Johnson v. United States

• Decision Date: 03 April 1964
• Docket Number: No. 17440.,17440.
• Citation: 329 F.2d 600
• Parties: John Wesley JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

329 F.2d 600 (1964)

John Wesley JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 17440.

United States Court of Appeals Eighth Circuit.

April 3, 1964.

Joseph Howlett, Clayton, Mo., made argument for appellant and filed typewritten brief.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee and filed typewritten brief with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.

Before VOGEL, MATTHES and BLACKMUN, Circuit Judges.

MATTHES, Circuit Judge.

Appellant was indicted in four counts for violating 26 U.S.C. § 4705(a) and 21 U.S.C. § 174, was convicted by a jury of all four offenses,¹ and having previously been convicted of violating the narcotic laws, was — as a second offender — sentenced to the minimum of ten years on each count 26 U.S.C. § 7237(b) and (c), the sentences to run concurrently.

On this appeal in forma pauperis, considered upon the original files and transcript of the evidence, appellant's sole contention is that the evidence was insufficient as a matter of law to take the case to the jury and consequently that the court erred in denying his motion for judgment of acquittal filed at the close of the whole case.

At the outset, we observe that inasmuch as concurrent sentences were imposed whereby appellant received a total of ten years — a sentence which did not exceed that which might be imposed under any single count, an affirmance is dictated if the evidence was sufficient to sustain the conviction under any one count. Gajewski v. United States, 8 Cir., 321 F.2d 261, 264 (1963), and cases there cited.

In our view, a detailed résumé of the evidence on which the jury could justifiably find and infer that appellant was guilty of each of the four offenses is not required. This is a typical narcotics case where the narcotic agents through the use of an informer, one Paul James, purchased from appellant on the two critical dates, the heroin forming the basis of all four counts of the indictment. The Government made its case upon the testimony of one of the agents who was active in the events which preceded and followed the purchases, the testimony of James who purchased the heroin from appellant on each of the occasions, and on the testimony of a Government chemist. Appellant did not testify and offered no evidence in his behalf. There was the usual search of the informer before he started on his mission, the furnishing of pre-recorded Government funds to James, the keeping of James under surveillance except for a brief period during the March 29 events, the delivery of the heroin to the agents after the purchase, and another search which revealed James no longer possessed the Government funds with which he had been provided.

Appellant argues, however, that the prepurchase search was wholly inadequate; that the agents failed to keep James in sight constantly, thereby affording him the...