Williams v. United States

• Decision Date: 01 February 1960
• Docket Number: No. 16256.,16256.
• Citation: 273 F.2d 781
• Parties: Ruth Johnson WILLIAMS and Fred Cook, Jr., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

273 F.2d 781 (1959)

Ruth Johnson WILLIAMS and Fred Cook, Jr., Appellants, v. UNITED STATES of America, Appellee.

No. 16256.

United States Court of Appeals Ninth Circuit.

December 21, 1959.

Rehearing Denied February 1, 1960.

COPYRIGHT MATERIAL OMITTED

William H. Neblett, E. W. Miller, Los Angeles, Cal., for appellants.

Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal. for appellee.

Before HAMLIN and JERTBERG, Circuit Judges, and LINDBERG, District Judge.

JERTBERG, Circuit Judge.

This is an appeal by Ruth Johnson Williams, hereinafter referred to as Mrs. Williams or appellant, and Fred Cook, Jr., hereinafter referred to as Cook or appellant, from judgments imposing fines and imprisonment upon them following a jury verdict which found them guilty of violating federal narcotics laws, and guilty of conspiracy to violate such laws.¹

Jurisdiction of the district court was based upon Title 21 U.S.C.A. § 174, Title 18 U.S.C.A. § 371, and Title 18 U.S.C.A. § 3231. This Court has jurisdiction under Title 28 U.S.C.A. §§ 1291 and 1294 (1).

History of Proceedings

On February 24, 1958, a United States Commissioner issued a search warrant to a narcotics agent authorizing a search of 5417½ South Wilton.

On February 24, 1958, at approximately 3:00 o'clock p. m. the premises located at 5417½ South Wilton, in the City of Los Angeles, State of California, were searched. Certain articles were seized, and the appellants arrested. They were booked at the Los Angeles county jail at about 8:00 o'clock p. m. of that day. Warrants of arrest were issued by the United States Commissioner on February 25, 1958, and appellants were arraigned on charges of violating the federal narcotics laws.

On March 12, 1958 the federal grand jury in and for the Southern District of California returned an eight-count indictment against appellants, Eddie Jewel Bryant and Juanita Smith, charging in substance as follows:

Count one: On February 14, 1958, Bryant sold 403 grains of heroin to Justin Burley;

Count two: On February 17, 1958, Smith and Bryant sold 303 grains of heroin to Justin Burley;

Count three: On February 17, 1958, Smith received, concealed, and facilitated the transportation of 303 grains of heroin;

Count four: On February 21, 1958, Bryant received, concealed, and facilitated the transportation of 390 grains of heroin;

Count five: On February 24, 1958, appellants and Bryant sold 2 ounces, 339 grains of heroin to Justin Burley;

Count six: On February 24, 1958, appellants and Bryant received, concealed, and facilitated the transportation of 2 ounces, 339 grains of heroin;

Count seven: On February 24, 1958, Mrs. Williams received, concealed, and facilitated the concealment of 3 ounces, 404 grains of heroin;

Count eight: Beginning on February 14, 1958, and continuing to date of the indictment, appellants, Smith and Bryant conspired to sell, receive, conceal, and facilitate the transportation and concealment of heroin; overt acts duplicating Counts One, Three, Six, and Seven were set forth in the indictment.

On April 21, 1958, the four persons indicted pleaded not guilty to each and every count of the indictment. Prior to such time Mrs. Williams filed a motion to suppress the property seized on February 24, 1958, on the grounds that the search warrant was unlawful and in violation of Rule 41 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Following the taking of testimony, the district court held that the search warrant was void on its face. He further held that the arrest of Mrs. Williams was valid as having been made on probable cause and, therefore, that the property seized was in the lawful possession of the appellee because it was obtained by lawful search and seizure incident to a valid arrest.

On May 28, 1958, the jury returned verdicts which found:

1. Mrs. Williams guilty on all counts charged: Five, Six, Seven and Eight.

2. Cook guilty on all counts charged: Five, Six, and Eight.

3. Defendant Bryant guilty on all counts charged: One, Two, Four, Five, Six and Eight.

4. Defendant Smith not guilty on any count charged: Two, Three and Eight.

Motions of appellants for judgments of acquittal, or in the alternative for a new trial, were denied. Prior to sentencing the government filed an information alleging that Mrs. Williams had suffered a prior federal narcotics conviction, the truth of which was admitted by Mrs. Williams on arraignment.

The trial judge committed Mrs. Williams to custody for imprisonment for a period of ten years and to pay a fine in the sum of $5,000 on each of the counts five, six and seven, and to imprisonment for a period of five years on count eight. All sentences were to begin and run concurrently, and the payment of the sum of $5,000 would satisfy and discharge the fines on all counts. The trial judge committed Fred Cook, Jr. to custody for imprisonment for a period of five years on each of counts five, six and eight, sentences to begin and run concurrently with each other.

Appeals from said judgments to this Court were timely filed.

Statement of the Case

On February 24, 1958, at approximately 3:00 o'clock in the afternoon, a group of five law enforcement officers, two of them federal² and three of them state,³ arrived at the home of Mrs. Williams in Los Angeles. They were armed with the search warrant which had been obtained on the morning of the same day. They were without a warrant for her arrest.

One of the officers knocked at the door of Mrs. Williams' home, and hearing no response from within, entered the house through the shut but unlocked door. The officers met Mrs. Williams in the house. She had apparently just arisen from a nap. At this point one of the state officers placed Mrs. Williams under arrest for violation of the federal narcotics laws. The search warrant was then exhibited to her, and a thorough search of the premises was made. Outside of the home, in the trash and garbage area, 3 ounces, 404 grains of heroin were discovered, in four small brown envelopes, which were taken from a trash can. Possession of this heroin constituted the crime charged in count seven. Meanwhile on the ground floor of Mrs. Williams' home, Cook a nephew of Mrs. Williams was found. He was also placed under arrest for violation of the federal narcotics laws. In addition to the heroin, the officers took $15.00 in marked money from Mrs. Williams' purse, which money allegedly was received from the sale of heroin on the morning of the arrest, which sale allegedly took place between Deputy Burley and the defendant Bryant. This sale constituted the crimes charged in counts five and six. This money had been dusted with a fluorescent powder prior to the alleged sale. Under an ultraviolet light used by the officers in the search, the following items fluoresced: the coffee table, the telephone, the clasp of Mrs. Williams' purse, Mrs. Williams' fingertips, Cook's fingertips, and the inside of a coat pocket. In addition to the marked currency and the heroin, other items of property were taken on the search.⁴

Following the search, appellants were taken from the home of Mrs. Williams to the Federal Narcotics office located in the Federal Building in downtown Los Angeles, where they arrived about 6:00 p. m. They were not taken before the United States Commissioner until the next morning. Appellants were kept in the Federal Narcotics office for two or three hours and both were questioned separately by the officers. Mrs. Williams maintained her innocence of the charges, but Cook after questioning signed a statement, which was typed by one of the officers, which was in question and answer form, in which he confessed to his complicity in the trafficking in narcotics. After the questioning of appellants they were booked at the Los Angeles County jail. There was no further contact between the officers and the appellants until their arraignment before the United States Commissioner on the following morning.

The following statement of events and their sequence leading up to the arrest of the appellants has been taken largely from the appellee's brief, and is not controverted in the reply brief of appellants, and is supported by the record.

In the latter part of January, 1958, or the early part of February, 1958, a confidential informant, Jesse Thomas, advised the narcotics officers that Ruth Williams was selling narcotics out of 5417½ South Wilton Place, Los Angeles, and was a source of heroin for Eddie Jewel Bryant.

On February 10, 1958, Justin B. Burley, a Deputy Sheriff of the Los Angeles County Sheriff's Office assigned to the narcotics detail, met Jesse Thomas, an informant or "special employee" and made arrangements to meet defendant Eddie Jewel Bryant. After Jesse Thomas had apparently purchased $50 worth of heroin from Bryant with Official Advance Funds of the Federal Government, Justin Burley was introduced to Bryant as a brother of Jesse Thomas. The Deputy Sheriff was not present when the informer received the "stuff", but the informer passed the "stuff" over to the Deputy in the presence of defendant Bryant. There is no substantive count in the indictment relating to this transfer.

On February 13, 1958, Deputy Sheriff Burley picked up the informant, Jesse Thomas, and met other deputies and federal agents at a drive-in. At approximately 11:00 that morning Jesse Thomas and Deputy Burley made a telephone call to defendant Bryant, and immediately thereafter met defendant Bryant at a street corner. The deputy and the informer entered Bryant's vehicle; wherein, the deputy negotiated with Bryant for the purchase of one-half ounce of heroin for $250 which was paid to her then and there but the delivery of heroin was to be arranged by subsequent telephone call. Deputy Burley received constant coverage from his fellow officers from the time he met defendant Bryant until he rejoined his covering officers. At about 12:50 p. m. the same day, Deputy Burley...