The opinion of the court was delivered by: BARTELS
Two motions, one by defendant for a new trial on the ground that the complaint of Fred T. Dick, a United States Narcotic Agent, on which the warrant of arrest against defendant was issued, was false and fraudulent, and the other by the United States Government for an order revoking the bail of the defendant and for remand.
On September 14, 1959 defendant was arrested on the authority of a warrant issued May 8, 1959 by a U.S. Commissioner for the Eastern District of New York, was arraigned on September 15, 1959 and held on bail. The affidavit or complaint on which the arrest warrant was issued, was made by Dick and sworn to before the Commissioner on May 8, 1959. The affidavit described the sale by one Vincent Papa and the defendant on August 27, 1958 of a narcotic drug contrary to law (Title 21 U.S.C.A. § 174; Title 18 U.S.C. § 2). The pertinent portion of this affidavit reads as follows:
'That the source of your deponent's knowledge is a conversation had between William H. Newkirk and Anthony Passero, one of the defendants herein, in which Newkirk related to your deponent that he had placed an order with Passero for the above-mentioned amount of heroin; personal observations by your deponent in which your deponent observed Vincent Papa, also known as Charles Rinaldi, and Anthony Passero together on the northeast corner of 42nd Road and Crescent Street in Long Island City, Queens, N.Y.; your deponent further observed Anthony Passero walk across the street and meet William Newkirk and hand the above-mentioned heroin to him and observed Passero take money in exchange therefor; deponent further observed the defendant Passero rejoin Papa on the above-mentioned corner and saw both defendants leave in a 1949 grey cadillac.' (Emphasis added.)
Defendant was tried for making two sales of a narcotic drug in violation of law, one on October 15, 1958 and the other on August 27, 1958. Only the sale on August 27, 1958 is involved in this application. Concerning this sale the Government offered the testimony of three United States Narcotic Agents, William H. Newkirk, Arthur S. Fluhr and Fred T. Dick, together with the testimony of a 'special Government employee', Charles Williams (then serving a five-year sentence for violation of narcotic laws). Newkirk testified that at the instruction of Dick he and Williams made a telephone call at 11:50 p.m. on August 26, 1958 from New York to defendant and made an appointment to meet defendant later in Long Island City for the purpose of purchasing two pieces of heroin for $ 220; that pursuant to this appointment Newkirk and Williams drove to crescent Street and 42nd Road, Long Island City and met defendant in front of 42-38 Crescent Street; that defendant then came to the car driven by Williams in which Newkirk was a passenger and handed Newkirk a newspaper enclosing two cellophane envelopes which contained a white substance; that thereupon Newkirk delivered to defendant $ 220; that defendant walked across the street and later Newkirk saw defendant and Papa driving in the vicinity in a grey Cadillac car; that Newkirk then returned to Manhattan about 12:15 a.m. on August 27th and surrendered to Dick the newspaper and cellophane envelopes (pp. 46-48).
Agent Fluhr testified that on August 26, 1958 at about 11:50 p.m. he saw defendant enter a telephone booth in the Cocoanut Inn, Long Island City, and saw him leave the Cocoanut Inn, enter a Cadillac car and drive to Crescent Street and 42nd Road where defendant parked (p. 50).
Agent Dick testified that on August 26, 1958 he gave Newkirk $ 250 of Government's funds and later that evening drove to Crescent Street and 42nd Road, Long Island City, where he saw defendant and Papa enter a Cadillac car and that thereafter he met Newkirk and Williams in Manhattan and received from Newkirk the newspaper and envelopes which after field tests showed positive results (pp. 53-54). On cross-examination Dick stated that he observed the meeting that night but did not know what took place. His testimony in part was as follows:
'Q. And you don't know anything of your own personal knowledge of what took place on August 27th, 1958, do you? A. Nothing other than --
'Q. Not what somebody told you, your personal knowledge. A. I was going to say, sir, that I have nothing other than what I observed on that night.
'Q. Did you observe any money being passed from Newkirk to Passero? A. No, sir, I observed merely the meeting.
'Q. Did you observe any narcotics being passed from Passero to Newkirk? A. No, sir, I did not.' (R. 49-50).
Dick further testified that he placed defendant under arrest on September 14, 1959 at 21-63 27th Street, Astoria, at which time and place he had a conversation with defendant wherein defendant stated that he had intended to give himself up the following day and that he would turn the 1950 Dodge Coupe (another car driven by defendant and claimed to have been used for transportation of narcotics) over to Dick because he did not want his brother (the owner of the 1950 Dodge Coupe) to suffer for what he had done (pp. 56-57).
'Special employee' Williams testified that after he and Newkirk made a telephone call to defendant from New York on August 26, 1958, about 11:50 p.m., he drove Newkirk to Crescent Street, Long Island City, Queens, where he saw defendant and that when the car he was driving stopped at Crescent Street defendant came over and passed a package to Newkirk and Newkirk handed defendant $ 220. On Cross-examination a number of discrepancies appeared in Williams' testimony but not in this respect (pp. 69-71).
Defendant took the stand and denied the allegations of the indictment and the testimony adduced on behalf of the Government in any way implicating him with respect to the possession, sale or transportation of narcotics and denied that he had ever made the statement attributed to him by Dick, after his arrest in September, that he had intended to give himself up the next day or that he did not want his brother to suffer because of ownership of the 1950 Dodge Coupe (pp. 62-63).
At the conclusion of an eight-day trial defendant was convicted on the charge of selling and receiving narcotics in violation of ...