U.S. v. Check
| Decision Date | 17 July 1978 |
| Docket Number | D,No. 1463,1463 |
| Citation | 582 F.2d 668,3 Fed.R.Evid.Serv. 685 |
| Parties | 3 Fed. R. Evid. Serv. 685 UNITED STATES of America, Plaintiff-Appellee, v. Sandy CHECK, Defendant-Appellant. ocket 77-1208. |
| Court | U.S. Court of Appeals — Second Circuit |
Barry A. Bohrer, New York City (Ivan S. Fisher, New York City, of counsel), for defendant-appellant.
Peter D. Sudler, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., and Frederick T. Davis, Asst. U. S. Atty., New York City, of counsel), for plaintiff-appellee.
Before WATERMAN and MESKILL, Circuit Judges, and COFFRIN, District Judge. *
This is an appeal from a judgment order of the United States District Court for the Southern District of New York, Motley, J., entered upon a verdict of a jury convicting appellant Check, following a seven-day jury trial, on all counts of a three-count indictment charging him with two counts of possession of heroin with intent to distribute the drug, with each of the two counts also alleging an actual distribution of the drug, in violation of 21 U.S.C. § 841(a) (1) and with one count of conspiracy to distribute narcotic-drug, controlled substances in violation of 21 U.S.C. § 846. Upon his convictions Check was sentenced to a one-year term of imprisonment on each count, the sentences to be served concurrently. The court also imposed a three-year period of special probation to run consecutively to the terms of imprisonment. 1 In contending that his convictions should be overturned, Check raises troublesome arguments concerning the introduction into evidence of certain portions of the testimony of the undercover police officer who was the government's principal witness against Check. Inasmuch as we believe that the district court's failure to exclude damaging hearsay testimony constituted prejudicial error, we reverse the judgment order entered against Check and remand for a new trial on all counts of the indictment.
The government's evidence at trial was primarily presented through the testimony of Stephen Spinelli, a detective in the New York City Police Department who had been assigned to investigate allegations that a fellow New York City police officer, Patrolman Sandy Check, was engaging in illegal narcotics trafficking. 2 Operating in an undercover capacity and using the pseudonym "Danny Gennaro," Spinelli was initially introduced to one William Joseph Cali, a confidential informant who knew Check and who agreed to introduce Spinelli to Check so that Spinelli, in his assumed role of a prospective purchaser of narcotics, could either substantiate or disprove the serious allegations of criminal conduct which had been made against Check.
Spinelli testified that, as anticipated, Cali arranged for a meeting with Check which was to take place on August 8, 1974 at Dave's Corner Restaurant, located at the corner of Canal Street and Broadway in lower Manhattan. Shortly after Spinelli and Cali had entered the restaurant Check appeared outside the front window of the building and motioned to have Cali meet with him outside. This Cali did and, after a conversation with Check, Cali rejoined Spinelli who was still seated in the restaurant. Cali refused to testify at the trial. So, in view of the potential hearsay problems connected with any attempt to elicit the content of Spinelli's conversations with him, and after an objection on hearsay grounds had already been voiced, the prosecutor employed a method of questioning which he argued circumvented any hearsay problems. The prosecutor, after establishing that Check and Cali had conversed and that Cali had thereafter returned to speak to Spinelli, inquired of Spinelli (as he would ultimately inquire of him at least twelve additional times): "Without telling us what Mr. Cali said to you, what did you say to him?" 3 In response, Spinelli told the prosecutor, and also, of course, the jury, what he had purportedly said to Cali:
I after we had the conversation, I instructed William Cali that by no means did I intend to front any sum of money to Sandy Check, I didn't particularly care for the fact that initially he was supposed to come with an ounce of cocaine, and the taste which he had, which I was supposed to get prior to making the ounce buy of cocaine, was at his house, and due to the fact that it wasn't of good quality, I wasn't particularly concerned, as good faith wasn't being shown to me, especially for the fact I also told William Cali I had no intentions of giving Sandy Check $300 which William Cali owed to him from a previous narcotics deal. (Tr. at 67-68.)
Spinelli next testified that, following the conversation he had with Cali, Cali again departed the restaurant and spoke with Check. Cali then reentered the restaurant and "again (Spinelli and Cali) had a conversation." As before, Spinelli now related what he had supposedly "told William Cali":
At that time I told William Cali I didn't particularly care whether or not Check was concerned about rats and not wanting to meet anyone new or about being busted by the man, and I had again still no intention of fronting any money or the $300 which Cali owed him. (Tr. at 68.)
Leaving the restaurant for a third time and having his third powwow with Check, Cali, as before, returned, talked to Spinelli and, again, Spinelli now testified as to what this third time he had "told William Cali":
I told William Cali at the time I didn't particularly care whether or not the cocaine which I was supposed to get was 70 percent pure, nor the fact that it was supposed to come from a captain of detectives; I had again still no intention of fronting any money to him, the $1,200 for the ounce of cocaine or the $300 which William Cali owed to him. (Tr. at 70.)
Cali then left the restaurant for a further discussion with Check, returning shortly thereafter to relay additional information from Check to Spinelli. Spinelli testified that following this most recent shuttle, he "informed William Cali I still had no intentions of fronting the money, and that I was in agreement to allow him to again converse with Sandy Check." 4
The scene of the negotiations now shifted. After instructing Cali to continue his discussions with Check, Spinelli left the restaurant, passed Check in the street and proceeded to a nearby topless bar. Cali arrived at the bar ten minutes later and there Spinelli and Cali had another conversation. At trial, the government asked of the undercover agent: "Without telling us what Mr. Cali said to you, what did you say to him during that conversation?" 5 In accordance with the limitations of the question, Spinelli faithfully responded:
I had a conversation with William Cali and at the time I informed him that I was glad to find out that Check, after seeing me in the street, had felt somewhat more comfortable now, that he was going to make arrangements now to get the ounce of cocaine that I wanted, and that I was willing to wait with him to call Check at a quarter after 1:00, and then subsequently proceeded to pick up that ounce of cocaine. (Tr. at 76.)
Cali then made a telephone call to Check, which resulted in the scheduling of another meeting for the following day, August 9, and, after that telephone call, Spinelli and Cali again conferred, Spinelli advising Cali I told William Cali that I was willing to wait until the following day to get the ounce of cocaine, that I could understand that there was problems with Sandy Check's supplier, and that I would definitely have the money with me, and as arrangements, I would drop Cali off to meet Sandy Check and wait for him a few blocks away from the location. (Tr. at 80.)
As scheduled, on August 9 Spinelli and Cali returned to the lower east side of Manhattan. After Spinelli discharged Cali from the automobile in which both were riding, Cali met with Check and another man. 6 Meanwhile, Spinelli parked the car and walked to a nearby coffeeshop where he was to meet Cali. Cali arrived and he and Spinelli then proceeded to Little Peter's Bar at East 5th Street and Second Avenue and entered the bar. In a repetition of the events of the preceding day, Check appeared outside a window and signaled for Cali to meet with him there. Cali left the bar, conversed with Check, and returned to convey information to Spinelli. Questioned by the prosecutor concerning this, Spinelli again testified about what he "told William Cali."
I told William Cali at this time I had no intentions of purchasing an ounce of heroin, I didn't come there to purchase heroin, I cam (Sic ) here to purchase an ounce of cocaine, and I wasn't going to pay $2,200 for an ounce of heroin when the original deal was set up for $1,200 for an ounce of cocaine.
I had become somewhat annoyed at the situation at the time, and I instructed Cali that I wouldn't even pay $1,100 for a half an ounce of heroin.
Subsequently, I also instructed him as a fact I had no intention of fronting him the money for this, and that I wasn't by any means going to buy heroin. I wanted to buy cocaine, and that's what I was there for. (Tr. at 104.)
Cali's shuttling resumed. Following Cali's second talk with Check, Spinelli remained adamant in his refusal to purchase the heroin Check was now allegedly attempting to peddle:
After that conversation, I again instructed Cali that I had no concern whatsoever to buy heroin, I was going to remain with what I originally wanted; I wanted the cocaine and I didn't come there to purchase the heroin.
At the time I told him it may be good, it may be able to take a 4 to 1 cut, but that's not why I was there.
I wanted the cocaine. I wasn't concerned with good-quality heroin which was being offered to me. I wanted the cocaine. (Tr. at 105.)
Other "little trips" followed. One produced an offer by Check to sell a "taste" of heroin for $50. With regard to this offer, Spinelli told William Cali:
I instructed Mr. Cali that I had no intention of even getting a taste of...
To continue reading
Request your trial
-
U.S. v. Pedroza
...(error not harmless unless court can conclude with fair assurance that it did not substantially influence the jury); United States v. Check, 582 F.2d 668, 684 (2d Cir.1978); United States v. Ruffin, 575 F.2d 346, 360 (2d Cir.1978). The government, in its direct examination of Carlos, elicit......
-
U.S. v. Sampol
...337 (6th Cir. 1971), cert. denied 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (medical reports by unidentified authors); United States v. Check, 582 F.2d 668 (2d Cir. 1978) (informer's statements to undercover police exclude the evidence entirely, but merely insisted that the defense introduc......
-
State v. Edward Charles L.
...Pelaes v. United States, 479 U.S. 842, 107 S.Ct. 151, 93 L.Ed.2d 92 (1986), quoting from its earlier decision in United States v. Check, 582 F.2d 668, 675 (2d Cir.1978), agreed with this analysis: " '[T]he federal courts do not recognize any exception to the hearsay rule, or, except in the ......
-
United States v. Gallo, 86-CR-452 (JBW).
...can be attributed to the defendants sufficiently to warrant admission is a matter that need not now be decided. Cf. United States v. Check, 582 F.2d 668, 685-86 (2d Cir.1978) ("clear need" for prosecution's case must be shown). Any further threats or any harm to "X" traced to the defendants......