Walker v. United States

• Decision Date: 17 January 1962
• Docket Number: No. 17382.,17382.
• Parties: Eugene Duvalcourt WALKER and Irving Goldheimer, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

298 F.2d 217 (1962)

Eugene Duvalcourt WALKER and Irving Goldheimer, Appellants, v. UNITED STATES of America, Appellee.

No. 17382.

United States Court of Appeals Ninth Circuit.

January 17, 1962.

Robert W. Armstrong, Huntington Park, Cal., for appellant Walker.

Russell E. Parsons, Harry E. Weiss, Los Angeles, Cal., for appellant Goldheimer.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Crim. Div., Meyer Newman, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, MERRILL and BROWNING, Circuit Judges.

BARNES, Circuit Judge.

Appellants Walker and Goldheimer, together with defendants Wilson, Medina and Mendez, were indicted on two counts of violating Title 21 United States Code Annotated, §§ 174, 176. The first count charged that beginning on or about July 13, 1960, and continuing to August 30, 1960, appellants together with other named defendants conspired together to knowingly and unlawfully receive, conceal, transport and facilitate the concealment and transportation, and sell and facilitate the sale, of heroin which the defendants knew had been imported into the United States contrary to § 173, Title 21, United States Code Annotated; to knowingly smuggle and clandestinely introduce into the United States from Mexico, heroin with intent to defraud the United States (which merchandise should have been invoiced prior to importation into the United States) in violation of § 174, Title 21, United States Code.¹ The second count charged that during the same period appellants, and other defendants, violated the same law with respect to marihuana (21 U.S.C.A. § 176).²

Appellants pleaded not guilty to both counts and were tried by jury.

The jurisdiction of the district court was found upon 18 U.S.C. § 3231. This court has jurisdiction to hear the appeal and review the judgments under the provisions of 28 U.S.C. §§ 1291 and 1294.

Facts

Because of alleged insufficiency of the evidence to support each conviction, it becomes necessary to consider it in some detail.

James R. Webster, a special employee of the Federal Bureau of Narcotics, testified that he met Goldheimer in a jail in Long Beach, California, in the latter part of May 1960, that Goldheimer told him that he had been to Mexico, that he had narcotics sources there and that he had previously imported marihuana from Mexico to New York and that he had just returned from Mexico not long prior to his arrest, and that he had an associate or friend who had a boat and that they were intending to import a large quantity of marihuana "up to this area"; that they had the "contacts on the Mexican side `all lined up.'" Webster further testified that he met Donald Wilets, an agent of the Federal Bureau of Narcotics, on June 3, 1960, and on June 23, 1960, and outlined to Wilets the conversations he had with Goldheimer.

On June 29, 1960, Webster met Goldheimer and Walker and was asked, by Goldheimer, if he wanted to see the boat. While on the yacht Goldheimer (Walker not being present) showed Webster certain nautical charts and told him that he and Walker had one chart on which they had worked out a course to some point below Ensenada with a landing area where "a transshipment could be made of the narcotics on board the vessel." During a conversation that night, Walker stated that the best plan, and what he intended to do, was to have the narcotics wrapped in waterproofed packages, compressed, and put into sail bags (which are canvas bags that are put on or below decks when the ship is at sea, and which are usually empty when the sails are being used). Walker also stated that he was not absolutely sure of the customs formalities in returning from a foreign run on a yacht and that he was going to check into it. In discussing finances Goldheimer stated that he had some money on deposit with one Bryce Wilson in Guadalajara; that if their venture was successful Goldheimer, Walker, Wilson and Webster were each to receive twenty-five per cent of the total profits above expenditures and that Webster was to put some money into the enterprise depending on the final amount of narcotics that was to be handled.

On June 27, 1960, Webster had suggested to Goldheimer that he meet his financial backer. Goldheimer had previously expressed a desire to meet him. On July 13, 1960, Webster and Wilets met Goldheimer at a restaurant on the Sunset Strip and Goldheimer told Wilets that there were narcotics available through his sources and that a source of transportation, a yacht, was readily available.

On July 14, 1960, Goldheimer, Walker, Webster and Wilets, met together at a restaurant and then went for a ride during which Goldheimer asked Webster and Wilets how the plan "looked" and Walker asked if Wilets were going to "front any money."

On July 28, 1960, Webster met Goldheimer who said he would be ready to go to Mexico the following day and requested Webster to make all the arrangements. Arrangements were made and on the next day Wilets drove Webster out to pick up Goldheimer and then drove Webster and Goldheimer to the airport. The conversation in the car concerned bringing the matter "to a head" and obtaining a clear commitment down below on what they were supposed to get. Webster and Goldheimer deplaned at Guadalajara but they could not find Wilson there, and Goldheimer then left Guadalajara and flew to Puerto Vallarta, and returned the following day with Wilson. Goldheimer told Webster that Wilson had spent his money and that they would go to the Jalisco State Jail in Guadalajara the following day to meet with one of the sources of supply. They went to the prison where they met an inmate named Talaveras with whom they discussed the availability of heroin; it was learned that marihuana was available in a week or two but that Talaveras did not know about the heroin but that he would send someone out to see about it. One Ramundo was contacted and he stated that there was a kilogram of heroin available in a week or two and that the price would be $10,000. Webster said the price was too high but Goldheimer and Wilson said that it was a fair price and Goldheimer also stated, "Well that's the price its always been." Webster and Goldheimer returned to their hotel with Wilson and when Goldheimer went with Wilson to the hotel at which Wilson was stopping, Webster called Wilets and outlined what had happened in the jail. Webster, Goldheimer and Wilson returned to the jail a few days later and Webster stated that $10,000 would be acceptable but that he would want a firm delivery date and Ramundo stated that there would be a kilo available on August 14, which could be held until August 21. Goldheimer suggested that the heroin and marihuana should be bought at one time for one delivery on the yacht and Talaveras said that the marihuana would be available at the same time as the heroin. Ramundo then gave Wilson, Webster and Goldheimer the name and address of a man outside of the prison whom he said was the heroin and opium connection. Ramundo's "connection" was a man named Medina and his name and address were written by Ramundo on a slip of paper which he gave to Wilson.

After leaving the jail the plans for delivery were discussed in Guadalajara by Wilson, Goldheimer and Webster and Wilson said he would go back to his home and that he would return to Guadalajara on August 14, at which time he would meet Medina to get a sample of the heroin and that he would then forward a sample to Webster in the United States. Goldheimer said that nothing should be done about the marihuana until the heroin was obtained so that it could be put together in one package and one delivery could be made. It was agreed that Goldheimer and Webster would return to Guadalajara on August 21, after having received the heroin sample in the United States, and that in the meantime Wilson would remain in Guadalajara and see about getting the marihuana together and starting to package it. Goldheimer said he would contact Walker to arrange for a final delivery of the heroin and the marihuana by them to Walker in Ensenada. Webster stated that as to the payment for their trip to Mexico, Goldheimer had given him a $100 bill but said that he was a little short and Webster paid the remaining $37.50 for the tickets and that in addition he had purchased lunch for Goldheimer several times in Mexico but that he had given him no other funds. Webster and Goldheimer returned to the United States together on August 4, and they were met at the airport by Wilets. Goldheimer told Wilets that arrangements had been made to pick up both heroin and marihuana in Guadalajara on August 21, and that it had been decided to make it a package deal so that the heroin would not be imported without the marihuana and the price was $10,000.³

Another meeting was held between Webster, Walker, Goldheimer and Wilets on August 10, and after a cup of coffee in a restaurant they drove around and discussed the arrangements that had been made.⁴ Due to the fact that Goldheimer had to make a court appearance and would not be able to return to Guadalajara on August 21, alternate arrangements had to be made and it was decided that Webster and Wilets would go to Mexico to receive delivery. Webster could then return to the United States on August 22 and Goldheimer could follow them down in order to transport the narcotics from Guadalajara to Ensenada. During the conversation Wilets wanted to know how the marihuana was to be packed and Walker said it was to be packed as tightly as possible and wrapped in waterproofed containers so that just in case it was necessary to kick them overboard it could be done, although he (Walker) envisioned no problem. Walker also stated that he would be ready on twenty-four-hour notice to meet Webster or Wilets or any of the coconspirators at a pick-up point in Lower California. He asked for an advance of $250 to defray the costs of renting a boat but he did not receive this sum. On August...