U.S. v. Johns

• Decision Date: 18 June 1984
• Docket Number: No. 82-3212,82-3212
• Citation: 734 F.2d 657
• Parties: 15 Fed. R. Evid. Serv. 1838 UNITED STATES of America, Plaintiff-Appellee, v. Harold D. JOHNS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 657

734 F.2d 657

15 Fed. R. Evid. Serv. 1838

UNITED STATES of America, Plaintiff-Appellee, v. Harold D. JOHNS, Defendant-Appellant.

No. 82-3212.

United States Court of Appeals Eleventh Circuit.

June 18, 1984.

Michael Smith, John F. Evans, Coral Gables, Fla., for defendant-appellant.

William B. King, Warren A. Zimmerman, Asst. U.S. Attys., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Harold Johns was indicted and brought to trial after he and a friend attempted to fly three hundred pounds of cocaine into the United States. A jury convicted him of knowing importation of cocaine, possession of cocaine with intent to distribute, and conspiracies to commit those offenses. He now appeals his convictions. We affirm.

I.

On the night of December 13, 1981, radar operators at Tyndall Air Force Base in the Florida panhandle picked up an unidentified aircraft approaching the Air Defense Identification Zone (ADIZ). Since Air Force personnel could not identify the plane, two fighter planes were sent to intercept it. In addition, a U.S. Customs Service aircraft was sent to track the plane. It was equipped with radar and a Forward Looking Infra-Red (FLIR) System. ¹

When the Customs plane began to follow the target plane, the Air Force ground radar continued to monitor the target plane, coordinating the surveillance with two other ground radar operators at various Florida locations, one of whom also monitored the chase on a "height finder" radar unit. ² The Customs aircraft followed the suspect plane, often within a distance of one to three miles, until it landed at Tampa International Airport (TIA). Its task was made more difficult because the suspect plane had no lights or transponder. While the various radar operators "lost" the suspect aircraft on occasion during the chase, the aircraft was continuously on the "height finder" screen and was always "found" quickly. Each time, the FLIR equipment, which could sense some physical features of the plane such as exhaust, wing, and tail formation, showed the "found" plane to have the same features as the suspect plane.

During the chase, the FLIR operator twice noticed objects being jettisoned from the suspect craft. Each time he noted the geographical coordinates. The first time, he saw seven objects drop, one of which appeared to be spewing out smoke. The second time, he saw seven more objects drop. The FLIR image of the smoking object, he testified, could have represented a fuel bladder detached and trailing a stream of fuel; the fuel would have dispersed in a pattern similar to smoke as the bladder plummeted to the ground. Between the second drop point and the landing, radar operators only lost the plane for one brief moment, after TIA traffic controllers had already spoken with the plane's pilot.

During the week after the drop, area residents around the two drop points with coordinates noted by the FLIR operator found nine duffel bags of identical material and size filled with cocaine. A fuel bladder was not found.

When the suspect plane, a Cessna Conquest, landed at TIA, Jim Coley was piloting it, and Harold Johns, the appellant, was in the passenger seat. The back of the plane was empty; the seats had been removed. An open valve in the back cabin floor, suitable for attaching a fuel bladder, had leaked a large amount of fuel all over the cabin carpet. No trace of cocaine was found in the airplane, however.

Coley and Johns were arrested and indicted; Coley thereafter became a fugitive. At Johns' trial the prosecutor established the facts we have related. Johns' theory of defense was that the tracking team had lost the suspect plane and picked up his plane in the course of the chase. Johns testified that on the afternoon of December 13, he and Coley had flown from Miami to visit a friend, Jack Bryant, an ex-county commissioner in Cairo, Georgia. They had brought Bryant two hang gliders; in order to fit the gliders in the plane they had taken out the back seats. When they got back in the plane to return to Miami, they noticed a battery problem and were forced to travel without the plane's lights and transponder. Bryant corroborated this alibi and the battery problem.

Johns called several experts to support his theory that the Customs-Air Force tracking team had lost the suspect plane and picked up his by mistake. One defense expert testified that a "switch" could have occurred, where the radar operators lost the smuggling plane and "locked on" to Johns' and Coley's craft. Another defense expert testified that Johns' plane's doors could not have been opened in flight if the cabin had been pressurized, or at high speeds. A third testified that the cocaine, if dropped, would have smashed into the plane's tail and damaged it. The defense, in the absence of the jury, proffered the testimony of an expert in voice stress analysis that the voice of Harold Johns, speaking to the TIA tower was not stressed, while that of the Customs pilot was, implying that the Customs information was inaccurate and that Johns was too calm to have been in a cocaine smuggling chase. The government objected on the ground that the testimony was not in the scope of the witness' expertise and would not be helpful to the jury. The trial judge rejected the proffered testimony partly because he found the predicate regarding scientific acceptability of such opinion evidence to be inadequate.

In rebuttal, the prosecutor put on a Cessna flight test engineer to testify that the doors to Johns' plane could have been opened and the cargo jettisoned without damage to plane or passengers. Both sides then presented closing argument, and, after the court's charge, the jury convicted Johns on all counts.

On appeal, Johns alleges numerous instances of prosecutorial misconduct. He also challenges the trial judge's exclusion of his voice stress expert's testimony, alleges a defect in the wording of the indictment, and challenges the judge's determination that three photographs which mistakenly went to the jury did not warrant a new trial. Only the prosecutorial misconduct claim warrants discussion here. ³

II.

Johns alleges multiple incidents of prosecutorial misconduct. Most of the allegedly improper actions occurred in the prosecutor's closing argument and the defense made no timely objection to them. The defense also asserts six instances where the prosecutor, in questioning witnesses, pursued improper lines of examination. One of these was objected to and prompted curative action by the trial judge. Two others were timely objected to, and the objections were denied. The defense made no objection to the final three alleged errors. ⁴

Prosecutorial misconduct only constitutes a ground for reversal if, viewed in the context of the entire trial, it may have prejudiced substantial rights of the defendant. United States v. Bosby, 675 F.2d 1174, 1185 (11th Cir.1982); United States v. Davis, 546 F.2d 583, 593 (5th Cir.) cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). If no objection is timely made, the prosecutorial conduct must constitute plain error under Fed.R.Crim.P. 52(b), or a "defect affecting substantial rights" of the accused. Application of this standard requires consideration of all circumstances at trial, including the strength of the evidence against Johns. United States v. Stout, 667 F.2d 1347, 1354 (11th Cir.1982).

We have read the record of the trial and find no pattern of misconduct prejudicing the defendant's substantial rights. Nor were the isolated instances challenged here sufficient to constitute reversible misconduct. The conduct preserved for appeal was not such error; the rest was not plain error.

A.

The conduct to which the defense objected, and for which the judge gave a curative instruction, does not require us to reverse Johns' convictions. Defense counsel cross-examined a sheriff extensively about local airstrip owners near some property Johns owned which also contained an airstrip. Counsel sought to show that Johns' owning an airstrip was perfectly normal in that area and did not show him to be a drug smuggler. In the course of the examination he asked several questions about the airstrip on the Brady ranch next door to Johns' property. The prosecutor, on redirect, asked the sheriff "Who is Frank Brady?" The witness responded that he was a suspected drug smuggler. The defense objected, moved to strike the comment and moved for a mistrial. The judge instructed the jury to disregard the question and answer. We find no error in the judge's action for two reasons: the instruction was sufficient to cure any harm, see United States v. Capo, 693 F.2d 1330 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1793, 76 L.Ed.2d 359 (1983) and the question was invited by the defense examination of the witness.

B.

The two instances of conduct to which defense counsel objected that were not promptly cured by the trial judge were as follows. First, the prosecutor asked the defendant:

Q When was your first discussion with Mr. Bryant, who testified here yesterday, about him appearing for you?

A It was in early--early '82, after I was arrested.

Q That was when you were arrested on the federal charges; is that right?

A That's correct.

Q What was the bond that was set on those charges?

MR. RACHLIN: Objection, Your Honor. May I approach the bench?

THE COURT: Well, I'll sustain the objection. I see no need for a bench conference.

A bench conference was conducted, however; there defense counsel urged that the question on the federal charges prejudiced the defendant because it implied other charges existed. The court, mainly concerned with the relevance of the bond, sustained "the objection to that" (apparently relevance of the bond). Defense counsel requested no further action by the court, such...