Whiting v. United States

• Decision Date: 24 November 1961
• Docket Number: No. 5811.,5811.
• Citation: 296 F.2d 512
• Parties: James WHITING, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

296 F.2d 512 (1961)

James WHITING, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 5811.

United States Court of Appeals First Circuit.

Heard October 2, 1961.

Decided November 24, 1961.

Jerome Medalie, Boston, Mass., with whom Julian Soshnick, Boston, Mass., was on brief, for appellant.

William J. Koen, Asst. U. S. Atty., Boston, Mass., with whom W. Arthur Garrity, Jr., U. S. Atty., Boston, Mass., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal by the appellant from a judgment of conviction on six counts of an indictment arising under 26 U.S.C. § 4705(a) and 21 U.S.C.A. § 174, relating to the sales of heroin to a government agent on three separate occasions at Springfield, Massachusetts.

The trial originally estimated by the attorneys for the government and appellant to last some three days consumed ten trial days and a record of some 1045 pages on relatively simple issues, apparently owing to conspicuous redundancies on the part of both counsel and the court's allowance of frequent lapses into obviously irrelevant matters.

The major testimony relating to the sales came from a government agent and the appellant himself. While there was a basic similarity in this testimony, there was a direct conflict on most of the material points concerning the events which actuated the appellant's deeds.

The Government presented evidence that on May 3, 1959 an agent of the Bureau of Narcotics regularly assigned to the New York office, was sent to Springfield, Mass. This agent testified that he went to the appellant's apartment and was admitted by the appellant's wife. After introducing himself, he testified that he informed the appellant's wife that on the previous day and in the company of a former friend of the wife — a certain Carol Brewer — he had visited their home but found no one present. In the guise of a tobacco worker from Connecticut, he engaged in a conversation with appellant and his wife about persons and places in Hartford, the former home of appellant's wife. He testified that almost immediately thereafter he broached the subject of obtaining heroin, that there was a brief discussion concerning prices and thereupon the appellant stated that he would contact "his man."¹ When a telephone call failed to reach "his man", the appellant indicated that he would take the agent to a location where this individual would likely be available. Thereupon the two left Whiting's apartment, proceeded to certain premises on an adjacent street and entered therein. Unable to locate the alleged contact at this address, the pair proceeded to another apartment house on another neighboring street. Here, following some further discussion relative to price, the agent gave the appellant $10.00. The latter ordered the agent to remain on the second floor of the apartment house while he proceeded to an apartment on the third floor. When he returned, he handed the agent two packages, later proved to contain heroin.

On two subsequent occasions, June 28 and July 10, the substance of the above transaction was repeated with the agent giving money to the appellant, the appellant — always out of sight of the agent — obtaining the heroin from a third party, and thereafter, delivering it to the agent. On each occasion, the appellant apparently obtained the narcotics from a different source. The agent testified that when Whiting was arrested he made the admission that he had made some profit from the transactions.

Appellant testified and set up the defense of entrapment. He readily acknowledged that he had obtained the narcotics for the government agent on each of the three different dates. He testified that the agent initially ingratiated himself by pretending to have met the appellant's wife on a previous occasion through a mutual friend. According to appellant, the agent said that he was attempting to obtain narcotics for a sick girl friend who was in urgent need of them. He told the appellant that his car had broken down in Springfield, that he was low on funds, that he had no other friends or acquaintances in Springfield and in view of these facts he was seeking help or assistance from the appellant. Appellant, according to his own version of the facts, offered to help the agent with his car but the latter declined stressing the fact that his most urgent need was narcotics for the sick girl friend. He testified that at first he refused but upon persistent urgings by the agent that his girl friend was "sick from the narcotic habit" he finally agreed to help him obtain the drug.²

Appellant further admitted that he had been personally addicted to the use of narcotics in the past but had finally succeeded in breaking the habit some months prior to the date of the first transaction. He steadfastly maintained that during the period of his addiction he had been exclusively a "user" and not a "pusher" or seller. He testified that he had never before obtained narcotics for anyone but himself, that he derived no profit whatsoever from the instant transactions and that he had no contact man or partner. He stated that in each of the transactions here in issue the narcotic was obtained from a different source — whichever source was then available at the time of his inquiry and search. In short, he sought to present the picture of a samaritan who was impelled to forbidden conduct by the coaxing, entreaties and persuasion of a government agent.

At the close of appellant's testimony raising the defense of entrapment, the Government reopened its case with rebuttal evidence tending to negate the defense. It is the admission of certain Government evidence at this juncture which presents appellant's principal contention on this appeal.

In rebuttal, the Government called Captain Collins of the Bureau of Crime Detection of the Springfield Police Department. Over the strenuous objection of the appellant, Captain Collins was allowed to testify that he had received four or five anonymous telephone calls to the effect that the defendant was selling and using narcotics. He later repeated this testimony by saying that the persons who telephoned him said that the defendant was a "source and user of narcotics." The Captain was allowed to testify that the telephone calls also indicated that the defendant had made frequent trips to New York City for the purpose of obtaining narcotics.

On cross examination Captain Collins admitted that the callers did not identify themselves, that he did not know if they lived in the Springfield area, nor whether they even knew the defendant.

Another Government witness in rebuttal was John Waddock, a Government narcotics agent. Again, over the objection of appellant, the agent was allowed to testify that one Carol Brewer furnished to him the names of approximately twelve to fourteen persons "* * * who were engaged in the narcotics traffic," one of whom was the appellant. Upon cross examination, this witness admitted that Miss Brewer — his asserted informant — did not tell him when she had last seen the appellant, whether in 1958 or 1959, whether she ever personally knew the appellant, whether she had ever seen the appellant in Springfield, or, indeed, whether she had herself ever resided in Springfield.

A further Government witness in rebuttal was James B. Kane, a sergeant in the Springfield Police Department. Once again over the repeated objections of the appellant, the court allowed Sergeant Kane to testify that one Lewellyn Dobson had told him that the appellant was selling and using narcotics. Upon cross examination, Sergeant Kane admitted that Lewellyn Dobson — the ostensible source of his information — was in police custody at the time of the conversation, and that the conversation took place at the police station. It further appeared that Sergeant Kane was unaware of whether Dobson had any personal knowledge of the appellant.

Throughout the foregoing testimony, appellant continually argued that such testimony was patently inadmissible as hearsay. The court while overruling appellant's objections and admitting the evidence continually admonished the jury that it was being admitted for limited purposes. Representative of these admonitions is the following statement of the court to the jury during the testimony of Captain Collins concerning the information derived from the anonymous telephone calls.

"The jury is to consider such testimony as may be obtained — may be admitted from this witness only for the purpose of determining if Peterson, the agent, had good cause to believe that the defendant was engaged in illegal activity involving narcotic drugs prior to May 3, 1959. It is to be limited to showing that Whiting had a predisposition to commit offenses involving the illegal traffic in narcotic drugs, and is being received in evidence — those answers which will be admitted in evidence at all — in view of the defense which is being relied upon by Whiting, that he was entrapped by the government agent into committing the alleged offenses charged in the Indictment."

Similar cautioning instructions were given by the trial judge to the jury concerning the testimony of Agent Waddock and Sergeant Kane.

After both sides had rested and before the charge, the court ordered struck from the record the testimony of Sergeant Kane and Agent Waddock relative to what had been told them by the informants Brewer and Dobson and instructed the jury to disregard it. However, the district judge did not strike the testimony regarding the anonymous telephone calls and Captain Collins' testimony on this matter went to the jury. Here on appeal, appellant argues that the court committed error in admitting into evidence the hearsay testimony of the three rebuttal witnesses to the defense of entrapment. He further argues that this testimony was so pregnant with prejudice that it could not be cured by an instruction to the jury to...