United States v. Griffin

• Decision Date: 06 January 1971
• Docket Number: No. 25885.,25885.
• Citation: 434 F.2d 978
• Parties: UNITED STATES of America, Appellee, v. Geraldine GRIFFIN, and Odell Andrews, Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

434 F.2d 978 (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 January 6, 1971.

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 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 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 large number of contentions which appellants raise upon appeal we will dispose of many summarily, but will discuss the more meritorious claims in some depth.

I. Griffin's Appeal

1. Entrapment as a Matter of Law.

Appellant Griffin maintains that the facts of her case establish entrapment as a matter of law. This defense is found only where the jury could not with reason find otherwise than that appellant was not a person predisposed to commit the crimes of which he stands convicted, but was an otherwise innocent person seduced into the act by Government agents. Robison v. United States, 379 F.2d 338, 343 (9th Cir. 1967); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210 (1932). We need not and do not reach the question of whether the facts elicited in the testimony of the defense witnesses would, if true, constitute entrapment as a matter of law. Our earlier summation of the relevant facts demonstrates that there are definite conflicts in the testimony on the issue of how Griffin began selling heroin to Agent Henry. Under our decisions, the resolution of such conflicting assertions of fact relevant to the entrapment issue is a credibility question for the jury. Robison, supra, at p. 343. In Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1957), the Supreme Court was careful to note that in finding entrapment as a matter of law on the facts of that case, they were "not choosing between conflicting witnesses, nor judging credibility." The case at bar is similar to Notaro v. United States, 363 F.2d 169 (9th Cir. 1966) in many respects. In this case, there were sharp conflicts between the testimony of the appellant and the government informant. We wrote:

"The credibility of each was put in question, and their demeanor and attitude, not observable to us here, was subject to scrutiny by both the judge and jury. When, as here, the result of the trial was so dependent upon the conflicting testimony of two witnesses and when the trial judge refused to disturb the jury\'s determination in spite of his own expressed leaning toward an opposite conclusion, we cannot bring ourselves to interfere." Notaro v. United States, supra, at p. 173, citing Marin v. United States, 324 F. 2d 66 (9th Cir. 1963), cert. denied 379 U.S. 806, 85 S.Ct. 91, 13 L.Ed.2d 73 (1964).

2. Instructions on Entrapment.

Appellant Griffin also contends that the instruction given by the trial court on the entrapment issue is fatally defective in its use of the term "offer." The instruction to which objection is made reads in part:

"The defendant (Griffin) asserts that she was the victim of entrapment after the crime charged in the indictment.

"Where a person has no previous intent to violate the law, but is induced or persuaded by law enforcement officers or agents to commit a crime, he is the victim of entrapment, and the law as a matter of policy forbids a conviction in such a case.

"On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that Government Agents provide what appears to be a favorable opportunity is no defense, but is a lawful entrapment. When, for example, the Government has reasonable grounds for believing that a person is engaged in the illicit sale of narcotics, it is not unlawful entrapment for a Government Agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to purchase narcotics from such suspected person.

"If, then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was offered or afforded, and that Government officers or agents did no more than offer the opportunity, then

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