Burge v. United States

• Decision Date: 25 February 1965
• Docket Number: No. 18801.,18801.
• Citation: 342 F.2d 408
• Parties: Richard W. BURGE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

342 F.2d 408 (1965)

Richard W. BURGE, Appellant, v. UNITED STATES of America, Appellee.

No. 18801.

United States Court of Appeals Ninth Circuit.

February 25, 1965.

Wendell P. Kay, Kay & Miller, Anchorage, Alaska, for appellant.

Warren Colver, U. S. Atty., H. Russell Holland, Asst. U. S. Atty., Fairbanks, Alaska, for appellee.

Before CHAMBERS, Circuit Judge, MADDEN, Judge of the United States Court of Claims, and JERTBERG, Circuit Judge.

MADDEN, Judge:

Following a trial to a jury, appellant was convicted on one count of a two count indictment charging violations of 21 U.S.C. § 174.¹

The count upon which appellant was convicted (Count 2) in substance charged that on or about the 23rd day of April, 1959, at Fairbanks, Alaska, the appellant did knowingly conceal and facilitate transportation of a narcotic drug, to wit: heroin.

Count 1, on which the jury was unable to agree, in substance charged that on or about the 23rd day of April, 1959, at Fairbanks, Alaska, appellant knowingly received, sold and facilitated the sale of a narcotic drug, to wit: heroin, to Hazel Geary.

Following conviction, the appellant was committed to the custody of the Attorney General of the United States for a period of five years.

Appellant's specification of errors may be grouped as follows:

1. Errors of the District Court in refusing to suppress, and in admitting into evidence, certain proffered exhibits claimed to have been obtained in violation of the provisions of the Fourth Amendment prohibiting unreasonable search and seizure;

2. Errors of the District Court in denying appellant's motion for judgment of acquittal made at the close of the government's case and renewed at the close of all the evidence; and

3. Errors of the District Court in the giving of certain instructions to the jury.

Before considering other specified errors, we shall first consider appellant's contention that the District Court erred in denying appellant's motion for a judgment of acquittal, under which contention we shall also consider whether the verdict of the jury is supported by substantial evidence.

The essential elements of the offense on which the jury returned its verdict of guilty are:

1. Knowingly concealing and facilitating the transportation of heroin;

2. Unlawful importation of the heroin by someone; and

3. The defendant's knowledge of such unlawful importation. See Griego v. United States, 298 F.2d 845 (10th Cir. 1962).

Under the second paragraph of § 174, quoted supra, proof that the defendant is shown to have or have had possession of a narcotic drug shifts to him the burden of explaining such possession to the satisfaction of the jury. In the absence of such satisfactory explanation, the application of the statutory rule of evidence set forth in § 174 is deemed sufficient to authorize conviction. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925); Hernandez v. United States, 300 F.2d 114, (9th Cir. 1962); Ewing v. United States, 323 F.2d 674 (9th Cir. 1963).

Our review of the evidence convinces us that there is abundant evidence to establish the essential elements of the offense. The District Court properly denied appellant's motion and renewal thereof for judgment of acquittal. The testimony of the government's witness, Hazel Geary, standing alone, furnishes sufficient evidence to support the verdict.

Hazel Geary testified: that on the night of April 20, 1959, appellant approached her with a proposal to "dump a large quantity of heroin"; that she demanded a sample before she would do business on a larger scale; that she was furnished $20 by law enforcement officers and purchased a sample of heroin from appellant on April 22, 1959; that on that day she turned over to the officers an eyedropper and a hypodermic needle which evidence a trace of narcotics (Exhibit "A" at the trial); that at noon on April 23, 1959, she was furnished $400 in marked currency by the law enforcement officers and about 2:30 o'clock of that day purchased a quantity of heroin from the appellant with that money; that after the purchase she remained with appellant until about 7:30 o'clock of that day, when appellant transported her in his car to the Idle Hour Cafe where both were arrested. She further testified that just prior to the departure for the Idle Hour Cafe appellant stated to her, "You don't want to be out there with that stuff on you." The heroin which Hazel Geary claimed to have purchased from appellant on that day was turned over to the officers after her arrest (Exhibit "B" at the trial). A search of the person of appellant and his automobile disclosed neither narcotics nor marked currency.

On appeal following conviction, the evidence is to be viewed in the light most favorable to support the verdict. The credibility of Hazel Geary and the weight to be accorded her testimony are matters within the exclusive province of the finder of the facts. While it is true that Hazel Geary admitted that she was a prostitute, a narcotics addict, had been convicted of a felony to wit: grand theft, was a government informer on appellant and was under a pending indictment for the offense of passing travelers' checks knowing the same to have been forged, and on which charge she had not been tried at the time of appellant's trial in September of 1962, nevertheless, it is apparent from the verdict of the jury that it believed her testimony rather than the testimony of the appellant who denied all knowledge of or connection with the narcotics transaction of which he was accused.

We will now consider the alleged errors of the District Court in refusing to suppress, and receiving in evidence proffered exhibits claimed by appellant to have been obtained in violation of his Constitutional guarantee not to be subjected to unreasonable searches and seizures.

The record shows that the appellant came from Anchorage to Fairbanks, Alaska, on the 18th day of April, 1959, to engage in the cardroom business with one Arthur Bell. From his arrival until his arrest he was a guest in a two-bedroom one-bathroom dwelling house located in Fairbanks, rented and partially occupied by one Dolores Jean Wright, hereinafter called Wright; that following the arrest of appellant and Hazel Geary at the Idle Hour Cafe in the early evening of April 23, 1959, Wright was arrested, accused of illegal possession of narcotics and taken to police headquarters. Two law enforcement officers testified that following the arrest of Wright they requested her permission to search her apartment; that Wright said "Yes," that she had nothing to hide, although when presented a written waiver of search she refused to sign it, saying, "You don't need that, you got my permission." The officers further testified that, based solely on the verbal permission, a search of Wright's apartment was made. As a result of the search they obtained items consisting of a glass bottle containing material identified as milk sugar (Exhibit "C"), and an eyedropper and hypodermic needle (Exhibit "D"), all of which items were taken from the bathroom of the apartment; that when the search was made no one was in the apartment and the searching officers were unaware that appellant was staying there as a guest. Upon objection of the appellant to the admission of said exhibits, a hearing was held before the court in the absence of the jury. Witnesses heard at that hearing were Wright, two officers who testified they had secured verbal permission to search the premises and another officer who testified that after the search Wright was requested to sign a written consent to search but that she refused to do so. Following the hearing the two exhibits were received in evidence.

In the presence of the jury, after receipt of Exhibits "C" and "D" into evidence, there was testimony that appellant's fingerprint was found on the glass bottle (Exhibit "C"); and that the eyedropper and hypodermic needle (Exhibit "D") evidenced a trace of narcotics. Hazel Geary testified that a bottle similar to Exhibit "C" had been used by appellant in the apartment of Wright in the course of mixing the heroin which she purchased from appellant (Exhibit "B") on April 23, 1959.

Later in the proceedings, and before the case was submitted to the jury, the district judge concluded that the admission into evidence of Exhibit "D" was in error, in that the items constituting said exhibit were not sufficiently linked to the defendant. Thereupon, Exhibit "D" was stricken from the evidence and the jury was instructed to disregard the testimony relating to it.

The evidence presented by the prosecution included the $400 in marked currency which had been furnished by the law enforcement officers to Hazel Geary on April 23, 1959. Prior to the trial, appellant moved the District Court to suppress that evidence. Following the hearing on the motion and prior to trial, the District Court denied that motion. Following the arrest of appellant on the evening of April 23rd, his automobile was impounded by the arresting officers. On April 30, 1959, the officers received information from an undisclosed source that the marked money was secreted in appellant's automobile. The automobile was still impounded, and the officers searched it and found the marked currency secreted in the headlight section of the automobile. They did not obtain a search warrant and did not have the appellant's permission to make the search.

We shall first discuss the refusal of the District Court to exclude Exhibits "C" and "D."

As above stated, prior to the receipt in evidence of those exhibits, appellant moved to suppress them under the provisions of Rule 41(e), Federal Rules of Criminal Procedure. The district judge in his discretion elected to entertain the motion, although not timely made, and held a hearing in the absence of the jury. Following the hearing appellant's motion was denied and the exhibits were received in evidence over the objection of appellant. It was the...