U.S. v. Slade

Citation200 U.S.App.D.C. 240,627 F.2d 293
Decision Date11 July 1980
Docket Number78-1409,Nos. 78-1333,s. 78-1333
Parties, 5 Fed. R. Evid. Serv. 1053 UNITED STATES of America v. John Roscoe SLADE, a/k/a "Slave", Appellant. UNITED STATES of America v. Odell JOHNSON, Jr., Appellant. UNITED STATES of America v. Arthur WATSON, Jr., a/k/a "Speed", Appellant. UNITED STATES of America v. George Norman MARSHALL, a/k/a "Little George", Appellant. UNITED STATES of America v. David REDD, a/k/a "Slim", Appellant. UNITED STATES of America v. John Robert JOHNSON, a/k/a "Stampede", Appellant. to 78-1412 and 78-1419.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Thomas Lumbard, Washington, D. C. (appointed by this Court), for appellant in No. 78-1333.

Robert A. W. Boraks, Washington, D. C. (appointed by this Court), for appellant in No. 78-1412.

William H. Jeffress, Jr., Washington, D. C. (appointed by this Court), for appellant in Nos. 78-1410 and 78-1411.

David Niblack, Washington, D. C., for appellant in No. 78-1409.

Gordon C. Rhea, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George and Barry L. Leibowitz, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before BAZELON, Senior Circuit Judge, WILKEY, Circuit Judge, and PARKER, * United States District Judge for the District of Columbia.

Opinion for the Court filed by District Judge BARRINGTON D. PARKER.

Concurring opinion filed by Senior Circuit Judge BAZELON.


In 1977, the government conducted an extensive investigation of a suspected heroin sales ring operating in Washington, D. C. The investigation, conducted by local and federal undercover agents with the assistance of paid informants, made use of concealed tape recorders and video-taping of street activities. It led to the exposure of and cracked the so-called "Stampede organization," a lucrative and financially successful retail heroin sales operation. The result was a 23 count indictment returned against eight defendants and, ultimately, multiple convictions of six. The appellants currently before this Court are John R. Slade; Odell Johnson, Jr.; Arthur Watson, aka Speed; George N. Marshall; David Redd, aka Slim; and John R. Johnson, aka Stampede (Odell and John R. Johnson are brothers); Nos. 78-1333, 78-1409 to 1412, 78-1419, respectively. 1

The indictment, returned October 11, 1977, charged all defendants with conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Each appellant was also named in one or more of the substantive counts charging distribution of or possession with intent to distribute narcotics in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. The substantive counts closely mirror the 25 overt acts in the conspiracy count, covering transactions from April 5 to September 29, 1977. Following ten days of trial and seven days of deliberations, the jury convicted all appellants of conspiracy and convicted all but appellant Arthur Watson, of one or more substantive counts. 2 A chart listing the counts, the verdicts, and the relevant evidentiary tapes is attached as Appendix A. 3

Appellants seek reversal of their convictions on four major grounds. They contest the propriety of the jury following audio tapes with government-prepared transcripts which had not been reviewed for accuracy by the court at pretrial. The trial judge afforded defense counsel the opportunity to submit alternative transcripts, and instructed the jurors that their independent understanding of the tapes should supersede the transcripts. Second, they challenge the trial judge's decision barring defense counsel from using the Saint Elizabeth's psychiatric hospital records of a key government witness, who was released from the hospital in 1974. Third, they allege that repeated references by government witnesses to the "Stampede organization" or the "organization" denied them a fair trial, since the references implied the existence of undisclosed proof of such an organization having appellants as members, a prejudicial implication allegedly not cured by the trial For the reasons outlined in this opinion, none of these alleged errors, considered alone or cumulatively, warrants reversal of the several convictions. The same is true for the matters raised by individual appellants, with one exception, the Appellant Watson. We reverse the conspiracy conviction of Arthur Watson, 4 finding that he was impermissibly impeached by a misdemeanor firearms conviction not involving dishonesty.

judge's instructions to the jury to ignore the references. Finally, they challenge the conspiracy instruction given to the jury. Rather than using the standard instruction that a defendant's membership in a conspiracy may be proven only by his own acts and statements, versus those of codefendants, the judge instructed the jury to determine the existence of a conspiracy "on all the evidence." Various other grounds for reversal are asserted by particular appellants.

In all other respects, we affirm the defendants' convictions.


The government's witnesses clearly identified all appellants as members of a heroin-distribution ring managed principally by John R. "Stampede" Johnson and his brother Odell Johnson. The ring operated in the 1800 block of 7th Street, N.W., near 7th and T Streets, a neighborhood described as notorious for drug activity. The so-called "Stampede organization" displayed a degree of imagination with members described as sometimes secreting in and dealing heroin from hollowtipped walking canes. On an average day, sales were estimated at as much as $2400 an hour. (Tr. at 262, 771).

The government's investigation of the suspected drug ring began in April and continued to September, 1977. The key figures in the investigation were detective Anthony Patterson and agent Donnie Smith. They were supervised by Detective Kenneth Johnson of the Metropolitan Police Department. Patterson was a seasoned undercover policeman familiar with the 7th and T Streets area and a member of the city police force. Donnie Smith was an experienced Drug Enforcement Administration (DEA) agent. They relied heavily on two paid informants, Allen Whaley and Charles Ward. These four were the government's chief witnesses.

Both Whaley and Ward had histories of drug addiction together with extensive criminal records associated in large part with their drug addiction. The evidence showed that Whaley's use of narcotics continued through the government's investigation which led to the indictment of the appellants. Ward, on the other hand, denied narcotic drug usage in recent years.

A. Testimony of Detective Patterson and the Informant Whaley

Detective Anthony Patterson was introduced into the narcotic operations through the informant Whaley. Through this contact he met and dealt with Odell Johnson and Stampede Johnson. Patterson's testimony clearly established that from early April through April 25, 1977, he had direct personal contact with the two appellants. Through them he arranged for and made narcotic purchases, both directly and indirectly. Through one or more of those appellants he negotiated and arranged for a series of transactions. The detective's testimony supported counts 2 through 6 of the indictment and the criminal involvement of the two Johnson brothers. In the course of his testimony Patterson testified that following one heroin purchase, Bolden remarked that they would "soon see how good Stampede's dope is."

Stampede Johnson's counsel moved for a mistrial based on the detective's testimony recounting several such statements of Bolden and Patterson concerning "Stampede" dope (Tr. at 308-310) labelling certain Defense counsel sought to discredit Whaley in every possible manner. They secured his admissions that he used heroin regularly and committed acts of larceny throughout the investigation. Under cross-examination, Whaley testified that he had been at Saint Elizabeth's Hospital from 1970 to 1974, having been found not guilty by reason of insanity on an automobile theft charge. Appellants' counsel also elicited that Whaley received outpatient medical treatment after 1974 and that he had violated medical orders to abstain from narcotic drugs. However, the court refused to afford counsel an opportunity to explore or examine in any detail on Whaley's confinement, diagnosis or treatment or to introduce his medical records, finding the latter "confidential."

statements hearsay and another an inadmissible statement by a person not designated as a co-conspirator. The trial judge agreed that a "worrisome situation" existed but denied the motion. At a later time Whaley also testified that he was told by Detective Kenneth Johnson, who supervised both Patterson and Smith, "to purchase some drugs from Stampede's organization." (Tr. at 617). Counsel again moved for a mistrial, claiming that the informant's testimony was prejudicial hearsay. In denying the motion the court's offer of a curative instruction was refused as inadequate. However, the prosecutor was cautioned. (Tr. at 654). On still other occasions there was reference to the "Stampede organization" and the "organization" (Tr. at 685-690). The trial court again denied that appellant's counsel's motion for a mistrial.

B. Testimony of Agent Smith and Informant Ward

Special Agent Donnie Smith of DEA testified about his work with informants Ward and Whaley. The testimony of Smith and Informant Ward gave particular support to the charges against the Johnson brothers in counts 7, 8 and 9 and specifically against Stampede Johnson and George Marshall on the transactions set forth in count 21 of the indictment. The prosecution's proof on count 21 was supported by a video-tape recording. The tape was shown to the jury and Ward narrated the transaction recorded on film and...

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