Hosley Berry v. United States

324 F.2d 407, 116 U.S. App. D.C. 375, 1963 U.S. App. LEXIS 4187

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 19, 1963
• Docket: 17752
• Status: Published

Opinions

DANAHER, Circuit Judge.

This appellant was convicted on six counts of violations of the narcotics statutes, 26 U.S.C. §§ 4704(a) and 4705(a) and 21 U.S.C. § 174. Thereafter an information was lodged setting out his 1954 narcotics conviction and upon his acknowledgement of that record, Berry was sentenced to serve ten years¹ on each count, all sentences to run concurrently, with a recommendation that he be sent to Lexington, Kentucky, for treatment.

On December 19, 1961 about one p. m., one Garrett, a Baltimore police officer was working “under cover” with Federal narcotics officers investigating narcotics traffic in Washington. That day, accompanied by one Hodge, Garrett entered an area much frequented by narcotics violators and addicts. Garrett had never met the appellant, but Hodge testified that for six or eight months, or more, he had been acquainted with the appellant. Berry was waiting for a street light to change at 13th and U Streets when Garrett and Hodge walked up to him. Hodge in the jargon of the narcotics underworld asked Berry if he had narcotics for sale and received an affirmative answer. Berry asked Hodge what he wanted. When told 15 capsules, Berry brought out a chewing gum wrapper, counted out 15 capsules and handed them to Hodge. Hodge paid Berry $22.50, and then asked Garrett how many he wanted. Garrett answered six capsules. Berry counted out the required number, poured them into Garrett’s hand, and received $9 as the price. These two episodes predicated the indictment, the first three counts involving the Hodge 15-capsule transaction, with counts four, five and six pertaining to the six capsules of heroin sold to Garrett. Both Hodge and Garrett testified and were cross-examined in complete detail as to their own status and identity and as to Berry’s possession, concealment and sale of the 21 capsules. Berry did not take the stand.

Handicapped by the odds against him in that state of the evidence, court-appointed trial counsel sought to found a claim that the arrest warrant was insufficient.² As a matter of tactics, he tried to becloud Garrett’s identification of Berry, developing on cross-examination that Garrett had learned Berry’s name from a photograph in possession of the authorities. But the prosecutor had interrupted and sought to prevent any possible reference to the photograph. In a bench conference, the trial judge cautioned counsel not to pursue his line of questioning as it might turn out to be harmful. But counsel believed, he said, that he could “tie it in with one of the theories of the defense we have.” Surely he is not now in position to complain when the witness finally answered that at the Bureau of Narcotics he “was shown a picture of Mr. Berry.” ³ The answer was definitely germane to the very questions defense counsel was pressing. To inject an additional element of the doubt which counsel was seeking to raise, he brought out — and argued to the jury — that Berry on some unidentified charge had been in jail from March 3, 1961, to December 12, 1961. Thus Hodge could not have seen Berry a matter of some two weeks before December 19, 1961, as Hodge had testified. The defense asked the jury not to believe that “within seven days after this naan was released from custody, he was back selling narcotics.”

In arguing a motion for acquittal, defense trial counsel referred to a conflict in the testimony. “The Court: That is a matter for the jury to decide on any conflicts.” Counsel: “What I am saying is, it appears to me that an instruction on entrapment — .” The judge ruled at once that there was “no evidence of entrapment.”

We are urged now to reverse on the authority of Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127 (1963). The facts here are not remotely similar. Hodge and Garrett walked up to Berry and asked if he had narcotics for sale. He did. He was in business. He had at least 21 capsules in his possession, concealed in a gum package wrapper. He made two sales directly to the two purchasers in the presence of each other.

“The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the permissible stratagems involved in the detection and prevention of crime. Thus before the issue of entrapment can fairly be said to have been presented in a criminal prosecution there must have been at least some showing of the kind of conduct by Government agents which may well have induced the accused to commit the crime charged.”⁴ (Emphasis in original.)

The trial judge ruled correctly. It is difficult to conjure up more complete ■evidence of two open and direct sales than we have here. Berry clearly was not entrapped into carrying a supply of heroin concealed in a chewing gum package, from which he dispensed 15 capsules for $22.50 and six capsules for $9, in “ready compliance” ⁵ with what looked to hum like a good opportunity to do some of the very business he was equipped and so ready to transact.

We find no error.

Affirmed.

1 . As a second offender, Berry could have received a sentence of not less than ten nor more than forty years on each of four of the counts, and not less than five nor more than twenty years on each of the other two counts.

2 . But officer Garrett had sworn affirmatively to the purchase of six capsules of heroin from Berry.

3 . Cf. McIntosh v. United States, 114 U.S.App.D.C. 1, 309 F.2d 222 (1962).

4 . Lopez v. United States, 373 U.S. 427, 434-435, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). In Hansford v. United States, we stated the principle thus: “A person is not entrapped when an officer merely presents him with the opportunity to commit an offense in order to detect criminality ratlier than to instigate it.” 112 U.S.App.D.C. 359, at 362, 303 F.2d 219, at 222 (1962).

5 . Fletcher v. United States, 111 U.S.App.D.C. 192, 194, 295 F.2d 179, 181 (1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962).