United States v. Samuel, 13650.

Citation431 F.2d 610
Decision Date15 September 1970
Docket NumberNo. 13650.,13650.
PartiesUNITED STATES of America, Appellee, v. Robert L. SAMUEL, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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.

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 with impunity.

Even when the use of such evidence is apparently permissible, C. McCormick, Evidence, supra, p. 332, suggests that admissibility should be determined not by rote but by the exercise of discretion "balancing, on the one side, the actual need for the other-crimes-evidence available to the prosecution, the convincingness of the evidence that other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes-evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility." Even applying the McCormick test, we find no abuse of discretion on the part of the district judge.

The indictment charged a violation of 21 U.S.C.A. § 174 which presumes guilt from actual possession of an illegally imported narcotic drug unless an accused explains the possession to the satisfaction of the jury. Proof that the drug possessed was known to be a narcotic is a first step in invoking the presumption; proof of such knowledge could be inferred from proof of repetitive possession and handling on prior occasions. Moreover, proof of motive was not irrelevant, although ultimately it may have been unnecessary in this case, since defendant did not claim innocent possession but rather denied any possession. However, defendant did not deny possession until after the challenged evidence had been received. The admissibility of the challenged evidence should be determined at the time it was admitted and not governed by hindsight. The jury knew the background of Mullin and the fact that he was rewarded for his efforts. The probative value of his uncorroborated assertion that he had purchased narcotics from defendant was, therefore, minimal. More importantly, the district judge instructed the jury unequivocally at length on the limited relevance of the other-crimes-evidence. We thus conclude that even if the district judge may have excluded the evidence under the McCormick test, he did not abuse his discretion in admitting it.

-II-

Orange C. Dickey, a general investigator for the Department of Corrections of the District of Columbia, was called as a government witness at the trial. He participated in the narcotics investigation at Lorton, and he dealt with the informer Mullin. During Dickey's cross-examination by counsel for the codefendant, he was asked about the reports Mullin had made to him. He was permitted to testify that Mullin had said he would be able to buy narcotics on a given date because he had heard that two men were receiving them. Over objection on the ground that it was inadmissible hearsay, he was permitted to testify that the two to whom he referred were defendant and his codefendant. The district judge overruled the objection on the ground that Dickey was testifying to the fact of the report, and he told the jury that the statements were not to be taken as the truth of the matter asserted.

If admitted to prove the truth of the matter, Dickey's testimony of Mullin's identification of defendant as a future seller of narcotics would have been inadmissible hearsay. It would have been safer for the district judge to sustain the objection to preclude the jury's misunderstanding its relevance. But as proof of the fact of a report, the evidence was admissible, and the district judge immediately made known to the jury the limited purpose for which the evidence could be considered. If prejudice was nevertheless created, it was obviated by the subsequent testimony of Mullin that he talked to defendant about the purchase of drugs, that defendant had agreed to sell them and that Mullin had reported the conversation to Dickey. Statements by defendant of this nature were admissions, and Mullin's repetition of them before the jury did not violate the rule against hearsay. Because Mullin substantially repeated Dickey's testimony and was present for cross-examination, any error in admission of Dickey's testimony in the manner complained of was harmless.

-III-

In his effort to impeach Mullin, defendant's counsel cross-examined Mullin about prior convictions. He was allowed to elicit the offenses themselves and, in several instances, he brought out the date of the conviction and the punishment. He complains, however, that he was not permitted to probe in depth the nature of the felonies, when they occurred, and their details. The...

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