Jackson v. United States

Decision Date28 February 1963
Docket NumberNo. 19805.,19805.
Citation311 F.2d 686
PartiesCharles Edward JACKSON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Willie E. Griggs, Fort Worth, Tex., for appellant.

Barefoot Sanders, U. S. Atty., Robert B. Ward, Asst. U. S. Atty., Dallas, Tex., for appellee.

Before RIVES, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

We are confronted on this appeal with two principal questions. One concerns the admissibility of testimony by Customs Agents as to statements allegedly made by the defendant concerning events subsequent to those upon which his prosecution and conviction were based. The other question is the claim that the trial court erred in charging the jury that the defendant's guilt or innocence would depend primarily on whether he knew the package he delivered contained heroin. Also asserted on brief and argument, though not specifically raised by formal assignment of error, is the claim that defendant was, at most, merely an agent so he cannot be found guilty. We find no errors in the trial and affirm the judgment of the court below.

The defendant was tried and convicted of knowingly selling and facilitating the sale of heroin knowing the same to have been illegally imported into the United States inviolation of 21 U.S.C.A. § 174.1 The indictment contained four counts, the substance of Count 1 being set out in note 1. Count 2 charged the defendant with selling the same heroin "not in pursuance of a written order * * * ." Counts 3 and 4 charged H. N. White (a codefendant initially) with narcotics violations occurring at a date subsequent to that involved in the counts against the defendant Jackson. White pleaded guilty to the charges against him and turned prosecution witness. The charges in Count 2 against the defendant Jackson were dismissed.

The evidence is conflicting, particularly between the testimony of the prosecution witness White and the defendant Jackson who took the stand in his own behalf. Chiefly, the facts were these: The defendant and White were friends. White had a girl friend who turned out to be an informer-special employee of the Narcotics Bureau. She was an admitted narcotics addict and was used frequently by the Bureau to facilitate convictions of her suppliers.2 On November 11, 1961, she and a Narcotics Agent went to a local grocery store in Ft. Worth, Texas where she placed a telephone call to White's house which was some 20 blocks away. Shortly thereafter the defendant drove up to the grocery store in White's car. The Agent (accompanied by the girl) and two other agents who were parked in the vicinity each testified that the girl approached the car at the curb, engaged the defendant in conversation, handed him something through the window of the car, and received something from him in return. Defendant drove off and the girl returned to the grocery store and delivered two "papers" of heroin to the Agent waiting therein. A pre and post search of the special employee was made by a police matron to negative possession of other narcotics.

White and the defendant both testified that on the day in question White drove to the defendant's house, picked him up and they returned to White's house where White received a phone call. White testified that it was the defendant who owned the narcotics and that defendant had brought the heroin with him from his (the defendant's) house to White's house. The defendant testified to the contrary. He swore that he did not have the heroin. It was defendant's story that shortly after the telephone call which White received, White asked the defendant if he would deliver something for him to the girl and bring back to White whatever money the girl gave to defendant.3 The defendant agreed to do this and thus committed the acts which led to his conviction.

A careful reading of the record of the trial indicates to us that the defendant was given a fair trial and his rights were scrupulously guarded. The evidence including that offered by defendant was so heavily stacked against him, and so free of any significant conflict, that it was certainly permissible for a jury to return a verdict of guilty.

However, the defendant specifically urges that two errors were committed by the trial judge. The first is that he was prejudiced by the admission of testimony of two Customs Agents from El Paso, Texas. On direct examination, the defendant testified that he had been convicted in 1957 for possession of marihuana and at that time he regularly used, but was not addicted to, narcotics. However, he categorically denied being an addict on November 11, 1961 or of having anything to do with narcotics from the time of the 1957 conviction to the present trial. His story was that he was reformed of this vice. On the Government's rebuttal, the two Customs Agents testified that a few weeks after November 11 and prior to the defendant's arrest, the defendant, while in an El Paso hospital, had made statements to them concerning a narcotics deal he had recently transacted in Mexico and also that he had already had two "shots" that day and had a $50 a day habit. Over the objection of the defendant, this testimony was admitted. But the court carefully limited its use. In the charge, the court stated that the testimony of the Customs Agents was "admitted because the defendant had gone into evidence to the effect that he was not a user of narcotics. Such evidence was permitted in rebuttal of his testimony on that matter. The evidence so admitted is limited to that purpose. It does not show he is guilty of the offense charged." We believe the evidence was properly admitted for this purpose.

How this evidence came into the case is highly significant. The Government had first offered it as a part of its case in chief. After first hearing the precise evidence — not just a shorthand preview of it by a proffer in counsel's words — out of the presence of the jury, the court denied admissibility. His ruling, however, recognized that it would be reconsidered when or as developments warranted.

In the face of these precise words — that Jackson was a narcotics user with a $50 a day habit — the defendant in his opening direct testimony testified categorically that he no longer used or dealt in, or with, narcotics.

This action of the court was certainly justified under Walder v. United States, 1954, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503.4 In that case, the defendant had testified on direct examination that he had never dealt in any way with narcotics. The court said it was proper for impeachment purposes for the Government on rebuttal to produce evidence of prior narcotic dealings, even though such evidence admittedly had been procured through illegal search and seizure. In that respect our case is even stronger since the jury could conclude that the defendant here voluntarily made the statements to the Customs Agents.

The fact that such statements were made shortly after November 11 is of no significance. Cf. United States v. Stirone, 3 Cir., 1958, 262 F.2d 571, reversed on other grounds, 1960, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252. Citing the Stirone case, the defendant contends that the only relevancy of this evidence was to show his propensity to commit the crime involved and consequently, being obviously inadmissible for this purpose, it was not admissible at all. But the record reveals that this evidence was admitted under careful instructions, not to show propensity, but...

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15 cases
  • Jackson v. United States
    • United States
    • U.S. District Court — Northern District of Texas
    • August 17, 1966
    ...was permitted to plead guilty in the presence of the jury that tried petitioner. The conviction was affirmed in Jackson v. United States, 5 Cir., 311 F.2d 686 (1963). A judgment denying petitioner's first Section 2255 motion to vacate, Jackson v. United States, D.C.Tex., 225 F. Supp. 53 (19......
  • U.S. v. Holman
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 22, 1982
    ...that the trial judge's discretion was abused. To support this view, they turned to the ruling of the Fifth Circuit in Jackson v. United States, 311 F.2d 686 (5th Cir. 1963). The district court in Jackson was found to have acted properly in allowing cross-examination regarding the defendant'......
  • Lewis v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • June 18, 1964
    ...agent theory as to facilitating a sale under § 174, although such instruction had been given as to sale counts); Jackson v. United States, 311 F.2d 686, 690 (5th Cir. 1963) (dictum as to facilitating sale); United States v. Somohano, supra (as to facilitating sale); cf. Henderson v. United ......
  • United States v. Gonzalez
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 14, 1974
    ...the prosecution may bring forth extrinsic evidence to demonstrate the mendacity of the witness' statements. Jackson v. United States, 311 F.2d 686, 690 (5th Cir., 1963); see White v. United States, 317 F.2d 231, 233 (9th Cir., Second, the defendants contend that the trial court erroneously ......
  • Request a trial to view additional results
1 books & journal articles
  • New Techniques in Defending Drug Cases
    • United States
    • Colorado Bar Association Colorado Lawyer No. 4-5, May 1975
    • Invalid date
    ...The Colorado statute is C.R.S. 1973, § 12-22-301(25). 5. United States v. Sawyer, 210 F.2d 169 (3rd Cir. 1954); Jackson v. United States, 311 F.2d 686 (5th Cir. 1963); Henderson v. United States, 261 F.2d 909 (5th Cir. 1959); Cornfield v. United States, 263 F.2d 686 (9th Cir. 1959); Lewis v......

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