United States v. Jackson

• Decision Date: 17 January 1968
• Docket Number: Docket 31783.,No. 226,226
• Citation: 390 F.2d 317
• Parties: UNITED STATES of America, Appellee, v. Doss JACKSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

390 F.2d 317 (1968)

UNITED STATES of America, Appellee, v. Doss JACKSON, Jr., Defendant-Appellant.

No. 226, Docket 31783.

United States Court of Appeals Second Circuit.

Argued December 7, 1967.

Decided January 17, 1968.

Murray M. Segal, New York City, for appellant.

John H. Doyle, III, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York and Pierre N. Leval, Asst. U. S. Atty., on the brief), for appellee.

Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.

HAYS, Circuit Judge:

The appellant, Doss Jackson, Jr., was convicted by a jury of selling cocaine hydrochloride without a written order form in violation of 26 U.S.C. §§ 4705(a) and 7237(b). We find no error and affirm the judgment of conviction.

The government introduced evidence from which the jury could have concluded:

In April, 1966 appellant asked Charles Tobon, a business associate, whether he knew of anyone who might be able to sell or distribute narcotics. Tobon replied that he might know such a person. Thereafter Tobon telephoned the Federal Bureau of Narcotics. On April 27, Tobon, equipped by federal agents with a concealed radio transmitter, met appellant at his apartment and inquired about the narcotics. Appellant answered that his contact had told him that one Fleming, a seaman, was expected in on May 8th with narcotics and that the price would be $50,000 per kilo. Tobon said that he would discuss the price with his purchaser.

Appellant arranged to meet with Tobon and his purchaser on August 11, saying that delivery was imminent. Tobon introduced his "purchaser" as Ted Hendricks, a Las Vegas gambler and pimp. "Hendricks" was in fact Agent Heisig of the Narcotics Bureau. They discussed quantities, prices, and an expected delivery date.

On August 26, Agent Heisig telephoned appellant, who offered to sell two ounces of cocaine for $750 an ounce. Agent Heisig complained of the high price, but agreed to meet appellant at a restaurant the next day. At the restaurant, appellant gave Agent Heisig a small sample. They settled on a price of $1380 for the two ounces, and Agent Heisig retired to the men's room to inspect the sample. Agent Heisig returned and expressed himself as satisfied. He paid appellant $1380 and was handed two white envelopes containing cocaine.

On October 14, Agent Heisig telephoned appellant and discussed possible future transactions. This conversation was recorded on tape by Agent Heisig. A few days later appellant was arrested.

Appellant contends that Narcotics Agent Durham, who heard the April 27 conversation between appellant and Tobon over a radio receiver tuned to pick up signals sent by the transmitter concealed on Tobon's person, should not have been permitted to testify as to that conversation. The admissibility of this evidence is established by On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). Appellant urges us to regard On Lee as overruled because in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) three justices expressed the opinion that it had been wrongly decided. We are in accord with what our brethren of the Ninth Circuit said recently in rejecting a similar contention:

"In reliance on the dissents in On Lee, * * * in Lopez, * * * and the concurrence in Warden Md. Penitentiary v. Hayden, 1967, 387 U.S. 294, 310-312 87 S.Ct. 1642, 18 L.Ed.2d 782, and similar `nose counting,\' counsel asks us to say that On Lee is no longer law. The Supreme Court, however, has not so held, and we decline to anticipate that it might." Garrett v. United States, 382 F.2d 768, 772 (9th Cir. 1967).

Appellant also complains of the admission of the tape recording of Agent Heisig's telephone conversation with appellant. It is settled law that a recording of a telephone conversation made with the consent of one of the parties to the conversation is admissible in evidence. See Lopez v. United States, 373 U.S. 427, 437-440, 83 S.Ct. 1381, 10 L. Ed.2d 462 (1963); United States v. Leighton, 386 F.2d 822 (2d Cir. Dec. 15, 1967); United States v. Ballou, 348 F.2d 467, 468 (2d Cir. 1965).

Appellant finds fault with the trial court's handling of the defense of entrapment in several respects. He contends that inducement was established as a matter of law, so that only the issue of appellant's predisposition to commit the crime should have been submitted to the jury. This contention is refuted by Tobon's testimony that it was appellant who first broached the subject of selling narcotics. Since there was no inducement as a matter of law, appellant's alternative contention that the evidence established entrapment as a matter of law is plainly without merit. Appellant claims error in the court's failure to give in ipsissimis verbis four of his requested charges on entrapment. The trial court's charge contained the substance of three of the requested charges; as to them, therefore, appellant can have no complaint. See United States v. Fayette, 388 F.2d 728 (2d Cir. 1968). The fourth request was for the following charge: "An entrapped defendant may not be convicted, not because his conduct falls...