434 F.2d 978 (9th Cir. 1970), 25885, United States v. Griffin

Docket Nº:25885.
Citation:434 F.2d 978
Party Name:UNITED STATES of America, Appellee, v. Geraldine GRIFFIN, and Odell Andrews, Appellants.
Case Date:November 27, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 978

434 F.2d 978 (9th Cir. 1970)

UNITED STATES of America, Appellee,

v.

Geraldine GRIFFIN, and Odell Andrews, Appellants.

No. 25885.

United States Court of Appeals, Ninth Circuit.

November 27, 1970

Rehearing Denied Jan. 6, 1971.

Page 979

Burton Marks, of Marks, Sherman & London, Beverly Hills, Cal., for appellants.

Robert L. Meyer, U.S. Atty., David R. Nissen, Asst. U.S. Atty., Chief, Criminal Division, Eric A. Nobles, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, HUFSTEDLER and TRASK, Circuit Judges.

BARNES, Circuit Judge:

Appellants Griffin and Andrews were convicted under a ten count indictment based upon four sales of heroin during March and April of 1969. Griffin was charged in all counts with violations of either 21 U.S.C. 174 (Concealment and Sale of Narcotics), or 26 U.S.C. 4705(a) (Illegal Transfer of Narcotics). Appellant Andrews was charged only in Count Ten with violating 21 U.S.C. 174 (Concealment and Sale of Narcotics).

Upon a motion by Andrews, appellants' trials were severed and Griffin tried first. Both trials were before a jury and resulted in conviction of each defendant on all applicable counts. A joint appeal was had to this Court. Our jurisdiction for this appeal rests on 28 U.S.C. 1291.

This case is characterized by a long and intricate factual background about which there exists certain conflicts. There is no dispute however, but that Griffin made four sales of heroin which were arranged by an informant, Simmons, to undercover agent Henry. Griffin and other defense witnesses testified that she knew Simmons for three years and that he called her several times over a period of two weeks before the first sale. She claimed that he repeatedly asked her to procure heroin and sell it to him; that she repeatedly refused; that he told her that he was sick and that he

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would give her a profit on the transaction; and that she continued to refuse his requests until the fourth call.

Simmons, the government informant, and agent Barnes of the Federal Bureau of Narcotics testified that they received Griffin's name from a man named Robert. Simmons stated that he did not recall knowing her previously and that she agreed to make the sale on the day upon which he first contacted her (March 3, 1969).

There is agreement that Griffin called Simmons back on March 3 and arranged to make the sale of 'half a piece' of heroin. She met Simmons in a parking lot and he introduced agent Henry as the man who wanted the heroin. Appellant Andrews was observed by agents driving Griffin to the meeting and then to the apartment of her source in his green Cadillac. Agent Henry paid $175.00 to Griffin and received a package of a substance later identified as heroin.

The second sale took place on March 20, 1969. After being informed of a second possible sale, Henry called Griffin and arranged for a meeting at the same place. Griffin testified that she took a bus to the meeting, made the sale to Henry and was driven home. Government agents Barnes and Henry testified that Griffin arrived at the lot in a Mercury and told Henry that she would have to contact her source to obtain the half-ounce of heroin. She made a telephone call and told Henry that the heroin was enroute. Henry claimed that they then discussed a possible purchase of a pure ounce of heroin for $625.00 in the future. The previously mentioned Cadillac then pulled into the lot and Griffin said, 'There is my man now. Wait. I'll be right back.' She entered the car and returned a short time later with the heroin. The sale then occurred.

After an abortive attempt to set up a sale on the previous day, Griffin called Henry on March 27, 1969, and told him to meet her that day in a restaurant near the parking lot. She sold him an ounce of heroin for $325.00 and offered to procure three ounces for him in four or five days.

On April 3, 1969, Griffin called Henry, offered to sell him the three ounces of heroin at $625.00 per ounce and told him to meet her at the Midtown Shopping Center. When he met her at the designated place, she told Henry that she did not have the heroin and that her man had it near the Safeway Store on Pico and Fairfax. She then drove to the market in a car rented by Andrews and borrowed from Andrews' common-law wife, with Henry following her in his own car. Griffin testified that she did not tell Henry the location of the second meeting place but, instead, only told him to follow her. She further testified that she called Andrews who was staying near the Safeway Store and asked him to buy her some dog food and wait for her outside the market.

Henry testified that he told another agent at the shopping center that he was going to follow Griffin and informed him of their destination. Agent Carter, who was called to testify as to a handwriting examplar of Andrews, said, however, that he knew that he was to proceed to the Safeway after the phone calls of that morning.

Henry testified that after reaching the market, both parked their cars and Griffin walked over to his. According to his testimony, she said that she saw her 'man' and pointed to Andrews who was standing near to the door of the market. She then walked over to Andrews in front of the store and was handed a large brown grocery bag by him. She then returned to Henry's vehicle and placed the sack on the floor of the car. After handing the heroin to Henry in a rubber condum, Henry got out and gave the signal for the arrests of Griffin and Andrews.

Griffin denied that she pointed to Andrews or called him 'my man.' She claimed that she walked past Andrews and into the market where she bought cigarettes. While walking out of the

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market, she removed the heroin from inside her slacks and then picked up the bag from the cart and walked back to Henry's car. She also denied that she handed the heroin to Henry.

Agent Carter testified that Griffin and Andrews walked into the market together. Finally, Griffin testified that one of the agents told her while driving from the arrest that her telephone had been tapped. The government agents denied this.

Because of the...

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