Flynn v. United States

• Decision Date: 16 April 1932
• Docket Number: No. 9322.,9322.
• Citation: 57 F.2d 1044
• Parties: FLYNN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

57 F.2d 1044 (1932)

FLYNN v. UNITED STATES.

No. 9322.

Circuit Court of Appeals, Eighth Circuit.

April 16, 1932.

Arthur Le Sueur, of Minneapolis, Minn., for appellant.

Robert V. Rensch, Asst. U. S. Atty., of St. Paul, Minn. (Lewis L. Drill, U. S. Atty., and O. A. Blanchard, Asst. U. S. Atty., both of St. Paul, Minn., on the brief), for the United States.

Before VAN VALKENBURGH, Circuit Judge, and DAVIS, District Judge.

VAN VALKENBURGH, Circuit Judge.

This is an appeal from a conviction for violation of the National Prohibition Act (27 USCA). The indictment contained eight counts. Appellant was convicted upon the first and eighth counts and acquitted upon the others. The first count charged sale, July 25, 1930, and the eighth transportation on September 26, 1930. Three assigned errors are relied upon to procure a reversal: (1) That the evidence entitled appellant to submission of the defense of entrapment, and that the court erred in refusing to give a requested instruction to that effect; (2) error in the court's charge to the jury; (3) an excessive sentence.

Prohibition Agent Olson, a witness for the government, testifies that about 7:30 in the evening of July 25th he heard "both ends" of a telephone conversation between William Marcotte, described as an informer, and appellant, Flynn, as follows:

"Mr. Marcotte said: `Hello, Dr. Flynn. This is Bill Marcotte. I want to get some Scotch. What is the best you can do?' Flynn says: `9.00.' Marcotte said, `That is too much,' and the voice on the other end of the wire said, `Well, this is good stuff. It came up from Florida,' and Marcotte said, `Oh, I know what you are handling. It is cut. You can't fool me,' and the voice on the other end of the wire said, `I will give it to you for $8.00.' Marcotte said, `Well, I will be over.' Dr. Flynn said, `Are you driving?' Marcotte said `Yes.' Then Marcotte said, `Well, how do you want to do it?' And Dr. Flynn said, `Well, I will take your car, I will be waiting for you in the lobby of the building.'"

The building referred to was the Lowry Medical Arts building in St. Paul, Minn., in which appellant had his office. Accordingly at approximately 7:55 that same evening, Prohibition Agent Dike, accompanied by the informer, met appellant at the entrance of this building. What occurred there is best stated in the language of the witness:

"I was introduced to Doctor Flynn as Pat Ritchie and he was introduced to me as Doc Flynn. I was introduced by the man I refer to. This happened on the street, directly in front of the Lowry Building entrance. I had come there in a coupe belonging to the man that I went there with — that was the informer. The car was parked in the neighborhood of seventy-five feet from the entrance to the building. At that time we had further talk with Dr. Flynn. The informer that I was with brought up the subject of buying some Scotch whiskey. He said to Dr. Flynn `This man here wants to get some Scotch Whiskey,' to which Dr. Flynn replied: `Well, I can fix you up,' or words to that effect. I asked the Doctor the price of the whiskey and he said eight dollars a quart. I said that would be all right. I told him I wanted six quarts. The informer took a roll of bills which I furnished him, from his pocket, and counted out $50.00, which he handed to Dr. Flynn. Dr. Flynn returned to him two dollars in change. I do not remember the denomination of the bills. I know there was a five dollar bill, and if I remember correctly a twenty dollar bill. I do not know the denominations of the rest of them. I observed the amount of change. It was two one dollar bills. While the change was being made Dr. Flynn said `With a roll of bills like that you ought to take out a load of alcohol.' He addressed this remark to both of us. I said `I don't want to take a load now, as I haven't enough money to protect myself on the road.' The Doctor asked the informer about his car, and the informer told him where the car was, and told him he could drive it, but he said he would have to crank it — that the battery was run down. The Doctor said: `Well, bring it down here yourself then, I don't want to crank it,' and the informer walked down the street to get the car. While he was gone the Doctor turned to me and said: `I believe I have heard of you before.' I said, `You possibly have.' He asked me if it was in connection with a still that had been operating close to the cities. I told him no, that I had never been connected with a still close to the cities. The informer returned with the car in a very short time. Dr. Flynn walked out and walked around to the right side of the car — pardon me — the left side of the car, got in behind the wheel, and the informer got out on the other side of the car and joined me at the Lowry entrance. Dr. Flynn drove the car down St. Peter Street, towards Sixth, and out of my sight. I waited right there at the Lowry entrance for the Doctor to return. I waited approximately twenty minutes. The Doctor returned in the same car — the same Chevrolet, and approached the entrance of the Lowry Building on St. Peter Street, coming from Fifth Street — going towards Sixth — pardon me — he came from Fourth, traveling towards Fifth. He came on the right hand side of the street, the side on which the Lowry Building is located. He stopped the car a few feet towards Fourth Street from the entrance to the Lowry Building, double parking. That is, a few feet before he reached the entrance. He got out of the car, and as it had started to rain he ran from the car to the shelter of the canopy, or whatever you call it, over the entrance to the Lowry Building. I then told the Doctor that I would probably be back in a couple of weeks, and he said, `Well, you can look Bill up, or you can come and see me, and I will fix you up.' By `Bill' he referred to the informer. I do not recall the informer's last name. `Bill' is what I knew him by. I had never worked with this informer prior to this case. I had never seen him before. After this talk about a return visit we went out and got into the car, and the informer passed to the left side of the car and I to the right, and there was a paper-wrapped parcel on the seat of the car. The Doctor had said to me `I left it in the car,' and we found the package there. It was laid on the seat of the car."

The parcel contained six bottles of "cut" Scotch whisky. Other witnesses corroborated the testimony of Olson and Dike.

It appears that on the evening of September 26, 1930, Marcotte again advised appellant that he wanted "to get some more stuff." In company with Agent Dike, Marcotte went to the entrance of the Lowry building, and thereafter Marcotte, appellant, and another man entered Marcotte's car and drove away. The car was followed by government officers. Shortly afterwards Marcotte was let out, and the others proceeded. A little later the officers found the Marcotte car parked in front of No. 538 Wacouta street in St. Paul. In a few minutes appellant came out of this house carrying a gunny sack that appeared to be of considerable weight. He placed this in the car and drove away. After making several turns, he seemed to realize that he was being followed. Swinging sharply into another street, he jumped from his car, leaving it in motion. At a distance of four blocks he was overtaken and arrested. The abandoned car contained six...