Brown v. United States, 15845.

• Decision Date: 26 November 1958
• Docket Number: No. 15845.,15845.
• Citation: 261 F.2d 848
• Parties: Caesar BROWN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

261 F.2d 848 (1958)

Caesar BROWN, Appellant, v. UNITED STATES of America, Appellee.

No. 15845.

United States Court of Appeals Ninth Circuit.

November 26, 1958.

Robert G. Clostermann, Adelbert G. Clostermann, Portland, Or., for appellant.

C. E. Luckey, U. S. Atty., Robert R. Carney, George E. Juba, Asst. U. S. Attys., Portland, Or., for appellee.

Before STEPHENS, Chief Judge, DENMAN, Serior Circuit Judge, and POPE, Circuit Judge.

DENMAN, Senior Circuit Judge.

Caesar Brown, hereafter appellant, appeals from his conviction by the United States District Court for the District of Oregon, sitting without a jury, for selling heroin in violation of 26 U.S.C. §§ 4704(a), 4705(a) and 21 U.S.C.A. § 174. He urges on this appeal that the evidence was insufficient to sustain his conviction and that the government deliberately suppressed certain testimony which would have revealed that he was entrapped.

Appellant was indicted on three counts of violating the federal narcotics laws, all of which counts relate to a single transaction. Appellant pleaded not guilty and waived a jury trial.

At trial, the government's case rested on the testimony of Wolski, a federal narcotics agent. Wolski testified that several days prior to May 23, 1957, he and Clarence Henry Jackson rented rooms 208 and 209 of the Milton Hotel in Portland, Oregon. Clarence Henry Jackson, a user of narcotics, was a "special employee" apparently paid for his services by the Portland Police Department. At approximately 11:00 P.M. on the evening of May 23, 1957, Jackson left room 208, conversed on a street corner with the appellant, and returned at about 11:40. Wolski then entered room 208 through a door connecting it with 209, searched Jackson and the room, and returned to 209, leaving two five-dollar bills on a table in room 208. Through three small holes drilled by Wolski in the connecting door, he was able to observe most of room 208, including the outer door and the table on which the bills lay. At about 12:15, on the morning of May 24, 1957, the appellant entered room 208. According to Wolski, he "opened his right hand in which he was carrying two white capsules wrapped with a clear cellophane paper. He walked over to the table, laid down the two capsules, and in turn picked up the two five-dollar bills * * *" At appellant's suggestion, Jackson prepared a solution from some powder in one of the capsules and injected it into his arm. Appellant remained in the room about ten minutes.

Immediately after his departure Wolski entered room 208 through the adjoining door and took possession of the capsules. On analysis, they proved to contain heroin. Wolski testified further that he had known the appellant for one year and conversed with him about three times and that he had no doubt as to his identity on the morning of May 24.

Clarence Henry Jackson, the "special employee", was, prior to trial, incarcerated in a Canadian prison near Vancouver, Canada. On October 1, 1957, the date of trial, he was released to a United States Marshal in Washington at the request of government counsel. At trial, the government stated that Jackson could be obtained as a witness but that to do so would necessitate some delay and that since his testimony would be merely corroborative, it did not intend to call him. Appellant neither objected to this nor made any request that Jackson be called.

The only evidence offered by appellant which tended to refute the testimony of Wolski was appellant's statement that he was home with his girl friend, Bessie Ford, on Thursday night, May 23-24. However, Bessie Ford and her father testified on behalf of appellant, and each stated merely that he was home on Friday night, May 24-25, twenty-four hours after the alleged sale.

The lower court chose to disbelieve the testimony of appellant and to believe Wolski. Appellant was found guilty on all three counts. While there seems little more to be said about the case, counsel for app...