United States v. Lloyd Stanley Walton

411 F.2d 283 UNITED STATES of America, Appellee, v. Lloyd Stanley WALTON, Appellant. No. 22935. United States Court of Appeals Ninth Circuit. January 30, 1969. Rehearing Denied June 3, 1969. COPYRIGHT MATERIAL OMITTED Robert E. Prince, Seattle, Wash., for appellant. Eugene G. Cushing, U. S. Atty., Michael Swofford, Asst. U. S. Atty., Seattle, Wash., for appellee. Before MADDEN, Judge of the Court of Claims, and HAMLEY and ELY, Circuit Judges. HAMLEY, Circuit Judge: 1 Lloyd Stanley Walton appeals from his conviction following a jury trial on all four counts of an indictment charging violations of the narcotics and tax laws. 2 There were two alleged transactions, one occurring about noon on September 20, 1967, at the bar of the Cottage Restaurant, at Fifteenth and Madison in Seattle, Washington, and the other about 8:30 that evening at the same place. The first transaction pertained to the alleged sale by defendant, to an undercover agent of the Federal Bureau of Narcotics, of .431 grams of heroin in violation of 21 U.S.C. § 174 (1964), and section 4704(a) of the Internal Revenue Code of 1954, as amended, 26 U.S.C. § 4704 (a) (1964). The second transaction related to the…

(concurring in the order denying petition for rehearing) :

Since the sole purpose of this concurring opinion is to comment upon the dissent to the order denying the petition for rehearing, the dissent should be read first.

Walton was convicted of two violations of the narcotics and tax laws. He was given concurrent sentences. Walton’s only defense was entrapment. With regard to the first transaction, which occurred about noon on September 20,1967, Walton alleged that he was entrapped by Narcotic Agent Aubrey Abbey and a Government informant, Julius Bishop. Bishop was not present at the time of the second transaction, which took place in the evening of the same day. Walton’s allegation of entrapment on that occasion was therefore limited to the activities of Agent Abbey.

The dissent is directed exclusively to the asserted error of the trial court in preventing Walton from testifying as to what Bishop told him when they met at a tavern prior to the first transaction. For the following reasons I do not believe this asserted error entitles Walton to a rehearing and a reversal of the convictions :

1. Point raised for first time in petition for rehearing. This question was not…

(dissenting):

After reveiwing appellant’s Petition for Rehearing, the parties filed supplemental briefs at the court’s request. My study of these briefs, together with my reexamination of the record, convinces me that I was mistaken in my original concurrence in the result reached in the challenged opinion.

The only defense presented by the accused was that he had been entrapped into the commission of his offenses by a government agent who had disappeared during the long interval between the time when the alleged entrapment occurred and the times when Walton was eventually arrested and his trial conducted. When the defense of entrapment is asserted, a showing that the offense was attended by the intervention of a government agent casts the burden upon the Government to prove, beyond a reasonable doubt, that entrapment did not occur. Notaro v. United States, 363 F.2d 169 (9th Cir. 1966).

Walton undertook to testify in his own defense, but in the beginning, the Court prohibited him from relating the conversations, claimed to have been entrapping, which he had with the government agent. In its supplemental brief, the Government, citing Silva v. United States, 212 F.2d 422 (9th…

Lloyd Stanley Walton appeals from his conviction following a jury trial on all four counts of an indictment charging violations of the narcotics and tax laws.

There were two alleged transactions, one occurring about noon on September 20, 1967, at the bar of the Cottage Restaurant, at Fifteenth and Madison in Seattle, Washington, and the other about 8:30 that evening at the same place. The first transaction pertained to the alleged sale by defendant, to an undercover agent of the Federal Bureau of Narcotics, of .431 grams of heroin in violation of 21 U.S.C. § 174 (1964), and section 4704(a) of the Internal Revenue Code of 1954, as amended, 26 U.S.C. § 4704 (a) (1964). The second transaction related to the alleged sale by defendant, to the same undercover agent, of .924 grams of heroin, in violation of the same statutes.

The evidence received at the trial, considered in the light most favorable to the Government, warranted the jury in finding as follows: at 11:30 a. m. on September 20, 1967, Joseph V. Ferro, Acting District Supervisor of the Federal Bureau of Narcotics in Seattle, received a telephone call from Julius Bishop, an informant. Bishop told Ferro that Bishop was then in…