United States v. Ware

• Citation: 247 F.2d 698
• Decision Date: 29 July 1957
• Docket Number: No. 11962.,11962.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry WARE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

247 F.2d 698 (1957)

UNITED STATES of America, Plaintiff-Appellee, v. Larry WARE, Defendant-Appellant.

No. 11962.

United States Court of Appeals Seventh Circuit.

July 29, 1957.

Theodore R. Sherwin, Chicago, Ill., Julius L. Sherwin, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski and Edwin A. Strugala, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.

Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.

SWAIM, Circuit Judge.

Defendant has appealed from a judgment of the District Court entered upon a jury verdict finding the defendant guilty on six counts of an indictment charging violations of 26 U.S.C.A. (I.R.C. 1939) §§ 2553(a), 2554(a) and 21 U.S. C.A. § 174, relating to the unlawful acquisition, concealment and sale of heroin. The errors relied on for reversal arise out of rulings on evidence and the failure of the District Court to grant defendant's motion for a mistrial.

The defendant contends that the District Court erred in permitting the government to introduce in evidence certain exhibits prepared by federal narcotic agents who on two occasions made purchases of heroin from the defendant. These exhibits are envelopes in which the heroin purchased from the defendant was placed and then transmitted to a government chemist for analysis. Various notations made by the narcotic agents concerning the purchases and the circumstances under which they were made appear on the envelopes.¹

Defendant also complains that it was error to admit into evidence certain exhibits prepared by the government chemist who made analyses of the heroin purchased from the defendant. These exhibits are envelopes on which the chemist recorded the findings of his analysis.² It was testified at the trial that the heroin could not be conclusively identified as such until subjected to chemical analysis.

The exhibits were prepared out of the defendant's presence and contain the conclusions of government witnesses as to matters which were in the jury's province to determine. They are clearly hearsay and inadmissible unless within an exception to the hearsay rule. The District Court admitted the exhibits into evidence on the theory that they qualified as business entries under the Shopkeeper's Rule, 28 U.S.C.A. § 1732. The government also urges that they were admissible under the Government's Records Act, 28 U.S.C.A. § 1733.

Although both parties have lumped together consideration of the exhibits made by the narcotic agents and the exhibits made by the government chemist, we have found it necessary to consider them separately. We think there can be no doubt that the exhibits or memoranda made by the chemist were admissible as having been made in the regular course of business and that it was the regular course of business to make such memoranda or record of the findings of the chemist's analyses of the substances purchased from the defendant. Cf. Wheeler v. United States, 93 U.S.App.D.C. 159, 211 F.2d 19, certiorari denied 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140; E. K. Hardison Seed Co. v. Jones, 6 Cir., 149 F.2d 252; and see Rennicke v. United States, 8 Cir., 207 F. 2d 429. These exhibits also satisfy the underlying reason for this exception to the hearsay rule and the admission of this class of statements under section 1732 — the probability of their trust-worthiness. See Palmer v. Hoffman, 318 U.S. 109, 113-114, 63 S.Ct. 477, 87 L.Ed. 645; 5 Wigmore, Evidence § 1522 (3d ed., 1940).

The exhibits or memoranda made by the narcotic agents however satisfy none of the requirements of section 1732. The government has not shown, in the language of the statute, that the statements were recorded in the regular course of business and that it was the regular course of business to make such memoranda or records. And even if memoranda such as the ones in question are regularly prepared by law enforcement officers, they lack the necessary earmarks of reliability and trustworthiness. Their source and the nature and manner of their compilation unavoidably dictate that they are inadmissible under section 1732. They are also subject to the objection that such utility as they possess relates primarily to prosecution of suspected law breakers, and only incidentally to the systematic conduct of the police business. Cf. Palmer v. Hoffman, supra.

The rule contended for by the government could have far-reaching results not envisioned by the drafters of section 1732. In the instant case, the entrants or makers of the memoranda were available for cross-examination and testified as witnesses at the trial, but we can well imagine the situation where the entrant or maker was dead or unavailable and a conviction would be sought on the basis of such memoranda alone. Further, we are not aware of any dire consequences that will befall law enforcement officials by holding such memoranda inadmissible as might occur by the exclusion of the business entries of commercial enterprises. See Massachusetts Bonding & Ins. Co. v. Norwich Pharmacal Co., 2 Cir., 18 F.2d 934, 937. We do not suggest however that section 1732 is limited in its application to enterprises commercial in nature.

Nor do we think that the exhibits were admissible under the Government's Records Act, 28 U.S.C.A. § 1733, "Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept." On their face the memoranda in question do not come within the scope of this statute.

The government argues in the alternative that the error complained of is not of sufficient substance to warrant reversal. In support of this argument the government points to the fact that the persons who made the memoranda were present at the trial and were tendered for cross-examination, that the memoranda were merely cumulative of other evidence properly in the record and that there was overwhelming evidence properly received of the defendant's guilt. Unquestionably these factors point to harmless error. See Finnegan v. United States, 8 Cir., 204 F.2d 105, certiorari denied 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347; United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687; United States v. Spadafora, 7 Cir., 181 F.2d 957, certiorari denied 340 U.S. 897, 71 S.Ct. 234, 95 L.Ed. 650. And under Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., we must disregard harmless error. The error in this case however was compounded by the fact that the jury was permitted, over objection by the defendant, to have the exhibits in the jury room during its deliberations. The jury thus had before it a neat condensation of the government's whole case against the defendant. The government's witnesses in effect accompanied the jury into the jury room. In these circumstances we cannot say that the error did not influence the jury, to the defendant's detriment, or had but very slight effect.

The second error complained of relates to an answer of a government witness to a question propounded by defense counsel on cross-examination. The trial judge ruled that the answer was not responsive and instructed the jury to disregard it but denied defendant's motion for a mistrial. Defendant contends that the answer was irreparably prejudicial and that no direction from the court, however strong, could eliminate the prejudice thereby created. We believe the error committed relating to the admission of the memoranda made by the narcotic agents is sufficiently prejudicial to warrant reversal and, since it is unlikely that the second alleged error will recur on a new trial or will occur under the same setting and circumstances, no useful purpose would be served by passing on it.

The judgment of the District Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

SCHNACKENBERG, Circuit Judge (concurring).

The result reached by Judge Swaim is, in my opinion, right. I believe that, with one exception, the grounds stated are also right. I find myself unable to agree with the proposition that the memoranda made by the chemist were admissible under...