530 F2d 6 United States v. H Johnson

530 F.2d 6

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

No. 75--3309
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

April 16, 1976.
Rehearing and Rehearing En Banc
Denied May 12, 1976.

Robert Glass, New Orleans, La. (Court-appointed), for defendant-appellant.

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

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, GEWIN and MORGAN, Circuit Judges.


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After a trial by jury appellant Johnson was convicted on all six counts of an indictment charging him with securities fraud, mail fraud, and conspiracy. A key government witness at trial was one Parker. Parker pleaded guilty to one count of the indictment; the other charges against him were dismissed. After receiving a sentence more severe than he expected, Parker recanted his trial testimony. He filed a motion to withdraw his guilty plea and a hearing was conducted by the district court. As a result of his testimony at this hearing, an indictment charging Parker with eight counts of perjury was returned. Parker initially entered a plea of not guilty to the perjury counts. Pursuant to a plea bargain, however, Parker subsequently entered a plea of guilty to one count of perjury; the other counts were dismissed.


On the basis of Parker's recantation, appellant Johnson filed a motion for a new trial. The district court denied the motion. In United States v. Johnson, 487 F.2d 1318 (5th Cir. 1974), cert. denied, 419 U.S. 825, 95 S.Ct. 41, 42 L.Ed.2d 48 (1974) this court affirmed Johnson's conviction, but remanded the case to the district court for a hearing on two questions: (1) whether Parker presented perjured testimony at trial and (2) whether the government engaged in misconduct by failing to reveal a promise to Parker of a low sentence and, by instigating, encouraging or tolerating incorrect testimony of Parker.


After conducting a full evidentiary hearing the district court concluded that Johnson had failed to show either that Parker gave perjured testimony at his (Johnson's) trial or that the government engaged in misconduct. Parker testified, and the district court found, that his post trial recantation was a fabrication made in his zeal to free himself and that his trial testimony was truthful. Our review of the record convinces us that the district court's findings are correct. No error has been demonstrated.




Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I