United States v. William T. White, 223 F.2d 674, 2d Cir. (1955)
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Scribd Government DocsUnited States v. William T. White, 223 F.2d 674, 2d Cir. (1955)
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Scribd Government Docs223 F.
2d 674
UNITED STATES of America, Appellee,
v.
William T. WHITE, Defendant-Appellant.
No. 320.
Docket 23517.
United States Court of Appeals Second Circuit.
Argued May 6, 1955.
Decided June 10, 1955.
1
Arnold D. Roseman, New York City, for defendant-appellant (Harry Silver,
Brooklyn, N. Y., on the brief).
J. Edward Lumbard, U. S. Atty., for Southern Dist. of N. Y., New York City,
for appellee, Walter L. Stratton, Asst. U. S. Atty., New York City, of counsel.
Before CLARK, Chief Judge, MEDINA, Circuit Judge and DIMOCK, District
Judge.
DIMOCK, District Judge.
Appellant was convicted of the sale of narcotics. The evidence against him
consisted of testimony of Government agents as to his actions which they
observed and their testimony with respect to an oral confession which he is
alleged to have made. While the evidence includes testimony that a government
informer, after being searched and found to have no drugs in his possession,
was seen giving money to appellant and, thereafter, returned to the government
agents with drugs in his possession, it does not include testimony of any
eyewitness to the delivery of the drugs. Nor does the evidence exclude the
possibility that the informer, said by the Government to have died before the
trial of this case, may have obtained the drug from someone other than
appellant. Thus the alleged confession was of prime importance.
Appellant contends, first, that the Government's case lacked the requisite
corroboration of appellant's alleged confession. The Government's case,
independent of the alleged confession, is wanting only in evidence of the actual
delivery of the drug. The rule does not require that corroboration of
confessional proof be, in itself, sufficient to preponderately establish guilt, see
United States v. Markman, 2 Cir., 193 F.2d 574, 576; it is satisfied where "* * *
the corroboration supports the essential facts admitted sufficiently to justify a
jury inference of their truth." Opper v. United States, 348 U.S. 84, 93, 75 S.Ct.
158, 164. The corroboration here seems to be sufficient under the Opper case.
7
Appellant argues, next, that Judge Dawson erred in admitting evidence
concerning the confession when it became clear that the Government had in its
possession a wire recording which contained at least parts of the confession, in
failing to direct the Government to produce the recording and in failing to set
aside the verdict and grant a new trial upon the ground that the testimony
concerning the confession contained substantial discrepancies when compared
with the recording. Since the matter at issue regarding the confession was not
the contents of the tape recording but what the appellant had said, the best
evidence rule did not require that the recording be produced and oral testimony
of what had been said was admissible. See Herzig v. Swift & Co., 2 Cir., 146
F.2d 444; Meyers v. United States, 84 U.S.App.D.C., 101, 171 F.2d 800, 812813, 11 A.L.R.2d 1. What is more, appellant did not request during the trial that
the recording be produced. Thus appellant's claims with respect to evidence
concerning his confession depend, for their validity, upon the claim of
substantial discrepancy. The truth is that the tape recording is fragmentary and,
to some extent, unintelligible. While there were slight discrepancies between
the testimony and the recording they are insufficient to affect the credibility of
the witnesses and, moreover, the recording is, itself, highly damaging to
appellant.
Appellant claims that he was prejudiced by the admission in evidence of
testimony concerning an episode which, according to the testimony, took place
on a date about two weeks after the date on which it was alleged that the crime
was committed. Judge Dawson instructed the jury that the testimony
concerning the later episode could be considered by them only as evidence of
the commission of the crime actually charged. The theory was that appellant
had not been fully paid on December 29, 1953, the date of the crime charged,
and that a further payment was made to him by the informer on January 4,
1954. The evidence urged to have been prejudicial concerned the second
payment. We find no substance to the claim that this constituted prejudicial
proof of another offense.
Appellant contends, further, that he was prejudiced by the Government's
summation in that it contained statements that the Government's informer was a
Negro and an unsupported statement that the informer had friends in the
narcotics trade. Government counsel, while engaged in the essential task of
explaining to the jury the fact that the Government cannot be expected to
obtain the services of pillars of society as informers in narcotics cases, said that
the Government could not have used the two Treasury Agents who figured in
the case. He called attention to the fact that they were white, while the other
personalities in the case were colored. On objection that there was no evidence
that the informer was colored he withdrew that statement but continued to argue
that the Treasury Agents could not have been used because in Harlem "a white
person would stick out like a sore thumb". Defendant's counsel thereupon
objected to "remarks on racial characteristics". The court, in effect, overruled
the objection and Government counsel went on with his explanation of why it
had been necessary to use the informer, saying,
10
"A stranger would stand out like a sore thumb, too, one who didn't know the
personalities of that neighborhood.
11
"Bragg [the informer] knew people there. He had friends there. He had been an
addict for eight years. He had friends in the narcotics trade."
12
Government counsel was justified in asking the jury to infer that an informer, to
be useful in Harlem, must be colored. There is no basis for the charge that the
remarks were inflammatory.
13
Likewise it was fair to ask the jury to draw the inference that the informer was
chosen for his association with friends in the narcotics trade. He had been an
addict for eight years and must have had some source of supply. There was
testimony that he was in the company of two other narcotics sellers on the
occasion of the sale here involved.
14
Judge Dawson was justified in his condemnation of the interruption of
Government counsel's summation to raise these points.
15
Finally, appellant makes the claim of entrapment. The trial judge ruled that on
the evidence no entrapment had been shown. In this he was correct. There is no
entrapment when a purchase is made at the instance of the law officers where
the seller is ready and willing, without persuasion and awaiting any propitious
opportunity, to commit the offense, see Sorrells v. United States, 287 U.S. 435,
53 S.Ct. 210, 77 L.Ed. 413; United States v. Sherman, 2 Cir., 200 F.2d 880.
The confession showed that there was no need to persuade appellant.
16
A number of points are raised by appellant with respect to refusals to grant
requests to charge. None of these refusals were prejudically erroneous.
17
The judgment of conviction and the order denying a new trial are affirmed.
