Johnson v. U.S.

• Decision Date: 17 March 1975
• Docket Number: No. 74-1122,74-1122
• Citation: 506 F.2d 640
• Parties: Charles N. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 640

506 F.2d 640

Charles N. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 74-1122.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 10, 1974.

Decided Nov. 18, 1974, Certiorari Denied March 17, 1975, See

95 S.Ct. 1404.

Thomas M. Larson, asst. Federal Public Defender, Kansas City, Mo., for appellant.

Donald R. Cooley, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and SMITH, Senior District Judge. ^*

GIBSON, Chief Judge.

The defendant, Charles Johnson, was convicted by a jury of possession of heroin with intent to distribute in violation of 21 U.S.C. 841(a)(1). He received a seven year prison sentence to be followed by a mandatory additional three years special parole pursuant to 841(b)(1). ¹

While pursuing his appellate remedies the defendant also sought 28 U.S.C. 2255 relief, alleging that his trial counsel failed to provide him effective assistance of counsel prior to and during the trial. After an evidentiary hearing, the District Court denied relief. ²

This appeal is from the two District Court orders, the judgment of conviction and sentence in October, 1972, and the denial of post-trial relief in June, 1973. Johnson asserts three primary assignments of error: (1) the improper giving of a joint possession instruction which assertedly negated Johnson's defense of entrapment, (2) search and seizure and evidentiary issues, and (3) the erroneous conclusion by the District Court that Johnson was adequately represented by counsel. ³ We affirm.

A brief review of the facts is in order. Twice on May 11, 1972, Government agents in Kansas City, Missouri, gave marked currency to Herbert Jones, a Government informant, for Jones to purchase narcotics from the defendant Johnson. After passing out of the range of surveillance by Government agents, Jones and Johnson consummated two transactions; Jones, in turn, surrendered the drugs to the Government agents. The next day, May 12, 1972, a special agent for the Federal Bureau of Narcotics and Dangerous Drugs (BNDD), upon information supplied by Jones, submitted an affidavit to the United States Magistrate and obtained a search warrant. Five officers executed the warrant at the apartment of defendant Johnson's sister where Johnson was living in Kansas City, Missouri. When they entered, the officers found Jonson sitting on one end of a couch close beside a TV tray on which lay a quantity of heroin. Informant Jones was seated on the far end of the couch. The officers also found a syringe lying on the floor and, after a subsequent search, the marked currency in the defendant's jacket. Both men were arrested and charged with possession with intent to distribute, but the case against Jones was dismissed by the Magistrate because the Government failed to show that Jones had sufficient control over the narcotics to constitute possession.

Defendant Johnson denied that he had met Jones on May 11 and claimed that Jones had sole possession of the bag of heroin and the syringe on May 12. At trial Jones testified that he twice bought heroin from Johnson in the same apartment on May 11, but that he gave Johnson no money the next day and, in fact, was surprised when the agents entered the apartment. Johnson testified at trial, claiming that Jones owned all the heroin and had brought it with him to the apartment on May 12. He explained that as an act of sympathy he offered Jones the apartment as a place to make use of the drug because Jones had complained he was ill.

I. Jury Instruction on Joint Possession and Entrapment.

Johnson argues that the District Court should not have instructed the jury that it could find the defendant guilty if he possessed narcotics jointly with another person. ⁴ He reasons that, in view of the evidence, joint possession could only have been with Jones, whom, the jury was also instructed, was a Government informant. Because Jones was an informant it is argued that the Government failed to prove defendant Johnson's predisposition to commit the offense and to disprove that the crime was the creative effort of Government agents. Thus, the joint possession instruction 'effectively negated' his entrapment defense.

First, we do not subscribe to Johnson's implicit premise that a finding of joint possession with A givernment informant established prima facie entrapment. Nor do we agree that this case falls within the so-called 'outrageous conduct' interpretation of the entrapment defense referred to by the Supreme Court as a bar to prosecution under the due porcess clause in United States v. Russell, 411 U.S. 423, 431, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). While Johnson may have made a sufficient showing in support of his entrapment argument to justify the court's submitting the issue to the jury, the evidence did not warrant a determination that entrapment existed as a matter of law. United States v. Wilson, 501 F.2d 1080 (8th Cir. 1974); United States v. Pollard, 483 F.2d 929, 932 (8th Cir. 1973), cert. denied, 414 U.S. 1137, 94 S.Ct. 882, 38 L.Ed.2d 762 (1974); United States v. Emory, 468 F.2d 1017, 1018-1019 (8th Cir. 1972). ⁵

Second, although there is generally no need for the court to give an instruction on possession in a case involving a possession issue, United States v. Robinson, 448 F.2d 715, 716 (8th Cir. 1971), cert. denied, 405 U.S. 927, 92 S.Ct. 977, 30 L.Ed.2d 800 (1972), the joint possession instruction was properly given in the instant case because the evidence raised a question as to who possessed the narcotics. Whether the instruction was properly given depends, of course, upon the facts of each individual case. The Government requested the instruction on constructive possession because the heroin was not found directly on the person of the defendant, but on a nearby TV tray. The instruction on joint possession was requested because the events took place in an apartment which Johnson shared with his sister as well as because Jones was present and had access to the drugs. Considering the jury charge as a whole, as we must, we find no error in the giving of the joint and constructive possession instructions in the circumstances of this case and no contradiction with the asserted entrapment defense that might confuse or mislead the jury.

II. Search and Seizure; Other Crimes Evidence.

Two points raised by the defendant do not require extensive discussion. First, he seeks to overturn the District Court's refusal to suppress evidence seized on May 12, 1972, because the affidavit requesting the search warrant did not establish probable cause and because the warrant was improperly executed by the arresting officers. Johnson's main contention is that the affiant who requested the search warrant improperly relied upon uncorroborated hearsay statements by the informant Jones to support his showing of probable cause before the issuing magistrate. The affidavit contained circumstantial explanation of how the informant obtained his information and it gave adequate reasons why the affiant believed Jones to be reliable. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The informant's knowledge was gathered firsthand and the affiant certified that the Government had successfully used Jones' reliable information in the very recent past. Therefore, there was sufficient corroboration to justify issuance of the warrant. Spinelli v. United States, 393 U.S. 410, 415-416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Probable cause is apparent. Moreover, the trial court's refusal to suppress on the grounds of assertedly defective execution of the warrant was supported by substantial evidence and will not be disturbed. Mullins v. United States, 487 F.2d 581, 589 (8th Cir. 1973); Gullett v. United States, 387 F.2d 307, 309 (8th Cir. 1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1968).

Second, relying again on his implicit premise that evidence of possession jointly with a Government informant establishes prima facie entrapment, Johnson argues that the court erred in admitting into evidence testimony concerning Johnson's prior criminal acts, namely sales of heroin on May 11, 1972. Specifically he asserts that although during the trial the District Court concluded that the prejudicial impact of the evidence of Johnson's prior dealings in narcotics outweighed its value to prove his intent to possess heroin on the date charged, as soon as the predisposition issue entered the case with Johnson's entrapment defense, the court admitted the same evidence of prior criminal acts which it otherwise would have excluded. If, however, the District Court, as Johnson claims, eliminated entrapment as a defense in the case, the scope of relevancy of a prior offense would have narrowed, and the evidence arguably should have been excluded because predisposition could no longer have been an issue.

The argument fails, however, as the court did not eliminate the entrapment defense. Evidence of prior distribution of heroin is admissible in a prosecution for possession under 841(a)(1) to prove the defendant's knowledge and intent to possess on the date charged. United States v. Richardson, 477 F.2d 1280, 1282 (8th Cir.), cert. denied, 414 U.S. 843, 94 S.Ct. 104, 38 L.Ed.2d 82 (1973); see Proposed Fed.R. Ev. 404(b) (1973). The court instructed the jury to use the evidence only for the limited purposes of judging Johnson's intent to possess on May 12 and to decide whether or not he had been entrapped.

Rulings on the scope of relevancy and admissibility of other crimes in evidence are properly within the discretion of the trial court. Amos v. United States, 496 F.2d 1269, 1274 (8th Cir. 1974). See O'reilly v. United States, 486 F.2d 208, 212 (8th Cir.), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 332 (1973). We find no error in the court's admitting evidence of...