Jackson v. United States

• Decision Date: 23 April 1964
• Docket Number: No. 17027.,17027.
• Citation: 330 F.2d 679
• Parties: Ollie JACKSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

330 F.2d 679 (1964)

Ollie JACKSON, Appellant, v. UNITED STATES of America, Appellee.

No. 17027.

United States Court of Appeals Eighth Circuit.

April 23, 1964.

Lawrence J. Lee, St. Louis, Mo., Bernard J. Mellman, St. Louis, Mo., on the brief, for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., on the brief, for appellee.

Before VOGEL, MATTHES and BLACKMUN, Circuit Judges.

VOGEL, Circuit Judge.

Ollie Jackson was charged in a two-count information with selling narcotics in violation of 26 U.S.C.A. § 4705 (a), and receiving and concealing narcotics in violation of 21 U.S.C.A. § 174. A jury found him guilty on both counts. He was sentenced to a ten-year term on each of the two counts, such ten-year terms to be served concurrently and not consecutively. In his appeal here Jackson claims (1) that there was insufficient evidence to show that the transferred substance involved was heroin or any other narcotic and, accordingly, the evidence is insufficient to sustain his conviction; (2) the evidence was insufficient to show that he knew the substance transferred was a narcotic; and (3) that the District Court erred in certain of its instructions.¹

The facts are fairly typical of most narcotics prosecutions. The testimony indicated that an informer for the Narcotics Bureau, one Robert Hawthorne, arranged to meet appellant at the informer's apartment at 786a North Euclid in the City of St. Louis, Missouri, at about 1:15 a. m. on Saturday, July 29, 1961. Prior to appellant's arrival, the informer was searched for narcotics and supplied with $125 in cash. The meeting between appellant and the informer took place in the kitchen, and was observed by various agents of the Narcotics Bureau and officers of the City of St. Louis. Appellant removed a bottle from his pocket and handed it to the informer, receiving in return the $125. The informer removed 50 gelatin capsules from the bottle, wrapped them in a piece of tinfoil, and returned the empty bottle to appellant. After appellant left the apartment the officers came out from their places of concealment and searched the informer. He gave Demorest, an agent of the Federal Bureau of Narcotics, the "stuff" received from appellant and Demorest wrapped it in a piece of a paper bag which was received into evidence at the trial as Plaintiff's Exhibit 3 and will be so referred to hereafter.

Later that same morning Agent Demorest placed Exhibit 3 and its contents in a locked box in the Federal Building in St. Louis. On the morning of Monday, July 31, 1961, Demorest "weighed that evidence, prepared a lock seal envelope, placed it therein and mailed it by registered mail to the United States Chemist at Omaha, Nebraska."

The chemist to whom Exhibit 3 and its contents were sent did not testify at the trial. However, it was stipulated that if the chemist appeared he would testify that he received "certain exhibits" from the Office of the Bureau of Narcotics in St. Louis; that he analyzed the substances contained therein and found them to be heroin; and that the exhibits brought into the courtroom by agents of the Narcotics Bureau were the ones received and analyzed by him in Omaha, Nebraska. Such stipulation was admitted into evidence without objection. At the trial, appellant took the stand and denied being at the informer's apartment on the date and time in question.

Appellant's first point on appeal is an assertion that the evidence adduced at the trial failed to prove that the substance allegedly transferred was heroin or any other narcotic, and accordingly that the evidence is insufficient. Upon careful examination of the entire transcript, we are convinced that this claim cannot be sustained. Appellant raises several speculative questions as to what may possibly have happened to the contents of Exhibit 3 during the period of time between when they were taken from the informer and their eventual admission into evidence. However, the undisputed testimony of Agent Demorest was that after he acquired the exhibit from the informer, he retained custody of it in a locked container until he mailed it in a lock seal envelope to the chemist, who subsequently returned it after performing an analysis of the substances contained therein. Demorest's testimony was supported by that of the informer, Hawthorne, who testified that he purchased 50 capsules of heroin from the appellant and identified the contents of Exhibit 3 as having been obtained from appellant. The witness Kenneth Nieters, a detective in the St. Louis Police Department, identified Exhibit 3 and its contents as being the substance he observed appellant pass to the informer.

Appellant argues that the stipulation, entered into the record as Plaintiff's Exhibit 4, was insufficient to prove that the substance allegedly obtained from him was a narcotic. The stipulation, as noted above, was that he, the government chemist, "* * * received certain exhibits from the Office of the Bureau of Narcotics in St. Louis, Missouri, that he analyzed the substances contained therein and found them to be heroin, a narcotic drug, and that the exhibits brought into the courtroom during the trial of this case by agents of the Bureau of Narcotics, are the ones received and analyzed by him in Omaha, Nebraska." It should be noted that the stipulation further provided that it "* * * may be accepted by the Court in lieu of the appearance and testimony of the United States Chemist." We think the attack on the stipulation as insufficient evidence must also fail. It is a well-settled general rule of law that facts which are stipulated during the course of a trial are to be taken by the jury as conclusively proven. This court, speaking through Judge Van Oosterhout, said in Burstein v. United States, 8 Cir., 1956, 232 F.2d 19, 22:

"* * * 83 C.J.S., Stipulations, § 12, p. 30, states:

"`Stipulations are the equivalent of proof and prevent an independent examination by a judicial officer or body with respect to the matters stipulated.\'

"Valid stipulations are controlling and conclusive, and courts are bound to enforce such stipulations. Ordinarily courts have no power to make findings contrary to the terms of a stipulation." (Citing authorities.)

And see, Chicago & N. W. Ry. Co. v. Froehling Supply Co., 7 Cir., 1950, 179 F.2d 133, 135; Andrews v. St. Louis Joint Stock Land Bank, 8 Cir., 1942, 127 F.2d 799, 804.

We think the chain of evidence, beginning with the purchase by Hawthorne of the contents of Exhibit 3 from Jackson, its being in the custody of Demorest, his mailing it by registered mail to the United States Chemist at Omaha, Nebraska, the receipt of "certain exhibits" there from the Bureau of Narcotics in St. Louis, Missouri, the analysis thereof and determination that they contained heroin, a narcotic drug, and "that the exhibits brought into the courtroom during the trial of this case by agents of the Bureau of Narcotics, are the ones received and...