United States v. Johnson

• Decision Date: 04 December 1972
• Docket Number: No. 72-1238.,72-1238.
• Citation: 469 F.2d 973
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clinton JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

469 F.2d 973 (1972)

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

No. 72-1238.

United States Court of Appeals, Fifth Circuit.

December 4, 1972.

Joseph J. Petito, New York City, Samuel S. Forman, Miami, Fla. (Court appointed), for defendant-appellant.

Robert W. Rust, U. S. Atty., Charles O. Farrar, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.

COLEMAN, Circuit Judge:

Clinton Johnson and two other individuals were indicted on three counts, as follows:

Count I

Conspiring 21 U.S.C. § 963¹ to import marijuana into the United States in violation of 21 U.S.C., § 952(a).

Count II

Knowingly and intentionally importing approximately 63,000 grams of marijuana into the United States in violation of 21 U.S.C., § 952(a).

Count III

Knowingly and intentionally possessing with intent to distribute approximately 63,000 grams of marijuana in violation of 21 U.S.C., § 841(a)(1) and (2).

Johnson was tried to the Court, without a jury. He was found guilty on all three counts and sentenced to concurrent terms of eighteen months imprisonment.

In his appeal Johnson challenges the sufficiency of the evidence as to each count of the indictment. We affirm.

A United States Customs Inspector, Homer Schwartz, testified that on August 7, 1971, in Miami International Airport, by using a dog trained to sniff out narcotics, he discovered two footlockers containing 133 pounds of marijuana. The footlockers, bound for Nassau, had been shipped from Jamaica. After tests had verified the presence of marijuana, the two footlockers were returned to the customs warehouse and placed under surveillance. Since Nassau was the destination of the shipment, the footlockers did not clear Customs in Miami and were allowed to go on to the Bahamas.

Anthony Houston, a Pan American employee, testified that in Nassau one Richard Sadler bribed him to examine and clear the footlockers for a return flight to Miami, where the footlockers would not go through Customs since they had already been pre-cleared in Nassau.

Harold Wilson, a special agent for United States Customs in Miami testified that on August 9, 1971, he observed the same two footlockers being unloaded from an aircraft which had arrived from Nassau. Porters placed them on the Pan American baggage carousel. Johnson, the appellant, was seen outside the customs enclosure near the Eastern Airlines baggage area. Johnson engaged in a conversation with an Eastern Airline agent who was standing behind a portable ticket counter. After there had been an exchange of some papers between Johnson and the agent, the agent placed baggage checks on the two footlockers. Sadler then met Johnson. The two men proceeded to the Eastern Airlines waiting area.

Andrew Hoffman, special agent with the Bureau of Customs, testified that on the occasion in question he observed Johnson and Sadler each take one footlocker off the Pan American baggage carousel and give it to a Pan American porter. Then, Sadler and Johnson proceeded down the sidewalk. Sadler went into the terminal area of the airport. Johnson went to a point just outside the customs enclosure area, where agent Hoffman observed the two footlockers being turned over to an Eastern Airlines agent at a portable counter.

In other words, Johnson took an active, affirmative part in getting the footlockers from the Pan American plane to the Eastern Airlines plane, destined for New York.

At this point, the situation rapidly deteriorated. Johnson and Sadler were arrested in the terminal after they had been under surveillance for thirty or forty minutes. Both men were searched. Baggage claim checks for the two footlockers were found on Sadler. Sadler also had an airline ticket for a flight from New York to Miami in the names of both Johnson and Sadler.

The government's star witness was Anthony Houston, who admitted his participation in the illegal importation scheme. Beginning in early 1971, Houston had been asked several times by Sadler to help him get items through Customs. Sadler called Houston and told him that he was coming to Nassau on Saturday, August 7, 1971. Houston met with Sadler on that date. Sadler told Houston that he wanted to get the footlockers out on Sunday, August 8, 1971, because "he had a few people from New York in Miami awaiting the arrival of the shipment from Nassau". Houston told Sadler that the shipment on Sunday was impossible. The two footlockers were shipped on Monday, August 9, 1971. After Sadler had been arrested in Miami, he called Houston a few days later and told him that "we got caught".

Houston admitted on cross-examination that he had never met Johnson and had never talked to him on the telephone.

On redirect Houston admitted that Sadler had told him that there was marijuana in the two footlockers.

Johnson rested on the government's proof.

The question, then, is: Was that proof sufficient as to any one of the three Counts?

This Circuit adheres to the following rule as to convictions based on circumstantial evidence:

"Where the evidence relied on to sustain a verdict is circumstantial, it must be such that the trier of fact could reasonably find that the evidence excludes every reasonable hypothesis, except that of guilt. Surrett v. United States, 421 F.2d 403 (5th Cir. 1970); Riggs v. United States, 280 F.2d 949 (5th Cir. 1960). This test is not simply whether in our opinion the evidence excludes every reasonable hypothesis of innocence, but rather whether the trier of fact might reasonably so conclude. United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969); Odom v. United States, 377 F.2d 853 (5th Cir. 1967); Williamson v. United States, 365 F.2d 12 (5th Cir. 1966); Rua v. United States, 321 F.2d 140 (5th Cir. 1963); and Vick v. United States, 216 F.2d 228 (5th Cir. 1964),"

United States v. Sidan-Azzam, 5 Cir., 1972, 457 F.2d 1309, 1310.

See, also, United States v. Currier, 1 Cir., 1972, 454 F.2d 835, 838, n. 6.

Citing Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1940), we have said that "circumstantial evidence is to be viewed in the light most favorable to the government where a guilty verdict has been rendered", United States v. McGlamory, supra.

Johnson contends that there is insufficient circumstantial evidence to convict him on any of the three counts.

Under the concurrent sentence doctrine,² if the evidence was sufficient as to any of the counts a reversal is not in order.

In Count III Johnson was charged with "knowingly and intentionally possessing with intent to distribute 63,000 grams of marijuana". To support this charge the government had to prove that Johnson (1) knowingly possessed, (2) intentionally possessed, and that (3) such possession was with an intent to distribute.

(1) Knowledge

". . . It is elementary that intent or guilty knowledge is susceptible to proof by either direct or circumstantial evidence or by both", Bishop v. United States, 10 Cir., 1968, 396 F.2d 762, 763. See, also, United States v. Harris, 1970, 140 U.S.App.D.C. 270, 435 F.2d 74, 89; Anderson v. United States, 8 Cir., 1969, 406 F.2d 529, 532; and Jackson v. United States, 8 Cir., 1964, 330 F.2d 679, 681. Knowledge is circumstantially shown by looking...