Dege v. United States

• Decision Date: 21 September 1962
• Docket Number: No. 17805,17806.,17805
• Citation: 308 F.2d 534
• Parties: Lucille Aldine DEGE and Ernest Dege, Appellants, v. UNITED STATES of America, Appellee. Lucille DEGE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

308 F.2d 534 (1962)

Lucille Aldine DEGE and Ernest Dege, Appellants, v. UNITED STATES of America, Appellee.

Lucille DEGE, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17805, 17806.

United States Court of Appeals Ninth Circuit.

September 21, 1962.

Harry D. Steward and Mary E. Harvey, San Diego, Cal., for appellants.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, and Elmer Enstrom, Jr., Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before STEPHENS, BARNES and JERTBERG, Circuit Judges.

BARNES, Circuit Judge.

This is another case involving the smuggling of psitticine birds from Mexico to the United States.

Appellants, husband and wife, were jointly indicted on August 21, 1958, in the United States District Court for the Southern District of California, Southern Division (No. 27809), charged with conspiracy to so smuggle between October 1957 and March 1958 (an alleged violation of 18 U.S.C. §§ 371 and 545). The district court dismissed the indictment as to both defendants on the ground that husband and wife were legally incapable of so conspiring under § 371. The Supreme Court reversed (364 U.S. 51, 80 S.Ct. 1589, 4 L.Ed.2d 1563). The defendant Lucille Dege was reindicted in February 1961, charged with the last overt act named in the previous conspiracy count, i. e., receiving, concealing and facilitating the concealment of 389 psittacine birds on March 7, 1958, knowing them to have been illegally imported (an alleged violation of 18 U.S.C. § 545). The new action was consolidated with No. 27809, and both actions tried before one jury, which convicted both defendants; Lucille Dege on two counts and Ernest Dege on one.

We note that neither after the government's case was completed below, nor after the defense and rebuttal had closed, were motions for acquittal made. Nor was there any objection to the instructions given,¹ nor any other matter raised by motions at that time. No motion for new trial was urged on the trial judge.

Appellants now state as "the question presented": Were so many errors committed by the trial court in ruling upon the admissibility of evidence, that the cumulative effect of these errors upon the jury was so great as to deprive appellants of their constitutional right to a fair trial? Our answer is "no."

These errors are listed as follows:

I

The admission in rebuttal of an alleged telephone conversation between appellant Lucille Dege and Customs Inspector Freeman.

Appellants concede that when the defense of entrapment is raised (as it was in this case) the government may inquire into prior acts and conduct of a defendant to show reasonable grounds for belief an illegal act was subsequently committed. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. Appellants cite Wigmore to prove that "when the person first calling up on a telephone is the very one to be identified, his mere purporting to be `A'" is insufficient identification as to "A" to permit the introduction of the conversation into evidence. Such statement does not accurately state the government's position here. The government relies on "the substance of the communication itself" as being sufficiently corroborative of identification to constitute prima facie proof thereof. Jarvis v. United States, 1 Cir., 1937, 90 F.2d 243, certiorari denied, 302 U.S. 705, 58 S.Ct. 25, 82 L.Ed. 544; Van Riper v. United States, 2 Cir., 1926, 13 F.2d 961, 968.

This exception to the general rule is recognized by appellants (Br. 23), but they assert it is inapplicable because there are "no closely related circumstances." We disagree. Mrs. Dege was (as the woman on the telephone stated herself to be): (a) in the bird business; (b) located in El Cajon, California; (c) owner of a four-door 1954 Cadillac sedan automobile; (d) in possession of knowledge on August 18, 1956, that her said four-door Cadillac sedan had on the previous day, August 17, 1956, in Jacumba, California (near the Mexican border), been found with "birds" in it. These are sufficiently "closely related circumstances" to make the question of the admissibility of the alleged conversation with a person making the representations a matter of discretion resting with the trial judge. In exercising that discretion, "the trial judge possesses wide latitude in the determination of the relevancy or materiality of evidence and his ruling cannot be reversed in the absence of an abuse of discretion." Wilson v. United States, 9 Cir. 1957, 250 F.2d 312, 325. We hold there was no abuse of discretion here.

II

Permitting on cross-examination the asking of a question with respect to Lucille Dege's knowledge of the alleged fact that "birds had been found by the Customs authorities in your 1954 four-door Cadillac sedan on August 17, 1956, in Jacumba, California." The witness replied she "had heard so the next day."

This question, in view of defendant's defense of entrapment, was proper. It was her answer that proved it hearsay as to her; the question did not ask for hearsay information. Mrs. Dege was permitted to explain the reason she had permitted someone else, to use her automobile. This explanation established as true the fact the question assumed; i. e., that illegal birds had been found in her automobile near Jacumba, California, fourteen months prior to the beginning of the charged conspiracy. The answer established the good faith of the questioner. It was not a mere fishing expedition, or worse, a misstatement of fact by a prosecutor incapable of being...