Evans v. United States, 15602.
| Decision Date | 20 October 1958 |
| Docket Number | No. 15602.,15602. |
| Citation | 257 F.2d 121 |
| Parties | William EVANS and Josephine Evans, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED
Arthur D. Klang, San Francisco, Cal., Lloyd H. Burke, U. S. Atty., John Lockley, John H. Riordan, Robert Schnacke, Asst. U. S. Attys., San Francisco, Cal., for appellee.
Before LEMMON, BARNES, and HAMLEY, Circuit Judges.
Certiorari Denied October 20, 1958. See 79 S.Ct. 98.
Waiving a jury, William Evans and Josephine Evans went to trial on a four-count indictment charging violations of the narcotics laws. William, convicted under all four counts, was sentenced to imprisonment for terms aggregating fifty years, and was fined a total of $11,000. Josephine, convicted under counts 1, 2, and 4, was sentenced to imprisonment for five years on each such count, the terms to run concurrently. Both defendants appeal.
Count 1 charged both defendants with unlawful concealment and transportation of two ounces of heroin at San Francisco, on March 4, 1957. Count 2 charged each of them with the unlawful sale of this heroin on the same date. Count 3 charged each of them with unlawfully concealing and facilitating the concealment and transportation of twenty-two grains of marihuana on the same date. The final count charged each of them with conspiring together with the object of unlawfully selling, dispensing, and distributing heroin, and of unlawfully concealing and facilitating the concealment of such heroin.1
Concerning the counts relating to heroin — counts 1, 2, and 4 — appellants' principal contention relates to the sufficiency of the evidence. Josephine concedes that the evidence is sufficient to sustain her conviction under the substantive heroin counts — counts 1 and 2. She urges, however, that the evidence is insufficient to support her conviction under the conspiracy heroin count — count 4. William argues that the evidence is insufficient to support his conviction under any of the heroin counts.
There is no evidence that William ever had physical possession of the heroin in question. Even so, his conviction under the substantive counts may stand if the evidence sustains the verdict against him on the conspiracy count. Accordingly, we proceed at once to a determination of the adequacy of the evidence to support the conviction of both appellants under count 4.
For the most part, the evidence is not in dispute, but where any conflict is found to exist, we accept that version which tends to support the judgments.
Appellants have lived together, "off and on," since 1950 or 1951, although the record does not show whether they were ever married. In the late winter of 1957, they operated an eating place, known as Oliver's Restaurant, at 1569 Ellis street, in San Francisco. William lived above the restaurant, but spent some of his nights at 953 Broderick street, San Francisco.2 Josephine lived at 181 Thrift street, San Francisco.
The first episode of the sequence of events here in question occurred early on the morning of February 27, 1957. At about 1:30 a. m. that day, while William was at the restaurant, he received a telephone call from one Sine Gilmore.3
Gilmore was a user of narcotics, and had twice been convicted of violating the narcotics laws of California. He had met appellants for the first time, but not together, about six weeks or two months previous to this telephone call. Within a few days prior to that call, Gilmore had received narcotics from one or the other of the appellants.4 This had occurred on two or three occasions, after Gilmore had given money to Josephine for such purchases. Gilmore had also conversed with William prior to making these purchases, but denied that these conversations occurred when he was buying narcotics from Josephine.
Gilmore made the telephone call of February 27, 1957, from the office of the Federal Bureau of Narcotics. In so doing, and in the transactions of the succeeding few days, he was acting as an informer for, and special employee of, the Bureau. His telephone call on February 27 was monitored by an agent who listened in on an extension.
According to the testimony of this agent, Gilmore told William on this occasion, William replied that he was busy, and that Gilmore would have to see "the boss" tomorrow.
Gilmore's version of the conversation was "something about somebody coming from Stockton; that wanted something, some stuff, and I think he told me I would have to see the boss." Gilmore understood "stuff" to mean narcotics, and the "boss" to refer to Josephine.5
The second episode occurred at approximately 1:00 p. m., on February 27, 1957. At that time, Gilmore met William at Oliver's Restaurant and had a conversation with him. No money or narcotics passed between them at this time.6
The third episode occurred on the afternoon of March 1, 1957. Gilmore was supplied with $350 in government funds, and, upon being searched, was found to have $350 of his own money, making a total of $700. He was also equipped with a Schmidt transmitting device. Under surveillance of federal narcotics agents, he proceeded to Oliver's Restaurant, where he remained from 3:30 to 4:30 p. m.
During this period, he was out of the sight of narcotics agents during an interval of only three or four minutes, when he went to the rear of the restaurant. He later reappeared with Josephine, after which he had a conversation with her. Upon rejoining the narcotics agents, he was searched and the $700 was missing. Gilmore testified that he gave this money to Josephine for narcotics he had previously received on consignment.7
The fourth episode occurred in the early evening of the same day. About 7:00 p. m., Gilmore was again equipped with a Schmidt transmitting device. Again he drove to the vicinity of Oliver's Restaurant, under the surveillance of narcotics agents. A panel truck containing the receiving device for the Schmidt transmitter and a narcotics agent had been parked directly across the street from the restaurant since 2:00 p. m.
Shortly after Gilmore parked his car near the cafe, William entered the car, and the two drove to the Chicago Pool Hall. During this drive, William remarked that he was "leery" of the panel truck; that it had been parked there all afternoon.
The fifth episode occurred about midnight on March 1, 1957. At that time, Gilmore returned to the restaurant, went inside for a moment, and then returned to his car with William. As the car was leaving, William was heard to say: "You don't see what's going on around you very well." He added:
Gilmore said, William replied, 8
The fifth episode, described above, is the last involving heroin in which William played a part. A final episode, involving Josephine, occurred on March 4, 1957. At 11:00 a. m., on that day, Gilmore met Josephine by prearrangement at a vacant lot in the vicinity of Page and Pierce streets, San Francisco. Josephine pointed to a board in the lot, and Gilmore, following her pointed directions, found a package wrapped in newspaper. This package was found to contain two ounces of heroin.
Gilmore testified that he had given Josephine one hundred and some odd dollars of his own money at the restaurant that morning, in part payment for this heroin. He denied giving any money to William for this heroin, or having any conversation with him concerning the money paid over. Gilmore also denied discussing narcotics with William the night before the payment was made, or of receiving any narcotics from him at any prior time. Gilmore stated that he "might have" on occasion discussed narcotics with William, but that "he never have told me he would give me them to sell." Gilmore stated that every time he spoke to William about narcotics, the latter "would refer more or less to the boss."9
As before noted, this summary of the evidence is drawn largely from the Government brief. It is evidence which is entirely undisputed, and consists, almost entirely, of the testimony of Government agents. The only non-Government testimony given credence in the above account is that of William (included because it is favorable to the Government), that he was the recipient of the telephone call of February 27, 1957.
Appellants argue that this evidence is not sufficient to support the judgments of conviction on the conspiracy count. Contending otherwise, the Government states that the clear inference to be drawn from this evidence is that William negotiated with prospective customers for the sale and delivery of narcotics, and arranged with "his co-conspirator," Josephine, to make the actual deliveries.
The conspiracy here charged relates to the concealing, selling, dispensing, and distribution of "quantities of narcotic drugs." It was therefore not necessary for the Government to prove that the asserted arrangements between "co-conspirators" involved the two ounces of heroin referred to in counts 1 and 2. However, if it was not shown that the conspiracy involved the particular heroin transaction referred to in counts 1 and 2, proof that William engaged in such a conspiracy would still not warrant his conviction on those substantive counts. Accordingly, we will first consider whether any conspiracy was proved with regard to the two ounces of heroin delivered on March 4, 1957.
The informer, Gilmore, testified that he had no conversation with William, and entered into...
To continue reading
Request your trial
-
U.S. v. Davis
...56 A.L.R. 3d 948, 957 (1974). Accord United States v. Bonham, 477 F.2d 1137, 1139 (3rd Cir. 1973) (en banc); Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 Nothing in my opinion in United States v. Holland, 144 U.S.App.D.C. 225, 4......
-
U.S. v. Castillo
...circumstance tending to prove knowledge of the presence of [the] narcotics and control thereof." Id. at 607 (quoting Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958)). In reversing the conviction of Geneva Arellanes we stated......
-
U.S. v. Saborit
...possession of drugs found in proximity with him), cert. denied, 510 U.S. 999, 114 S.Ct. 568, 126 L.Ed.2d 467 (1993); Evans v. United States, 257 F.2d 121, 128 (9th Cir.) (instructing that where a defendant is "not in exclusive possession of the premises, it may not be inferred that he knew ......
-
United States v. Beigel
...v. United States, 306 F.2d 594, 595 (10th Cir. 1962); United States v. Nardiello, 303 F.2d 876, 879 (3d Cir. 1962); Evans v. United States, 257 F. 2d 121, 126 (9th Cir.), cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958). 21 See United States v. Di Re, 332 U.S. 581, 593, 68 S.Ct.......