United States v. McCartney, 12421.

• Decision Date: 20 March 1959
• Docket Number: No. 12421.,12421.
• Citation: 264 F.2d 628
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vairee McCARTNEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

264 F.2d 628 (1959)

UNITED STATES of America, Plaintiff-Appellee, v. Vairee McCARTNEY, Defendant-Appellant.

No. 12421.

United States Court of Appeals Seventh Circuit.

March 20, 1959.

Ray H. Greenblatt, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Atty., Chicago, Ill., for appellee.

Before SCHNACKENBERG, PARKINSON and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

Defendant Vairee McCartney was indicted on six counts charging sales of narcotic drugs on or about June 10, July 30, and December 12, 1957, and receiving, concealing, buying, and facilitating the transportation and concealment after importation of narcotic drugs on the same occasions in violation of Title 26 U.S.C. Sec. 4705(a) and Title 21 U.S.C.A. § 174, respectively, both as amended by the Narcotic Control Act of 1956.

The jury returned a verdict of guilty on all six counts. The Government filed certified copy of a prior narcotics conviction. The Court imposed a sentence of twenty years. Defendant appealed. The errors on which he relies arise out of rulings on the evidence.

The testimony of the Government's witnesses conflicted sharply with that of defendant. These conflicts presented issues of fact for the Jury.

It is, however, undisputed that a special employee of the Bureau of Narcotics, known to defendant as Angelo Williams and to the Bureau as George Dallas, introduced the defendant to Federal Narcotics Agent John F. Graf, describing Graf as a dealer in narcotics.

Government witnesses testified that on the three occasions stated in the indictment, defendant received money from Graf to procure narcotics which defendant subsequently delivered.

Defendant, on the other hand, testified that Williams had proposed a plan whereby he and defendant would take Graf's money and sell him harmless non-narcotic preparations; that Williams kept the preparations, and that at no time did defendant transfer these, or any other substances, to Graf.

Typical of the conflict in details is defendant's statement that, on June 10, 1957, he and Williams took money from Graf and left together to purchase the ingredients from which the non-narcotic preparation was made. Agents Graf and Attie both testified that Williams remained with Graf and that defendant departed alone.

Williams was not produced as a witness. The testimony indicated that defendant and the Government both sought unsuccessfully to locate him.

Defendant states the contested issues to be:

(1) Is the admission over defendant's objection of a hearsay statement to the effect that defendant had sold narcotics on occasions prior to those charged in the indictment reversible error?

(2) Can defendant's failure to deny the special employee's statement concerning prior sales of narcotics be interpreted only as an admission by silence that he had in fact made such sales or does the testimony presented by defendant indicate that he might have been motivated not to deny the statement even if he had not in fact made prior sales of narcotics, and therefore that his silence is not an admission?

(3) Is the statement of the special employee concerning past sales of narcotics admissible not to prove the truth of such statement but only for the purpose of proving that such statement was made?

(4) If the statement of the special employee concerning past sales of narcotics was not inadmissible under the hearsay rule, either because it constituted an admission by silence or for some other reason, is such statement nevertheless inadmissible because evidence of prior sales is relevant in the present case only for the purpose of proving that defendant was generally disposed to commit narcotics violations?

(5) If it was error to admit evidence of the special employee's reference to prior sales of narcotics, was such error prejudicial?

(6) Did the trial judge err in refusing to strike or exclude testimony of a witness identifying defendant as the other party to three telephone conversations which the witness overheard where the witness testified that he was unfamiliar with defendant's voice?

(7) Did the trial judge err in permitting the Government to elicit detailed testimony from a witness during his second day on the stand with respect to the identical matters on which he had given detailed testimony his first day on the stand and in permitting him not only to repeat his prior testimony but to correct certain details so that it would corroborate the testimony of the Government's chief witness?

(8) Did the trial judge err in permitting the prosecution to offer testimony of a Government chemist as to the average percentage of narcotics in mixtures he had analyzed during his twenty-five years with the Treasury Department as a standard of comparison in view of the absence of any foundation indicating the nature and source of such mixtures and the significance of such mixtures as a standard for comparison?

In relating the events of June 10, 1957, Agent Graf testified that when he expressed reluctance to trust defendant with an advance payment of $400, Williams said that he had purchased narcotics from defendant on previous occasions. As a general rule, of course, evidence of another offense, wholly independent of the...