United States v. Johnston, 17416.

• Decision Date: 14 May 1970
• Docket Number: No. 17416.,17416.
• Citation: 426 F.2d 112
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur Milton JOHNSTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

426 F.2d 112 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Arthur Milton JOHNSTON, Defendant-Appellant.

No. 17416.

United States Court of Appeals, Seventh Circuit.

May 14, 1970.

Max Cohen, Holland, Cohen, Delph & McKenna, Gary, Ind., for defendant-appellant.

Alfred W. Moellering, U. S. Atty., Hammond, Ind., for plaintiff-appellee.

Before HASTINGS and KNOCH, Senior Circuit Judges, and DILLIN,^* District Judge.

KNOCH, Senior Circuit Judge.

Defendant-appellant, Arthur Milton Johnston, appeals from his conviction in a jury trial for violation of Title 21 U.S.C. § 331(q) (2) and (3) in seven counts, four charging sale of a depressant or stimulant drug and three charging unlawful possession of such a drug, and resultant sentence to serve, consecutively, one-year terms on each of the first three counts, with suspension of sentence of one year on each of the remaining four counts, five years' probation to follow the three consecutive one-year sentences and a fine of $1000 on the first count.

A number of errors have been alleged concerning denial of motion to suppress, sufficiency of the evidence to convict, denial of motions for mistrial, deficiency in instructions and reception of prejudicial hearsay testimony over objection.

The defendant had interposed a defense of entrapment. The government sought to prove a predisposition to commit the crimes charged to show that the police officers acted reasonably in providing an opportunity for the defendant to commit the crime charged if he were then apt and willing to do so. The evidence included testimony by SGT Kenneth P. Wolfe of the Indiana State Police that LT Ed Burke (then SGT Burke) of the Indiana State Police, in August 1967, said he had information that defendant was dealing in hard narcotics. LT Burke of the Criminal Investigation Division, General Headquarters in Indianapolis, testified that he derived this information, some two years prior to his conversation with SGT Wolfe, from a narcotics addict of many years, who had served about twelve years in prison and who died in December 1966. The informant had said that on one occasion, no date given, he had exchanged stolen goods with defendant for morphine. The information had never been followed up, and the informant never again referred to such transactions during his subsequent dealings with LT Burke.

The Trial Judge made strenuous efforts prior to and during elicitation of this testimony to impress on the jury the extremely limited purpose for which the testimony was received.

Defendant argues that the alleged incident dealt with a crime different from those charged, i. e., dealing in hard narcotics and stolen merchandise as compared to dealing in the sodium nembutal here involved; there was no other evidence of defendant's conviction of offenses or even of trafficing in narcotics; the incident was too remote and the hearsay unreliable.

The Trial Judge's concern about this testimony was evident. At the time he ruled on the motions to strike, for mistrial and for new trial, counsel had not cited the case of Hansford v. United States, 1962, 112 U.S.App.D.C. 359, 303 F.2d 219, on which defendant relies here. There David Louis Hansford, charged with sale of heroin to a special employee of the Police Department, presented a two-fold defense: that he did not make the sale, but if the jury believed it did occur, then the government's evidence showed it to be the result of entrapment. In rebuttal a police officer testified over defense objection that nine months earlier he had observed Mr. Hansford with a cellophane bag from which he was selling white powder capsules to other addicts, that the officer himself had then tried without success to make a purchase. He testified at first that he had made a report of this incident at the time, but, after an opportunity to search the records was granted, he was no longer sure he had made such a report and concluded that he did not file one.

The District of Columbia Circuit sitting en banc considered both Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 and Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, on which the government relies here. The Court said (303 F.2d p. 223) that entrapment as viewed in those cases had two features: (1) proof of inducement or active participation of a government agent and (2) opportunity for the government to show predisposition or readiness of the accused to commit the offense.

The District of...