Rendleman v. United States, 5881.

• Decision Date: 10 March 1930
• Docket Number: No. 5881.,5881.
• Citation: 38 F.2d 779
• Parties: RENDLEMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

38 F.2d 779 (1930)

RENDLEMAN v. UNITED STATES.

No. 5881.

Circuit Court of Appeals, Ninth Circuit.

March 10, 1930.

Warren Hardy, of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., and Jeffrey Heiman, Asst. U. S. Atty., both of Seattle, Wash.

Before DIETRICH and WILBUR, Circuit Judges, and KERRIGAN, District Judge.

DIETRICH, Circuit Judge.

The appellant was convicted on an indictment charging him, in two counts, with the violation of two different provisions of the Harrison Anti-Narcotic Act (26 USCA §§ 211, 691-707). The only point he seriously argues is that the trial court should have directed the jury to acquit. Specifically his contention is that the evidence is wholly circumstantial, and that it does not measure up to the requirement that, where the government relies upon circumstantial evidence alone, it must be such as to exclude every reasonable hypothesis other than that of guilt, and that the facts proved must not only point to the defendant's guilt, but must be inconsistent with the theory of his innocence. Union Pacific Coal Co. v. United States (C. C. A.) 173 F. 737; Nosowitz v. United States (C. C. A.) 282 F. 575, 578.

It was shown on behalf of the government that, suspecting appellant was engaged in the sale of narcotics, narcotic agents arranged with an addict by the name of Fadden to make a purchase under circumstances where they could observe what was done. Accordingly, on the evening of December 11, 1925, three of them went with Fadden to a place in Seattle apparently remote from the more populous sections of the city, there searched him to see that he had no narcotics on his person, and gave him $20 in marked money with which to make a purchase. They concealed themselves behind a high bank and about 7 o'clock the defendant drove up in a Studebaker car near the place where Fadden and another man by the name of McGee, who apparently was also an addict, were standing. This was about 100 feet from where the agents were concealed. McGee first spoke to the defendant, who remained in the car. Then both he and Fadden stepped close to the car. What was said the agents did not hear, but they observed that the hand of appellant which was thrust out from the car and the hand of Fadden "met." Appellant then drove off, and in about twenty minutes came back and stopped at practically the same place. Both Fadden and McGee again stepped up close to the car. One of the agents testified: "I saw a hand come out of the car and meet the hand of the man who was not known to me. He stepped back and the informant stepped up. I saw the hand come out of the car and hand Fadden something and he took it and stepped back. We started to run in the direction of the car." In some detail the agents testified of their difficulty in getting into the car as it moved away rapidly; how it was stopped about a block away; that appellant alone was in the car; that, upon arresting and...