Reid v. United States, 18980.
| Decision Date | 02 September 1964 |
| Docket Number | No. 18980.,18980. |
| Citation | 334 F.2d 915 |
| Parties | Travis Robert REID, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Laddy H. Gross, Palo Alto, Cal., for appellant.
Sidney I. Lezak, U. S. Atty., and Donal D. Sullivan, Asst. U. S. Atty., Portland, Or., for appellee.
Before POPE, HAMLEY and MERRILL, Circuit Judges.
Travis Robert Reid, convicted as a second offender of the narcotic laws, appeals from the judgment of conviction and sentence.
He first contends that the trial court erred in failing to instruct the jury that the United States had to prove beyond a reasonable doubt that there was no entrapment.
The trial court instructed fully as to the elements essential to the defense of entrapment. It did not, however, expressly instruct the jury as to whether the burden of proof rested with Reid to prove unlawful entrapment, or with the prosecution to show that there was no unlawful entrapment. Nor did the court expressly instruct as to the quantum of proof necessary to sustain such burden wherever it lay. The trial court did give the usual general instruction on the presumption of innocence and to the effect that the burden was on the Government to prove every essential element of the crime charged beyond a reasonable doubt.1
No objection was taken to any portion of the charge given or any omission from the charge. Counsel for Reid in fact advised the court: "* * * you thoroughly instructed the jury as far as I am concerned." It follows that, in view of Rule 30, Federal Rules of Criminal Procedure, Reid may not now question the lack of an instruction of the kind contended for, unless such lack constitutes plain error affecting his substantial rights, within the meaning of Rule 52(b), Federal Rules of Criminal Procedure.
Reid testified that he knew the informer, Eugene Westbrook, prior to September 14, 1961, when the asserted narcotics transactions between him and Westbrook occurred, and knew at that time that Westbrook was an informer working for the Police Department and the "Narcotics Department." It is difficult to understand how one could be "entrapped" by another known by him at the time to be working with law enforcement officers.
Reid testified that on September 14, 1961, he had delivered a small quantity of narcotics to Westbrook for the personal use of Westbrook and the latter's wife, receiving thirty dollars, no part of which constituted profit for him. But he denied participation in either of the narcotics transactions which were alleged to have occurred on that day, one the wholesaling of eighty-five dollars worth of narcotics to Westbrook for resale, and the other the wholesaling of fifty dollars worth of narcotics to Westbrook for resale. The defense of entrapment is inconsistent with a contention that the transactions did not occur. See Gonzales v. United States, 9 Cir., 314 F.2d 750, 752.
Reid and the informer, Westbrook, contradicted each other as to which of them made the initial contact which led to the narcotics transactions in question. But Reid did not deny Westbrook's testimony that Reid twice telephoned to Westbrook at the latter's apartment, once before each transaction was consummated. The first such telephone call was made by Reid to explain that he had been delayed in delivering narcotics, Lavern E. Gooder, a Narcotics Agent, corroborating Westbrook as to this call. The second telephone call was made by Reid after the first transaction to inquire "* * * how everything was. * * *" One who has himself initiated telephone calls in arranging a narcotics transaction is in a poor position to claim entrapment.
Reid's credibility was also undoubtedly undermined by the fact, brought out for impeachment purposes, that he had a long criminal record, including one prior narcotics conviction. Moreover, while Reid had testified that he had never dealt in narcotics prior to September 14, 1961, there was received in evidence a long typewritten statement signed by Reid under oath, recounting four narcotic smuggling expeditions engaged in by him between May, 1960 and September 10, 1961, immediately preceding the transactions here in question.2
In Lopez v. United States, 373 U.S. 427, 436, 83 S.Ct. 1381, 10 L.Ed.2d 323, where a conviction was obtained on a charge of attempted bribery, the jury was instructed, without objection, that the burden of proof with respect to entrapment is on the defendant. Holding that the record did not disclose a sufficient showing that the defendant was induced to offer a bribe, the Supreme Court held that it could not conclude that he was prejudiced by the charge on burden of proof, even assuming that the burden called for was too great. Accordingly the Court declined to invoke the "plain error" rule and did not consider the burden of proof question on the merits.
We reach a like conclusion here with regard to the showing that Reid was induced to sell narcotics, and similarly decline to invoke the "plain error" rule. It need only be added that there was no instruction in our case, as in Lopez, that the burden of proof to establish entrapment was upon the defendant. In fact a portion of the charge given, as quoted in note 1, comes close to placing the burden upon the Government to disprove entrapment beyond a reasonable doubt. We indicate no view as to the kind of instruction which would have been proper.3
Reid next contends that the trial court erred in receiving in evidence exhibit 4. This exhibit is a typewritten signed statement given by Reid to John H. Windom, a federal narcotic agent, about a month after Reid's arrest and while he was at liberty on his personal recognizance. In this statement Reid described several trips he had taken to Mexico to obtain heroin for one Arthur Palmer and subsequent activities in marketing this product.
Initially the Government sought to introduce only that part of the statement which dealt with a smuggling trip to Mexico which commenced on September 2, 1961, and concluded on September 10, 1961.
Under questioning by Government counsel and the court, Windom testified that no threats, promises or offers were made to obtain the statement or Reid's signature thereto. According to Windom, Reid was not at that time represented by counsel, and had not requested counsel, but he had been advised that any statement he made could be used against him in court. Counsel for defendant then objected to the admission of any part of the statement on the ground that it is "incompetent" and that it had been obtained on threats of arrest and promises of immunity. No objection was made (and none is made now) on the ground that Reid was not represented by counsel at the time.
The court then excused the jury and permitted cou...
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