United States v. Winfield

• Citation: 341 F.2d 70
• Decision Date: 03 February 1965
• Docket Number: Docket 29201.,No. 289,289
• Parties: UNITED STATES of America, Appellee, v. Herbert WINFIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

341 F.2d 70 (1965)

UNITED STATES of America, Appellee, v. Herbert WINFIELD, Defendant-Appellant.

No. 289, Docket 29201.

United States Court of Appeals Second Circuit.

Argued January 13, 1965.

Decided February 3, 1965.

Glen W. Watkins, Hardy, Peal, Rawlings, Werner & Maxwell, New York City (Anthony F. Marra, The Legal Aid Society, New York City, on the brief), for defendant-appellant.

R. Harcourt Dodds, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York; John E. Sprizzo, Asst. U. S. Atty., on the brief), for appellee.

Before SMITH, KAUFMAN and ANDERSON, Circuit Judges.

KAUFMAN, Circuit Judge:

This appeal presents a very narrow issue: whether the defendant, Herbert Winfield, made a "sale" within the meaning of 26 U.S.C. § 4705(a), which makes it unlawful "to sell, barter, exchange or give away narcotic drugs except in pursuance of a prescribed written order." After a trial without a jury, Winfield was convicted for selling cocaine to a Federal Bureau of Narcotics Agent, Charles R. McDonnell, for which he received $150. The statutory mandatory minimum sentence of five years' imprisonment was imposed, 26 U.S.C. § 7237(b). Having failed to persuade the trial judge by his testimony that he had not sold or delivered any drugs whatever to the agent, Winfield now claims for the first time on this appeal that if he did participate in the transaction, it was as a procuring agent rather than a seller, and moreover, that he was entrapped. We believe, however, that on the record before us these defenses are of no avail and therefore affirm.

The experienced trial judge obviously did not credit Winfield's unequivocal denial of any dealings with the Government agent and so a brief summary of the evidence upon which the conviction rests will suffice. On the evening of May 13, 1963, while standing on 116th Street in Manhattan, an informant introduced Agent McDonnell to the appellant. Without further ado, the informant asked, "Can you do that thing for us?" Winfield replied that he would first have to make a telephone call and advised the agent and informant to meet him in the Hollywood Bar, across the street, in a few minutes. At the appointed rendezvous, McDonnell asked Winfield "what he could get" and was told, "anything you want." The agent said he had $150 and would like "to get" heroin, to which Winfield replied, without hesitation "I can get you three-quarters of an ounce of something good." McDonnell paid in advance, after Winfield handed him a slip of paper noting his telephone number and address.

Within thirty minutes all the participants met close to Winfield's residence and waited vainly in a parked automobile for appellant's "connection" to arrive. Almost five hours later, McDonnell, the informant and appellant parted company, after Winfield agreed to contact the agent when he received the narcotics. In a telephone conversation the next day with McDonnell, Winfield said "his guy * * * had left him the wrong package" — cocaine instead of heroin — which McDonnell agreed, nevertheless, to purchase. He arrived by car at Winfield's residence shortly thereafter, accompanied by the informant. Winfield entered the car which drove off and as they approached 139th Street and St. Nicholas Avenue he gave the agent a tin-foil package containing cocaine, suggesting that he "try it and let me know how you like it."

Careful scrutiny of the totality of facts in each case is required to determine whether a defendant, charged with violating Section 4705(a), acted as a seller or as a procuring agent. Although deliberative examination of the precedents is helpful, we can hardly expect to be provided with all-purpose, ever-applicable standards, for these cases cannot be pigeonholed.

We learn from United States v. Sawyer, 210 F.2d 169 (3 Cir.1954), that the procuring agent-seller distinction is important because there can be no § 4705 (a) violation if the evidence establishes that a federal agent asked the defendant to buy drugs for him and the defendant then purchased them from a third person with whom he was not associated in selling. Sawyer's precise holding was that a conviction must be reversed where a judge, when requested by the defendant to do so, fails to explain to the jury "the difference in fact and in law between dealing with a purchaser as seller and acting for him as a procuring agent." See also Kelley v. United States, 107 U.S.App.D.C. 122, 275 F. 2d 10 (1960). Of course, this holding does not, without more, require reversal where as here the trial was to a judge alone for, as the court acknowledged, the distinction would be "obvious to a lawyer."

It is apparent, nonetheless, that when Sawyer is adapted to this case the relationship between Winfield and the ultimate seller assumes critical significance. But, in considering the evidence and the inferences to be drawn from it, we must as appellate judges view it in a light most favorable to the Government. United States v. Robbins, 340 F.2d 684 (2 Cir. Jan. 12, 1965); United...