United States v. Washington, 12185.

• Decision Date: 17 April 1958
• Docket Number: No. 12185.,12185.
• Citation: 253 F.2d 913
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

253 F.2d 913 (1958)

UNITED STATES of America, Plaintiff-Appellee, v. Fred WASHINGTON, Defendant-Appellant.

No. 12185.

United States Court of Appeals Seventh Circuit.

April 17, 1958.

Daniel D. Glasser, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Harry D. Strouse, Jr., Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.

Before DUFFY, Chief Judge, and HASTINGS and PARKINSON, Circuit Judges.

PARKINSON, Circuit Judge.

This appeal is from a conviction on a two count indictment charging narcotic law violations of Title 26 U.S.C.A. § 4704(a) and Title 21 U.S.C.A. § 174, respectively. Trial was to the court.

The District Court found both defendants, Leon and Fred Washington, guilty as charged. Leon Washington is now serving his sentence. Fred Washington has appealed.

The uncontroverted facts are that in the early evening of June 17, 1956 Theodore Heisig, George Mattera, George Emerick and Jack E. Love, Federal Narcotics Agents, were in the apartment of a Mrs. Kernick at 4615½ South Drexel Boulevard in Chicago; that at the suggestion of Agent Heisig she called the apartment of Fred Washington at 4627 South Drexel Boulevard in Chicago by dialing KE 6-6460, the unlisted telephone of Della Washington, the wife of Fred Washington; that she told the agents that the person who answered was Fred Washington; that she asked him if he could send her "a couple" (meaning heroin) and he said he could and it would take about an hour.

After Mrs. Kernick had told the agents she was talking with Fred Washington and while the telephone conversation was still in progress Agents Love and Emerick left the Kernick apartment. They went to their automobile, which was parked on South Drexel Boulevard headed south behind Fred Washington's automobile, and placed the apartment of Fred Washington under surveillance. Approximately 5 to 15 minutes later they saw Fred Washington, whom they had known for several years, and another man, whom they testified was Fred's brother Leon, leave the Washington apartment and get into Fred Washington's automobile and drive away. Love and Emerick followed them. About an hour after the telephone conversation, Leon Washington came to the Kernick apartment with 483.5 grains of heroin. He was then and there arrested. Agent Heisig reported this to Love and Emerick, who then located and arrested Fred Washington.

The errors relied upon for reversal by the defendant-appellant Fred Washington arise out of the refusal of the District Court to exclude the evidence of the telephone conversation, insufficiency of the evidence, and alleged deprivation of defendant's constitutional rights in arresting him without probable cause and the introduction in evidence of the telephone conversation.

Mrs. Kernick called Fred Washington by telephone at Heisig's suggestion. She dialed KE 6-6460, which was the unlisted telephone number of the apartment where Fred Washington lived. When the telephone was answered Kernick told the agents she was then talking with Fred Washington. Heisig and Mattera listened to the entire conversation and testified that the voice of the person with whom Kernick talked was that of Fred Washington. This foundation having been laid, the telephone conversation was clearly competent. United States v. White, 7 Cir., 1956, 228 F.2d 832, 835; United States v. Carr, 7 Cir., 1955, 219 F.2d 876, 878-879; United States v. Bucur, 7 Cir., 1952, 194 F.2d 297, 303-304; Fabacher v. United States, 5 Cir., 1936, 84 F.2d 602, 604; Morton v. United States, 7 Cir., 1932, 60 F.2d 696, 698.

The defendant-appellant predicates his claim of insufficiency of the evidence on the sole premise that his conviction "rests on an alleged conversation between one of the witnesses in the case and the defendant." Defense counsel has conceded in oral argument before this court that if Fred Washington was the person with whom Mrs. Kernick talked on the telephone he is guilty.

The evidence as to whether Fred Washington was that person is in conflict. Heisig testified that he was. The parties stipulated that Mattera would testify to the same facts as Heisig. Accordingly two witnesses, Heisig and Mattera, identified the voice of the man with whom Kernick had the telephone conversation as that of Fred Washington. Fred Washington testified that it was not he. Leon Washington testified that it was he who had talked with Kernick. At the request of the government, Kernick was called as a court's witness. She testified that it was not Fred Washington with whom she talked though, at one point in her testimony, she testified that she was not positive that it was not his voice that she heard.

The defendant-appellant argues that it would have been impossible for Heisig and Mattera, in the position occupied by them, to identify the voice as that of Fred Washington in view of the short duration of the conversation and the fact that they had never heard his voice before and were able to make such identification only after they talked with him the following morning. However, the trial court heard the testimony and observed the witnesses as they testified. It believed the witnesses Heisig and Mattera as against the defendants and the witness Kernick.

In determining if there is sufficient evidence to support a conviction, it is not the role of an appellate court to weigh conflicting testimony. The weight to be given and the credibility to be attached to the testimony of the witnesses is a matter for determination by the trier of the facts. United States v. Cook, 7 Cir., 1950, 184 F.2d 642, 644; United States v. Detente, 7 Cir., 1952, 199 F. 2d 286, 288; United States v. White, 7 Cir., 1956, 228 F.2d 832, 833; United States v. Green, 7 Cir., 1957, 246 F.2d 155, 158.

The undisputed evidence is that Kernick dialed the unlisted telephone in the Fred Washington apartment. When a man answered Kernick was asked by one of the agents "is this Fred?". She answered "yes" and the telephone conversation continued. Just as soon as Kernick said it was Fred Washington with whom she was talking Love and Emerick left the Kernick apartment and took up surveillance of the Fred Washington apartment which was two or three doors to the south. In about 5 to 15 minutes Fred Washington came out of his apartment. With those undisputed facts in evidence before the trial court we cannot say that it erred in believing Heisig and Mattera over the defendants and Kernick.

The trial judge could well believe from the evidence that Fred Washington was the person with whom Mrs. Kernick talked and, therefore, with the concession that Fred Washington is guilty if the proof established he was that person, the evidence is sufficient to sustain the finding of the District Court that Fred Washington was guilty beyond a reasonable doubt.

The contention of the defendant-appellant Fred Washington that he was arrested...