U.S. v. Johnson, 79-5109

• Decision Date: 11 April 1980
• Docket Number: No. 79-5109,79-5109
• Citation: 620 F.2d 413
• Parties: UNITED STATES of America, Appellee, v. James E. JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 413

620 F.2d 413

UNITED STATES of America, Appellee, v. James E. JOHNSON, Appellant.

No. 79-5109.

United States Court of Appeals Fourth Circuit.

Argued Nov. 7, 1979.

Decided April 11, 1980.

William C. Morris, Jr., Asheville, N. C. (Morris, Golding, Blue & Phillips, Asheville, N. C., on brief), for appellant.

S. Lee Atkins, Asst. U. S. Atty., Asheville, N. C. (Harold M. Edwards, U. S. Atty., Asheville, N. C., on brief), for appellee.

Before RUSSELL, PHILLIPS and SPROUSE, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The defendant/appellant was charged with the crime of obstructing correspondence deposited in the mails and of prying into the secrets of another under § 1702, 18 U.S.C. At the conclusion of the testimony the District Judge instructed the jury that the charge under Section 1702 included the lesser offense of knowingly obstructing and retarding the passage of the mails under § 1701, 18 U.S.C. He accordingly in his jury instructions proceeded to state separately the essential elements of an offense under the two sections. The jury acquitted the defendant of the charge under Section 1702 but convicted him of a violation of Section 1701. The defendant has appealed that conviction. We affirm.

The evidence is largely undisputed. The defendant was the Superintendent of the McDowell County (North Carolina) Schools, elected as such by the Board of Education. An election of at least one member of the Board of Education was imminent at the time and Scotty Willis was a candidate for election to that Board. On October 20, 1978, Joe Morgan mailed a postcard addressed to "Mr. Scotty Willis, Candidate/McDowell County Bd. of Education, R. ?, Marion, N. Carolina." Morgan wrote that he was "surprised that your Supt. had only an A.B." and expressed the "hope you can be elected to change that." That card was delivered to the office of the McDowell County Board of Education at about three o'clock in the afternoon on either the 24th or 25th. Mrs. Young, a receptionist in the office, received the mail delivery which included the postcard addressed to Willis and, after receipt, she took the card to the secretary to the Superintendent, who instructed her to give the card to the defendant. The defendant read the card, explained to the two ladies working in the office that the card referred to him and expressed considerable concern about its contents. He returned to his private office and brooded over the card, going over it, as he testified, "for quite some period of time." He then determined to make photocopies of the card on the photocopying machine in his office. The number of photocopies made by him is not clear, but at least two were made. He put the card itself in his desk in his private office and, after telephoning his brother, took a photocopy of the card over to the brother's office in the late afternoon of that same day. He explained his visit to his brother by saying that Willis had "worked for my brother at one time, and I felt like my brother might make him a little bit more agreeable toward my position."

The defendant's brother took the photocopy of the postcard from the defendant and drove in his truck to the home of Willis. He called Willis out to his truck. After showing Willis the photocopy, he expressed in some anger his shock that Willis would have made such a statement about his brother and demanded to know whether Willis had made the statement. ¹ Willis replied that he did not recall making such a statement, but pressed the brother to tell him from whom he had gotten a card mailed to him, but which he had not yet received.

After his unpleasant confrontation with the brother, Willis went later that night to the defendant's home in what the defendant described as a "quite distraught, disturbed" frame of mind and demanded to know what the defendant knew about the card or photocopy shown him by the defendant's brother. The defendant testified that he told Willis he knew nothing about either the card or the photocopy. However, Willis testified that the defendant told him that he (the defendant) first heard of the postcard when his brother had "brought it to his attention" that afternoon. As the discussion ended, Willis told the defendant he intended to take the matter up with the Post Office Department. This statement frightened the defendant and, in his own words, he "decided it was time to get the thing back the next morning fast." Sometime the next day he did retrieve the postcard from his desk and either returned it personally to the Post Office or had the office messenger do so. There is some conflict in the record about how and when the postcard was returned to the Post Office. The defendant testified that Gibson, the messenger in the office, was given the postcard about 7:30 o'clock or earlier the next morning for delivery to the Post Office. However, an employee in the office of the defendant testified that the defendant told her that it was not until that afternoon that the postcard was returned to the Post Office and that the defendant, not the messenger, returned it. In any event irrespective of which version is correct Willis never received the card in his mail box until the next afternoon, October 26th.

Anticipating the postal investigation, the defendant called the employee who had given him the card and told her, according to his own version, that she "didn't have to say anything" to the postal inspector about the postcard incident. When he was later interviewed by the postal inspector the defendant denied making any photocopies of the postcard and asserted that when the card was brought to him, he placed it "back in the mail stream." The defendant's brother, when examined before the grand jury, testified that he knew nothing about the card or photocopy and had never seen either. Later, when the Government demonstrated conclusive evidence to the contrary, the brother returned to the...