U.S. v. Johnson, s. 78-2038

• Decision Date: 16 May 1980
• Docket Number: Nos. 78-2038,78-2039 and 78-2040,s. 78-2038
• Citation: 621 F.2d 1073
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald JOHNSON, Roy Cooper, and Ed Riley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1073

621 F.2d 1073

UNITED STATES of America, Plaintiff-Appellee, v. Gerald JOHNSON, Roy Cooper, and Ed Riley, Defendants-Appellants.

Nos. 78-2038, 78-2039 and 78-2040.

United States Court of Appeals Tenth Circuit.

Argued Jan. 25, 1980.

Decided May 16, 1980.

Rehearing Denied in No. 79-2039 June 17, 1980.

William R. Burkett, Oklahoma City, Okl. (G. Phil Harney and William J. Skepnek, Oklahoma City, Okl., with him on brief), of Linn, Helms, Kirk & Burkett, for defendants-appellants Johnson and Riley.

Dolorin Carl Thomas, Oklahoma City, Okl. (James W. Patterson, Oklahoma City, Okl., with him on brief), for defendant-appellant Cooper.

William S. Price, Asst. U. S. Atty., Oklahoma City, Okl. (Larry D. Patton, U. S. Atty. for the Western District of Oklahoma, Oklahoma City, Okl., with him on brief), for plaintiff-appellee.

Before SETH, Chief Judge, and McKAY and SEYMOUR, Circuit Judges.

McKAY, Circuit Judge.

In an eight-count indictment returned on August 2, 1978, in the Western District of Oklahoma, Gerald Johnson, Roy Cooper and Ed Riley were charged with various acts of conspiracy, bribery and fraud. Each defendant was acquitted on the conspiracy charge. In addition, appellant Johnson was acquitted on charges of bribery of a public official and obstruction of justice. Appellants Johnson and Riley were convicted of mail fraud and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343. Appellant Cooper was convicted of bribing a public official in violation of 18 U.S.C. § 201(b)(1). A fourth defendant was charged with conspiracy and receiving a bribe but was acquitted on both charges.

Appellant Johnson owned a majority interest in two Oklahoma corporations (aircraft companies) involved in leasing, buying and rebuilding aircraft. Appellants Cooper and Riley were employed by these aircraft companies. The bribery count on which Cooper was convicted arose from a $10,000 check given indirectly by Cooper to a procurement agent for the Federal Aviation Administration in Oklahoma.

The mail and wire fraud charges on which Johnson and Riley were convicted stem from an agreement negotiated by Johnson and Riley with a California company. The California company agreed, for $5,000, to drop out of certain contracts previously awarded to it, thus allowing the contracts to be awarded to Johnson's companies. The fraudulent scheme was negotiated over the telephone and confirmed by mailgram. In addition, the mail was used to exchange the $5,000 check and a false invoice from the California company purporting to represent a sale of miscellaneous aircraft parts.

The prosecution presented sixteen witnesses and numerous exhibits. One of the primary witnesses, Fowler, had been a bookkeeper for the aircraft companies. She testified to various conversations and acts implicating the defendants in many of the offenses charged. She was examined by the prosecution and thoroughly cross-examined by each of the four defendants. After the prosecution had rested, the defendants called more than twenty witnesses. The final defense witness, Miller, had been a secretary for the aircraft companies. Miller admitted on the stand that she and Fowler had embezzled a substantial amount of money from the aircraft companies during the course of their employment. The defendants learned of this embezzlement the day before Miller took the stand, long after the examination of Fowler was completed.

The defendants attempted to call Fowler back to the stand before questioning Miller. Because Fowler was not in the courtroom, however, they called Miller first. Soon thereafter, Fowler entered the courtroom but, shortly after Miller's testimony was completed, Fowler fainted. She was eventually taken to a hospital and became unavailable as a witness.

The government requested a continuance of the trial in order to allow time for Fowler to recover. A short continuance was granted. However, in the face of opposition to any further continuance by each of the defense attorneys and in light of representations that Fowler would be unavailable for an unascertainable period of time, the court denied the government's motion for a further continuance.

Each of the appellants now asks for a reversal and a new trial. Appellants claim that Fowler's testimony was shown by Miller to have been perjured, and that their convictions cannot be allowed to stand on this "tainted" testimony. They insist upon the right to a thorough "cross-examination" of Fowler in light of the evidence presented by Miller. In addition, appellant Cooper maintains that the evidence at trial was insufficient to support his conviction on the bribery count.

I.

We do not agree that the unavailability of Fowler as a witness, even in light of the dramatic revelations made by Miller at the end of the trial, deprived appellants of a fair trial.

The appellants were not denied the opportunity to cross-examine any government witness. Counsel for each of the defendants conducted a vigorous cross-examination of Fowler. Thus, the constitutional right to cross-examine witnesses discussed in such cases as Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), is not implicated.

Appellants' claim of prejudice rests on the assumption that the testimony given by Fowler was perjured. However, we cannot assume, on the basis of Miller's testimony alone, that Fowler's testimony was knowingly false. The fact that Fowler was, or may have been, embezzling money from her employers does not necessarily make her testimony against them perjured. Although Miller perhaps contradicted Fowler on some factual issues, we have no sound basis for determining which, if either, of the parties perjured herself. Furthermore, even if we were to accept the proposition that Fowler committed perjury in some portions of her testimony, a new trial is not mandated.

The appellants list four general areas or statements which they claim have been demonstrated by Miller to be perjured. ¹ This testimony related only peripherally, if at all, to substantive issues involved in the offenses for which appellants were convicted. Claims of prejudice by Johnson and Riley are further weakened by the fact that Fowler's testimony had very little relevance to the only counts on which they were convicted wire and mail fraud. Her testimony dealt primarily with the conspiracy charges, on which all defendants were acquitted, and the bribery charges.

Miller was not employed by the aircraft companies at the times most relevant to these convictions. Miller admitted that she had no direct knowledge of the events that form the basis of the convictions and that she did not know if Fowler's allegations were true or false. Accordingly, Miller's testimony had little direct bearing on any relevant testimony given by Fowler. Miller did not directly impeach Fowler on any substantive issues. Miller's testimony is relevant only on the credibility of Fowler as a witness.

The intent and effect of Miller's testimony was simply to call into question certain parts of Fowler's testimony and to impeach Fowler's credibility. The conflicts and issues thus raised were presented to and resolved by the jury. The facts of this case do not approach the stark circumstances of Mesarosh v. United States, 352 U.S. 1, ...