Cratty v. United States

• Decision Date: 09 June 1947
• Docket Number: 9296.,No. 9271,9271
• Citation: 163 F.2d 844,82 US App. DC 236
• Parties: CRATTY v. UNITED STATES. PULLMAN v. SAME.
• Court: U.S. Court of Appeals — District of Columbia Circuit

82 US App. DC 236, 163 F.2d 844 (1947)

CRATTY v. UNITED STATES.

PULLMAN v. SAME.

Nos. 9271, 9296.

United States Court of Appeals District of Columbia.

Argued March 3, 1947.

Decided June 9, 1947.

Mr. Saul G. Lichtenberg, of Washington, D. C., (appointed by this Court), for appellant Fred I. Cratty.

Mr. M. Edward Buckley, Jr., of Washington, D. C., for appellant Charles W. Pullman.

Mr. John D. Lane, of Washington, D. C., Assistant United States Attorney, with whom Messrs. George Morris Fay, United States Attorney, Cecil R. Heflin and Sidney S. Sachs, Assistant United States Attorneys, all of Washington, D. C., were on the brief, for the United States. Mr. Edward M. Curran, United States Attorney, of Washington, D. C., at the time the records were filed, also entered an appearance for the United States.

Before STEPHENS, EDGERTON and WILBUR K. MILLER, Associate Justices.

STEPHENS, Associate Justice.

These are appeals from convictions in the District Court of the United States for the District of Columbia of violation of the Marihuana Tax Act of 1937, 50 Stat. 551, as amended, Act Feb. 10, 1939, 53 Stat. 279, §§ 2590-2602, March 8, 1946, 60 Stat. 40, § 2591(e), 26 U.S.C.A. §§ 2590-2602, 26 U.S.C.A. § 2591(e). The pertinent portions of that statute are set forth in the margin.¹ The appellants Cratty and Pullman, hereinafter for convenience sometimes referred to by those names, were indicted jointly on February 19, 1945, and were jointly tried. The indictment contains six counts. Counts 1, 3 and 5 charge a violation of Section 2591(a) making it unlawful for any person not within the exceptions specified in the statute to transfer marihuana except in pursuance of a written order, of the person to whom such marihuana is transferred, on a form to be issued in blank by the Secretary of the Treasury. Counts 2, 4 and 6 charge a violation of Section 2590(a) requiring the payment of taxes at specified rates upon all transfers of marihuana which are required by Section 2591 to be carried out in pursuance of written order forms. Specifically, count 1 charges that Pullman and Cratty on November 1, 1944, in the District of Columbia, unlawfully, fraudulently, feloniously and knowingly transferred to one Jack Goodman ten marihuana cigarettes and that the transfer was not made in pursuance of a written order of Goodman on the required form. Count 3 contains a similar charge relating to November 2, 1944, and count 5 a charge relating to November 7, 1944, similar in other respects to the charges in counts 1 and 3 except that the transfer is alleged to have been made to Goodman and one Hyman J. Spitalnick and that the marihuana is designated as a quantity of two hundred and twenty grains. Count 2 charges that Pullman and Cratty on November 1, 1944, in the District of Columbia, "being then and there transferees of Marihuana, and being then and there transferees required to pay the transfer tax," did knowingly, unlawfully and feloniously acquire or otherwise obtain ten marihuana cigarettes without having paid the tax. Count 4 contains a similar charge relating to November 2, 1944, and count 6 a charge relating to November 7, 1944, and similar in other respects to the charges in counts 2 and 4 except that it describes the marihuana as being in the amount of two hundred and twenty grains. It will be noted that in counts 1, 3 and 5, Pullman and Cratty are charged, within Section 2591(a), as transferors of marihuana to Goodman (counts 1 and 3) and to Goodman and Spitalnick (count 5), whereas in counts 2, 4 and 6 they are charged, within Section 2590(a), as transferees, no mention being made of a transferor. Although it is not specifically referred to in the indictment, reliance in respect of counts 2, 4 and 6 is necessarily also upon Section 2590(b) because it is that subparagraph which makes a transferee, as well as a transferor, liable for the tax imposed by the section.

Summarily stated, the evidence was to the following effect:

Ralph B. Mullis, alias Jack Goodman, a Bureau of Narcotics informer, with a record of convictions for white slavery and and grand and petit larceny, had known Cratty and Pullman for two or three years. On November 1, 1944, at about 1:30 a. m., Mullis saw Pullman at Thomas Circle in the District of Columbia and talked to him about the sale of marihuana cigarettes. Pullman did not then have any but thought that he could get some if Mullis would meet him in half an hour in front of the Greyhound bus station. Mullis and a Bureau of Narcotics agent named Spitalnick went to the bus station and there the agent searched Mullis and found no marihuana upon him. Mullis then met Pullman outside the bus station. Pullman told him that he would supply him with a telephone number through which he could get marihuana at any time. Mullis then crossed New York Avenue with Pullman to a taxicab and as they approached it, Cratty got out and handed Pullman ten marihuana cigarettes. Pullman gave these to Mullis in exchange for $5 furnished Mullis by Spitalnick. Mullis returned to Spitalnick and delivered the cigarettes to him. Mullis gave Cratty and Pullman no order form.

On November 2, in the morning, at the Peoples Drug Store on Thomas Circle, Mullis and Pullman again had a conversation about the sale of marihuana. Pullman said that he would first have to make a telephone call and did so. Mullis and Spitalnick went to 16th and S Streets, N. W., where Cratty appeared. He told Spitalnick and Mullis that he had no marihuana. Spitalnick and Mullis then returned to Thomas Circle where Mullis met Cratty. Mullis and Cratty walked up by a church on the Circle and there Cratty sold him ten marihuana cigarettes for $5, again furnished by Spitalnick. Mullis gave Cratty no order form.

On November 7, about 1:30 a. m., at 14th and L Streets, N. W., Mullis met Cratty and one Boham who asked Mullis if he wanted a "pick-up." Mullis claimed to be "broke," whereupon Cratty inquired whether Mullis could not get the person who went around with him "to spring" for an ounce as he, Cratty, was getting out of town. Mullis then, by agreement, met Cratty at a jewelry store in the Colorado Building at 4:30 in the afternoon and there gave Cratty $10 furnished by Spitalnick; Spitalnick gave Cratty an additional $10. Cratty then left a paper bag lying on a radiator in the lobby stating that it contained "a good ounce" and he and Boham then left. Mullis gave the bag to Spitalnick. Neither he nor Spitalnick had an order for this marihuana.

Evidence to the foregoing effect was supplied by Mullis, alias Goodman.

In March, 1945, in the presence of Pullman\'s attorney and in his office, demand was made by the Collector of Internal Revenue, Baltimore, Maryland, upon Pullman for a 1944 order form in connection with the sale of marihuana. A similar demand was made on Cratty in the courtroom lobby on the morning of the opening of the trial on March 4, 1946. Both Pullman and Cratty stated that they had no order form. Copies of written requests by the Collector for order forms were introduced in evidence.

The evidence of the Collector's demand and non-compliance therewith was supplied by Harley K. McVicker, the Collector above referred to.

Corroborating evidence supplied by the Bureau of Narcotics agent Spitalnick was to the following effect:

On November 1 a conversation about the sale of marihuana between Mullis and Pullman was held in Spitalnick\'s presence. Spitalnick searched Mullis in the bus station and supplied him with $5. Thereafter Spitalnick stood outside the bus station with Mullis and observed Pullman come up and motion Mullis to follow him. Mullis and Pullman disappeared through the park but Mullis shortly returned and had in his possession ten marihuana cigarettes and did not have the $5 which Spitalnick had just given him.

On November 2, at the D. C. Diner, Spitalnick searched Mullis and gave him $5. At about 1 a. m., a conversation between Mullis and Pullman about the sale of marihuana was held in Spitalnick\'s presence at the Peoples Drug Store on Thomas Circle, and he was present when Cratty met Mullis at 16th and S Streets, N. W., and told Mullis that he then had no marihuana. About half an hour later at Thomas Circle Spitalnick, from a restaurant, saw Cratty and observed Mullis meet him and walk away with him. Thereafter when Mullis returned, Spitalnick searched him and found ten marihuana cigarettes and did not find the $5 which he had theretofore given him.

On November 7 a sale of bulk marihuana by Cratty was to both Spitalnick and Mullis. Cratty on this occasion discussed the transaction with Spitalnick who personally paid to Cratty $10 of the purchase money.

Evidence was supplied by Albert A. Spear, a chemist in the employ of the Bureau of Internal Revenue, to the effect that:

The cigarettes referred to in the evidence were marihuana cigarettes and the bag contained two hundred and twenty grains of marihuana.

After the introduction of evidence to the foregoing effect, the Government rested. Motion for directed verdict was then made as to Pullman in respect of counts 5 and 6 upon the ground that there was no evidence of any participation by him in the transaction of November 7, 1944, to which those two counts relate. This motion was granted. Motion was then made in behalf of Pullman in respect of counts 1, 2, 3 and 4 for a directed verdict upon the ground that the Government's evidence disclosed entrapment. Thereupon the trial court, upon request of the Government, reopened the case and permitted the Government to call the witness Spitalnick and another Bureau of Narcotics agent, one Albert R. Bendon. These witnesses testified to the following effect:

Spitalnick, before he directed Mullis to contact Pullman, had information from a reliable source that Pullman had been engaged in the sale of marihuana cigarettes. He had, moreover, seen Pullman associating with marihuana users.

Bendon, prior to the time that Mullis got in touch with

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