United States v. Johnson, 71-2446.

• Decision Date: 26 January 1972
• Docket Number: No. 71-2446.,71-2446.
• Citation: 454 F.2d 700
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny Erroll JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

454 F.2d 700 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Johnny Erroll JOHNSON, Defendant-Appellant.

No. 71-2446.

United States Court of Appeals, Ninth Circuit.

January 26, 1972.

Charles T. McCutcheon, San Diego, Cal., for defendant-appellant.

Harry Steward, U. S. Atty., Donald F. Shanahan, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before MERRILL, KOELSCH, and HUFSTEDLER, Circuit Judges.

PER CURIAM:

Johnson appeals from his conviction for violations of 21 U.S.C. § 174. He makes five contentions on appeal: The district court erred in denying his motion to suppress heroin seized during a body cavity search of his accomplice Lewis; (2) the uncorroborated testimony of Lewis was insufficient to sustain his conviction; (3) there was plain error in permitting a lawyer, who had previously represented Johnson, to represent Lewis; (4) trial counsel's failure to call certain witnesses who might have testified on his behalf was plain error; and (5) there was plain error in the district court's failure to order a medical examination of Johnson to determine whether or not he was competent to stand trial.

Johnson did not have standing to challenge the legality of the search of Lewis' body cavity, and the district court correctly rejected his motion to suppress. (Diaz-Rosendo v. United States (9th Cir. en banc 1966) 357 F.2d 124, cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83.)

The rule of this Circuit is that a conviction can be based upon the uncorroborated testimony of an accomplice. (E. g., Suhl v. United States (9th Cir. 1968) 390 F.2d 547, cert. denied, 391 U.S. 964, 88 S.Ct. 2035, 20 L.Ed.2d 879.)

Attorney Goodwin was appointed to represent Johnson before he was indicted. Three days after the appointment, a magistrate approved the substitution of a new attorney for Johnson. One week before trial, Lewis retained Goodwin in place of her prior lawyer. The trials of Lewis and Johnson were severed; thereafter, Lewis testified against Johnson. No objection to Goodwin's representation of Lewis was raised during the pretrial and trial proceedings. Johnson now claims that the district court committed plain error in failing sua sponte to relieve Goodwin. He points to nothing in the record tending to prove that he was prejudiced in any way by Goodwin's representation of Lewis. While we cannot condone the appearance of a conflict of interest by counsel, in the absence of a showing of prejudice Johnson cannot invoke the protection of the plain error doctrine. (Kruchten v. Eyman (9th Cir. 1969) 406 F.2d 304.)

There was evidence that at least two persons other than Johnson and Lewis may have been involved in the heroin smuggling. In a supplemental brief, Johnson questions the adequacy of his representation at trial based on the failure of his lawyer to call these two persons as witnesses. Nothing on the face of the record before us indicates that the witnesses, if called, would have produced evidence favorable to Johnson. The claim that counsel was inadequate is not sustained by the record. (United States v. Porter (9th Cir. 1970) 431 F. 2d 7, cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269; United States v. Johnson (9th Cir. 1970) 434 F.2d...