Dawkins v. United States

• Decision Date: 18 November 1963
• Docket Number: No. 18654.,18654.
• Citation: 324 F.2d 521
• Parties: Clarence DAWKINS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

324 F.2d 521 (1963)

Clarence DAWKINS, Appellant, v. UNITED STATES of America, Appellee.

No. 18654.

United States Court of Appeals Ninth Circuit.

November 18, 1963.

Rockwood, Davies, Biggs, Strayer & Stoel, and Edward L. Epstein, Portland, Or., for appellant.

Sidney I. Lezak, U. S. Atty., and Donal D. Sullivan, Asst. U. S. Atty., Portland, Or., for appellee.

Before CHAMBERS and BARNES, Circuit Judges, and BEEKS, District Judge.

BEEKS, District Judge.

Clarence Dawkins has appealed from a judgment of conviction and sentence imposed after a jury found him guilty on three counts of an indictment charging him with violating federal narcotics laws.¹

Jurisdiction of the District Court was invoked under the provisions of 18 U.S. C. § 3231. Jurisdiction of this Court to review the appeal rests on the provisions of 28 U.S.C. §§ 1291 and 1294.

Appellant seeks reversal of the judgment of conviction on two grounds:

1. That the evidence adduced at the trial was insufficient to support the verdict and the judgment of conviction entered thereon.

2. That the trial court erred in failing to instruct the jury that "the testimony of an informer must be examined with greater scrutiny than the testimony of an ordinary witness."

Sometime prior to July 3, 1962, Imogene Terry Lewis, a convicted narcotics addict, volunteered her services to the Government as an informer. Miss Lewis testified that she had been acquainted with appellant since approximately 1956, had often discussed narcotics with him, and that it was mutually understood between them that appellant would call her whenever he had narcotics available. She further testified as follows: On July 3, 1962, she received a telephone call from appellant offering to sell her heroin and she immediately alerted federal narcotics agents. Thereafter, at about 2:00 p.m. of said day, appellant called again and agreed to meet her at the Fred Meyer store in north Portland to conduct the sale, and then called her again at 3:00 p.m. to advise her that he would meet her at the agreed location in a half hour. She advised the federal agents of these subsequent calls and arranged to meet them in the underground parking lot of the Fred Meyer store.

The agents testified that after meeting Miss Lewis at the store parking lot they determined that the store would not be a desirable location for observation purposes and instructed Miss Lewis to consummate the sale at a location where they could observe appellant. According to Miss Lewis, she then entered the Fred Meyer store, met appellant and took him to the Silk Hat Restaurant some two blocks away, where they entered a booth and sat down. She then excused herself on the pretext of visiting the restroom and returned to the store parking lot where the agents searched her purse, gave her $120 in Government funds and drove her to the rear of the Silk Hat Retaurant. She then got out of the car and walked to the front of the Restaurant. One agent heard appellant whistle to Miss Lewis when she appeared in front of the restaurant and two agents observed their meeting just across the street from the restaurant. Miss Lewis testified that appellant then passed her a pack of Pall Mall cigarettes with a red balloon containing what later was identified as heroin and that immediately thereafter she returned the cigarette package with the Government funds. While none of the agents testified they actually saw what passed between appellant and Miss Lewis, two observed the meeting of their hands and one observed the passage back and forth of an object bigger than the hand. According to Miss Lewis, she then told appellant that she was going to retrieve her purse and gloves from the restaurant and returned to the agents to whom she delivered the red balloon and who again searched her purse.

Appellant was arrested three months after the above events took place and Agents Windham and Gooder testified that following his arrest appellant stated to them that if his preliminary hearing disclosed a good case against him he would not need an attorney, and also stated, in response to an inquiry about his source of supply of heroin, that he would rather not say — that he did not wish to get anyone else in trouble. Miss Lewis further testified that while visiting appellant in jail following his arrest he asked her if she had any film of the heroin transaction.

Appellant did not testify but presented the testimony of one James DeCarlo, whom appellant had met following his arrest while both were incarcerated in the county jail, who testified that on a previous occasion Miss Lewis and one Floyd Love attempted to enlist his services to "frame" appellant.

Although appellant did not move for acquittal in the trial court at the close of the evidence, which is a prerequisite to challenging the sufficiency of the evidence on appeal, Hardwick v. United States, 296 F.2d 24 (9th Cir. 1961); Foster v. United States, 318 F.2d 684 (9th Cir. 1963); Castro v....