U.S. v. Johnson
| Decision Date | 29 September 1992 |
| Docket Number | 91-7015,Nos. 91-7012,s. 91-7012 |
| Citation | 977 F.2d 1360 |
| Parties | 36 Fed. R. Evid. Serv. 1165 UNITED STATES of America, Plaintiff-Appellee, v. Clay Dalton JOHNSON, Jerry Duane Spears, Harold Onee Behrens, also known as Buddy Behrens, and Edward Dale Summerlin, also known as Peewee, also known as Dwayne Wildman, Defendants-Appellants. to 91-7017. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Mark Green, Muskogee, Okl., for defendant-appellant Edward Dale Summerlin.
C. Rabon Martin, Law Offices of C. Rabon Martin, Tulsa, Okl., for defendants-appellants Jerry Duane Spears and Clay Dalton Johnson.
Craig P. Bryant, Asst. Federal Public Defender, Tulsa, Okl., for defendant-appellant Harold Onee Behrens.
Sheldon J. Sperling (John Raley, U.S. Atty., with him on the brief), Asst. U.S. Atty., Muskogee, Okl., for plaintiff-appellee.
Before TACHA and KELLY, Circuit Judges, and CONWAY, District Judge. *
This appeal arises from a joint trial of four defendants. The jury returned guilty verdicts against appellants Clay Dalton Johnson, Jerry Duane Spears, Harold Onee Behrens, and Edward Dale Summerlin for multiple counts related to the manufacturing, possession and distribution of drugs and possession of firearms. 1 We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm in part, reverse in part, and remand for resentencing.
During the spring of 1990, Oklahoma State Game Ranger Dekota Cagle heard automatic weapon fire and smelled the odor of "amphetamine crank" near a cabin in the Kiamichi Mountain area of southeastern Oklahoma. Ranger D.G. Belcher testified that he also heard gunshots on several occasions while he was in the area. Between them, Rangers Cagle and Belcher testified that they had seen all of the appellants in the vicinity of the cabin. In April 1990, United States Forest Service Law Enforcement Officer Eugene Norvell was hunting in the area of the cabin and saw a man outside the cabin wearing a long, white laboratory coat. Officer Norvell returned to the area before daylight the next day and heard a generator running and smelled the chemical odor of phenylacetic acid, a precursor chemical to the manufacture of amphetamine. As a result, an investigation commenced, including hidden video-tape surveillance of the cabin area. The video-tape shows that Behrens, Johnson and Summerlin were near the cabin.
On July 27, 1990, Special Agent Dennis Bryant of the Drug Enforcement Administration (DEA), Agent Jeff Fulton of the Bureau of Alcohol, Tobacco and Firearms, and Deputy United States Marshal Thomas Hammon conducted further surveillance and took photographs in an area near the cabin. While these officers were in a wooded area north of the cabin, Spears--carrying an automatic Colt AR-15 rifle--approached Agent Bryant and Deputy Hammon. Spears said, "Hold it right there." Deputy Hammon responded, "No, you hold it right there and drop your weapon." Bryant then took the rifle from Spears. Bryant also confiscated a .9 mm Smith and Wesson pistol from Spears' belt. Spears then indicated that he was scared and said, "Don't kill me and don't shoot my kid." He also indicated that three men were inside the house.
The agents requested that Spears call for his son to come out of the house, and Spears complied. At that time, Agent Bryant "saw at least three men around the west end of the house taking up positions behind trees." He testified that "at least two of them had long guns." Speaking directly to Johnson, Agent Bryant shouted, Bryant repeated the order, and Deputy Hammon called out the identity of each of the agents. At that time, Johnson left his position and ran around the west side of the house.
Agent Bryant moved to cut off an escape route and hid behind a tree about seventy yards from the cabin. He yelled that he was going to fire some signal shots in the air (to alert other agents in the area). He shouted, Agent Bryant then fired several signal shots. A few moments later, he yelled the same warning again and fired three more signal shots. At that time, Scott Spears--Jerry Spears' son--stepped away from the west side of the house with his hands in the air. He stated that "Buddy [Behrens], Clay [Johnson] and Peewee [Summerlin]" were inside the cabin.
Agent Bryant testified that, shortly thereafter, Summerlin stepped out of the east door of the cabin and fired a burst of automatic gunfire in his direction. Johnson also fired a burst of gunfire at Agent Bryant. Bryant testified that, from his experience, he believed Johnson's gun to be an AK-47 rifle. Agent Bryant returned After obtaining a search warrant from a federal magistrate, agents conducted a detailed search of the house. Among other things, they found numerous firearms, ammunition, explosives, amphetamine, precursor chemicals, laboratory equipment, marijuana plants, literature related to drug manufacturing, chemistry and assault weapons, and a list of chemical suppliers. By July 28, 1990, law enforcement officials had apprehended and arrested each of the defendants.
fire and hit the house. Johnson ran into the woods, and Summerlin went back into the house. After some time, the agents performed a "security sweep" of the house, and they found it deserted
Represented by separate counsel, defendants appeared before a United States Magistrate on July 30, 1990. On August 2, 1990, the district court held a detention hearing. At the hearing, Agent Bryant and Firearms Special Agent Jeff Fulton reviewed their investigation of the cabin and the events that occurred on July 27 and 28, 1990. Defense counsel were afforded the opportunity to cross-examine these two agents. The district court held a preliminary hearing on August 7, 1990. Deputy United States Marshals Hammon and Jeff Jones testified about the investigation and the encounter with defendants. Defendants were allowed to cross-examine these two marshals. A federal grand jury indicted defendants on August 17, 1990, and the court arraigned them on August 29. On September 14, 1990, the district court held a suppression hearing, at which Agent Bryant and Marshals Hammon, Jones and Allbery testified and were subjected to cross-examination. Following a trial during mid-October, 1990, a jury returned guilty verdicts against appellants as listed above.
On appeal, Johnson contends that his due process rights were violated because the district court's denial of his motion to continue the suppression hearing left Johnson with insufficient time to subpoena the agents he desired to question at the hearing. Johnson argues that had the district court granted his motion, he could have subpoenaed additional law enforcement officers and would have been able to show that the videotaped evidence and evidence obtained from a second search of the cabin should have been suppressed.
A district court's denial of "a motion for continuance can amount to error only if it constitutes an abuse of discretion." United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir.1990) (en banc). Denial of a motion for a continuance constitutes "an abuse of discretion only if the denial was 'arbitrary or unreasonable and materially prejudiced the [defendant].' " Id. (quoting United States v. West, 828 F.2d 1468, 1469 (10th Cir.1987) (alteration added in Rivera ). In United States v. Harris, 441 F.2d 1333, 1336 (10th Cir.1971), we held that
[w]hen a continuance is sought to obtain witnesses, the accused must show who they [the witnesses] are, what their testimony will be, that the testimony will be competent and relevant, that the witnesses can probably be obtained if the continuance is granted, and that due diligence has been used to obtain their attendance on the day set for trial.
In addition, we consider that in this case, Johnson sought to delay the date of a suppression hearing, whereas the test set forth in Harris arose from the denial of a motion to delay the start of a trial. In United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980), the Supreme Court clearly indicated that "the process due at a suppression hearing may be less demanding and elaborate than the protections accorded the defendant at the trial itself." In light of these considerations and our review of the record, we reject Johnson's due process claim.
First, although Johnson was aware of the names and positions of many of the officers he assertedly would have subpoenaed had the district court granted his motion for continuance, he failed to produce any specific information about the testimony the officers would have provided. Additionally, Johnson was less than diligent in attempting to subpoena law enforcement officials before the suppression hearing. The record indicates that although Johnson had more than a month after the preliminary hearing to prepare for the suppression hearing, neither he nor his counsel made any diligent attempt to serve subpoenas on any of the law enforcement officers they claim could have helped them suppress evidence. Johnson failed to comply with the standard set forth in Harris. We conclude, therefore, that the district court did not abuse its discretion when it denied Johnson's motion for a continuance. 2
Johnson also contends that the district court erred by admitting into evidence two thermos bottles containing amphetamine and a prescription bottle filled with white powder. He asserts that the government failed to establish an adequate chain of custody and failed to properly identify these items before they were admitted into evidence. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. United States v. Cardenas, 864 F.2d 1528,...
To continue reading
Request your trial
-
U.S. v. Clinkscale, No. 4:99 CR 0368.
...conviction under 21 U.S.C. § 846 and for the substantive drug offenses that form the object of the conspiracy." United States v. Johnson, 977 F.2d 1360, 1371 (10th Cir.1992). C. In his final argument, Mr. Clinkscale contends the indictment is duplicitous in that it joins in a single count t......
-
Com. v. Santiago
...of the trial are mixed questions of law and fact, which are generally subject to de novo review on appeal. See: United States v. Johnson, 977 F.2d 1360, 1380 (10th Cir.1992), cert. denied, 506 U.S. 1070, 113 S.Ct. 1024, 122 L.Ed.2d 170 (1993); United States v. Rogers, 960 F.2d 1501, 1510 (1......
-
U.S. v. Cappas
...U.S. 1211, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991); United States v. Moore, 958 F.2d 310, 314 (10th Cir.1992); United States v. Johnson, 977 F.2d 1360, 1376-77 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1024, 122 L.Ed.2d 170 (1993); United States v. Parra, 2 F.3d 1058, 1070-71 (......
-
U.S. v. Paladino
...of them constituted two violations of section 924(c). Compare United States v. Cappas, supra, 29 F.3d at 1190; United States v. Johnson, 977 F.2d 1360, 1376-77 (10th Cir.1992); United States v. Privette, 947 F.2d 1259, 1262-63 (5th Cir.1991). He complains that the instructions did not clear......