United States v. Johnson

• Citation: 439 F.2d 885
• Decision Date: 07 April 1971
• Docket Number: No. 29471.,29471.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Byron Hugh JOHNSON and Allan Golub, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

439 F.2d 885 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Byron Hugh JOHNSON and Allan Golub, Defendants-Appellants.

No. 29471.

United States Court of Appeals, Fifth Circuit.

March 16, 1971.

Rehearing Denied April 7, 1971.

Sam F. Adam, Santo J. Volpe, Edward M. Genson, Charles O. Brizius, Chicago, Ill., for appellants.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Edward B. McDonough, Jr., Theo W. Pinson, III, Asst. U. S. Attys., Houston, for appellee.

Before RIVES, AINSWORTH and MORGAN, Circuit Judges.

RIVES, Circuit Judge:

Byron Hugh Johnson and Allan Golub, appellants, and one Darrell McDonald were indicted under 21 U.S.C. § 176a¹ on three counts. Count One charged conspiracy, from about October 11, 1968 to about November 6, 1968, to smuggle marihuana into the United States; Count Two charged the substantive act of smuggling; and Count Three charged that the defendants knowingly transported and facilitated the transportation of marihuana knowing it to have been imported into the United States contrary to law. McDonald was acquitted on all counts. Golub and Johnson were convicted on all counts, and sentenced to five years' imprisonment on each, the sentences to run concurrently.

Customs Agent Christopher testified that in early October 1968 an unnamed man informed him of overhearing a conversation in Provincetown, Massachusetts, between Johnson and another man, in which Johnson told this man that he was planning a trip to Mexico in his 1957 Chrysler station wagon in which he had built special compartments to transport marihuana. The informer also stated that the vehicle had Florida registration plates numbered 10 W 1813. Christopher's testimony was admitted over Johnson's objection, but the court instructed the jury that the testimony was admitted not for the truth of the informer's statements but only to show why the agents were on the lookout for Johnson. The Chrysler was later transported to Chicago and left in a garage for repair work.² Agent Christopher relayed the information from the informer to the border guards in Texas and a lookout for Johnson was maintained.³

The three defendants entered Mexico on October 28, 1968 and their tourist permits bore consecutive numbers. A hotel manager, Juan Jose Gonzalez Guajardo, identified McDonald and Johnson and testified that they arrived at his hotel in Matamoros, Mexico, at 9:55 P.M., November 5, 1968. He saw Johnson in a 1964 station wagon which he described as a Dodge. McDonald paid for a room for the two. Guajardo did not see who was driving the vehicle when the two men arrived and he never saw Golub. Guajardo wrote down the license number of the vehicle on the hotel registration. He saw Johnson the next morning but did not see McDonald or the vehicle.

Another manager at this hotel, Elroy Gonzalez Acebo, identified Johnson as a man he saw on the morning of November 6, 1968, coming out of the room which McDonald had rented. He identified a hotel record on which he had written the license number of the station wagon from a report made previously by the other manager.⁴

Johnson returned to the United States from Mexico by foot on November 7, 1968, approximately at 1:10 P.M. He was searched at the Brownsville customs office but no marihuana was found on him. Johnson was kept under observation by customs officials as he took a bus to San Antonio, Texas, and from there flew to New York and on to Boston. This flight was made on November 8, 1968. Johnson was arrested on November 15, 1968 in Chicago, when he went to the garage to pick up the 1957 Chrysler. He did not claim the vehicle or enter it prior to his arrest. The vehicle was seized; a search of the vehicle turned up butts of marihuana cigarettes and marihuana seeds and the existence of the secret compartments. The fruits of this search were admitted in evidence over objection.

Around midnight of November 5, 1968, about two hours after registering at the hotel, McDonald arrived at the Gateway Bridge inspection point in a Mexican taxi. Customs Inspector Charles Easley searched him and detected the odor of marihuana in a laundry bag, though no marihuana was found. McDonald had a Mexican car permit made out to Golub for a 1964 Plymouth. Easley testified that McDonald gave him conflicting stories about his visit to Mexico and about the vehicle. Easley contacted a Treasury Agent from the Bureau of Customs, E. T. Laurel, and Laurel placed McDonald under surveillance when he entered the United States in the taxi. Two other agents assisted in the surveillance.

While following the taxi, Agent Laurel noticed parked at a curb a cream-colored station wagon with an Illinois license plate which he recalled as bearing the same number which Easley had read to him from the Mexican car permit in McDonald's possession. Agent Laurel maintained surveillance on this vehicle while the other agents followed the taxi. The station wagon began following the taxi. Eventually, both vehicles stopped and McDonald got out of the taxi and into the station wagon. The agents continued to follow the station wagon for five miles. When it headed out of the city, they stopped it some seven to ten miles from the border. The vehicle and its occupants, McDonald and Golub, were returned to the checkpoint for a search. One hundred seven pounds of marihuana were found concealed in hidden compartments in the vehicle, and McDonald and Golub were placed under arrest.

I.

Johnson insists that the district court erred in allowing Agent Christopher to testify as to what an informer told him without requiring the government to reveal the name of the informer. The government argues that it is entitled to withhold the name of the informer based on the public policy of encouraging people to give information to the police. Scher v. United States, 1938, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151. The government's privilege to withhold the identity of an informer is subject to limitations. See Roviaro v. United States, 1957, 353 U.S. 53, 60-63, 77 S.Ct. 623, 1 L.Ed.2d 639; Firo v. United States, 5 Cir. 1965, 340 F.2d 597. However, we need not decide whether the privilege applied under the facts of this case, because we hold that, in any event, the statements of the informer were inadmissible and prejudicial hearsay.

The government argues that the testimony was not hearsay because it was introduced solely to show that the customs agents were on the lookout for Johnson, not to show the truth of what the informer said. That is the reasoning which the district court accepted, and instructed the jury accordingly. Realistically considered, that reasoning must fail.

The statements of the informer are the most substantial evidence the government has to establish Johnson's intent to enter into a conspiracy. Proof of an agreement to enter into a conspiracy is not to be lightly inferred. United States v. Aviles, 2 Cir. 1960, 274 F.2d 179; Evans v. United States, 9 Cir. 1958, 257 F.2d 121, cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99; United States v. Varelli, 7 Cir. 1969, 407 F.2d 735. If a conspiracy had been shown, there may have been sufficient proof to establish that it was put into execution. But our examination of the record leads us to the conclusion that the overt acts the government speaks of in its brief did not prove the existence of a conspiracy insofar as Johnson is concerned.

The distinction between using anonymous information corroborated by police investigation and the impermissible use of hearsay to establish the proof of an offense is illustrated by United States v. Catanzaro, 3 Cir. 1969, 407 F.2d 998. There, an entrapment defense was argued in a case charging that the accused had sold amphetamine tablets to a Food and Drug Inspector. An informer, by the name of Maskell, introduced the inspector to the accused. Hearsay testimony was introduced showing that Maskell had told the inspector that the accused was a seller of drugs. The Third Circuit reversed the conviction because the hearsay went to prove the predisposition on the part of the accused to make an illegal sale. The Court said, "Accordingly, when such evidence is inadmissible hearsay on the critical issue of predisposition, it may not be admitted into evidence because of its relevance on the inconsequential issue of probable cause." 407 F.2d 998, 1001. We agree with the reasoning of the court in Catanzaro and hold that the hearsay testimony was improperly admitted because it went to prove the intention of Johnson to participate in a conspiracy. The desire of the government to show the jury why its agents were on the lookout for Johnson can in no way justify the use of prejudicial hearsay.

The government next argues that the statements of the informer at most constituted harmless error under Fed.R. Crim.P. 52(a). Erroneous admission of evidence can often be corrected by appropriate jury instructions. Conner v. United States, 5 Cir. 1963, 322 F.2d 647. But before a constitutional error can be held harmless, the court must believe it harmless beyond a reasonable doubt. Chapman v. California, 1967, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705.

The statements of the informer related statements allegedly made by Johnson concerning his intention in connection with another person to bring marihuana into this Country. Under any standard the informer's statements were highly prejudicial to Johnson. They tended to establish the conspiracy and to prove Johnson's knowledge of and intention to be involved in a smuggling operation. Under the circumstances of this case, there is more than a substantial risk that the jury, despite instructions to the contrary, looked to the informer's statements in determining Johnson's guilt. See Bruton v. United States, 1968, 391 U.S. 123, 129, 130, 88 S.Ct. 1620, 20 L.Ed.2d 476.

There was no other substantial evidence to prove Johnson guilty. The record shows that he entered Mexico at approximately the same time as McDonald and...