Eastman v. United States

• Decision Date: 19 April 1954
• Docket Number: No. 13953.,13953.
• Citation: 212 F.2d 320
• Parties: EASTMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

212 F.2d 320 (1954)

EASTMAN et al. v. UNITED STATES.

No. 13953.

United States Court of Appeals Ninth Circuit.

April 19, 1954.

Paul H. Primock, Phoenix, Ariz., for appellants.

Jack D. Hayes, U. S. Atty., Everett L. Gordon, James E. Hunter, Asst. U. S. Attys., Phoenix, Ariz., for appellee.

Before HEALY and ORR, Circuit Judges, and LEMMON, District Judge.

ORR, Circuit Judge.

Appellants were convicted of unlawfully importing into the United States, and knowingly concealing and facilitating the transportation of 193 ounces of opium in violation of 21 U.S.C.A. § 174. On this appeal they complain that:

1. The Court erred in giving an instruction which failed to limit the scope of the consideration by the jury of evidence pertaining to a transfer of one-half ounce of opium from appellant Grimsley to government agent Van Natter. The instruction given is appended as note 1.¹

2. Error was committed in the refusal of the Court to give a requested instruction.²

3. The Court erred in its refusal to admit in evidence written and oral statements alleged to have been made by one Richard A. Harding.

We will consider the specifications of error in the order outlined, but first it seems advisable to summarize some of the evidence in the case so that the charged errors may be viewed in their proper relation to the case as a whole.

On June 25, 1952, narcotics agent Charles Van Natter met appellant Grimsley at the Triple X Bar in Casa Grande, Arizona. Also present were Patrick Whelan, a paid government informer, and Richard A. Harding, whom defendants contend was also a government agent. The sale of narcotics was discussed and Grimsley told Van Natter that he had a sample of opium in his motel room. Grimsley and Van Natter left the bar and proceeded to Grimsley's motel. Grimsley gave Van Natter a small box containing approximately one-half ounce of opium as a sample of a large amount of opium which Grimsley was attempting to sell. At the trial this sample was introduced into evidence as Government's Exhibit 1. After delivery of the sample the two men drove to Eloy, Arizona, in Grimsley's automobile where they met appellant Eastman. Eastman informed Van Natter that he had twelve pounds of opium to sell and wanted to know how much Van Natter would pay for it. Van Natter replied that he could not pay more than $1,000 a pound. Eastman replied that it would be necessary for him to consult certain friends before effecting the transfer. Eastman then left but returned about an hour later and a deal was made whereby ten pounds of opium was to be sold for the sum of $11,000. Consummation of the sale was to be had at a meeting the following morning, June 26, 1952. Pursuant to the agreement, Van Natter and Harding met Eastman at a bar in Coolidge, Arizona. Eastman there told Van Natter that he had the opium in his car up the road and was ready to make the transfer. Van Natter replied that he would take delivery of the opium at a motel room he had rented and gave Eastman a key to the motel. Shortly thereafter Grimsley, having received the key from Eastman, entered the motel room and placed the key on a table. Grimsley stated that they had approximately twelve pounds of opium and that Van Natter could pay for the extra two pounds at a later date. Harding, being present at the time, was asked by Grimsley to accompany him to get the opium. Approximately thirty minutes later Grimsley returned to the motel followed shortly thereafter by Harding and Eastman, the latter carrying a burlap bag containing twelve pounds of opium. Delivery of the sack and contents was made to Van Natter and arrests followed.

The error urged to the instruction (see note 1) dealing with the consideration which the jury should give to the evidence concerning the one-half ounce of opium is limited to defendant Grimsley. The Court so admitted it and cautioned the jury to so consider it.

The one-half ounce of opium was admitted in evidence without objection. Appellant Grimsley asserts that notwithstanding this failure to object, the Court, by proper instruction, should have informed the jury that the only purpose for which it could be considered was on the question of intent, scienter, scheme or plan. There was a complete failure here to comply with the requirements of Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. No objection at all was made to the instruction, nor did appellant request an instruction containing the limitation which he now complains was necessary. We have recently had occasion to deal with the result of a failure to comply with Rule 30. Kobey v. United States, 9 Cir., 1953, 208 F.2d 583; Benatar v. United States, 9 Cir., 1954, 209 F.2d 734. Here, as in each of the cases cited, it is urged that we should overlook the failure to comply with Rule 30 and resort to 52(b) and notice plain error. There is no plain error present.

The acts and circumstances relating to the transfer of the sample of opium was a relevant link in the proof of the sale of the 193 ounces of opium with which appellant Grimsley was charged. It was one of the acts intended to induce the sale of the larger amount and is in no way comparable to...