Di Salvo v. United States

• Decision Date: 18 October 1924
• Docket Number: No. 6545.,6545.
• Citation: 2 F.2d 222
• Parties: DI SALVO v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.2d 222 (1924)

DI SALVO v. UNITED STATES.

No. 6545.

Circuit Court of Appeals, Eighth Circuit.

October 18, 1924.

David M. Proctor and William G. Lynch, both of Kansas City, Mo. (V. E. Phillips, of Kansas City, Mo., on the brief), for plaintiff in error.

Charles C. Madison, U. S. Atty., and S. M. Carmean, Asst. U. S. Atty., both of Kansas City, Mo. (C. S. Walden, Asst. U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before SANBORN and LEWIS, Circuit Judges, and KENNEDY, District Judge.

LEWIS, Circuit Judge.

Plaintiff in error was convicted on three counts of an indictment charging him with violations of the Anti-Narcotic Act, 38 Stat. 785 as amended (Comp. St. §§ 6287g-6287q).

The first count appears to have been drawn under Section 8 of the Act, which provides:

"It shall be unlawful for any person not registered under the provisions of this Act, and who has not paid the special tax provided for by this Act, to have in his possession or under his control any of the aforesaid drugs; and such possession or control shall be presumptive evidence of a violation of this section, and also of a violation of the provisions of section 1 of this Act."

It charges that Di Salvo, on or about May 3, 1923, was a dealer in narcotic drugs at Kansas City, Missouri, that as such dealer he was required by law to register, that on that day at Kansas City, Missouri, he did unlawfully possess ten ounces of morphine without having registered as a dealer and without having paid the special tax as such dealer.

The second count appears to have been drawn under Section 2 of the Act, which provides:

"It shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue."

It charges that on or about May 3, 1923, Di Salvo, at Kansas City, Missouri, did unlawfully sell ten ounces of morphine to a certain person, to wit, one _____.

The third count appears to have been drawn under Section 1 of the original Act as amended by the Act of February 24, 1919 (40 Stat. 1130, 1131 Comp. St. Ann. Supp. 1919, § 6287g), which provides:

"It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the person in whose possession same may be found."

It charges that on or about May 3, 1923, Di Salvo, at Kansas City, Missouri, did unlawfully purchase from a person or persons to the grand jurors unknown, ten ounces of morphine, the same not being in or from the original stamped package.

The case for the prosecution rested principally upon the testimony of narcotic agents Sheets and Bradshaw, McDonald, who was a city employé and co-operated with the narcotic agents, and Greeson, narcotic agent in charge at Kansas City. The alleged sale, charged in the second count, was made to Mrs. Grace Wittman at the Cordova Hotel in Kansas City on May 3d. The charges of unlawful possession and purchase, made in the other counts, find support only in what occurred at the sale. Aside from that there is no direct and independent proof of either. On May 2d Mrs. Wittman, whose husband was then under arrest and in jail for violation of this statute, went to the office of Mr. Greeson in the Federal Building in Kansas City and had an interview with witnesses Sheets and McDonald. Sheets testified that she told them that she would be buying some stuff from Di Salvo, and they told her that if she could make a buy they would furnish the money. She came back to them the next day and said she had made the arrangements. McDonald testified that the conversation on May 2d with Mrs. Wittman was a sort of a preliminary; that they did not know then whether it would materialize or not. She told him and Greeson that she could make a buy from some prominent people and they told her to go out and if she could make arrangements they would furnish the money. They told her if she could make the arrangements, to come back the following morning, and on the following morning she came back and told them that she had made the arrangements. McDonald then told Greeson about it and Greeson got $250 with which to make the purchase. The $250 was marked by McDonald and Sheets for identification. Bradshaw testified that when they were marking the money they said, "We had an opportunity to make a buy off of Di Salvo of morphine," and that they were going to use the marked money to make the buy. They had never discussed Di Salvo before. About 1:30 p. m. on May 3d Sheets, Bradshaw and McDonald went with Mrs. Wittman to the Cordova Hotel. Bradshaw remained below to watch and the others went up to Room 516. They borrowed two grips in the hotel office and took them up to make it look like Mrs. Wittman was stopping there. Mrs. Wittman was not a witness at the trial and her whereabouts at that time appears to have been unknown. Sheets and McDonald testified that after they had gotten to the room Mrs. Wittman called Di Salvo over the telephone and told him she had the money and asked him to come there. McDonald said that he and Sheets stood by Mrs. Wittman when she telephoned Di Salvo, and that she said: "John, you know that deal I was talking to you about yesterday? I want ten ounces of that stuff. I have the money." The money was put in the dresser drawer by McDonald and he instructed Mrs. Wittman not to bother the money, that when she touched the money that was a signal that Di Salvo had come with the morphine. Sheets and McDonald then secreted themselves in the bath room, after they had made two small peep-holes in the door. Presently Di Salvo came into the room. He had no narcotics with him. Sheets and McDonald testified that Di Salvo and Mrs. Wittman discussed payment for the narcotics, that Di Salvo first wanted immediately all of the money, then a part of it, but none of it was given to him at that time by Mrs. Wittman and he left the room. Sheets and McDonald then came out of the bath room. Apparently the transaction had fallen through. Sheets and McDonald then gave to Mrs. Wittman a receipt and $50 of the $250, and told her to go and get Di Salvo to sign the receipt and pay him the $50. McDonald told her to see if he would accept $50, and the other $200 when he brought the stuff. She seems to have overtaken Di Salvo on the street, got in his automobile and rode around with him a while and came back with the receipt signed by Di Salvo. The receipt was introduced in evidence. It was signed by Di Salvo and acknowledged receipt of $50 from Mrs. Wittman "for payment ten oz. of morphine," as of date May 2d. Di Salvo admitted that he signed the receipt and got the $50 from Mrs. Wittman while in the automobile, but he testified that he could only sign his name and could not read or write English. In this he was amply corroborated. No more of the money was paid to him. He further testified that about ten days previously he met Mrs. Wittman at a restaurant at her request, when she solicited him as bondsman for her husband, that she was to secure him and a friend of his if they decided to sign the bond, and that he understood from her that the $50 was given as part security. After Mrs. Wittman returned to the room in the hotel with the receipt she and Sheets and McDonald remained there until about 5 o'clock, when, as they testified, Di Salvo returned with a sack and placed it on the dresser. They saw him do that through the peep-holes in the door. The sack contained ten unstamped one-ounce boxes of morphine. Thereupon Sheets and McDonald came from the bath room and arrested Di Salvo. Mrs. Wittman left the hotel immediately. Up to that time she was constantly under the control and acted at direction of the government's agents, and the purchase from Di Salvo, if made, comes dangerously near being their purchase. The woman seems to have been their puppet. The narcotic agent also testified that after Di Salvo's arrest he said the stuff was not his, that he just went and got it for the woman and that that was the first time he had ever done anything of that kind. Di Salvo denied when on the witness stand that he took the morphine to the room in the hotel. He testified that Mrs. Wittman had asked him and a friend about a week before to sign her husband's bond, that she called him over the telephone to come to her room concerning that matter, that after he had left she came down on the street, paid him the $50 on that account, that he was to go and see his friend and come back and get $200 more if that proved to be satisfactory to his friend.

In several respects we think the court erred in the exclusion of evidence, both on cross-examination of the government's witnesses and also on examination in chief of the defendant. One of the defenses was entrapment, and it was important and competent on that question to find out all that had transpired between Mrs. Wittman and Sheets and McDonald when she went to the Federal Building on May 2d. When Sheets was being cross-examined on that subject this occurred:

"Q. In connection with what matter, did she come to your office?

"Mr. Coon: And to that we object as not having any bearing upon this case. Immaterial.

"The Court: Objection sustained.

"Q. How long was she there on that day?

"Mr. Coon: And to that, the same objection.

"The Court: Objection sustained."

It appears that the Government agents knew where Mrs. Wittman was then living and very shortly after the arrest of Di Salvo they went there.

McDonald and Sheets each testified that the peep-holes through the bath room door were each about the size of a match. Sheets said that he had a...