United States v. White, 320

• Citation: 223 F.2d 674
• Decision Date: 10 June 1955
• Docket Number: No. 320,Docket 23517.,320
• Parties: UNITED STATES of America, Appellee, v. William T. WHITE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

223 F.2d 674 (1955)

UNITED STATES of America, Appellee, v. William T. WHITE, Defendant-Appellant.

No. 320, Docket 23517.

United States Court of Appeals Second Circuit.

Argued May 6, 1955.

Decided June 10, 1955.

Arnold D. Roseman, New York City, for defendant-appellant (Harry Silver, Brooklyn, N. Y., on the brief).

J. Edward Lumbard, U. S. Atty., for Southern Dist. of N. Y., New York City, for appellee, Walter L. Stratton, Asst. U. S. Atty., New York City, of counsel.

Before CLARK, Chief Judge, MEDINA, Circuit Judge and DIMOCK, District Judge.

DIMOCK, District Judge.

Appellant was convicted of the sale of narcotics. The evidence against him consisted of testimony of Government agents as to his actions which they observed and their testimony with respect to an oral confession which he is alleged to have made. While the evidence includes testimony that a government informer, after being searched and found to have no drugs in his possession, was seen giving money to appellant and, thereafter, returned to the government agents with drugs in his possession, it does not include testimony of any eyewitness to the delivery of the drugs. Nor does the evidence exclude the possibility that the informer, said by the Government to have died before the trial of this case, may have obtained the drug from someone other than appellant. Thus the alleged confession was of prime importance.

Appellant contends, first, that the Government's case lacked the requisite corroboration of appellant's alleged confession. The Government's case, independent of the alleged confession, is wanting only in evidence of the actual delivery of the drug. The rule does not require that corroboration of confessional proof be, in itself, sufficient to preponderately establish guilt, see United States v. Markman, 2 Cir., 193 F.2d 574, 576; it is satisfied where "* * * the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth." Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164. The corroboration here seems to be sufficient under the Opper case.

Appellant argues, next, that Judge Dawson erred in admitting evidence concerning the confession when it became clear that the Government had in its possession a wire recording which contained at least parts of the confession, in failing to direct the Government to produce the recording and in failing to set aside the verdict and grant a new trial upon the ground that the testimony concerning the confession contained substantial discrepancies when compared with the recording. Since the matter at issue regarding the confession was not the contents of the tape recording but what the appellant had said, the best evidence rule did not require that the recording be produced and oral testimony of what had been said was admissible. See Herzig v. Swift & Co., 2 Cir., 146 F.2d 444; Meyers v. United States, 84 U.S.App.D.C., 101, 171 F.2d 800, 812-813, 11 A.L.R.2d 1. What is more, appellant did not request during the trial that the recording be produced. Thus appellant's claims with respect to evidence concerning his confession depend, for their validity, upon the claim of substantial discrepancy. The truth is that the tape recording is fragmentary and, to some extent, unintelligible. While there were slight discrepancies between the testimony and the recording they are insufficient to affect the credibility of the witnesses and, moreover, the recording is, itself, highly damaging to appellant.

Appellant claims that he was prejudiced by the admission in evidence of testimony concerning an episode which, according to the testimony, took place on a date about two weeks after the date on which it was alleged that the crime was committed. Judge Da...