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United States v. Masino

decided: February 18, 1960.


Author: Lumbard

Before LUMBARD, Chief Judge, and SWAN and MAGRUDER,*fn* Circuit Judges.

LUMBARD, Chief Judge.

Masino appeals from his conviction on two counts for having dispensed and distributed four capsules of heroin, not in nor obtained from an original stamped package as required by law, in violation of 26 U.S.C. § 4704(a), and for receiving four capsules of heroin, knowing the same to have been imported contrary to law in violation of 21 U.S.C.A. § 174. He was sentenced to two years imprisonment and fined $200 on the first count, and to five years imprisonment and fined $200 on the second count; the fine on the second count was remitted, both sentences were suspended and he was placed on probation for concurrent periods of two and five years.

Masino contends that the court erred in restricting the cross-examination of the two principal government witnesses, Brown and Beville, in allowing the admission of improper rebuttal testimony, and in refusing to charge as requested. We agree and find that the errors taken together were so substantial as to require reversal of the conviction.

The case against Masino turned on whether or not Masino on the evening of November 24, 1955 received six capsules of heroin from Beville and delivered four of them to Brown. By the testimony of Brown (a special employee of the government), Beville (Masino's accomplice), and Newman (a treasury agent), the government sought to establish that Brown had telephoned Masino and informed him that he had $25 available for the purchase of narcotics. Brown obtained this amount from Newman and gave it to Beville. Subsequently Beville and Masino met at a designated place and drove away together in Masino's car. They parked and Beville left the car to get the narcotics while Masino waited. Five or ten minutes later Beville returned with eight capsules; he gave Masino six, kept two himself, drove back to Brown's car and gave Brown $5 change. When Masino's car came alongside Brown's car, Masino told Brown to roll down his window and when he did so Masino threw in a packet containing four capsules. Masino then suggested to Brown that they go to Brown's home and use the narcotics there, but Brown rejected this. The capsules were later turned over to Newman and upon examination were found to contain heroin.

Masino, while admitting his meeting with Beville and their purpose to secure narcotics, testified that when Beville returned to the car he reported that he had been unable to obtain narcotics as "the man was out." Masino denied receiving any narcotics, throwing anything into Brown's car, or asking to go over to Brown's home. Thus, except for minor details corroborated by narcotic agent Newman, the government's case depended on the testimony of Beville and Brown.

Cross-examination of Brown

Brown, on cross-examination, admitted having been an addict and using an eye dropper and hypodermic needle, but claimed that he had stopped using heroin in "October or maybe the end of September," 1955, after being a user for eight months. He also admitted coming into possession of fifty or more capsules of heroin in November, 1955.

The defense sought to show that Brown had an eye dropper and hypodermic needle in his possession after November 24, 1955. The defense also offered to prove that Brown had been arrested on November 25, 1955 on a charge of possessing a syringe and hypodermic needle, and that the proceedings against Brown in the City Court of Buffalo had been dismissed at the urging of the same Assistant United States Attorney who was prosecuting Masino.*fn1 However, the trial judge sustained the government's objection to this line of questioning, curtailed the cross-examination of Brown and excluded both the proffered evidence regarding the charge against Brown and the disposition of that charge by the Buffalo court.*fn2

The testimony sought from Brown was clearly relevant to his motives for testifying as a government witness and as such should have been admitted. When a witness in a criminal case is being questioned as to his possible motives for testifying falsely wide latitude should be allowed in cross-examination. Cross-examination is proper when its purpose is to reveal bias or interest on the part of the witness being examined. United States v. Lester, 2 Cir., 1957, 248 F.2d 329, 334-35. Brown, who admitted having been an addict, was arrested by the Buffalo police for possessing an eye dropper and hypodermic syringe at a time when he said he was no longer a user. It was highly relevant and material to bring out that the state court charge for possessing such instruments for the administering of narcotics had been quashed upon the intercession of the Assistant United States Attorney as was claimed by the defense and not denied by the government. This is the kind of situation where the widest possible cross-examination should be permitted. The appellant was entitled to have the jury know what had happened with respect to the charge, including any part which representatives of the government had played, so that the jury could draw its own conclusions with respect to possible motives for Brown's testimony. It was substantial error for the trial judge to restrict this line of cross-examination.

Cross-examination of Beville

The defense sought to cross-examine Beville regarding a three count indictment relating to a sale of narcotics in November, 1955. On direct examination the government had brought out that Beville had been indicted in November 1955 for his participation in the transaction involving Masino, that he pleaded guilty and was on probation. The record indicates that Beville had pleaded guilty to count 3 which related to the events of November 24 and that two other counts relating to a sale of narcotics on November 22 had been dismissed. When the defense sought to develop whether Beville had been indicted for the sale of narcotics on November 22 and whether Beville sold four capsules on November 22, 1955, the government's objections to these questions were sustained. Counsel argued that the disposition of the other two counts of the indictment bore on the reasons and motives which the witness might have in testifying for the government.*fn3

As in the case of Brown it was relevant for the defense to develop any facts bearing upon Beville's possible motives to falsify his testimony. All the facts regarding the indictment against him and the disposition of the other two counts were pertinent so that the jury could pass judgment on Beville's motives and their effect on the truthfulness of his testimony. United States v. Lester, supra.

Whether or not the government had brought out on Beville's direct examination his plea to one count of the indictment, the indictment and its disposition was a matter so intimately related to Beville's possible motives to falsify and his relationship to the government which had called him as its witness that the trial ...

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