United States v. James Wood Castleberry, United States of America v. Charles Monroe Gilpen

Defendants Castleberry and Gilpen, following a joint trial, were convicted of conspiracy to import ( 21 U.S.C. § 963 ), conspiracy to possess with intent to distribute ( 21 U.S.C. § 846 ), and possession of ( 21 U.S.C. § 841 (a)(1)) a controlled substance. All counts related to the same transaction. It is conceded that there was a conspiracy and that substantial quantities of marijuana were smuggled into the United States from Mexico.

Defendants claim that the evidence was insufficient to connect them with the conspiracy. It is probable that without the testimony of a coconspirator, Berry, the evidence is insufficient. Berry, however, identified Defendant Castleberry as one of the entrepreneurs and Defendant Gilpen as the owner of the plane used in the smuggling. There were many reasons why the jury might have rejected Berry’s testimony: At the time of this offense he was a convicted felon on parole; he had committed perjury in the trial leading to his prior conviction; he was impeached by prior contradictory statements; he had identified an innocent man as the pilot of the plane; he had been promised immunity for the crimes here involved; he was under the witness protection…

concurring specially:

In concurring with the court’s opinion, I feel it necessary to emphasize disapproval of the tactics employed by the prosecution in this case. The Government introduced what it had to know would be highly prejudicial testimony concerning threats against, the witness Berry. The prejudicial outfall from this particular kind of testimony may linger despite any cautionary instructions, the suspicion having been implanted in the jurors’ minds of connection between the defendants and their threatening coconspirators. The argument that this testimony was relevant to rehabilitate Berry is belied by the fact that it was elicited on direct examination, before the defense had had an opportunity to impeach him.

*1154 The Government no less than the court is duty-bound to seek and to serve justice. That obligation is ill-served in resorting to tactics of the sort portrayed here.

I have nonetheless joined the majority opinion because the evidence supporting conviction was substantial and the trial judge, with full knowledge of the posture of the case, gave instructions about the threats which on review I cannot conclude failed to repair the damage.

642 F.2d 1151 UNITED STATES of America, Plaintiff-Appellee, v. James Wood CASTLEBERRY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Monroe GILPEN, Defendant-Appellant. Nos. 80-1138, 80-1139. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 12, 1981. Decided March 23, 1981. 1 Tom O'Toole, Phoenix, Ariz., for Castleberry. 2 Arthur L. Rothenberg, Miami, Fla., for Gilpen. 3 Robert Abel, Sp. Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee. 4 Appeal from the United States District Court for the District of Arizona. 5 Before WALLACE and POOLE, Circuit Judges, and SMITH, * District judge. RUSSELL E. SMITH, District Judge: 6 Defendants Castleberry and Gilpen, following a joint trial, were convicted of conspiracy to import ( 21 U.S.C. § 963 ), conspiracy to possess with intent to distribute ( 21 U.S.C. § 846 ), and possession of ( 21 U.S.C. § 841 (a)(1)) a controlled substance. All counts related to the same transaction. It is conceded that there was a conspiracy and that substantial quantities of marijuana were smuggled into the United States from Mexico. 7 Defendants claim that the evidence was insufficient…