United States v. Lloyd Stanley Walton

283 floating drydoek sub of law that the ter judice America, owing a UNITED STATES of war- not a “vessel” Appellee, ranty of seaworthiness. v. Dry-Dock Cope Com Since v. Vallette Lloyd Stanley WALTON, Appellant. 336, 625, 1887, 30 pany, U.S. No. 22935. 501, before, Snyder Av. if not L.Ed. Floating Dry Dock, 1884, 22 F. Appeals D.N.J. United States Court dry- floating 685, Ninth Circuit. a it has clear that Cope is not v. Vallette 30, dock a “vessel”. Jan. 1969. supra, Dry that a Company, Dock held Rehearing 3, Denied June 1969. floating drydoek was not a “vessel” salvage. consid purposes same applicable a war to whether

erations are

ranty “A fixed is owed. seaworthines is, dry-dock such as this structure navigation, is purpose of used service, any salvage subject more not a pro a than or warehouse when is wharf Cope, jecting upon the water.” into 627, supra 337. at at 7 S.Ct. U.S. consti water does not

Mere flotation on purposes a structure “vessel”

tute salvage warranty of worthi nor sea exposure ness. The risk and element sea, necessary for hazards operation and common to both floating dry- upon principles, is absent Dry- Compare Cope v. docks. Vallette Co., supra 627-629, at

Dock 7 S.Ct. Sieracki, su Shipping Co. v. with Seas 93-95, 99,

pra 328 U.S. at “[ajttempts ordinarily un fix

While varying meanings le have a firm

[that] significance

gal ‘sea to such terms as

man’, ‘vessel’, must ‘member of crew’ grief facts,”

come Offshore Robison, supra

Company v. particular here difficulties are

presented. Drilling nothing in

We find Producers Company Gray, 5 Cir. v.

432, or Bernardo Bethlehem Com Steel pany, which 2 Cir.

requires departure rule from the settled drydoek floating vessel.

that a is not a barge, former with a dealt vessel, may Producers

is well settled be a

Drilling, supra F.2d at

Bernardo the was not called Court make. make the we here determination

Supra F.2d at

Affirmed. Abbey Wash., Seattle, Prince, After brief defendant. E. Robert Abbey and versation between appellant. part, in which took no Atty., Mi- Cushing, Eugene S.U. G. spoon offered sell heroin to Seattle, Atty., Swofford, U. Asst. S. chael then handed Ab- $75.00. appellee. Wash., for bey paper containing a bindle narcotics. MADDEN, Judge of the Court Before testing After in the narcotics the ELY, Cir- Claims, HAMLEY and and Abbey paid washroom, restaurant defend- Judges. cuit from ant advance $75.00 funds. then Defendant offered to sell Judge: HAMLEY, Circuit Abbey agreed they more narcotics Stanley appeals his Lloyd from Walton place p. to meet at the same at 8:00 m. following jury all trial on a conviction evening complete a to similar trans- charging four of an indictment counts Agent action. Ferro and Police Seattle and tax laws. narcotics violations the Kurttila, Officer Richard B. seated away, transactions, a few alleged feet witnessed the trans- There were two action, including exchange of occurring September the nar- noon on one about currency, Cottage cotics and 20, 1967, but could not hear at the the bar the Restaurant, conversation. in Madison at Fifteenth and Seattle, Washington, other about Abbey The second sale defendant evening place. 8:30 that at same place same was at the about consummated pertained to the first transaction p. evening. Bishop 8:30 not was m. alleged defendant, under- sale an present for second transaction. agent cover Federal Bureau Agent Ferro, Officer Kurttila and Seattle grams Narcotics, in of .431 heroin Henaby, Police Officer William Ab- saw (1964), and violation of 21 U.S.C. § bey together and defendant in the restau- 4704(a) of section the Internal Revenue enough rant but were wit- close amended, 26 Code of as § U.S.C. ness the second transaction. 4704(a) (1964). The second transaction sole Defendant’s defense was that of alleged by defendant, related to the sale entrapment. jury His counsel told the agent, to the same undercover of .924 opening his statement grams heroin, in violation of deny the transactions oc- same statutes. curred. Defendant himself testified trial, The evidence received at engaged in the two transactions. light sidered most favorable appeal argues On this defendant first Government, warranted speedy a he was not afforded trial finding as 11:30 on follows: at a. m. guaranteed by as the Sixth Amendment. September Ferro, Joseph V. argument regard Defendant’s with de- Acting Supervisor of the District Federal lay may possibly also be read invok- Seattle, Bureau Narcotics in received ing the Due Process Clause of Fifth telephone a call from Julius Amendment. informant. told that Bish- Ferro guar- Insofar Sixth Amendment op company then of a seaman speedy concerned, antee of a “Stan,” named who had narcotics delay slightly arranged sale. Ferro more than four months between Novem- Agent Aubrey Abbey introduce Narcotic charge ber 1967, when a formal day, to Stan at noon at on the Cot- lodg- the form of a secret indictment was tage prospective Restaurant, as a cus- against him, 18,1968, ed and March when tomer. the trial commenced. Benson Unit- See v. Abbey Cir., ap- States, 576; entered the ed restaurant at Lucas v. proximately p. joined m. 12:10 Bish- United op pre- on at the defendant stools coun- Insofar as the Due Process Clause ter, delays (see Woody at which introduced time cludes unreasonable U.S.App.D.C. Abbey the heroin he sold to span 20, 1967, 214) Abbey September critical time al- on noon According period Septem- Hong Kong. most six months’ came from 20, 1967, Abbey, could have in- said that heroin ber day arrested, 18, 1968. in the second on that and March volved sale Inchon, from testi- came Korea. Defendant does assert seaman, fied who was charges against barred are planned told him that he return being the statute of limitations. This 23, 1967, September that he sea upon case, it was incumbent bringing into additional narcotics promptly court, assert, the trial country. agreed de- being deprived of claim that he was large return, Abbey, liver to right speedy Amendment Sixth quantity of narcotics. trial. Defendant made no such claim in According Abbey’s testimony, to de- regard to the district court with the may also advised him that defendant speedy guarantee fendant and therefore successfully peddling had narcotics been ground not obtain relief on in this years for the while he was last sixteen court. Benson See v. United supra. a seaman. testified that defend- procedure him that his in sell- ant Concerning process aspect due the brought ing narcotics was as follows: he not, delay, in the defendant country the narcotics into the from the court, the district seek dismissal of ac Upon arriving ship. Far aboard East tion, delay but contended the defendant would inability to contributed the Govern go Oregon, Portland, to his home informant, produce ment to Julius pick up Cadillac, journey down the Bishop, as a witness. will there We coast, pick up heroin had process aspect fore consider the due ship been taken off the for him others. delay discussing problem defend He then make deliveries to his appeal. ant’s second contention on this customers. deprived That contention is that he was On the trial, of this information proc basis of a fair and therefore of due Abbey’s arrangement, Amendment, office determined ess of law under the Fifth postpone to arrest. defendant’s This was because to the Government was unable that, pursuant cooperative done so produce to informant, Julius arrangement with the United States a witness.1 Defendant that Bish asserts Customs, Bureau of an effort op could be would have corroborated his conten identify foreign made to defendant’s entrapped. tion that he was supply. expected sources of It was The Government did not arrest defend- accomplished this could be with the as- September 20, 1967, ant on because en- sistance of the Federal Bureau of Nar- hoped that, by keep- forcement officers agents Hong Kong Bangkok, cotics’ ing period him under surveillance for a and Seoul. time, supply the latter’s source of could be discovered and cut off. The While, according Abbey, to defendant expectations regard Government’s in this expected ship September 23, on out predicated mainly upon agent were Ab- that he did not defendant testified bey’s report of the conversation he had year. do so until October of that with defendant at the time the second federal enforcement officials thereafter September 20,1967. heroin on transaction enough maintained surveillance to learn by Abbey (but

As testified in sub- was aboard the S. S. stance BUCKNELL VICTORY defendant), denied docked defendant delay fact, argue ness, If, constituted a defendant intends denial of due process, relationship urge that, apart his failure to so from the the dis precludes delay inability trict court relief and the of the Govern here under the applied Benson, supra. produce as a wit rule the informant ment Bishop’s appearance subpoena for shortly mid- before Francisco at San investigator employed trial. Arrangements An December, 1967. dle agen- nor but neither he United States federal made between had Bishop. ship Marshal’s office could find permit leave defendant cies ap- search, cursory defendant awith The defendant moved that ship search parently before left the produce Bishop Government be ordered made, free and clear person was of his as a witness. This motion was denied. surveillance. of immediate However, upon court, demand by Bishop the statements made De> about Seattle reached agents concerning Septem- narcotics Bureau The Federal cember ber 1967 transactions were read to this verified thereafter of Narcotics soon court and shown counsel for de- acting undercover Abbey, in an fact. prior fendant trial. The inform- capacity, occasions tried several ant’s statements corroborated telephone the testi- through the contact mony of the Government witness sum- supplied, but was number opinion. marized at outset January Therefore, on unsuccessful. opening appeal In his brief on to terminate decided it was investigation defendant. and arrest concedes that were these statements work required careful detective some helpful to defendant.3 He also makes whereabouts, but track down defendant’s it clear that the defendant does accomplished and arrest was the this was suppress- Government tend the February 1,1968. made ing concerning Bishop’s information whereabouts. trial, court district the Prior granted Gov- defendant’s motion that the above, The circumstances described the known ernment be ordered make especially defendant’s concession last of the informant. name and address to, referred establish is this not a complied order.2 with the Government application case for of the rule that a Bishop, informant, However, Julius the prosecution fair trial is denied where the could not found be at the address. suppresses material evidence favorable advised the court The Government accused, good irrespective an or any information defendant if prosecution.4 of bad faith the cerning Bishop’s whereabouts came officers, question remains whether the the of law enforcement un- attention availability deprived immediately conveyed to of the the informant it would be contemplated defendant of fair trial court. No such infor- the the by Due mation the Process Clause of the Fifth was obtained. sought authorizing Amendment. and obtained orders While defendant also in- employ right vokes the Amendment use Government funds Sixth to be against investigator attempt him, an in an to locate confronted the witnesses authorizing of we think our issuance consideration fair also subpoena against problem here con to be issued tbe in- 2. We therefore have no privi However, important cerning formant. the most “informer’s so-called States, something lege.” the trial nor 353 item court Roviaro v. See United over, 639; Mc the Government had control 1 L.Ed.2d U.S. 77 S.Ct. disappearance Cray Illinois, and the failure v. U.S. informant, appear trial.” 18 L.Ed.2d applied Brady appeal opening 4. The rule is stated and In brief on Maryland, 83, 87, v. U.S. also states: also, See 10 L.Ed.2d 215. Lee trial was most fair “The court Cir., 737, 738; granting his motions for the identity in- Thomas v. United and whereabouts formant, authority funds to 53-54. use investigator employ a and to order an had dispositive a crime one who commission of problem also be will predisposition no to do so.6 claim.5 Amendment Sixth this recognize initially that an undisputed We must The record position a different informant stands agent, Abbey, presented its Government ordinary witness whose from that an prospective a narcotics customer testimony may he because be material arranged to him introduced to de just happened the scene. apparent fendant. is therefore purposely used Government agents defend the Government afforded evidence, opportunities obtain Government commission of ant But, question. as indicat greater responsi- the offenses must assume therefore entrapment above, ed un did not occur bility producing as a witness beyond effort less the Government went ordinary with an than would case be and, by persuasion or means Moreover, must also con- witness. we pressure, induced defendant to commit circumstance the Gov- sider though pre had no the offenses even he arresting delay in ernment’s disposition to do so. The justified, may have contributed however proving, beyond had the burden a rea produce Bishop inability to to its later doubt, persuasion sonable such as a witness. pressure or was exerted.7 These two factors east ample sup There was evidence one of whether defendant port implicit jury finding trial, ordinarily fair convic agents persua did not exert solely tion is not to be because reversed pressure sion kind in effort an accused find material could to induce defendant the of commit inquiry witness. And since the ultimate fenses. Walton does contend other trial, is whether defendant had a fair Instead, argues, effect, wise. controlling consideration is whether testify, if had been available possibility that, there is a if reasonable possibility there is a reasonable that Bishop testify, had been available de to beyond the would not have found a fendant would not been convicted. doubt, reasonable that the Government agents engage persuasive did not in such above, As indicated defendant efforts. participated conceded that he in the two drug narcotic sales which occurred agree. We do not Defendant’s September 20, 1967. His defense own established that the Gov entrapment. Entrapment is shown agents go beyond ernment did not the agents go beyond where Government affording mere opportunities or facili affording opportunities mere or fa ties for the commission of the offenses. cilities the commission of the offense being case, This there is no reason- persuasion pressure and exert possibility Bishop’s testimony able one kind or another which either scope induces toas of the Government’s 5. No decision has been called our Quong to atten States, Check v. United 82 U.S. which, regard App.D.C. tion in 8, without to whether 251, 160 F.2d 253. prejudiced, the defendant was the Govern inability produce ment’s an informant States, 6. See Sherman v. United 356 U.S. deprive as a 369, 372, witness has been held to 819, 848; 78 S.Ct. 2 L.Ed.2d right defendant of the States, to confront the wit 435, Sorrells v. United 287 U.S. against contrary, 210, nesses him. 413; Quite to the 53 77 L.Ed. Nordeste showing prej where has been States, Cir,, there v. United 393 F.2d 338. udice, appears the rule to be that right Sixth Amendment vio States, has not been Cir., 7. Robison v. United 379 F. See, example, McCray lated. 345; v. Il 2d Notaro v. United linois, 300, 313-314, Cir., 386 U.S. 62; 18 L.Ed.2d D’Ercole v. United 211, 212; Dear Bishop then nar- that he drove defend- and to involve defendant effort Cottage car ant’s to the Restaurant. to defendant’s or as cotics transaction Abbey, About ten minutes of that later whom offenses commit predisposition to know, jury- implicit defendant did not arrived. to an led kind would have Abbey on a entrapped. and carried brief conversa- finding defendant, According tion. length concern- at Defendant testified gave him to the assurances effect September ing transactions the two Abbey legitimate awas customer. testify that didHe Abbey introduced to defendant making him into to him talked came and personally make declined the sale had customer to some sale Abbey. So, testified, as defendant defendant, According all mind. Bishop initially “nothing do, there was I I else could so to him come did was to * * give meaning to him [sic] it if defendant and ask bar a Seattle gave Abbey package that he meaning “stuff,” heroin. According Abbey heroin. he answered Defendant testified gave seventy-five De- dollars. “no,” initial contact ended the and Abbey fendant testified that he told between the two. he did whether the know heroin was epi- next testified Defendant good belong me, “because didn’t any- Bishop nor * involve * *» sode rather seaman. alleged connected one else to have testified met that he the sea- testimony was Government. His with the p. m., man at a bar about “I 2:00 and time after above-de- that, a short give money.” [sic] exchange Bish- him and scribed op, transaction, toAs the second which oc- had seen a seaman whom evening, curred that same defendant tes- approached in Vietnam giving proceeds tified that after De- “stuff.” he had some bar said the first seaman, transaction to the that, armed testified fendant further gave package latter him another seaman, information from with this heroin. Defendant later went bar, still he went home went to bed. About 8:00 reported had told de- the seaman evening Abbey o’clock in telephoned fendant. to him and reminded defendant that defendant, Bishop According supposed latter to meet which con- then made “deal” seaman templated Cottage Restaurant at time. would obtain the seaman Defendant dressed and went heroin hand it to defendant. some Abbey. restaurant where he met Bishop go with Defendant would present. gave was not bey Ab- place would to where defendant another package the second heroin, and give Bishop, to and the latter the heroin Abbey told that he “didn’t know for sure party. Defend- sell it to third would was, it but for him to test it.” to he receive ant testified that Abbey went to the washroom and tested twenty-five part for his dollars purity, it for paid and money thereafter that, He further testified transaction. They to defendant. had fewa drinks to- left, deal, pursuant the seaman to this gether then left and the restaurant. get presumably narcotics, and to The lack of effort the Govern- Bishop telephone call, presumably made a persuade ment to engage defendant to Agent Ferro, to as described above. narcotics sales is thus revealed his According testimony. seaman any persuasion to own Without part the bar then returned on ready he was package gave seaman defendant a facilitate a transaction containing heroin. Defendant testified and the willing seaman.8 par- He was In this connection see Masciale 2d where the Court said: “It is note- worthy 356 U.S. L.Ed. that testimony nowhere in did ticipate consideration of therein for a effect that he did not so advise the twenty-five agents, given or dollars. He exhibited the that he would other have misgivings testimony tending customary characteristic of show peddlers predisposition did not narcotics when introduced to have a kind prospective question. new customers. He knew in might might “good,” heroin or not be that We consider this contention notwith- surprised Abbey not took when standing the conclusion stated above that it to restaurant washroom make ques- did need to reach suggested Abbey In fact test. he that predisposition, tion of since we cannot package test the second He heroin. that it be sure did not consider issue. that noticed, surprised, any experi- and was as However, in view of all of circum- peddler be, enced narcotics would above, stances related we do not believe Abbey newspaper did not use a hide possibility that there ais reasonable that exchange currency. narcotics Bishop, given available, if would have during Moreover, of his the course probative testimony to the effect he that testimony, used, or demon- agents, did so advise or understanding of, the nar- strated given tending testimony would have other by experienced traf- jargon used cotics to show that defendant did not have a “stuff,” “spoon,” fickers. Such terms predisposition question.11 of the kind in him.9 familiar to and “bindle” were Defendant’s third and final con that whether We therefore conclude appeal tention on is that the trial court predisposed to commit not defendant was failing hearsay erred in strike tes question, kind here in offenses of the timony Agents Ferro and testimony by his own he has established to what and other informants entrap him. Government concerning predisposi them defendant’s that, trial, at the the Gov- is true tion to traffic in narcotics. entrapment de- ernment countered the Agent asked, When Ferro was first only by made fense not evidence that rebuttal, whether he had received infor- persuade com- effort concerning propensity mation of de- offenses, evidence mit offenses, commit fendant such coun- predisposed to commit defendant was objected ground sel for defendant on the connection, In such offenses. called for a conclusion part the testi- relied objection of the witness. This sus- mony Agent Ferro to the effect that tained. Ferro was then asked a series told him defendant was a questions produced argues narcotics trafficker.10 Defendant effect, here, the effect there is reasonable in- another possibility available, if formant had told him that defendant was given probative testimony supplying peddlers narcotics to in Seattle. petitioner during state the conversa- Larry Johnson, from “Owl Face” no men- * * * agents] being [Government tion either Bishop. tion made of persuade him the nar- tried to to enter 387-388, traffic.” cotics U.S. 11. There are also additional circumstances supporting at 828. this conclusion. We know that Bishop arranged meeting for the Upon being Abbey 9. where he learned the actually asked and defendant which oc- meaning “spoon,” testified, hardly arranged defendant curred. He could “From the seaman. told me he had knowing He this without ground. of defendant’s back- spoons.” two Bishop We also know that if had contrary testified to the information Fer- Agent Bishop given concerning that he received ro said had him 10. Ferro testified concerning predisposition, information defendant’s defendant’s this propensity he would have un- from and another confronted with his written state- Abbey Agent testified ments which mony informant. corroborated Ferro’s testi- named regard. in this he received information to his effect objec- replied, Abbey had infor- for no “We Counsel defendant offered received regarding approximately, questioning. mation maybe him for line of tion to this Later, prior.” four the months on testimony by had been After this Ferro examination, cross counsel asked same Abbey fully developed, prosecutor the asked indicating what he had records anything Ferro whether said leading Abbey suspect referred him as to the “Stan” whether Abbey re- was plied, narcotics trade. by the was same “Stan” effect, that an informant the previous con- had to in referred area, than had told Seattle other during the summer versations with Ferro him that at sea “Stan” was and would “Yes,” of 1967. After Ferro answered bring return to this narcotics on his defendant, for for first time counsel country.13 objected ground question on the that the Likewise, Ferro ini- was under hearsay. for not move called Counsel did examination, prior tial cross to his recall testimony previous strike witness, a rebuttal counsel for defend- given, Ferro had as described above. him he that de- ant asked where learned objection When Ab- overruled. was dealing parties fendant was with other bey line was led over the same thereafter replied, the area. Ferro “From other in- inquiry, offered for counsel defendant formants.” for Counsel objection. continued this line of cross examination questions series of While whole testimony and drew from Ferro the Abbey called for asked Ferro and for he “had information” concerning several months hearsay testimony admissi and was not other narcotics defendant’s hearsay any exception to under ble rule,12 activity in de- the area. Counsel sufficiently point not surprise express did fendant ob- preserved to to raise entitle defendant taining hearsay questions answers to his here. Abbey ex- asked of and Ferro on cross amination, nor he seek to strike Moreover, defendant was hearsay questions brought forth. his own aggrieved hear admission of this accordingly reception that the We hold say had because counsel during hearsay, of the described received already, examination, on initial cross testimony Abbey Fer- the rebuttal ro, hearsay. elicited Counsel similar reversible error. Abbey long how he had asked suspect. Affirmed. considered defendant narcotics however, holding decisions, objection trapment 12. The trial court overruled the negate entrap proof inquiry ground burden of wheth- on the Government, trapment grounds on establish is had reasonable er officers predisposition predisposition the critical issue had a to believe defendant not whether facet of that rea- defense to traffic in narcotics. court testimony rea who induced the accused had officers soned therefrom that Ferro’s grounds concerning believe he had such sonable de- told did, propensity, propensity but whether fendant’s was intended fact, they propensity. Robi have such a See advice received demonstrate what Cir., v. United son from a informant and estab- reliable not to 345; Notaro v. Ferro. lish the truth of what true, testimony If would not this were hearsay. bo Similarly, language had been recalled after There is in at deci- least one testimony tending support for rebuttal the Government sion of this court predisposition examination coun- and was under cross view that in- the critical quiry latter from sel for drew officers had reason- whether that, during xlbbey grounds had a able to believe accused predisposition Owl with a trafficker named commit offenses of this versation Larry Johnson, Ab- told Johnson kind. See Trice v. United 9 Face bey en- would sell narcotics. The recent F.2d 516. more jury obviously believed, ORDER testified Walton him that he (Walton) had rehearing petition for is denied. successfully peddling been narcotics for HAMLEY, Judge (concurring Circuit years. According the last sixteen denying petition for re- in the order Abbey, proce- Walton revealed the exact hearing) : bringing he dures followed narcotics purpose Hong Kong the sole of this concur- Since from uting and Korea distrib- ring opinion comment them in the Pacific Northwest. denying petition credulity dissent the order taxes to believe that such man rehearing, read for be unlawfully entrapped by the dissent should could have been may first. Bishop on what have told him the morning September 20, of An ad- 1967. of violations was convicted two Walton why plain no ditional reason there was He was of the narcotics tax laws. point error is set forth under 4 below. given concurrent Walton’s sentences. entrapment. re-With defense was proof. an 2. Failure to make offer of transaction, gard oc- to the which first At the permitted should have been trial Walton 20,1967, September curred noon on about testify conversa- to his entrapped alleged Walton that was Bishop prior nar- to the first tion with Aubrey Agent Abbey and a Narcotic However, no offer of cotics transaction. informant, Bishop. Julius demonstrating proof that such was made present time of not at the was anything testimony have revealed would transaction, place the second took significant regard entrap- to the with day. evening of the same Walton’s in allegation Accordingly, ment have defense. we entrapment on occasion of ascertaining way of the errone- whether therefore limited activities was objections sustaining to these ous Agent Abbey. questions prejudicial For to Walton. exclusively know, testimony concern- The dissent is directed all we ing Bishop’s Walton’s court in the asserted error conversation would testifying wholly as to from preventing Walton innocuous. they met at told him prop- questions The fact that were prior transaction. to the first a tavern make an the failure to er does excuse following I do be- reasons For proof. prej- offer of On entitles Walton this error lieve asserted problem does not involve the udice the rehearing and a reversal to a propriety questions, whether : victions testimony they would have elicited peti time Point raised helpful party in whose behalf the first for rehearing. question was This tion Only questions offer of were asked. appeal, briefs on not raised Walton’s proof would have revealed this. argument, advanced in oral but was nor accept brief Walton asks us to two position first time (cut excerpts off or from his ought rehearing. question therefore court) aas substi- stricken the trial in now it unless considered be proof. for an of these tute offer of One Higa plain Transocean error. volves Airlines, Cir., excerpts to the effect that F.2d buy pieces” from “two of “stuff” rehearing; v. Gree Mitchell petition for other the effect Walton. The nough, Cir., go to with wanted Walton that the exclusion I not believe do get unnamed from an “stuff” af- plain error this evidence constituted seaman, more and that wanted 52[b], rights (Rule fecting substantial “stuff.” Procedure), of Criminal Federal Rules accept if of testi- thereby Even these permitting consideration we bits my mony proof, plain As offers question at time. stated this Agent Abbey, opinion character whom that remarks opinion, Narcotic any tendency to about conversation had by no with have made unlawfully entrapment en- relevant to the de- was that Walton show But, instead, opinion, en- fense. came counsel back trapped. As stated question (the question) with a third trapment where is shown affording of which contained a beyond go number of agents mere recitals judge com- trial which the was in or facilities warranted opportunities rejecting. persua- exert the offense mission or another pressure of kind one or sion Counsel then proper asked Walton a crime of a the commission induces which (the question, question) fourth “What do so. disposition to by no had one who .Bishop you you did Mr. state to once informed him that the Walton, seaman had this anything else said If ” began stuff? Walton to make an un- entrapment, there to show tended responsive answer. His own counsel cut proof cover- an offer have been should ing by repeating him off proper question his Fiano v. it. See (the question). fifth frag- Walton answered On objection, saying: without proof that mentary offer informal piece, “That he would take a excluding he wanted made, prejudice was piece, people he had some that wanted shown. was quite bit.” there If Any cured. error was Counsel then asked excluding Walton this whether prejudicial error was get trial, asked Walton piece this during the course evidence (the from the seaman question). sixth re- court trial when the cured “Yes,” objec- Walton answered without permit Walton opened the trial tion. But then Walton went on to concerning him make made testify remarks unresponsive comment about the sea- seaman. by Bishop and the unnamed man, again properly and he was stopped re- the entire Upon consideration by judge. the trial This ended Walton’s trial, reopened transcript porter’s examination his counsel as to dissent, I do quoted footnote to the in a Bishop. versation with The seventh and unduly re- agree that Walton was eighth questions, pertaining to Walton’s testimony. giving such stricted seaman, conversation with were an- objection. my swered without opinion In questions Walton Eight were asked may testifying be Walton was limited reopened during trial. question his conversation rejecting with that, either first nothing signifi- seaman—he just trial had after that asked Walton reopened, unnecessarily report cant to entrapment relevant to the court testimony. defense. That Walton’s restricted you please Walton, would “Mr. question: quotes The dissent a remark conversation to the Court forth set trial court to the effect that Walton yourself Mr. transpired between permitted be tell what the sea- * * *” probably should Bishop at. man said to Walton. The dissent seems off. been cut not have making point to be the trial thereby preventing court respect cured in this Walton error But testifying cutting (rath- from when, off the as to what later moment obviously seaman) er than question, which was said. But this re- second “Why judge don’t mark the trial court leading, was made the trial said: with unresponsive to a reference to Walton’s attention you testi- direct [Walton’s] mony (in you subject question) want answer to specific matter which sixth “Yes, about, go along the seaman then ask refused him to talk ” above, counsel with it.” Had As indicated ? the conversation Walton was relate permitted testify himself accommodated toas what for Walton Walton told could asked him. suggestion he

294 only by gov- attended Any to the con- the intervention of a error related agent narcotics trans- ernment casts burden viction based on the first beyond prove, prejudicial to error a reasona- action. If there was doubt, testify entrapment refusing to ble permit to not occur. to Walton States, him, only Notaro it related to v. United 363 F.2d 169 (9th 1966). Septem- Cir. the first narcotics transaction present 20, ber testify Walton undertook his own evening made his sec- Walton defense, beginning, but in the the Court anything Abbey. could ond sale to How prohibited relating him from the conver Septem- at noon on to Walton said sations, entrapping, claimed to have been 20, 1967, reference to a nar- ber with government agent. which he had with shortly to be consum- cotics transaction brief, supplemental In its the Govern “en- Abbey, mated between Walton ment, citing States, v. United 212 Silva trap” second reference Walton with (9th 1954), F.2d v. 422 Cir. Trice Abbey in had with transaction Walton States, (9th Cir.), United 211 F.2d 513 p. m. that at 8:30 the absence of 222, denied, 900, cert. 348 U.S. 75 S.Ct. evening ? (1954), 99 L.Ed. 707 effect concedes concurrent. were The sentences original evidentiary ruling first trans Therefore error as judge the trial mistaken. The trial action, have infected could not which judge recognized ultimately the error of second, noticed. Lawn need not be ruling. recognition developed This 359, 339, States, 78 U.S. United trial, during near the end of the a dis 321; United Sinclair v. L.Ed.2d concerning appropriate jury cussion in States, 279 U.S. evidentiary Reopening of structions. 692; United 73 L.Ed. Mendez v. proceedings was allowed the ex 652; Cir., Head v. pressed purpose permitting Walton Cir., 194, 196; Broth present as to the content States, 9 ers v. United allegedly entrapping of the conversations. adjured, by judges Rule are 157. Federal The Court remarked: 52(a), Proce of Criminal Federal Rules Jury, the Court has “Members error, defect, dure, disregard any ir granted opportunity the defendant regularity which does variance examining reopen purpose rights. affect substantial permitting the defendant and testify respect with to conversations Judge (dissenting): ELY, Circuit informant, Bishop.” he had with the appellant’s reveiwing Petition After however, Court, erroneously The failed supple- Rehearing, parties filed purpose. allow fulfillment the stated My request. court’s mental briefs at perceive, For I some reason which cannot briefs, together my study of with these immediately thereafter, the Court record, convinces reexamination objection having interposed without my original me that I was mistaken prosecution, again prohibited reached in the concurrence in result relating Walton from the conversations challenged opinion. which the had been led believe presented only the ac- The defense forthcoming. Court, again would be entrapped had been cused was that he reversing itself, remarked to Walton’s into the his offenses commission counsel: disappeared government agent who going permit you “What I am to do during long time interval is to have him tell what the seaman alleged entrapment occurred when the government agent] the' [not said to eventu- and the Walton was times when (Emphasis added). him.” ally conducted. arrested entrapment is as- Obviously, When the defense one who claims to have been entrapped testify permitted serted, showing offense was should be irregularities I have out- the Govern- with his conversations about agent, entrapping other- alleged significance, think, ment’s I lined were such never could wise, entrapped defendant required. The that a new trial should be he and if his defense establish proceedings reopened full record agent involved entrapping were me, margin.1 it forth in the To is set entrap- and entrapping conversations imposition of restric- reveals the such here, be- disappeared, agent as ping of Walton’s tions the introduction trial. the time fore following the with Mr. that conversation morning, Mem Good “THE COURT: Bishop you approached a were later Jury, record Let the Counsel. bers you went You state seaman. his Counsel and the defendant show had some drinks and sat back down jury present present and the in court are Bishop. with Mr. jury box. Jury, has the Court per- No, “Members I shall not “THE COURT: opportunity to granted time, you speech to make a at this mit examining the purpose reopen Prince, you jury. want Mr. before this If testify permitting him to Bishop said to to ash him what Mr. respect he had loith seaman, permit to conversations concerning with I will him you permitting Bishop. informant, you I am argument your to ask that. In that, the testi- I allow say you and will do him to about the testi- can mony, what want proving purpose mony, going you not for I to let make am not Bishop anything as said speech truth kind here now. of that pur- but for related pose Yes, Your “MR. PRINCE: Honor. enabling you what to consider (By Prince) Mr. Mr. Q What did him said to said that you you informed state to once you his to determine to enable in order him that the seaman had this stuff? question of intent and the of mind state Well, Bishop approached A me Mr. you with instruct hereinafter I will morning. about some stuff that respect term. to that question. You Q Just answer your you, Thank “MR. PRINCE: Mr. have testified as to this. What did you Walton, Honor, take the will Mr. say you you once told him that ? stand the seaman had some stuff? WALTON, piece, the de- A That he take a he want- STANLEY would “LLOYD fendant, piece, people witness re-called as a some ed he had behalf, quite and testified was examined a bit. wanted own you get piece as follows: Q in surrebuttal Did ask further he under are still You from the seaman? “THE CLERK: Yes, go oath, A Mr. Walton. and the seaman refused to along with it. EXAMINATION “DIRECT you now, “THE COURT: Well see MR. PRINCE: “BY you you doing giving are not what I am you please Walton, set would Q Mr. permission do, to Mr. Prince. You asked conversation forth to transpired Court says that, yes if he did do or no. and he yourself Mr. between going permit you IWhat am to do is Bishop at— to have him seaman tell said what going No, I am not “THE COURT: him. going that, permit I Mr. Prince. am (By Prince) Q sea- Mr. What did the you specific questions let ask to dealing you? say man get going You are with that. go A The seaman said wouldn’t you do it start trouble the minute into go with if I and that would way. give with that he would me $25 Walton, Prince) (By Mr. Mr. Q was to make the transaction. you the— tell Mr. Q This is what the seaman said? Now, A minute. Yes. wait a “THE COURT: you Why ato direct his attention don’t right, “MR. All PRINCE: I have no subject you specific want matter your questions, Honor. further about, him to and then ask him to talk Nothing, your “MR. SWOFFORD: you What start- relate the conversation? Honor. suggest him the answer do ed to is permit. may you, you want, I “THE won’t COURT: Thank You and that you Walton, step Prince) down, (Emphasis (By Mr. Mr. Mr. Walton.” add- Q ed). your testimony before the stated testimony permissible grant as to im- I defensive would the Petition for Rehear ing right judgment pair, prejudicially, fair and to a reverse the convict orderly ion.2 trial. original Hornig, My opinion 1966); decision Moss tliat our Cir. strengthened (2d 1963). wrong has now Cir. was by my dissenting are views the fact writes, true, Judge Hamley require as to such force believed to have know, all we Walton’s “For in at- be offered additional reasons conversation, Bishop’s concerning tempted refutation. wholly But have been innocuous.” entrap- true, the defense was unduly. also since dialogue I shall not extend ment, know,” that, we “for all er- my disagreement distin- roneously testimony would excluded myself from guished arises Brothers and is saved Walton. conceded inter- the correct as to differences honest question interruption put dur- of the first proceedings pretation forth set proceedings ing reopened was errone- opinion. my 1 above footnote pre- question ous. When cisely defender’s apparently Hamley Judge but mentions defending calls for admissible tes- significance controlling to the no attaches erroneously timony testimony and the is not, appellant’s counsel did fact rejected, I no re- am aware of rule which specifically beginning, direct our at- quires upon be affirmed that conviction irregularities question. tention speculation that admissible the basis they them, are my and do I. We see Neither testimony rejected might but unknown not, grievous should that we so wholly “have been innocuous.” refuge opinion, behind Rule seek now proposition that the error was As to the mistaken obscure the It does not cured, forget the er- we must not original opinion, and I result of our during was first ror committed acknowledge mistake and choose attempt throughout first to tes- Walton’s responsibility accept my share of full might tify. reopened proceedings The it. correct have been so conducted error,” “plain plain fact, is error, the error was recommitted erroneously prevented that Walton pro- very question was first when the testimony presentation from the might upon pounded, its effect Walton’s defense, a valid have established appointed “chill- counsel must have been Judge he offered. defense which ing” I therefore indeed. cannot conscien- Hamley’s “ob- observation tiously agree the frustrated viously one of the Government’s believed” severely efforts of Walton’s restricted possi- agents immaterial, for Walton’s lawyer, understandably feeble and con- contradictory bly con- fused, prejudicial gravely “cured” the er- sistently excluded. adversely ror which affected the defense beginning. record, I from the As see question significant was the The most proceedings particularly the aborted set appointed very first which Walton’s my 1, sup- supra, forth footnote the coup pro- reopened presented in the counsel fact, posed was, de “cure” you Walton, ceeding: Mr. “Q grace! please set forth the Court your- Finally, transpired overlooked it should be versation whereupon conversation, —”, Bishop’s Mr. self conversation, Court, inexplicable reason first that Walton for some relevant interrupted alleged perceive, I claims have set in motion the which with, cannot that, produced “No, going entrapping permit I scheme which am charged ob of both was so commission offenses. Prince.” Mr. Bishop’s Thus, “designed viously elicit reliance the “concurrent sen * * * misplaced, should there was tence” rule even we statements” proof apprise Supreme will Court offer of assume need Mary g., purpose. See, v. e. soon abandon it. See Benton District Court (Md. land, Md.App. 647, Lowrie, F.2d 472 1 232 v. A.2d 541 246 United States granted, Ct.Spec.App.1967), 1957) ; (4th Missouri cert. 392 Hawkins v. Cir. 925, 1951) ; (8th R.R., S.Ct. 20 L.Ed.2d 1384 Cir. U.S. 88 Pac. 188 348 reargument (2d (1967 ordered, Palmer, Term), 976 393 Hoffman 1942), aff’d, 21 L.Ed.2d U.S. U.S. 460 Cir. (1968) (renumbered (19421. Mar No. Cf. L.Ed. (2d Term). v. United rone

Case Details

Case Name: United States v. Lloyd Stanley Walton

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 3, 1969

Citation: 411 F.2d 283

Docket Number: 22935_1

Court Abbreviation: 9th Cir.