U.S. v. Logan
| Decision Date | 16 December 1988 |
| Docket Number | No. 87-1774,87-1774 |
| Citation | 861 F.2d 859 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Jonathan LOGAN, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sidney Powell, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellant.
E.X. Martin, III, Dallas, Tex., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before BROWN, GEE, and GARWOOD, Circuit Judges.
In a jury trial in the United States District Court for the Northern District of Texas, defendant-appellee Jonathan Logan was found guilty on all three counts of an indictment charging him with knowing possession, on or about June 9, 1986, of heroin, cocaine, and marihuana, while he was an inmate of a federal correctional facility, contrary to 18 U.S.C. Secs. 1791(a)(2) and (b)(2). The district court granted Logan's timely post-verdict motion for new trial predicated on the sole ground that he testified at trial in reliance on his counsel's erroneous advice that his several prior convictions could not be admitted in evidence so long as he did not put his character in issue. The government appeals the order granting a new trial, as authorized by 18 U.S.C. Sec. 3731, as amended in 1984. Pub.L. 98-473, Title II, Sec. 1206, 98 Stat. 2153. Determining that the record affords no adequate basis for finding a reasonable probability that but for defense counsel's erroneous advice the result of the proceeding would have been different, we conclude that the district court abused its discretion in granting a new trial. We therefore reverse the new trial order, and remand the case for reinstatement of the verdict and further proceedings not inconsistent herewith.
At Logan's trial, the government, primarily through the testimony of two correctional officers at the federal correctional institution in Seagoville, Texas, established that the narcotics in question were found wrapped in a sock in a laundry bag in the cell that Logan shared with one other inmate at Seagoville. Testimony of a chemist likewise established that the substances were heroin, cocaine, and marihuana. The testimony of the correctional officers was not conclusive of Logan's guilt, however, because it did not clearly establish that the laundry bag in question was Logan's, as opposed to being his cellmate's, and because the officers admitted that the cells were unlocked and other inmates could freely enter and leave, although they indicated that this would normally be noticed. Neither correctional officer was sure whether there was only one, or two, laundry bags in the cell, and they were likewise uncertain as to whether only one, or two, laundry bags had been searched. Their testimony also exhibited some confusion as to whether the bag in which the narcotics were found was properly described as brown or green or greenish-brown. However, there was no dispute about the fact that the narcotics had been found concealed in a rolled up sock in a laundry bag hung from a double-decker bunk in the cell Logan shared with one other inmate. After the discovery of the narcotics, the FBI was called and Agent Westberg came to Seagoville the following day and interviewed first Logan's cellmate and then Logan. Questioning Logan about the narcotics found in the cell, Westberg testified:
Westberg unequivocally repeated this testimony on cross-examination. However, he admitted that in his notes or report concerning this interview he did not attribute to Logan the words "I told you, everything in the green laundry bag is mine." Rather, Westberg said that his notes reflected that Logan responded to the inquiry as to whether his statement about everything in the bag being his included the narcotics "in a positive manner and moving his head up and down." Westberg was then asked:
The defense evidence consisted only of the testimony of Logan. Logan admitted that the green laundry bag was his, but denied any knowledge of the narcotics or how they got in that bag. Concerning his interview with Westberg, Logan testified in relevant part as follows:
Logan also testified that his cellmate had a brown laundry bag and that "[w]e shared both bags." Following the completion of Logan's direct examination, there was an unrecorded bench conference held at the request of government counsel. Cross-examination of Logan then revealed several prior convictions, all without any objection being made to any of the inquiries, as follows: in 1978 he was convicted of distribution of heroin and sentenced to fifteen years, but was paroled after six and a half years; he was sent back to prison for a parole violation when his urine specimen reflected narcotics; he was also convicted of sale and possession of heroin in 1972 and sentenced to life imprisonment, and subsequently paroled in 1977; and in 1966 or 1967, he had been convicted of felony assault. Logan then again testified that all the laundry in the green bag was his. Concerning his interview with Westberg, he admitted that prior to the interview he had read the Seagoville official incident report which stated that narcotics had been found in a green laundry bag in his cell, and that he was "aware of what had been found in his room in the green duffel bag before you were interviewed by Agent Westberg." Logan further testified on cross-examination in this connection that:
Logan also stated that Lieutenant Rosales, of the Seagoville staff, was present during his interview with Westberg.
In argument to the jury, the government referred to Logan's prior convictions, but only in two brief sentences, each reference being to the fact that the jury could consider Logan's prior convictions in determining the credibility of his testimony. The district court's charge likewise informed the jury that it could consider a witness' prior convictions for the purpose of determining his credibility. However, the court also charged that the fact of prior conviction "does not necessarily destroy the witness' credibility," and further, that prior convictions could not be considered for any other purpose than credibility.
The case was submitted to the jury late on Friday afternoon. Shortly, the jury sent in a note asking for several items of factual information about various matters, including the color of the bag and what Logan's cellmate had been convicted of. After consultation with counsel, the court gave the jury a lengthy instruction, in essence stating they could decide the case only on the basis of the evidence and to use their best recollection of the testimony. The court also stated that if the jury had more specific questions, it would consider entertaining them, and suggested that the jury might want to recess for the weekend. The jury was then again returned to the jury room and at 5:15 p.m., about twenty-five minutes after the jury's first note, informed the court that it wanted to recess until Monday. Court was recessed, and jury deliberations resumed Monday morning, apparently about 8:30. Shortly after 9:00 a.m., the jury sent in a note requesting a copy of the transcript of the trial. The court informed the jury that this was not practical, but that if a specific portion of a specific witness' testimony were requested, that could be furnished. Shortly after 11:00 a.m., the jury sent in another note requesting testimony on numerous different points, including the correctional officers' testimony about the bag, Logan's testimony about where it was located, several portions of Westberg's testimony, and testimony concerning revocation of Logan's parole. After consultation with counsel, the court informed the jury that its request was too voluminous, and that it should try to narrow its requests to more specific areas. At 11:30 a.m., the jury requested Westberg's testimony concerning what Logan said to him about the laundry bag. The court then recessed the jury for lunch with instructions to return at 12:30 p.m. After the jury returned, the court had the jury read the relevant portions of Westberg's testimony concerning what Logan had told him about the laundry bag. Twenty minutes later, the jury returned with a verdict of guilty on all counts. The verdict was duly accepted and the jury discharged, all without any objection. The court then set sentencing for a date some two weeks later.
Nine days after the verdict, Logan, through his trial counsel, filed his motion for new trial. 1 The sole ground on which a new trial was sought was that...
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