Before CLARK, WATERMAN and MOORE, Circuit Judges.
After a trial before a judge sitting without a jury in the United States District Court for the Southern District of New York, appellant was convicted on March 15, 1962, on two counts of a five count indictment. The two counts under which she was convicted, counts three and four, charged her with receiving, concealing, and facilitating the transportation and concealment of narcotics in violation of 21 U.S.C.A. §§ 173, 174 (1958). The district court sentenced appellant to five years imprisonment upon count three, and seven years imprisonment upon count four, the two sentences to run concurrently. Appellant now appeals from her conviction.
Appellant made a motion, subsequently denied, for an order suppressing certain evidence, some taken from her person and some obtained by the officers from an apartment. The testimony and exhibits presented by the Government at the hearing on this motion and at appellant's subsequent trial developed the following facts relating to appellant's arrest and the events that followed. Appellant presented no evidence at either the hearing or the trial.
On October 11, 1961, shortly after 1:30 P.M. at an apartment in Hamilton Terrace in Manhattan, narcotics agents Robinson and Scott, acting in undercover capacities, were negotiating with one George A. Thompson for the purchase of one-quarter kilogram of heroin. Thompson told the agents that one-quarter kilogram would cost them about $3,200, but that he would have to go out and check on the price.
At approximately 2:05 P.M. Thompson left the apartment in order to check the price he had quoted to the agents. After leaving the apartment, Thompson was followed by two other narcotics agents, Wilcocki and Garofalo. Thompson entered a taxi and rode to the Manufacturers Trust branch bank at 125th Street and Eighth Avenue. He remained in the bank for about five minutes, then entered another taxi and went to a building at 169 East 115th Street, which he entered.
He emerged from the building five minutes later with appellant Ruth Smith. Then he caught a taxi back to Hamilton Terrace, arriving there at approximately 3:00 P.M.
Upon his return to the apartment at Hamilton Terrace where agents Robinson and Scott were waiting, Thompson informed them that one-quarter kilogram of heroin would cost $3,600. He showed the agents two one-ounce glassine bags containing a white powder that he claimed he had obtained from his source of supply. Agent Robinson asked Thompson who this source of supply was and was told that it was a woman who worked at a store. Thompson and agent Robinson then arranged to meet again at 2:00 P.M. the next day at 145th Street and St. Nicholas Avenue so that Robinson could purchase a quarter kilogram of heroin.
After their conversation in the apartment Thompson invited the two agents to lunch at a restaurant on 42nd Street. While at the restaurant the three men entered the men's restroom, where Thompson pulled out of his pocket two glassine bags of white powder and gave one of the bags to agent Scott. This bag contained heroin.
The next day, October 12, agent Robinson met Thompson at 2:30 P.M. at the corner of 145th Street and St. Nicholas Avenue. Thompson asked for the purchase price of $3,600, but agent Robinson refused to hand over the money. Instead, the officer opened the trunk of his car and showed Thompson what was supposed to be the $3,600. Thompson then told Robinson that he would go to his source of supply and find out if she would deliver the heroin, cash on delivery.
Thompson then caught a taxi and, under the surveillance of narcotics agents Wilcocki and Garofalo, drove to 169 East 115th Street. After ten minutes Thompson emerged from the building and returned to 145th Street and St. Nicholas Avenue, where he rejoined Robinson and informed the agent that the source of supply would deliver the heroin, cash on delivery. Since the federal officer was to meet the source and receive the heroin from her, he asked Thompson who she was. Thompson told him that she was a girl named Ruth who had "blue hair" and worked at Goody's drug store.
Next, Thompson and Robinson walked over to a telephone booth and Thompson placed a call. He said, "May I speak to Ruth?" (pause) "Okay, I will call back in 15 minutes."
Then, on the pretext of calling his girl friend, Robinson telephoned his office and told the agents there that Thompson's source of supply was a girl by the name of Ruth who worked at Goody's drug store and had blue hair.
At 4:00 P.M. Thompson again telephoned the number he had called earlier and was heard by Robinson to say, "Okay, in 30 minutes at 131st and Seventh Avenue."
At this point Robinson gave a prearranged signal; then the covering agents Wilcocki and Garofalo placed Thompson under arrest, searched him, and found in his pocket a glassine envelope containing heroin. Upon subsequent interrogation of Thompson these two agents learned that a girl named Ruth Smith was to deliver a quarter of a kilogram of heroin at 4:30 P.M. at the corner of 131st Street and Seventh Avenue. Agents Wilcocki and ...