Walker v. United States

• Citation: 285 F.2d 52
• Decision Date: 21 January 1961
• Docket Number: No. 18254.,18254.
• Parties: Herman Carter WALKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

285 F.2d 52 (1960)

Herman Carter WALKER, Appellant, v. UNITED STATES of America, Appellee.

No. 18254.

United States Court of Appeals Fifth Circuit.

December 16, 1960.

Rehearing Denied January 21, 1961.

Bernard A. Golding, Houston, Tex., for appellant.

Robert C. Maley, Jr., Asst. U. S. Atty., Myron M. Sheinfeld, Asst. U. S. Atty., William B. Butler, U. S. Atty., Houston, Tex., for appellee.

Before CAMERON and BROWN, Circuit Judges, and ESTES, District Judge.

ESTES, District Judge.

Herman Carter Walker, Appellant (hereinafter called defendant), was convicted in a trial by jury on all four counts of an indictment. Counts 1 and 3 charging unlawfully and knowingly receiving and facilitating the transportation and concealment of heroin hydrochloride, a narcotic drug, after it had been imported into the United States contrary to law, knowing it to have been imported contrary to law in violation of 21 U.S.C.A. § 174; Counts 2 and 4 charging selling the heroin hydrochloride not pursuant to a written order in violation of 26 U.S.C.A. § 4705. Counts 1 and 2 concern a transaction that took place on September 10, 1959. Counts 3 and 4 involve a transaction on September 24, 1959.

Defendant's motions for judgment of acquittal at the conclusion of the government's evidence and at the conclusion of all the evidence were overruled; and the Court sentenced defendant to serve ten years, generally, which by reason of a previous conviction for sale and possession of marihuana was the minimum sentence permitted by law¹ on any of the four counts, and a Ten Dollar fine to be paid.

The questions presented are whether as a matter of law defendant was entrapped or was "a mere purchasing agent who purchased narcotics with money supplied by a `governmental informer' at no profit to him", whether the Court erred in refusing to submit to the jury the several written requests as to appellant's theory of the case, and whether defendant was denied due process of law.

Clifton Ray White, alias "Lovejoy", a government informer, testified that on September 10, 1959, shortly before 2:00 P.M. he called defendant on the telephone; defendant asked him what he wanted; and he told defendant that he wanted to buy some "stuff"; defendant asked him "how many pills did I want"; and he told defendant he wanted six. Then the informer called Bautista, a narcotics agent and advised him of the conversation and arrangements he had made with defendant. The informer met government agents Bautista and Ripa, was searched, received from them $42.00 in government funds for which he signed a receipt which stated the purpose for which the funds were to be used, and was driven to the drive-in cafe where he had arranged to meet defendant. The informer met defendant at about 2:00 P.M., conversed with him, then walked across the street with him where he handed defendant the $42.00. Defendant stooped down into a ditch and picked up a cigarette package which he handed to informer, who brought the package back to agent Bautista. In court, White and Bautista identified the package which was shown to contain six capsules of heroin hydrochloride.

Clifton Ray White, the informer admitted that he had a prior conviction of theft from the mails, that he had been using narcotics "on and off" since 1951; testified that he did not now use narcotics, was not under the influence of narcotics, nor did he use them on September 10 or 24, that he had been arrested by narcotics agents in August 1959, and was now free on $500.00 bond, that he had agreed with narcotics agents to cooperate with them because he felt it was his duty, that he had not been promised anything, though he had been told that they would try to be more lenient with him if he cooperated.

Agents Ripa and Bautista gave corroborating testimony on informer White's testimony. They observed White at all times after searching him before they let him out of the car near the drive-in cafe, during his meeting with defendant and during his return with the cigarette package to the car and Bautista and Ripa.

White testified that on September 24, 1959, he called defendant on the telephone and told defendant that he wanted to buy some "stuff". Defendant asked informer "how much stuff did I want", and informer told defendant that "I wanted to buy a paper". Defendant told White that he "had to have $60.00" for this amount, and informer told defendant that the price "wasn't but $50.00", whereupon defendant told informer "he had to have ten more for himself for his trouble." After agreeing on a price of $60.00, arrangements were made for a meeting in front of the Cotton Exchange Building at 12:00 noon.

White contacted narcotics agents Ripa and Kelly who met White in front of the Cotton Exchange Building. Agent Ripa searched informer, gave him $60.00 in government funds and had him sign a receipt which stated the purpose for which the funds were to be used. A "couple or three minutes later" defendant drove up to the meeting place; informer gave defendant the $60.00; defendant drove off and returned in about twenty minutes to give White a "paper of stuff" which White turned over to narcotics agents and which was identified in court by White and by Agents Ripa and Kelly and shown to contain heroin hydrochloride.

Agents Ripa and Kelly gave testimony confirming meeting, searching, providing funds to White, and observing defendant drive up in front of the Cotton Exchange Building. Kelly testified to observing White at all times as White approached defendant's car. Kelly observed defendant roll down his window, White hand something to defendant and then return to Kelly while defendant drove off; then defendant's return some thirty minutes later with White going to defendant's car, defendant handing something to White and driving away while White returned to Kelly without putting his hands in his pockets to give Kelly a cellophane package containing a powder which was identified in court by White and by agent Kelly, and shown to be heroin hydrochloride.

On November 6, 1959, narcotics agents Ripa and Bautista arrested defendant, warned him of his constitutional rights and had a conversation with defendant in which defendant said that he had been selling heroin capsules at $7.00 a capsule, that he had been purchasing heroin from an individual he knew as Curley, that he had used heroin with Curley, and that he, the defendant, would "cap it up"; and sell it to four individuals whom he named.

Defendant took the stand; admitted a prior conviction in New York in 1944 on a plea of guilty of possession of marihuana, which marihuana he said belonged to a man who had roomed with him, but "I was the one that got caught with it"; testified that in 1953 he had been "held" with his wife and had testified in a case based on heroin that had come through the mails to the apartment house in which he lived; that he knew heroin was contraband, obtained secretly and clandestinely through a contact.

Defendant testified that he had known White only since about July or August, that he had met Curley at about the same time in a cafe, that he had had conversations with White about the procurement of narcotics, that he obtained narcotics from Curley for White two times before the indictment transactions of September 10 and September 24, that on these prior occasions White "just asked me to go and get it," that White contacted him "mostly by telephone," that White just said simply that "he wanted to score"; that defendant "presumed he (White) used and wanted it"; that he called Curley because White asked him to, that when Curley asked defendant "where you at", "I usually tell him where I was". Defendant testified that he had had no written order for heroin and that he made no profit from these transactions, but that he "had some gas put in my car every now and then," and that "I got quite a lot of reimbursement for gas"; that before September 10 "there have been times when I have handed (heroin) to him (White)"; that he knew heroin was $7.00 a "cap"; that White went through him, defendant, because "I had a car", though defendant's car was not used on the September 10 transaction. In his testimony concerning the telephone conversation setting up the September 24 transaction when White complained about the $60.00 price, defendant said that White "usually said he would buy gas for me." Defendant further testified that White had said he was "sick" and "wanted to work that day and didn't want to take off, but he wanted to work." Defendant testified that he had never used heroin, but when asked on direct examination if he had told anyone that he had used it, answered: "Well, I may have told someone something like that, but I don't recall just telling him I had used heroin."

I.

Appellant cites Sherman v. U. S., 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. U. S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, and Wall v. U. S., 5 Cir., 65 F.2d 993, in support of his contention that He was entrapped by government agents as a matter of law.

As this court said in Washington v. U. S., 275 F.2d 687, 689, "under Sorrells, Sherman and Masciale,² the issue of entrapment is a question for the jury, unless as a matter of law the defendant has established beyond a reasonable doubt that he was entrapped * * In determining if there has been entrapment as a matter of law this Court has considered not only the predisposition of the accused but has weighed also the conduct of the government agents. Accardi v. United States."³ From a résumé of the testimony set forth above, including circumstances indicating that the relationship between White and defendant was casual, defendant was willing to deal with White by telephone, the clandestine methods employed by him in hiding narcotics in the ditch, his previous experiences with illicit dealings in narcotics and his own conduct in both transactions, the jury could reasonably have concluded that defendant was a person engaged in...