Enzor v. United States, 17165.
| Citation | 262 F.2d 172 |
| Decision Date | 30 March 1959 |
| Docket Number | No. 17165.,17165. |
| Parties | Erwin Manget ENZOR, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Wesley R. Asinof, William L. Gower, Atlanta, Ga., for appellant.
John W. Stokes, Jr., Asst. U. S. Atty., James W. Dorsey, U. S. Atty., Atlanta, Ga., for appellee.
Before RIVES, TUTTLE and JONES, Circuit Judges.
Certiorari Denied March 30, 1959. See 79 S.Ct. 740.
The appellant, Erwin M. Enzor, and Albert A. Tucker were charged by indictment with conspiring unlawfully to sell narcotics. The indictment, by two other counts, charged the appellant and Tucker with making unlawful sales of narcotics. Tucker entered a plea of guilty to one of the substantive counts. Appellant was convicted of the conspiracy charge and was sentenced to four years imprisonment. He has appealed from the conviction. The sales were made to Avery Carroll, a sometime narcotic addict and an undercover employee of the Federal Bureau of Narcotics. Tucker acted as an intermediary between Carroll and the person furnishing the narcotics. This person was identified by Tucker as the appellant. Both Carroll and Tucker were witnesses for the Government as were Narcotics Agents Barber and Thomas and Detective Melton, of the Atlanta, Georgia, Police Department. During the investigation Agents Thomas and Barber tested and found properly operating a Schmidt device, or miniature radio transmitter, which they placed on Carroll. Carroll then entered the premises where Tucker lived. The agents listened in, over the Schmidt device receiver, to a conversation between Carroll and some other person. Carroll was told by the other person, supposed to be Tucker, that his connection had narcotics, the kinds of which were named, and for Carroll to contact him the following day. The agents were able to recognize and identify Carroll's voice as it came through the receiver. They did not identify the voice of the person in the building with whom Carroll was talking. The appellant asserts that it was prejudicial error to admit evidence of the conversation without identification of the person who made the statements to Carroll.
The appellant suggests that the same rule should be applicable here as in the case of telephone conversations and says that the rule is thus declared:
"An admission made in a telephone conversation may be proved, where the witness identified the speaker by his voice or otherwise, and there is no doubt as to the identity of the person who made the admission." 31 C.J.S. Evidence § 281, p. 1031.
Also relied upon by the appellant is the principle that:
"Unless otherwise objectionable, a telephone conversation between a witness and another person is admissible in any case in which a face to face conversation between a witness and another person would be admissible in evidence, provided that the identity of the person with whom the witness was speaking is satisfactorily established, but not otherwise." 31 C.J.S. Evidence § 188, p. 908.
It is not contended that the testimony of the narcotic agents would be inadmissible if the person with whom Carroll talked was identified as Tucker. Carroll testified that while he was wearing the device he did not talk with anyone except Tucker, the narcotics agents and a drunk person whom he didn't know. Both of the narcotic agents were listening in on the receiver of the device during the questioned conversation. The conversation as overheard was between Carroll and someone known by him and by whom he was known. The drunken stranger was therefore not the person with whom Carroll conversed. Hence Tucker, by elimination of the others, is shown to be the person. The identity of Tucker as the person with whom Carroll was speaking is satisfactorily established and there is no doubt as to his identity.
The substantive offense, which was the object of the conspiracy, is thus defined:
"It shall be unlawful for any person to sell, barter, exchange, or give away narcotic 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 Secretary or his delegate." 26 U.S.C.A. § 4705(a).
The specific statute relating to penalties for narcotics...
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