United States v. Davis

• Decision Date: 29 January 1959
• Docket Number: No. 12236,12405.,12236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

262 F.2d 871 (1959)

UNITED STATES of America, Plaintiff-Appellee, v. Louis DAVIS, Defendant-Appellant.

Nos. 12236, 12405.

United States Court of Appeals Seventh Circuit.

January 29, 1959.

COPYRIGHT MATERIAL OMITTED

Paul Homer, Chicago, Ill., Louis Davis, Rockford, Ill., Howard R. Koven, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Charles R. Purcell, Jr., and John Peter Lulinski, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.

Before FINNEGAN,¹ SCHNACKENBERG and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

Louis Davis, appellant, was tried under a four count indictment. Counts I and III charged that on or about January 23, 1957, and February 1, 1957, respectively, he unlawfully sold narcotics in violation of Section 4705(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 4705 (a), as amended by the Narcotic Control Act of 1956. Counts II and IV charged violations of Title 21 U.S.C.A. § 174, as amended by the Narcotic Control Act of 1956, on or about January 23, 1957 and February 1, 1957, respectively, by fraudulent, knowing reception, concealment, purchase and facilitation of transport and concealment after importation of narcotics, knowing the same to be imported contrary to law.

The jury found him guilty. He was sentenced to twenty years on each count, to be served concurrently, and fined $5,000 each on Counts I and III, from which appeal was taken under Case No. 12236.

On June 25, 1958, a motion for a new trial was filed on the basis of newly discovered evidence. Appeal was taken from denial of the motion under Case No. 12405, and consolidated under Case No. 12236.

Davis complains that Title 18 U.S.C. § 3500(b) and (c) (the so-called "Jencks Statute") is unconstitutional in that it deviates from the directions in Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, and thus violates a constitutionally guaranteed right.

This Court, however, has sustained the constitutionality of the requirement, to which Davis objects, that relation of material (subpoenaed from the government) to the testimony of its witnesses be determined by the Court on the basis of in camera inspection. United States v. DeLucia, 7 Cir., 262 F.2d 610.

Davis further contends that it was error to permit the government to designate those portions of the subpoenaed material which the government considered irrelevant. The Trial Judge preserved for our use the entire text of the subpoenaed material, including the portions excised before delivery to the defendant.

Our independent examination shows no error on the part of the Trial Judge who excised matter which was not a statement of a witness as defined in the statute, or which did not relate to the subject matter of the testimony of a witness.

The facts established in the record follow:

Poulos, an undercover agent for the Federal Bureau of Investigation, testified that he first met "special employee" Louis Jordan, about a week before January 23, 1957; that he met Federal Agent Heisig and Jordan at 9:10 P.M., January 23, 1957, at 30th and South Park Avenue, Chicago, Illinois; and that Jordan and Poulos left for Powers Restaurant, where Jordan introduced Poulos to the defendant, identifying Poulos as a heroin salesman. Poulos, Jordan and Davis then walked south on Cottage Grove Avenue. Davis offered Poulos one-half ounce of heroin for $90. Poulos paid Davis in marked money.

Agent Heisig testified that he followed, maintaining a moving surveillance of Davis from an automobile. At about 9:15 P.M. he observed Jordan, Poulos and Davis together.

Poulos testified that, on instructions from Davis, he returned to the Restaurant where he remained for 15 or 20 minutes with Jordan.

Heisig said he saw Jordan and Poulos both leave the restaurant at about 10 P.M.; that Heisig, Poulos and Jordan again met at 35th Street and South Park Avenue. Heisig then followed Jordan and Poulos back to the Powers Restaurant where he saw the two men "loitering around" for 10 or 15 minutes. They rejoined Heisig at 35th and South Park Avenue. Jordan left. Heisig then followed Poulos back to the Powers Restaurant.

Poulos testified that Davis came to the restaurant at about 11:10 P.M., offered Poulos an additional one-half ounce of heroin for an additional $70, which was paid in marked money.

Heisig saw no passing of money, but did observe Poulos and Davis together in front of the restaurant.

Shortly after this meeting Poulos went to an island at the intersection of Drexel and Oakland Boulevards where, pursuant to Davis' instructions, he found a tin foil package, (subsequently found to contain heroin) which he delivered to Heisig.

Poulos testified further that on February 1, 1957, at about 4 A.M., at Oakwood and Drexel Boulevards, Chicago, Illinois, Davis offered to sell him an ounce of heroin for $430. Poulos told Davis he would have to get the money from his partner. Davis told Poulos to get the money and to meet him at 4:30 A.M. At approximately 4:30 A.M., Poulos met Davis at Lake Park and Oakwood Boulevard, gave him $430 and received a brown manila envelope subsequently found to contain heroin.

Mary Davis, owner of the New Flame Lounge, testified that the defendant, during the months of January and February, 1957, would report for work at that place at 8 P.M. and would be with her continuously until 4 A.M. Walter L. Champion, a musician working at the Lounge, testified that the defendant was present working in the Lounge every evening during the months of January and February, 1957, and that he would have been missed had he left the Lounge.

Louis Davis, in his own defense, testified he had never before met Poulos or Jordan. He denied selling Poulos any narcotics, receiving any money from him, or otherwise engaging in any of the transactions alleged. Mary Davis had attempted unsuccessfully to locate Louis Jordan at the request of counsel for the defense. Davis denied knowing where Jordan resided. John Powell, a private investigator, testified that he was unable to serve a subpoena upon Louis Jordan in behalf of the defense.

Defendant having tried in vain to locate Jordan, although Jordan's name and an address were made available to him,² sought to elicit on cross examination of one of the agents whether or not a subpoena had been issued for Jordan. Objection was sustained to this query as beyond the scope of direct examination. Defendant argues that Government failure to call Jordan as a witness compelled the inference that his testimony would have been adverse to the Government, if it could be shown that Jordan, unavailable to defendant, was available to the Government.

To support this argument, defendant relies on two cases. When viewed against the background of the factual situation involved, both are clearly distinguished from the instant case. In one, Wesson v. United States, 8 Cir., 1949, 172 F.2d 931, the evidence was found to be entirely circumstantial with "not a syllable of direct evidence of a single unlawful exchange, barter or gift of narcotics by the defendant". At page 933. Defendant in the Wesson case was a doctor. The uncontradicted testimony of the doctor and his witness was that the doctor himself had, at a later time, altered prescriptions which he wrote and himself filled, acting as his own druggist, for specific patients; when he prescribed a larger dose on the same day, he altered the prescription blank on its face instead of writing a new prescription. One of the patients to whom he referred had been subpoenaed but was not called as a witness. The other, together with members of her family present when the drugs were allegedly prescribed, were within...