United States v. Robinson

• Decision Date: 10 August 1972
• Docket Number: 72-1139.,No. 71-1747,71-1747
• Citation: 466 F.2d 780
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

466 F.2d 780 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Charles ROBINSON, Defendant-Appellant.

Nos. 71-1747, 72-1139.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1972.

Decided August 10, 1972.

Melvin F. Greenberg, Greenberg, Karp, Heitzman & Edhlund, Madison, Wis., for defendant-appellant.

John O. Olson, U. S. Atty., James Bablitch, James R. Mack, Eric J. Wahl, Asst. U. S. Attys., W. D. Wis., Madison, Wis., for plaintiff-appellee.

Before DUFFY, Senior Circuit Judge, PELL, Circuit Judge, and DURFEE, Senior Judge of the United States Court of Claims.^*

DURFEE, Senior Judge.

Appellant, Charles Robinson, was convicted in the United States District Court on July 28, 1971, for dispensing and distributing a narcotic drug in violation of 26 U.S.C. § 4704(a), and selling a narcotic drug not pursuant to a written order from a buyer, in violation of 26 U.S.C. § 4705(a). On August 9, 1971, defendant was sentenced to two years' imprisonment on the first count, the violation of § 4704(a), and five years on the second count, these sentences to run concurrently pursuant to 18 U.S.C. § 4208(a) (2), which permits parole at the discretion of the parole authorities. Subsequently, on October 18, 1971, the trial judge modified the judgment of commitment by deleting that portion of the sentence permitting the application of 18 U.S.C. § 4208(a), thus making defendant's term of commitment a mandatory five years, pursuant to 26 U.S.C. § 7237(d). Defendant moved to have his sentence modified on the basis of its being illegal. However, this motion was denied, 336 F. Supp. 1386. Defendant now brings this appeal, the bases for which are as follows : (1) the sentence as modified is illegal ; (2) the voir dire examination of the jury which the court conducted was inadequate to insure a fair trial ; (3) defendant's motion for judgment of acquittal should have been granted since the testimony established entrapment as a matter of law ; (4) the indictment was multiplicious and violated defendant's constitutional guarantee against double jeopardy ; and (5) the court erred in failing to submit certain proposed jury instructions. Based upon the inadequacy of the voir dire, the judgment of the District Court is reversed and the case remanded for a new trial. Moreover, for the reasons set forth in United States v. McGarr, 461 F.2d 1, 7th Cir., April 28, 1972, the modification of the sentence was erroneous. Contrary to appellant's contention, entrapment was not established as a matter of law.

On November 20, 1970, Howard Hayes, an agent for the Bureau of Narcotics and Dangerous Drugs, accompanied by an informant, went to an apartment in Madison, Wisconsin, where it was thought they would meet appellant, whom the informant had indicated was selling drugs. Upon meeting appellant, Hayes asked to talk with him in private, and they went into the bedroom where, after some disagreement over the price, appellant sold Hayes a small package of heroin for $150.00. Appellant testified at the trial that the informant had furnished him with heroin on prior occasions and that on November 20, 1970, the informant had requested that appellant sell him some heroin. According to testimony, appellant responded that he did not have any heroin, and that he was sick. Appellant further testified that the solution of lactose and heroin which he had, and which he sold to Hayes, was not strong enough to relieve withdrawal pains, and that Hayes had promised to obtain for appellant heroin of sufficient quality to relieve these pains. Appellant also testified that Hayes had told him there was a girl back at his motel who was badly in need of an injection of heroin. Hayes denied having made this statement. There was also testimony introduced which indicated that the police department of Madison, Wisconsin, had been working with the informant prior to November 20, 1970, and that there had been some cooperation between the Madison police and the Bureau of Narcotics and Dangerous Drugs. The trial court gave an entrapment instruction to the jury.¹ The jury returned a verdict of guilty on both counts of the indictment. Appellant did not establish entrapment as a matter of law. In Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), the Court found that entrapment had been established as a matter of law through the undisputed testimony of the Government's witness, who had been recalled by defendant. In the instant case, the jury was presented with testimony of two witnesses, Agent Hayes and appellant, which bore on the issue of entrapment. If the jury chose to believe Hayes, as they apparently did, they could reasonably find that the criminal activity charged was not "the product of the creative activity" of law enforcement officials. Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.E d. 413 (1932).

Instead of permitting counsel to conduct the voir dire examination, the court chose to ask the questions itself, as it is permitted to do under Rule 24(a) of the Federal Rules of Criminal Procedure. However, none of the voir dire questions relating to possible racial prejudice proposed by appellant were asked by the court. Included among the questions proposed by appellant were the following : "Do you...