Demos v. United States

• Decision Date: 06 August 1953
• Docket Number: No. 14340.,14340.
• Parties: DEMOS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

205 F.2d 596 (1953)

DEMOS v. UNITED STATES.

No. 14340.

United States Court of Appeals Fifth Circuit.

June 26, 1953.

Rehearing Denied August 6, 1953.

M. C. Gonzales, San Antonio, Tex., for appellant.

C. F. Herring, U. S. Atty., and Bradford F. Miller, Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before HOLMES, BORAH and RIVES, Circuit Judges.

RIVES, Circuit Judge.

The appellant was indicted along with one Richard A. Najera for having sold heroin to Sam F. Stowers in violation of Title 26 U.S.C. § 2554(a)¹. In Counts 2 and 3 of the same indictment, Richard A. Najera was indicted for two subsequent sales of heroin to Sam F. Stowers. Najera entered a plea of guilty to Counts 2 and 3, and both he and appellant stood trial under Count 1 of the indictment. The jury found both guilty as charged. Appellant's sentence, as a second offender, was the minimum five year term of imprisonment 26 U.S.C.A. § 2557(b) (1) and a fine of $100.00.

For reversal appellant makes two insistences: (1) that the evidence was insufficient to sustain the verdict and judgment; and (2) that the undisputed evidence established the defense of entrapment.

Sam F. Stowers was a Government narcotic agent stationed at Dallas, Texas, and was sent "on this one job" to San Antonio in that capacity. He came with "a letter of introduction from a police character in Dallas" to an ex-convict named Frazier in San Antonio. Frazier introduced him to Najera, and Najera testified:

"He (Frazier) was with us for about two or three days first, when he first got that heroin for him, because I told him that I was scared of him, I didn\'t know him, or anything like that, and he said, `Well, I will get some for him, so that you will know that he is all right,\' and then he got some for him * * *."

Najera further testified that thereafter he had sold heroin to Stowers on two occasions prior to the time laid in Count 1 of the indictment.

Stowers was the only witness introduced on behalf of the Government. He testified that he had heard that the appellant operated as a "fence", taking stolen groceries for sale on the black market, and he sought to gain her confidence by apparently engaging in that illicit trade. He purchased some groceries and meat for which he paid $57.41; and with two boxes on the back seat of his automobile containing his purchases, he drove to the appellant's house and parked his car. Immediately, apparently by coincidence, Najera drove up by the side of his car and asked him what he was doing there. He told Najera that he had a load of groceries in the back seat of the car that he had to get rid of. He walked on ahead of Najera to appellant's house, knocked on the door, introduced himself to the appellant as Jesse Thomas, and stated that he had a load of groceries and wanted someone to help carry them in the house. Najera and the appellant had a conversation in Spanish and Najera and Stowers walked to the automobile, picked up the two boxes of groceries, and carried them into the house, where their values were tabulated and the appellant paid Stowers $25.00 or approximately one-half price for the groceries. What then occurred is best told in the language of the witness, which we have quoted in the margin².

Stowers thereafter made repeated efforts to purchase heroin from the appellant, but each time without success, "She always left it hanging in the balance, so to speak". On one occasion he offered her $90.00 for her to deliver to him three grams of heroin. She refused but told him that she would contact Najera and try to have him deliver the heroin.

The appellant did not testify in her own behalf and the court properly charged the jury that such was her privilege, and that her failure to testify should not be considered as any evidence of guilt. Najera testified admitting that he was an addict to heroin and was guilty of making a number of sales to Stowers, denying that he made the sale charged in Count 1 of the indictment or that the appellant had any connection with any of the sales. He testified that, when Stowers brought the supposedly stolen groceries, he happened to be at the appellant's home in the performance of some carpenter repair work for the appellant. He lived on the opposite side of San Antonio from appellant. The appellant was a half sister of Najera's wife.

There was no motion for a directed verdict on the ground of the insufficiency of the evidence. The appellant's counsel recognizes the validity of the rule that, in the present state of the record, the evidence will be reviewed by this Court only to prevent a manifest miscarriage of justice. Thomas v. United States, 5 Cir., 189 F.2d 430. By that test, in our opinion, the evidence was clearly sufficient to sustain the appellant's conviction.

The appellant did move the court to instruct the jury to return a verdict of not guilty on her behalf, "on the grounds that the undisputed evidence shows a careful and deliberate planned entrapment of said defendant". The court denied that motion but orally charged the jury as to the defense of entrapment as set out in the margin³.

The opinion of the Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, is the controlling authority in the federal courts on the defense of entrapment. Among other authorities, that opinion refers to the leading case of Butts v. United States, 8 Cir., 273 F. 35, 18 A.L.R. 143, opinion by Circuit Judge Sanborn, and to the decision of this Circuit in Gargano v. United States, 24 F. 2d 625, opinion by Circuit Judge Bryan. The defense is permitted upon the theory that, though the acts of the defendant come within the letter of the statute, they may be foreign to its purpose. "Fundamentally, the question is whether the defense, if the facts bear it out, takes the case out of the purview of the statute because it cannot be supposed that the Congress intended that the letter of its enactment should be used to support such a gross perversion of its purpose." Sorrells v. United States, supra, 287 U.S. at page 452, 53 S.Ct. at page 216. The controlling question was stated to be "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials." Id. 287 U.S. at page 451, 53 S.Ct. at page 216. The opinion carefully draws attention that,

"* * * the defense of entrapment is not simply that the particular act was committed at the instance of government officials. That is often the case where the proper action of these officials leads to the revelation of criminal enterprises. Grimm v. United States, supra 156 U.S. 604, 610, 15 S. Ct. 470, 39 L.Ed. 550. The predisposition and criminal design of the defendant are relevant." Id. 287 U.S. at page 451, 53 S.Ct. at page 216.

In the case from this Circuit, Gargano v. United States, supra, 24 F.2d at page 625, it was well said that, "* * * the test was whether the offense originated in the mind of the accused, or in the mind of the official * * *." For the offense to originate in the mind of the defendant, it was not necessary that the defendant be the instigator of the particular sale or act, but only that she have the general intention to commit such an offense whenever the opportunity offered.

While the appellant's former conviction would have been admissible before the jury when it appeared that she was relying on the defense of entrapment, see Carlton v. United States, 9 Cir., 198 F.2d 795, it was not actually brought forth until the pre-sentence hearing. Nor did the Government produce evidence before the jury to show its grounds for...