United States v. Cording

• Citation: 290 F.2d 392
• Decision Date: 18 May 1961
• Docket Number: No. 324,Docket 26773.,324
• Parties: UNITED STATES of America, Appellee, v. Henry CORDING, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

290 F.2d 392 (1961)

UNITED STATES of America, Appellee, v. Henry CORDING, Defendant-Appellant.

No. 324, Docket 26773.

United States Court of Appeals Second Circuit.

Argued April 10, 1961.

Decided May 18, 1961.

James J. Hanrahan, New York City, for defendant-appellant.

Averill M. Williams, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Elliott Kahaner, U. S. Atty., Brooklyn, N. Y., on the brief), for appellee.

Before CLARK, MEDINA, and FRIENDLY, Circuit Judges.

CLARK, Circuit Judge.

Defendant Henry Cording appeals from a judgment of conviction on three counts of an indictment for the illegal sale of heroin, 21 U.S.C. § 174, 26 U.S.C. §§ 4704(a), 4705(a). An earlier trial on these counts before Judge Abruzzo resulted in a hung jury; and, for his first point, defendant contends that a second trial was therefore barred on the ground of former jeopardy. On the first trial the jury commenced deliberations at 3:50 p. m., recessed for dinner at 6:30 p. m., and resumed deliberations at 8:30 p.m. At 9:40 p. m., the foreman reported that the jury had not been able to agree and that there was no likelihood of their agreeing if they were kept out longer. Judge Abruzzo thereupon declared a mistrial. Since the jury had declared its inability to agree on a verdict, the action of the court in discharging the jury was a proper exercise of its discretion. In these circumstances it is well established that a second trial may be had without running afoul of the prohibition against double jeopardy. Keerl v. State of Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734; Dreyer v. People of State of Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; Logan v. United States, 144 U.S. 263, 297-298, 12 S.Ct. 617, 36 L.Ed. 429; United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165.

At the second trial the testimony of federal agents as to purchasing the drugs from defendant was ample to offset his defense of alibi, and hence he is forced to rely on alleged errors in the trial. Thus he assigns error in the quashing of a subpoena served upon the Federal Bureau of Narcotics, seeking books and records regarding defendant's visits to the Bureau. During the trial Agent Dolce testified that defendant had been interviewed three times at the Bureau and had made various incriminating statements in connection with a Bureau request for co-operation in tracking down other violators. Defendant admitted to only one such meeting and denied making the statements described by Dolce. After the conclusion of the government's case defendant served the subpoena just described, for the purpose of showing that only one meeting occurred and that Dolce's testimony was false. The court granted a government motion to quash the subpoena on the ground that officers of the Bureau of Narcotics were prohibited by regulation from producing such records in any proceeding.

Of course the government cannot utilize its claim of privilege to deny a defendant in a criminal prosecution access to information relevant and helpful to his defense. United States v. Andolschek, 2 Cir., 142 F.2d 503, 506; Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. But where the government concedes at trial the very facts that the defense seeks to establish by production of the records, the defendant is hardly prejudiced by their nonproduction. In the present case the sole purpose of the subpoena was to establish that Dolce's account of the meeting was unsubstantiated by any of the records of the Bureau. At trial Dolce admitted that, aside from the photographing and fingerprinting of the defendant, no record was made of defendant's coming to the Bureau, or of what transpired at the alleged meetings. Defendant thus obtained an admission by the government that it lacked any record of the described meetings or conversations, and had no need of access to Bureau records to establish this fact. Furthermore, defendant accepted Dolce's statement that, apart from fingerprinting and photographing, the Bureau generally did not keep a record of visits of persons such as the defendant. Thus defendant made no claim that the absence of records...