United States v. Weston

• Decision Date: 03 September 1971
• Docket Number: No. 26850.,26850.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Janice WESTON, a/k/a Janice Wallace, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

448 F.2d 626 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Janice WESTON, a/k/a Janice Wallace, Defendant-Appellant.

No. 26850.

United States Court of Appeals, Ninth Circuit.

September 3, 1971.

Michael Garvey (argued), of Houger, Garvey & Schubert, Seattle, Wash., for defendant-appellant.

Charles Pinnell, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Before DUNIWAY and CARTER, Circuit Judges, and GRAY, District Judge^*.

DUNIWAY, Circuit Judge:

Weston, also known as Wallace, appeals from her conviction by a jury of violating 21 U.S.C. § 174, receiving, concealing and facilitating the transportation of 537.11 grams of heroin, knowing that it had been imported contrary to law. She presents two questions, which we discuss separately.

1. Sufficiency of the evidence.

Weston argues that the evidence is insufficient to show that she knowingly possessed the heroin. On this aspect of the matter, the government's case rests on the testimony of narcotics agent Wilson, which is as follows: On June 9, 1970, he and agent Higdon were in a car in the Kent, Washington area, looking for Weston. At about 10:30 A.M. he saw her in a Volkswagen sedan, in which she was a passenger. The driver was Brenda Jackson. Wilson made a radio call to other agents, and then he and Higdon followed the Volkswagen. At one point, Weston turned around and looked for a time at the agents' car. It was unmarked, and the agents were dressed in casual clothes. On a residential street, two vehicles carrying other agents pulled out onto the street ahead of the Volkswagen, partially blocking the street. These vehicles were also unmarked, and the agents in them were similarly dressed. Jackson slammed on the brakes and turned down a road — a private driveway. As the Volkswagen approached a house, it slowed, and Weston jumped out. She lost her balance and fell. Either just before or while she was falling, she threw away a paper sack, which went over the top of the Volkswagen and landed on the other side of it. The sack contained the heroin. On rebuttal, agent Higdon corroborated agent Wilson's statement that Weston threw the sack over the car. Wilson testified that Weston later told him that the price of heroin in Mexico was $300 an ounce.

Weston took the stand. Her story was that Jackson had offered to drive her to the airport, that the paper sack was on the front seat when she got into the car and that she put it in her lap, along with her purse, because that was the easiest thing to do. She had no idea what was in the sack. When the agent followed them and blocked the way, the two women feared a robbery. As they approached the residence, Jackson told Weston to run to the house and call the police. When she jumped from the car, she lost her balance and the sack and her purse went one way and she went another. She did not throw the sack.

Had the jury believed Weston, no doubt it would have acquitted her. Evidently, however, it chose to believe the agents, and their testimony supports an inference of guilty knowledge on Weston's part. The evidence is sufficient.

2. The sentence.

After the verdict was received, the court indicated that it felt that the minimum mandatory sentence, five years, would be appropriate. Government counsel demurred and asked that a presentence report be obtained. Before sentencing, the report was read by Weston's retained counsel.

The most damaging information contained in it is the following:

"This officer interviewed Narcotic Agents of the Federal Bureau of Narcotics and Dangerous Drugs who have been investigating Mrs. Wallace\'s involvement in narcotics since about February of this year. They advised that in their opinion Mrs. Wallace is a very intelligent and clever dealer in heroin. They feel that she has never used the drug but has been the chief supplier to the Western Washington area.

"According to their investigation Mrs. Wallace traveled to Mexico or Arizona periodically to obtain approximately $60,000.00 worth of heroin. She then would distribute the drug to various dealers in Western Washington earning approximately $140,000.00 profit on the $60,000.00 investment. Narcotic agents felt that she might have made such trips as frequently as every two weeks. They feel fortunate in obtaining sufficient evidence to bring Mrs. Wallace to court.

"Narcotic agents advised that four of Mrs. Wallace\'s distributors have been apprehended and two have already been sentenced. These four are Jane Ann Meisner, Docket 51969 and 51996, sentenced to 10 years imprisonment, Stanley Gene Hunter, Docket 51966, sentenced to 10 years imprisonment, Carl Lee Brewer, Docket 52025, case pending, and Arvis Marie Banks, Docket 52024, case pending.

"Defendant\'s Version: Mrs. Wallace refused to participate in the presentence investigation. She did explain that she feels bitter and dissatisfied with the jury verdict of guilty in the current offense and with the Prosecuting Attorney\'s refusal to allow her to plea sic to a lesser offense. Due to her unwillingness to discuss herself, the offense and other pertinent background information, this report is limited in scope.

"Mrs. Wallace states that she sees no reason to submit to a presentence study since there is no possibility of probation and she fails to see how a presentence report might help her. At this point her attitude toward the offense is one of denial with regard to her extensive involvement in drug sales."

The report also shows a series of 9 vagrancy and shoplifting charges against Weston, in Spokane, Portland, Seattle, Renton, Pasco and Tacoma, between 1963 and 1969. The first and last were marked "no disposition," or "stricken." She was convicted once in Portland in 1964, fined $75.00 and sentenced to 90 days suspended, and once in Tacoma in 1969 and fined $150. In each other case she forfeited bail — $100. That is substantially all that the report contains.

At the sentencing hearing, the court asked counsel to comment on the information indicating that Weston was a large-scale heroin dealer. Counsel replied that "she says it's just not true," that making $140,000 profit every two weeks was beyond counsel's imagination, and that he had never seen Weston display any sign of wealth. Weston also commented on the report:

"THE DEFENDANT: Yes. He called and asked, was asking questions, and I told him that this wasn\'t true. And the things that they had said wasn\'t true. And nothing else I could possibly say could ever, nothing I could say would do me any good. And this is not true. And if it is true, how could you bring facts, because it\'s not true, how could you say these are facts?"

The court then summarized its views:

"Well, as I commented, Mr. Kempton, in the companion case, the Jackson case, this Court has great respect for the probation service in this and other districts, and I believe as a whole they are a group of officers who are extremely objective, very concerned with the welfare of the defendants, who they report upon, and also are attentive to their duties as officers of the Court.

"And when statements are made categorically as they are made here, the Court has no alternative, in the face of contrary factual information, rather than simply a vehement denial, but to accept as true the information furnished the Court which in turn was obtained by the probation officer from the officers of the Federal Bureau of Narcotics and Dangerous Drugs.

"However, officers can be in error; mistakes can be made. * * *

* * * * * *

"So I\'m going to advise you, I\'m sure you\'re already aware of it, that Rule 35 of the Federal Rules of Criminal Procedure provides that within 120 days after imposition of sentence the Court may reduce or otherwise modify the sentence imposed. And I invite you to conduct your own investigation, and if you feel that you can obtain facts that contradict the factual statements that are so damaging here to this defendant, and to her co-defendant to a lesser degree, the Court will welcome the submission to it, and it can be done by mail on a motion for modification if you file the same timely.

"Of course, the Government will have an opportunity to respond, and the Court will then decide upon the moving and responding papers whether or not to modify the sentence that\'s imposed in these two cases. * * * * * *"

The colloquy then continued:

"MR. KEMPTON: Yes, your Honor. Under Rule 35, which affords me an opportunity to approach the Court with a motion for reduction of sentence, we have — let\'s say we have one narcotics agent on the streets that tells Mr. Levy of the Probation Department, `We think she\'s the biggest dealer in the Western states,\' I can\'t conceive of what type of investigation I can do to come back and say that she isn\'t.

"THE COURT: Well, I can\'t do any more than I\'ve done to point out this remedy to you. I recognize that the problem could be a difficult one. But I think you can appreciate the Court\'s position: to choose between a flat denial of the defendant and a factual matter reliably represented to the Court by the Bureau of Narcotics and Dangerous Drugs through the probation officer, who tacitly, at least indicates, that this information is correct.

"Very well.

"Mrs. Weston, again, do you have anything further to say before sentence is pronounced?

"THE DEFENDANT: This is not true. And I have no way — if they have any way of proving this is true, why don\'t they bring the evidence that this is true, that I was going out of town and doing all of this stuff? They can not have any evidence of it because this is not true. This is what they `hearsay\'.

"Now, nothing has been brought up to establish the fact that I did this. All they\'re saying is what the agents said or what somebody told them. I know this isn\'t true, and I\'m quite sure they can\'t establish the fact that it is true."

The court then imposed the maximum sentence, 20 years, and continued:

"Now, in addition to

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