United States v. Winfield

Decision Date03 February 1965
Docket NumberDocket 29201.,No. 289,289
Citation341 F.2d 70
PartiesUNITED STATES of America, Appellee, v. Herbert WINFIELD, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

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...

To continue reading

Request your trial
18 cases
  • United States v. Drummond
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 2, 1965
    ...is reasonable to assume that Johnson v. Zerbst and the long line of cases dealing with waiver were known to him. Cf. United States v. Winfield, 341 F.2d 70 (2d Cir. 1965). In any event, the Supreme Court long ago made clear that "it would be wasteful to send a case back to a lower court to ......
  • People v. Roche
    • United States
    • New York Court of Appeals Court of Appeals
    • June 15, 1978
    ...v. Smith, 8 Cir., 452 F.2d 404; cf. United States v. Johnson, 3 Cir., 371 F.2d 800, 806-807), bargaining over price (United States v. Winfield, 2 Cir., 341 F.2d 70, 71; cf. People v. Harris, 24 N.Y.2d 810, 300 N.Y.S.2d 589, 248 N.E.2d 444) and apologizing for the quality of drugs or the man......
  • United States v. Masullo
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 26, 1973
    ...charges against him. The procuring agent charge had validity where a defendant was charged with selling narcotics (United States v. Winfield, 341 F.2d 70 (2d Cir. 1965)), and there was evidence that he in fact was acting on behalf of a buyer rather than the seller. The legal theory is that ......
  • State v. Allen
    • United States
    • Maine Supreme Court
    • June 16, 1972
    ...481 P.2d 169; Roy v. State, 1971, Nev., 489 P.2d 1158.4 United States v. Barcella, 1 Cir., 1970, 432 F.2d 570; United States v. Winfield, 2 Cir., 1965, 341 F.2d 70; United States v. Sawyer, 3 Cir., 1954, 210 F.2d 169; United States v. Sizer, 4 Cir., 1961, 292 F.2d 596 (dictum); Adams v. Uni......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT