Sherman v. United States

Decision Date08 March 1957
Docket NumberNo. 14977.,14977.
Citation241 F.2d 329
PartiesHarry Morris SHERMAN, Appellant, v. UNITED STATES of America, Appellee
CourtU.S. Court of Appeals — Ninth Circuit

Morris Lavine, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Louis Lee Abbot, Thomas H. Ludlow, Jr., Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS and ORR, Circuit Judges, and ROSS, District Judge.

ROSS, District Judge.

Appellant, Harry M. Sherman, was tried and convicted in the District Court of the Southern District of California, Central Division, on an indictment charging three violations of 21 U.S.C.A. § 174 (narcotics). He appeals from these convictions.

A brief summary of the factual background is necessary and the evidence is briefly summarized as follows: The defendant, Sherman, once a known dealer in narcotics, and prior to his arrest in connection with the instant offenses a suspect, was convicted on three counts of violation of the narcotic laws. At the time our story begins, around April 1, 1953, Sherman was operating a barber shop in Los Angeles. One Fred Door, a special employee and informant, prior to April 1, 1953, had informed the narcotic agents that Sherman was in the narcotic traffic. On the basis of this background and information the narcotic agents on April 1, 1953, began an investigation that ultimately led to the arrest of Sherman, his indictment, and his conviction on the three counts.

On April 1, 1953, a government agent, Ralph M. Farias, known as Eddie, was introduced to Sherman at his barber shop by a special employee, one Fred Door. Sherman, of course, had no knowledge of Door's employment by the Narcotic Service. At the time of this first meeting Sherman and Door reminisced about old times in New York, and discussed mutual acquaintances there in the narcotic racket. The testimony of the agent Farias was that on this first visit "Sherman at that time stated he was in the narcotic traffic * * * that he was willing to take anyone to New York to establish a connection. * * * That if I was interested he would take us to New York for the purpose of purchasing in kilo lots * * * that is, in possible 16 ounces or 32 ounces of heroin approximately $300 or $400."

With this auspicious beginning Agent Farias, with other confederates and shills, began to occasionally drop around to Sherman's barber shop. Between April, 1953, and July, 1954, the date of Sherman's arrest, from ten to fifteen contacts had been made between the agent Farias and Sherman. During the investigation Farias was called out of town on another job and the Sherman matter languished for a month or so. The threads of the investigation were picked up again on July 9, 1954, and events began to move.

On that date Agent Farias called at Sherman's new shop, at which time Sherman told the Agent that he could get two ounces of virgin heroin for him. Without going into details Sherman, at the Agent's request, gave him a sample to test prior to the purchase of the two ounces.

This sample was the basis of Count One of the indictment, which alleged that "on or about July 9, 1954, Harry Morris Sherman and one Annabella Ellison, after importation, did knowingly and unlawfully receive, conceal, and facilitate the transportation of a certain narcotic drug, namely: approximately 6 grains of heroin * * *"

On July 10, 1954, Farias contacted Sherman, advised him the sample was approved, and that he was ready to pay for and take delivery of the two ounces of heroin bargained for at $600. The money and the heroin then changed hands. This was the basis of the second count of the indictment charging a sale.

The agent then began to dicker with Sherman for a second purchase of from 16 to 32 ounces at from $400 to $600 per ounce. The routine of the first sale was followed. Farias requested and was given a sample, then offered to purchase 16 ounces. This sale "hung fire" because the agent insisted on delivery before he paid over. Sherman demurred. At this point the agents decided to, and did, arrest Sherman and Ellison. The delivery of the second sample was the offense charged in the third count of the indictment.

Sherman's appeal was in propria persona, and no specification of errors appears in the record. In his brief we find the following headings and we take it that these he intended as his specification of errors:

(A) "The defense of entrapment comes in under a plea of not guilty."

(B) "Decoys are not permissible to ensnare the innocent."

(C) "There is no federal statute authorizing consecutive sentences."

(D) "The jury was influenced by the prosecuting attorney."

(E) Trial on counts charging same offense. Double jeopardy.

(F) "Due process denial of counsel time to confer * * * The assistance of counsel means effective assistance."

(G) "Rule 44 Federal Rules of Criminal Procedure 18 U.S.C.A. provides: Right of Defendant to Counsel."

(H) "Enacted: Amendment of Section 174, Title 21. Since 1951 is an unconstitutional error due to the fact double jeopardy is involved its making the Federal law retroactive."

(I) "Mandatory — Enactment of Boggs Law * * * Boggs Act is definitely unconstitutional."

Where we have used Sherman's exact wording same are indicated by quotes, where we assumed his meaning quotes omitted.

Fortunately, during the course of the appeal, Sherman obtained counsel and on October 2, 1956, appellant's supplemental brief was filed, citing the points on appeal as follows:

I. The appellant was illegally sentenced in the above entitled case. The appellant could not be sentenced to more than one period of either five years or ten years under Section 2557(b) (1) of the Internal Revenue Code, 21 U.S.C.A. § 174, 26 U.S.C. § 2557(b) (1), Public Laws 225, 82 Congress, First Session.

II. The court could not split the offense into three offenses, only one offense was committed.

III. The defendant was denied due process of law guaranteed by the Fifth and Sixth Amendments to the Constitution of the United States in that he was denied the effective aid of counsel of his choice.

The government, of course, takes the position that appellant was properly and lawfully tried and sentenced, and that there is no merit in any of the points raised.

Before proceeding to a discussion of the law points involved it may be pointed out that following the argument on appeal, at which time there was considerable discussion of the Boggs Act, the government filed a supplemental brief followed by a second supplemental brief on behalf of appellant.

It is noted that appellant's counsel makes no mention of entrapment in his brief (first supplemental), nor is it included in his three points on appeal.

Appellant devoted considerable of his original brief to the subject of entrapment. He begins: "I was lured by a Federal agent." The question presented here is whether the agents overstepped themselves in their efforts to secure sufficient evidence against Sherman to indict and then convict him. It is common knowledge that in crime detection working under cover is an accepted procedure, and, in some instances almost the only way in which law enforcement officers can proceed. The suppression of the narcotic trade is a familiar field for the use of this sort of investigative procedure. On the matter of entrapment it is said in Newman v. United States, 4 Cir., 299 F. 128, 131:

"It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime. When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor."

Appellant has asserted entrapment as a defense to the charges made against him in the indictment, but the record lends no support to his contentions in this respect. On the first meeting with the agent there was a free discussion on the part of Sherman, and the special employee who accompanied the agent, of mutual friends in the narcotics racket in New York, and on the next day Sherman offered to take the agent to New York to make the proper contacts. The most that can be said is that the stratagem employed here by the government agents was merely to pose as persons interested in buying narcotics. The record is convincing that Sherman needed no special urging to make the sales. The criminal design was at all times in the mind of Sherman, and no persuasion was used other than such as the offers to buy would themselves be persuasive. As said in United States v. Becker, 2 Cir., 62 F.2d 1007, the accused had already formed the design to commit the crime, or similar crimes; he was merely awaiting the opportunity; and his willingness to commit the crimes was evidenced by his willingness to make the sales.

This Circuit, in Trice v. United States, 211 F.2d 513, 516, held:

"The question is: Is it illegal entrapment and the answer to that question is to be found in the testimony of the narcotic agents on whether they had reasonable grounds to believe that Trice was predisposed to engage in the illicit traffic."

The record indicates that Sherman was indicted on charges of narcotic violations in 1947; entered pleas of guilty to two counts; that he had served time; had taken the "cure" at a federal institution; that his former associates were narcotic law violators; that it was reported to the agents prior to initiating the investigation that he was still in the business. Certainly this was more than sufficient to lead the agents to believe that Sherman was "predisposed" to deal in narcotics.

In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, and United States v. Brandenburg, 3...

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