U.S. v. Garner

• Decision Date: 05 October 1978
• Docket Number: No. 77-5503,77-5503
• Citation: 581 F.2d 481
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William GARNER, Jr., Keith Jarrett, a/k/a Keith Brown, and Nathaniel Richmond, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 481

581 F.2d 481

UNITED STATES of America, Plaintiff-Appellee, v. William GARNER, Jr., Keith Jarrett, a/k/a Keith Brown, and Nathaniel Richmond, Defendants-Appellants.

No. 77-5503.

United States Court of Appeals, Fifth Circuit.

Oct. 5, 1978.

Y. D. Lott, Jr., Mobile, Ala., (Court-appointed), for Garner.

A. Holmes Whiddon, Mobile, Ala., (Court-appointed), for Jarrett.

H. Diana Hicks, Mobile, Ala., (Court-appointed), for Richmond.

Wm. A. Kimbrough, Jr., U. S. Atty., Ginny S. Granade, Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Alabama.

Before COLEMAN, GEE and HILL, Circuit Judges.

COLEMAN, Circuit Judge.

We are here concerned with three appellants, jointly indicted, tried and convicted. The grounds asserted for reversal, however, vary from appellant to appellant; therefore, we discuss them individually.

On February 17, 1977, appellants, along with three other persons, were indicted by the United States Grand Jury for the Southern District of Alabama. Count One charged William Garner, Jr., and Jessee Garner, his wife, with distributing and possessing with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Count Two charged William Garner, Jr., Nathaniel Richmond, and Keith Jarrett, as well as Jessee Garner, Roderick Foster, and Marvin Pettway, with conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. Foster and Pettway subsequently pleaded guilty. Jessee Garner was acquitted on both counts. This left only Garner, Jarrett, and Richmond for appellate consideration.

Trial was scheduled to begin on July 18, 1977, but was continued until July 22, because Richmond failed to appear. Trial began on July 22 and concluded on August 2. The jury returned verdicts of guilty against all three appellants. Garner was found guilty as charged in Counts One and Two; Richmond and Jarrett were found guilty on Count Two.

Garner was sentenced to ten years under Count One and to ten years under Count Two, to run concurrently, with special parole terms of three years each under both counts, also to run concurrently. Richmond and Jarrett were each sentenced five years with special parole terms of three years.

We affirm as to Garner and Jarrett but reverse and remand for a new trial as to Richmond.

William Garner, Jr.

Garner contends that his conviction under 21 U.S.C. §§ 841(a)(1) and 846 should be reversed because the court erred in denying his motion to suppress evidence obtained by a search warrant which he says was illegal. He claims that the affidavit supporting the search warrant could not support a finding of probable cause because it contained hearsay supplied by two confidential informants and the informants' credibility was not adequately demonstrated. We find that the affidavit presented sufficient information to justify a finding of probable cause, and we affirm Garner's conviction.

The use of hearsay alone does not make the affidavit for a search warrant insufficient, and it is not necessary that the magistrate require that the informants be produced or that the affiant's statements be based on personal observations so long as there is substantial basis for crediting the hearsay. Jones v. United States, 362 U.S. 257, 272, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

In Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Court explained what would be considered a "substantial basis for crediting the hearsay" by saying that the affidavit must indicate circumstances from which the informer concluded that evidence was present or that a crime had been committed, and the affidavit must present the information upon which the affiant concluded that the unidentified informant was reliable.

The affidavit in the present case satisfies both parts of this test. Paragraphs four through nine indicate that the informants knew appellant personally, that in the recent past they had seen him with large quantities of heroin on several occasions, and that both had said just prior to the search that they had seen appellant in Mobile and had been told by him that he was expecting a shipment of heroin. One informant said appellant told him that the heroin had been received and gave him the location for its processing. All of this information adequately provides a basis from which the informants could conclude that appellant was participating in illegal drug traffic and that the heroin was where he claimed it was.

We have said that all that is required to meet the Spinelli and Aguilar standard is "a sufficient statement of how the informer gathered his information", United States v. Mendoza, 5 Cir., 1970, 433 F.2d 891, 894. These indications of how the information was gathered, based on personal observations and statements of appellant to the informants are, therefore, in and of themselves sufficient to meet the first prong of the Aguilar test. It should be noted, additionally, that the informants' information is supported by the other information contained in the affidavit which was gathered from the Mobile Police and Drug Enforcement Agency investigators, United States v. Tucker, 5 Cir., 1976, 526 F.2d 279, 281.

The affidavit in this case also indicates the underlying circumstances which caused the officer to conclude that the informers were reliable. In United States v. Hall, 5 Cir., 1977, 545 F.2d 1008, we pointed out, "(o)ur cases interpreting and applying Aguilar make clear that a factual basis for credibility of an informant can be supplied by an 'explicit claim of past reliability' ", United States v. Tucker, supra, at 281. See also United States v. Mendoza, 5 Cir., 1970, 433 F.2d 891, 894, 895, Cert. denied, 401 U.S. 943, 91 S.Ct. 953, 28 L.Ed.2d 225 (1971); United States v. Vigo, 5 Cir., 1969, 413 F.2d 691, 692. The statements as to the reliability of the informants in the instant case not only meet this standard, they exceed it. They show that the affiant, a Drug Enforcement Agent, had knowledge of the informants' credibility and reliability on prior occasions and that information supplied by the informants in the past both to the Drug Enforcement Agent and the Mobile Police Department had proven to be accurate.

Having met both parts of the Aguilar test, the affidavit is found to have shown probable cause to support a legal search warrant.

Garner's conviction must be affirmed.

Keith Jarrett

In attempting to justify reversal of his conviction under 21 U.S.C. § 846, Jarrett asserts that his motion to acquit should have been granted because the testimony of the government witnesses against him was "incredible as a matter of law". He so characterizes the testimony because the three main government witnesses were admitted drug users who were testifying pursuant to plea bargain agreements, and because, after hearing their testimony, the jury acquitted Jessee Garner on both counts. Neither of these contentions has merit and we affirm Jarrett's conviction.

The standard for review on this issue is whether, " 'viewing the evidence presented most favorably to the Government, a reasonably-minded jury could accept the relevant and admissible evidence as adequate and sufficient to support the conclusion of defendant's guilt beyond a reasonable doubt' ", United States v. Kohlmann, 5 Cir., 1974, 491 F.2d 1250, 1253. See also, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This Court has repeatedly held that "we will not disturb (the jury's) verdict in light of the substantial evidence supporting it. It is not for this Court to weigh the credibility of witnesses", United States v. Vomero, 5 Cir., 1978, 567 F.2d 1315, 1316; United States v. Cravero, 5 Cir., 1976, 530 F.2d 666, 670; United States v. Mills, 5 Cir., 1968, 399 F.2d 944, 948.

The first theory which appellant advances in support of his claim that the testimony given by witnesses Leonard Greenhouse, Marvin Pettway, and Wesley Pettway was incredible as a matter of law is that their testimony was incompetent because they were drug addicts at the time of the conspiracy and because they were addicts, turned informer. Hansford v. United States, 1966, 124 U.S.App.D.C. 387, 365 F.2d 920, cited in support of this contention is not on point. In that case the competency of the Defendant, not a witness, was questioned. The defendant admitted that he had been using narcotics throughout the trial. The court held that the trial judge should have held a hearing as to the competency of the defendant to stand trial. In the case at bar, the government witnesses admitted that they had formerly used heroin, but explained that they had undergone methadone treatment and were no longer using heroin. The jury could take this information into account in weighing the witnesses' credibility. ¹

In a recent decision, this Court reiterated our holding that "(t)he fact that a witness is a narcotics user goes not to his competency, but to his credibility", United States v. Jackson, 5 Cir., 1978, 576 F.2d 46, 48. See also United States v. Killian, 5 Cir., 1975, 524 F.2d 1268, Cert. denied, 425 U.S. 935, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976); Gurleski v. United States, 5 Cir., 1968, 405 F.2d 253, 267, Cert. denied, 395 U.S. 977, 89 S.Ct. 2127, 23 L.Ed.2d 765 (1969); Rule 601, Fed.R.Evid.

In United States v. Cravero, 5 Cir., 1976, 530 F.2d 666, 670, we said, "One of the oldest established rules of Anglo-American jurisprudence is that the jury is the arbiter of credibility of witnesses". We also pointed out that for the testimony to be considered incredible, "it must be unbelievable on its face", i. e., testimony as to "facts that (the witness) physically could not have possibly observed or events that could not have occurred under the laws of nature", 530 F.2d at 670.

The witnesses in this case each gave substantial testimony concerning events which took place during the conspiracy. Their...