315 F.2d 120 (9th Cir. 1963), 18032, Perkins v. United States

Docket Nº:18032.
Citation:315 F.2d 120
Party Name:Robert L. PERKINS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 28, 1963
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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315 F.2d 120 (9th Cir. 1963)

Robert L. PERKINS, Appellant,

v.

UNITED STATES of America, Appellee.

No. 18032.

United States Court of Appeals, Ninth Circuit.

February 28, 1963

Rehearing Denied May 3, 1963.

Page 121

Harry A. Jackson, San Francisco, Cal., for appellant.

Brockman Adams, U.S. Atty., and Robert C. Williams, Asst. U.S. Atty., Seattle, Wash., for appellee.

Before POPE, HAMLEY and BROWNING, Circuit Judges.

HAMLEY, Circuit Judge.

Around the corner from the Seagull Tavern, in Seattle, on the night of November 22, 1960, William 'Little Fox' Miller was said to have sold and delivered a quantity of narcotic drugs to Albert 'Grey Eyes' Johnson. Robert Lee Perkins was charged, in several counts of a multiple-count indictment, with having aided and abetted Miller in this enterprise. Convicted by a jury on two counts, Perkins appeals from the judgment and sentence thereupon entered. 1

Appellant raises questions concerning the sufficiency of the evidence, rejection of tendered evidence, correctness of instructions, and asserted Government use of perjured testimony. Several of these questions stem from the circumstances that Perkins was charged as an aider and abettor under 18 U.S.C. § 2(a) and (b), and that, under the Government's theory and evidence, he could not have himself been a direct participant in the actual transfer of the narcotics to Johnson. The facts necessary to be considered in deciding these and other questions, viewed in the light most favorable to the Government, are stated below.

In November, 1960, Johnson, a special employee of the Bureau of Narcotics, and one Carroll R. Gibson, a regularly-employed federal narcotics agent, were working under cover in apprehending violators of the narcotic laws. Perkins knew both Johnson and Gibson and believed

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them to be 'partners' but was apparently unaware of their law enforcement activities.

On the afternoon of November 23, 1960, Perkins met Johnson in Seattle and told Johnson that he would like 'to do business' with Gibson. By this, Perkins meant that he would like to sell narcotics to Gibson, and indicated that he had some good 'stuff.' Johnson replied that he would attempt to get in touch with Gibson.

That night Johnson contacted Gibson by telephone and made arrangements to meet Gibson later in the evening at the Seagull Tavern, near Seventh and Jackson Streets, Seattle. Johnson reached he vicinity first. Without waiting for Gibson, he proceeded to Room 29 in the Jackson Hotel, across the street from the tavern, where he knew Miller resided. Johnson was met at the door by Miller and asked to speak with Perkins. Perkins called from within the room that he would 'be down in a few minutes.'

Johnson then left the hotel and returned to the tavern where he was joined by Gibson who gave him twenty dollars. About five minutes later Perkins appeared in the tavern doorway and beckoned Johnson to come outside. Gibson accompanied Johnson to the street and asked Perkins, 'Where is the stuff?' Perkins replied, 'The man will be over in a few minutes.' Johnson asked Perkins, 'Is the stuff any good?' and Perkins answered, 'Yeah, they're up there fixing it.'

Miller then came across the street and motioned for Johnson to follow him around the corner of a flower shop which was next door to the Seagull Tavern. Miller then asked Johnson, 'What did Perkins say?' Johnson replied, 'Perkins say it was all right-- give me two caps of stuff.' Johnson then gave Miller twenty dollars and received, in exchange, two capsules of heroin. Miller and Perkins then went into the tavern while Johnson walked away with Gibson. No tax stamps were attached to the finger stall containing the heroin and no written order form was used in the transaction.

When Miller was on the witness stand, Perkins sought to elicit testimony that in a prior trial Miller had been acquitted of the crimes alleged in the two counts under which Perkins was convicted as an aider and abettor of Miller. 2 On objection of the Government, the testimony was rejected.

On this appeal, apparently proceeding on the assumption that proof was received at the trial that Miller was acquitted, Perkins argues that this established the insufficiency of the evidence to convict him as an aider and abettor. Since, however, the acquittal of Miller is not of record in this case, the point Perkins is really making here, concerning the sufficiency of the evidence, is that he could not be convicted as an aider and abettor unless the Government first proved that Miller had been convicted or at least proved Miller had not been acquitted.

Under the Government's theory of the case, and under the evidence, Perkins could not have been the person who consummated the sale by transferring narcotics to Gibson. The only person who could have done so was Miller. In order to convict Perkins as an aider and abettor it was therefore necessary for the Government to prove that Miller made the transfer, in which event the latter would himself have been guilty of violating 26 U.S.C. §§ 4704(a) and 4705(a). See Hernandez v. United States, 9 Cir., 300 F.2d 114, 123-124.

But, while the guilt of Miller was, under the circumstances an essential element of the Government's case, it was not incumbent upon the Government to go beyond this and prove that Miller had been convicted of that offense, or to prove that he had not been acquitted. 3

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Perkins argues further, however, that even if the evidence is not, in this particular, insufficient to support the verdict, proof of the acquittal of Miller was competent evidence that the latter was not guilty of making the transfer, and therefore should not have been rejected.

The evidence concerning the acquittal of Miller was not offered as substantive proof of Miller's innocence, and thus of Perkins' innocence. It was offered only for the limited purpose of establishing that Miller was a credible witness. We are therefore not called upon to determine whether such evidence would have been admissible as substantive proof.

There is presented, however, the question whether evidence of the acquittal of Miller should have been received as bearing upon his credibility as a witness.

At the time counsel for Perkins sought to elicit from Miller that he had been acquitted, there had been no attack upon the credibility of Miller. It is the general rule that until the credibility of a witness has been attacked by evidence pertaining to credibility, evidence tending to establish credibility is inadmissible. Homan v. United States, 8 Cir., 279 F.2d 767, 772. As indicated in the Homan case, the fact that the Government had previously introduced evidence which defendant's witness had or would contravene, does not constitute an attack upon credibility within the meaning of the above rule.

But Perkins argues that there are circumstances here which call for an exception to the rule just stated. It is argued that since Miller was to testify concerning his own conduct on the night in question, the jury would be inclined to discredit his testimony because of his assumed self-interest. But if it could be divulged to the jury that Miller had already been acquitted, the jury would perceive that he had nothing to lose by confessing his own guilt. His protestations of innocence would then carry more weight with the jury.

It is difficult for us to see why the jury would be more likely to conclude that Miller's protestations of innocence were true if they knew he had been acquitted than if, as appellant has contended, they assumed he had been convicted of the crime. In either event the jury would know that Miller had nothing to gain or lose by testifying truthfully that he was innocent.

In any event, we do not believe...

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