Cross v. United States, 17830.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: BLACKMUN and RIDGE, Circuit , and REGISTER
• Citation: 347 F.2d 327
• Parties: Rebecca CROSS, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 17830.,17830.
• Decision Date: 23 June 1965

347 F.2d 327 (1965)

Rebecca CROSS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17830.

United States Court of Appeals Eighth Circuit.

June 23, 1965.

347 F.2d 328

DeWitte T. Lawson, Jr., of McDuffie, Cahill & Lawson, St. Louis, Mo., made argument for appellant and filed brief.

Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., and John A. Newton, Asst. U. S. Atty., St. Louis, Mo., submitted brief without oral argument for appellee.

Before BLACKMUN and RIDGE, Circuit Judges, and REGISTER, District Judge.

RIDGE, Circuit Judge.

After trial on a two-count indictment charging unlawful sales of narcotics, on two different days, in violation of 26 U.S. C.A. § 4705(a), appellant was found guilty by jury verdict and sentenced to concurrent terms of twenty years' imprisonment.

In the court below, appellant, standing on a motion for judgment of acquittal made at the close of the Government's case, offered no evidence in defense of the above charges. Nevertheless, we have reviewed the uncontradicted evidence adduced at appellant's trial in the light of Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L. Ed.2d 848 (1958), and are convinced that proof of facts as to defendant's guilt of the charges made against her was such as to warrant the submission of the issue of her guilt to the jury for determination.

The uncontradicted evidence adduced at appellant's trial established that two illegal sales of narcotics were made on the days specified in the indictment to two Government informers who were brothers, one of whom admittedly was a narcotics addict and had "done business" with appellant previously. Both such informers voluntarily agreed to take a Government narcotics agent to appellant's apartment to see if they could "make a buy." This came about as the result of a discussion between the agent and the informers concerning the narcotics trade in St. Louis, Missouri, generally, during which discussion appellant's name came up as one of the principal traders. Evidence was adduced at appellant's trial to the effect that she had a generally-known reputation as being an active dealer in narcotics. After the informers were searched they were provided with $30.00 in Government funds with which to purchase narcotics if their quest proved successful. At appellant's apartment an agent of the Government was introduced as a cousin of the informers. When she objected to his presence as a stranger and after assurances were given that he was all right, appellant, in the presence of the agent, agreed to sell two packets of heroin to one of the informers, but stated that they would have to go to her mother's house, as she did not keep narcotics in her own apartment. On arrival in the vicinity of her mother's house, the Government agent was told to wait in the car around the corner. The informer accompanied appellant to the house and stood on the porch while she went inside. Thereafter, as they walked back to the car, appellant handed that informer two small packets, which he later surrendered to the agent. The next day the same thing occurred * * * the two informers and the Government agent proceeded to appellant's apartment where they arranged to purchase two more packets of heroin. After paying $25.00 of Government funds to appellant they all proceeded to the same address as on the previous day at which time appellant delivered two packets to the informer in the presence of the Government agent. On both occasions the group was under continual surveillance by another agent who verified the general movements and actions of the group. The parties stipulated that the evidence of the Government chemist, if called, would be to the effect that the four packets purchased from appellant

347 F.2d 329

and introduced in evidence contained heroin, a derivative of opium

Appellant's sole assignment of error in this appeal is that an instruction, as given by her trial court, covering the defense of "entrapment," is erroneous. Entrapment was the only defense made to the charges for which appellant was prosecuted. Therefore, Instruction No. VII, as given by the trial court, is set out in its entirety in the margin.¹ Appellant's assertion of error in respect thereto is summarized in her brief as follows: "This instruction is erroneous because there is no such thing as a `lawful entrapment.' Entrapment is ipso facto and ipso jure a defense to a criminal charge." From that premise appellant argues that because of the definition of "lawful" entrapment as made in Instruction No. VII, ante, error exists in the record of this case because of conflict thereof with Instruction No. XIV,² the verdict-directing instruction, which he concedes correctly stated and required a finding of the essential facts to warrant appellant's conviction of the charges made against her. In other words, appellant, in effect admits that a finding of the facts as stated in Instruction XIV, beyond a reasonable doubt, is sufficient to sustain her convictions, if the jury was properly charged as to "entrapment" as submitted by Instruction VII, ante.

At the outset of our consideration of this appeal we are met with the problem that the instructions complained of were only given to the jury by the court below after appellant's initial objection thereto was withdrawn, thus bringing into operation Rule 30, F.R.Cr. P., which provides, in part: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto * * * stating distinctly the matter to which...