Affronti v. United States

• Decision Date: 14 October 1944
• Docket Number: No. 12817.,12817.
• Citation: 145 F.2d 3
• Parties: AFFRONTI v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

145 F.2d 3 (1944)

AFFRONTI v. UNITED STATES.

No. 12817.

Circuit Court of Appeals, Eighth Circuit.

October 14, 1944.

COPYRIGHT MATERIAL OMITTED

Harvey Roney, of Kansas City, Mo., for appellant.

Thomas A. Costolow, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., and David A. Thompson, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

The appellant (who will be referred to as "defendant") on September 7, 1943, entered a plea of not guilty to an indictment which was returned on January 21, 1932. The indictment contained ten counts, each of which charged a separate sale of morphine in Kansas City, Missouri, in violation of § 2553(a) of 26 U.S.C.A.Int.Rev. Code, 53 Stat. 271. This statute makes it unlawful to "sell, dispense, or distribute" certain drugs, including morphine, "except in the original stamped package or from the original stamped package."

The case was tried to a jury. At the close of the government's evidence, the defendant moved for a directed verdict of not guilty as to each count. The motion was denied. The defendant introduced no evidence. The court instructed the jury to return a verdict of not guilty as to the first count of the indictment, but submitted to the jury the question of the defendant's guilt under the remaining counts. The jury returned a verdict of guilty as to all counts except the first. From the judgment and sentence entered upon the verdict the defendant has appealed to this Court.

The questions which this Court is called upon to decide are: (1) Whether the evidence of the government made the question of the guilt of the defendant one of fact for the jury; (2) whether the court admitted incompetent and prejudicial evidence over the objection of the defendant; (3) whether the instructions of the court were fatally defective; and (4) whether the sentence was one which the court might lawfully impose.

(1) In considering the sufficiency of the evidence to sustain the verdict of the jury, this Court must take that view of the evidence which is most favorable to the government; must give to the government the benefit of all the inferences which reasonably may be drawn from the evidence; and must refrain from concerning itself with the credibility of witnesses and the weight of evidence. Holmes v. United States, 8 Cir., 134 F.2d 125, 130, certiorari denied 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722; Egan v. United States, 8 Cir., 137 F.2d 369, 375, 376; Miller v. United States, 8 Cir., 138 F.2d 258, 259.

The government's case depended upon the virtually uncorroborated evidence of Narcotic Inspector Morningstar, who, at the times the alleged sales of morphine were made, was stationed in Kansas City, Missouri. We shall not attempt to detail his testimony relative to each count of the indictment. The evidence introduced in support of the second count of the indictment is typical of the evidence introduced in support of the third, fourth, fifth and sixth counts; and the evidence relating to the seventh count is typical of that introduced to support the eighth, ninth and tenth counts.

The second count charged an illegal sale of 119 grains of morphine on October 20, 1931, at and near Gladstone Boulevard and Windsor Avenue, Kansas City, Missouri. The Narcotic Inspector testified that he was, at that time, investigating the defendant, whom he knew; that an informer named Simmons was working with the Inspector and under his supervision, at Excelsior Springs, Missouri; that on October 20, 1931, at that place, the Inspector searched Simmons, and, after determining that he had no money or narcotics, furnished him with $35; that the Inspector saw Simmons enter the automobile of Ross, a drug addict, and saw them start toward Kansas City; that the Inspector, in his car, followed Simmons and Ross from Excelsior Springs to Windsor Boulevard and Gladstone Boulevard in Kansas City, Missouri, where he saw them park; that he saw Ross leave his car and stand at the curb near where his car was parked; that shortly thereafter the Inspector saw the defendant drive up in his car, saw Ross go to the defendant's car and hand the defendant something, and saw the defendant then hand something to Ross and drive away; that Ross and Simmons then drove back to Excelsior Springs; that the Inspector followed them, keeping them in sight, and followed Simmons to his room, and there obtained from him a tin can containing 119 grains of morphine (which was deposited in the vault of the Narcotic Office in Kansas City); that upon Simmons' return to Excelsior Springs he was searched by the Inspector and found to have no money; that on the trip from Excelsior Springs to Kansas City and return the Inspector observed that Ross and Simmons had no contacts with anyone except the defendant; that the can of morphine had no stamps upon it; that Simmons died in 1936, and Ross in 1938. The can which the Inspector testified he obtained from Simmons on October 20, 1931, was introduced in evidence and was similar to the other cans containing morphine which were introduced by the government in support of the other counts of the indictment.

The seventh count of the indictment charged an illegal sale of 142 grains of morphine on December 1, 1931, at Independence Avenue and Lydia Avenue in Kansas City, Missouri. The evidence of the government relative to this count showed that on that date the Inspector and Simmons met in Kansas City, Missouri; that the Inspector searched Simmons for money and narcotics, and found none; that he gave Simmons $75; that he furnished Simmons a rented car which had been searched and was found to contain no narcotics; that Simmons entered the rented car and drove to Twelfth Street and Troost Avenue; that the Inspector followed in his car; that the defendant and Tudie LaScoula came from a nearby pool hall; that LaScoula entered Simmons' car; that the defendant entered his own car; that Simmons and LaScoula drove to a point on Lydia Avenue just south of Independence Avenue; that in a few minutes the defendant, in his car, appeared and drove up close to the side of Simmons' car; that LaScoula then left Simmons' car and walked toward the car of the defendant; that Simmons reached over into the defendant's car, and defendant reached from his car; that the Inspector saw Simmons hand something to the defendant, and the defendant hand a package back to Simmons; that LaScoula then entered the defendant's car and they drove away together; that the Inspector followed Simmons' car to Thirteenth and Wyandotte Streets in Kansas City, where Simmons delivered to the Inspector a tin can containing 145 grains of morphine upon which there were no stamps; that the Inspector searched Simmons and found that he had no money.

In addition to this evidence of the Inspector, there was evidence that, after the return of the indictment in this case, the defendant, after having given a $5,000 bond for his appearance, did not appear at the time the case was called for trial in June, 1932; that his bond was forfeited, a warrant for his arrest issued, and a search made for him, but that he was not found and did not become available for trial until after he had been brought back from New York to the State of Missouri in January, 1943.

The evidence of the government did not make a perfect case as to any count, but we think it made a prima facie case as to each of the counts upon which the verdict of guilty was based. The government, in order to make a case for the jury, was not required to prove the defendant guilty to a mathematical certainty or beyond the possibility of a doubt. Taking the government's testimony as a whole, it presented a rather convincing picture of a large dealer in contraband morphine, who, in carrying on his illicit trade, made the sales for which he was convicted. We think the jury was justified in inferring, from the evidence, that the informer Simmons with the money furnished him by the Inspector procured from the defendant the morphine produced in evidence. It cannot be said that, as a matter of law, the evidence of the government, including that which showed that the defendant became a fugitive from justice, was as consistent with innocence as with guilt. The trial court did not err in denying the defendant's motion for a directed verdict.

(2) The defendant contends that the court committed reversible error in permitting the government to show that the defendant, by disappearing, not only forfeited his bond in this case, but also forfeited bonds in two other cases pending against him at the time. We think the contention is without merit. The government was entitled to show the circumstances under which the defendant disappeared. Moreover, the evidence complained of was at least as beneficial to the defendant as it was harmful, since it showed that the indictment in the instant case was not the only inducement for his leaving the jurisdiction.

The defendant asserts that the court erred in permitting the Narcotic Inspector, on redirect examination, to testify with respect to certain portions of his official report of investigation to the Bureau of Narcotics. During the cross-examination of the Inspector, counsel for the defendant requested that he be furnished the official report for the purposes of further cross-examination. The court asked counsel for the government if he could send for it. He said that he could, and then remarked to counsel for the defendant: "Will you offer it in evidence when you get it?" Counsel for defendant said: "I will examine it and use it for the purpose of cross-examination." Again counsel for defendant was asked by opposing counsel: "Will you offer it in evidence?" The reply was: "Of course I would." After he had obtained the report, defendant's counsel, in cross-examining the Inspector, sought to discredit his testimony by showing that in...