United States v. Goodwin

• Decision Date: 19 April 1974
• Docket Number: No. 73-1294.,73-1294.
• Citation: 492 F.2d 1141
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John T. GOODWIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.2d 1141 (1974)

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

No. 73-1294.

United States Court of Appeals, Fifth Circuit.

April 19, 1974.

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Fred A. Jones, Jr. (Court-appointed), Richard W. Aschenbrenner, Miami, Fla., for defendant-appellant.

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

Before TUTTLE, BELL and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

On March 16, 1972, the federal grand jury for the Southern District of Florida returned an indictment charging, inter alia: that appellant, John T. Goodwin, imported approximately 1000 pounds of marijuana, a Schedule I controlled substance, into the United States in violation of 21 U.S.C. § 952(a); and that Goodwin, along with Allen Charles Ritsema, Wilbur Roger Hansen, and "divers other persons whose names are to the Grand Jury unknown," conspired to import into the United States and possess marijuana in violation of 21 U.S.C. § 963. The indictment contained several other counts accusing Ritsema, Hansen, and one Patrick Angelo Zaccheo, Jr., of additional substantive offenses; Ritsema and Hansen entered guilty pleas to certain substantive counts, and the government dismissed all other charges against them, including the conspiracy count. Goodwin, however, was not arrested until November 30, 1972, at which time he was in the water about 500 yards off the coast of Key Largo, Florida. Pursuant to Goodwin's arrest, customs agents seized approximately 3000 pounds of marijuana. On January 23 and 24, 1973, Goodwin was tried before a jury and was found guilty both of importing and of conspiring to import marijuana. He was sentenced to five years imprisonment and a two year special parole term on each count, the two sentences to run concurrently.

On this appeal Goodwin seeks to have his conviction reversed for any of four alleged errors on the part of the district court. First, appellant contends that the court erred in failing to grant his motion for acquittal after the conspiracy charges against the other alleged co-conspirators had been dismissed. Second, Goodwin argues that the court should have granted various motions for directed verdict of acquittal because the evidence presented at trial was insufficient to support a conviction. Third, Goodwin claims that several comments by the prosecutor during closing argument were prejudicial, and that the court erred in denying motions for a mistrial on that basis. Finally, appellant maintains that the trial court erred in permitting the government to introduce testimony regarding his arrest while committing a similar offense nine months after the crime charged herein. We find the first two assignments of error unpersuasive. As to the third contention, we believe that at least one of the statements in the government's closing argument exceeded the limits of permissible prosecutorial zeal, and that the district court erred by failing, at a minimum, to provide a corrective cautionary instruction to the jury. Finally, after careful study of the record in this case and the decisions of this Circuit, we conclude that the district court committed prejudicial error by admitting evidence of subsequent similar conduct on the part of appellant. We therefore reverse for a new trial.

I.

Appellant argues that because conspiracy charges against his alleged co-conspirators, Ritsema and Hansen, were dropped he should have been acquitted. This Court has followed the general rule that the conviction of only one defendant in a conspiracy prosecution will not be upheld if all other alleged co-conspirators are acquitted. Farnsworth v. Zerbst, 5 Cir. 1938, 98 F.2d 541; United States v. Peterson, 5 Cir. 1974, 488 F.2d 645, 651. The reason for the rule is obvious: at least two persons must join in an unlawful enterprise in order for a conspiracy to exist. The dismissal of conspiracy charges against Ritsema and Hansen, however, did not leave a situation in which fewer than two persons remained who could have joined in the crime. The conspiracy count of the indictment charged, in addition to Goodwin, Ritsema and Hansen, "divers other persons whose names are to the Grand Jury unknown." Testimony was presented at trial which specified at least five persons other than those named in the indictment who apparently were involved in the alleged conspiracy. A person can be convicted of conspiring with persons who are not identified by name in an indictment so long as the indictment asserts that such other persons exist and the evidence supports such an assertion. See Rogers v. United States, 1950, 340 U.S. 367, 375, 71 S.Ct. 438, 95 L.Ed. 344, 350. This is no less true simply because the co-conspirators named as codefendants in the indictment were not prosecuted for conspiracy. United States v. Cabrera, 5 Cir. 1971, 447 F.2d 956; Jenkins v. United States, 5 Cir. 1958, 253 F.2d 710. In Rosecrans v. United States, 5 Cir. 1967, 378 F.2d 561, we held that the defendant's conspiracy conviction was not invalidated by the acquittal of his five named codefendants, particularly because

Count One of the indictment (the conspiracy count) charged that Rosecrans conspired not only with his five codefendants, but with divers other persons to the grand jury unknown, and the written statements made by Rosecrans to the F.B.I. agents and evidence adduced at the trial showed persons other than Rosecrans and his five codefendants were parties to the conspiracy.

378 F.2d at 567. We reject appellant's first claim of error.

II.

The government's case rested on testimony indicating a conspiracy among a number of people, including appellant, to import marijuana from Jamaica on the MARIA, a boat captained by a man named "John Goodwin." The government sought to link the seized marijuana with the MARIA, and then to identify appellant as the captain of the MARIA. Appellant argues that the government did not show beyond a reasonable doubt that he was the same "John Goodwin" who was captain of the MARIA, and thus failed to establish a nexus between him and the marijuana. The crime for which appellant was being tried occurred in February 1972; appellant was not arrested until November 30, 1972, while apparently involved in another incident of importing marijuana. Goodwin argues that the government arrested him for the latter incident, and when they discovered his name was the same as that of the man charged in the present indictment, placed him on trial for this offense.

Two alleged co-conspirators, Allen Charles Ritsema and Richard Delise (who was not charged by name in the indictment), testified as to the identity of the captain of the MARIA. Asked if he saw "John Goodwin" in the courtroom, Ritsema pointed to appellant and said, "I'm reasonably sure that is him there." After the court denied a motion to strike that testimony, Ritsema added: "It has been over a year since I have seen him. He had much longer hair and a mustache then." Delise was unable to identify appellant as the John Goodwin who captained the MARIA; in fact, he described the boat captain as being "five foot, 170 or 160 pounds" with long hair and a mustache—a description substantially different from that of appellant in every particular. Also on the issue of identity, Customs Agent William Buchanan testified that he had observed appellant at the address where the MARIA was docked on the evening of February 24, 1972, the date of the crime charged herein. Except for the critical issue of identity, all elements of the government's case were soundly established.

The standard for review of the denial of a motion for directed judgment of acquittal, firmly established by this Court, is

whether, taking the evidence most favorable to the Government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, the jury might reasonably conclude that the evidence is inconsistent with the hypothesis of the accused\'s innocence. United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825; United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. If the evidence is such that a reasonable person may have a reasonable doubt as to the defendant\'s guilt, the case should be submitted to the jury. On the other hand, a trial judge should not permit a case to go to the jury if the evidence is so scant as to allow the jury merely to speculate or to conjecture as to the defendant\'s guilt. In other words, a motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged.

United States v. Stephenson, 5 Cir. 1973, 474 F.2d 1353, 1355. In the present case the government asserts that the identification testimony of Ritsema and Agent Buchanan was sufficient to present the issue to the jury, and that Delise was an unresponsive witness, who drew admonishment from the court and whose testimony could not have been credible to the jury. Based upon our own review of the evidence, we can say only that "a reasonable person may have had a reasonable doubt as to the defendant's guilt"; we cannot say that a reasonable person must have had such doubt. The district court properly submitted the evidence to the jury.

III.

Goodwin alleges that the government, in its closing argument, made at least three misstatements of fact, and at least one other highly prejudicial comment to the jury, and claims that the trial court erred in denying motions for mistrial on those grounds. We shall review the allegedly offensive statements seriatim.

First, appellant observes that the Assistant United States Attorney represented Agent Buchanan as testifying that he saw Goodwin "at the dock in the rear of the residence in Pompano Beach," when Buchanan actually had testified only that appellant...