Lewis v. United States

• Decision Date: 05 March 1965
• Docket Number: No. 17611.,17611.
• Citation: 340 F.2d 678
• Parties: James Milton LEWIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.2d 678 (1965)

James Milton LEWIS, Appellant, v. UNITED STATES of America, Appellee.

No. 17611.

United States Court of Appeals Eighth Circuit.

February 3, 1965.

Rehearing Denied March 5, 1965.

Thad C. McCanse, Kansas City, Mo., made argument for appellant and filed brief.

Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., made argument for appellee and filed brief with F. Russell Millin, U. S. Atty., Kansas City, Mo.

Before MATTHES, BLACKMUN, and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

Appellant was tried, convicted, and sentenced on six (6) counts of a twelve (12) count indictment for the "possession" of narcotic drugs on two separate occasions in violation of § 174, Title 21, U.S.C.A.; "purchase" of same in violation of § 4704(a) of Title 26, U.S.C.A.; and "sale and transfer" thereof in violation of § 4705(a) of Title 26, U.S.C.A.¹ His timely motion for a new trial being denied and sentence imposed, appellant's trial court refused him leave to perfect an appeal in forma pauperis. On subsequent application made to this Court we granted him such leave — restricted to a consideration and determination whether there was a prejudicial violation of the so-called Jencks Act (18 U.S.C.A. § 3500) during the course of appellant's trial; and the sufficiency of counts IX and XII of appellant's indictment to charge an offense under § 4705(a), supra.²

We first consider appellant's assignments of error as to the sufficiency of his indictment. Count IX thereof is set forth in the footnote.³ Count XII is identical therewith, except as to date and quantity of narcotic drug alleged.

It is appellant's contention that since the person to whom he is alleged to have "transferred" narcotics as charged in counts IX and XII, ante, were not named therein; and the evidence adduced at his trial established that he made "two" transfers of narcotic drugs, one to Charles G. Hill, an undercover agent of the Bureau of Narcotics, and the other to his co-defendant, Roxanne Yvonne Haney, his convictions on such counts cannot stand because under that state of the record its cannot be determined which such transfers the jury considered in arriving at the verdicts of guilt as they did. Therefore, he asserts, the jury was left free to convict him of "selling and transferring" narcotic drugs to either of those persons; and since that is so, he cannot plead his convictions on either of the above counts as a bar to a subsequent prosecution for the same offenses. As a consequence, appellant claims counts IX and XII of his indictment do not meet the test of "sufficiency" set out in United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953), and his conviction thereon must be vacated. In support of the argument so made, appellant primarily relies on Lauer v. United States, 320 F.2d 187 (7 Cir. 1963), where it was ruled in a § 2255 proceeding that an indictment which failed to set forth the name of the person to whom an unlawful sale of narcotics is made, was bad and insufficient to warrant Lauer's conviction. In so ruling, it should be noted that the Court in the Lauer case found it necessary to distinguish Debrow, supra, in reaching the conclusion which it did in that collateral proceeding.

"We have repeatedly held that failure to name the purchaser of narcotics in an indictment is not a fatal defect vulnerable to a § 2255 attack." Pellom v. United States, 333 F.2d 766 (8 Cir. 1964); Taylor v. United States, 332 F.2d 918 (8 Cir. 1964); Adams v. United States, 333 F.2d 766 (8 Cir. 1964), cert. den. 85 S.Ct. 650; Jackson v. United States, 325 F.2d 477 (8 Cir. 1963). We believe the reasoning set forth in the above-cited authorities is especially applicable to appellant's assertion of error here made. As a consequence it is not necessary for us to expatiate thereon. In Debrow, supra, it was ruled the name of the person administering the oath was not an essential element of the crime of perjury there charged. Here, the name of the person to whom an illegal transfer of narcotics was made is not an essential element of the offense denounced in 26 U.S.C.A. § 4705(a). In either case, of course, the name of such person must come out in the proof adduced.

A plea of former jeopardy is in no sense limited to the terms of an indictment alone. Should appellant ever need to plead either of his convictions on count IX or XII of his indictment, ante, as a bar to any subsequent prosecution, he can do so from the record made at his trial. Cf. Gravatt v. United States, 260 F.2d 498 (10 Cir. 1958).

In the light of the foregoing, there is no merit to appellant's contention of insufficiency of counts IX and XII of his indictment to sustain his conviction, as he here contends.

Appellant's claim of Jencks Act (§ 3500, Title 18, U.S.C.A.) violation is premised thus:

Charles G. Hill, an undercover agent of the Bureau of Narcotics, was called as a witness by the Government and testified at appellant's trial, as follows: On April 27, 1961, he met Roxanne Yvonne Haney, and talked to her about narcotics. The next day he made arrangements with Miss Haney to buy some heroin. For that purpose he then gave Miss Haney $51.00 of previously marked money. Later the same day, Miss Haney got out of an automobile which was also occupied by appellant. She walked up to Hill and delivered the narcotics to him. Subsequently, appellant left the automobile, approached Hill and had a discussion with him about the quality of the narcotics he had just received. On May 2, 1961, Hill returned to Miss Hanney's apartment and, in the presence of appellant, made arrangements to purchase more heroin. Hill again gave Miss Haney some previously marked money. Later that night, actually in the early morning hours of the next day, Miss Haney and appellant returned to Miss Haney's apartment and told Hill they could not get the narcotics. Upon Hill's demanding return of his money, appellant and Miss Haney left the apartment and, on their return, Haney handed Hill the heroin he then purchased. Appellant was then present and immediately after delivery of the narcotics had a conversation with Hill as to how to "cut" the same.

After Witness Hill's direct testimony, the following took place during the course of his cross-examination:

"Q. Did you keep notes and make reports of your activities as you went along?

"A. (Hill): Yes, sir, I did.

"Q. And did you review those notes before testifying today?

"A. Yes, I did.

"Mr. McCanse (Attorney for Defendant): If it please the Court, I would like to move to see the statement that was made by the agent.

"The Court: He hasn\'t used it for any purpose.

"Mr. McCanse: He said he reviewed it.

"The Court: Yes, but he hasn\'t used them in testifying.

"Q. (By Mr. McCanse): Well, did you use the notes to refresh your recollection before coming here to testify?

"A. Yes, sir, I did.

"Q. And you had several dates in mind — this all happened in April and May of this year which is some six months ago?

"A. Yes, sir.

"Q. And was it necessary then for you to refer to your reports in order to be able to testify to the events that you mentioned today?

"A. Only to actually designate the time of the day. As far as the events, I would remember those.

"Mr. McCanse: Well, I would like to investigate the notes.

"The Court: If you want the Court to look at them, I will look at them and see if there is anything different from the testimony, but I see no reason why he should give you his notes.

"Mr. McCanse: Well, I would like the Court to look at them."

After examining a lengthy file of the Bureau of Narcotics (219 pages) covering its entire investigation, and statements of persons other than Hill, leading up to the arrest and trial of appellant for violation of the narcotic laws, appellant's trial court made the following remark in open court:

"The Court: I would like to say I have gone through this rather great mass of information and I find nothing that is different in the testimony than what the witness testified to."

Thus, the state of the record before us which appellant relies on to establish his claim of Jencks Act violation here made.

Before considering the specifics of appellant's assigned error, we think the following observation of applicable law should be made. It is now well settled that individual "notes and reports" of agents of the Government, made in the course of a criminal investigation, are the proper subject of inquiry and subject to production under the Jencks Act, supra. See, Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed. 2d 574 (1961); Karp v. United States, 277 F.2d 843 (8 Cir. 1960); Holmes v. United States, 271 F.2d 635 (4 Cir. 1959); United States v. Berry, 277 F.2d 826 (7 Cir. 1960); United States v. Sheer, 278 F.2d 65 (7 Cir. 1960). It is clear from such cited authority, it is no part of the trial court's function to speculate as to whether or not an otherwise producible statement under the Jencks Act will be of any use to the defendant for impeachment purposes. Clancy v. United States, supra; Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Ogden v. United States, 303 F.2d 724 (9 Cir. 1962). The function of the trial court under § 3500, Title 18, U.S.C.A., is limited purely to the question of producibility, i. e. * * * is the document a "statement" under the Act? Does it relate to the subject matter of the witness' testimony? The use of extrinsic evidence to determine that matter is permissible, and generally the Court should determine the same at a hearing out of the presence of the jury. Scales v. United States, supra; Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963). Once producibility is established the defendant has an absolute right to the statement, or, in the alternative, to have the testimony of the witness stricken if the Government refuses to comply, and failure to so order is reversible error. Clancy v. United States, supra; United...