431 F.2d 610 (4th Cir. 1970), 13650, United States v. Samuel

Docket Nº:13650.
Citation:431 F.2d 610
Party Name:UNITED STATES of America, Appellee, v. Robert L. SAMUEL, Appellant.
Case Date:September 15, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 610

431 F.2d 610 (4th Cir. 1970)

UNITED STATES of America, Appellee,

v.

Robert L. SAMUEL, Appellant.

No. 13650.

United States Court of Appeals, Fourth Circuit.

Sept. 15, 1970

Argued April 8, 1970.

Page 611

Albert J. Ahern, Jr., Washington, D.C. (Court-appointed counsel) for appellant.

David H. Hopkins, Asst. U.S. Atty. (Brian P. Gettings, U.S. Atty., on the brief) for appellee.

Before SOBELOFF, WINTER and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

While serving a sentence in Lorton Reformatory, defendant was convicted of the receipt, concealment and transportation of heroin hydrochloride knowing that the drug had been unlawfully imported in violation of 21 U.S.C.A. §§ 173 and 174. He received a sentence of five years, service to begin upon the expiration of the sentence he was serving at the time of the new offense. The charges against a codefendant were dismissed at the close of the government's case.

Page 612

The principal evidence to support the conviction was the testimony of a fellow-inmate, Stanley Mullin, who had volunteered to become an undercover agent to ferret out narcotics traffic in the institution. Mullin testified that he had solicited drugs from the defendant. Defendant agreed to provide the drugs and, in due course, defendant delivered two ball point pens and a radio to Mullin. The pens contained capsules of heroin. The radio was to be returned to defendant with cash, representing the agreed price of the heroin, secreted in the back. Defendant testified at his trial and denied any participation in the transaction. The defense strategy was to combine defendant's denial with impeachment of Mullin to persuade the jury that Mullin had concocted the entire incident. Before defendant's trial Mullin was granted an early release, not by parole, as compensation for his services as an informer and undercover agent. This fact was made known to the jury.

Defendant asserts several errors in the conduct of the trial requiring reversal and a new trial. One, that defendant was improperly shackled while in the presence of the jury, cannot be finally ruled upon at this stage of the proceedings. The others, we conclude, do not justify reversal. We rule upon the latter and direct further proceedings with respect to the former.

-I-

Defendant claims error in the introduction of evidence of other narcotics offenses on his part. Specifically, Mullin was permitted to answer affirmatively a question of whether he had ever bought narcotics from defendant before the offense alleged in the indictment. Although he overruled an objection to the question, the district judge instructed the jury in his charge that this evidence might be considered solely in determining the defendant's state of mind or intent so as to give rise to the inference that defendant acted wilfully and with specific intent and not because of a mistake or accident or from some other innocent reason. He told the jurors that the evidence may not 'be considered by the jury in determining whether the accused did the act charged in this indictment.'

We perceive no error. The use of evidence of other crimes to prove a crime charged in an indictment was considered exhaustively in Lovely v. United States, 169 F.2d 386 (4 Cir. 1948), in an opinion prepared by the late Chief Judge Parker. Such evidence is admissible only where it is relevant for some purposes other than to show that the accused, because he is a man of criminal character, committed the crime charged. C. McCormick, Evidence (1954 Ed.) § 157. Two permissible uses are to prove the motive of the accused and to show that his act was not inadvertent, accidental, unintentional or without guilty knowledge. United States v. Dornblut, 261 F.2d 949 (2 Cir. 1958); Lovely v. United States, supra. The challenged evidence fell within these permissible uses. Both motive and lack of innocent action tended to be proved by evidence that defendant had dealt safely with Mullin on other occasions and, therefore, thought that he could deal again...

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