U.S. v. Johnston
| Decision Date | 30 August 1982 |
| Docket Number | No. 81-1254,81-1254 |
| Citation | 685 F.2d 934 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ted Allan JOHNSTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Walter M. Holcombe, Pecos, Tex. (court-appointed), for defendant-appellant.
Steven C. Hilbig, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GEE and JOHNSON, Circuit Judges, and VAN PELT, * District Judge.
This case is before us on appeal from a final judgment against appellant entered July 7, 1981, providing for incarceration, for a fine and for a special parole term with other restrictions as set forth in the Order from which this appeal is taken.
Appellant and three others were indicted on March 16, 1981, in two counts. The first count on which appellant and two of the defendants 1 were each found not guilty charged in the Western District of Texas an unlawful conspiracy to commit offenses in violation of 21 U.S.C. § 846 in that they conspired to possess a quantity of marijuana, a Schedule I Controlled Substance, with intent to distribute same, contrary to 21 U.S.C. § 841(a)(1).
Count 2 charged that on or about March 3, 1981, in the Western District of Texas, Defendants Glyn Robert Chambers, Ted Allan Johnston, Billy Bob Witcher and Doyle McCuistion, unlawfully, knowingly and intentionally did possess with intent to distribute 2 a quantity of marijuana, a Schedule I Controlled Substance, in violation of Title 21, United States Code, § 841(a)(1). Appellant was found guilty (as charged in Count 2) on this count by the verdict of the jury filed May 14, 1981. The other two defendants were found not guilty.
This panel concludes, notwithstanding the claim of appellant and the certificate of the clerk, that appellant was not charged in Count 2 with a conspiracy.
Count 1 is the only charge of a conspiracy. It charged that the conspiracy commenced in or about the month of February, 1981, and continued continuously up and including about the month of March, 1981. Count 2 alleged the illegal possession was on or about March 3, 1981.
Following receipt of the verdict, the trial judge set the date of July 7, 1981, for the sentencing of Johnston.
Johnston, who claimed to have been employed by the New Mexico State Police and to have been working for New Mexico at the time of the violation here charged, was sentenced to incarceration for three years, with a special parole term of two years. The first six months of the sentence is to be served and the remainder suspended for five years probation with supervision. He was also fined $2,000.
Probably the most difficult single problem with this case is the question of whether appellant was operating in conjunction with the New Mexico Police in regard to the act for which he was convicted. Almost equally puzzling is how the jury could acquit one or both of the other defendants and Johnston on Count 1 or, under the aider and abettor rule, acquit both Witcher and Chambers on Count 2.
The only answer to the acquittal is to say that the trial was a swearing match and concede that a historic reason for the jury system is that juries can acquit or convict even if a trial judge on the same record would do the opposite.
In this circuit the court has consistently concluded that determining the weight and credibility of evidence is the special province of the trier of fact. We hold in this case that we should not disturb the verdict even though we recognize the verdicts to be disturbing, unless upon reading the entire record, using language stated by Justice O'Connor on June 1, 1982, in Inwood Laboratories, Inc. v. Ives Laboratories, Inc., --- U.S. ----, 102 S.Ct. 2182, 72 L.Ed.2d 606, we are left with the " 'definite and firm conviction that a mistake has been committed ...' "
As is hereafter pointed out, we conclude to affirm appellant's conviction and sentence. The Chambers and Witcher cases are not before us.
Appellant makes 14 assignments of error in his brief. Appellee combines these and discusses them under seven assignments. While we believe there are essentially 10 assignments of error, we will mention all 14.
1. Did the trial court err in failing to grant defendant's Motion to Quash Indictment due to bias of one of the grand jurors who was the wife of counsel of one of the codefendants. This is appellant's issue 6.
The facts are relatively simple. Counsel was appointed for appellant Johnston on March 10, 1981. The indictment on which the case proceeded to trial was filed March 16, 1981.
Defendant Glyn Robert Chambers was represented by Ted Painter whose wife Rebecca was on the grand jury which indicted the defendants. The trial judge recalled that she was appointed as the deputy foreman of the grand jury, but stated that he did not know whether she was present when the indictment against Johnston and the three others was returned. No further showing was ever made as to her participation in the proceeding leading to the indictment on which the trial was held. Appellant assumes Mr. Painter was employed prior to the return of the indictment, although there is no evidence either supporting or disproving this claim. Appellant's claim is that the presence of Painter's wife on the grand jury was tantamount to having an unauthorized, unsworn person bearing witness before the grand jury and at the time of voting, in violation of the Federal Rules of Criminal Procedure, Rule 6(d).
The government claims the matter is not properly presented for review because appellant failed to file a motion containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this Title 28 U.S.C. § 1867(d).
Section (2), Motion to Dismiss.
Based upon the record made before the trial judge, this assignment of error cannot be sustained.
A strong presumption of regularity is accorded to the findings of the grand jury. Defendant has the burden of showing that this grand jury was in fact prejudiced as well as showing that less than 12 jurors concurred in filing the indictment. Such a showing has not been made. The record does not support the claim that Rebecca Painter was an unauthorized person within the meaning of Rule 6 of the Federal Rules of Criminal Procedure.
Appellant assigns as error the fact that his pretrial motions were not heard until the day of the trial and actually were heard immediately prior to the trial. This is appellant's 9th issue. The argument in appellant's brief is directed more to the failure of the government to disclose certain information than it is to the failure by the trial court to hear the motions in advance.
Rule 12(e) of the Federal Rules of Criminal Procedure requires as to pretrial motions only that they be ruled on by the court "before trial unless the court, for good cause, orders that it be deferred...."
An example of the matters complained about is that Appellant Johnston had been blackballed by the Drug Enforcement Administration (DEA). This was brought out in the examination of witness Neal W. Curran, who was called as a witness by counsel for appellant. When the government stated that it wanted to inquire as to the reason for the DEA blackball, Mr. Holcombe objected and in his objection showed that he knew about it and in the discussion stated that Johnston had won his case "and the DEA is mad at him because he won the case out there."
The court did not permit government counsel to go into the DEA matter over Holcombe's objection. We will not now reverse when appellant's counsel prevented the matters of which counsel was aware from being explained.
We do not find reversible error in the fact that the trial court passed upon the pretrial motions on the day the trial was to begin or in its rulings on evidence which appellant has assigned.
Appellant contends that there was error in the court's denial of appellant's Motion to Suppress Evidence. This is referred to in appellant's third and fourth assignments of error. The third assignment related to testimony as to the search and the question of the standing of Johnston to object, while the fourth assignment related to the chain of custody of the marijuana. We discuss them together.
It is clear when Doyle McCuistion and appellant were stopped on the highway and arrested they were riding in a 1972 black over blue Ford. The top was black and the body blue. This is the car they were riding in on March 3, 1981, when they were stopped about eleven o'clock in the morning by witness Ray Hamilton, a U.S. Customs Inspector. At that time Mr. McCuistion gave the name of Mr. House and furnished a New Mexico driver's license. Johnston had no...
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