United States v. Williamson

• Decision Date: 13 July 1973
• Docket Number: No. 72-3633 Summary Calendar.,72-3633 Summary Calendar.
• Citation: 482 F.2d 508
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nolan Ray WILLIAMSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.2d 508 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Nolan Ray WILLIAMSON, Defendant-Appellant.

No. 72-3633 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

July 13, 1973.

COPYRIGHT MATERIAL OMITTED

Edward T. M. Garland, Atlanta, Ga., for defendant-appellant.

John W. Stokes, Jr., Atlanta, Ga., for plaintiff-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Nolan Ray Williamson was convicted of unlawful distribution of amphetamine capsules in violation of 21 U.S.C. § 841(a) and § 812, and of forcibly assaulting, resisting, impeding, intimidating or interfering with officers of the Bureau of Narcotics and Dangerous Drugs in violation of 18 U.S.C. § 111. We affirm the convictions on both counts.

Several days prior to the transaction from which the present charges arose, Agent Shumard of the Bureau of Narcotics and Dangerous Drugs contacted John Henry Glover, who, the agent had learned from a confidential source, was engaged in illicit distribution of amphetamines. After extended negotiations, Glover agreed to deliver 20,000 capsules in Atlanta to persons designated by Shumard. The time for delivery was delayed to accommodate Glover's source. On the evening set for the transfer, Glover checked into a motel in northeast Atlanta, where his room was placed under surveillance by a detail of federal and state narcotics agents under the direction of a federal agent. Several hours later Williamson arrived at the motel, carried a suitcase and a cardboard box into Glover's room and returned to his car in the motel parking lot where he sat with the motor running. Shortly thereafter Glover informed his contact that he was ready to make the transfer.

Two federal undercover agents went to Glover's room, where Glover delivered 500 bottles of amphetamine capsules to them. The agents then placed Glover under arrest, and notified agents outside of this action by radio transmitter. On the receipt of this signal, the surveillance detail moved to surround Williamson's automobile. Officer Davis, a state narcotics agent, displayed his identification and stated, "State officer, you're under arrest." Williamson then attempted to drive off. In the process, he struck Davis with his automobile and narrowly missed a car containing two other agents. Williamson's escape was blocked by another officer's automobile and he was taken into custody.

On appeal Williamson asserts the following grounds for reversal of his conviction: (1) denial of his motion for severance of trial on the two counts of the indictment; (2) failure of proof of a violation of 18 U.S.C. § 111, and inconsistency of the verdicts on the two alleged violations of § 111; (3) admission of prejudicial testimony and tangible evidence; (4) failure to give an entrapment instruction; and (5) the overall unfairness of the trial proceedings.

(1) Severance. Since the two offenses charged arose from a single transaction, there was clearly no misjoinder under F.R.Crim.P. 8(a).¹ Appellant contends, however, that the joinder of offenses resulted in sufficient prejudice to require severance under F. R.Crim.P. 14.² First, he suggests that joinder increased the possibility of conviction by allowing evidence on each charge to bolster that on the other. There is a recognized danger that in any prosecution involving more than one offense the jury may cumulate evidence which is unpersuasive on each of the various counts if considered separately to find guilt in sum. See, e. g., Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85, 88-89 (1964); United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939). However, in the present case separate trials would not have resulted in segregation of the evidence as to each offense. In a trial solely on the drug charge, the attempted exit from the parking lot and the resulting assault on the agent would have been admissible as evidence of flight. On the other hand, in a trial on the assault charge, the evidence of the drug transaction would have been admissible to prove motive and to prove that the officers were engaged in the performance of their official duties. Therefore, insofar as segregation of evidence is concerned, the failure to sever resulted in no prejudice to the Appellant. See, e. g., Robinson v. United States, 148 U.S. App.D.C. 58, 459 F.2d 847, 854-860 (1972). Furthermore, the Court gave clear instructions that the evidence on each count was to be considered separately in determining guilt. See United States v. Hatcher, 423 F.2d 1086, 1089-1090 (5th Cir., 1970). Thus Appellant's argument for severance based on possible cumulation of evidence is without merit.

Williamson also contends that denial of severance complicated his defense strategy, since joinder made it impossible for him to testify in his own behalf on the assault charge without being subject to cross-examination about his participation in the drug transaction. In a leading case, Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987 (1964), the District of Columbia Circuit held that severance under Rule 14 was required where the accused wished to testify in his own defense on only one of two joined offenses which were clearly distinct in time, place, and evidence. Cross does not hold that severance is mandatory in any case where the defendant indicates he wishes to testify on some charges and to remain silent on others. Severance for this reason, as for any other, remains in the sound discretion of the trial court and no abuse of discretion may be found to exist unless the defendant can convincingly demonstrate that a genuine prejudice to his trial strategy outweighed considerations of judicial economy in proceeding with a single trial. Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958, 976-978 (1968).³

At trial, Williamson elected to take the stand to explain that his decision to drive away from the scene arose from a fear that he was being robbed by what he believed to be a band of shabbily dressed hippies. Under cross-examination, he vigorously and consistently denied involvement or knowledge of the drug transaction.⁴ While the guilty verdict indicates the jury did not believe Williamson's denial, there is no support in the record for his contention that his conviction on the drug charge was made more likely by the fact he took the stand to explain his actions which led to the assault on the officer. In the absence of any evidence of substantial prejudice, we find no error, much less any abuse of discretion, in the denial of severance of trial on the two counts.

(2) Conviction for violation of 18 U.S.C. § 111. It is undisputed that during his attempted flight Williamson struck state narcotics officer Davis with his automobile knocking Davis to the pavement. Since Davis was acting in cooperation with and under control of federal officers, in effecting an arrest for violation of the federal drug laws, assault against him was within the coverage of § 111. United States v. Heliczer, 373 F.2d 241, 249 (2nd Cir.), cert. denied 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967); United States v. Chunn, 347 F.2d 717, 721 (4th Cir.1965). Williamson contends his conduct did not constitute a violation of § 111 since he had no actual knowledge of the federally protected status of the arresting officers. He points out that the strongest proof that he knew the person struck was an official was Agent Davis' testimony that he identified himself as a "state officer" when he first approached Williamson's automobile. Thus Williamson reasons that the jury had to find that he was initially unaware that Davis was acting in concert with federal authorities. However, as a series of recent decisions of this court have made clear, provided that the evidence is sufficient to establish the defendant's unlawful intention to resist or impede law enforcement officials,⁵ knowledge of the official federal capacity of the person assaulted is unnecessary for conviction under § 111. United States v. Marcello, 423 F.2d 993, 1010 (5th Cir.), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970); United States v. Davis, 423 F.2d 974, 975, n. 1 (5th Cir.), cert. denied 400 U.S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69 (1970); Burke v. United States, 400 F.2d 866 (5th Cir.1968), cert. denied 395 U.S. 919, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969); Pipes v. United States, 399 F.2d 471 (5th Cir.1968), cert. denied 394 U.S. 934, 89 S.Ct. 1207, 22 L.Ed.2d 464 (1969); Bennett v. United States, 285 F.2d 567, 570-571 (5th Cir.1960), cert. denied 366 U.S. 911, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961).

Williamson additionally argues that the jury's verdict of acquittal on the charge of assault with a deadly or dangerous weapon, 18 U.S.C. § 111 ¶ ii, precluded a conviction on the lesser included offense of assault, 18 U.S.C. § 111 ¶ i, since the acquittal on the former charge necessarily indicated that the jury had found his conduct justified. Cf. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The indictment charged Williamson with assaulting federal officers both with an automobile and with a .41 magnum revolver.⁶ The jury was instructed that the revolver was as a matter of law a dangerous weapon and that the automobile may or may not have been a dangerous weapon depending upon the circumstances. The acquittal on the dangerous weapon charge and conviction on the lesser offense indicates that the jury found that Williamson did not commit an assault with the revolver and that, while he did assault an officer with his automobile, the vehicle was not at the time a dangerous weapon. Thus there was no inconsistency between the verdicts and no application of collateral estoppel is required.

(3) Alleged testimonial and evidentiary errors. The government's lead witness, Agent Shumard, testified to the content of a series of telephone conversations between himself and ...