United States v. James Allen Posey, A/K/A James D. Johnstone

Fifth Circuit

United States v. James Allen Posey, A/K/A James D. Johnstone

611 F.2d 1389, 1980 U.S. App. LEXIS 20311, 5 Fed. R. Serv. 771

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 21, 1980

Docket79-5223

StatusPublished

Cited by18 cases

This text of 611 F.2d 1389 (United States v. James Allen Posey, A/K/A James D. Johnstone) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. James Allen Posey, A/K/A James D. Johnstone, 611 F.2d 1389, 1980 U.S. App. LEXIS 20311, 5 Fed. R. Serv. 771 (5th Cir. 1980).

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Opinion

GODBOLD, Circuit Judge:

This is a companion case to U. S. v. Edmonds, et al., 611 F.2d 1386, decided this same day. Appellant Posey was tried separately from the Edmonds defendants and convicted.

For the reasons set out in Edmonds, Posey’s Fourth Amendment contentions and his challenges to the grand and petit jury selection process are without merit.

The trial court did not err in admitting into evidence an incriminating statement made by Posey on the night of his arrest, which Posey asserts was given during plea bargaining. See Fed.R.Evid. 410; Fed.R.Crim.P. 11(e)(6).

Under U. S. v. Robertson, 582 F.2d 1356 (5th Cir. 1978) (en banc), we held that a defendant’s statement is inadmissible on the ground given during plea bargaining only if he “exhibited an actual subjective expectation to negotiate a plea at the time of the discussion” and the “expectation was reasonable given the totality of objective circumstances.” Id. at 1366 (citations omitted). After being fully advised of his Miranda rights Posey told Rayner he would like to “cut a deal,” to “make some kind of negotiated settlement” with the district court. Rayner told Posey that the only thing he could promise him was that he would bring his cooperation to the attention of the United States Attorney’s office and of the court. Assuming but without deciding that Posey exhibited sufficient subjective expectation to negotiate a plea to meet the first prong of Robertson, he did not meet the second prong. Rayner’s statement that he would bring Posey’s cooperation to the attention of the prosecutor and the court did not give Posey a reasonable *1391 expectation that he was negotiating a bargain. Rather it is the antithesis of a bargained plea.

The trial court admitted testimony that on his way to jail Posey offered a county sheriff $100,000 to let him out of the car. This attempt to bribe a government official in order to escape shortly after arrest was clearly admissible as evidence of guilt. Fed.R.Evid. 404(b); U. S. v. Picarelli, 148 F.2d 997, 998 (2d Cir.), cert. denied, 326 U.S. 722, 66 S.Ct. 27, 90 L.Ed. 427 (1945); cf. U. S. v. Veltre, 591 F.2d 347, 350 (5th Cir. 1979); U. S. v. Ballard, 423 F.2d 127, 133 (5th Cir. 1970) (evidence of actual escape).

AFFIRMED.

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GODBOLD, Circuit Judge:

This is a companion case to U. S. v. Edmonds, et al., 611 F.2d 1386, decided this same day. Appellant Posey was tried separately from the Edmonds defendants and convicted.

For the reasons set out in Edmonds, Posey’s Fourth Amendment contentions and his challenges to the grand and petit jury selection process are without merit.

The trial court did not err in admitting into evidence an incriminating statement made by Posey on the night of his arrest, which Posey asserts was given during plea bargaining. See Fed.R.Evid. 410; Fed.R.Crim.P. 11(e)(6).

Under U. S. v. Robertson, 582 F.2d 1356 (5th Cir. 1978) (en banc), we held that a defendant’s statement is inadmissible on the ground given during plea bargaining only if he “exhibited an actual subjective expectation to negotiate a plea at the time of the discussion” and the “expectation was reasonable given the totality of objective circumstances.” Id. at 1366 (citations omitted). After being fully advised of his Miranda rights Posey told Rayner he would like to “cut a deal,” to “make some kind of negotiated settlement” with the district court. Rayner told Posey that the only thing he could promise him was that he would bring his cooperation to the attention of the United States Attorney’s office and of the court. Assuming but without deciding that Posey exhibited sufficient subjective expectation to negotiate a plea to meet the first prong of Robertson, he did not meet the second prong. Rayner’s statement that he would bring Posey’s cooperation to the attention of the prosecutor and the court did not give Posey a reasonable *1391 expectation that he was negotiating a bargain. Rather it is the antithesis of a bargained plea.

The trial court admitted testimony that on his way to jail Posey offered a county sheriff $100,000 to let him out of the car. This attempt to bribe a government official in order to escape shortly after arrest was clearly admissible as evidence of guilt. Fed.R.Evid. 404(b); U. S. v. Picarelli, 148 F.2d 997, 998 (2d Cir.), cert. denied, 326 U.S. 722, 66 S.Ct. 27, 90 L.Ed. 427 (1945); cf. U. S. v. Veltre, 591 F.2d 347, 350 (5th Cir. 1979); U. S. v. Ballard, 423 F.2d 127, 133 (5th Cir. 1970) (evidence of actual escape).

AFFIRMED.

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611 F.2d 1389, 1980 U.S. App. LEXIS 20311, 5 Fed. R. Serv. 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-allen-posey-aka-james-d-johnstone-ca5-1980.

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