United States v. Johnson

• Decision Date: 20 February 1974
• Docket Number: No. 73-1225.,73-1225.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter H. JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 1318 (1974)

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

No. 73-1225.

United States Court of Appeals, Fifth Circuit.

January 11, 1974.

Rehearing Denied February 20, 1974.

COPYRIGHT MATERIAL OMITTED

Cecil M. Burglass, Jr., F. Irvin Dymond, New Orleans, La., for defendant-appellant.

Donald E. Walter, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.

Before TUTTLE, BELL and GOLDBERG, Circuit Judges.

BELL, Circuit Judge:

The result of this disjointed and to some extent obfuscated appeal is an affirmance in part and a remand in part for determinations on two matters. The first is whether a key prosecution witness' post-trial deposition warrants a new trial on grounds of newly discovered evidence. The second is whether prosecutorial misconduct suggested by the deposition actually occurred, and if so whether it accords appellant the right to a new trial.

In a jury trial, appellant was found guilty of mail and securities fraud¹ in his activities as principal salesman of the promissory notes of Professional Service Corporation (P.S.C.).² It is largely uncontroverted that he sold some $4 million of these securities over an eleven-year period, that he received over $750,000 for his efforts, and that he made grossly erroneous representations to potential investors. His primary defense was that he lacked the requisite scienter, in that he was unaware of P.S.C.'s insolvent and profitless condition. This defense was attacked most directly by Parker, a co-defendant turned government witness, who testified to appellant's familiarity with P.S.C's finances and to his knowing participation in the production of fraudulent sales literature. In August, 1972, five months after the trial, Parker recanted³ his testimony, claiming that he had perjured himself under the "programming" of government agents, and that he had done so in order to preserve a plea bargain relieving him of all but one count of his own six-count indictment. Appellant then filed a motion for judgment of acquittal, and supplemented an earlier motion for a new trial. On September 1, 1972, the trial court denied each motion and imposed sentence. In February, 1973, some five months after this appeal was filed, appellant filed three additional motions, for a new trial, to vacate judgment, and to recuse the trial judge from consideration of these motions. The grounds asserted were that Parker had been indicted for perjury and that the judge had displayed prejudice. These motions also were denied and appellant's brief incorporates his appeal from their denial into this appeal from the original post-trial rulings.

I.

We will initially dispose of the three motions filed in 1973. When a case is on appeal the trial court has no jurisdiction to entertain such motions. United States v. Warren, 2 Cir., 1972, 453 F.2d 738, 744; United States v. Brown, 2 Cir., 1964, 335 F.2d 170; Rule 33, F.R.Crim.P. Thus the trial court's order denying these motions must be vacated.

The proper procedure for obtaining judicial consideration of post-appeal motions is to move that the circuit court remand for good cause shown. Cf. Beckwith v. United States, 10 Cir., 1966, 367 F.2d 458, 461. In order to prevent repetitive rulings, we have treated the post-appeal motions as directed to this court in accordance with accepted procedure. We find that they raise no grounds for post-trial relief that were not raised in the original post-trial motions.⁴ Thus they are wholly insufficient to justify remand for further trial court consideration. Cf. Horne v. United States, 4 Cir., 1931, 51 F.2d 66.

II.

As for the original post-trial motions, the motion for judgment of acquittal was not timely filed. See Rule 29(c), F.R.Crim.P. Thus on remand the district court should vacate its order and dismiss the motion for want of jurisdiction.⁵ See Rowlette v. United States, 10 Cir., 1968, 392 F.2d 437, 439.

The trial court's denial of the original motions for new trial is properly before this court. We will first deal with three issues raised in the motion filed shortly after the jury verdict. We will then consider the more difficult issues raised by the subsequent motion based on the newly discovered evidence contained in Parker's recantation.

Appellant contends his right to counsel was violated by arraignment without counsel. This contention is without merit. The arraignment was a perfunctory proceeding at which the judge entered an automatic plea of not guilty as to all defendants and allowed sixty days for further pleadings. Appellant was offered appointed counsel but declined the offer because he wished to retain a lawyer on his own. In addition, appellant was accompanied at arraignment by his brother, a lawyer. Finally, no objection to the arraignment procedure was made until almost two years later, after trial had commenced.

Appellant also contends that the prosecution deliberately suppressed certain documentary evidence tending to impeach Parker's credibility. Involved are four checks, payable to appellant, on which Parker had forged appellant's endorsement. This contention is without merit for several reasons. First, nothing suggests the government was responsible for the checks being unavailable—they were somewhere among several truckloads of documents involved in P.S.C.'s bankruptcy proceedings; while known to appellant throughout the criminal proceedings, he did not subpoena them until after the trial commenced. Second, appellant was not harmed by his inability to introduce the checks into evidence, inasmuch as Parker admitted before the jury that he had made such forged endorsements (he explained that he had done so with appellant's permission).

The final point on appeal from the initial motion for new trial concerns the trial judge's participation by way of anecdotes, rambling stories and questioning of witnesses. The only specific incident discussed in appellant's brief concerns the judge's analogy to a case tried by his father in which a former Louisiana governor, Richard Leche, was convicted of mail fraud. While we do not endorse this potentially prejudicial method of explaining the law to a jury, we note that the matter arose in the limited context of the nature of the intent to use the mails required by the mail fraud statutes—a matter as to which there was no factual dispute in this case. The trial judge did not otherwise suggest that appellant's case was like Leche's and we cannot conclude that denial of the motion for new trial was an abuse of the trial court's discretion.

Appended to appellant's brief is an affidavit in which his trial attorney lists other rambling anecdotes, and also charges the trial judge with visible bias and improper participation in the questioning of witnesses. Since this affidavit is not part of the record, and since it is argumentative and conclusory, we will treat it not as factual material but as part of the brief. Dispite its charges of bias and prejudice, nowhere does it direct us to specific points in the record where the trial judge behaved improperly, where objections to his comments were made, or where objections were made to omissions by the court reporter of the judge's comments. Noting further that the charge to the jury was entirely correct and unbiased, and that it clearly delineated the judge's role in the fact-finding process, we conclude that denial of the motion for new trial on these grounds was not erroneous.

III.

Appellant's primary attack on his conviction is contained in the supplement to his original motion for new trial. It is based on Parker's testimony and subsequent recantation, and on the prosecution's conduct with regard to that testimony. We understand his claim to be two-fold: first, that the new evidence created by the recantation justifies a new trial; and second, that a similar result should follow from each of three instances of possible prosecutorial misconduct, two alleged in Parker's recantation, and the other apparent on the face of the record. Before turning to the recantation, we will consider the last-mentioned instance of questionable conduct. To do so it is necessary to more fully develop the facts involved.

Parker was the primary promoter of P.S.C., and had been indicted on six counts of mail and securities fraud. Shortly before trial he agreed to plead guilty to one count with the understanding that the remaining counts would be dropped if he testified fully and truthfully against the other defendants. So far as was revealed at trial, no promises whatsoever were made as to his sentence, and he correctly understood the maximum to be 5 years and a $10,000 fine.

After his damaging direct testimony, Parker was subjected to several days of intense cross-examination by attorneys for appellant and his co-defendant. One attack on Parker's credibility focused on whether he was motivated by a government promise of favorable treatment. The following occurred:

MR. DYMOND: Attorney for appellant\'s co-defendant: "Mr. Parker, am I correct in understanding—you are sitting there under oath now—you are telling me you have no understanding as to the intended dismissal by the Government of the first five counts of this indictment against you?

MR. PARKER: "I am telling you I have no deal with the Government. I pleaded guilty to a count that carries a five year prison term and $10,000 fine."

MR. DYMOND: "Have you been led to believe by anybody that the remaining counts are going to be dismissed against you?"

MR. PARKER: "I been led by nobody about anything."

MR. DYMOND: "If you don\'t know what is going to happen to those other five counts, what are you doing testifying?"

MR. PARKER: "My attorney advised me to do this and I did it exactly as he advised me."

MR. DYMOND: "You wouldn\'t say you are doing this through a sense of rightousness?"

MR. PARKER: "I did it because my attorney advised me to do it as I testified before."

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