United States v. Smith

• Decision Date: 10 November 1960
• Docket Number: No. 11,Docket 26439.,11
• Citation: 283 F.2d 760
• Parties: UNITED STATES of America, Appellee, v. Oliver SMITH, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

283 F.2d 760 (1960)

UNITED STATES of America, Appellee, v. Oliver SMITH, Appellant.

No. 11, Docket 26439.

United States Court of Appeals Second Circuit.

Argued September 30, 1960.

Decided November 10, 1960.

Menahem Stim, New York City, for appellant.

Samuel Sheres and S. Hazard Gillespie, Jr., U. S. Attys., New York City, David Klingsberg, Asst. U. S. Atty., New York City, of counsel, for appellee.

Before LUMBARD, Chief Judge, and HAND and FRIENDLY, Circuit Judges.

HAND, Circuit Judge.

This appeal is from a judgment convicting the defendant, Smith, of selling a parcel of heroin on April 28, 1959. The evidence for the prosecution was in substance as follows. On April 23, 1959, Avant, an agent of the Bureau of Narcotics, entered the "Dunbar Bar" in New York in company with one, Mack, who is described as a "special employee of the bureau." While there, Smith entered and had a talk with Mack out of the hearing of Avant. After Mack's return he told Avant that Smith had told him that he would sell narcotics to Avant but only through Mack as an intermediary, and that Mack had answered that Smith should remember Avant, because they had served in the same regiment during the last war, although Smith did not recall having met him. Nothing else happened on that day but on the 24th Mack introduced Avant to Smith and told him that Avant was a narcotics dealer from Boston. Smith was then accompanied by one, Moore, and the four men, Mack, Avant, Moore and Smith, all entered Smith's motor car where they talked of a purchase of narcotics by Avant from Smith. Smith and Moore questioned Avant about Avant's narcotics activity, and asked him whether he was not a law enforcement officer ("the man"). Apparently satisfied that he was not, Smith agreed to sell Avant one-half an ounce of heroin for $250.00, and told him and Mack to wait at the "Dunbar Bar" for a telephone call. Two or three hours later Avant and Mack went to several places which Smith had suggested, but the heroin was not at any of them. The next morning Avant and Mack went to Smith's house where Avant complained of his treatment and Smith excused himself on the ground that he and Moore wanted to be sure that they were not dealing with a "policeman." He said that they were now satisfied that he was not a "policeman," and that he would deliver the heroin by Sunday, the 26th. They talked of the price again and agreed that Avant should pay $225.00 instead of $250.00 for the half ounce. On Monday, the 27th, Smith told Avant that he had not been able to get the heroin; but on Tuesday, the 28th, Avant went to Smith's house where he met Smith who asked him to wait. A little later in accordance with a telephone instruction from Smith, Avant went to another bar where shortly after his arrival Smith came and again asked Avant if he was not "the man" — meaning once more, a "policeman." Avant assured him that he was not, and Smith then gave him a brown package which contained heroin for which Avant paid him $225.00. Two other narcotics agents confirmed some of the details of Avant's testimony, though not the actual delivery.

Avant further testified that on May 15 he again went to Smith's house who asked him how he had liked the heroin. Avant told him that the grade was not good, but Smith promised that he was now handling a better grade, and that, if they continued in business together Avant would be satisfied as to the quality of the heroin. He asked Avant if he was now ready to purchase one-half a kilo of narcotics, to which Avant answered that at the moment he would take only half an ounce sample which his "partner" would check before buying a half kilo. Smith and Avant then drove to meet a friend of Smith, one Cruz, at another bar, and on the way Smith boasted of his success in narcotics. At the bar Cruz joined Smith and had a talk with him which Avant did not hear. Later that day Smith told Avant that he would not be able to get the heroin (apparently the sample for the proposed sale) until after five o'clock, but that he would call Avant at his home and let him know when he got it. Avant telephoned at about that time, but Smith told him nothing about the sample. Avant on cross-examination denied that he had known Smith in the army and there was no evidence that they had been personally acquainted.

Smith did not take the stand, but his wife did and stated that on Saturday, the 25th, Avant had come to Smith's apartment and had demanded back the money which Avant had already paid him. Smith called in Moore who paid Avant a sum of money and in addition cashed a check whose proceeds he also gave him. Mack also took the stand in defense and said that he was at Smith's apartment on Saturday, the 25th, when Avant demanded the heroin or his money back, and that someone came in with money which Smith gave to Avant. Mack denied that he had ever been present in an automobile with Avant, Moore, and Smith. Thereupon, the prosecution put in as part of the cross-examination of Mack a written statement of Mack in which he said that Smith had furnished the narcotics in an earlier sale three months before the sale charged in the indictment. On rebuttal the prosecution offered in evidence the testimony of one, Coursey, another agent of the Bureau of Narcotics, who testified to a conversation he had had with Smith on December 21st in which they had agreed upon the purchase of an ounce of heroin, but for some undisclosed reason the sale was never made.

That there was enough evidence to sustain the verdict is plain, nor were there any rulings that the defendant did or could successfully challenge except (1), the admission of the agreement with Coursey for the later sale in December, (2), the tentative arrangement in May in which Smith offered to deliver a half kilo to Avant, if the new proposed sample proved satisfactory, (3), the statement of Mack in his cross-examination that Smith had been party to a sale before the sale alleged in the indictment.¹ We do not understand that the prosecution means to argue that it was permissible to introduce evidence of earlier or later sales or negotiations, in order to show the disposition or propensity of the accused to commit the crime charged. The contrary is very old law which the Supreme Court in Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077, and which we ourselves have at times had occasion to follow. United States v. Modern...