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United States v. Calhoun

decided: January 24, 1975.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MITCHELL M. CALHOUN, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division - No. 73-129 CR H Allen Sharp, Judge.

Pell, Sprecher, and Barnes,*fn* Circuit Judges.

Author: Barnes

BARNES, Senior Circuit Judge.

This is an appeal from four judgments arising from four convictions by a jury on a six-count indictment. Counts I and II charged possession, with intent to distribute, of two different amounts of heroin, at two places at two times of day on January 18, 1973; Count III charged possession on the same date of marijuana with intent to distribute the same; Count IV charged defendant (a convicted felon) with giving a false statement on December 24, 1972 with respect to his previous conviction of a felony, in connection with the acquisition by him of two guns from Jack's Gun Shop, at Chesterton, Indiana; Count V charging the possession on January 18, 1973 by him as a previously convicted felon in Gary, Indiana, of a 30 caliber M-1 Carbine; and Count VI, charging the similar possession by defendant on January 18, 1973 of a Colt.223 caliber revolver. The two guns possessed with respect to Counts V and VI were acquired, as described in Count IV.

Appellant was found guilty on Counts I, IV, V and VI. The trial judge dismissed Count II at the end of the government's case, and the jury found defendant not guilty on Count III.

Appellant was sentenced to eight years on Count I, followed by special parole for 3 years; to 1 year on Counts V and VI, to be served consecutively to each other and to Count I. On Count IV, sentence was suspended and appellant placed on probation for five years, following the three sentences first mentioned.

Appellant urges reversal based on eight alleged errors. We will consider them in turn, defining the issues a little differently than either appellant or appellee.

I. Was defendant denied a speedy trial or "fundamental fairness" by the government?

II. Should defendant's motion to suppress evidence have been granted?

III. Was the court in error in its voir dire examination of the jury?

IV. Did the court abuse its discretion in refusing to permit two witnesses offered by defendant to testify; after the witnesses had violated the court's order excluding witnesses during the trial?

V. Should Counts V and VI of the indictment have been consolidated into one charge?

VI. Should Counts IV, V and VI have been dismissed for lack of a nexus with interstate commerce?

VII. Did the government deny proper discovery to defendant?

VIII. Did the trial court err when the bailiff, at the request of the judge, told the jury to continue their deliberations?

I. Right to a Speedy Trial.

Alleged errors I and II, supra, were raised in the court below by appellant's two motions to dismiss, one filed December 10, 1973, and the second filed January 15, 1974.

The first or "unfairness" charge against the government was the claim that defendant had been granted immunity from prosecution in return for his cooperation with the government. The court had an extensive evidentiary hearing on this claim, and concluded that the evidence produced by plaintiff "is insufficient to mandate the dismissal of the indictment" (C.T. -- Order of January 25, 1974). It was characterized as "not the formal immunity that may be granted to a person in order to induce them to testify," but an alleged "informal immunity . . . of a post-arrest promise not to prosecute the person arrested for the offense for which he was arrested."

Defendant had been arrested in 1972, and after that arrest, but prior to his 1973 arrest, he had traveled to Chicago with two government agents, and made some small identification of buildings that were somehow involved with the narcotic traffic.

Defendant stated he had been promised after the 1973 arrest by Agent Thompson of the Drugs Abuse Law Enforcement Agency [herein DALE] and Special United States Attorney Marinaccio, that he would not "get a case," apparently meaning that no case would be filed ...


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