Marshall v. United States

• Citation: 258 F.2d 94
• Decision Date: 17 November 1958
• Docket Number: No. 5796.,5796.
• Parties: Howard R. MARSHALL, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

258 F.2d 94 (1958)

Howard R. MARSHALL, Appellant, v. UNITED STATES of America, Appellee.

No. 5796.

United States Court of Appeals Tenth Circuit.

July 22, 1958.

Rehearing Denied August 21, 1958.

Certiorari Granted November 17, 1958.

George J. Francis, Denver, Colo., for appellant.

Arthur A. Dickerman, Los Angeles, Cal. (Donald E. Kelley, U. S. Atty. for District of Colorado, Robert S. Wham and James C. Perrill, Asst. U. S. Attys., for District of Colorado, Denver, Colo., and Leonard D. Hardy, Atty. U. S. Department of Health, Education and Welfare, Washington, D. C., on the brief), for appellee.

Before MURRAH, PICKETT and LEWIS, Circuit Judges.

Certiorari Granted November 17, 1958. See 79 S.Ct. 153.

LEWIS, Circuit Judge.

Appellant was convicted on two counts of an information charging violation of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq. The principal issues before us spring from appellant's contentions that as a matter of law the defense of entrapment was established and that he was prejudiced beyond recall by newspaper accounts published during the course of his trial. Other errors assigned question the jurisdiction of the court and the sufficiency of the evidence to support the verdicts.

The alleged entrapment centers around the activities of Robert E. Keating, an inspector for the United States Food and Drug Administration and an uncontroverted witness for the prosecution. Keating first met appellant in Denver, Colorado on April 18, 1956. The introduction of the two men was made at appellant's apartment by mutual friends, was purely social in form and did not disclose Keating's official employment. The conversation at this initial meeting was casual and general. On April 23 Keating returned to appellant's apartment and again visited with appellant and his wife. After some further social talk, Keating stated that he was driving to Dallas, Texas, that evening and requested from appellant some stayawake pills to help him in the traveling. Appellant replied that Keating should obtain and take some No-Doz¹ tablets and drink coffee. Keating replied that he had tried No-Doz and coffee without obtaining the desired effect and wanted something different. Appellant repeated his recommendation and the conversation was then diverted into other subjects. After Keating left the apartment he was hailed by appellant and handed a package containing five tablets and two capsules. Appellant stated that the tablets were to be used if Keating became sleepy while driving and that the capsules should be taken if he was nervous after arriving in Dallas. Chemical analysis of the tablets established them to be dextro-amphetamine sulfate, a drug within the meaning of 21 U.S.C.A. § 353(b) (1) (B)² and within the prohibition of unlicensed dispensing under 21 U.S.C.A. § 331(k).³

On May 1, Keating again called on appellant, stating that he had "gotten along very well" on the Dallas trip and would like a hundred or so of each of the drugs for a trip to be made to Los Angeles upon the following day. Appellant replied that he would have to go to the drugstore, refused Keating's suggestion that they go together, and told Keating to return later. This he did and was handed two vials containing 50 tablets and 24 capsules later analyzed as the prohibited drug. Keating paid appellant $15 upon this occasion.

It is undisputed that all of Keating's representations relative to his identity, occupation, trips and use of drugs were entirely false and that upon each occasion the atmosphere of social friendship was created by conversation unrelated to the subject of stay-awake tablets.

The defendant offered no evidence. The issue of entrapment was submitted to the jury upon instructions not here questioned and the defense was rejected by conviction. Appellant urges that the court should have ruled as a matter of law that entrapment was established.

The fountainhead rule and philosophy of entrapment was set out in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, and very recently debated in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, and Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, both decided May 19, 1958. In Sherman, the court in reviewing the undisputed testimony of a government witness unanimously concluded that the trial court was required under the circumstances therein to direct a verdict effectuating the defense of entrapment as a matter of law. The order of reversal set aside a verdict of a jury which had considered and rejected entrapment as a defense submitted to its consideration under instruction of the court. Since the instant case, as Sherman, involves only consideration of the undisputed testimony of a government witness with no issue of credibility involved we conclude that submission of the issue of entrapment to the jury was improper. However, such submission could not prejudice appellant, in fact could but give him an unwarranted advantage, unless a directed verdict was required as a matter of law. A comparison of the activities of Keating with those of the informer in Sherman, where entrapment was established as a matter of law, and with those of the government agent in Masciale, where the court held entrapment not so established, shows the latter case to be persuasive.

In Sherman, the government informer met the defendant at a doctor's office where both were apparently being treated for narcotics addiction. They discussed over a period of time their difficulties in overcoming their habits and finally the informer confessed that he was unable to do so, begging the defendant to help him find a source of supply. Only after a number of repetitions of the request did the defendant finally procure the drug for his acquaintance. The result of this conduct was that the defendant himself returned to the use of narcotics. Emphasis is placed upon the fact that the government played upon the known weaknesses of the defendant and that the crime resulted from the "creative activity" of the law enforcement officials. See 287 U.S. at pages 441, 451, 53 S.Ct. at pages 212, 216.

In Masciale, the defendant was introduced to a government agent by an informer who did not reveal the agent's capacity with the government. The agent solicited the defendant for an introduction to a supplier of heroin. The court noted that the factual situation was such as to allow an inference that the defendant needed no persuasion to commit the crime.

Although in our case the activities of Keating consisted of artifice and deceit to lay a trap for defendant we believe the activities of the government to be well within allowable limits. The law will protect the innocent from being led to crime through the activities of law enforcement officers, Sherman v. United States, supra, but it will not protect the guilty from the consequences of subjectively mistaking apparent for actual opportunity to safely commit crime. Sorrells v. United States, supra; Archambault v. United States, 10 Cir., 224 F.2d 925.

During the course of the trial two articles of a reckless nature were published in local newspapers covering matters far removed in time and place from a factual report of the trial occurrence. Six of the jurors read one of the articles and two of the six had read both. The trial court separately interviewed, in the presence and with the assistance of counsel, each of the jurors and thereafter denied a motion for mistrial. Each of the jurors indicated the articles would in no way influence his verdict.⁴

It is conceded that a motion for a mistrial is addressed to the sound discretion of the trial judge, and whether it should be granted depends upon all of the circumstances in the case, United States v. Carruthers, 7 Cir., 152 F.2d 512; Marson v. United States, 6 Cir., 203 F.2d 904; Webb v. United States, 10 Cir., 191 F.2d 512. The mere appearance of articles concerning the trial cannot compel a new trial, for the defense may at times be aided rather than hindered or the report may only convey to jurors that which they had heard the previous day in court or amount to fair comment thereon. Miller v. Commonwealth of Kentucky, 6 Cir., 40 F.2d 820; Klose v. United States, 8 Cir., 49 F.2d 177; United States v. Pisano, 7 Cir., 193 F.2d 355. A cautionary instruction against prejudice or consideration of evidence beyond that presented in the courtroom has been held in such instances to be sufficient safeguard for defendant's rights.

It is true that in certain instances the probable influence of newspaper publicity is so obvious that instructions by the court cannot be held to have preserved inviolate defendant's rights to a fair trial before an unbiased jury. See concurring opinion of Justices Jackson and Frankfurter, Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740; Griffin v. United States, 3 Cir., 295 F. 437. But the difficulties of ever obtaining a jury completely unknowing and hence presumably unprejudiced in this day of wide coverage and circulation of newspapers presents a very real problem in the administration of justice. For this reason, some courts have been led to holding that to secure a reversal on this ground the defendant must demonstrate that the failure to declare a mistrial under such circumstances was prejudicial to him, Gicinto v. United States, 8 Cir., 212 F.2d 8, certiorari denied 348 U.S. 884, 75 S. Ct. 125, 99 L.Ed. 695; United States v. Carruthers, supra.

Had the instant trial been to the court alone it would be unquestioned that the court would be capable of and would divorce the extraneous matters from his mind and be perfectly free to continue with the trial. The care with which the trial court explored the knowledge and feeling of the individual jurors indicated to him that each juror was similarly qualified to proceed without prejudice. We cannot say the trial court abused its discretion in accepting as true the...