Robison v. United States, 20752.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtJERTBERG and MERRILL, Circuit , and MATHES
Citation379 F.2d 338
PartiesDwight Dewitt ROBISON, Appellant, v. UNITED STATES of America, Appellee.
Docket NumberNo. 20752.,20752.
Decision Date03 July 1967

379 F.2d 338 (1967)

Dwight Dewitt ROBISON, Appellant,
UNITED STATES of America, Appellee.

No. 20752.

United States Court of Appeals Ninth Circuit.

May 18, 1967.

Rehearing Denied July 3, 1967.

379 F.2d 339
379 F.2d 340
Howard H. Engelskirchen, Santa Clara, Cal., for appellant

John P. Hyland, U. S. Atty., William Shubb, Asst. U. S. Atty., Sacramento, Cal., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee.

Before JERTBERG and MERRILL, Circuit Judges, and MATHES, District Judge.

MATHES, District Judge:

This is an appeal from a judgment of conviction and sentence entered in the District Court upon a jury verdict of guilty as to each of the six counts of the indictment. In counts I and III and V, appellant was charged with three separate sales of narcotics heroin, in violation of 21 U.S.C. § 174. In each of the remaining counts II and IV and VI, appellant was charged with a transfer of the heroin without the required written order from the person to whom the narcotic drug was transferred, contrary to 26 U.S.C. § 4705(a).

In an earlier indictment, returned and filed April 28, 1961, appellant had been charged with the same three violations of 21 U.S.C. § 174 as are charged in counts I and III and V of the indictment at bar; and appellant had entered a plea of guilty to the first count of this earlier indictment.

379 F.2d 341
He was sentenced to 15 years imprisonment on the first count and the second and third counts were thereupon dismissed. Thereafter, appellant filed a motion under 28 U.S.C. § 2255 to vacate and set aside the fifteen-year sentence upon the ground that his plea of guilty was not voluntarily made. Fed.R.Crim. P. 11. This motion was granted

A new indictment was promptly returned on August 13, 1965, charging appellant with the six offenses described at the outset of this opinion. Following trial upon his pleas of not guilty, the jury convicted appellant on all six counts; and it is from concurrent sentences of ten years imposed as to each of counts I and II, and of fifteen years imposed as to each of counts III, IV, V, and VI, that this appeal is prosecuted.

The evidence introduced at the trial, viewed as it must be in the light most favorable to the prosecution see Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958), warranted a jury finding that the material facts of the case were these. On March 8, 1961, a Federal Bureau of Narcotics informant who had previously engaged in dealings with appellant involving small quantities of heroin, telephoned from San Francisco to appellant in Sacramento. In the course of that telephone conversation, appellant agreed to "make a meet" and sell informant a "spoon" of heroin for $50.00. Pursuant to this prearrangement, the informant and Federal narcotics agent Lee went by automobile to Sacramento, and there met appellant at a Sacramento amusement place called Playland.

Appellant was aware of the presence of agent Lee, who posed as an ostensible purchaser of larger quantities of heroin; but appellant refused to be introduced to him. The informant then gave appellant $50.00 in currency, which had been supplied him by Federal agents to enable him to make the "buy", and was thereupon directed by appellant to follow him to his hotel room, where appellant gave the informant a yellow balloon containing some heroin. As this transaction was closed, appellant assured the informant that what appellant had supplied him was a "pretty nice package", and that the informant should be able to use a portion of the narcotics and still "make his money back" by reselling the rest.

A few days later, on March 14, 1961, appellant again met by prearrangement with the informant who then introduced appellant to agent Lee. Agent Lee discussed with appellant the possibility of purchasing a larger amount of heroin — "pieces, which would mean an ounce." Appellant quoted a per-ounce price of around $375.00 and thereupon contacted another man who appellant stated could take Lee "to the same source of supply that he had." It developed that the other party was unable to "find this man", so Lee and the informant and appellant made arrangements to meet again two days thereafter, on March 16th.

Agent Lee himself telephoned appellant on March 16th, and inquired whether "the deal was set". Appellant replied that it was; and appellant, agent Lee, and the informant then met at Hart's Cafe in Sacramento where the informant handed appellant $100.00 in bills. Appellant again directed the informant to go to appellant's hotel, instructing Lee to wait at the cafe. On the stairway of the hotel, appellant produced a white envelope containing heroin from under the stairway carpet and gave it to the informant.

Six days later, on March 22nd, Lee again telephoned appellant and arranged another meeting at Hart's Cafe where Lee gave appellant $165.00 as advance payment for three "spoons" of heroin. The informant was not present on this occasion. Appellant left the cafe for the heroin, but returned without any; and appellant thereupon repaid Lee all but $5.00 of the intended purchase price.

On the following day, Lee again met with appellant, who took $160.00 from Lee and said he would meet him later at Hart's Cafe. While Lee was waiting at the cafe, an unidentified person approached and inquired whether he was

379 F.2d 342
Lee. Lee replied in the affirmative; whereupon the third party said, "I am here for Robbie appellant", and instructed Lee to drive his automobile to another location. This Lee did, and there observed appellant and the unidentified third party together. Appellant then approached and entered Lee's car, placed a folded newspaper on the seat, and suggested that they have a drink at a nearby bar, advising Lee to lock his car as they got out. In the bar, appellant told Lee that the heroin was in the folded newspaper on the seat of Lee's automobile, and that he could arrange to sell Lee ounce lots in the future

Eight days later, on March 31st, by prearrangement appellant telephoned Lee at the latter's home, and said that "he could get * * * Lee a better deal than ounces"; that he could sell Lee twenty "spoons" of heroin for $500.00. Appellant and Lee then arranged a meeting, whereat Lee advanced or "fronted" to appellant the requested $500.00. Appellant then left Lee to procure the promised twenty "spoons", but failed to return with either the heroin or the $500.00; indeed, appellant did not return at all. In April of 1961, appellant was arrested, and his prosecution for the sales of heroin on March 8th and 16th and 23rd followed.

Appellant's first contention upon appeal is that counts II and IV and VI of the indictment are time barred by the three-year period of limitations specified in 26 U.S.C. § 6531, because these offenses do not fall, as contended by appellee, within the exceptions found in § 6531 allowing a six-year period within which to commence prosecution. But we need not decide this question, since the period of limitations as to the sales of heroin charged in the remaining counts I and III and V is clearly five years. See: 18 U.S.C. § 3282; Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705, 707 n. 4 (1965). And, as already stated, the sentences imposed on the counts in question commence and run concurrently with those imposed on the remaining counts. See: United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929); Ayala v. United States, 371 F.2d 515 (9th Cir. 1967).

Appellant argues, nonetheless, that the statute of limitations question as to counts II and IV and VI must be decided, because if these "order-form" offenses were time barred, it was prejudicial error to force him to trial on the "sale" offenses along with the time-barred "order-form" offenses. As we view the matter, however, even assuming that the "order-form" counts II and IV and VI were barred by the statute of limitations, the addition of these charges could not possibly have prejudiced appellant's position at the trial of the "sale" counts I and III and V, inasmuch as the former were addressed to the same transactions as the latter, and of course involved only the question of whether appellant had sold the heroin "not pursuant to a written order". See 26 U.S.C. § 4705(a).

Appellant next urges that the almost five-year delay between the commission of the offenses charged and the time of trial operated to deny him a fair trial. Yet appellant's reindictment within the statutory period of limitations for the "sale" offenses charged in the first count as well as the previously-dismissed second and third counts of the first indictment is unassailable Munich v. United States, 337 F.2d 356, 361 (9th Cir. 1964). And the delay of less than six months between indictment and trial is surely not open to criticism, especially in view of appellant's four intervening requests for continuances, only the last of which was denied.

Appellant advances the further contention that in all events it was prejudicial error for the trial court to instruct the jury not to concern themselves with the time lapse, because "the instant case had to be instituted to finally dispose of the charges against the defendant." In our opinion, however, the instruction read in its entirety was eminently fair

379 F.2d 343
to both the accused and the prosecution, since it placed sole blame for the delay upon the court and did not leave the jury to speculate as to possible fault of either side of the case

Appellant also urges reversal of his conviction as to the offenses charged in counts V and VI, upon the ground of claimed...

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