United States v. Fannon

• Decision Date: 15 March 1974
• Docket Number: No. 73-2151. Summary Calendar.,73-2151. Summary Calendar.
• Citation: 491 F.2d 129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John FANNON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

491 F.2d 129 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. John FANNON, Defendant-Appellant.

No. 73-2151. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

March 15, 1974.

John Fannon, pro se.

Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

THORNBERRY, Circuit Judge:

John Fannon was convicted after a jury trial of conspiring to import, actually importing, and possessing with intent to distribute some 2700 pounds of marihuana, in violation of 21 U.S.C. §§ 963, 952, and 841(a) (1). He was sentenced to serve concurrently three five-year sentences, followed by a special parole period of two years. On this direct appeal, appellant presents us with nine claims of reversible error, only two of which warrant extended discussion.¹

During the evening hours of November 29, 1972, appellant and several other men were observed by law enforcement officers unloading large bundles from a small boat on the Dynamite Rock at North Key Largo, Florida, and loading them into a Winnebago mobile camping vehicle. This surveillance was the culmination of a lengthy investigation of smuggling activity, an investigation which began the previous July and centered around Donald Troise and John Goodwin, two of the men charged in this conspiracy.² Late in the evening of the 29th, while the unloading and loading continued, customs agents abruptly announced their presence from nearby bushes and called upon the smugglers to submit to arrest. The invitation was first met with gunfire. But the officers soon arrested the appellant, and three others charged as co-conspirators were arrested the following day. At the time of appellant's arrest, 2707 pounds of marihuana were seized.

The evidence presented at trial left little doubt concerning the appellant's complicity. Fannon was identified as the man who had rented the Winnebago motor vehicle used in the smuggling attempt and who had leased a spot in a campground in North Key Largo. Special agents of the U.S. Customs Service testified about the elaborate surveillance of the parties suspected in this smuggling operation. One of the agents saw the appellant get into a Volkswagon belonging to Donald Troise the night of the 29th, drive away, return an hour later, and drive off again in the Winnebago. Another agent testified that he saw Fannon drive up to the shore in the camper and then load marihuana into the vehicle from the boat which had pulled ashore. When the officers announced their presence and attempted arrests, Fannon attempted to flee by diving into the water. He quickly reconsidered that course, however, came out of the water, and was arrested. All during the melee, a Dade County helicopter hovered above the scene lighting the area with a powerful searchlight. After a special agent informed Fannon of his rights, the appellant admitted that he had been hired to drive the Winnebago to deliver the marihuana.³

Brendin Reimbold, a co-defendant who pleaded guilty to the first count of the indictment, charging conspiracy, testified against Fannon. He described the conspiracy's genesis in Jamaica and the events leading up to the attempt to bring the contraband ashore. Although he testified that he had never seen Fannon before the eventful 29th, he did place Fannon at the scene of the crime and he described Fannon's loading of the camper with packages of marihuana.

In order to rebut this rather convincing evidence of guilt, Fannon took the stand in his own defense. He admitted knowing the co-conspirators Troise, Goodwin, and the captain of the ship which carried the marihuana from Jamaica to the Florida coast. He admitted renting the camper, traveling to the campground, and waiting at the dock at night for Troise and the ship. He admitted unloading the bundles of marihuana from the ship and loading them into the camper.

To explain this otherwise admitted criminal activity, Fannon testified that his actions were coerced by men in the ship carrying guns. His sole purpose, he claimed, in being at the dock was to bring in illegally poached lobsters. But at the dock, he claimed at trial, he was threatened with bodily injury when he momentarily refused to help with the smuggling. On cross examination, however, he admitted that he knew nothing about commercial fishing, or about storing fish, and that he had never worked in the fishing business in any manner. He further admitted that the Winnebago vehicle, which he claimed was to be used to transport the lobsters, had not been equipped for that purpose. He also admitted that he had been twice convicted for securities fraud. On this record appellant has not contended that the evidence was insufficient to prove his guilt beyond a reasonable doubt.

Nevertheless, appellant recognizes, as do we, that even the most guilty are entitled to a constitutionally fair determination of guilt. Appellant contends that this was denied him and directs our attention to the circumstances surrounding the testimony of Brendin Reimbold. Reimbold originally pleaded not guilty to all three counts in the indictment, but shortly before Fannon's trial, he changed his plea to one of guilt as to count I, the conspiracy charge, and the remaining two counts were dismissed. Fannon was not present in the courtroom when the district judge accepted Reimbold's plea of guilty, and Fannon was not aware of the terms of Reimbold's plea bargain. But Fannon's appointed counsel was present in the courtroom and was aware of the terms of the plea bargain because he was also Reimbold's appointed counsel. Fannon's interrelated objections are that none of the parties to his trial — his attorney, the prosecutor, or the district judge — ever disclosed to the jury the existence of plea bargaining negotiations with a key government witness, that his attorney labored under a conflict of interest, and that the resulting prejudice requires reversal.

Both common sense and formidable authority compel us to scrutinize the record with great care when such allegations are made, for they drive at the heart of the American system of criminal justice by challenging the faithfulness to duty of defense counsel, prosecutor, and judge.⁴

It is true that defense counsel, the prosecutor, and the district judge were cognizant of Reimbold's position since each had a role in the plea bargaining. Only the jury was not aware of the existence or substance of the witness' plea bargain. Nevertheless, even if Reimbold's testimony could have been thoroughly impeached by the introduction of his plea bargain, there is no reasonable likelihood that this impeachment could have affected the verdict of the jury. Napue v. Illinois, 1969, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. Even if Reimbold had not testified at all, the evidence would have been more than sufficient for the jury to find the defendant guilty beyond a reasonable doubt. And thus any error in failing to apprise the jury of the plea bargain was harmless beyond a reasonable doubt. Harrington v....