United States v. Fiore, 869

• Decision Date: 17 May 1971
• Docket Number: Docket 35229.,No. 869,869
• Parties: UNITED STATES of America, Appellee, v. Joseph Ralph FIORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

443 F.2d 112 (1971)

UNITED STATES of America, Appellee, v. Joseph Ralph FIORE, Defendant-Appellant.

No. 869, Docket 35229.

United States Court of Appeals, Second Circuit.

Argued April 23, 1971.

Decided May 17, 1971.

Joseph W. Ryan, Jr., Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., E. D. New York, and David G. Trager, Asst. U. S. Atty., of counsel), for appellee.

Henry K. Chapman, New York City for defendant-appellant.

Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

After a jury trial in the District Court for the Eastern District of New York, Joseph Ralph Fiore was convicted on all counts of a four-count indictment charging him with sales of heroin on December 3, 1969, and January 12, 1970, in violation of 21 U.S.C. § 174 and 26 U.S.C. § 4704(a).

Late in November 1969, Thomas Bennett, Jr., a confidential informant apparently used in previous narcotics investigations, was employed by the Government to aid in the investigation of the activities of Fiore, proprietor of a small store in the Astoria section of Queens, N. Y. There was extensive trial testimony by narcotics agents that on December 3, 1969, Bennett entered the store with $1,000 in Government funds and no narcotics on his person and ultimately emerged without the $1,000 but with a white paper bag including, among other things, a plastic bag containing about two-thirds of an ounce of heroin. There was also a recorded (and subsequently transcribed) telephone conversation between Bennett and Fiore, initiated on the next day by one of the agents, relating (at least inferentially¹ to a shortage in the quantity of heroin delivered. On January 12, 1970, Bennett again entered the store with $1,000 in Government funds and with no narcotics on his person. Once more he emerged without the money, this time bearing a magazine bound with Scotch tape around the edges, which contained a plastic bag filled with heroin — approximately the same quantity as before.

Bennett testified before the grand jury concerning his conversations with Fiore and his purchases within the store. Thereafter he was sentenced by a New York State court to a term in Clinton State Prison. Shortly before the trial the State released him temporarily to the custody of the federal authorities, and he went over his proposed testimony with one of the agents and the prosecutor.

After the jury had been selected, the prosecutor informed the judge, out of the jury's presence, that Bennett had experienced a sea change and was refusing "to even physically cooperate in coming up to this courtroom." Testimony by one of the agents consumed the balance of the day and part of the next. Bennett's attitude had not changed. He was forcibly brought into the courtroom by two marshals and two narcotics agents, the jury having been excused, and the judge persuaded him to sit in the witness chair. After the jury's return, the judge asked Bennett to raise his right hand and be sworn. Bennett answered that he refused to testify. After an inconclusive colloquy at sidebar,² subsequent to which Bennett again refused to be sworn, the court instructed the prosecutor to "proceed." Preliminary questions were met with refusals to answer or statements of ignorance or forgetfulness why he (Bennett) had been brought to court. When the prosecutor asked permission to examine Bennett "as a hostile, reluctant witness," defense counsel said "the question of reluctance is not the issue." The court then ruled that Bennett "can now be questioned as a hostile witness." The prosecutor proceeded to ask Bennett whether he had testified before the grand jury, and Bennett said "I don't remember." There followed a protracted pas de deux, with the prosecutor reading portions of Bennett's grand jury testimony, framed by the questions, "Were you asked the following questions and did you give the following answers?" and "Were you asked those questions and did you give those answers?," and with Bennett almost invariably offering such responses as "I might have," "I don't recall," "I don't know whether I did or not," or "I refuse to answer." No pertinent objections were made by defense counsel. After a luncheon recess Bennett said he would like to get a lawyer and indicated that he wished an "adjournment" for that purpose. The court decided to proceed and asked Bennett "to please cooperate to the extent of being asked questions and make whatever answers you want," assuring him that it would "protect" him. The reading of questions and answers before the grand jury resumed, with results similar to those already described. At the end of this, defense counsel said, "I have no questions on cross."

On the next day, after testimony by another agent, the Government called the reporter who had taken down the grand jury testimony in order to authenticate the questions and answers. Again there was no pertinent objection, and the Government rested. Defense counsel then moved to strike all of Bennett's testimony on the ground that he had not been sworn. The judge denied this, not as having been made too late but as lacking merit. In its charge the court instructed that if the jury found Bennett to have been a recalcitrant witness, his grand jury testimony might be used as affirmative evidence of the facts stated; to this defense counsel excepted.

If prompt objection had been taken, it would have been clear error to allow Bennett's grand jury testimony to be received as evidence — indeed, to have allowed the prosecutor to ask him any questions at all. Although F.R.Cr.P. 26 does not expressly require an oath, it refers the admissibility of evidence and the competency of witnesses to "the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." There is no room for doubt what those principles require in this context. Wigmore instructs that "for all testimonial statements made in court the oath is a requisite," 6 Evidence § 1824 (3d ed. 1940) (emphasis in original). See also Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, Rule 603, reprinted in 51 F.R.D. at 385.

The Government's argument is not that anything said by Bennett while in the witness chair was receivable — indeed, he said nothing that was of any value to its case — but that, under the principle enunciated in United States v. De Sisto, 329 F.2d 929, 933-934 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964), and followed in United States v. Insana, 423 F. 2d 1165, 1170 (2 Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970) and United States v. Mingoia, 424 F.2d 710, 712-713 (2 Cir. 1970), Bennett's presence rendered admissible his previous sworn testimony before the grand jury. The reliance is misplaced. In these cases the witness had been sworn and was available for...