Robinson v. United States

• Decision Date: 07 January 1959
• Docket Number: No. 16181.,16181.
• Citation: 262 F.2d 645
• Parties: Jesse Lee ROBINSON and Tom Lowe, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

262 F.2d 645 (1959)

Jesse Lee ROBINSON and Tom Lowe, Appellants, v. UNITED STATES of America, Appellee.

No. 16181.

United States Court of Appeals Ninth Circuit.

January 7, 1959.

Jesse Lee Robinson, in pro. per.

Laughlin E. Waters, U. S. Atty., Robert D. Hornbaker, Robert John Jensen, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and HAMLEY, Circuit Judges.

BARNES, Circuit Judge.

Appellants were convicted by the court below, sitting without a jury, on each of an indictment's two counts. It was charged in Count One that appellants did, on November 21, 1957, after importation, knowingly and unlawfully receive, conceal and transport, and facilitate the concealment and transportation of a certain narcotic drug, namely, 150 ounces of heroin, in violation of 21 U.S. C.A. § 174; and in Count Two, that on the same date the appellants did, after importation, knowingly and unlawfully sell and facilitate the sale of a certain narcotic drug, namely, 150 ounces of heroin, in violation of 21 U.S.C.A. § 174.¹

The district court sentenced appellant Lowe to five years on each count, to run concurrently, and appellant Robinson to ten years on each count, to run concurrently.

The district court had jurisdiction. 18 U.S.C. § 3231. Upon timely appeal, this Court likewise has jurisdiction. 28 U.S. C. § 1291.

The cause was submitted to this Court without oral argument. In briefs on file, three grounds are urged for reversal. The first is that the evidence was insufficient, as a matter of law, to convict the defendant Robinson; the second, that cross-examination of the informer, Cammack, was unduly limited; the third, that the district court erred in admitting rebuttal evidence upon a collateral matter.

Appellants recognize that each of their last two points is a matter ordinarily lying within the discretion of the trial court. Although seeking to find, here, the basis for an exception to such usual rule, the defendant can point out no abuse of discretion, nor any reason why such discretion, resting with the trier of fact, should be disturbed by us. We find no error on these points.

The first ground of claimed error requires a close examination of the facts. We agree with the government's position that the evidence is required to be viewed in the light most favorable to it. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Reynolds v. United States, 9 Cir., 1956, 238 F.2d 460; Arena v. United States, 9 Cir., 1955, 226 F.2d 227, certiorari denied, 1956, 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830.

One Cammack had been a long-time heroin addict. He was released from the county jail on the 20th of November, 1957, after finishing a county jail sentence. At the elevator leaving the county jail, he was met by federal officers who took him to the Federal building; they told him there was an indictment against him, and asked if he wanted to cooperate by making a purchase of heroin. He said he did, and was released on his own recognizance. He called the federal narcotic officers the next day and was asked to meet Officer Richards. Richards asked him to call Jesse Robinson and see if he (Cammack) could make a purchase of heroin. Officer Richards dialed Robinson's telephone number. Officer Richards told him to ask for Jesse and to ask for "half a pint."

On November 21, 1957, Cammack, the informer, testified he talked to Robinson on the telephone, after the police officer had dialed the number, telling Robinson he wanted "half a pint" and was invited to Robinson's house; that Cammack there again expressed a desire for one-half an ounce of heroin; that he was told by Robinson to call Tom Lowe and was given Tom Lowe's telephone number; that that same day, having lost Lowe's telephone number, Cammack called Robinson again to reobtain Lowe's number; Cammack called Lowe (to whom he had talked before) and told Lowe he wanted "half a pint" and was instructed to meet Lowe at Cloverdale and Adams Streets where he, Cammack, gave Lowe $100 of government money and was told to drive to 2100 Cloverdale and look beside the curb; that he, Cammack, went there and picked up from the street beside the curb a package containing a white napkin with a yellow balloon in it; that this package was turned over to the government agent.

It was stipulated that the powdery substance allegedly found within the balloon was heroin.

Cammack testified that on November 22, 1957, he called Robinson, asked to get "a pint" and was told to call Tom Lowe. Cammack said: "That was real nice yesterday," and Robinson said, "Yes, I know it." Cammack made no further personal contact with Lowe after November 21st, 1957, except by telephone. Five telephone calls on three subsequent days produced no heroin.²

Cammack later was sentenced to eight years in prison on his guilty plea to a federal charge of sale of narcotics. He had previously been convicted of another narcotic felony.

After his agreement to "cooperate" with the federal officers on November 20th, Cammack was temporarily released³ until January 16th, 1958. Cammack was never promised any leniency for his cooperation, but he "hoped for some."

Officer Richards testified Cammack had stated that he had been purchasing narcotics from Robinson, and that he believed he might purchase some more from him.⁴ Cammack did not testify as to this and was not asked.

The government impliedly admits that there is no sufficient evidence to convict Robinson on the first count of possession or concealment or transportation of the narcotics when it calls this Court's attention to Robinson's conviction on Count Two with a similar concurrent ten year sentence, and says: "Since the evidence on Count Two was sufficient to convict Robinson, the court need not inquire into the sufficiency of the evidence on Count One."

We agree with the principle of law enunciated, if we accept as correct the government's premise that the evidence was sufficient to convict Robinson on Count Two.

Appellee vigorously contends that Robinson (a) facilitated the purchase from Lowe, and (b) at the least, aided and abetted it.⁵ Appellee relies on Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751, 756, wherein an express company employee took a sticker from a box in a customs corral which had passed customs inspection, and placed it on a trunk which had not been inspected, and which he knew contained opium. There we held (and would now reaffirm) that under such circumstances the accused "facilitated" the transportation of opium into this country. But that case does not present comparable facts to those here established.

Did Robinson "facilitate" the purchase from Lowe by giving Cammack Lowe's telephone number? Appellee argues that "Robinson made the sale less difficult, and he therefore facilitated the sale." But so did the telephone company in providing Lowe with a telephone, and in listing his telephone at a certain number, and in publishing the telephone book. So did the manufacturer of the automobile used to effect the contact; not to mention the manufacturers of the white napkin, and the yellow balloon.

We do not find Morei v. United States, 6 Cir., 1942, 127 F.2d 827, upon which appellant largely relies, as inapposite as the government contends. In attempting to differentiate it, appellee states:

"The only case cited by appellant, Morei v. United States, supra, is not in point. There, the Court said that `the only thing Dr. Platt did was to give Beach the name of Morei as a man from whom he might secure heroin to dose horses in order to stimulate them in racing\' (at page 832). There, the facts showed that Robinson did more than that; he associated himself with the venture. He therefore aided, abetted, counseled, commanded, induced and procured the sale."

This is mere verbiage. Nowhere does the appellee point out where and how Robinson "did more"; how he "associated himself with the venture." Was it by saying, "Yes, I know it," when Cammack said: "That was real nice yesterday"? "That" which was "real nice" could have referred to many things other than heroin.

Appellees also cite Judge Learned Hand in United States v. Peoni, 2 Cir., 1938, 100 F.2d 401, 402, where it was said that in order to aid and abet another to commit a crime, it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." We can not find in the evidence before us anything that indicates Robinson wished to bring about the sale Lowe made to Cammack. He may very well have, in view of his alleged previous sales, but there is no proof of his wishes as to this sale! There is not the slightest evidence that Robinson ever had possession of the narcotic, participated in its sale, or received any of the proceeds thereof.

In Morei v. United States, supra, the court said, as to the facts 127 F.2d 828:

"The Government claims that an informer, named Beach, was sent to buy narcotics from Dr. Platt; that the doctor gave the informer the name of defendant Morei in Cleveland as the man who could get what he wanted; that Morei, aided by * * * Evans, produced the drug; and that the three defendants were guilty as principals in committing the offense of purchasing and selling narcotics."

Id., 127 F.2d at page 830. The Court then says:

"A person is not an accessory before the fact, unless there is some sort of active proceeding on his part; he must incite, or procure, or encourage the criminal act, or assist or enable it to be done, or engage or counsel, or command the principal to do it. Halsbury, supra, § 531. Strictly speaking, in order to constitute one an accessory before the fact, there must exist a community of unlawful intention between him and the perpetrator of the crime. The concept of an accessory before the fact presupposes a prearrangement to do the act see West v. State, 25 Ala.App.

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