Shepherd v. United States, 12783

• Decision Date: 18 October 1956
• Docket Number: 12843.,No. 12783,12842,12783
• Citation: 244 F.2d 750,100 US App. DC 302
• Parties: Arthur R. SHEPHERD, Appellant, v. UNITED STATES of America, Appellee. William MILLER, Appellant, v. UNITED STATES of America, Appellee. Bessie BYRD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 US App. DC 302, 244 F.2d 750 (1956)

Arthur R. SHEPHERD, Appellant, v. UNITED STATES of America, Appellee.

William MILLER, Appellant, v. UNITED STATES of America, Appellee.

Bessie BYRD, Appellant, v. UNITED STATES of America, Appellee.

Nos. 12783, 12842, 12843.

United States Court of Appeals District of Columbia Circuit.

Argued June 21, 1956.

Decided October 18, 1956.

Petition for Rehearing Denied December 3, 1956.

Writ of Certiorari Granted May 13, 1957.

COPYRIGHT MATERIAL OMITTED

Mr. D. A. St. Angelo, Washington, D. C. (appointed by this Court), with whom Mr. Garner J. Cline, Washington, D. C., was on the brief, for appellants.

Mr. Fred L. McIntyre, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll and Alexander L. Stevas, Asst. U. S. Attys., were on the brief, for appellee. Mr. Leo A. Rover, U. S. Atty., at the time record was filed, also entered an appearance for appellee.

Before EDGERTON, Chief Judge, and WILBUR K. MILLER and DANAHER, Circuit Judges.

Petition for Rehearing In Banc Denied December 3, 1956.

Writ of Certiorari Granted May 13, 1957. See 77 S.Ct. 867.

DANAHER, Circuit Judge.

A first count charged Shepherd, Bessie Byrd and William Miller with conspiracy to violate the narcotics laws, and all were convicted. Shepherd also was charged with the purchase and distribution of 100 capsules of heroin and with facilitating the concealment and sale of the same. The jury found him guilty on all three counts, and he appeals, his argument suggesting that evidence of conspiracy was insufficient, that he was entrapped, and that officers lacked probable cause to stop a taxicab in which he was riding, to arrest him and incidentally to the arrest, to recover from the cab the 100 capsules of heroin as mentioned.

After the arrest of Shepherd, the officers, having found the 100 capsules of heroin, immediately went back to the apartment occupied by Mrs. Byrd and Miller, and, a few minutes later, knocked on the door and announced their identity. Thereupon Miller, known to the officers as a narcotics violator, having opened his door part way, recognized the officers of the narcotics squad and attempted to close the door. As he pulled the door to, the officers resisted his effort to close it, a chain bolt broke, and the officers arrested Miller and Mrs. Byrd. The latter produced some $700 in bills from her housecoat pocket, among which were $34 in marked bills. The further sum of $66 in marked bills which Shepherd had turned in for the heroin, was found in the bedclothing. In the two-room apartment also were found empty capsules and envelopes, and across the hall, in a furnace room, were 381 capsules of heroin, 1,000 empty capsules, a supply of envelopes and paraphernalia for "cutting" or diluting heroin with milk sugar. Two counts, dealing with the items found in the furnace room were dismissed, as Judge Youngdahl decided the Government had not sufficiently proved possession of the furnace room and its contents to be attributable to Mrs. Byrd and Miller. However, the jury found them guilty with Shepherd on the conspiracy count as well as on two substantive counts, one of sale, and the other of facilitating the sale and concealment of heroin. They urge that evidence of conspiracy was insufficient, that the trial judge erred in instructing the jury as to "aiding and abetting," that the prosecutor indulged in prejudicial argument, and that the court erred in denying their motion to suppress the use in evidence of the marked money found in the Byrd-Miller apartment.

First, as to Shepherd, there was no entrapment in the sense that a criminal design, created by government officers, resulted in implanting in the mind of an innocent person, the disposition to commit an offense which was thus induced that prosecution might follow. Rather, the case comes squarely within the rule which is "well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and strategem may be employed to catch those engaged in criminal enterprises."¹ Shepherd was a "contact" man or runner for Byrd and Miller, making outside sales from a source controlled by the other two appellants who received the proceeds of the sales so effectuated.

After Shepherd's arrest, he was brought back to the Miller-Byrd apartment, where he informed Miller "Blue,² it wasn't me that turned you around." Although only 17 years of age at the time, Shepherd was already steeped in the code of the underworld after a pattern familiar to the courts, as that remark, coupled with his other conversations with the police clearly showed. That he was linked to the whole nefarious enterprise cannot be doubted.

Again, as to Shepherd, there was no possible question as to probable cause. Officers with a warrant for the arrest of one Reed, an addict, had apprehended Reed at 1:35 A.M. on March 25, 1955. Taken to headquarters and questioned as to his source of supply, Reed disclosed the name of Shepherd, not previously known to the officers, as one who on occasion had purveyed to him narcotics in 100 capsule lots, at $1 per capsule, he said. Shepherd picked up such narcotics from "Blue" Miller in Apt. #1 at 1337 Columbia Road, N.W., in the District of Columbia, he added. He agreed to join a trainee agent named Lewis in arranging for such a purchase, and $100 in marked bills were supplied for the purpose. Reed and Lewis in a cab, trailed by officers, went to 617 M Street where "Blue" Miller's mother lived and where Reed said Shepherd could be located. Reed entered 617 M Street and soon returned with Shepherd who joined Lewis and Reed. The cab then went to Reed's home. It had been prearranged that if Lewis and Reed left the cab at Reed's home, the trailing officers were to understand that Shepherd had received the $100 in marked bills and had gone on alone to his source of supply. The officers, alerted by the enactment of this signal, followed the cab in which Shepherd was a passenger, directly to 1337 Columbia Road, N.W. Shepherd went into the basement entrance. Agent Wilson followed him down to the lighted hallway, saw two doorways opening off the hall, one leading to a furnace room across the hall from the entrance to apartment # 1, and noted Shepherd had disappeared. Retracing his steps, Agent Wilson took up watch from across the street and saw a light appear for a short time in the furnace room, after which the light was turned off and Shepherd reappeared. He reentered his waiting cab which proceeded a short distance only to be stopped by Officer Wurms who directed a flashlight into the driver's face. Taxi driver Hoban testified he then said "This must be the police," or some such statement, whereupon he got out. As he opened the cab door, its dome light came on. Shepherd, on notice by the driver's remark if not otherwise, was seen to place a package under the front seat where he was riding. His door was opened then, an officer reached in, found a manila envelope containing 100 capsules which on field test reacted to disclose the presence of narcotics. Shepherd then was searched, the $100 which had been given to him by Lewis and Reed were not found, and Shepherd said he had picked up the narcotics from behind a fire extinguisher in the basement hallway at 1337 Columbia Road.

That these facts spelled out probable cause to arrest Shepherd cannot be doubted. Shepherd did not deny one iota of the testimony which established the commission of the offense in the presence of the officers. His own statement putting him in the very place where the information of the officers attributable to Reed indicated he would go, together with what the officers had observed and the plan which was in process under their surveillance, brought the case squarely within the Court's ruling in the Scher case,³ and our own Shettel case.⁴

Moreover, viewing the case as a whole, neither Shepherd nor his co-accused were helped when the only defense testimony identified him as a brother of Mrs. Byrd who admitted Shepherd to the apartment that morning. Both Miller and Mrs. Byrd denied to the officers that Shepherd had been at their apartment, but at the trial, a different version developed The only defense witness, Octavia Walker, said she and another woman and Mrs. Byrd, sometime after 1 A.M. went to a night club for drinks. Returning after 2 A.M. to the Byrd-Miller apartment, she said Miller was asleep, and the three women went into the kitchen to fix a "snack." About 2:30 A.M. Shepherd appeared, came into the kitchen and handed his sister $100 for "safe-keeping," saying it was money he had won gambling. After a brief stay, Shepherd left. Shepherd, even by the defense had definitely been placed in the apartment with Miller and Mrs. Byrd and with $100 which he left there. Perhaps neither judge nor jury believed he won the money gambling.

There is no substance to the claimed errors with reference to the conspiracy or the instruction as to "aiding and abetting." There was no merger of the substantive offenses, indeed, they were separate and distinct, while the general agreement among the appellants was clearly deducible from the evidence and could be deemed to be continuous and persisting.⁵

Nor is there merit to the claim that the argument by Government counsel so prejudiced the appellants that a fair trial was denied. Not only was there a current failure then to object, but upon review we are satisfied there was no error.⁶

What has been or will be said as to the facts will make clear that there is only one question in this case. Miller and Mrs. Byrd in advance of trial moved to suppress the use of the marked money, claiming it had been illegally seized. The seizure in turn depends upon the validity of their arrest. The supporting affidavit offered by these two appellants recited in part:

"That at about four (4) o\'clock, A.M., on the morning

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