Stein v. United States, 11268.

• Citation: 166 F.2d 851
• Decision Date: 30 March 1948
• Docket Number: No. 11268.,11268.
• Parties: STEIN et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

166 F.2d 851 (1948)

STEIN et al. v. UNITED STATES.

No. 11268.

Circuit Court of Appeals, Ninth Circuit.

February 27, 1948.

Rehearing Denied March 30, 1948.

Morris Lavine, of Los Angeles, Cal., for appellants.

James M. Carter, U. S. Atty., Ernest A. Tolin, Chief Asst. U. S. Atty., and Norman W. Neukom, Asst. U. S. Atty. Chief of Criminal Division, all of Los Angeles, Cal., for appellee.

Before DENMAN, BONE and ORR, Circuit Judges.

ORR, Circuit Judge.

This is an appeal from a conviction for a violation of the provisions of 21 U.S.C.A. § 174¹. The narcotic drug in question is opium.

Appellant, Fred Stein, and one Margaret Brander were residing together as man and wife. A home was purchased with money provided by Fred Stein with title taken in the names of Fred Stein and Mrs. Fred Stein (Margaret Brander).

Margaret Brander observed Fred Stein, on different occasions, extract from a can a substance having a "sweetish" odor. This substance was placed by Fred Stein in water and boiled, then poured into a small bottle and the bottle deposited in a refrigerator. Twice daily Fred Stein consumed a teaspoonful of the liquid from the small bottle. Questioning by Margaret Brander elicited from Fred Stein the admission that he was a user of "dope". She remonstrated with him and finally exacted a promise that he would discontinue its use. Some time later she (Margaret) learned that Fred was continuing the use of the opium. This discovery resulted in a violent disagreement between them and Fred, while Margaret was absent from the house, gathered up most of her clothing, took it with him and went to the home of his mother to reside. Before leaving Fred locked up the house and retained possession of the key.

On or about September 8th Margaret had discovered in the garage adjacent to the house in which she and Fred were residing, eight cans wrapped in newspapers which were in a box and covered with leaves. Shortly after Fred left Margaret took the cans from the garage and buried them in the yard. Upon discovery by Margaret that her clothes were missing, she got in communication with Fred over the telephone and demanded that he return them. Fred informed Margaret that he would leave her clothes with his brother, appellant Bernard Stein, and that she was to meet Bernard and tell him where "the stuff opium is, or show him, and when he gets that, then he will give you your clothes". Later Margaret was informed by Bernard Stein that she would not get her clothes until he could return the "stuff" to the people to whom it belonged. Margaret, after the disagreement with Fred, went to the home of a long time friend to reside. This friend had formerly held the position of a deputy sheriff and of a police officer. Some four days after leaving the Fred Stein house, Margaret contacted federal narcotic agent Koehn and informed him of the opium cache. Agent Koehn visited Margaret at her then residence and listened in on a telephone conversation between Margaret and one John Fisher, a mutual friend of Margaret and the Stein Brothers, Fred and Bernard. This, and other telephone conversations between Margaret and Fisher and Bernard, resulted in the arrangement for a meeting of Margaret and Fisher and Bernard at the home formerly occupied by Margaret and Fred. On the appointed evening Margaret went to the Dixie Canyon home accompanied by agent Koehn and his wife. One Davis, also a federal narcotic agent, went out there also at the request of agent Koehn. Margaret disclosed to agent Davis the three locations at which the eight cans of opium had been cached by her. Agent Davis secreted himself at a point which permitted him to view the locations of the cached opium. Margaret returned to the car occupied by agent Koehn and wife. Later, Bernard Stein and John Fisher appeared on the scene. They were introduced to agent Koehn and wife by Margaret as her friends. Margaret and Bernard went to the locations of the opium cache. Fisher remained at the car conversing with agent Koehn. The opium tins were taken by Bernard Stein from the location disclosed to him by Margaret. As Bernard Stein emerged from the rear portion of the property carrying the tins he dropped them. In response to an inquiry addressed to him by Margaret as to the reason he replied that he declined to carry the tins to his car in front of strange people. Some discussion ensued between Bernard and Fisher. Fisher informed Bernard that if he was afraid to carry them he, Fisher, was not and would do so, whereupon Bernard picked up three tins and Fisher two tins and started toward their car. In the meantime Davis had joined agent Koehn in the latter's car and at this juncture arrested Bernard and Fisher with the tins of opium in their possession.

The day following the arrest of Bernard and Fisher Margaret and agents Koehn and Davis went to the Dixie Canyon home. The house was locked. Margaret had no key and she gained entrance by breaking a window and admitted the federal agents. A search of the house was made. Margaret discovered a small bottle containing yen shee in the cupboard where she kept condiments of different kinds. She surrendered the bottle containing the yen shee to the agents.

The tins of opium and the bottle containing the yen shee were introduced in evidence at the trial.

At the trial of this case appellants relied heavily on the defense of entrapment and upon this appeal reiterate with equal fervor that the facts hereinbefore set out establish that they were entrapped and cite in support of such contention the case of Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249, which holds that where a government agent instigates and induces the commission of a criminal act by a person otherwise innocent of any criminal intent and without previous disposition to commit the criminal act, the defense of entrapment is available. However, as appears here, where the government agents merely employ stratagem for the purpose of apprehending persons already engaged in criminal activities no case of entrapment is made out. See also, Louie Hung v. United States, 9 Cir., 111 F.2d 325. In the instant case the possession of opium and the formation of the intent and purpose to violate the law existed before the government agents became aware of the situation. The arrangements made between the government agents were designed only to apprehend appellants in the furtherance of their criminal enterprise. The arrangement for Bernard Stein and John Fisher to pick up the "stuff" and the inducement therefor originated solely with Margaret, a private citizen.

Answering appellants' second assignment of error that the evidence is insufficient to justify the verdict, we need do no more than point to the factual situation hereinbefore set out.

Appellants assign as error the admission of the testimony of Margaret as to her observation of Fred Stein's use of the black substance to which we have referred in the statement of facts. It is urged such testimony disclosed the commission of a separate and distinct crime but appellants' argument fails to take into consideration the exceptions which permit the introduction of such evidence when its purpose is to show a system,...