United States of America, Appellant, v. Frank J. Parker, Appellee, 428 F.2d 488 (9th Cir. 1970)

A four-count indictment was returned on July 23, 1968, in the United States District Court for the District of Nevada, charging appellant Frank J. Parker with three violations of 21 U.S.C. § 174 by the sale of specified amounts of heroin on July 12, 1968 [Count One], July 13, 1968 [Count Two], and July 14, 1968 [Count Three], and one violation of 21 U.S.C. § 174 by the facilitation of the transportation and concealment of heroin on July 17, 1968 [Count Four]. On March 20, 1969, the jury returned its verdict, finding appellant guilty on Counts One and Two, the remaining counts having been dismissed by the government. Appellant was sentenced to 10 years on each count, sentences to run concurrently. He filed a timely notice of appeal to this court which has jurisdiction under 28 U.S.C. §§ 1291, 1294.

Appellant first centends that there was discrimination in the selection of the grand and petit juries in the instant case. Appellant's proof of discrimination consisted solely of showing that the names of potential jurors were drawn at random from the voter registration lists,¹  and that the jurors were selected at random from a wheel containing these names. Appellant also points to a statement by the district judge that he couldn't "recall a grand jury that had a colored man on it; but there may have been." This proof completely fails to sustain the burden, which falls upon appellant, see e.g., Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), of showing a "systematic exclusion of any identifiable group within the community," Bloomer v. United States, 409 F.2d 869, 872 (9th Cir. 1969). The use of voter registration lists as the sole source of the names of potential jurors is not constitutionally invalid, absent a showing of discrimination in the compiling of such voter registration lists. See Grimes v. United States, 391 F.2d 709 (5th Cir.), cert. denied 393 U.S. 825, 89 S. Ct. 87, 21 L. Ed. 2d 96 (1968). As to the petit jury selection process used in the instant case, appellant's proof makes no showing of a "substantial failure to comply with the provisions [of the Jury Selection and Service Act of 1968]", 28 U.S.C. §§ 1867(a), 1867(d).

The proceedings before the grand jury in the instant case were not recorded. Appellant made a timely pretrial motion to have a transcript made, and for general discovery of such proceedings. He asserts as error on appeal the denial of this motion. The Federal Rules of Criminal Procedure are permissive on the subject of recording the testimony taken before the grand jury. See Rule 6(d). In Loux v. United States, 389 F.2d 911 (9th Cir.), cert. denied 393 U.S. 867, 89 S. Ct. 151, 21 L. Ed. 2d 135 (1968), we held that the failure to record raised no constitutional problems. See also, Jack v. United States, 409 F.2d 522 (9th Cir. 1969); Ingle v. United States, 399 F.2d 690 (9th Cir. 1968). Even assuming arguendo that the "particularized need" standard of Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966), applies to a motion to compel recording of grand jury testimony, as distinguished from a motion for discovery of particular portions of grand jury testimony already recorded, appellant has not made a sufficient showing of "particularized need" in the instant case. See Osborne v. United States, 371 F.2d 913, 918-919 (9th Cir.), cert. denied 387 U.S. 946, 87 S. Ct. 2082, 18 L. Ed. 2d 1335 (1967).

Appellant next contends that it was error of constitutional dimension²  to allow into evidence over objection two $20 bills. The serial numbers of these bills had been recorded by narcotics agents prior to their being given to the informant for use in his purchase of heroin from appellant. On appellant's arrest in his home on July 17, 1968, these bills were removed from appellant's wallet which was in his pants' pocket in an adjoining room. One bill was shown to have been used in the July 13 purchase, the other in the July 14 purchase. The trial court denied appellant's objection on the theory that the objection was in the nature of a motion to suppress, which should have been made prior to which generally required by Rule 41, F.R.Crim.P.

Without regard to the proper practice under Rule 41, we think that the evidence was properly admitted as the fruit of a search incident to a lawful arrest. See Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947) and United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). Although the United States Supreme Court ruled on June 23, 1969, in Chimel v. California, 395 U.S. 752, 768, 89 S. Ct. 2034, 2043, 23 L. Ed. 2d 685 (1969), that Harris and Rabinowitz "are no longer to be followed," this court has given Chimel purely prospective application, Williams v. United States, 418 F.2d 159 (9th Cir. 1969), cert. granted, 397 U.S. 986, 90 S. Ct. 1120, 25 L. Ed. 2d 394 (1970), and Harris and Rabinowitz remain controlling in the circumstances of this case. Appellant seeks to distinguish both Harris and Rabinowitz on the ground that here the officers had both arrest and search warrants and the search warrant did not particularly describe the two $20 bills. This distinction is without significance. Marron v. United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231 (1927). Cf. Woo Lai Chun v. United States, 274 F.2d 708 (9th Cir. 1960). The two bills seized were fruit of the crimes, cf., United States v. Burkeen, 350 F.2d 261 (6th Cir.), cert. denied sub nom. Matlock v. United States, 382 U.S. 966, 86 S. Ct. 457, 15 L. Ed. 369 (1965), and not "mere evidence" as contended by appellant. In any event, the distinction between "mere evidence" and "fruits" of crime no longer has any constitutional significance. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967).

The two $20 bills were also properly admitted on the theory that they were seized in the course of lawfully executing the search warrant even though the bills were not particularly described therein. See Porter v. United States, 335 F.2d 602 (9th Cir. 1964), cert. denied 379 U.S. 983, 85 S. Ct. 695, 13 L. Ed. 2d 574 (1965); Louie v. United States, 426 F.2d 1398 (9th Cir. 1970). See also Gurleski v. United States, 405 F.2d 253 (5th Cir. 1968), cert. denied sub nom. Smith v. United States, 395 U.S. 977, 89 S. Ct. 2127, 23 L. Ed. 2d 765 (1969).

Knowledge of the illegal importation of heroin is an essential element of the crime created by section 174. See Harris v. United States, 359 U.S. 19, 23, 79 S. Ct. 560, 3 L. Ed. 2d 597 (1959). In the instant case there was no direct evidence of appellant's knowledge of the prior illegal importation of the heroin sold to the informant, and the jury was instructed³  in accordance with the second paragraph of section 174.⁴  Appellant made no objection to the instructions as given, see Rule 30, F.R. Crim.P., and the giving of instructions based on the statute is not error, constitutional or otherwise, in heroin cases. Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970). Notwithstanding appellant's contention to the contrary, appellant's guilt was properly found by the jury even though there was no direct evidence of illegal importation or knowledge thereof. Turner, supra, at 408-418, 90 S. Ct. 642.

Appellant contends that it was error for the court to submit the case to the jury where the direct evidence of the crimes was produced through the testimony of a drug addict informant. The fact that the informer was a drug addict does not disqualify him as a witness, and his credibility was for the jury to determine. See Proffit v. United States, 316 F.2d 705 (9th Cir. 1963).

Appellant's final contention that the trial judge lacked impartiality has absolutely no merit, and an examination of the record so demonstrates.

Judgment affirmed.