Jose Verdugo and Horace Eugene Turner v. United States

Turner and Verdugo were convicted under an indictment charging that on or about July 28, 1964, in San Francisco, California, they fraudulently and knowingly sold and concealed and facilitated the sale, concealment and transportation of 2.695 grams of heroin which had been imported into the United States unlawfully, as appellants knew.

The government’s evidence as to the transaction was as follows. Prior to July 28, Agent Chesley of the Federal Narcotics Bureau received information from an informer named Wilson that appellant Verdugo was dealing in narcotics. On that date Agent Chesley and Wilson went to the vicinity of 24th and Folsom streets in San Francisco, between six and seven in the evening, to meet Verdugo and to purchase narcotics from him if any were available. Wilson told Agent Chesley that they were to meet Verdugo in the Latin Circle bar on 24th Street.

When Wilson and Agent Chesley entered the bar, appellant Turner was playing a pinball machine. Wilson asked Turner if Verdugo was there. Turner said, “No. He was here, but he’s gone. He will be back.”

*602 Wilson and Agent Chesley then went to Glady’s Cafe, which was nearby. Verdugo entered the cafe a few minutes…

(concurring) :

I concur in the decision and in the opinion written for the court by Judge Browning. I express no opinion on any of the issues discussed in Judge Browning’s separate opinion for the reason that, as his opinion for the court indicates, it is unnecessary to do so in this case.

(separate opinion):

Some additional comment seems to me appropriate on two of the subjects dealt with in the majority opinion.

I

Although it is unnecessary to decide in this case whether it would be reversible error to deny defendant’s counsel access to factual assertions in a presentence report upon which the sentence was based, it should now be said that due process may require some form of disclosure of the presentence report to the defense.

In Townsend v. Burke, 334 U.S. 736 , 68 S.Ct. 1252 , 92 L.Ed. 1690 (1948), the Court held that a sentence based upon an “extensively and materially false” factual foundation “which the prisoner had no opportunity to correct by the services which counsel would provide * * * renders the proceedings lacking in due process.” 334 U.S. at 741 , 68 S.Ct. at 1255 . Since counsel is powerless to correct errors of which he is unaware, nondisclosure would…

(dissenting in part):

There is no disagreement among the members of the panel as to the propriety of affirming the convictions of both Turner and Verdugo. The majority have, however, determined that the case as to Verdugo should be remanded to the District Court for resentencing. From this determination I respectfully dissent.

Two grounds of error are raised by Verdugo with respect to the alleged defects in the sentencing procedure. He first argues that he was improperly sentenced because of the failure of the trial *618 judge to provide him with a copy of the presentence report prior to the time of sentencing. The second point raised by Verdugo is that the presentence report contained information obtained by means of an illegal search and seizure, and the consideration of this material by the judge violated his rights under the Fourth and Fifth Amendments.

In response to the appellant’s first claim of error, the majority concludes that it is not necessary to decide the question in this case, because Verdugo must be resentenced in any event for the reasons urged in support of the second ground of error. 1 Since I do not agree that Verdugo must be resentenced for the reasons…

402 F.2d 599 Jose VERDUGO and Horace Eugene Turner, Appellants, v. UNITED STATES of America, Appellee. No. 20803. United States Court of Appeals Ninth Circuit. May 16, 1968. Rehearing Denied September 24, 1968. As Amended October 7, 1968. COPYRIGHT MATERIAL OMITTED Henry O. Noffsinger, Jay R. Mayhall (argued), San Francisco, Cal., for Turner. James R. Hagan (argued), Menlo Park, Cal., for Verdugo. Jerrold M. Ladar (argued), Robert S. Marder, Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee. Before BROWNING and DUNIWAY, Circuit Judges, and BYRNE, * District Judge. BROWNING, Circuit Judge: 1 Turner and Verdugo were convicted under an indictment charging that on or about July 28, 1964, in San Francisco, California, they fraudulently and knowingly sold and concealed and facilitated the sale, concealment and transportation of 2.695 grams of heroin which had been imported into the United States unlawfully, as appellants knew. 2 The government's evidence as to the transaction was as follows. Prior to July 28, Agent Chesley of the Federal Narcotics Bureau received information from an informer named Wilson that appellant Verdugo was dealing in narcotics. On…