United States v. DeDominicis

• Decision Date: 22 May 1964
• Docket Number: No. 378,Docket 28200.,378
• Citation: 332 F.2d 207
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George DeDOMINICIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

332 F.2d 207 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. George DeDOMINICIS, Defendant-Appellant.

No. 378, Docket 28200.

United States Court of Appeals Second Circuit.

Argued April 6, 1964.

Decided May 22, 1964.

Thaddeus S. Zolkiewiez, Asst. U. S. Atty., Western District of New York, Buffalo, N. Y. (John T. Curtin, U. S. Atty., Western District of New York, on the brief), for plaintiff-appellee.

Harold J. Boreanaz, Buffalo, N. Y., for defendant-appellant.

Before LUMBARD, Chief Judge, and MOORE and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

Appellant was convicted after a jury trial before Judge John O. Henderson in the Western District of New York of buying unstamped and illegally imported heroin, in violation of 26 U.S.C. § 4704 and 21 U.S.C. § 174. He was sentenced to five years on each of 28 counts, the sentences to run concurrently. He was acquitted on one count.

Appellant was not caught with the heroin in his possession. The government's entire case rested on the testimony of one Albert Moreton, who, at the trial in March 1962, testified that during 1959 he supplied the defendant with about $80 worth of heroin each week for some 14 weeks. Though Moreton was an untrustworthy and unreliable character, the jury, after two days deliberation evidently decided to credit his testimony, as they had a right to do. Appellant did not take the stand and offered no testimony. Were there no errors in the admission of evidence or conduct of the trial the verdict would stand. United States v. Agueci, 310 F.2d 817, 833 (2 Cir.1962). However, we find error in the denial of a motion for mistrial based on the admission of prejudicial hearsay testimony, and reverse the judgment and remand for new trial.

None of the individual points raised by the appellant's brief standing alone and in the abstract would convince us that the conviction should not stand, but taken in the setting of this case we think the admission of inadmissible hearsay implying some association with a Canadian purveyor of narcotics, even though later stricken, was so likely to prejudice the defendant that the conviction may not be affirmed. Other rulings attacked on appeal we find correct. First it is argued that the trial court erred in allowing the government to introduce into evidence Exhibit G-2, a picture on which Moreton claimed he mixed a batch of the substances he sold the appellant. The basis of this contention is that an adequate chain of control with respect to this exhibit had not been established. Moreton had been living with two aunts until the middle of July of 1959, when he moved to another address. The picture was left in the bedroom in his aunts' apartment, resting on the floor and leaning against the wall. On October 28, 1959 a federal agent picked up the picture and had a substance adhering to it tested for narcotics. Analysis revealed heroin hydrochloride. Moreton testified that the room in which it was found was his bedroom, and that no one else slept there in his absence. While it is possible that someone might have gone into the room in Moreton's absence and mixed a batch of cut heroin hydrochloride on the glass of the picture, it is quite unlikely. Appellant's objection to the picture goes to its weight rather than its admissibility. We find no error in its admission.

There is no merit to another point of appellant, that the statutory presumptions were not available to the government because there was no direct proof of possession. One weakness in this argument is that there was direct proof of possession in Moreton's testimony. Moreton testified that he delivered a substance to appellant on several occasions; that this substance produced the same reaction on him as the heroin in his possession when he was arrested; and that he had mixed the substance he sold appellant on the glass of the heroin tainted picture. In any case, even if the proof were circumstantial, it would suffice if convincing beyond a reasonable doubt. United States v. Agueci, supra, 310 F.2d at 828.

Additionally, appellant urges that the testimony of Dean Gavin, a Buffalo policeman, to the effect that he had seen appellant park a car registered to a girl who lived at an address to which Moreton had delivered drugs, was prejudicial hearsay. The testimony that he had seen defendant park the car was eye witness...