United States v. Martinez

• Citation: 333 F.2d 80
• Decision Date: 15 June 1964
• Docket Number: No. 494,Docket 28401.,494
• Parties: UNITED STATES of America, Appellee, v. Jose Mario MARTINEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

333 F.2d 80 (1964)

UNITED STATES of America, Appellee, v. Jose Mario MARTINEZ, Defendant-Appellant.

No. 494, Docket 28401.

United States Court of Appeals Second Circuit.

Argued June 4, 1964.

Decided June 15, 1964.

Certiorari Denied November 9, 1964.

Leon B. Polsky, New York City (Anthony F. Marra, The Legal Aid Society), for appellant.

Andrew M. Lawler, Jr. (Robert M. Morgenthau, U. S. Atty., for Southern District of New York) (Robert J. McGuire, Asst. U. S. Atty., of counsel), for appellee.

Before MOORE, FRIENDLY and KAUFMAN, Circuit Judges.

Certiorari Denied November 9, 1964. See 85 S.Ct. 199.

PER CURIAM:

This appeal from a judgment of the District Court for the Southern District of New York in which Judge Croake, sitting without a jury, convicted appellant Martinez of selling cocaine to a federal narcotics agent in violation of 21 U.S.C. §§ 173 and 174, raises two claims. The first, that the clause authorizing conviction under § 174 on a showing merely of possession of a narcotic drug cannot constitutionally apply to possession of cocaine, is sufficiently answered by our recent decision in United States v. Sorenson, 2 Cir., 330 F.2d 1018 (1964), where we rejected a similar argument when, as here, it was made without evidentiary support in the trial record, unlike Erwing v. United States, 323 F.2d 674 (9 Cir. 1963), which we distinguished on that account.

The second concerns a question asked of defense counsel by the judge. It arose out of a dispute as to the accuracy of the identification of the defendant as the man who had made the sale.

The Government's case rested on the testimony of the agent to whom the sale was made and of a surveilling agent. The defense countered with the evidence of a woman who had pleaded guilty to two related counts, had previously lived with Martinez, and was in love with him; she claimed that the agents had arrested the wrong man — the true culprit being one "Raymond" whose last name she did not know. Martinez did not testify. In the course of discussion as to the sufficiency of the identification, the following interchange occurred between the judge and defense counsel:

"The Court: Mr. Moldow, you may object to this question if you want to, that I am about to ask.

"Had this man had any prior offense in this Court?

"Mr. Moldow: I don\'t think it would be appropriate for me to make any statement regarding his background in view of the fact that after conferring with him there was an election between us that he would not take the stand.

"The Court: I won\'t press the question."

As Martinez did not testify or place his character at issue, it would have been wholly improper for the Government to produce evidence of prior offenses in the circumstances here present. See Lane v. Warden, 320 F.2d 179 (4 Cir. 1963), and cases cited. The judge thus should not have asked the question we have quoted, since an affirmative answer would have introduced into the record material which would require reversal unless later excluded. But the wise response of defendant's trial counsel, properly availing himself of the judge's invitation to...