United States v. Atkinson

• Decision Date: 30 March 1977
• Docket Number: No. 7299-Cr.,7299-Cr.
• Citation: 429 F. Supp. 880
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America v. Larry Drake ATKINSON.

429 F. Supp. 880

UNITED STATES of America v. Larry Drake ATKINSON.

No. 7299-Cr.

United States District Court, E. D. North Carolina, Wilmington Division.

March 30, 1977.

Jack B. Crawley, Jr., Asst. U. S. Atty., Raleigh, N. C., for plaintiff.

Loflin & Loflin, Durham, N. C., Reginald L. Frazier, New Bern, N. C., for defendant.

MEMORANDUM DECISION AND ORDER

BUTLER, Senior District Judge.

The petitioner, Larry Drake Atkinson, was convicted by a jury of two counts of possession of heroin with intent to distribute and two counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). On appeal, the judgment of conviction was affirmed. United States v. Atkinson, 513 F.2d 38 (4th Cir. 1975). Thereafter, Atkinson filed a motion to vacate sentence and for a new trial, and contends that the United States knowingly and intentionally failed to disclose to the petitioner material evidence tending to show that the government witness, Charles Edward Pennington, committed perjury at the petitioner's trial concerning said witness' prior criminal convictions, and that the United States also failed to disclose evidence tending to show bias and affecting the credibility of said witness. The petitioner invokes the jurisdiction of the court under 28 U.S.C. §§ 2255 and 1651(a), and Rule 33, Federal Rules of Criminal Procedure.

The investigation which led to the federal prosecution of this case was a state undertaking without federal participation. The principal government witness, Charles Edward Pennington, was working as an undercover narcotic informer for the Wilmington Police Department and testified that on July 16 and 17, 1973, he made the purchases of heroin from the petitioner which were the basis of the petitioner's conviction.¹ Pennington was the only witness who testified to the petitioner's presence at the times and place of the purchases and to the petitioner's participation in the possession and distribution of the heroin.

The credibility of a witness is to be judged by the trier of fact, and in this case the sufficiency of the evidence to support the jury's finding of Atkinson's guilt rested solely upon the credibility of the testimony of Pennington.

On direct-examination Pennington testified in response to questions by an Assistant United States Attorney as follows:

Q. . . . (H)ave you ever been convicted of any crime?

A. Yes sir.

Q. And what was that sir?

A. It was a traffic altercation involving a ticket on Southern California Expressway sir.

Q. And what was the charge, if you recall? What did they call it?

A. Obstructing an officer I believe.

Q. And have you been convicted of anything else other than traffic offenses?

A. No sir. (Tr. p. 8)

Upon cross-examination Pennington testified in substance that he was unemployed at the present time; that he was partially supported by his wife and family, and that he also received subsistence from the United States Justice Department; that he had been in protective custody since September 7, 1973, and that the Department of Justice had paid his rent and given him an average of about $400 a month for subsistence for himself, his wife and brothers; that the money was not given to him in exchange for his testimony at this trial but because he was in protective custody and not allowed to work. (Tr. pp. 41-46)

Pennington further testified on cross examination in response to questions by defense counsel as follows:

Q. Now Mr. Pennington, you indicated that you have had but one conviction in the State of California, is that correct?

A. That is correct sir.

Q. And that was a conviction for obstruction of justice, was it?

A. No sir.

Q. What was it for? What was the conviction for?

A. My citation read, "obstructing an officer". I was a passenger in a car when he, a friend, received a speeding violation and I opened my mouth when I shouldn't have and I was also citated sir.

Q. You never had an assault on this officer did you?

A. No sir, I did not.

Q. Now Mr. Pennington, are you testifying in this case here because you are being paid by the United States Government to do so?

A. Sir, I am testifying in this case because if someone don't do something to curb the Heroin traffic in New Hanover County and the rest of the United States, then we don't have any need for the law service.

Q. In other words, you love this country very much do you not?

A. I do sir.

* * * * * *

Q. In addition to receiving money from the Department of Justice Mr. Pennington, are you testifying for any other reason other than what you have just now told us?

A. Yes sir I am.

Q. And what reason is that?

A. I have, I had sir, a cousin that was eleven years old. He died from an overdose of Heroin. I lived a long time in New York. My wife and family are from Wilmington. I used Heroin myself for approximately two months. I know what it can do. No police officer, no law authority asked me for any help. I went to them myself sir and begged, asked what could I do to try to help curb the Heroin traffic.

Q. And that is the only reason you are testifying, so as to help people from this plight are you not?

A. No sir.

Q. And what other reason is there?

A. I would like very much to see the people responsible for Heroin traffic in the streets to be dealt with in any way so that they can be stopped.

Q. And you are going to do everything possible to that end, is that not so?

A. Everything I can possibly do sir.

Q. And you will lend your services as fully as possible to that end? Is that not so?

* * * * * *

A. No sir I will not.

Q. Is there any other reason that you are testifying, in addition to what you have already testified to?

A. None that I could think of sir.

Q. There is no recent concern with any matter pending against you is there?

MR. DEAN: OBJECTION.

COURT: SUSTAINED. (Tr. pp. 46-49)

In compliance with petitioner's motion to compel discovery and pursuant to an order of court, the United States has filed a response and a certificate of compliance with said order, and has submitted to the court, for an in camera inspection, the entire government file in this case which is in the possession of the United States Attorney for this district. Upon an examination of said file, the court finds that the United States has furnished the petitioner all the information in the possession of said United States Attorney concerning the government witness Charles Edward Pennington; that said file does not contain any material, documents or information indicating that the government had any understanding, express or implied, or made any promises or arrangements with the witness Pennington to induce or influence his testimony in the trial of this case, and that said file does not contain any information relevant to the subject matter involved in petitioner's motion for a new trial or any issues that might be raised in said motion or reasonably calculated to lead to the discovery of admissible evidence that has not now been disclosed to the petitioner.

I

Petitioner claims that the United States failed to disclose evidence tending to show that Pennington committed perjury at petitioner's trial concerning Pennington's prior convictions, and that the Office of the United States Attorney intentionally concealed evidence of Pennington's past history in the armed services.

On March 18, 1974, prior to the trial of petitioner in March-April 1974, an Assistant United States Attorney was informed by the Federal Bureau of Investigation that on December 29, 1972, Pennington had absented himself from the United States Marine Corps, Camp Lejeune, North Carolina, and was dropped from the rolls of the Marine Corps as a deserter on January 4, 1973.

The United States Attorney, through his assistant, informed the FBI that Pennington was in protective custody and was scheduled to appear as a government witness in the United States District Court in Wilmington during the week of March 25, 1974, and requested that "no action be taken to apprehend Pennington at this time." The United States Marshal was informed of Pennington's deserter status, and the United States Marine Corps was notified in order that they might file a detainer against Pennington's release from protective custody. The United States Attorney did not discuss the pending desertion charge with Pennington until after he had testified for the government at the petitioner's trial. (Affidavit of Jack B. Crawley, Jr., Assistant U. S. Attorney.) The United States Attorney had also been informed that Pennington had been arrested by the Wilmington, N. C. Police Department on May 5, 1973, for armed robbery, and subsequently had been used in an undercover capacity by the Interagency Drug Squad at Wilmington.

For the purpose of impeachment, defense counsel questioned Pennington concerning his prior convictions. Pennington had not been convicted of the desertion or the armed robbery offenses at the time of Atkinson's trial, and the only prior conviction of Pennington known to the prosecution was his conviction in California of "obstructing an officer" which fact was disclosed by Pennington during his direct and cross examinations. (Trial Tr. pp. 8, 46 and 47.) Further, the prosecution had no knowledge of Pennington's past history in the armed services, other than the pending desertion charge.

The Court of Appeals for the Fourth Circuit in United States v. Pennix, 313 F.2d 524, 531 (1963) said:

"The rule ordinarily to be followed in this Circuit has been stated as follows: In criminal cases a witness may be asked, for purposes of impeachment, whether he has been convicted of a felony, infamous crime, petit larceny, or a crime involving moral turpitude." (Emphasis supplied).

Also, in Pennix, at page 528, the court, quoted from Coulston v. United States, 51 F.2d 178, 182 (10 Cir. 1941), as follows:

"A witness may not be asked if he has been accused or arrested for a crime, for the sufficient reason that it calls for hearsay evidence, and because accusation carries no implication of guilt.

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