Munroe v. United States

• Decision Date: 07 April 1970
• Docket Number: No. 121,122-69.,121
• Citation: 424 F.2d 243
• Parties: Donald Richard MUNROE, Appellant, v. UNITED STATES of America, Appellee. Marian B. MUNROE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

424 F.2d 243 (1970)

Donald Richard MUNROE, Appellant, v. UNITED STATES of America, Appellee.

Marian B. MUNROE, Appellant, v. UNITED STATES of America, Appellee.

Nos. 121, 122-69.

United States Court of Appeals, Tenth Circuit.

April 7, 1970.

Fred T. Hensley, Portales, N. M., for appellants.

Victor R. Ortega, U. S. Atty. (and John A. Babington, Asst. U. S. Atty., Albuquerque, N. M., on the brief), for appellee.

Before MURRAH, Chief Judge, and LEWIS, BREITENSTEIN, HILL, SETH, HICKEY and HOLLOWAY, Circuit Judges.

HILL, Circuit Judge.

Appellants are husband and wife and each is a licensed osteopathic physician in the State of New Mexico. They were convicted by a jury on separate counts of an information charging the unlawful sale of amphetamine tablets, a "stimulant drug" within the meaning of 21 U.S.C. § 321(v) (2), in violation of 21 U.S.C. § 331(q) (2). These are direct appeals from those convictions.

Evidence on behalf of the government shows that on November 2, 1966, at about 12:30 A.M., James Wilson, acting as an undercover agent for the New Mexico State Police, and one Ray Shipplett drove in Shipplett's car to the home of appellants in Portales, New Mexico. Shipplett first went into the home and in a few minutes returned to the car and told Wilson to come into the house with him. Inside the house Shipplett and Wilson purchased two thousand ten milligram amphetamine tablets from Donald Munroe at a price of seventy-five dollars per thousand, the same being paid by Shipplett with money previously furnished to him by Wilson. After paying the money Shipplett picked up the paper sack containing the tablets, handed it to Wilson and the two left the house. Donald Munroe's conviction was based on this transaction.

The government's evidence further shows that on March 24, 1967, Donald G. Bramwell, an Agent with the Bureau of Narcotics and Dangerous Drugs, at Lubbock, Texas, called the Munroe home in Portales by telephone and talked with appellant Marian Munroe. He represented himself to be one Fred Shockley, an acquaintance of the Munroes. He advised Mrs. Munroe that he wanted to buy three thousand "red bird" tablets. "Red bird" is a slang term for seconal capsules, a barbiturate. She cautioned him "not to talk that way over the telephone" but if he wanted to talk to her to come to Portales and see her. Bramwell then advised her that he would be there at 10:00 o'clock that night. Later that day Bramwell advised Mrs. Munroe that he would be in Portales the following evening at 10:00 o'clock. On the night of March 25, Bramwell went to the Munroe home, was admitted by Mrs. Munroe and after some conversation about the man, Fred Shockley, Mrs. Munroe sold Bramwell 3000 amphetamine tablets at a price of one hundred dollars per thousand. On this occasion Bramwell told Mrs. Munroe that he was picking up the tablets for Fred Shockley.

At the trial the appellants, in effect, admitted each of the sales but denied that they were guilty of the crimes charged. They contended that each sale was made in their professional capacities and were not violations of the law. In the alternative they contended that if the sales were in violation of law, that they had been entrapped by Wilson and Bramwell into making such illegal sales. At the trial they timely objected to the giving of an "Allen" type instruction to the jury.

To support the legality of the sales Donald Munroe testified that both Shipplett and Shockley were former patients; that both were engaged in the horse racing business; that the tablets, on both occasions, were sold for use by the buyer in such business; and, that many racers gave their horses such "stimulant drugs."

At the close of the case, counsel for Munroes requested the giving of an instruction to the jury on the defense of entrapment, which request was refused. The law is well settled in this circuit that if the defendant denies the commission of the crime charged, the defense of entrapment is not available to him.¹ Appellants urge that, in this case, because they do not deny the making of the sales, although they do deny the illegality of the sales, the above entrapment rule should not be applied. We cannot agree. One of the reasons for the rule lies in the inconsistency between a denial of guilt and the defense of entrapment.² That same inconsistency exists here as between appellants' claim that the sales were legally made and the defense of entrapment. It should also be noted that, under the law, appellants could legally dispense "stimulant drugs" to their patients but it is preposterous to argue that the selling of amphetamine tablets in quantities of two and three thousand tablets was being done in the regular course of their professional practice. It is also absurd to argue that the selling of such tablets to someone for use as horse medicine is within the appellants' authorized professional handling of "stimulant drugs."

Moreover, we have not only read the appendix prepared in this case but we have carefully read the entire trial transcript. We can find no evidence in the case to support the defense of entrapment even if we could say such defense was available. On the Wilson count, he did not wear his uniform when he went to the Munroe home with Shipplett but was dressed in old clothes, he had grease on his hands and under his fingernails, he acted like he had been drinking and posed as Shipplett's partner. In the Bramwell count, the Agent, talking with Marian Munroe on the telephone, represented himself as Fred Shockley and thereafter at the Munroe home told Marian Munroe he was picking up the tablets for Shockley. Under the cases cited above, these representations and circumstances fall far short of the required showing to establish entrapment.³

At the conclusion of the trial the jury was instructed and, at 2:56 o'clock P.M., sent to the jury room to commence deliberations. Near the end of the court day and at 4:45 o'clock P.M., without any request or communication from the jury, the trial judge advised counsel that he proposed to bring the jury in to determine what progress, if any, it had made. The jury was brought back to the courtroom and from careful and judicious questioning by the judge, he learned that the jury was not deadlocked, progress had been made and some parts of the whole verdict actually agreed upon. At this point the jury simply had not finished its deliberations.

The trial judge then proceeded to give the jury an additional charge. At the outset he advised them that all of the original instructions given were to be just as fully considered as if he again gave those instructions. He proceeded to again instruct them fully on presumption of innocence, burden of proof and reasonable doubt. He then gave the jury an "Allen" type instruction.⁴ The jury returned to the jury room at 5:01 o'clock and in about forty minutes returned to the courtroom with a complete verdict on each of the three counts of the information. Both defendants were acquitted on the first count, in which they were charged jointly, and each was convicted on a separate count, counts 2 and 3, which charged individual crimes.

Appellants lastly urge trial error because of the giving of the supplemental instructions during the course of the jury deliberations. To this date this court has not, as a general rule, condemned the giving of supplemental jury instructions or struck down the giving of the so-called "Allen" type instruction. The court has made a case by case examination to determine whether the taint of coercion was present. In some instances, by reason of the coercive nature of the language used in giving such an instruction, cases have been reversed.⁵ In more recent cases, the trial courts have been advised that the giving of such an instruction before the jury commenced to deliberate instead of during the course of the deliberations is preferable.⁶ In United States v. Winn, 411 F.2d 415 (10th Cir. 1969), Chief Judge Murrah stated, "* * * we have said more than once that an instruction of this kind would be more `appropriately influential and far less vulnerable to the charge of coercion' if given before the jury initially retires." After considering the wording of the instruction given in that case, the colloquy between the trial judge and the jury foreman and all of the circumstances surrounding the giving of the...