Bunn v. United States

• Decision Date: 28 October 1958
• Docket Number: No. 15921,15922.,15921
• Parties: Alonzo Allen BUNN, Appellant, v. UNITED STATES of America, Appellee (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

260 F.2d 313 (1958)

Alonzo Allen BUNN, Appellant, v. UNITED STATES of America, Appellee (two cases).

Nos. 15921, 15922.

United States Court of Appeals Eighth Circuit.

October 28, 1958.

Arnold I. Feinberg, Minneapolis, Minn., for appellant.

Clifford Janes, Asst. U. S. Atty., St. Paul, Minn., for appellee.

Before SANBORN, WOODROUGH and VOGEL, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal in forma pauperis (submitted upon the original papers and the typewritten transcript of the evidence) from a judgment and sentence of twenty years' imprisonment entered November 12, 1957, based upon the verdicts of a jury finding Alonzo Allen Bunn guilty on each of ten counts of two indictments, both returned on September 7, 1957, and consolidated for trial. The first indictment charged Bunn alone with seven violations of the federal narcotics laws, three under 21 U.S.C.A. § 174, two under 26 U.S.C. § 4705, and two under 26 U.S.C. § 4704. The second indictment charged him and a co-defendant (who was given a separate trial) with three such offenses, one under 21 U.S.C.A. § 174, one under 26 U.S.C. § 4705, and one under 26 U.S.C. § 4704. Bunn entered a plea of not guilty to each indictment. Nine of the offenses charged against him were alleged to have been committed in July, 1957, and one in August. The trial commenced October 29, 1957.

Prior to the trial, Bunn had moved for a bill of particulars and for discovery. This motion was denied. At the commencement of the trial, Bunn asked that all Government witnesses be excluded from the courtroom except the witness being examined. The court ordered that the "special employee" or paid informer for the Government, the alleged purchaser of narcotics from Bunn, be excluded, but did not require the exclusion of other Government witnesses, who were a District Supervisor for the Federal Bureau of Narcotics, two agents for the Bureau, a Government chemist, and a Minneapolis Police Officer.

Several times during the trial, Bunn asked for a continuance upon the ground that the evidence produced by the Government was not previously known to him, and that he needed time to investigate and to prepare a defense against it. The motions for continuance were denied.

At the close of the evidence, Bunn made a motion for a directed verdict of acquittal. It was denied. The verdicts of the jury were returned November 4, 1957. On the same day, the United States Attorney filed an information against Bunn, charging that his conviction made him a second offender within the meaning of 21 U.S.C.A. § 174 and 26 U.S.C. § 7237. To the information, Bunn entered a plea of guilty. The court deferred sentence to November 12, 1957, and ordered a presentence investigation. On November 12, 1957, the court imposed on Bunn a single general sentence of twenty years' imprisonment on all counts of the two indictments. Thereafter the court denied a motion by the defendant for a new trial, based upon allegedly newly discovered evidence.

This is a typical narcotics case made by federal narcotics agents through the use of a paid Government informer or "special employee," who, according to the Government's evidence, was able to, and did, make the purchases of heroin upon which all counts of the two indictments (except the seventh count of the first indictment) were based. There was the usual prepurchase search of the informer by the agents, the furnishing of Government money to him, the keeping of him under observation while awaiting his contact with Bunn, the suspected peddler, the watching of the informer make contact with the peddler, the apparent passing from hand to hand of something between the parties, the handing by the informer to one of the agents of narcotics allegedly purchased by the informer from the peddler, and the post-purchase search of the informer by the agents, disclosing the absence of the money furnished him by them to make the purchase.

This case differs in no substantial respect from that of Affronti v. United States, 8 Cir., 145 F.2d 3, except that the evidence against Bunn is much stronger than was that against Affronti. Surely it is not necessary to repeat what was said in that case, and in other similar cases, about the sufficiency of such evidence to sustain a conviction. The theory that in a narcotics case the Government must prove its charges to a mathematical certainty and must use only informers of unquestioned integrity, is untenable.

The first count of the first indictment charged that Bunn, on or about the fifteenth day of July, 1957, in the city of Minneapolis, Minnesota, sold 3.35 grains of smuggled heroin to Wallace Giles, Jr. By § 174 of Title 21 U.S.C.A., such a sale is a crime, and if it constitutes a second or subsequent offense "the offender shall be imprisoned not less than ten or...