McMurray v. United States, 6749

• Decision Date: 23 April 1962
• Docket Number: 6750.,No. 6749,6749
• Citation: 298 F.2d 619
• Parties: James McMURRAY, Appellant, v. UNITED STATES of America, Appellee. Dale BRYSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

298 F.2d 619 (1961)

James McMURRAY, Appellant, v. UNITED STATES of America, Appellee.

Dale BRYSON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6749, 6750.

United States Court of Appeals Tenth Circuit.

December 27, 1961.

Rehearing Denied January 10, 1962.

Certiorari Denied April 23, 1962.

John M. Imel and Phillips Breckinridge, Tulsa, Okl., for appellee.

John D. Harris, Tulsa, Okl. (Howard, Carr & Harris, Tulsa, Okl., were with him on the brief), for appellant, James McMurray.

John L. Ward, Jr., Tulsa, Okl., and Valdhe F. Pitman, Oklahoma City, Okl. (Malcolm Baucum, Oklahoma City, Okl., was with them on the brief), for appellant, Dale Bryson.

Before BRATTON, LEWIS and BREITENSTEIN, Circuit Judges.

Certiorari Denied April 23, 1962. See 82 S.Ct. 950.

LEWIS, Circuit Judge.

James McMurray and Dale Bryson and others were jointly charged, tried and convicted of offenses involving the unlawful trafficking in narcotics. The indictment was in seven counts alleging the defendants' participation in a conspiracy to violate the prohibition contained in 26 U.S.C.A. § 4705(a) and 26 U.S.C.A. § 4704(a) and the substantive violation of the statutes. McMurray was convicted upon six counts including counts 1 and 7. Count 1 charged a conspiracy to unlawfully sell narcotics in violation of 26 U.S.C.A. § 4705(a); count 7 charged the unlawful sale of narcotics in violation of such section. Bryson was convicted only upon counts 1 and 7. The trial court imposed the maximum sentences upon McMurray for each of the counts upon which he was found guilty and so designated the sentences to run concurrently or consecutively as to provide a total imprisonment of forty years. The sentence upon each of counts 1 and 7 was set at twenty years to run consecutively. Bryson was sentenced to five years upon each of counts 1 and 7, the sentences to run concurrently.

Upon separate appeal, each defendant questions the sufficiency of the evidence in varying particulars to form a basis for his convictions and also makes additional claims of error occurring in the course of the trial. No argument is made, however, by the defendant McMurray that the evidence is insufficient to warrant his conviction on count 7 for the uncontradicted evidence clearly shows a specific and unlawful sale of narcotics made personally by McMurray to a government agent. It follows, because McMurray's period of total imprisonment may be composed of the consecutive sentences imposed under counts 1 and 7, that our consideration need only be concerned with his conviction under count 1. And, because concurrent sentences were imposed upon the defendant Bryson under counts 1 and 7, our treatment of his claims may be similarly limited.¹ Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321; Travis v. United States, 10 Cir., 269 F.2d 928; Cummings v. United States, 10 Cir., 289 F.2d 904.

Appellants' counsel do not, nor do we, attempt to do more than summarize the evidence as it reflects in a somewhat long and complex record reciting events occurring in Tulsa, Oklahoma, during the course of a six-week investigation conducted by federal narcotic agents with the cooperation of local authorities. The investigation began when agent Casey, indicating an interest in the purchase of narcotics, made a cold contact with Bryson at this defendant's bail bond office in Tulsa. Bryson asked the agent to phone him at the office at a later time. Upon so doing, the agent talked to Don Jones² who was in Bryson's office. Bryson was not then present. At later meetings with Jones two purchases of contraband drugs were consummated with McMurray indicated as the source of supply. After informing Bryson of an interest in dealing directly with McMurray, the agent made the direct purchase from McMurray which we have indicated supports McMurray's conviction under count 7. This purchase was consummated only after Bryson informed McMurray that the agent was "solid."

From these highlights, the defendant McMurray asserts that no conspiracy is shown and that the transactions are but sporadic sales; and, alternately, that multiple conspiracies are shown which cannot be the basis for conviction as obtained. We see no merit to either contention. The key to all the transactions lies in the willingness of the agent Casey to purchase narcotics and the willingness of all the defendants to participate in accomplishing that end. A fair interpretation of the evidence shows a flow of narcotics from McMurray to the agent through the efforts and acts of the other defendants; and finally, a direct sale from McMurray to the agent. The claim that those conspirators who purchased from McMurray to sell to the agent were "independent contractors" is unique but without foundation,...