U.S. v. Jackson

• Decision Date: 31 July 1978
• Docket Number: 77-1857 and 77-1856,Nos. 77-1721,s. 77-1721
• Citation: 579 F.2d 553
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Lewis JACKSON, Defendant-Appellant (two cases). UNITED STATES of America, Plaintiff-Appellee, v. John Brett ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 553

579 F.2d 553

UNITED STATES of America, Plaintiff-Appellee, v. Frank Lewis JACKSON, Defendant-Appellant (two cases).

UNITED STATES of America, Plaintiff-Appellee, v. John Brett ALLEN, Defendant-Appellant.

Nos. 77-1721, 77-1857 and 77-1856.

United States Court of Appeals Tenth Circuit.

Argued and Submitted April 19, 1978.

Decided June 19, 1978.

Rehearing Denied July 31, 1978.

Joseph Saint-Veltri, Denver, Colo. (Davies & Saint-Veltri), Denver, Colo., for appellant Allen.

Robert S. Berger, Denver, Colo. (Davies & Saint-Veltri), Denver, Colo., for appellant Jackson.

Joseph F. Dolan, U. S. Atty., Rod W. Snow, and William C. Danks, Asst. U. S. Attys., Denver, Colo., for appellee.

Before BARRETT, DOYLE, and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

In these consolidated appeals the appellants, Frank Lewis Jackson (Jackson) and John Brett Allen (Allen), seek reversal of the district court's order denying their motions for a new trial. The motions were based on the claim that new evidence has been discovered which either creates a reasonable doubt as to their guilt or which might have caused the jury to reach a judgment of acquittal had the evidence been available during trial.

Jackson and Allen were convicted by a jury of a conspiracy to import marijuana in violation of 21 U.S.C. § 952(a). They were tried with co-conspirators Gregory Keith Weiss and Ivan Lustig, who were also found guilty. Each of the co-conspirators appealed. This court affirmed the convictions of each. See, United States of America v. Ivan Lustig and Gregory Keith Weiss, Unpublished Nos. 75-1740 and 75-1741 (10th Cir. March 22, 1977); United States of America v. John Brett Allen and Frank Lewis Jackson, Unpublished Nos. 75-1738 and 75-1739 (10th Cir. April 21, 1977), cert. denied, 434 U.S. 856, 98 S.Ct. 176, 54 L.Ed.2d 127, October 3, 1977.

The government's case against the co-conspirators was developed primarily around the testimony of one Michael John Venus (Venus), an unindicted co-conspirator who was afforded immunity from prosecution. It is uncontested that Venus was the only witness directly identifying the defendants. However, some 24 other government witnesses testified in corroboration of many of the details related by Venus. The following is a summary of the testimony elicited from Venus at the trial, as set forth in the aforesaid opinion Nos. 75-1740 and 75-1741:

"Jackson was the first to approach him and suggest the possibility of Venus' flying into Mexico; Jackson brought Venus to Denver at which time Venus met with Allen, Jackson, Lustig and Weiss and discussed his employment as their pilot for the purpose of flying marijuana out of Mexico; Venus was to be paid $5,000.00 per trip; after receiving money from Allen, Venus rented an airplane; prior to departing from Mexico, Allen, Weiss and Lustig took some of the seats out of the airplane; Weiss accompanied Venus on their first trip to Mexico where they picked up 800 pounds of marijuana in small bundles; Weiss paid for the marijuana with $12,000.00 in cash he had previously received from Allen; Allen met with them upon their return to Colorado and the marijuana was loaded into his truck; after unloading the marijuana from the airplane they flew to Boulder where they were met by Lustig; Allen, Jackson, Weiss and Lustig thereafter departed with the marijuana to weigh it and then sell it in Aspen; prior to his second flight to Mexico, Allen gave Venus $12,000 in cash to pay for the marijuana; Venus was to pick up Weiss en route but he was detained by bad weather; after picking up the second load of marijuana and while en route to Colorado, Venus was forced to land in a river bed; prior to landing in the river bed he kicked some of the marijuana sacks out of the airplane; after landing, Venus called Lustig and related his location and reported that he was out of gas; thereafter Allen arrived on the scene and Venus and Allen transferred the marijuana to a truck; and that subsequent to the flights to Mexico, he (Venus) was approached and questioned by Drug Enforcement Administration (DEA) officials at which time he decided it would be best to cooperate with them.

"Other Government witnesses corroborated Venus' testimony relative to: the use of the rented airplane; phone calls placed during the delays caused by bad weather on the second trip to Mexico; the forced landing in the river bed; the loading of the marijuana into the truck driven by Allen; the 'ditching' of several sacks of marijuana prior to the forced landing. A chemist for the DEA laboratory testified that the plant material which he analyzed and which was admitted in evidence was marijuana.

"None of the defendants testified. They called four witnesses who testified that Venus' reputation for truthfulness was bad and that he had a tendancy to drink in excess."

In opinion Nos. 75-1738 and 75-1739, Supra, the following is a verbatim recital of the government's evidence relating to Jackson who, on appeal, challenged the sufficiency of the evidence to sustain his conviction:

"The Government established that: Jackson was the co-conspirator to approach Michael Venus (Venus) concerning the possibility of his employment as a pilot to fly from the United States into Mexico and return; Jackson brought Venus to Denver, Colorado, at which time he (Venus) met with Jackson and his co-conspirators and discussed in detail his flight to Mexico in order to bring marijuana from Mexico to the United States; after Venus returned with a planeload of marijuana, Jackson departed with his co-conspirators to weigh and sell the marijuana in Aspen, Colorado."

On June 13, 1977 the trial court conducted an evidentiary hearing on a motion for a new trial filed by Weiss. At the hearing, Venus recanted his prior testimony identifying Weiss as a party to the smuggling operation, stating that the Weiss who had been tried with Allen, Jackson and Lustig was not the same person with whom Venus had flown to Mexico. Venus also acknowledged that he had been paid $300 by DEA agents. Following the hearing, the trial court granted Weiss' motion for a new trial. The government subsequently dismissed the indictment against Weiss.

The crux of the contentions advanced by Allen and Jackson in this appeal is that Venus' recantation of his previous trial testimony implicating Weiss is such that even though it Does not directly refute any of the incriminating testimony previously given by Venus implicating Jackson and Allen, It does reflect on the credibility of that testimony. Put another way, Jackson and Allen contend that in light of Venus' misidentification of Weiss, and the fact that the chief witness had been paid by the government, it is likely that had this information been at hand, "the jury might have reached a different conclusion" in their trial. (Brief of Appellant Allen, p. 10; Brief of Appellant Jackson, p. 9.)

I

We hold that the trial court did not error in denying the respective motions for a new trial. In each of the orders denying the motions, the court found and concluded that the testimony of Venus recanting his prior identification of Weiss ". . . does not affect the evidence against (Frank Lewis Jackson and John Brett Allen) and that the misidentification did not prejudice the trial as to defendant(s) (Jackson and Allen) and . . . there is no basis for a new trial. . . ." (Record, Vol. I, No. 77-1856, 77-1857, pp. 6-7; Record, Vol. I, No. 77-1721, p. 4.) We agree.

At the Weiss hearing Venus testified that prior to trial he (Venus) was shown a photograph of Weiss by a DEA agent and Weiss "looked very similar to the man I went to Mexico with" (Record, Vol. VII, p. 15), but that when he visited with Weiss in Arizona he (Venus) realized that ". . . the man I went to Mexico with had narrower shoulders and a smaller frame . . . he (Weiss) is obviously a bigger man than the guy I went to Mexico with" (Record, Vol. VII, p. 14); that although at trial he (Venus) did make a positive identification of Weiss as the party who went to Mexico with him, he (Venus) ". . . also pointed out the hair-color difference, and I believe I pointed out the fact that he seemed to be a larger man than the one I went to Mexico with" (Record, Vol. VII, p. 18); that he did not at any time discuss with any government official the possibility that his identification of Weiss was not certain prior to the trial; that after visiting with Weiss at his (Venus') apartment in Arizona about April 22, 1977, and speaking with Weiss for about 45 minutes, Venus realized that Weiss' voice was not the same as that of the man who flew to Mexico with him (Record, Vol. VII, pp. 36-37); that the $300 he received from the DEA encouraged Venus "just to get it (the trial) over with" and that the money did not influence him to misidentify Weiss because "to be best of my knowledge at this time I identified the person in close proximity after they showed me a picture. The guy was very looked very much like the man that went to Mexico with me, but what I am saying now is that he was not" (Vol. VII, pp. 41-42).

Jackson and Allen urge that this court remand their cases to the trial court for a new trial, or, in the alternative, that we direct the trial court to make and enter specific findings, reviewable in accordance with Larrison v. United States, 24 F.2d 82 (7th Cir. 1928). In Larrison, supra, the court held that a new trial should be granted where (1) the court is reasonably satisfied that the testimony given by a material witness is false, (2) that without it the jury might have reached a different conclusion, and (3) the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet or did not know of its falsity until after the trial. Larrison, supra, pp. 87-88. This rule has been loosely termed the "possibility" test, i. e., it requires only that the jury might have reached a different result if certain evidence had or had not...