United States v. Contrades, Cr. No. 11556.

• Decision Date: 20 July 1961
• Docket Number: Cr. No. 11556.
• Parties: UNITED STATES of America, Plaintiff, v. John David CONTRADES, Defendant.
• Court: U.S. District Court — District of Hawaii

196 F. Supp. 803

UNITED STATES of America, Plaintiff, v. John David CONTRADES, Defendant.

Cr. No. 11556.

United States District Court D. Hawaii.

July 20, 1961.

Louis B. Blissard, U. S. Atty., Honolulu, Hawaii, for plaintiff.

E. E. Wiles, Honolulu, Hawaii, for defendant.

TAVARES, Chief Judge.

In this case, the defendant, John David Contrades, was indicted under 18 U.S. Code, Sec. 1403, the charge reading as follows:

"That on or about January 14, 1961, * * * John David Contrades did use a communication facility, to-wit, a telephone, in committing and in causing and facilitating the commission of, and in attempting to commit, an act and acts constituting an offense and offenses, the penalty for which is provided in subsection (c) of Section 2 of the Narcotic Drugs Import and Export Act, as amended (Sec. 174, Title 21, United States Code), to-wit, the sale and facilitation of the sale of heroin, a narcotic drug, which had been fraudulently and knowingly imported and brought into the United States contrary to law, knowing the same to have been imported and brought into the United States contrary to law, in violation of Section 1403 of Title 18, United States Code."

The case was tried before a jury.

The evidence in substance was as follows: City and County of Honolulu policeman Keala on the Vice Squad testified to a "stakeout" of ground-floor apartment G (held in the name of Harold Takashima) at a Kaioo Street address, during a period from about January 11 to January 17, 1961, during which various members of the City Police Department, in cooperation with Federal officers, observed, from outside Apartment G and from a second story apartment above Apartment G, what was "going on" therein, after having received a tip from an undisclosed source that narcotics might be being dispensed from or at that address.

The officer Keala testified that the stakeout or surveillance was not on a continuous twenty-four hour basis during the seven or eight-day period of surveillance, but that on every day, except one (and that one after January 14) for a period of several hours, sometimes six to seven hours a day, one or more of the stakeout team observed the goings-on in Apartment G, insofar as they could see from the outside, through open doors or windows, and by listening, that the defendant Contrades and one Tengan were in this apartment "most of the times" from March 11 to 14, and other individuals also were there during this period; that on January 14, at about 8:30 p. m., (at which time both Tengan and Contrades were in the apartment) through a kitchen window equipped with jalousies (which were apparently partly open but not open enough to see through), Officer Keala, who was listening behind a hedge outside of the premises, heard the sound of a telephone being dialed, and then a "booming low voice" (which he recognized as that of Contrades through having seen and heard him talking in and out of the apartment), saying:

"Willie, you want eight caps?" (Then a pause, followed by the words:) "Tomorrow morning? No, tonight at 9:30."

Qualifying as an expert on underworld terminology of users, buyers and sellers of narcotics, Keala testified that, in the jargon of that group, the word "caps" has a very definite and special meaning, to-wit heroin. This was corroborated by Federal Bureau of Narcotics Agent Grady.

Keala also testified that, at 9:30 that night, a Willie Bright called at the apartment; that this Willie was "supposed to be taking heroin"; that Tengan was outside the apartment when Willie arrived, and welcomed and brought him into the apartment; that Bright left later, but was not talked to, searched or arrested. Neither Contrades nor Tengan is shown by the testimony to have been at the apartment after January 14.

Another City police officer, Straus, and Federal agent Grady, testified that on January 17, 1961, armed with a Federal search warrant, they searched Apartment G, at which time two other persons, Mr. Takashima (the owner or lessee of the apartment) and another were present, and eight capsules of heroin were found concealed in a bedpost of the bed in the bedroom of the same apartment.

These capsules were analyzed and found to be heroin by City police chemist Tom, who also testified. The capsules of heroin so found on January 17th, were admitted in evidence.

Practically all of the foregoing evidence was objected to by defendant, who also moved for a mistrial and for judgment of acquittal at the close of the government's case.

The motion for mistrial being denied and decision on the motion for judgment of acquittal being reserved by the Court under Rule 29(b) F.R.Crim.P., 18 U.S.C.A., the defendant testified in his defense, substantially as follows:

His residence (which was not near to or at Apartment G); his employment— that he was a cement mason by trade, having last worked at that trade about four months ago, then worked as an organizer for the cement masons' union, but was unemployed in January, 1961, and was collecting unemployment compensation; that, after his arrest, he was evicted from his Lunalilo Home Road address for inability to pay rent; that he did not remember whether on January 14th he was in the Takashima apartment at Kaioo Road, but that he had visited at that apartment more than once, but not as many as ten times, in January of this year, but did not remember the dates; that he had known Takashima for twenty-five years, both of them having lived as boys in Kapaa, Kauai, and having been together in "CC Camp"; that because they were old friends, he would go down and talk to Takashima and look at TV programs there; that he had never telephoned anybody from there except his wife; that he absolutely denied making any telephone call there to a Willie or saying any of the words attributed to him by the government witness; that prior to January 17th when the place had been searched and heroin found there, he had had no knowledge of any heroin kept there; that he had never tried to sell or facilitate the sale of heroin by telephone or otherwise; and that, on the occasions when he did visit Takashima in January, he would stay not longer than one to one and a half hours on any one day.

The foregoing is a fair statement of the entire evidence.

The government contended, in substance, as follows:

(1) That 18 U.S.C.A. § 1403, dispenses entirely with the necessity of proving possession of any heroin in connection with a telephone conversation attempting to secure a sale of the same—and that all the prosecution has to do is to prove that the defendant telephone conversationalist used words indicating an attempt and intention to sell or facilitate the sale of heroin, and the offense is complete. This contention of law is discussed in detail later in this decision.

(2) The government further contends, on the factual side, that, taking into consideration all the surrounding circumstances, namely the facts: (a) that the police got "information" or a "tip" as to alleged traffic in heroin at the address in question; (b) that, as a result of this information of undisclosed source, the police (using that term to include both Federal and City and County agents) conducted a "continuous" stakeout from about January 10 or 11 to January 17, 1961; (c) that Contrades and one Tengan (also under indictment for a similar offense) were in the Takashima apartment during some of the daily observation periods during the term of the stakeout for some three days before, and on, January 14th when the alleged telephone conversation occurred; (d) that apparently on January 14, Contrades and Tengan were alone in the apartment until Willie Bright appeared there; (e) that Contrades was heard to dial and speak over the telephone (though not actually seen by the officer stationed outside the window) the words,

"Willie, you want eight caps?" (Pause) "Tomorrow morning? No, tonight at 9:30.";

(f) that a "Willie", whose last name is "Bright" and who was "supposed" to be a user of heroin, did call at the apartment at the time appointed in the telephone conversation—9:30 p. m., and was welcomed and taken by Tengan into the apartment; (g) that three days later, on January 17, the end of the so-called single or "continuous" stakeout period for this one apartment, as a result of this "tip", eight capsules of heroin were actually discovered hidden in a bedpost in the apartment, with Takashima and another present:—there is sufficient evidence of guilt to be submitted to the jury, and that from this evidence, in connection with the surrounding circumstances, the jury could infer that there had been a continuous operation from January 10 to 17, during which heroin was stocked or held in possession in the apartment, this inference to be aided by an interpretation of the word "caps" to mean heroin, and by the further inference that Contrades then had in his possession, actually or constructively, heroin to be sold when he asked if Willie wanted eight caps (heroin).

I take up the government's second contention first, in the order of the alleged facts and contentions above stated.

At its very best, and stretching every possible inference or implication to the extreme against defendant, this evidence is insufficient to convict, even if the government's contentions as to the applicable law be assumed to be correct. Bearing in mind that the evidence must prove, beyond a reasonable doubt, that the defendant attempted by the telephone conversation to sell or facilitate the sale of heroin, let us examine the same.

(a) The fact that the police got a "tip" or "information" as to alleged narcotics activity at a given address is not evidence on the merits as to the defendant's guilt or innocence. Its only relevance could be on the question of probable cause to justify an arrest and/or a search and seizure, a question not involved in this case, since the defendant made no claim of any alleged illegal search and seizure. It has no significance...