Byrth v. United States

• Decision Date: 17 February 1964
• Docket Number: No. 17387.,17387.
• Citation: 327 F.2d 917
• Parties: Eunice BYRTH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

327 F.2d 917 (1964)

Eunice BYRTH, Appellant, v. UNITED STATES of America, Appellee.

No. 17387.

United States Court of Appeals Eighth Circuit.

February 17, 1964.

James Bell, St. Louis, Mo., for appellant.

Richard D. FitzGibbon, Jr., U. S. Atty., and William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

Defendant Eunice Byrth has appealed his conviction by the United States District Court, sitting without a jury, for the possession and sale of narcotics in violation of 21 U.S.C.A. § 174 and 26 U.S.C.A. § 4705(a). The defendant maintains that deficiencies in the Government's circumstantial evidence precluded the trial court from finding beyond every reasonable hypothesis that the defendant was the source from which an informer working for Federal Narcotics Agents allegedly purchased narcotics.

Viewing the evidence most favorable to the prevailing party, the record of trial indicates that on the evening of May 7, 1962, agents of the Federal Bureau of Narcotics met one Frederic Ray, a narcotic addict, on the street in St. Louis, Missouri. Ray, a former convict and friend of the defendant since they had met while both served sentences together in prison, had volunteered to act as an informer for the agents and attempt to arrange a narcotics sale from defendant, a suspected drug peddler. Agent Jimmie Snokhous testified that in the presence of Agents Edward Demorest and James Parker, he searched Ray, who was seated in a government vehicle's back seat, by examining his pockets, feeling around his waistline, under his armpits, around his ankles, over his shoes, and generally over most of his body. Snokhous found no money or narcotics on Ray's person. Following the search, Agent Demorest accompanied Ray to a nearby telephone booth where the latter placed a call. Demorest's testimony concerning the identity of the party with whom Ray conversed was ruled inadmissible by the trial court. The three agents and Ray then drove to another location, at which time Agents Parker and Snokhous left Demorest and Ray in the government sedan to travel in a special government, panel truck which would take them to the scene of Ray's rendezvous with defendant and provide Snokhous with a hidden vantage point for surveillance of the anticipated purchase of narcotics.

Meanwhile, Agent Demorest drove Ray to the northeast corner of Labadie and Prairie Avenue near Ray's home at 3822 Labadie, the intended meeting place with defendant. There, Demorest performed a second, but more detailed, search of Ray without requiring him to strip, but who was coatless at the time. Demorest inspected Ray's hat and hatband, felt and looked around his shirt collar, sleeves, arms, armpits, chest and body area, trousers' waistband and pants legs including his stockings and around the inside of the tops of his shoes which were not removed. Again finding no narcotics or money in Ray's possession, except some silver coins, Demorest gave Ray $100.00 in bills of small denominations from official funds before Ray departed the vehicle about 8:00 p. m. and proceeded walking west on the south side of Labadie Avenue towards his house approximately eighty-five yards away. Demorest observed Ray until he reached his yard and turned left into the walkway leading to the front steps of his house.

Agent Snokhous was by this time stationed out of sight at a louvered aperture in the closed panel area of the government truck parked on the north side of Labadie about fifty-five feet directly across from Ray's house. He picked Ray up in his observation walking from the east on Labadie and also saw him turn into his yard and sit down on the steps. Keeping Ray in continuous view, Snokhous testified that the defendant arrived approximately one hour later about 9:30 p. m. by taxi and sat down alongside Ray who had been waiting there since his arrival. Although it was after dark, Snokhous' view was aided by an electric street lamp on his side of the street and the utilization of illuminated binoculars.

According to Snokhous' undisputed testimony, the defendant handed Ray a small, dull colored object; while momentarily thereafter, Ray handed defendant an object, both of which the witness could not identify. Snokhous watched Ray and defendant then walk west on Labadie together for about seventy-five yards, whereupon they separated, and Ray returned to his former seat on the front steps of his house. Snokhous continued to observe Ray who, about twenty minutes later, proceeded to walk east on Labadie towards the intersection with Prairie Avenue where Agent Demorest awaited his return. Although Ray passed from Snokhous' line of sight, Demorest stated that he first saw Ray approaching at 9:45 p. m. walking east on Labadie about two-thirds of the distance from where he was parked at the intersection to Ray's house. Ray came directly to Demorest and handed him a brown, manila, envelope which, upon immediate examination by Demorest, was found to contain a quantity of white powder. Demorest performed another search of Ray, similar to his previous one, finding no other narcotics nor the $100.00 which he had earlier entrusted to him.

Snokhous testified that during his surveillance of Ray's activities, he came in contact with no one other than defendant. Demorest added that he observed Ray contact no one during his walk from the vehicle to his house and while observed en route returning to the agent's vehicle. Both of these witnesses stated that at no time during their observation of Ray did he give the appearance of picking up an object from the ground near his shoes.

Agents Snokhous and Demorest further testified the envelope and its white powder contents were subsequently forwarded to the United States Chemist with the Alcohol and Tobacco Tax Division at Omaha, Nebraska, for analysis. The United States Chemist testified that the white powder contained ten per cent heroin hydrochloride, a narcotic. There was no break in the custody of the narcotics from the time the informer made delivery to the agents until it was analyzed by the chemist and later introduced into evidence at the trial.

The only evidence presented by the defense was defendant's testimony in his own behalf. He...