was granted as to the three counts in which he was named in No. 34738, and Count I of No. 36097. He was found guilty of Count II of No. 36097, the marijuana conspiracy count.

Currie was found guilty of Counts I, II and III in No. 34738, but a new trial was granted. The charge against him in Count IV had been previously severed for trial.

Jurisdiction below existed (21 U.S.C. § 176a; 18 U.S.C. § 3231), and exists here (28 U.S.C. § 1291).

Seven errors are alleged by appellant. They are adequately stated by appellee as follows:

"1. Did the Trial Court commit plain error in joining indictments numbered 34738-SD and 36097-SD for trial?

"2. Did the Trial Court commit plain error by informing the jury that the unindicted co-conspirator was deceased?

"3. Did the Trial Court commit plain error by allowing the government to prove that the appellant had offered a government witness Marilyn Jackson money to absent herself from the trial?

"4. Did the Trial Court commit plain error by allowing the government to impeach a witness Jefferson Sutton who testified at the trial contrary to a statement he had given a federal agent?

"5. Did the Trial Court commit plain error by allowing a government witness Marilyn Jackson to testify that a cigarette, which had been rolled in her presence and which made her high, was marihuana?

"6. Did the government prove that the appellant conspired to smuggle marihuana?

"7. Did the Trial Court commit plain error in his comments to the jury?" Brief for Appellee at 3-4.

We consider each in turn.

I. The Consolidation of the Two Cases

Appellant urges "counsel for both defendants objected to this consolidation¹ . . .." R.T. 12-14. This is incorrect. Counsel for Currie objected. R.T. 14, lines 7-10; 20, lines 20-25; 253, lines 6-12. All counsel for appellant Ewing asked for was a continuance, in order to prepare to meet the conspiracy charges. R.T. 27-28. This continuance was granted him, and he was then "happy" to proceed in the trial of both indictments. R.T. 28, lines 6-7.

Appellant has thus waived his objection to the joinder, by failing to object in the district court. Rule 51, Fed.R.Crim.P.; Fiano v. United States, 271 F.2d 883 (9th Cir. 1959), cert. den. 361 U.S. 964, 80 S.Ct. 593, 4 L.Ed.2d 545 (1960); Ramirez v. United States, 294 F.2d 277, 283 (9th Cir. 1961). After the Government's case was finished, the appellant's counsel moved for an acquittal solely upon grounds of insufficiency of the evidence, and not for a misjoinder; nor did he move for a severance (R.T. 253-257).

Had there been a timely objection, or motion, by Ewing (as there was on behalf of Currie), the matter would still have been, as appellant concedes, "within the trial court's discretion," and "ordinarily not subject to review." Brief for Appellant at 21. United States v. Haupt, 136 F.2d 661 (7th Cir. 1943), is perfectly good law, based on its own facts, but is here not controlling because such facts do not here exist.

Currie was a defendant in No. 34738, but not in No. 36907. That Currie might have been prejudiced because he was to be tried with Ewing does not necessarily mean Ewing was prejudiced because he was to be tried with Currie. The latter conclusion is not a necessary corollary of the former. We find no error in the court's refusal to grant Currie's motion to sever; and no motion on behalf of Ewing was made at any time.

II. The Reference to the Death of Thomas

Although the record before us establishes only inferentially that the trial judge, in reading the indictments to the jury, advised it that the unindicted co-conspirator (James Thomas) was deceased, we accept it as a fact, even if he was not mentioned by name.

Appellant starts with the premise that the fact of such death was immaterial, and hence reference to it was prejudicial error. We cannot agree with such a premise. Even if the premise is correct, we cannot hold, as a matter of law, the fact of death was immaterial. We could agree that "it has no place in the trial" for impeachment purposes, Herzog v. United States, 226 F.2d 561, 565 (9th Cir. 1955), cert. den. 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1955), under well settled rules of evidence.

But here no impeachment was attempted. It was the attempted impeachment by use of immaterial and collateral evidence that the court...