Portomene v. United States

• Decision Date: 27 April 1955
• Docket Number: No. 15058.,15058.
• Citation: 221 F.2d 582
• Parties: Narberto Angelo PORTOMENE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

221 F.2d 582 (1955)

Narberto Angelo PORTOMENE, Appellant, v. UNITED STATES of America, Appellee.

No. 15058.

United States Court of Appeals Fifth Circuit.

April 27, 1955.

Gino P. Negretti, Miami, Fla., for appellant.

E. David Rosen, Asst. U. S. Atty., Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, TUTTLE, Circuit Judge, and DAWKINS, District Judge.

HUTCHESON, Chief Judge.

Appellant, charged in an indictment in two counts with unlawfully selling, dispensing, and distributing heroin on February 18th and February 20, 1953, in violation of the Harrison Anti-Narcotic Act, 26 U.S.C. § 2553(a), was convicted and sentenced on each count to serve three years, the sentences to run concurrently.

Appealing from that judgment, he is here presenting three grounds of error. The first of these is that, under the circumstances of this case, showing that the so-called informer had not merely given information to the officers but was the instrument they had used in making the claimed narcotics purchases from the defendant, it was error to deny the request of the defendant that his name be disclosed.

The second is that it was error to excuse the narcotic agent and witness, Rudd, from the rule, thus permitting him to hear the testimony of the other witnesses before he took the stand.

A third error claimed is that the evidence was insufficient to support the verdict of the jury and that on his motion a verdict should have been instructed in his favor.

In presenting its case, the United States used four witnesses. Two of these, Rudd and Cox, narcotic agents, testified to the purported occurrences¹ on which the charges of February 18th and 20th were based; a third, Cooper, an agent trainee, testified with regard to the February 20th charge; and a fourth, Holman, a chemist, testified that the substances analyzed by him were heroin.

The testimony on behalf of the defendant consisted of his testimony that he had never dealt in narcotics, had not sold any narcotics, and had not passed any narcotics on the date and occasion to which the witnesses for the government testified; and the testimony of both the defendant and a witness, Olga De LaPaz, that they were of the opinion that the informer's name was Joe Vega, that on account of Olga there was bad blood between Joe Vega and the defendant, and that this furnished the motive for Vega's desiring to involve Portomene by false charges that he had dealt in narcotics.

We take up these assignments in inverse order.

Insisting that the testimony consisted of conclusions and opinions from what occurred rather than of facts which the witnesses actually saw, appellant urges upon us that the evidence was not sufficient to take the case to the jury and that his motion for a directed verdict should have been granted, the United States, with equal vigor, insists that this is essentially a fact case requiring submission to the jury and that it was not error to deny defendant's motion. We agree with the United States that this is so.

The second, that it was error to excuse Rudd from the rule, is no better taken. Whether it was proper to excuse him from the rule was confided to the discretion of the court, and no abuse of that discretion is made to appear.

When it comes, however, to the point mainly and most vigorously argued, that it was error to deny the defendant's request for the name of the informer to whom...