501 F.2d 1 (9th Cir. 1974), 73-1923, United States v. Harris

Docket Nº:73-1923, 73-2163.
Citation:501 F.2d 1
Party Name:UNITED STATES of America, Appellee, v. Birdie Louise Joshua HARRIS, Appellant. UNITED STATES of America, Appellee, v. Billy Charles HARRIS, Appellant.
Case Date:July 24, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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501 F.2d 1 (9th Cir. 1974)

UNITED STATES of America, Appellee,


Birdie Louise Joshua HARRIS, Appellant.

UNITED STATES of America, Appellee,


Billy Charles HARRIS, Appellant.

Nos. 73-1923, 73-2163.

United States Court of Appeals, Ninth Circuit.

July 24, 1974

Rehearing Denied Sept. 25, 1974.

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Joseph T. Vodnoy, Los Angeles, Cal., for Birdie Harris.

Morton Boren, Los Angeles, Cal., for Billy Harris.

John K. Cameron, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before ELY and KILKENNY, Circuit Judges, and ENRIGHT, District Judge. [a1]


ELY, Circuit Judge:

The appealing defendants were tried together, each being charged with four counts of violating 21 U.S.C. § 841(a)(1). Counts One and Two charged that, on January 22, 1973, both Birdie Harris and Billy Harris 1 knowingly and intentionally possessed 19.05 grams of heroin with intent to distribute it, and that they knowingly and intentionally distributed that substance. Counts Three and Four similarly charged that, on February 8, 1973, both defendants possessed with the intent to distribute, and that they distributed, 352.1 grams of heroin. After pleading not guilty, both Birdie Harris and Billy Harris were convicted by a jury on all four counts. A brief summary of the facts, in the light most favorable to the

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Government, follows. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

The prosecution's case was primarily based upon the testimony of an informant, John Durden. The first transaction was arranged by Durden in a telephone conversation with Billy Harris. Durden expressed a desire to purchase an ounce of heroin and was told to come to a house in Inglewood, California. Durden and John Jackson, an undercover agent of the Bureau of Narcotics and Dangerous Drugs (hereinafter 'BNDD'), drove to the Inglewood address. Although both Jackson and Durden entered the house, Jackson remained in the kitchen while Billy Harris and Durden proceeded to a rear bedroom. Birdie Harris, who was already present in the bedroom when Billy Harris and Durden arrived there, offered Durden one contraceptive full of heroin. Durden explained that his friend, Jackson, had the money, and he walked back to the kitchen. After obtaining the purchase money from Jackson, Durden returned to the bedroom and completed the purchase.

The second sale occurred on February 8, 1973, again being prearranged in a telephone conversation between Billy Harris and Durden. Since Durden had previously expressed an interest in purchasing a substantial amount of heroin, Billy Harris informed him on February 9th that a substantial sale could be effected on that day. Agent Mueller of the BNDD drove Durden to the Inglewood residence, but on this occasion Durden entered the house alone. Although there were six people in the house, the sale was conducted in the same manner as the first sale. Billy Harris first motioned Durden to accompany him to the rear bedroom. Again, once in the bedroom, Birdie Harris handed Durden the substance, although on this occasion the transaction involved the purchase of twenty contraceptives of heroin. Durden explained to Birdie Harris and Billy Harris that it would be necessary that he telephone a friend for the requisite purchase money, but instead, by means of a prearranged signal, he informed agents of the BNDD over the telephone that the heroin had been transferred.

Federal agents then approached the house and entered without first obtaining an arrest or search warrant. As the agents approached, Durden placed the contraband in a kitchen cabinet. All of the occupants of the house were arrested, including Durden. While being arrested, Durden informed one agent that the heroin was concealed in the kitchen. 2

Later that evening, the agents procured a search warrant based on the affidavit of agent Jackson. The affidavit contained only such facts as were known to Jackson prior to the agents' entry into the house. 3 During the subsequent

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search of the house, the agents discovered and seized from a kitchen cabinet approximately 352 grams of heroin.

At trial, John Durden was the principal government witness. His testimony was crucial to the prosecution's case since, although Durden was searched for contraband by federal agents prior to each transaction, he was the only government witness to both of the sales. Since Billy Harris testified that the money given to him by Durden was in payment for gambling debts and that the alleged heroin sales did not occur, Durden's credibility was a decisive issue. 4

The first contention urged upon us here is that the trial court abused its discretion when it refused to grant Birdie Harris a continuance in order that her newly retained private counsel could prepare for trial. Originally, counsel for Birdie Harris was appointed from the Federal Public Defender's office, on February 9, 1973, at the time the complaint was filed. A trial date of April 17th was set, but the trial was postponed for one day when Billy Harris was not present on the 17th. Not until the morning of April 18th did Birdie Harris inform the court that she and her appointed counsel were incompatible. 5 She informed the court that on the previous evening she had retained private counsel, a Mr. Gordon, and that she desired a short continuance. Since Birdie Harris had delayed, without a rational explanation, until the morning of trial to inform the court of her desire to retain private counsel, the court refused to grant her motion for a continuance. After the jury had been selected and impaneled, the trial was adjourned until the following morning. The court apprised Birdie Harris that Mr. Gordon could be substituted as her attorney if he were present the next morning.

On Thursday, April 19th, Birdie Harris repeated her objections to proceeding to trial with her appointed counsel after explaining that Mr. Gordon was no longer available. The court granted a half-hour recess, suggesting that another attorney could be provided from the Public Defender's office. After the recess, one Vodnoy appeared and stated that he had been retained as private counsel by Birdie Harris. The court permitted Vodnoy to be substituted as counsel for Birdie Harris, but clearly explained that it was allowing the substitution on the condition that the trial would not be further delayed. Because Mr. Vodnoy had a matter pending in the state court on that day, the trial court continued the trial until the next morning. When the trial recommenced on Friday, defense counsel moved for a further continuance until Monday so that he could have more time to prepare for trial. The motion was denied. Birdie Harris contends that she was denied effective assistance of counsel by the trial court's action.

The grant or denial of a motion for continuance rests within the

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sound discretion of the trial judge, and his decision will not be reversed absent a clear abuse of that discretion. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Daut v. United States, 405 F.2d 312 (9th Cir. 1968), cert. denied, 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114 (1971); Torres v. United States, 270 F.2d 252 (9th Cir. 1959), cert. denied, 362 U.S. 921, 80 S.Ct. 675, 4 L.Ed.2d 741 (1960). This court has previously held that a trial court properly acts within its discretion when it refuses to allow substitution of counsel on the eve of trial. United States v. Price, 474 F.2d 1223 (9th Cir. 1973); Good v. United States, 378 F.2d 934 (9th Cir. 1967); cf. Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970). In Bailey v. United States, 282 F.2d 421 (9th Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961), we rejected a similar contention to that here urged. There, too, the trial court permitted substitution of counsel on the condition that no delay would result thereby. Although Birdie Harris was represented by an attorney from the Public Defender's office for approximately two months, she did not inform the court of any dissatisfaction until the day of trial. The trial court permitted substitution of counsel on Thursday but clearly explained that the trial would resume on Friday. Under these circumstances, we are not persuaded that the trial court abused its discretion. See United States v. Simmons, 457 F.2d 763 (9th Cir. 1972).

Next, appellants, although conceding that the affidavit in support of the search warrant was facially sufficient to establish probable cause, argue that the trial court improperly refused to conduct an evidentiary hearing to test the accuracy of the affidavit. At trial, during their motion to suppress, the appellants contended that the affidavit in support of the search warrant was misleading in that it failed to disclose material facts. They claimed that the agents initially entered the house to arrest the occupants without first announcing their authority and purpose, as required by 18 U.S.C. § 3109. 6 Appellants' contention is based on the premise that if the trial court had determined after a hearing that the appellants were illegally arrested, then the evidence subsequently seized pursuant to the search warrant would have been inadmissible. The trial court refused to conduct a hearing, ruling that it was impermissible for a trial court to inquire into the accuracy of a search warrant affidavit.

The Government stipulated that the agents had not procured arrest or search warrants prior to their initial entry into the Inglewood residence. It is clear that the criteria of section 3109 apply to forceful entries wherein the agents have not procured warrants in advance. Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559...

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