White v. United States

• Decision Date: 28 April 1964
• Docket Number: No. 17438.,17438.
• Citation: 330 F.2d 811
• Parties: Chester WHITE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

330 F.2d 811 (1964)

Chester WHITE, Appellant, v. UNITED STATES of America, Appellee.

No. 17438.

United States Court of Appeals Eighth Circuit.

April 28, 1964.

Alan E. Popkin, St. Louis, Mo. (appointed by Court), made argument and filed brief for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee (Richard D. FitzGibbon, Jr., U. S. Atty., was with him on brief).

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

Defendant, Chester White, was tried to a jury and convicted on all four counts of an indictment charging him in Counts I and II with the unlawful acquisition of marijuana on November 30, 1962 and December 2, 1962 without payment of the requisite transfer tax (26 U.S.C.A. §§ 4741 (a), 4744 (a)) and in Counts III and IV with the unlawful possession and sale of heroin without a government order on December 23, 1962 (21 U.S.C.A. § 174 and 26 U.S.C.A. § 4705(a)). As a second offender of marijuana violations, defendant received fifteen year sentences for each conviction on Counts I and II (26 U.S.C.A. § 7237(b) and (c)) and fifteen year terms for each conviction on the remaining two counts, all sentences to run concurrently.

Appealing in forma pauperis, defendant contends that the District Court committed prejudicial error under Rule 46 (a) of the Federal Rules of Criminal Procedure and Amendment VIII to the United States Constitution by setting his bail excessively at $5,000.00 following denial of a motion for release on his own recognizance which prevented pretrial freedom necessary to the preparation of his defense. Secondly, defendant maintains that the prosecution committed reversible error at the trial below by failing to produce as a witness one Sylvester Buchanan who, working undercover as an informer for the Federal Bureau of Narcotics, witnessed all the alleged criminal acts forming the basis of Counts III and IV which pertain exclusively to the charges of illegal possession and sale of heroin on December 23, 1962. Defendant submits this was the one witness who could have exonerated him of these charges and that the government's suppression of his material testimony so infected the jury with prejudice as to his guilt on all the charges that he was deprived of due process of law guaranteed by Amendment V.

As a foreword to consideration of defendant's arguments, we are constrained to point out a well settled principle of this Circuit in the disposition of criminal appeals. When a defendant is convicted of a multiple count indictment and receives concurrent sentences which do not exceed that which lawfully might be imposed under a single count, the judgment must be affirmed if the conviction on any count is valid. Johnson v. United States, 329 F.2d 600 (8th Cir. 1964); Gajewski v. United States, 321 F.2d 261, 264 (8th Cir. 1963), cert. denied 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964); Bunn v. United States, 260 F.2d 313, 315-316 (8th Cir. 1958).

Since the defendant does not attack the sufficiency of the evidence underlying the jury's verdict, a brief sketch of the pertinent facts taken from the original pleadings and transcript of evidence will suffice. On the evening of November 30, 1962, two regularly employed agents of the Federal Bureau of Narcotics, Snokhous and Maher, performed a typical pre-purchase search of special employee Matha, a hired informer whose job it was to arrange a purchase of narcotics from the defendant, a suspected peddler. Clean of any narcotics or money, Matha was entrusted with government funds and driven by the agents to a hotel in St. Louis, Missouri where outside he met the defendant and a female companion in defendant's automobile. The three then drove to another address, tailed by the agents. The female occupant departed, entered a house, and returned shortly thereafter with a brown package which Matha testified he shortly thereafter purchased from the defendant with the government funds. Keeping Matha under constant surveillance from their trailing vehicle, Agents Snokhous and Maher picked up Matha who delivered to them the package with its green vegetable contents which a government chemist, as well as a disinterested, court-appointed chemist of the St. Louis Police Department, testified was marijuana.

On December 2, 1962 a second sale was arranged after Matha telephoned the defendant who, overheard by Agent Snokhous, said that he was "ready to deal".

That afternoon regular Agents Snokhous, Maher and Hall searched informer Matha before he embarked on his mission, furnished him with government funds, and kept him under constant observation while he exchanged objects with the defendant seated in the driver's seat of his automobile accompanied by an unidentified male in a St. Louis parking lot. The contents of the package Matha obtained in the exchange with defendant were again analyzed by both chemists as marijuana.

On December 23, 1962, Agent Snokhous and Matha met the defendant, accompanied by one Sylvester Buchanan, another informer especially hired by the Bureau of Narcotics, at a St. Louis bar. In the presence of the others, Snokhous gave the defendant $150.00 in return for an aluminum foil wrapped package, containing a white powder which the defendant procured from behind the front seat of his automobile and was subsequently proven to be heroin upon chemical analysis by both testifying experts.

Testifying in his own behalf, defendant denied possessing or selling narcotics on any of the alleged occasions. He insisted that his own addiction to drugs for relief of pain from serious diseases had prompted him to engage in a barter with Matha at the November 30 meeting, trading him a radio and pistol his female companion acquired from his residence in return for drugs. He explained his presence during the second alleged sale of narcotics by testifying that he had only provided his male companion, known only as "Rob", with transportation to the scene of the latter's sale of marijuana to Matha in exchange for a promised "fix" from his passenger. The defendant maintained that his meeting with Agent Snokhous and informer Matha on December 23, 1962 at the St. Louis bar was arranged by the second informer, Buchanan, whom he drove to the rendevous, and who sold heroin to Snokhous, which had been transported in his car without the defendant's knowledge. The jury's finding defendant guilty on all counts as charged indicated their disbelief of his testimony and accreditation of the testimony of the government's principal witnesses, Snokhous, Maher and Matha.

Prior to trial, the District Court granted defendant's request for subpoena of witness Buchanan, among others, at government expense. When the witness could not be located for service by the United States...