Hill v. United States, 15449.

• Decision Date: 15 December 1958
• Docket Number: No. 15449.,15449.
• Parties: Raymond HILL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

261 F.2d 483 (1958)

Raymond HILL, Appellant, v. UNITED STATES of America, Appellee.

No. 15449.

United States Court of Appeals Ninth Circuit.

November 3, 1958.

Rehearing Denied December 15, 1958.

George T. Davis, San Francisco, Cal., for appellant.

Robert Schnacke, U.S. Atty., John H. Riordan, Jr., Richard H. Foster, Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before FEE, CHAMBERS and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

The appellant was charged in count one of an indictment with concealing and facilitating the concealment and transportation of marihuana without paying the transfer tax, in violation of Section 4744, Title 26 of the United States Code;¹ count two with transferring marihuana not in pursuance of a written order from the transferee, in violation of Sections 4742² and 7237³ of Title 26, United States Code.

After trial by jury, appellant was found guilty on both counts. Following the denial of a motion for new trial, appellant was sentenced to a term of two years on count one, and to five years on count two, the terms of imprisonment to run concurrently.

Appellant does not question the sufficiency of the evidence to sustain his conviction under count one.

The specifications of error relied upon by appellant are:

1. The evidence is insufficient to support the verdict of guilty on count two;

2. Under the facts and circumstances of the case the appellant was not accorded a fair trial;

3. The application of Title 26, United States Code, Sections 4742 and 7237, in such a manner as to make mandatory a minimum sentence of five years without the privilege of applying for probation is violative of the appellant's right to due process of law as guaranteed by the Fourteenth Amendment of the Constitution of the United States.

In order to properly consider some of the specifications of error, it is necessary to summarize the testimony which was before the jury for consideration.

The investigation leading to the arrest of the appellant occurred during May and June of 1956. Appellant was working as a bartender in a cocktail lounge and bar in San Francisco. A waitress working in the bar introduced appellant to the Federal Narcotics Agent Ira Charles Feldman, who was conducting undercover investigation of persons other than the appellant. The agent used the name of Joe Capone, claiming he was a relative of Al Capone, and said he was interested in purchasing the establishment in which the appellant was working. The subject was discussed with the appellant on at least two occasions in the bar.

In July of 1956, appellant had changed jobs and was working at a downtown hotel as a bartender. Without design, appellant and Feldman met on the street. Appellant mentioned that he was interested in purchasing the Jai-Alai Bar, and asked Feldman if he knew anything about it. Feldman stated that he did not, except that he had read something about the owner, Albert Urea, having been arrested on a narcotic violation. Feldman testified that appellant replied, "`Yes,' he says, `Albert really dealt in narcotics.' He says, `He's still got a lot of it.' He says, `His bar is for sale, too.'" Feldman replied that he was not particularly interested in narcotics, but that he had a friend who might be. The appellant said, "Well, he is going to work now, he said, `Drop around to the St. Francis Hotel, bring your friend along, and perhaps we can do something.'"

Appellant admitted the meeting with Feldman, but denied that anything was said at that time about narcotics. He testified that the conversation had only to do with the purchase of Jai-Alai and the possibility of his running it for Feldman.

Feldman testified that on July 20, 1956, while appellant was on duty as a bartender, Feldman introduced John N. Stenhouse as "Max", who in fact was another Federal Narcotics Agent. "Max" was introduced as a prospective partner in the bar business. Feldman and Stenhouse both testified that they asked appellant how much marihuana he could get, and that appellant replied he could get from 100 to 200 pounds from the owner of the Jai-Alai, Albert Urea. They further testified that appellant told them that Urea needed money badly in order to obtain bail for the release of one Elia Torres, who was arrested with Urea and who had threatened to tell the court that the "stuff" belonged to Urea unless Torres was released on bail. Feldman stated to appellant that he was interested in the marihuana, and that Stenhouse might be interested in the purchase of the bar. Arrangements were made for a later meeting, and on July 23rd the same agents met appellant for lunch.

Appellant testified to a different set of facts which led up to the luncheon meeting. He testified that there were several meetings with Feldman before the one of July 20th, and that during such meetings Feldman continued to "build him up" as a prospective business partner, and that during this time appellant met "Steve", another prospective business partner, who in fact turned out to be another Federal Narcotics Agent named Nadler. Nadler was not called as a witness in the trial by either side. Appellant further testified that during this "build up" period the Narcotics Agent requested appellant to secure about 20 pounds of marihuana from Urea for "Steve" to take with him to Alaska, where it was claimed he owned a nightclub. Appellant stated he refused to contact Urea at first, but that the agents insisted, suggesting that if they wanted him as a partner he could at least do a small favor for them.

Feldman testified that he requested the appellant to secure the marihuana for "Steve", but this was during the early part of August or towards September, after the purchase of marihuana had been made from the appellant.

The facts following the luncheon are not in great dispute. After the luncheon appellant agreed to obtain some marihuana for Feldman and Stenhouse, and received $180 of government money from Stenhouse. Appellant contacted Urea and arranged for the marihuana to be left under a stairway in an alley near the Jai-Alai. Appellant took Stenhouse to the alley and showed him where it would be when ready. The next day appellant called Feldman on the telephone and told him to tell "Max" (Stenhouse) that he could go and get it. Stenhouse went to the place designated and picked up one pound thirteen and two-thirds ounces of marihuana.

Feldman testified that on the following day he contacted appellant and stated that he was not satisfied with what he had gotten, and that appellant offered to get more from another source at a cheaper price. He further testified that the negotiations continued until September 8th, when appellant was arrested in Feldman's apartment.

We will first consider appellant's specification of error, that the evidence was insufficient to sustain a conviction on count two. Appellant concedes the sufficiency of the evidence to sustain a conviction on count one, but claims that the evidence was insufficient on count two, on the sole ground there was no notice and demand served on appellant to produce the order form required by Section 4742. No such demand is made an essential element of the crime.⁴ To sustain a conviction under Section 4742, it is only necessary to show (1) a transfer of marihuana by the defendant (2) to any person not pursuant to a written order of the person to whom such marihuana was transferred.

In connection with count one of the indictment, the Internal Revenue Code provides that failure to produce the order form is presumptive evidence of guilt. Section 4742, however, under which count two is charged, has no analogous provision.

Appellant does not contend the marihuana was not transferred, nor that it was transferred pursuant to a written order, nor does he claim the transfer was authorized under any of the exceptions contained in subsection (b) of Section 4742. His contention merely is that the government failed to prove its case by failing to introduce evidence of a demand upon appellant for the order form.

Since such a demand is not an essential element of the offense charged, appellant's contention is without merit. There was sufficient evidence before the jury to sustain its verdict of guilty on count two.

With respect to appellant's second specification of error, that under the facts and circumstances of this case he was not accorded a fair trial, there are three points urged: First, that because of the alleged ineptness of appellant's counsel, he was not accorded the defense of entrapment; second, that the record presented establishes that appellant was "entrapped" as a matter of law; and, third, that testimony was received which prejudiced the defendant and prevented him from having a fair trial.

We will first consider the appellant's contention that he was not accorded the defense of entrapment. The record supplied by the appellant does not include the arguments presented to the jury by defendant's counsel, who is not the counsel representing the appellant on this appeal, nor does the record include the instructions to the jury which were proposed by the appellant, or which were given by the trial court, nor does the record show what transpired at the conference on instructions required by Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. It is, therefore, impossible for us to tell from the record whether or not the defense of entrapment was in fact covered by argument and instructions.

It is elementary that an appellant seeking a reversal of an order entered by a trial court must furnish to the appellant court a sufficient record which positively shows the alleged error. We must assume that the instructions given by the trial court were proper in the absence of any record to the contrary. Parente v. United States, 9 Cir., 249 F.2d 752. See also United States v. Vanegas, 9 Cir., 216 F.2d 657; Balestreri v. United States, 9 Cir., 224 F.2d 915. Before leaving this point, however, we...