United States v. White

• Decision Date: 20 November 1963
• Docket Number: Docket 27972.,No. 137,137
• Citation: 324 F.2d 814
• Parties: UNITED STATES of America, Appellee, v. Marion WHITE, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

324 F.2d 814 (1963)

UNITED STATES of America, Appellee, v. Marion WHITE, Appellant.

No. 137, Docket 27972.

United States Court of Appeals Second Circuit.

Argued October 10, 1963.

Decided November 20, 1963.

Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, New York City (William J. Quinlan and Andrew T. McEvoy, Jr., Asst. U. S. Attys., of counsel), for appellee.

Theodore Krieger, New York City (assigned by the court), for defendant-appellant.

Before CLARK, MOORE and KAUFMAN, Circuit Judges.

MOORE, Circuit Judge.

Appellant Marion White appeals from his conviction, after a jury trial, for violating the federal narcotics law, 21 U.S.C. §§ 173, 174. Appellant did not deny that the single unlawful transaction for which he was tried took place, but relied on the defense of entrapment. On this appeal he contends that the refusal of the trial court to grant a continuance pending the availability of a "special employee" of the Government and the impropriety of the Government's summation constitute reversible error. The relevant facts can be briefly stated.

On August 13, 1958, Federal Narcotics Agents met with Roy Lynn, a "special employee" or informant, and at his suggestion went with him to the vicinity of 146th Street and St. Nicholas Avenue in New York City. Under the surveillance of the agents, Lynn left Agent Copland, who was then operating under cover, and walked down the block a short way where he encountered appellant. After a brief conversation, Lynn and appellant joined Agent Copland. Copland testified that he asked appellant if he could get some heroin, that appellant had replied in the affirmative but said that he would have to go downtown first. Copland, Lynn and appellant, followed by the other agents, then proceeded to 58 Hamilton Place. Appellant entered the building alone, emerged shortly, and gave Copland two glassine envelopes containing 92 grains of heroin. Copland, in turn, gave appellant $80.

Appellant's version of the August 13, 1958 transaction is somewhat different. He testified that when Lynn, whom he had known for some years, first approached him, Lynn asked if appellant would do him the favor of getting narcotics for himself and his friend (Agent Copland) because both were "sick"; that Lynn indicated, when appellant professed ignorance of where to go for this purpose, that the narcotics could be obtained from one Chisolm, with whom appellant frequently dealt in the course of his "policy" business; that Chisolm would not sell to Lynn but would sell to appellant; and that it was with reluctance and after some delay that appellant agreed. Appellant further testified that en route to 58 Hamilton Place Lynn gave him $40 which he gave to Chisolm and that he delivered the narcotics to Lynn. Two hours later, appellant refused Lynn's offer of $10 for doing the favor.

The Government kept appellant under "continuous investigation" until his arrest in January, 1960, but did not uncover any other transactions; and, after his arrest and prior to indictment, on November 17, 1961, appellant had agreed with the Government to cooperate in the initiation of other narcotic cases, but he had been singularly unsuccessful. Prior to and during appellant's trial, the Assistant United States Attorney offered to make Lynn available for use as a court or defense witness, but it was subsequently learned that Lynn had been beaten and was seriously ill. After the Government had rested and appellant had taken the stand in his own defense, a doctor who had examined Lynn at the court's direction testified in the absence of the jury that Lynn would not be able to appear for "a couple of weeks." Appellant thereupon moved for adjournment until such time as Lynn could testify. The motion was denied and appellant, after going through the formality of calling in open court for the indisposed Lynn, rested. The trial court gave both parties permission to refer to Lynn's absence in summation.

In this case the problems frequently presented in narcotics cases where special employees are involved were resolved in the early stages. The Supreme Court's admonition in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) that the Government need only identfy its informant, was satisfied since appellant knew that Lynn, his friend for a number of years, was the special employee. Unlike United States v. Cimino, 321 F.2d 509 (2d Cir. 1963), the whereabouts of Lynn at the time of trial was not unknown. Moreover, rather than objecting to his production, the Government had repeatedly offered to make Lynn available.

Cases in this circuit and others have made it abundantly clear that the Government is not the guarantor of a special employee's appearance at trial. E. g. United States v. Holiday, 319 F.2d 775 (2d Cir. 1963); United States v. Cimino, supra; Williams v. United States, 273 F.2d 781 (9th Cir. 1959), cert. denied, 362 U.S. 951, 80 S.Ct. 862, 4 L.Ed.2d 868 (1960); Eberhart v. United States, 262 F.2d 421 (9th Cir. 1958). However, defendants should be afforded every reasonable opportunity to present their cases as fully as possible. Thus, this Court has approved of the method sought to be used by appellant here. United States v. Glaze, 313 F.2d 757 (2d Cir. 1963), citing Sartain v....