United States v. Griffin

Citation382 F.2d 823
Decision Date23 August 1967
Docket NumberNo. 16933.,16933.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Edsel GRIFFIN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

John D. O'Connell, Detroit, Mich., for appellant, Edsel Griffin, Detroit, Mich., on the brief.

Milton J. Trumbauer, Detroit, Mich., for appellee, Lawrence Gubow, U. S. Atty., Joel Martin Shere, Asst. U. S. Atty., Detroit, Mich., on the brief.

Before O'SULLIVAN and CELEBREZZE, Circuit Judges, and NEESE, District Judge.*

NEESE, District Judge.

This cause presents the appeal of Edsel Griffin from a judgment entered upon a jury verdict convicting him of violating the narcotics laws. He was convicted on each of seven counts. Counts one, four and six charged that he and another unlawfully received and concealed narcotic drugs on separate dates in June, 1963, in violation of 21 U.S.C. § 174. Counts two, five and seven charged that he and another unlawfully sold narcotic drugs on the same respective dates in violation of 26 U.S.C. § 4705(a), and count three charged him and another with the unlawful purchase of narcotic drugs in violation of 26 U.S.C. § 4704(a) on June 11, 1963.

The judgment and sentence imposed are attacked upon several grounds. Two of the grounds relate to matters occurring during the trial, to which no objection was interposed at the time. Such failure of seasonable objections constituted a waiver of these objections. United States v. Campise, 292 F.2d 811, 814 6 (C.A. 2, 1961). Thus, our concern here is with the appellant's claim that the evidence was insufficient to support his conviction, and his claim that the District Judge erred in failing to instruct the jury sua sponte that the testimony of a paid informer of the Government, addicted to narcotics, must be viewed with caution and weighed with great care. The former depends on the latter, in this instance.

The following are the background facts. One Charles Blassingame testified that the defendant and one Trudy Lewis came to his home in Detroit, Michigan on June 11, 1963 when he was addicted to narcotics, and offered to supply him with narcotics of high potency at a reasonable price. The addict expressed interest but demanded a sample before negotiating any purchase. The defendant Griffin1 promised to provide a sample in short order and advised Blassingame that he could always be reached through Miss Lewis.

This conversation was reported by Blassingame to agent Miller of the United States Bureau of Narcotics who arranged to meet Blassingame and confiscate the contraband if and when the delivery was made. There was another conversation between the informer and the agent about 4:30 o'clock p. m., that day, which was interrupted by the appearance of the defendant with two small packets of heroin wrapped in tinfoil, for which Blassingame paid $20. Blassingame injected himself with the contents of one of the packages and delivered the other to the narcotics agent. The tinfoil was subsequently found to contain .28 grams of heroin. Sometime during that day, Blassingame reported to the agent that the defendant was driving a blue 1962-model Cadillac automobile, bearing license plate # ED-6624. Donald T. Howard, another federal narcotics agent, saw the defendant park a blue 1962-model Cadillac automobile about 4:30 o'clock, p. m., in the neighborhood and walk in the direction of the Blassingame residence.2

Miss Lewis talked with Blassingame early the next morning by telephone and arrangements were made for the informer to purchase ¼-oz. of heroin from her for $120 at his residence about 6:00 o'clock, p. m., that day. This fact was also reported to agent Miller. Afterward, Blassingame claims he was called by the defendant Griffin and told that this transaction could not occur until after 7:00 o'clock, p. m., "* * * because the fellow evidently supplying the drugs wouldn't be in until seven * *." This revision in time was also reported to agent Miller. Miss Lewis delivered this quantity to Blassingame in his home at the revised time. Narcotics agents and local officers saw Miss Lewis and Blassingame talking outside the latter's home before the transaction took place within. Agent Miller overheard the conversation outside by means of a Portotalk radio, Blassingame having been outfitted with a transmitter theretofore. This agent afterward recovered ¼-oz. of heroin and $30 cash from Blassingame. The defendant was not observed in the area of the Blassingame residence at the time Miss Lewis made this sale.

Pursuant to directions of the federal agents, the informer made no further contact with the defendant or Miss Lewis until June 25, 1963, when he was instructed to arrange another purchase. Blassingame claims he located the defendant and Miss Lewis near their apartment on the streets of Detroit and advised them he wished to purchase yet another ¼-oz. of heroin. Blassingame testified that the defendant's response to this expression was "okay", and that a price of $125 was agreed upon. Thereafter, after the informer had been equipped to transmit sound, Miss Lewis delivered this quantity of narcotics to Blassingame and collected the agreed price. On this occasion, narcotics agents saw the defendant and another Negro man seated in a parked blue 1962-model Cadillac automobile about one block from the Blassingame residence. This vehicle had been moved when the agents doubled back to investigate further, however. "* * * The mere presence of the accused at or near the scene of a crime does not, of itself, justify drawing an inference that he participated therein. Cf. United States v. Di Re, 1948, 332 U.S. 581, 593, 68 S.Ct. 222, 92 L.Ed. 210; Hicks v. United States, 1893, 150 U.S. 442, 451, 14 S.Ct. 144, 37 L.Ed. 1137. * * *" Glenn v. United States, 271 F.2d 880, 881, 883 3 (C.A. 6, 1959).

The defendant Griffin and Trudy Lewis were indicted for these offenses and tried jointly. Only the informer Blassingame and three federal narcotics agents testified for the prosecution. Neither defendant testified3 or offered any witnesses. Both defendants made a motion for entry of a judgment of acquittal. Counsel for the defendant Griffin urged as grounds for the motion (a) that there was insufficient evidence on which to submit the issues to the jury as to any of the seven counts and (b) that the jury should not be permitted to speculate on the substantially uncorroborated testimony of an informant, having a background such as that of Mr. Blassingame. On the latter point, the attention of the District Judge was invited to People v. Bazemore, 25 Ill.2d 74, 182 N.E.2d 649, where the conviction of a defendant by a trial judge without a jury was reversed because it was based on the uncorroborated testimony of a paid informer who was addicted to narcotics. This served to apprise the Court that counsel "* * * intended to argue and request instruction thereon. * * *" United States v. Baker, 373 F.2d 28, 30 1 (C.A. 6, 1967).

In overruling the aforesaid motions of both defendants, the District Judge said:

"* * * Gentlemen, the matter of corroboration and whether this Circuit follows the Illinois practice or the different Sixth Circuit practice, we really don\'t come to. There has been corroboration here in many instances. I cannot reject the testimony of corroboration that has come in from other sources.
"Now, the Government\'s theory, in the most simple possible terms, is that Trudy Lewis and Edsel Griffin were working together in this unlawful venture. We find them together. We find telephone calls referring one to the other. We find certain meetings set up in their behalf.
"I am forced to the conclusion, Gentlemen, that for the purposes of this motion there is enough to establish what has been called in some of the cases `a partnership in crime.\' United States v. Smith, 343 F.2d 847 (C.A. 6, 1965), cert. den. 382 U.S. 824 86 S. Ct. 55, 15 L.Ed.2d 69 (1965).
"That being the case, we cannot grant the motions to acquit that have been made, and the matter will have to go to the jury. * * *"

As the trial was about to be resumed the following morning, Miss Lewis changed her plea from not guilty to guilty on the third count of the indictment. The District Judge then simply announced to the jury, by agreement of all concerned, that the case of Miss Lewis had "* * * been disposed of * * *."

Counsel for the defendant Griffin vigorously argued the credibility of the informer Blassingame before the jury, but he neglected to request the District Judge to instruct the jury specially that the testimony of the informer was to be received with caution and weighed with great care.4 From his motion for a judgment of acquittal and his argument to the jury, counsel for Griffin indicated his heavy reliance on the tenuous character of the witness Blassingame, and accordingly, the District Judge would have been justified in including the special cautionary instruction sua sponte despite the neglect or oversight of Griffin's lawyer in failing to specifically request it. If there was any doubt as to whether defense counsel intended to request this instruction, the District Judge "* * * could under Rule 30, Fed.R. Crim.P., have required written instruction requests to have been submitted * * * after defendant's counsel had relied on the defense * * * in his closing argument. * * *" United States v. Baker, supra, 373 F.2d at 30 1.

We consider the pertinent errors, as follows:

A. The Sufficiency of the Evidence:

If the testimony of the addicted informer Blassingame is to be believed, we agree with the District Judge that there was sufficient evidence of the formation of a common plan or design between the defendant Griffin and Miss Lewis and sufficient evidence of the defendant's actions, conduct, declarations and connection with the actions and conduct of Miss Lewis to support the guilty verdicts returned on each count by the jury. Cf. United States v. Thomas, 342 F.2d 132, 133-134 (C.A. 6, 1965), cert. den. ...

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