Before LUMBARD, Chief Judge, and CLARK and FRIENDLY, Circuit Judges.
John Freeman appeals his conviction on 16 counts of an indictment charging offenses against the narcotic laws, 21 U.S.C. § 174 and 26 U.S.C. §§ 4704(a) and 4705(a), on five occasions from March 10 to May 7, 1959 and conspiracy to sell narcotics between November 15, 1958 and May 7, 1959, 21 U.S.C. § 174.*fn1 Following his conviction by a jury, Freeman was sentenced on February 19, 1960 to serve 20 years imprisonment and to pay fines totalling $16,000.*fn2 The appellant's three principal claims of error concern the admission of evidence of a crime allegedly unrelated to the conspiracy charged, the court's permitting a co-conspirator to testify that she had pleaded guilty in the state court with respect to possession of narcotics which she said had been given to her by Freeman, and the trial judge's alleged refusal to permit impeachment of three narcotic agents called as witnesses for the defense. We find no error requiring reversal in the rulings of the trial court or in the conduct of the trial and we affirm the judgment.
In all, four agents of the Bureau of Narcotics, a special employee of the Bureau, a co-conspirator not on trial and a New York City police detective offered evidence of Freeman's guilt. As there is no dispute as to the sufficiency of this evidence, we need only summarize it briefly. On March 10, 1959, Agent McDonnell arranged to purchase $3,000 of heroin from Freeman. The heroin was delivered through one Richard Woodruff, who had formerly been employed by Freeman in his florist shop in Brooklyn, and Woodruff took the money to Freeman. Four days later, on March 14, Freeman gave Emma Ward a brown paper bag containing heroin for delivery in Chicago to her brother, Otis Sears. When Miss Ward arrived at LaGuardia Airport to emplane for Chicago she was arrested by a New York City detective. Freeman complains that her testimony that she pleaded guilty in the state court to possession of narcotics on this occasion was error. Miss Ward testified that she had made previous trips to Chicago for Freeman to deliver narcotics to her brother.
On March 31, Freeman, through Woodruff, sold five pieces of heroin to Agent McDonnell for $2,800, which money was delivered to Freeman at the florist shop by Woodruff.
On April 9 McDonnell dealt directly with Freeman at the florist shop and paid him $900 on account for three envelopes of heroin which he later received from Woodruff at Woodruff's apartment. McDonnell paid Freeman the balance, $350 on April 14 and $400 on April 16. McDonnell made another purchase of heroin from Freeman on April 24 for which he paid $2,200. On May 6 McDonnell arranged with Freeman to buy 120 ounces of heroin for $9,190. When the heroin was delivered on May 7 to McDonnell at 415 Washington Street, Brooklyn, by two of Freeman's messengers, John Love Freeman and Georgie Fludd, they were arrested.
Freeman took the stand and denied that he had engaged in any of the transactions and claimed that he had been "framed" by three narcotic agents, Benjamin Fitzgerald, Francis E. Waters and James P. Hunt, because he refused to assist them in securing evidence against others in the narcotics traffic.
Evidence of alleged unconnected crime.
Former Narcotics Agent Copeland testified that on February 5, 1959 he gave Freeman $4,800 in government funds for narcotics which were never delivered and that the money was not repaid. There was no objection to the introduction of this testimony. Copeland's testimony was to the effect that Freeman agreed to make a delivery of narcotics, including two extra pieces which Freeman owed Otis Sears of Chicago from a previous deal. The next day when Copeland asked for the return of the money Freeman told Copeland that something went wrong and he did not return the money.
There was no error in the admission of this testimony. The Jury could find that Freeman had been trafficking in narcotics at least as early as December 1958. Emma Ward testified that she had made trips to Chicago, the home of her brother Otis Sears, a co-defendant not on trial, in December 1958 and February 1959. At some time in February, when she was scheduled to make a trip, Freeman called the trip off since he had no narcotics for her to deliver; instead he called Sears to explain that his source had supplied him sugar instead of heroin. As we have noted, Ward was arrested in March at LaGuardia Airport while about to board a plane to deliver heroin to Sears in Chicago. Woodruff testified that on January 1, 1959 he discovered a packet concealed in flowers he was delivering for Freeman. When he complained to Freeman that he was not being paid to deliver "stuff," Freeman assured him that he would receive substantial payment.
Even though the narcotics were never delivered to him, Copeland's testimony that the narcotics which he had bought would contain two extra pieces "that were due Otie [Sears] on a previous deal" tended to show that Freeman had been engaged in a conspiracy with Ward, Sears, and possibly others to sell narcotics prior to February 5, 1959.
Copeland's testimony was also relevant to Freeman's defense of "frame-up." In his opening statement to the jury, Freeman's counsel argued that "from 1951 until the present time" Freeman "has not trafficked any narcotics" or "committed any crimes," and that he "has gone straight for the last eight years now." He added that federal agents had in August 1958 tried to force Freeman to become an informer. When he refused they threatened him with "twenty years in jail." The present trial was thus "The product of a frame-up" because Freeman "refused to become a Judas and an informer." The Copeland testimony was therefore at least limitedly admissible as tending to show that Freeman was a willing dealer in narcotics whom it would be entirely unnecessary to "frame." See United States v. Smith, 283 F.2d 760 (2 Cir. 1960).
In any event, no objection to Copeland's testimony was taken at the trial and accordingly this point is not available to Freeman on appeal. See United States v. Haynes, 291 F.2d 166 (2 Cir. 1961); United States v. Sansone. 231 F.2d 887 (2 Cir. 1956), ...