Rossi v. United States

• Decision Date: 25 November 1925
• Docket Number: No. 7080.,7080.
• Parties: ROSSI v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.2d 362 (1925)

ROSSI v. UNITED STATES.

No. 7080.

Circuit Court of Appeals, Eighth Circuit.

November 25, 1925.

J. W. Kelley, of Denver, Colo. (Jean Kelley and L. J. Crowley, both of Denver, Colo., on the brief), for plaintiff in error.

Clarence L. Ireland, Asst. U. S. Atty. (George Stephan, U. S. Atty., both of Denver, Colo., on the brief), for the United States.

Before LEWIS and KENYON, Circuit Judges, and MUNGER, District Judge.

KENYON, Circuit Judge.

Plaintiff in error (hereinafter referred to as defendant) was tried and convicted in the District Court of the United States for the District of Colorado upon each of the three counts of an indictment, the first of which charged defendant with possession in Denver, Colo., on March 23, 1925, as a dealer, of a certain quantity of a derivative and preparation of coca leaves, to wit, cocaine; the second with the unlawful selling to one Carl West at the same time and place of a quantity of a derivative and preparation of coca leaves, to wit, cocaine; the third, at the same time and place with unlawfully purchasing from a person or persons to the grand jurors unknown, a quantity of a derivative and preparation of coca leaves, to wit, cocaine. The first two counts of the indictment alleged that defendant had not registered with the collector of internal revenue for the district of Colorado and had not paid the special tax required by law. The third count did not contain such averment, but did allege that said cocaine was not purchased in or from an original stamped package as required by law.

Defendant was sentenced to the penitentiary on the various counts for a period of seven years and fined in the sum of $2,000. The facts appearing from the evidence briefly are that on the evening of March 23, 1925, government narcotic agents in Denver, being suspicious that one Carl West was dealing in narcotics, made arrangements with one Ray McDonald to purchase some narcotics from said Carl West. McDonald made arrangements to meet West on the evening of March 23, 1925. He did so, and took him in his automobile to the vicinity of 3110 Osage street, North Denver. Carl Calabrese, who was a witness in the case, brought West to the meeting point with McDonald, and then proceeded in his automobile to a point near said 3110 Osage street, and was parked across the street therefrom when West and McDonald arrived. There is dispute in the testimony as to what subsequently happened. West testified he proceeded across the street to 3110, where he met defendant and purchased from him an ounce of cocaine. This is denied by the defendant, and he is corroborated to some extent by Calabrese. West delivered the cocaine to McDonald at his car, then went to the car of Calabrese, and drove with him back to Denver. West claimed to have had an arrangement with McDonald to the effect that he would meet him later in the evening for the purpose of trading him a half ounce of morphine for a half ounce of cocaine, the same being part of the cocaine which McDonald had purchased from West. When West came to meet McDonald at Fifteenth and Glenarm streets, about 9:30 on the evening of March 23, 1925, he was arrested by the narcotic officers, to whom McDonald had turned over the cocaine which he had purchased from West. The narcotic officers knew nothing about defendant, but were endeavoring to secure evidence against West. Calabrese and West were taken by the officers to the narcotic office, and West then admitted he had purchased from defendant the cocaine which he later sold to McDonald. Apparently he agreed with the narcotic officers that he would attempt to make another purchase of narcotics from defendant, and on the following day he went again under the direction of said officers to 3110 Osage street, they having arranged to have Ruth Vincent follow him to this place and observe what took place. On that day West did not purchase any narcotics from defendant, but claimed in his evidence that defendant agreed to sell him some later on that evening. This is a brief rÈsumÈ of the evidence.

A number of questions are presented on the writ of error. We consider them separately.

It is urged on the part of defendant that the third count of the indictment does not state an offense, because it does not allege that petitioner was one who was required to register and pay a tax and had not done so. Counsel for defendant confuse the argument by asserting and urging that count 3 is based on section 8 of the Harrison Anti-Narcotic Act (Comp. St. ß 6287n), when in fact it is drawn under a provision of section 1 of said act reading as follows: "it shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs except in the original stamped package or from the original stamped package." U. S. Compiled Statutes, 1923 Cumulative Supplement, ß 6287g, 42 Stat. 298. The words in section 8, "any person not registered," refer to persons who are required to register under section 1. United States v. Jin Fuey Moy, 241 U. S. 394, 36 S. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854; Linder v. United States, 268 U. S. 5, 45 S. Ct. 446, 69 L. Ed. 819. In this and other courts, see Johnson v. United States (C. C. A.) 294 F. 753; Di Salvo v. United States (C. C. A.) 2 F.(2d) 222; Bellomini v. United States (C. C. A.) 4 F.(2d) 104; Lamento v. United States (C. C. A.) 4 F.(2d) 901.

A different construction has been generally given by the courts to the words of section 1 before quoted, under which this indictment is brought. Referring thereto in United States v. Wong Sing, 260 U. S. 18, 20, 21, 43 S. Ct. 7, 8 (67 L. Ed. 105), the Supreme Court said: "The provisions quoted by the court have a certain relation, but they have also a certain independence. The first makes it `unlawful for any person to purchase' the drugs; the second enumerates other persons who have a larger connection with the drugs and requires them to register the fact and pay the tax prescribed. There could be no object in requiring a purchaser of the drugs to register but it fulfilled the purpose of the law to forbid a purchase `except in the original stamped package or from the original stamped package.' The requirement fortifies the other injunctions of the statute." See, also, Hayden v. United States (C. C. A.) 284 F. 852; Sam Wong v. United States (C. C. A.) 2 F.(2d) 969; Ballestrero v. United States (C. C. A.) 5 F.(2d) 503; Pierriero v. United States (C. C. A.) 271 F. 912.

It was not necessary to the validity of count 3 of this indictment that it allege defendant was required to register and pay a tax and had not done so. The count charged that the cocaine was not purchased by defendant in or from an original stamped package. That was sufficient. It may be observed that no objection was raised in the trial of the case to any count of the indictment. There was no demurrer nor motion with reference thereto, and the question seems to be first presented in this court.

We may note at this point that frequently throughout the argument of counsel for defendant it is suggested that a motion was made at the close of the government's evidence to dismiss the case. The record shows no such motion. At the close of the government's case the following occurred, as is shown by the record:

"Mr. Ireland: The government rests.

"Mr. Kelley: We move to dismiss the purchase.

"The Court: Motion denied.

"Mr. Kelley: Exception."

It may be that the record is in error, but as it stands there is nothing to show that any question was raised as to the indictment at any stage of the proceedings. The objection to count 3, however, being without merit, it is immaterial whether or not objection was raised; the question may be of some importance in considering other matters subsequently referred to.

It is urged that the evidence on the first and second counts was not sufficient to warrant conviction; no witness testifying that petitioner was not registered and had not paid the tax. Count 1 is based on unlawful possession of narcotics. Count 2 on the sale thereof. Defendant claims that the presumption of unlawful possession arising from possession of the narcotics was detroyed when defendant took the stand and denied the purchase. It may be noted that, while defendant denied the purchase, he did not testify that he was a registered dealer under the act and had paid the tax. However, this question as to the sufficiency of the evidence is not before us. It was in no way raised during the trial. There were no exceptions to the court's charge. There is not even a specific assignment of error covering it. This court has many times held that the method to require a review of the sufficiency of the evidence is to move at the conclusion of all the evidence for a directed verdict on the ground of the insufficiency thereof to sustain a verdict. This was not done, nor was there any demurrer or motion of any kind to call such matter to the attention of the trial court. According to the long-settled practice of this court, the question is therefore not here for review, and defendant is in no position to ask of this court that it pass thereon. Gillette v. United States, 236 F. 215, 149 C. C. A. 405; Prosser et al. v. United States (C. C. A.) 265 F. 252; Bonner v. United States (C. C. A.) 275 F. 614; Trope v. United States (C. C. A.) 276 F. 348; Edwards v. United States (C. C. A.) 7 F.(2d) 357.

Defendant claims that requested instructions numbered 1 and 2 should have been given to the jury. These were as follows:

"You are instructed that in weighing the testimony greater care should be used by the jury in relation to the testimony of persons who are interested in, or employed to find, evidence against the accused than in other cases, because of the natural and unavoidable tendency and bias of the mind of such persons to construe everything as evidence against the accused, and disregard everything which does not tend to support their preconceived...