Butler v. United States, 6221.

• Decision Date: 15 September 1951
• Docket Number: No. 6221.,6221.
• Citation: 191 F.2d 433
• Parties: BUTLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

191 F.2d 433 (1951)

BUTLER v. UNITED STATES.

No. 6221.

United States Court of Appeals Fourth Circuit.

Argued June 27, 1951.

Decided September 15, 1951.

J. Franklyn Bourne, Washington, D. C. (Curtis P. Mitchell, Frank D. Reeves and B. Dabney Fox, all of Washington, D. C., on the brief), for appellant.

Frederick J. Green, Jr., Asst. U. S. Atty., Baltimore, Md. (Bernard J. Flynn, U. S. Atty. and C. Ross McKendrick, Asst. U. S. Atty., Baltimore, Md., on the brief), for appellee.

Before SOPER, and DOBIE, Circuit Judges, and TIMMERMAN, District Judge.

DOBIE, Circuit Judge.

This is an appeal from a criminal conviction in the United States District Court for the District of Maryland. Appellant, hereinafter called defendant, was convicted of the sale of narcotics in violation of the Harrison Narcotic Act, 26 U.S.C.A. §§ 2550 et seq., 3220 et seq., and the Marihuana Tax Act, 50 Stat. 551.

Sometime in January, 1950, at the request of the Provost Marshal at Andrews Field, a large air force base in Maryland, federal narcotic agents, Newkirk and Pappas, undertook an undercover investigation of alleged drug traffic at that base. During the course of this investigation, these agents, under the pretense of purchase for resale, bought both heroin and marihuana from defendant and other drug peddlers at Andrews Field.

Defendant was indicted for the sale of narcotics by the Grand Jury for the District of Maryland on April 4, 1950, and a bench warrant for his arrest was subsequently issued. He was not apprehended, however, until June 17, 1950, when he was arrested in Washington, D. C., and taken to Baltimore, where he was held in jail in lieu of $2,000 bond. On June 30, 1950, defendant was arraigned and entered a plea of not guilty.

Defendant was tried and convicted in December, 1950, and was given a sentence of four and one-half years. The positive testimony of agents Newkirk and Pappas established five sales of heroin and one sale of marihuana to them by the defendant. Defendant did not introduce any testimony which even tended to refute the testimony of these two agents.

On appeal, defendant has raised some twenty-seven points of error. After a careful examination of the record, we find no merit in his contentions either singularly or collectively. Indeed, many of the points raised are so lacking in merit as not to warrant comment by this Court.

The first error alleged is the Court's refusal to inquire of the jurors whether any of them were associated with, friendly to, or related to, the United States Attorney or any of the prosecution's witnesses. Rule 24(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. vests in the trial judge a certain discretion as to what questions should be asked jurors on voir dire. See United States v. Dennis, 2 Cir., 183 F.2d 201, 226-227; Fredrick v. United States, 9 Cir., 163 F.2d 536, 550-551.

This Court is not free to interfere unless a clear abuse of discretion is shown. Bratcher v. United States, 4 Cir., 149 F.2d 742; Speak v. United States, 10 Cir., 161 F.2d 562. We find no such abuse of discretion in this case. Although the Court refused to allow defense counsel to put his inquiry to the jury, it did make such an inquiry of the prosecutor. The Assistant United States Attorney went over the jury list and satisfied the Court that he had no such acquaintance or relation with any of the jurors as would disqualify them. Under these circumstances we feel the trial court did all that could reasonably be expected; so defendant can hardly argue this exercise of discretion to be reversible error, particularly when there is not even an allegation, much less proof, that any disqualifying relationship existed between the United States Attorney and his witnesses on the one hand and any of the jurors on the other.

The defendant urges that the trial court committed reversible error by allowing the United States Attorney in his opening statement and closing argument to mention intoxicating liquors, the harmful effects of improper use of narcotics, other narcotic cases, conspiracies and how the case developed, since such statements were "inflammatory and highly prejudicial." Defendant also argues that prejudicial references were made to defense counsel. Defendant's contentions are wholly lacking in merit. The very purpose of an opening statement is to inform the jury how the case developed, its background and what will be attempted to be proved.

An excellent illustration of what defendant has denoted as "inflammatory and highly prejudicial" is that portion of the opening statement which refers to intoxicating liquors in this language: "* * it is enough to say that the right of the government to control is, very fortunately, based upon its control of revenue by taxing and thereby maintaining control. That is also applied to intoxicating liquors. In the case of narcotics it is something more than that." The opening statement and closing argument of the Government were perfectly proper. Defendant's argument can best be answered by Judge Coleman's statement in the Court below: "The Court tried to make it clear to defendant's counsel at the beginning of this case that what is said in argument by counsel is not evidence; and they have a perfect right to give a whole picture and description of the background of the case. In doing that they can talk about the perils of the use of narcotics, the number of cases the Court has had previously, and why they are distressing and terrible cases. He can go into that to any extent that is reasonable and not a waste of time. You can do the same."

The alleged personal reference to defense counsel is contained in this statement by the Assistant United States Attorney:

"Mr. McKenrick: There is testimony that some of the group appeared there who have already appeared in this Court, and with the very contemptible purpose of introducing into our armed forces these narcotics, marihuana and heroin. It is also very unfortunate that there are lawyers who are ready to — "Mr. Mitchell: I object to this, — an affront to all of us.

"Mr. McKenrick: There is no affront to you.

"Mr. Mitchell: Every man in this country is entitled to be defended. I do not have to be castigated like that.

"The Court: The United States Attorney is speaking generally about the past cases that have been brought.

"Mr. Mitchell: No, your Honor, he made a specific statement with reference to the lawyers who represent the defendant.

"The Court: I do not understand that he has made any attack."

If any affront was intended, the timely objection of defense counsel certainly prevented any error being committed. Even if some parts of this statement were improper, the overwhelming evidence of defendant's guilt would not permit a reversal by this Court. See McFarland v. United States, 80 U.S.App.D.C. 196, 150 F.2d 593, 594.

Defendant's contention that the trial court erred in not directing a verdict in his favor on the even counts of the indictment, when the United States Attorney in his opening statement failed to "allege a specific violation by the appellant under the terms of the statute," appears to this Court to be ridiculous. A party is not bound by his opening statement, nor is it the function of the opening statement to apprise the accused of every aspect of the charges against him — that is done by the indictment. If no opening statement had been made, defendant would certainly not be entitled to a directed verdict. In this case, moreover, defendant was informed by the Assistant United States Attorney on inquiry by the Court that there had been no abandonment.

Defendant's contention that the Government failed to produce evidence to support the even counts of the indictment is also without merit. A cursory reading of 26 U.S.C.A. § 3224(c) shows that a presumption of violation arises from mere possession of heroin without registration and payment of the special tax. Defendant has introduced no evidence to rebut the presumption. See United States v. Wilson, D.C., 225 F. 82, 84.

Defendant next contends he was denied a fair trial because of the Court's characterization of his counsel's remarks as "capricious, fanciful and foolish" and their conduct as "frivolous." The Court's statements must be judged in the light of the circumstances in which they were made. Defense counsel had objected time and again to various points in the Government's opening statement — all of which were overruled. At the close of that statement, defendant's counsel had asked for a directed verdict on the ground that the even counts in the indictment had been abandoned. When that motion was denied, counsel again attacked the opening statement as being "inflammatory." He then asked for a directed verdict because of an alleged variance between the number of sales of narcotics mentioned in the opening statement and those charged in the indictment — actually there was no variance....