United States v. Frascone

• Citation: 299 F.2d 824
• Decision Date: 05 February 1962
• Docket Number: No. 79,Docket 26944.,79
• Parties: UNITED STATES of America, Appellee, v. Salvatore FRASCONE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

299 F.2d 824 (1962)

UNITED STATES of America, Appellee, v. Salvatore FRASCONE, Appellant.

No. 79, Docket 26944.

United States Court of Appeals Second Circuit.

Argued October 9, 1961.

Decided February 5, 1962.

As Amended on Denial of Rehearing March 19, 1962.

Earl J. McHugh, New York City, for appellant.

Robert M. Morgenthau, U. S. Atty., S. D. New York, New York City (David Klingsberg, Arthur I. Rosett, Asst. U. S. Attys., of counsel), for appellee.

Before CLARK, WATERMAN and MOORE, Circuit Judges.

WATERMAN, Circuit Judge.

After a jury trial in the United States District Court for the Southern District of New York, appellant, Salvatore Frascone, was convicted on four counts of an indictment charging him with making illegal sales of narcotics. On this appeal we affirm the conviction.

At appellant's trial three agents of the Federal Bureau of Narcotics testified for the prosecution. Agent Charles R. McDonnell testified that on October 6, 1958, at 116th Street and Madison Avenue in New York City, Joseph Bove, a special employee, or informer, working for the Bureau of Narcotics, introduced him to a man called "Johnny," who was later identified as appellant. At that meeting McDonnell told appellant that he wished to purchase heroin. Appellant offered to get McDonnell an ounce of "pure" for $400. The agent answered that he only wanted half an ounce. Frascone asked McDonnell where he could be reached, McDonnell gave Frascone his telephone number, and Frascone said that he would call him the next evening.

All the while narcotics agent Patrick Biase had this meeting under surveillance. He testified that after the conversation related above appellant entered a 1948 Plymouth and drove to the Vivere Bar and Grill at Second Avenue and 10th Street.

McDonnell testified that on the next day, October 7, Frascone called him as promised, and pursuant to the call they met at 10th Street and Second Avenue. After Frascone entered McDonnell's automobile, the agent drove around the block and stopped at 11th Street and Second Avenue, as Frascone had instructed him to do. There appellant got out of McDonnell's car and walked to a Cadillac parked nearby. Then appellant reentered the agent's car and gave McDonnell a small brown package, for which the agent paid $200. Frascone asserted that the package contained a full ounce of heroin and therefore McDonnell owed him another $200. McDonnell said that he would have to see Frascone the next day about the additional money. Frascone acquiesced. Agent Biase, who had observed the first meeting between McDonnel and appellant, was also observing the meeting of October 7. He testified that after McDonnell left, appellant went into the Vivere Lounge. The next day McDonnell paid Frascone the additional $200.

An analysis of the contents of the package which Frascone had given McDonnell revealed that it contained 395 grams, slightly less than one ounce, of heroin.

The next contact between appellant and the narcotics officers, McDonnell testified, was a telephone call by appellant to McDonnell on November 21, 1958, in which appellant offered to sell him several more ounces of heroin. They agreed on a price of $280 for this purchase. McDonnell met Frascone at 10th Street and Second Avenue once again. McDonnell was accompanied by another agent, Jack R. Peterson, whom McDonnell introduced to appellant as the man who would pick up the narcotics for McDonnell in the future. After a brief conversation held privately between McDonnell and appellant, McDonnell counted out $300 and gave it to agent Peterson. McDonnell then left Peterson alone with Frascone.

Agent Peterson testified that he and Frascone walked over to Avenue A. There Frascone told the agent that the heroin was under the front seat of a car parked on that avenue near the corner of 11th Street. To identify the correct car, Frascone walked up to it and lit a cigarette. It was the same 1948 Plymouth that appellant had driven on October 6. Then Peterson entered the car and found under the front seat two glassine envelopes containing white powder. Peterson examined the powder as best he could and concluded that it was heroin. He rejoined Frascone, who had been standing nearby, and paid him $280 for the two envelopes.

A subsequent laboratory analysis proved the white powder to be approximately two ounces of heroin.

On December 5, 1960, a four count indictment was filed against Frascone, charging him with making illegal sales of narcotics. Counts one and two related to the sales of October 7, 1958. Count one charged a violation of narcotics laws, 46 Stat. 586 (1930), 21 U.S.C.A. § 173, and 70 Stat. 570 (1956), 21 U.S.C.A. § 174. Count two charged a violation of Int.Rev.Code of 1954 §§ 4701, 4703, 4704 (a), 4771(a), 26 U.S.C.A. §§ 4701, 4703, 4704(a), 4771(a), which impose a federal tax on narcotics. Counts three and four related to the sale of November 21, 1958, and, respectively, charged Frascone with violations of the same narcotics acts as did counts one and two. After a trial lasting three days Frascone was convicted on March 2, 1961, on all four counts of the indictment and sentenced to seven years imprisonment and a fine of $4,000. Frascone now appeals to this court from the judgment entered upon that conviction.

Upon this appeal Frascone first asserts that the trial judge committed reversible error in his explanation to the informer, Bove, called as a witness by the defense, concerning Bove's privilege against self-incrimination. The court advised Bove of his right in these terms:

"The Court: Mr. Bove, you have been brought down here by the marshal?

"The Witness: I was.

"The Court: Well, I wish to advise you that under the Fifth Amendment of the Constitution — you may be seated —

"The Witness: Yes.

"The Court: — you may refuse to answer any questions that might be asked if you feel that they might tend to degrade or incriminate you."

To most of the questions asked him on direct examination by defense counsel Bove replied, "I refuse to answer on the ground that it may tend to incriminate or degrade me," or, simply, "I take the Fifth Amendment." Appellant has especially called to our attention three of the questions which the informer refused to answer:

"Q. Did you ever introduce Salvatore Frascone to one Charles McDonnell, a narcotic agent? A. I refuse to answer. I take the Fifth.

"Q. Did you ever tell Agent McDonnell, or anybody else connected with the Bureau of Narcotics, or any member of the United States Government — (interruption omitted) — that you knew Salvatore Frascone to be the same party called Johnny? A. I refuse to answer. I take the Fifth for the same reason.

"Q. Did you ever introduce Charles R. McDonnell to one Johnny as a gentleman from New Jersey? A. I refuse to answer. I take the Fifth for the same reason."

At the trial defense counsel made a specific objection to this reliance by his witness on the Fifth Amendment. He only objected on the ground that Bove could not assert his right against self-incrimination "unless he conveys the degradating or incriminating circumstances which would entitle him to the use of it, and those circumstances must be conveyed to your Honor, to find out whether he is justified in his position, or because he is just acting capriciously because he wants to have it done that way, but that is not a right under the Fifth Amendment." Indeed the trial court's advice to the witness was erroneous, for the privilege against self-incrimination does not protect one from testifying to matters which might degrade him without also incriminating him. Brown v. Walker, 161 U.S. 591, 605-606, 16 S.Ct. 644, 40 L.Ed. 819 (1896). However, the single ground upon which appellant's trial counsel based his specific objection to the witness's assertion of privilege was untenable. To require one to relate the circumstances which he thinks entitle him to assert his privilege against self-incrimination would cause him while asserting the privilege to lose the protection the privilege guarantees. Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Generally, if the objection is based upon an untenable ground a specific objection made at trial to the exclusion of evidence cannot be relied upon for a reversal even though a valid ground for objection existed. See United States v. Sing Kee, 250 F.2d 236 (2 Cir. 1957), cert. denied, 355 U.S. 934, 78 S.Ct. 538, 2 L.Ed.2d 530 (1958); Norwood v. Great Am. Indem. Co., 3 Cir., 146 F.2d 797 (1944); Wigmore, Evidence § 18 at 339-40 (3d ed. 1940). As we stated in United States v. Sansone, 2 Cir., 231 F.2d 887, 891, cert. denied, 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956):

"While we may in our discretion notice errors not brought to the attention of the trial court, Rule 52 (b), Federal Rules of Criminal Procedure, 18 U.S.C., this discretion will not be exercised to reverse a conviction based on ample evidence unless the errors have seriously prejudiced the defendant or affected the fairness, integrity, or public reputation of judicial proceedings. See United States v. Atkinson, 1936, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555; United States v. Jones, 7 Cir., 1953, 204 F.2d 745, certiorari denied 346 U.S. 854, 74 S.Ct. 67, 98 L.Ed. 368, rehearing denied 346 U.S. 905, 74 S. Ct. 216, 98 L.Ed. 404."

If it were demonstrated from the trial record that the trial court's uncorrected mistake would result in a miscarriage of justice, we would conceive it our duty to overlook counsel's failure properly to support his objection. But no such injustice has occurred here. It is inconceivable to us that Bove would have answered the significant questions asked him by the defense if he had received proper advice as to the scope of his rights under the Fifth Amendment. When asked questions that could have tended to incriminate him, he would not have said to himself, "I am willing to incriminate myself but am unwilling to degrade myself —...