DeRose v. United States, 17996.

• Decision Date: 16 April 1963
• Docket Number: No. 17996.,17996.
• Citation: 315 F.2d 482
• Parties: Clarence DeROSE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

315 F.2d 482 (1963)

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

No. 17996.

United States Court of Appeals Ninth Circuit.

March 15, 1963.

Rehearing Denied April 16, 1963.

Richard Alan Wasserstrom, Stanford, Cal., for appellant.

Cecil F. Poole, U. S. Atty., and Jerrold Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLIN and DUNIWAY, Circuit Judges and MADDEN, Judge of the Court of Claims.

DUNIWAY, Circuit Judge.

Convicted of selling a narcotic drug unlawfully imported into the United States (21 U.S.C. § 174) and of forcibly resisting federal officers who were engaged in performance of their duties (18 U.S.C. §§ 111 and 1114), DeRose appeals. He attacks only the narcotics conviction, for which he was sentenced to five years. (Sentence on the other count was one year, concurrent).

At the trial, DeRose testified that on February 9, 1962 he took a "special employee" of the government, one Douglas, to a place in San Francisco where the drug was "stashed," showed him the narcotic (Methadon) and received $500. He claimed, however, that the drug belonged to someone else, one Sonny Watkins. In addition to DeRose's own testimony, there is ample testimony, by Douglas himself and by federal agents, that the sale took place. Thus, DeRose's guilt is undisputed, except as to one element of the offense, illegal importation or knowledge of illegal importation.

On this appeal, he makes two contentions: 1. That certain admissions made by him to state and federal officers, that he imported the drug from Mexico, were improperly received in evidence because they were made after he had been told that if he cooperated he could plead guilty to a charge of violating the Harrison Act, in which case he would be eligible for probation or parole, as he is not under the present judgment. (See 26 U.S.C. § 7237(d).) 2. That the presumption established by the second paragraph of 21 U.S.C. § 174,¹ as applied to the possession of the drug Methadon here involved, is unconstitutional under the fifth amendment (due process) to the Constitution. He is represented by counsel assigned by this Court.

The jury had before it at least five items of evidence showing importation and knowledge:

1. A statement DeRose made to Douglas, on the way to the cite of the sale. DeRose was arrested immediately after the sale. Just before the sale, Douglas was equipped with a microphone and transmitter, and agent Wilkins heard DeRose "explaining to Mr. Douglas that he could get good stuff from Mexico and that the stuff could be cut several times. He explained to Mr. Douglas that the stuff he was taking him to at this time had not been touched by himself. He said he had not done anything to it." ("Stuff" meant the narcotic). There was no objection to this testimony, nor could any valid objection have been made. Standing alone, it would support a finding that DeRose imported the drug. When DeRose took the stand, he did not deny the statement. He said "The only mention was about cut, if it could be cut. He wanted to know could it be cut."

2. A statement made by DeRose on January 19. Officer Hilliard, of the Oakland police, produced by the government on rebuttal, testified that he talked with DeRose on January 19, in the presence of State Narcotics Agent McBee and a Mr. Fletcher, DeRose's then attorney. DeRose had been arrested on that day on a state narcotics charge. Over objection that the proposed evidence was "part of the prosecution's case in chief," and "cumulative," he was permitted to give the following testimony:

"Q. During that conversation was the name Sonny Watkins mentioned?

"A. Yes, it was.

"Q. Who mentioned it?

"A. Mr. DeRose.

"Q. What did he say about Sonny Watkins?

"A. He stated that he had met a Sonny Watkins in Mexico some months prior to the 19th of January, 1962, and that shortly before he had been arrested he had contacted this Sonny Watkins in San Francisco, and that Mr. Watkins had showed him how to package, dilute narcotics, and had, in fact, sold over $1,000 worth of narcotics for him.

"Q. The defendant had sold over $1,000 worth of narcotics to Watkins?

"A. He stated that Sonny Watkins had sold over $1,000 worth of narcotics for himself.

"Q. Did the defendant state where the narcotics came from?

"A. Yes, sir.

"Q. Where from?

"A. He said they came from his home town in Mexico, a town called Mazitlan. sic

"Q. Did he state who brought it into the United States?

"A. Yes.

"Q. Who?

"A. He stated that he did.

* * * * * * *

"Q. Did I understand the defendant said he had sold narcotics to Sonny Watkins?

"A. No, he stated that he had contacted Sonny and that Sonny had helped him dilute some narcotics, and that Sonny had sold over $1,000 worth of narcotics for him."

Hilliard also testified, on cross examination, that after the January 19 arrest, "we" asked DeRose to cooperate.

"Q. And as part of the cooperation, did you ask him to write to Mexico?

"A. I suggested he write to Mexico, yes, sir.

"Q. Now, Officer Hilliard, what did you tell Mr. DeRose you would do for him if he did cooperate?

* * * * * * *

"A. Yes, I told Mr. DeRose that if he would assist us in arresting the person who was supplying him with narcotics, that if he were found guilty of the possessing charge, that he was charged with in Oakland, I would see that the Court was made aware of his cooperation, and I would also notify the Probation Office of the help that he had given us.

"Q. Did you say also that you would talk to the judge in person?

"A. Yes, I did."

No motion to strike the Hilliard testimony was made by DeRose's counsel.

From this testimony, the jury could conclude that DeRose was in the business of bringing narcotics from Mexico, and disposing of them through Watkins. It could infer that the drug sold to Douglas some twenty-one days later, on February 9, was part of what DeRose had imported.

It is noteworthy, we think, that counsel made no attempt to show that DeRose's statement to Hilliard and McBee, made in the presence of DeRose's own lawyer, was subsequent in time to the suggestion of cooperation and offer of assistance, much less that it was induced by the suggestion or offer. The only reasonable conclusion is that it was not. The one objection that was made was addressed to the court's discretion, and there was no error in overruling it. (Lelles v. United States, 9 Cir., 1957, 241 F.2d 21, 25, and cases there cited.)

3. A statement made by DeRose on or about February 11. Agent Feldman testified that approximately two days after DeRose's arrest, he talked to DeRose in the presence of Hilliard, and gave the following version of the conversation:

"Q. Was there any discussion of narcotics at that time?

"A. There was, sir.

"Q. And what did the defendant say about narcotics, if anything, at that time?

"A. The defendant stated to Sgt. Hilliard, `I told you, Sergeant, I get my stuff from Mexico. I am willing to write a letter and bring the man up. I can\'t do any more.\'"

There was no objection. Our comments about the January 19 statement are equally applicable to this one.

4. A statement made by DeRose on March 15. Agent Feldman testified that on March 15, he had a conversation with DeRose at the jail in the presence of Mr. Lyon, Mr. DeRose's attorney, and of agent Tyler. He testified:

"Yes, sir, Mr. DeRose asked me if we found the particular thing we were looking for. I told him no, we didn\'t. I told him I thought perhaps there was more which he hadn\'t told us about. He again stated that he told us everything he had in San Francisco and, `As I stated to you before,\' he said, `I can go to Mexico and I can get the man who I get the stuff from and have him brought across the line.\' I told him that so far as Mexico was concerned, it was out and anything he had to do he would have to do in the United States."

The only objection was as to relevancy. That objection was obviously untenable.

On cross-examination, Feldman said that he had talked to Lyon, DeRose's attorney, and recited the conversation in the following manner:

"Q. Now, was it the gist of those conversations that if the defendant would cooperate, you would seek to aid him in this matter?

"A. That is correct, sir.

"Q. And by `aiding him,\' did you indicate that you would seek to have him charged under the Harrison Act?

* * * * * * *

"A. I believe, sir, there were two things in question: one, the question of his bail, and second, I believe I spoke to you and mentioned to you that many people who have cooperated with the approval of the United States Attorney\'s Office have been allowed to plead to the Harrison Act.

"Q. Now, you then stated that if he would cooperate you would use your efforts or those of your department to aid him?

"A. We did, sir.

"Q. Now, as a basis of that, did the defendant have a conversation with you?

"A. He did not. I retract that statement, sir. He had a conversation after I had spoken to Mr. Lyon, after his cooperation had proved to no avail.

"Q. This conversation in the City Jail, though, was in regard to cooperation?

"A. It was, sir.

"Q. Now, the idea being that if he would cooperate, you would aid him if you could?

"A. The idea was that if he would cooperate it would be brought to the attention of the United States Attorney and the Honorable Court.

"Q. Thereafter, these conversations followed?

"A. Just one conversation that I ever had with Mr. DeRose.

"Q. That was the conversation in the San Francisco County Jail, is that correct?

"A. That is correct, sir."

Counsel then moved "to strike the evidence on the ground that there was an offer to aid the defendant and as a result of this offer he incriminated himself." He also stated:

"Your Honor, I believe that — at least I was informed that the Department could speak to the United States Attorney and seek to have the charges reduced in this matter on the basis of cooperation. Thereafter, this conversation to which the agent has testified followed. On this basis I believe that it

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