Johnson v. United States
Decision Date | 11 March 1966 |
Docket Number | No. 17967.,17967. |
Citation | 356 F.2d 680 |
Parties | Haskell Edward JOHNSON, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Thomas M. Haas, Mobile, Ala., made argument for appellant and filed brief.
Parnell J. Donohue, Asst. U. S. Atty., Sioux Falls, S. D., made argument for appellee and filed brief. Harold C. Doyle, U. S. Atty., Sioux Falls, S. D., on the brief.
Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and MEREDITH, District Judge.
This is an appeal from the United States District Court for the District of South Dakota, where the appellant was convicted by a jury on five counts of an indictment charging violation of the Mann Act, 18 U.S.C. 2421. The indictment alleges the transportation of various females for the purpose of prostitution, debauchery and other immoral purposes as follows: Count 1, on or about December 25, 1962, from Billings, Montana, to Deadwood, South Dakota; Count 2, on or about January 1, 1963, from Miles City, Montana, to Deadwood, South Dakota; Count 3, on or about February 1, 1963, from Nashville, Tennessee, to Deadwood, South Dakota; Count 4, on or about February 22, 1963, from Deadwood, South Dakota, to Miles City, Montana; and Count 5, on or about April 15, 1963, from Paducah, Kentucky, to Deadwood, South Dakota.
The appellant was sentenced to five years and $1,000 on each of Counts 3, 4 and 5, to run consecutively, and five years on each of Counts 1 and 2; the sentence on Count 1 to run concurrently with Count 3 and the sentence on Count 2 to run concurrently with Count 4. Appellant had retained counsel, made bond of $25,000 pending appeal, and the District Court permitted him to appeal in forma pauperis.
The appellant contends he is entitled to a new trial and these matters will be discussed under the following headings: (1) the appellant was denied a fair trial because the verdict was not supported by the evidence, the motion of appellant for severance of each of the counts before the trial began was denied causing a cumulative effect upon the jury as to the evidence in each of the counts, and appellant was not allowed to cross-examine witness Raymond Vaughn as to whether or not he had been promised immunity or otherwise improperly influenced by agents of the government in order to secure false testimony; (2) the appellant is entitled to a new trial because the trial judge improperly chastised appellant's attorney in the presence of the jury; (3) error was committed because the jury was permitted to consider an alleged past conviction in a similar case, such evidence being admissible only when the defendant testifies in his own behalf, which defendant did not do in this case; and (4) the appellant is entitled to a new trial because of the improper conduct of the prosecution in permitting the witnesses to use the courtroom to rehearse their testimony prior to trial and in referring in closing argument to the jury to appellant's past conviction which was improperly admitted into evidence.
The appellant moved for a judgment of acquittal at the close of the government's case and at the close of the entire case. A review of the entire record shows that there was ample evidence from which the jury could make a finding beyond a reasonable doubt as to the guilt of the appellant on all five counts of the indictment.
Under Rule 8(a), Federal Rules of Criminal Procedure, joinder of offenses is ordinarily appropriate where, as here, the specific counts refer to the same type of offenses, occurring over a relatively short period of time, and the evidence as to each count of necessity overlaps. The prime consideration in determining whether or not to grant a severance is the possibility of prejudice to the defendant in conducting his defense. Weighing the danger of confusion and undue cumulative inference is a matter for the trial judge within his sound discretion. His denial of severance is not grounds for reversal unless clear prejudice and abuse of discretion is shown. There has been no such showing here. It is not enough simply to show that such joinder makes it more difficult to defend. See Rule 14, F.R.Cr.P.; Smith v. United States, 86 U.S.App.D.C. 195, 180 F.2d 775 (1950); Finnegan v. United States, 204 F.2d 105 (8 Cir. 1953), cert. den. 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347; Langford v. United States, 106 U.S.App. D.C. 21, 268 F.2d 896 (C.A.D.C.1959); Pummill v. United States, 297 F.2d 34 (8 Cir. 1961); Butler v. United States, 317 F.2d 249 (8 Cir. 1963), cert. den. 375 U. S. 838, 84 S.Ct. 77, 11 L.Ed.2d 65.
During the cross-examination of witness Vaughn the appellant's counsel elicited the fact that in April 1963 Vaughn had been taken to the city jail in Nashville, Tennessee, questioned by an FBI agent, locked up in the jail and advised by the officers that he could go to the penitentiary for failing to register for the draft. The Court sustained an objection to the question: "Did they tell you that five years was the penalty?" Appellant's attorney in making a record thereafter stated that he was attempting to show that the witness had made statements to the FBI which tended to incriminate the defendant and to some extent the witness himself and that his testimony at the trial was continuing along the lines of the statement because of the fear the government agents had engendered in the witness that he might have been prosecuted for violation of the Selective Service Act or the White Slave Traffic Act. This particular witness admitted that he had been convicted of burglary and had served time in the penitentiary. A review of the entire cross-examination on the case in chief and in rebuttal discloses that appellant's counsel brought out before the jury the circumstances of his arrest in Nashville and was permitted adequately to show to the jury that this witness may have been influenced by the fact that he was not prosecuted by the government. In closing argument the appellant's counsel, without objections from the government or the Court, vigorously stated that this particular witness was equally as guilty as the defendant, but was not prosecuted. We find no prejudicial error in the Court's cutting off the cross-examination of Vaughn and sustaining an objection at the time it did.
The chastisement which appellant's counsel refers to consisted of the following remarks between counsel and the Court:
On several occasions prior to that time, the Court had explained to appellant's attorney that it was not necessary for him to except to each ruling since, under the Rules, it is sufficient to object to the admission of evidence and a formal exception is not necessary to preserve the objection. It is preferable, of course, that admonitions to counsel be made outside the hearing of the jury, but, for such conduct to constitute grounds for reversal it must appear that it in some way operated to deprive defendant of his right to a fair and impartial trial, such as functioning to deprive him of effective assistance of counsel, Zebouni v. United States, 226 F.2d 826 (5 Cir. 1955), or adversely influencing and prejudicing the jury. The admonitions involved here did not reflect on the merits of the defense and clearly were not of such a nature as to prejudice the jury or unduly hamper defendant's attorney. See Woodring v. United States, 311 F.2d...
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