United States v. Walton

• Decision Date: 03 June 1969
• Docket Number: No. 22935.,22935.
• Citation: 411 F.2d 283
• Parties: UNITED STATES of America, Appellee, v. Lloyd Stanley WALTON, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

411 F.2d 283 (1969)

UNITED STATES of America, Appellee, v. Lloyd Stanley WALTON, Appellant.

No. 22935.

United States Court of Appeals Ninth Circuit.

January 30, 1969.

Rehearing Denied June 3, 1969.

COPYRIGHT MATERIAL OMITTED

Robert E. Prince, Seattle, Wash., for appellant.

Eugene G. Cushing, U. S. Atty., Michael Swofford, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before MADDEN, Judge of the Court of Claims, and HAMLEY and ELY, Circuit Judges.

HAMLEY, Circuit Judge:

Lloyd Stanley Walton appeals from his conviction following a jury trial on all four counts of an indictment charging violations of the narcotics and tax laws.

There were two alleged transactions, one occurring about noon on September 20, 1967, at the bar of the Cottage Restaurant, at Fifteenth and Madison in Seattle, Washington, and the other about 8:30 that evening at the same place. The first transaction pertained to the alleged sale by defendant, to an undercover agent of the Federal Bureau of Narcotics, of .431 grams of heroin in violation of 21 U.S.C. § 174 (1964), and section 4704(a) of the Internal Revenue Code of 1954, as amended, 26 U.S.C. § 4704(a) (1964). The second transaction related to the alleged sale by defendant, to the same undercover agent, of .924 grams of heroin, in violation of the same statutes.

The evidence received at the trial, considered in the light most favorable to the Government, warranted the jury in finding as follows: at 11:30 a. m. on September 20, 1967, Joseph V. Ferro, Acting District Supervisor of the Federal Bureau of Narcotics in Seattle, received a telephone call from Julius Bishop, an informant. Bishop told Ferro that Bishop was then in the company of a seaman named "Stan," who had narcotics for sale. Ferro then arranged for Bishop to introduce Narcotic Agent Aubrey Abbey to Stan at noon on that day, at the Cottage Restaurant, as a prospective customer.

Abbey entered the restaurant at approximately 12:10 p. m. and joined Bishop and defendant on stools at the counter, at which time Bishop introduced Abbey to defendant. After a brief conversation between Abbey and defendant, in which Bishop took no part, defendant offered to sell a spoon of heroin to Abbey for $75.00. Defendant then handed Abbey a paper bindle containing narcotics.

After testing the narcotics in the restaurant washroom, Abbey paid defendant $75.00 from Government advance funds. Defendant then offered to sell Abbey more narcotics and they agreed to meet at the same place at 8:00 p. m. that evening to complete a similar transaction. Agent Ferro and Seattle Police Officer Richard B. Kurttila, seated only a few feet away, witnessed the transaction, including the exchange of narcotics and currency, but could not hear the conversation.

The second sale by defendant to Abbey was consummated at the same place about 8:30 p. m. that evening. Bishop was not present for this second transaction. Agent Ferro, Officer Kurttila and Seattle Police Officer William Henaby, saw Abbey and defendant together in the restaurant but were not close enough to witness the second transaction.

Defendant's sole defense was that of entrapment. His counsel told the jury in his opening statement that defendant would not deny that the transactions occurred. Defendant himself testified that he engaged in the two transactions.

On this appeal defendant first argues that he was not afforded a speedy trial as guaranteed by the Sixth Amendment. Defendant's argument with regard to delay may also possibly be read as invoking the Due Process Clause of the Fifth Amendment.

Insofar as the Sixth Amendment guarantee of a speedy trial is concerned, the delay in question was for the slightly more than four months between November 14, 1967, when a formal charge in the form of a secret indictment was lodged against him, and March 18, 1968, when the trial commenced. See Benson v. United States, 9 Cir., 402 F.2d 576; Lucas v. United States, 9 Cir., 363 F.2d 500, 502. Insofar as the Due Process Clause precludes unreasonable delays (see Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214) the critical time span is the almost six months' period between September 20, 1967, when defendant could have been arrested, and March 18, 1968.

Defendant does not assert that the charges against him are barred by the statute of limitations. This being the case, it was incumbent upon defendant promptly to assert, in the trial court, any claim that he was being deprived of his Sixth Amendment right to a speedy trial. Defendant made no such claim in the district court with regard to the speedy trial guarantee and therefore may not obtain relief on that ground in this court. See Benson v. United States, supra.

Concerning the due process aspect of the delay, defendant did not, in the district court, seek dismissal of the action, but contended only that the delay contributed to the inability of the Government to produce the informant, Julius Bishop, as a witness. We will therefore consider the due process aspect of the delay problem in discussing defendant's second contention on this appeal. That contention is that he was deprived of a fair trial, and therefore of due process of law under the Fifth Amendment, because the Government was unable to produce the informant, Julius Bishop, as a witness.¹ Defendant asserts that Bishop would have corroborated his contention that he was entrapped.

The Government did not arrest defendant on September 20, 1967, because enforcement officers hoped that, by keeping him under surveillance for a period of time, the latter's source of supply could be discovered and cut off. The Government's expectations in this regard were predicated mainly upon agent Abbey's report of the conversation he had with defendant at the time of the second heroin transaction on September 20, 1967.

As testified to by Abbey (but in substance denied by defendant), defendant told Abbey that the heroin he sold to Abbey at noon on September 20, 1967, came from Hong Kong. According to Abbey, defendant said that the heroin involved in the second sale on that day came from Inchon, Korea. Abbey testified that defendant, who was a seaman, told him that he planned to return to the sea on September 23, 1967, and that he was bringing additional narcotics into the country. Defendant agreed to deliver to Abbey, upon his return, a large quantity of narcotics.

According to Abbey's testimony, defendant also advised him that defendant had been successfully peddling narcotics for the last sixteen years while he was a seaman. Abbey testified that defendant told him that his procedure in selling narcotics was as follows: he brought the narcotics into the country from the Far East aboard ship. Upon arriving in the United States, defendant would go to his home in Portland, Oregon, pick up his Cadillac, journey down the coast, and pick up his heroin which had been taken off the ship for him by others. He would then make deliveries to his customers.

On the basis of this information and arrangement, Abbey's office determined to postpone defendant's arrest. This was done so that, pursuant to a cooperative arrangement with the United States Bureau of Customs, an effort could be made to identify defendant's foreign sources of supply. It was expected that this could be accomplished with the assistance of the Federal Bureau of Narcotics' agents in Bangkok, Hong Kong and Seoul.

While, according to Abbey, defendant expected to ship out on September 23, 1967, defendant testified that he did not do so until October of that year. The federal enforcement officials thereafter maintained enough surveillance to learn that defendant was aboard the S. S. BUCKNELL VICTORY when it docked at San Francisco shortly before the middle of December, 1967. Arrangements had been made between the federal agencies to permit defendant to leave the ship with a cursory search, but defendant apparently left the ship before any search of his person was made, free and clear of immediate surveillance.

Defendant reached Seattle about December 14, 1967. The Federal Bureau of Narcotics soon thereafter verified this fact. Abbey, acting in an undercover capacity, tried on several occasions to contact defendant through the telephone number defendant had supplied, but was unsuccessful. Therefore, on January 31, 1968, it was decided to terminate the investigation and arrest defendant. It required some careful detective work to track down defendant's whereabouts, but this was accomplished and the arrest was made on February 1, 1968.

Prior to the trial, the district court granted defendant's motion that the Government be ordered to make known the name and address of the informant. The Government complied with the order.² However, the informant, Julius Bishop, could not be found at the address.

The Government advised the court and defendant that if any information concerning Bishop's whereabouts came to the attention of law enforcement officers, it would be immediately conveyed to the defendant and the court. No such information was obtained. Defendant then sought and obtained orders authorizing the use of Government funds to employ an investigator in an attempt to locate Bishop and also authorizing issuance of a subpoena for Bishop's appearance at the trial. An investigator was employed but neither he nor the United States Marshal's office could find Bishop.

The defendant then moved that the Government be ordered to produce Bishop as a witness. This motion was denied. However, upon the demand of the court, the statements made by Bishop to the narcotics agents concerning the September 20, 1967 transactions were read to the court and shown to counsel for defendant prior to the trial. The informant's statements corroborated the testimony of the Government witness summarized at the outset of this opinion. In his opening brief on appeal defendant concedes that these statements were not helpful to defendant.³ He also makes it clear that the...