Williamson v. United States, 16067.

• Decision Date: 09 January 1959
• Docket Number: No. 16067.,16067.
• Citation: 262 F.2d 476
• Parties: Ulysses E. WILLIAMSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

262 F.2d 476 (1959)

Ulysses E. WILLIAMSON, Appellant, v. UNITED STATES of America, Appellee.

No. 16067.

United States Court of Appeals Ninth Circuit.

January 9, 1959.

COPYRIGHT MATERIAL OMITTED

Howard R. Lonergan, Portland, Or., for appellant.

C. E. Luckey, U. S. Atty., George E. Juba, Robert R. Carney, Asst. U. S. Attys., Portland Or., for appellee.

Before DENMAN, Senior Circuit Judge, and POPE and HAMLIN, Circuit Judges.

DENMAN, Senior Circuit Judge.

Ulysses E. Williamson, hereafter appellant, appeals from his conviction by a jury in the District Court for the District of Oregon on nine counts of dealing in narcotics in violation of 26 U.S.C. §§ 4705(a) and 4704(a), and 21 U.S.C.A. § 174.

The nine counts of which appellant was found guilty rose out of three transactions which occurred on September 21, 22 and 24, 1957, wherein appellant delivered certain amounts of heroin to one Gooder, a federal narcotics agent. Appellant was charged with the following three counts as to each transaction: (1) Selling narcotics not in pursuance of a written order form 26 U.S.C. § 4705 (a), (2) selling narcotics not in or from an original stamped package 26 U.S.C. § 4704(a), and (3) receiving, concealing, and facilitating the transportation and concealment of narcotics 21 U.S. C.A. § 174.

At the trial, narcotics agent Gooder testified as follows: He was introduced to the appellant on September 21, 1957, by one George Williams, at Williams' home in Portland, Oregon. Appellant drove Gooder from Williams' home to his own home in another part of the city. There appellant gave Gooder some capsules wrapped in cellophane in return for $50 in government advance funds.

The second transaction took place the following day, on September 22, 1957. Gooder arranged by telephone to meet appellant in the men's room of a Portland bus station. Gooder waited there until appellant entered and placed a package of capsules in the coin return slot of a public telephone. Gooder took them out and paid appellant $50.

The third meeting was on September 24, 1957. Gooder arranged by telephone to meet appellant at a Portland bus terminal "to take care of Gooder for three". They again met in the washroom. Appellant placed his package in the telephone coin return box. Gooder removed it and arrested appellant. On none of the three occasions did Gooder present appellant with a government order form, and on no occasion to Gooder's knowledge did the capsules come from an original stamped package. A government chemist testified that all three sets of capsules contained heroin.

Appellant's defense was that he was either entrapped or was not a seller but a "purchasing agent". Testifying in his own behalf, he admitted that on the three occasions charged he delivered heroin to Gooder and received payment from him. However, he claimed that he had done so because Gooder had told him he had a girl friend who was a narcotics addict and was at the time in need of heroin. He testified that he happened to know that George Williams (the government informer) had some heroin, and that he had, merely as a favor to Gooder, purchased heroin from Williams and taken it to Gooder, because Williams refused to deal directly with Gooder and that he had made no profit on the sales. He contradicted Gooder's testimony on the following points: First, appellant stated that they had first met not through Williams but by accident, at a bar. Second, when the first exchange occurred, he did not have the heroin in his home, as Gooder testified, but he had had to drive to Williams' house to get it. Finally, while Gooder testified that he had arranged the exchanges simply by announcing to appellant, in effect, "I need more," appellant's version was that Gooder had accompanied his requests with moving descriptions of the hardships of his addicted girl friend "up in Kelso". Appellant also described a narcotics addict he had once seen in the throes of "withdrawal symptoms", to indicate the source of his charitable impulses toward Gooder's girl friend "up in Kelso".

The lower court sent the case to the jury with the following relevant instructions:

"If, in connection with Counts I and II, you find that the defendant was not a dealer or seller of narcotics, but obtained the narcotics at the request of Mr. Gooder from George Williams, and that the defendant was only acting as an agent for Mr. Gooder and without any profit to himself, then the defendant would not be guilty of selling or giving away any narcotics, and your verdict should be in favor of the defendant. I leave it up to you to determine whether in Counts I and II the defendant was acting as the agent of Mr. Gooder and not as a seller of narcotics to Mr. Gooder; and if you find that he was merely the agent and did it as a Good Samaritan or as a friend without any profit to himself and that he got the narcotics from George Williams merely to help him out, then he would not be guilty of the offenses charged in Counts I and II."

The jury, rejecting appellant's testimony, returned a verdict of guilty on all counts. Appellant urges on this appeal that the lower court erred as follows: (1) in limiting appellant's cross-examination of the government narcotics agents; (2) in excluding certain expert testimony offered by appellant; (3) in stating to counsel, before the jury, that the issue in the case was whether appellant sold narcotics to somebody; (4) in denying appellant's motion for acquittal; (5) in striking certain words from the indictment prior to giving it to the jury.

The lower court did not err in limiting appellant's cross-examination of government witnesses regarding their relation with George Williams. Three government narcotics agents, Gooder, Wolski and Eck, who had participated in appellant's apprehension, testified at the trial. On cross-examination of agents Gooder and Wolski, appellant asked questions designed to clarify the role which Williams, the government informer who had "set up" appellant, had taken in the three exchanges of narcotics. The lower court ruled that this line of questioning was irrelevant.

Assuming that the defense of entrapment was raised below (although no instructions on the defense were requested), according to appellant's version of the transactions Williams could have been a participant in the entrapment. Appellant testified that he originally arranged for Gooder to obtain the narcotics directly from Williams, and only became involved in the transactions when Williams refused to deal except through the appellant. If this were true, and if Williams were acting as an agent of the government, it would undoubtedly have amounted to an entrapment. The relationship between the government agents and Williams was therefore relevant.

However, the government contends that the appellant lost his right to object to the lower court's ruling by failing to indicate this relevancy at trial. At the time of the ruling, appellant had not yet testified. Gooder's testimony was merely that Williams had introduced him to appellant. Thus at that point the questions had no apparent relevancy. The lower court was justified in refusing to permit them without some explanation by appellant. United States v. Easterday, 2 Cir., 1932, 57 F.2d 165. Counsel for appellant neither explained his theory of the facts at that time, nor, after appellant's testimony had introduced into the trial the question of Williams' role in the sales, did he attempt to recall agents Gooder or Wolski.

The lower court did not err in cutting off the testimony of appellant's expert witness, Dr. David. Dr. Norman A. David, a pharmacologist, testified to a number of matters on behalf of appellant. He told of methods of manufacturing heroin from morphine and described the "withdrawal symptoms" of a drug addict and the treatment given addicts at an Oregon State hospital. The lower court ruled that his testimony was irrelevant and ordered it disregarded by the jury. It subsequently ruled that the jury might consider it.

Since the court finally permitted the jury to consider Dr. David's testimony, any error in striking the testimony initially was cured. Moreover, the testimony was properly stricken. Appellant claimed that Dr. David's testimony as to "withdrawal symptoms" was relevant as corroboration of appellant's previous testimony regarding the addict he had seen in the grip of such a withdrawal. Since appellant's own testimony was clearly irrelevant — the fact that he was sympathetic toward needy addicts in general was no defense — the...