Robinson v. United States, 8354.

• Decision Date: 20 September 1966
• Docket Number: No. 8354.,8354.
• Citation: 366 F.2d 575
• Parties: Francis Ray ROBINSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

366 F.2d 575 (1966)

Francis Ray ROBINSON, Appellant, v. UNITED STATES of America, Appellee.

No. 8354.

United States Court of Appeals Tenth Circuit.

September 20, 1966.

Elmore A. Page, Tulsa, Okl., for appellant.

Hugh V. Schaefer, Tulsa, Okl. (John M. Imel and Lawrence A. McSoud, Tulsa, Okl., on the brief), for appellee.

Before LEWIS, BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

Appellant was indicted on seven Counts. Counts 1 through 4 charged separate violations of 21 U.S.C. § 331 (k), in that he caused a number of capsules of amobarbital sodium and secobarbital sodium to be dispensed without a prescription, each dispensing being an act which misbranded the drugs; Count 5 charged the sale of 100 morphine tablets, such sale not being in pursuance of a written order, in violation of 26 U.S.C. §§ 4705(a) and 7237(b); Count 6 charged the purchase of narcotic drugs which were not in or from the original stamped package in violation of 26 U.S.C. §§ 4704(a) and 7237(a); and Count 7 charged a sale of 139 codeine tablets made not pursuant to a written order in violation of 26 U.S.C. §§ 4705(a) and 7237 (b). Counts 1, 2, 3 and 4 charge misdemeanors and Counts 5, 6 and 7 charge felonies. A jury returned verdicts of guilty on all Counts and sentences were imposed as follows: Count 1 — one year; Count 2 — one year; Count 3 — one year; Count 4 — one year; Count 5 — fifteen years; Count 6 — suspended imposition of sentence and placed on probation for five years to commence to run upon expiration of all of the other sentences; and Count 7 — fifteen years with sentences on all Counts except 6 to run concurrently. This direct appeal resulted.

The record reveals that the pertinent facts leading up to the point at which appellant was charged with the crimes are as follows:

Sometime prior to September 26, 1964, Sam J. Roberts, an Inspector for the Food and Drug Administration, learned from undisclosed sources that amphetamine (a non-narcotic drug) was being sold at the "Big D" truck stop in Dallas, Texas. Roberts, on September 28, 1964, visited the truck stop. He assumed the alias of "Lee Hook" and posed as a dope peddler. An employee there furnished him with appellant's name and Roberts left his alias and phone number with the employee. On October 2, 1964, the appellant called Roberts at the Waco, Texas number he had left at the "Big D" truck stop and asked Roberts¹ how many "pills" he wanted. During this phone conversation it was agreed that Roberts and appellant would meet in Dallas in the early morning hours of the following day. Roberts then arranged with federal officials to have a surveillance team in Dallas and left immediately for that city. At approximately 2:35 a. m. on October 3, 1964, appellant and Roberts rendezvoused at the "Big D" truck stop. At this meeting — which is the first contact the government had with him — appellant sold Roberts 125 amphetamine tablets for which Roberts paid appellant $5.00.² Appellant then returned to Tulsa, Oklahoma, his home.

During the period between October 3 and 17, a number of telephonic communications were had between Roberts and appellant. During one of these conversations, Roberts asked appellant if he could give a "buddy" appellant's phone number and appellant told Roberts it would be all right. Also, during these conversations — some initiated by Roberts and some by appellant — it was agreed that Roberts and appellant would meet again at the "Big D" truck stop. On October 17, 1964, this meeting took place at 8:30 p. m. Roberts was accompanied by another U. S. Food and Drug Administration Inspector, Floyd Beachum. Beachum was introduced to appellant as Willy Young, the "buddy" from Waco, Texas, referred to in the earlier phone conversation. At this meeting, Roberts purchased from appellant 5,000 benzedrine sulfate (a non-narcotic drug) tablets and paid him $195.00 therefor. Beachum also purchased some non-narcotic drugs during this Texas rendezvous. During this meeting Beachum asked appellant if he could obtain any "hard stuff". Appellant replied — so testified both Inspectors Roberts and Beachum — that he recently had obtained 25 morphine tablets for an individual.

During the next few weeks after October 17, appellant and Roberts talked to each other twice over the telephone. During one of these conversations appellant expressed an interest in selling tuinal³ to Roberts. Roberts testified that when he asked appellant if appellant could supply him with morphine tablets, appellant replied that he had access to them and that they would cost fifty cents per tablet.

On November 11, 1964, it was agreed between appellant and Roberts that Roberts would drive to Tulsa, Oklahoma, to buy some drugs. On the following day, Roberts and Beachum drove to Tulsa and, after making a few phone calls, located appellant. Because of the Texas license plates on their car, appellant asked the agents to ride with him in his vehicle to his trailer home on the outskirts of Tulsa. Since the agents had not located appellant until late the night of the twelfth, it was 12:30 a. m. on the thirteenth before they reached appellant's home. There the agents purchased a great number of non-narcotic drugs, including 500 tuinal capsules, 500 seconal capsules, a small number of amphetamine capsules and other miscellaneous drugs. On this evening, appellant had in his home a cannister which contained straight amphetamine powder. Using some empty capsules he "capped out" a few amphetamine capsules for the agents, in order that they might see how easy it would be for them to buy the powder and make their own pills. On this morning, the agents again inquired about morphine and appellant replied he had none but expected to get some within the next few days, and that the price would be fifty cents per tablet. At about 5:00 a. m. the morning of November 13, the agents left appellant's trailer. The purchases they made on that occasion in Tulsa are the purchases charged in Counts 1 through 3 of the indictment.

On November 23, 1964, Roberts called appellant about the morphine tablets and appellant said he had some. Roberts then contacted the Bureau of Narcotics in Oklahoma City and arranged for Narcotic Agent James Rose to accompany him to Tulsa the next day. On November 24, 1964, Rose and Roberts went to Tulsa. James Rose was introduced to appellant as a big-time dope peddler.⁴ On this occasion, appellant sold to Roberts and Rose 100 morphine⁵ tablets and some non-narcotic drugs. The sales made on this day are the acts alleged in Counts 4 and 5 of the indictment.

Roberts and Rose met appellant a few times after the 24th of November. Appellant, on these occasions, attempted to obtain some more morphine for the agents but was unsuccessful. However, he informed Rose and Roberts that he knew where he could obtain a great many drugs. He told them about a burglar who had been shot burglarizing a store and that this individual — who was under guard in a Tulsa hospital — had a large cache of drugs. He said he could sell the agents the drugs if he could find out where they were hidden. After some intervening meetings, Rose made a call to appellant and appellant told him he had located the cache of drugs. Rose then proceeded alone to Tulsa. On December 5, 1966, Rose purchased from appellant a great quantity⁶ of narcotic drugs, including 139 codeine tablets. The possession by appellant of these 139 codeine tablets, in a package other than their original stamped package, and his sale of them to Rose are the wrongful acts alleged in Counts 6 and 7 of the indictment.

Appellant first urges that the trial court erred in not giving his requested instruction on entrapment. The instruction given by the trial court in this case conformed to what this court has said concerning the defense of entrapment.⁷ Summarizing, the jurors were told that where an accused has the readiness and willingness to commit the offense, the fact that the officers offer an opportunity to the accused to commit the offense, such as assuming fictitious identities and offering to buy narcotics from him, does not constitute entrapment. But if the accused had no previous purpose or intent to commit the offense charged and did so only because he was induced or persuaded by a government agent, then entrapment has occurred and is a good defense. Counsel for appellant cites the case of Ryles v. United States, 10 Cir., 172 F.2d 72, to support his requested instruction. He says in his brief...