U.S. v. Wade
| Decision Date | 27 August 1974 |
| Docket Number | No. 74-1199,74-1199 |
| Citation | 502 F.2d 144 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank WADE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jerry Weiner, Columbus, Ohio, for defendant-appellant; Weiner, Lippe & Cromley, Columbus, Ohio, on briefs.
Curtis Griffith, Jr., Asst. U.S. Atty., Columbus, Ohio, for plaintiff-appellee; William W. Milligan, U.S. Atty., Columbus, Ohio, on briefs.
Before WEICK, EDWARDS and McCREE, Circuit Judges.
Appellant Wade was charged in Count I of an indictment with unlawfully possessing with intent to distribute approximately .8 grams of heroin (a Schedule I controlled substance), and in Count II with unlawfully possessing with intent to distribute 3.9 grams of concaine (a Schedule II controlled substance), all in violation of Title 21 United States Code, Section 841(a)(1).
In his trial by jury Wade was convicted only of the lesser included offense of possession on each count. He was sentenced to one year's imprisonment on each count, to be served consecutively.
Wade contends that the District Court erred in denying his motion to suppress evidence procured in a search authorized by warrant issued by a United States Magistrate. The affidavit for the search warrant was sworn to by a special Agent employed by the United States Department of Justice Bureau of Narcotics and Dangerous Drugs, and was based not only on information supplied by an informer who had been proven reliable, but also on surveillance of a house by a police officer, which house was not the residence of Wade. On the basis of all of this information the Special Agent swore as to his belief that controlled substances, namely, heroin were currently being concealed on the premises.
Pursuant to the authority of the search warrant, the officers entered the house and observed Wade 'getting up off the couch' in the living room, and Wade 'stuck something down into the end of the couch where he was sitting.' A tin foil packet containing heroin powder, a one dollar bill and a five dollar bill each folded and containing powdered cocaine, and Wade's car keys were recovered from the end of the couch.
In our opinion the affidavit sufficiently afforded probable cause for the search, and the Magistrate was fully authorized to issue the search warrant. The District Court properly denied the motion to suppress.
Wade's counsel next claims that he was misled by the Court on the basis of incorrect information furnished to him by the Judge's law clerk, on which information he relied, and which information was to the effect that the Judge was not going to instruct the jury on the lesser included offense of possession; in other words, that the Judge would charge the jury only on possession with intent to distribute. Counsel claims that had he known the District Judge would charge the jury on the lesser offense, the defendant would not have waived his privilege and would not have taken the witness stand and admit that from time to time, although he was not addicted, he did snuff both heroin and cocaine.
At the close of the Government's evidence in chief, counsel for Wade moved for judgment of acquittal, which motion was denied by the Court.
Counsel then moved the Court 'that the question of possession with intent to distribute be eliminated, and that a sole question for the jury to consider would be the question of possession.' The Court stated that his previous ruling included the motion which counsel had just made, and overruled it.
Counsel then asked the Court to reconsider the question whether or not the jury should consider three verdicts, indicating that he did not know whether possession was an included offense. The Court then stated:
The Court: I think you should do that by way of a special request for instructions rather than by motion. At this time the only matter before the Court at this time is whether or not we shall go on with the evidence in this case, and under my denial of your motion for a judgment of acquittal we go on.
That doesn't mean that you have to put on any evidence. You can simply rest, and that is in the presence of the jury, if you tell this Court you rest, you see, then you can renew your motion for a judgment of acquittal for the record and then if I deny that again, the jury gets the case and at that point you can ask this Court to instruct on possession alone or possession with intent to distribute. (Tr. at 139-140)
Counsel then asked for an early adjournment to consider Court was then adjourned until the following morning.
When the trial resumed three character witnesses testified for the defendant. Wade then testified as the last witness he testified as to his educational background; that he attended the Columbus School System and graduated from Bowling Green State University in August, 1959; that he majored in Education. He testified that after graducation he worked as an athletic director for the Columbus Recreation Department; that he was Program Director at Franklin Village for two years; that he went to Model Cities as Education Coordinator until the funds ran out; and that he then went to work for Mr. Bootery, where he is now employed as Assistant Manager.
Wade testified further that he uses narcotics; that he 'snorts' cocaine, and occasionally heroin; he defined 'snorting' as putting the powdered narcotics up to his nostrils and sniffing them. He could have used the word 'snuff'. He identified the folded one dollar and five dollars bills as containing powdered cocaine, and the tin foil packet as containing heroin, and testified as to the quantity; and testified that the narcotics were placed in the one dollar and five dollar bills for the reason of 'snorting'.
Wade further testified:
Q. Would you explain why you say that that was probably put in there for the reason of snorting?
A. Well, this is what you usually find, you know, stuff in, is dollar bills that you are passing around.
Q. When you say passing around, would you explain what you mean by passing it around?
A. Well, in other words, if I was blowing and another person--
Q. When you say blowing, I am going to stop you right there. What do you mean?
A. Snorting.
Q. Would you explain what you mean by blowing?
A. Well, snorting it, in other words.
Q. Snorting it?
A. Right.
Q. Continue your answer from your definition of what you meant by blowing.
A. I am saying the bill would probably be passed from one person to another, that's all, and like when I got through with it I would just give it to the next person; that's all, just no more than just a way to put it, to use it to snort off of.
Q. Is that a common way of doing that?
A. Yes. (Tr. at 162-163)
At the close of all the evidence the Court called counsel for the parties into a conference, stating:
The Court: The record may further show that the Court has conferred with counsel for the parties at a prior time during the course of this trial and in respect of either the necessity or the appropriateness of the Court giving instructions on lesser included offenses.
The record may show further that counsel for the Government has asked the Court to give instructions on the lesser included offense of unlawful possession of heroin and cocaine, whereas counsel for the Defendant has advised the Court that it will object to the Court's giving a charge on lesser included offenses. (Tr. at 183-184)
The Court also advised counsel that he would submit to the jury eight forms of verdict, four for each count, which would cover guilty or not guilty of possession with intent to distribute, and the lesser included offense on each count. The judge also went over with counsel the instructions which he proposed to give to the jury.
It was at this point that defense counsel moved for a mistrial, stating that on the prior day when the Government had closed its case in chief and the Court had recessed until the following day, he received a call from the Judge's law clerk. 1
Although counsel for appellant, when he initially moved for judgment of acquittal, professed ignorance as to whether possession was an included lesser offense, the law is settled so that there is no question about it. Simple possession of a controlled substance is made an...
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...of unlawful possession, 21 U.S.C. 844(a), and possession with intent to distribute, 21 U.S.C. 841(a)(1). This circuit in United States v. Wade, 502 F.2d 144, has recently held that unlawful possession of a controlled substance under Section 844(a) is a lesser offense included within a charg......
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...Possession of a controlled substance is a lesser included offense within possession with intent to distribute. United States v. Wade, 502 F.2d 144 (6th Cir.1974). While a charge of possession with intent to distribute based on a single act must merge into a distribution charge for sentencin......
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