Taylor v. United States

• Decision Date: 04 March 1968
• Docket Number: No. 18872.,18872.
• Citation: 390 F.2d 278
• Parties: Calvin J. TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

390 F.2d 278 (1968)

Calvin J. TAYLOR, Appellant, v. UNITED STATES of America, Appellee.

No. 18872.

United States Court of Appeals Eighth Circuit.

March 4, 1968.

William P. Byrne, of Whalen, O'Connor & Byrne, St. Louis, Mo., for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., St. Louis, Mo., on the brief.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

BLACKMUN, Circuit Judge.

Calvin J. Taylor, a Negro and age 42, after a plea of not guilty, was convicted by a jury on all three counts of an indictment which charged him with unlawful sales of heroin on February 2 and 16, 1967, and with unlawful purchase or distribution of the drug on the former date, in violation of 26 U.S.C. §§ 4705(a) and 4704(a), respectively. Taylor twice before had been convicted on federal narcotics charges. Judge Meredith, pursuant to the provisions of 26 U.S.C. § 7237 (a) and (b), imposed a 20-year sentence on each count, the three sentences to run concurrently. Taylor appeals in forma pauperis.

Donald L. Grady and Earl Davis were also charged in other counts of the same indictment with violations of § 4704(a) on February 16 and 20, 1967, and of § 4705(a) on February 20. Taylor made a demand for a separate trial. This motion was granted. Later Grady and Davis each entered a plea of guilty on their § 4704(a) counts; when these pleas were accepted, their § 4705(a) count was dismissed. They received sentences of eight and five years, respectively.

The general fact situation is the usual one. There was a government agent, Carl L. Jackson. There was an informant, Anne Rogers. Jackson was a witness. Rogers was not. Taylor took the stand in his defense. It is conceded that the substances passed were heroin.

There is some conflict in the evidence. The government's case is to the following effect:

The February 2 incident. Jackson, accompanied by the woman informant, met Taylor at the rear of 1120 North Sarah Street in Saint Louis. The informant introduced them. Jackson told Taylor he wanted to get ten capsules of heroin. Taylor replied that he had only nine and that they would cost $36. Jackson gave Taylor $40 in marked currency. Taylor handed Jackson nine capsules and four one dollar bills.

The February 16 incident. Taylor, at Jackson's request, came to him at the Carioca Lounge at 1112½ North Sarah Street. Jackson told Taylor he wanted more heroin. Taylor said he would have to go to a source. The two got into Jackson's automobile, drove to a pool hall where they waited about two hours, and then went on to a certain street corner. Taylor left the car. He came back and they returned to the pool hall. While they waited Jackson gave Taylor $40 in marked currency. They eventually left and drove to another corner. Taylor made a phone call. They went on to a new address. Taylor entered the premises. He came out and asked Jackson to go in with him. Inside they met Grady. Grady made some calls, went out, and a half hour later returned with several heroin capsules. Taylor gave Grady money and Grady handed Taylor some of the capsules. Taylor passed seven of these and four dollars to Jackson.

Taylor was the sole witness for the defense. He testified: He has been addicted to narcotics about twenty years. He had not known Jackson before February 2 but had known Anne Rogers. He had purchased narcotics from her in the past. On February 2 Rogers introduced Jackson to him as her new boy friend and told Taylor she wanted narcotics for Jackson. She gave him $40 and he got ten capsules of heroin for her. He never sold or distributed any to Jackson. It took about a minute for him to get the ten capsules. On February 16 he was told that someone wanted to see him at the Carioca. He went there and found Jackson who told him "he had it bad" and asked "could I get anything and I say I believe I could". They drove around Saint Louis. Jackson gave him forty dollars. They finally went to Grady's house. Grady left the house and came back with nine capsules. Grady gave these to Jackson. Jackson kept five, and gave two to Taylor and two to Grady. They went to Grady's house because Grady himself is an addict. When they arrived there Taylor was beginning to be ill from narcotics. He would never have consented to this transaction if he did not need a fix himself.

The defense asserts error (1) in the prosecutor's opening statement; (2) in failing to direct an acquittal; (3) in failing to instruct on entrapment; and (4) in the inclusion in the instructions of a reference to the defendant's interest in the outcome of the case.

1. The opening statement.

The Assistant United States Attorney opened the trial with the statement:

"At this point in the proceedings it is my privilege to make an opening statement on behalf of the Government in which I will outline to you the evidence the Government will bring before you. After I have concluded by opening statement, it will be the privilege of defense counsel, Mr. Byrne, to give you the opening statement on behalf of the defendant."

The defense objected on the ground that "I have the right to reserve my opening statement until such time as I see fit. I do not have to immediately follow his". The court observed that this was correct.¹ The prosecution proceeded:

"Before I was interrupted I was going to explain that to you, that counsel for the defendant has the privilege, the prerogative, of waiting until the Government has concluded its case, then at that time give you the opening statement on behalf of defendant, in which he will outline the theory of the defense and the evidence that defense will bring before you."

The following was then interposed outside the hearing of the jury:

"I am objecting to the statement just made by Mr. Martin as to evidence I am going to present, for the reason it is highly prejudicial to my client. We are not required to present evidence and the United States Attorney is giving the impression we are required to present evidence. It is a comment on the failure of the accused to testify and I feel it is highly prejudicial and I am moving for a mistrial at this time."

This was overruled and the trial proceeded.

It is claimed that the court's action in overruling the objection and in denying the motion for a mistrial was grave error because the prosecutor's statement was "a comment on the accused's privilege against self-incrimination and leads the jury to believe that defendant must present evidence or take the stand". The Fifth Amendment and 18 U.S.C. § 3481² are suggested, but the defense candidly acknowledges that it has found no authority on the point. It asserts that, by the comment, the defendant was forced to be a witness. On the other hand, at oral argument the defense acknowledged that Taylor wonld have taken the stand anyway.

The point strikes us as almost frivolous and as an attempt to balloon an innocent statement out of all proportion to its content and intent. Of course, comment about a defendant's failure to take the stand is not permissible in a federal trial. Stewart v. United States, 366 U.S. 1, 2, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961); Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893). There is and can be no argument as to this. The question here is as to what constitutes compulsory self-incrimination or as to what creates an adverse presumption violative of § 3481.

The Assistant United States Attorney's utterance, however, impresses us as no more than an innocuous, casual and polite opening remark made to get the trial under way and, perhaps, to place his own thoughts in order, and to give the jury general enlightment as to procedure. Perhaps it was more gracious than it was necessary. Perhaps it would have been better left unsaid. The remark, however, falls far short, in our view, of constitutional and statutory offensiveness. We perceive no prejudice. Certainly, if the remark could possibly be regarded as error, it was harmless and, under Criminal Rule 52(a), is to be disregarded. See Lake v. United States, 302 F.2d 452, 455 (8 Cir. 1962).

2 and 3. The failure to direct an acquittal and to instruct on entrapment. These points are interdependent and we consider them together.

The defense urges that the evidence clearly shows that any scheme to violate the law originated in the minds of Jackson and Rogers and not in Taylor's mind; that there was nothing to show that the government, before the meeting between Jackson, Taylor and Rogers on February 2, had reason to believe Taylor was violating or intending to violate the narcotics laws; that Jackson and Rogers approached Taylor; that he did not approach them; that they suggested the scheme; that what Jackson and Rogers did was lure an addict into a violation; that Taylor was given heroin by Jackson; and that all this constitutes entrapment and merits an acquittal as a matter of law. The argument, of course, seeks to bring the case down on the favorable side of the guidelines enunciated by Mr. Chief Justice Hughes in Sorrells v. United States, 287 U.S. 435, 441-442, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

It is further argued that error was committed when the court failed to charge the jury on entrapment. The defense acknowledges that it made no request for an entrapment instruction³ but it asks that we invoke the plain error provision of Criminal Rule 52(b), and it urges that, in any event, the court should have given the instruction on its own motion.

This court on several occasions recently has discussed entrapment and its availability as a defense. Cross v. United States, 347 F.2d 327 (8 Cir. 1965); Rogers v. United States, 367 F.2d 998, 1001-1003 (8 Cir. 1966), cert. denied 386 U.S. 943, 87 S.Ct. 976, 17 L.Ed.2d 874; Rowell v. United States, 368 F.2d 957, 959-961 (8 Cir. 1966), cert. denied 386 U.S. 1009, 87 S.Ct. 1353, 18 L.Ed.2d 438; Rush v. United States, 370 F.2d 520, 522-523 (8 Cir. 1967), cert. denied 387 U.S. 943, 87 S.Ct. 2073...