Trice v. United States, 13732.

• Decision Date: 11 June 1954
• Docket Number: No. 13732.,13732.
• Citation: 211 F.2d 513
• Parties: TRICE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F.2d 513 (1954)

TRICE v. UNITED STATES.

No. 13732.

United States Court of Appeals, Ninth Circuit.

March 2, 1954.

Rehearing Denied June 11, 1954.

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

Laughlin E. Waters, U. S. Atty., Ray H. Kinnison, Asst. U. S. Atty., Chief Criminal Division, Mark P. Robinson, Asst. U. S. Atty., Los Angeles, Cal., and Edward J. Skelly, Jr., Asst. U. S. Atty., North Hollywood, Cal., for appellee.

Before STEPHENS, ORR and POPE, Circuit Judges.

STEPHENS, Circuit Judge.

Alfred F. Trice was charged in an indictment with four violations of the narcotic laws. He pleaded not guilty to each and after trial by jury he was found guilty as to each count. Trice was charged in Count One with selling and distributing on or about June 4, 1952, a certain narcotic drug (approximately forty grains of heroin) named in Title 26 U.S.C.A. § 2550(a) and being in violation of Title 26 U.S.C.A. § 2553(a). Trice was charged in Count Two with knowingly and unlawfully receiving, concealing, and facilitating transportation on or about June 4, 1952, of the drug the subject matter of Count One, Title 21 U.S.C.A. § 174. In Count Three Trice was charged with selling and distributing on or about June 17, 1952, ninety-eight grains of heroin. Trice was charged in Count Four with transporting on or about June 17, 1952, the subject matter of Count Three.

The court pronounced sentence of imprisonment for five years and a fine of $2,000 on each of Counts One, Two, and Three, "and that the defendant be further imprisoned until said fines aggregating $6,000 be paid or he is otherwise discharged as provided by law." The periods of imprisonment as to Counts One, Two, and Three are to commence and run concurrently. On Count Four the court sentenced Trice to five years' imprisonment and a fine of $2,000, but provided that imposition of sentence is suspended and probation is granted for a period of five years commencing upon defendant's release from custody following "execution" of the sentences imposed under Counts One, Two, and Three, and during the probation period he shall pay a fine of $2,000.

Trice has appealed from the judgment, claiming the right of a reversal thereof upon four specifications of error.

It is not claimed that appellant did not receive, distribute, sell, conceal, and facilitate the transportation of the narcotics as alleged in the indictment, but he claims that he was entrapped; that hearsay evidence was received in regard to a Federal Bureau of Narcotics file; that the information in the Federal Bureau of Narcotics file was too remote; that appellant was denied a fair trial guaranteed by the Fifth Amendment of the United States Constitution.

Appellant, a Los Angeles resident for forty-seven years, operated a liquor store in that city. He was quite well acquainted with a J. T. Gipson, a drug addict, who also was suffering from tuberculosis. Gipson or "J. T.", as he was commonly called, was rather widely suspected as a person having something to do with trade in narcotics. About the time the events of this case began to happen, J. T. was hospitalized. On May 29, 1952, a government narcotic agent named Malcolm P. Richards, who represented himself as being "Dick Williams", called upon Trice at the latter's store and engaged him in talk about an article in a newspaper. "Williams" represented himself as being a friend of J. T.'s. On June 3, 1952, Agent Richards called at the store and handed Trice a note which J. T. had sent to Trice from Olive View Tuberculosis Sanitarium. Trice asked how Gipson (J. T.) was, to which "Williams" replied, "Fine". "Williams" told Trice that he had "$40.00 to spend for some stuff". The money was paid over and "Williams" returned the next day and the "stuff", which was forty grains of heroin, was delivered to him by Trice who requested "Williams" to say "Hello" to Gipson. The delivery of the heroin upon this occasion is the basis for the charge in Count One of the indictment as to the sale, etc. of narcotics, and as to the charge in the Count Two as to its transportation, etc.

"Williams" (Agent Richards) testified that he had not read the note but he understood it said that the bearer was a friend named Dick Williams who had some money to spend for narcotics. Gipson at the time was an employed stool pigeon working with "Williams", and he had told "Williams" that he had been in prison. "Williams'" approach to Trice through the note was by representation that he and Gipson had been friends in New York and that he, "Williams", was going to go into the haberdashery business, all of which was untrue. There is much testimony from Trice that "Williams" painted Gipson as suffering great pain and that no one was helping him, and that the doctor in the sanitarium would not give him narcotics. This "Williams" denies, but he admits that Gipson was in pain and that he told Trice Gipson was sick and up at the sanitarium, and later that he, "Williams", was instrumental in getting Gipson released from the sanitarium. There was some visitation by and between Williams, Gipson, Trice, and others between June 3 and June 16, 1952. During this time Gipson was sick and Trice testified that he begged for narcotics. "Williams" testified that on June 16, 1952, he went to the liquor store and said to Trice that he had about $250 "to spend for some stuff" and Trice said he couldn't do anything about it but for about $325 "he might be able to give me ("Williams") a good bargain". "Williams" called the next day and after going about to a drug store, Trice delivered another package containing ninety-eight grains of heroin, to "Williams". "Williams" testified that he never delivered any narcotics to Gipson. The sale of the ninety-eight grains of heroin on June 17, 1952, is the basis of Count Three of the indictment, and its transportation is the basis of Count Four.

Gipson died shortly after the 17th of June, 1952.

Entrapment.

In the first place, the people's fight through the government against the use of narcotics is a desperate and continuous one. So great is the menace that the hiring of disreputable persons to act with the narcotic agents in deceit and by despicable methods to catch distributors of the "stuff" has been sanctioned by the highest courts as the only successful manner to combat the evil. The picture from its best side (the government's) is a sorry one.

Here we have a government agent using a consumptive narcotic ex-convict of ill repute to double-cross a friend. Here is entrapment in fact, at least as to the first and second counts. 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.

Mr. George R. Davis, an agent of the Bureau of Narcotics with offices in Los Angeles, California, was called by government counsel in rebuttal as a witness to show that the officers had reasonable ground for doing what they did. At or near the outset of the trial the government counsel, outside the jury's presence, had informed the court that he would make such a showing. Government Counsel Robinson stated:

"* * * The defense that has been raised is entrapment, and I think the cases are clear that the Government has the right where the defense of entrapment is raised to bring out through competent evidence the information, even hearsay, that they have concerning the defendant in order that they dispel any possible doubt as to whether they merely went out and tried to capture an innocent person."

After some unimportant colloquy, the court stated:

"As I understand it, under the issue as to entrapment, the defendant presents that issue and you may show not only information which the Government officials had which led them to believe that he was supposed to have committed the offense, but you may also show anything you have about his past record or his past doings or his past propensities which would tend to meet the issue whether or not he was a man predisposed to violation of law.

"Mr. Robinson: That is correct, your Honor. That is our understanding. * * *

"The Court: Do you have any different view from that, Mr. Broady?

"Mr. Broady Defense Counsel: No, your Honor, no different view from that."

When Agent Davis was recalled as a witness by the government in rebuttal, he testified that the Bureau of Narcotics keeps records, and that in the records is a file of Alfred F. Trice. The first date in the file concerning narcotics is April 10, 1943. Davis received information as to the first entry from one John F. Baber, an ex-convict. Defense counsel inquired whether the information from Mr. Davis was to go to prove the truthfulness of the information. Government counsel replied in the negative, that he wanted the information to go to the jury on the question of whether the officers had acted upon reasonable grounds. Defense counsel stated:

"If it is not offered to the truthfulness, your Honor, there is no objection."

Agent Davis further testified as follows:

"In 1942, when I first arrived in Los Angeles from transfer from the East, I said I had heard of Al Trice at that time as supplying opium, smoking opium, to various persons in the Los Angeles and the San Francisco area. I do not recall at the time who told me that, whether it was another agent or an informer.

I believe, however, that was one of the agents who was then stationed in this office.

"I next heard of Al Trice in 1943 or 1944, upon my return to Los Angeles from Phoenix, Arizona. At that time Trice was under investigation by our office by, I believe, Agents Marcy and Carpenter. I did not know how extensive the investigation was, because I heard them talk about it. I saw the reports in the file. There was indication that he was associated with an employee of the Matson Line who was bringing in opium to Los Angeles; that Al Trice in turn carried it

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