560 F.2d 45 (2nd Cir. 1977), 1224, United States v. Oates

Docket Nº:1224, Docket 76-1100.
Citation:560 F.2d 45
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Paul V. OATES, Defendant-Appellant.
Case Date:June 03, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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560 F.2d 45 (2nd Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Paul V. OATES, Defendant-Appellant.

No. 1224, Docket 76-1100.

United States Court of Appeals, Second Circuit

June 3, 1977

Argued July 19, 1976.

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Joseph Grano, Detroit, Mich. (Talbot, Grant & McQuarrie, Detroit, Mich., by James Howard Grant, Detroit, Mich., on the brief), for defendant-appellant.

Victor J. Rocco, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Paul B. Bergman, Asst. U. S. Atty., Brooklyn, N. Y., of counsel, on the brief), for plaintiff-appellee.

Before WATERMAN and MESKILL, Circuit Judges, and BARTELS, District Judge. [*]

WATERMAN, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Eastern District of New York convicting appellant, following a six-day jury trial, of possession of heroin with intent to distribute, and of conspiracy to commit that substantive offense. 1 In seeking reversals of his convictions, appellant urges upon us three unrelated claims of error.

He first contends that the trial court erroneously denied his pretrial motion to suppress. This motion was predicated on a purported lack of probable cause to institute the warrantless search which resulted in the discovery of a white powdery substance, believed to be heroin, on the person of one Isaac Daniels. This discovery produced the immediate arrest not only of Daniels but also of appellant, who appeared to be accompanying Daniels at the time of the warrantless search and seizure. Not unexpectedly, it was the white powdery substance at which the suppression motion was primarily directed.

Appellant's second claim of error is that the trial court incorrectly admitted into evidence at trial the official report and worksheet

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of the chemist who analyzed the substance seized from Daniels. Appellant contends that the introduction of this evidence was impermissible for the evidence was inadmissible hearsay under the new Federal Rules of Evidence, and, also, that under the circumstances of this case, the introduction of the report and the worksheet violated appellant's right under the Sixth Amendment to the United States Constitution to confront the witnesses against him. The final claim of error relates to an alleged infirmity in the trial court's charge on the presumption of innocence.

We conclude that the motion to suppress was properly denied and that appellant's assignment of error in the court's charge, a claim which we do not discuss, is without merit. As to the claim that the chemist's report and worksheet were improperly admitted into evidence, although we discuss the constitutional grounds for this claim, we find it unnecessary to decide the claim on that ground, for we agree with appellant that those documents were inadmissible under the Federal Rules of Evidence. Accordingly, we reverse and remand to the district court for a new trial.

I

We initially consider appellant's claim that the trial court erroneously denied his motion to suppress certain evidence, the principal piece of evidence being the white powdery substance discovered on Daniels' right thigh moments before Daniels and Oates were arrested. The evidence adduced at the suppression hearing and the trial, see United States v. Fields, 458 F.2d 1194, 1196 (3d Cir. 1972), cert. denied, 412 U.S. 927, 93 S.Ct. 2755, 37 L.Ed.2d 154 (1973), when viewed in the light most favorable to the government, as it must be evaluated on this review of the denial of the motion to suppress, see United States v. Vital-Padilla, 500 F.2d 641, 642-43 (9th Cir. 1974); United States v. Walling, 486 F.2d 229, 236 (9th Cir. 1973), cert. denied,415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974), reveals the following relevant facts.

The drama logically begins with the introduction of the protagonist, Garfield Hammonds, Jr. As of April 26, 1972, the date the plot begins to unfold, Hammonds was an experienced special agent of the Federal Bureau of Narcotics and Dangerous Drugs ("BNDD"), having served with that organization for nearly three years. For approximately the first two years of his service with BNDD, Agent Hammonds had been assigned to the Detroit office but since July of 1971 he had been stationed in New York City. Agent Hammonds' responsibilities as a special agent included the obtaining, through operations in an undercover capacity, of intelligence concerning persons or organizations engaged in the business of illicit drug trafficking. Initially, this information was gathered in order to identify the unsavory characters engaged in these sordid activities and it was then used to select from among them so-called "targets," presumably for investigation and eventual prosecution. By April of 1972 Agent Hammonds had already participated in approximately twenty arrests for violations of federal narcotics laws. According to Agent Hammonds, often these arrestees were armed with dangerous weapons at the time of their apprehension. Agent Hammonds had also spent six months working undercover in a methadone treatment program for drug addicts. Inasmuch as his activities there involved working eight- and twelve-hour shifts with the participants in the program, Agent Hammonds had become intimately familiar with the physical manifestations of drug addiction and was well-qualified to identify addicts by observation.

Next in our cast of characters is the antagonist, appellant Paul Oates. Although Agent Hammonds had never met or seen Paul Oates in person, his name and face were familiar to Hammonds for, while stationed at the BNDD office in Detroit, Hammonds had seen photographs of Oates, and he knew through information he had received from BNDD intelligence sources, the Detroit local police, and the Wayne County Sheriff's Office, that Oates was reputed to be a major narcotics dealer in the Detroit area. In fact, Hammonds had participated

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in an investigation in which Oates had been a so-called "target." It is thus not surprising that Hammonds' curiosity was aroused when, after giving testimony at a drug trial in Detroit and while waiting for the announcement that American Airlines Flight 440, his return flight to New York City, could be boarded, Hammonds recognized Oates at the Detroit Metropolitan Airport at about 7:00 p. m. on April 26, 1972.

At the time he was initially observed by Agent Hammonds, Oates was seated and engaged in conversation with another man, one Isaac Daniels, whom Agent Hammonds did not recognize. It can be inferred from the testimony that Oates and Daniels were a study in sartorial contrast. While Daniels was described as being shabbily dressed, Oates, on the other hand, was apparently more nattily attired, the most distinctive feature of his clothing being "a yellow hat, a Robin Hood style hat with a green feather." When American Airlines Flight No. 440 to New York was announced Oates and Daniels separated and boarded the aircraft, Oates taking a seat in the first-class section and Daniels occupying a seat in the coach compartment. Agent Hammonds also boarded the plane and moved to the coach section, sitting across the aisle from Daniels at a distance of perhaps five or six feet. During the flight Oates and Daniels did not associate with each other, but Hammonds carefully observed that Daniels exhibited some of the telltale signs of drug addiction, characteristics with which Hammonds had become acquainted through his intimate contact with drug addicts while working in the methadone treatment program. Both of Daniels' hands were swollen and there were discernible needle "track" marks on the back of his right hand. Moreover, Daniels suffered from a constantly running nose. Although Agent Hammonds scrutinized Daniels, he did not notice any unusual bulges in Daniels' clothing. In particular, although he specifically looked at Daniels' legs, Agent Hammonds did not observe anything suspicious about Daniels except the aforementioned manifestations of drug addiction.

After Oates and Daniels deplaned at LaGuardia Airport in New York City, they rejoined, conversed, and then proceeded without luggage, to the exit area where they met a third man. Agent Hammonds' suspicions were further, and understandably, aroused by this latest development because Hammonds knew the third man to be one Willie McMillan, a former government informant whom Agent Hammonds knew "to be associated with the drug culture in New York City." Oates and McMillan exchanged greetings, although there was no similar exchange between McMillan and Daniels. The three men then walked to a nearby telephone booth in the airline terminal. McMillan entered the booth, dialed a number, and handed the receiver to Oates who then entered the booth with McMillan and closed the door behind both of them. Meanwhile, Daniels waited outside the booth. Agent Hammonds decided to truncate the surveillance because he was apprehensive that McMillan, the recently deactivated government informant, might recognize him. He also abandoned any thought of trailing the suspects outside of the airline terminal for he did not have a government vehicle at his disposal. Hammonds inquired as to whether there was a return flight to Detroit that evening and, upon learning that the next flight for Detroit was scheduled for about 8:00 a. m. the next morning, he notified his superiors at BNDD of his observations and received from them authorization to conduct a surveillance of the American Airlines terminal the next morning.

Agent Hammonds and four other BNDD special agents arrived at the terminal shortly after 7:00 a. m. on the morning of April 27. Oates and Daniels were already in the departure lounge, sitting approximately...

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