United States v. Adams

• Decision Date: 30 October 1967
• Docket Number: Docket 31355.,No. 104,104
• Citation: 385 F.2d 548
• Parties: UNITED STATES of America, Appellee, v. Mack ADAMS, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

385 F.2d 548 (1967)

UNITED STATES of America, Appellee, v. Mack ADAMS, Appellant.

No. 104, Docket 31355.

United States Court of Appeals Second Circuit.

Argued October 4, 1967.

Decided October 30, 1967.

Leon Silverman, New York City (Allen Isaacson, New York City, of counsel), for appellant.

Paul B. Galvani, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Otto G. Obermaier, Pierre N. Leval, Asst. U. S. Attys., of counsel), for appellee.

Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge.

Mack Adams was convicted before Judge Bonsal and a jury in the District Court for the Southern District of New York for selling cocaine to a narcotics agent on June 16, 21, and 28, 1965, without a written order form in violation of 26 U.S.C. § 4705(a). Although the agents' testimony abundantly supported the verdict despite the innocent version of his meetings to which Adams testified, we are constrained to reverse because of the judge's allowing the jury to see incriminating writings by the agent making the purchase which had not been received in evidence.

At the end of the agent's testimony the Government offered three lock-seal envelopes in which he had delivered the purchased cocaine to the examining chemist. The front of the envelope contained a printed form filled out by the agent in handwriting;¹ the back bore a handwritten notation by the agent.² When defense counsel objected to what he characterized as "some self-serving written statements on the front of the envelope," the prosecutor responded, "We are not pressing the offer with respect to the writing other than the signature of the agent" on the back of the envelope. The court then said:

"That is what I imagine. I will receive them with appropriate instructions with regard to the writing of the agent."

After the jury had been deliberating for some time, the judge announced to counsel he had received the following message:

"Want to see exhibits of envelopes to determine writing thereon. All lock sealed envelopes and containers of narcotics."

Defense counsel recalled his objection to the writings and the receipt of the envelopes in evidence "with that writing off them in some way," and expressed the hope that they would not be exhibited to the jury. The Assistant United States Attorney countered that any objection was met "by the fact that he the agent testified to it on the stand." Observing that if the jury believed the agent's testimony, "there isn't any problem," and that "If they don't believe his testimony, they won't believe it because it is on the envelope," the judge announced he would send the envelopes to the jury. When defense counsel again reminded of the limited basis on which the envelopes had been received and objected that if the writing "is not in evidence now, the jury cannot look at it," the court replied, "if it isn't in evidence, it is now," and sent the exhibits to the jury room.

The Government has commendably called our attention to United States v. Ware, 247 F.2d 698 (7 Cir. 1957), and Sanchez v. United States, 293 F.2d 260 (8 Cir. 1961), in which the courts reversed convictions where similar envelopes were received in evidence over objection and were sent to the jury room. The holdings were that the writings were not admissible under the Business Records Act, 28 U.S.C. § 1732, or the Governments Records Act, 28 U.S.C. § 1733, and that even though they were merely cumulative of the agent's testimony, their receipt and particularly their transmission to the jury room were prejudicial since "the jury thus had before it a neat condensation of the government's whole case against the defendant." 247 F.2d at 700.

We accept the Government's concession that the records did not qualify under 28 U.S.C. §§ 1732 or 1733 without foreclosing the issue if it should arise again. But we reject its attempt to distinguish the Ware and Sanchez decisions for failing to "consider the proper supporting ground — the identification of the narcotic exhibits and the proof of undisturbed custody." This confuses relevancy and competency. The writings were indeed relevant to the narrower issue now suggested as well as the broader one to which the jury doubtless applied them. But if they did not qualify as business or government records, the sole basis for receiving them would have been as past recollection recorded.³ While in a proper case we might wish to consider the continuing vitality of the federal rule, heavily criticized by the text writers, see 3 Wigmore, Evidence § 738 (2 ed. 1940); McCormick, Evidence § 277 (1954), conditioning the admission of a record of past recollection on the absence of a present recollection, Vicksburg & Meridian R.R. v. O'Brien, 119 U.S. 99, 102, 7 S.Ct. 118, 30 L.Ed. 299 (1886),⁴ we need not do so here. For in the present case the writings had never been received in evidence at all. True, it is hard to conceive that if they had been, defense counsel would have been able to weaken them either by cross-examining the agent or by showing a history of fabrication. But the principle that the jury may consider only matter that has been received in evidence is so fundamental that a breach of it should not be condoned if there is the slightest possibility that harm could have resulted. See Osborne v. United States, 351 F.2d 111, 113-119 (8 Cir. 1965); cf. Harrington v. Sharff, 305 F.2d 333, 337-338 (2 Cir. 1962). Even where the writings had been admitted, the Ware and Sanchez courts rejected the claim that any error in sending them to the jury was harmless since the agents had testified and were cross-examined on the same subjects. Compare United States v. Sherman, 171 F.2d 619, 621-622 (2 Cir. 1948), cert. denied, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed.2d 1738 (1949).

We comment briefly on Adams' two...