Burge v. United States

• Decision Date: 29 May 1964
• Docket Number: No. 18801.,18801.
• Citation: 333 F.2d 210
• Parties: Richard W. BURGE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

333 F.2d 210 (1964)

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

No. 18801.

United States Court of Appeals Ninth Circuit.

May 29, 1964.

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

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

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

JERTBERG, Circuit 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 of 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 or prima facie presumption set forth in § 174 shall be deemed sufficient to authorize conviction. In such circumstances the rule of evidence or prima facie presumption furnishes sufficient proof to establish the illegal importation of the narcotic drug and the defendant's knowledge that the narcotic drug was illegally imported. 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); Erwing 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 $20.00 by the 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 evidenced a trace of narcotics Exhibit "A" at the trial; that at noon on April 23, 1959, she was furnished $400.00 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 for said amount; 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.

It is to be remembered that on appeal, following conviction, the evidence is to be viewed in the light most favorable to support the verdict. It is also to be remembered that 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 narcotic 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, by the implied finding of the jury it chose to believe her testimony rather than the testimony of the appellant who denied all knowledge of or connection with the narcotic traffic 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 to be free of unreasonable search and seizure.

The record reveals that 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 dwelling house located in Fairbanks, rented and partially occupied by one Dolores Jean Wright; that following the arrest of appellant and Hazel Geary at the Idle Hour Cafe, in the early evening of April 23, 1959, Dolores Jean Wright was arrested, accused of illegal possession of narcotics and taken to police headquarters. Two law enforcement officers testified that following the arrest of Dolores Jean Wright they requested her permission to search her apartment; that Dolores Jean 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 Dolores Jean 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 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 Dolores Jean Wright, two officers who testified they had secured verbal permission to search the premises and another officer who testified that after the search Dolores Jean 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 into 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 Dolores Jean 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 exhibits 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 thereto.

The evidence consisted of the $400.00 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 such evidence. Following the hearing on the motion and prior to trial the District Court denied the motion to suppress. It appears that following the arrest of appellant on the evening of April 23rd, the automobile of appellant was impounded by the officers. While so impounded, and on April 30, 1959, the officers received information from an undisclosed source that the marked money was secreted in appellant's car. On search of the same, without a search warrant and without appellant's permission, the officers found the marked currency secreted in the headlight section of his car.

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 said exhibits, appellant moved to suppress the same for use in evidence under the provisions of Rule 41(e), ...