Wiley v. United States, 8007.

• Decision Date: 20 April 1960
• Docket Number: No. 8007.,8007.
• Citation: 277 F.2d 820
• Parties: Jacob Ulmon WILEY, Eva P. Wiley, and Christine Wiley Deaver, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

277 F.2d 820 (1960)

Jacob Ulmon WILEY, Eva P. Wiley, and Christine Wiley Deaver, Appellants, v. UNITED STATES of America, Appellee.

No. 8007.

United States Court of Appeals Fourth Circuit.

Argued March 16, 1960.

Decided April 20, 1960.

Robert Leroy McMillan and Thomas A. Banks, Raleigh, N. C., for appellants.

Samuel A. Howard, Asst. U. S. Atty., Raleigh, N. C. (Julian T. Gaskill, U. S. Atty., Goldsboro, N. C., on brief), for appellee.

Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.

SOPER, Circuit Judge.

Jacob Ulmon Wiley, Eva P. Wiley, his wife, and Christine Wiley Deaver, their daughter, were charged in an indictment of five counts for violating the provisions of 26 U.S.C. §§ 4742(a) and 4744(a) with respect to the transfer of marijuana without having paid a special tax required by 26 U.S.C. § 4741 and without receiving a written order from the transferee. The transactions were charged to have occurred on diverse dates in June, July and August, 1958, in the eastern district of North Carolina. The accused were not joined as defendants in all of the counts. When the case was called for trial and before any evidence was taken counts 1 and 3 of the indictment were dismissed on motion of the defendants without objection by the United States and the case proceeded to trial on counts 2, 4 and 5.

Count 2 charged that on June 11, 1958, Jacob and Christine, in violation of § 4742(a), feloniously transferred 1382.30 grains of marijuana to Revenue Agent Richard M. Patch without receiving a written order from him on a form issued by the Secretary of the Treasury or his delegate.

Count 4 charged that on July 8, 1958, Eva and Christine made a transfer of 3835.90 grains of marijuana to the agent without a written order in the same way as charged in count 2.

Count 5 charged that Eva, on August 18, 1958, feloniously acquired 7 ounces of marijuana without having paid the tax required by § 4741.^*

At the call of the case the defendants pleaded not guilty and objected to a joint trial and moved for a severance but the motion was denied. At the conclusion of the Government's evidence and again at the conclusion of all of the evidence the defendants moved for a verdict of acquittal but these motions were also denied. The jury found the defendants guilty as charged and thereupon Jacob was sentenced to five years imprisonment on count 2, Christine to five years on count 2 and five years on count 4 to run concurrently, and Eva to five years on count 4 and two years on count 5 to run concurrently. These were minimum sentences under 26 U.S.C. § 7237.

The evidence on behalf of the Government tends to show the following facts. The three defendants live near Garner and Raleigh, North Carolina. The husband and wife live together while their daughter lives in a separate house nearby with her husband and children. She and her husband operate a store close to their house. On June 11, 1958, Agent Patch purchased 1382.20 grains of marijuana seeds, stems and fragments of marijuana leaves from Jacob and Christine, his daughter. The agent had previously met the three defendants at the daughter's store and had talked to Jacob about marijuana. Returning to the store on June 11th he talked with Christine, who told him that she had no marijuana but did have enough marijuana seed to plant four acres of land, and she explained the proper way to cultivate and harvest the crop. Later, on the same day, they were joined by Jacob and the three of them went to the rear of his house where he produced a paper bag containing two pounds of marijuana, of which Agent Patch purchased 1382.20 grains, which Jacob placed in a plastic cheese container and sold to him for $20.00. The material was subsequently weighed with precision and analyzed by the Government chemists and was found to consist of marijuana. On this and other visits made by the narcotic agents to the Wiley home in search of violations of the law the agents were assisted by one Alfred Blount, a special employee of the service who had an unsavory record as a violator of the narcotic and lottery laws.

On July 8, 1958, Agent Patch returned to the Wiley house and met Christine and her mother, Eva. In response to a request by him to buy more of the marijuana seed, Christine produced a paper bag containing about one pound of the substance and sold it to him for $50.00. The material was weighed in the presence of the two women and the agent on a set of scales produced by Eva and found to weigh about one-half pound. The agent did not present to the defendants either on June 11th or July 8th a written order for marijuana on a form issued in accordance with § 4742(a) of the Act.

On August 18, 1958, John L. Kelly, a narcotic agent in charge of the District Office at Greensboro, North Carolina, executed a search warrant on the Wiley house in company with several other agents, including Agent Robert W. Pope. At the time of the search all three of the defendants were present. Pope remained in the living room with the defendants while the other agents searched other parts of the house. He granted Eva's request to leave the room but stood in the doorway to observe her actions and noticed an attempt on her part to conceal upon her person an object which proved to be a brown paper bag. He called the other agents, who demanded the production of the bag and she refused until directed by her husband to produce it. The bag contained a quantity of marijuana seed, stems and fragments of leaves, which weighed approximately seven ounces. At that time, in response to questions, all three of the defendants stated that the marijuana had been brought to their home by one Daniel George, who raised marijuana on a farm between Selma and Zebulon, North Carolina. Prior to executing the search warrant Jacob Wiley, out of the presence of the other defendants, told Agent Kelly that "Dan had approximately twenty pounds of marijuana that he Jacob was going to sift that night." An objection to the last mentioned statement of Jacob was overruled but the jury were instructed that they should consider the testimony as relating to Jacob alone and should not regard it at all with respect to the other two defendants.

It was shown that during the period covered by the counts of the indictment in suit no one of the defendants had registered his name and place of business with the official in charge of the Internal Revenue District in which his place of business was located, as required by § 4753 of every person who is subject to the tax imposed by § 4751 upon every person who sells or deals in marijuana. Nothing was said to any of the parties on August 18, before their arrest, as to whether they had a written order or orders for the marijuana that had been transferred, but after the defendants had been taken into custody and were asked to produce the order form required by the statute, each one said that he did not have a form and could not produce it. It was also brought out that no form of order for the handling of marijuana had been issued by the Government.

Agent Patch testified on direct examination in respect to a conversation which he had with Christine on July 8, 1958, the day when Agent Patch purchased a half pound of marijuana for $50.00. He testified over objection that at the time Christine said that she did not have any marijuana that day but that there was a person within "hollering distance" who had a "nice crop of marijuana growing." She also said that she "had marijuana growing on her husband's peoples farm in Jacksonville, North Carolina" and that that crop would be harvested the latter part of August. This testimony was taken over objection and thereupon a motion to strike the testimony was made and granted and the jury were instructed not to consider the testimony of the witness but erase it from their minds.

The evidence on the part of the defense indicated that the defendants bore an excellent reputation in their community and had been engaged successfully in lawful occupations, Jacob as a shipping clerk, painter and part-time farmer; Eva as a housewife and teacher, with a college degree, in the public schools; and Christine as a housewife, mother of three children, and helper in the store conducted by her husband. But the defendants did not dispute the presence of marijuana in the Wiley house on the three occasions during the summer of 1958 mentioned by the Government agents, although there were differences as to the precise dates. Jacob's account was that on the first occasion he had found the seed in an old refrigerator in the house and had transferred a portion of it to Patch and Blount for $20.00, which was paid to an employee of Jacob and later turned over to him. He knew that marijuana could be grown from the seed. Eva admitted that she was present with her daughter when part of the seed was weighed and transferred to the agents and $50.00 was passed, but she testified that she did not participate in the transaction. She knew the nature of the substance. She also admitted that she knew where the seed was located on the third occasion at the time of the search of her house and tried to conceal it on her person. Christine denied that she was present at the time of the first transfer but admitted she was present on the second occasion when the stuff was weighed and $50.00 was left on the table in her mother's house. No testimony was offered by the defendants that they had paid the tax or otherwise complied with the laws regulating the possession or transfer of marijuana.

Notwithstanding this testimony on both sides, it is argued by the appellants that...