392 F.2d 45 (8th Cir. 1968), 18936, Hemphill v. United States

Docket Nº:18936.
Citation:392 F.2d 45
Party Name:Benjamin HEMPHILL, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 02, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 45

392 F.2d 45 (8th Cir. 1968)

Benjamin HEMPHILL, Appellant,

v.

UNITED STATES of America, Appellee.

No. 18936.

United States Court of Appeals, Eighth Circuit.

April 2, 1968

Page 46

Kenneth V. Byrne, St. Louis, Mo., for appellant.

John A. Newton, Asst. U.S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U.S. Atty., St. Louis, Mo., on the brief.

Before MATTHES, GIBSON and HEANEY, Circuit Judges.

MATTHES, Circuit Judge.

Benjamin Hemphill has appealed from a judgment of conviction entered pursuant to a jury verdict finding him guilty of the unlawful sale of heroin without the requisite Treasury form in violation of 26 U.S.C.A. § 4705(a). We affirm.

The government's case rests primarily on the testimony of a government informer, Mrs. Bernice Taylor, and federal narcotic agent, Richard M. Patch. The informer, at the inducement of Patch, entered into a narcotic purchase arrangement with the defendant under the surveillance of narcotic agents.

The uncontroverted evidence established that on September 9, 1966, pursuant to a telephone conversation between Mrs. Taylor in St. Louis, Missouri and the defendant in Chicago, Illinois, the sum of $360.00 was sent to defendant by telegram in payment for a quantity of heroin which he agreed to deliver to Mrs. Taylor. On September 15, 1966, defendant came to St. Louis from Chicago, and arrived at the Taylor home around 9:45 A.M. Upon entering the Taylor home he placed a package on a table in the kitchen and shortly departed. Immediately thereafter Agent Patch, who had observed the transaction from a secluded position, initialed, sealed and sent the package to a United States chemist in Chicago. Ferris Van Sickle, the chemist who analyzed the contents of the package, testified it contained 4.701 grams of heroin.

In addition to his contention that the district court erred in overruling his motion for judgment of acquittal at the close of the entire case defendant alleges several procedural errors, the cumulative effect of which he contends deprived him of a fair trial. We consider each point seriatim.

Motion for Reduction of Bond

Defendant argues that the court erred in denying his motion for reduction of his bail bond. He contends that the amount of the bond fixed by the United States District Court was excessive in contravention of the Eighth Amendment, that as a result of the court's action he was unable to make bail, and thus was prevented from properly preparing his defense or otherwise assisting his counsel in the preparation of the case from the confines of his jail cell. 1 Defendant did

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not appeal from the order denying his application for reduction of the amount of the bond, but rather contends as part of this appeal that he sustained substantial prejudice as the result of the denial of his motion.

In this posture defendant's appeal from the denial of his motion for reduction of bail comes much too late. It is well settled that the proper procedure for challenging the legality of excessive bail is by motion for reduction of the amount and timely appeal from the order denying such motion. Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Moreover, this Court has consistently refrained from reviewing an order fixing bail, where the question has been initially raised upon appeal from the judgment of conviction. White v. United States, 330 F.2d 811, 815 (8th Cir. 1964), cert. denied, 379 U.S. 855, 85 S.Ct. 105, 13 L.Ed.2d 58...

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