Shurman v. United States

• Decision Date: 08 May 1956
• Docket Number: No. 15647.,15647.
• Citation: 233 F.2d 272
• Parties: Nathan SHURMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

233 F.2d 272 (1956)

Nathan SHURMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 15647.

United States Court of Appeals Fifth Circuit.

May 8, 1956.

Frank W. Oliver, Chicago, Ill., for appellant.

William O. Braecklein, William N. Hamilton, Asst. U. S. Attys., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

Appellant, Nathan Shurman, was tried before a jury on an indictment charging him with making four transfers of marihuana (July 7, 11, 13 and 14, 1953) to William Finley, an agent of the Federal Bureau of Narcotics, not in pursuance of a written order issued in blank for that purpose by the Secretary of the Treasury, in violation of 26 U.S.C.A. § 2591(a). During the trial the first count, covering the transfer of July 7th, was dismissed, and appellant was convicted upon jury verdict on the remaining three counts and sentenced to two years imprisonment on each, sentences to run consecutively. The points chiefly relied upon by appellant are that the court below erroneously modified appellant's requested instruction on the defense of entrapment, that the court erred in refusing appellant's requested instruction on the definition of marihuana as set forth in 26 U.S.C.A. § 3238(b), and that the court below committed error in failing to instruct the jury concerning inferences which might be drawn from the failure of the Government to produce its informer or special employee as a witness.

Through John Harper Cobble, alias Buddy Harper, special employee of the Bureau of Narcotics, Agent Finley made contact with and purchased quantities of marihuana from appellant on four occasions. Cobble was present at three of these transactions. Agent Finley and appellant were the only witnesses who testified concerning these transactions and the substance and tenor of their testimony was, almost without exception, in sharp conflict.

Finley said that, at each transfer the appellant stated to him that the substance was marihuana. On the occasions of the first and second transfers, which took place on the street in front of Finley's apartment, Shurman said that he was planning a trip to Corpus Christi for an additional supply of marihuana and that, after this trip, he could provide any amount of the drug Finley might desire. The third and fourth transfers took place in Shurman's apartment in a downtown Dallas hotel. At the third transaction Shurman said he had just returned from Corpus Christi, and he showed Finley a sack of substance which he said was marihuana obtained by him there. Also, at this time appellant removed the marihuana purchased by Finley from a tin can and put it into a sack, explaining that he needed the can for future sales.

Shurman testified, on the other hand, to a very different state of facts. According to him, he was a musician, out of work and in financial straits. He had worked in Corpus Christi before coming to Dallas in 1953 to look for work. Soon after arriving in Dallas he was contacted by Cobble, who was also a musician and with whom Shurman had previously been acquainted. Cobble proposed that Shurman could make some money, which he knew Shurman needed badly in order to bring his pregnant wife from Corpus Christi to Dallas and to meet pressing obligations. In the beginning Cobble would not disclose the method of making this money, except that he stated that it would be "slightly illegal." The proposed transaction was so characterized on more than one occasion in the early talks. Shurman at first refused, but, under pressure of his immediate needs, he finally consented to use his automobile and make a delivery for Cobble. Appellant stated that it was not until after the first delivery that he was told that the package he delivered contained marihuana. It was the count covering this transaction which was dismissed.

According to appellant, the second transfer was made by him after further persuasion on the part of Cobble and again because of his financial stress. Finally, appellant stated that the transfers which took place in his hotel room were of packages left by Cobble for delivery when called for by Finley. He claimed that, on all occasions, the marihuana transferred belonged to Cobble and that his activities were the product of overtures and promises of quick money by Cobble.

On August 7, 1953, appellant was arrested and taken to the Detective Division of the Dallas Police Department. Agent Finley and a Dallas detective testified that, at this time, Shurman voluntarily admitted that he had made the alleged sales and that the marihuana had belonged to him, but he refused to sign a statement to this effect.

Appellant argues, first, that the court below committed reversible error in modifying an instruction on entrapment given by the court at the behest of appellant. Since we are not in agreement on that claimed error, we pretermit its consideration, and consider first those matters on which we do agree.

The second error relied on was based upon the refusal of the court below to instruct the jury on the definition of marihuana as contained in the statute.¹ Appellant cites that case as authority for the proposition that it was reversible error not to give the instruction in this case. We do not think so. The portion of the opinion relied upon must be read in connection with the facts then before us and, even there, we did not hold that failure to give the instruction was reversible error.² The placing of the statutory definition before the jury trying the issues of this case would have served no useful purpose. According to Finley's testimony, which the jury obviously accepted, he bargained for and received four separate purchases of marihuana; appellant stated that he was delivering marihuana and he admitted later to a state officer that the marihuana which he had delivered was his own.

These deliveries were exhibited in evidence and were submitted to a government chemist who testified categorically that each of them was marihuana. The statutory prohibition which appellant was convicted of violating made it unlawful for any person to transfer "any marihuana" without observing legal tax requirements. Appellant offered no evidence tending to dispute that the substance delivered was marihuana. The only possible relevance of the definition contained in the statute arose from the fact that appellant's attorney conducted an extended cross-examination of the government chemist, employing in a skillful and adroit manner, a multiplicity of chemical terms, in an obvious effort to drive the witness from his statement that the substance was marihuana and to an admission that the substance belonged in the category of those portions of the stalks, oil or cake made from the seeds, etc., declared by the statute as not included within the definition of marihuana. But appellant did not succeed in his effort. He merely asked questions which hinted at the exclusions, but he did not obtain any answers raising a suspicion that the substance belonged in the categories excluded from the Act rather than those embraced in the Act. It was not error, therefore, to refuse to bring this cumbersome and confusing definition before the jury because there was no issue to be decided by the jury on which it could have bearing.

Another error argued by appellant is based upon the contention that, after he invoked, through his testimony, the defense of entrapment, the Government failed to carry the burden placed upon it to show a predisposition on the part of appellant to commit the offense charged, unbeguiled by improper actions of the government employees. In this connection, appellant argued that the Government should have produced Cobble as a witness after requested by him to do so; and, when it failed to produce him, the jury should have been instructed that they might infer that the witness' testimony would have been unfavorable to the Government.

Immediately before the trial, appellant moved the court to require the Government to produce Cobble as its witness on the ground that he was on probation under a sentence imposed upon him by the District Court for the Northern District of Texas in 1954. The Government attorney stated that an attempt would be made to locate and produce Cobble. At the close of the case for the prosecution, the Government introduced Eli Nollette, Federal Probation Officer, who testified that Cobble was under his supervision, and that he had attempted without success to locate him immediately upon appellant's request. He showed that he made inquiry at Cobble's place of employment and at his residence and could get no line on him or his whereabouts. He further testified that Cobble had freedom of movement limited only by the requirement that he must file a written report each month, in addition to which the witness himself tried to talk with Cobble personally about once a month. His testimony disclosed without dispute that the Government had no hold upon Cobble which enabled it to locate him and bring him to court upon such short notice.

The facts here do not bring the situation within the ambit of the authorities justifying the drawing of an unfavorable inference from failure to produce.³ Cobble was equally available to both parties. Appellant had made no effort to locate him or procure his attendance as a witness and cannot put the Government in an unfavorable light by his eleventh-hour motion.⁴

The situation presented was quite similar to that before the court in United States v. LaRocca, supra, a narcotics case in which the government informer or special employee, who had functioned much as Cobble here and had been present throughout the illicit transaction charged, was in jail at the time of the trial. It was held that no unfavorable inference against the Government could be drawn from its failure to call the witness, because he was equally available to either side. The same...