Moore, Smith and Anderson, Circuit Judges. Moore, Circuit Judge (dissenting).
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from a judgment of conviction, following a jury trial in the United States District Court for the Southern District of New York before Judge Pollack, on a two-count indictment. The first count charged the sale of a quantity of cocaine in violation of 26 U.S.C. §§ 4705(a) and 7237(b), and the second count alleged a conspiracy to sell and receive illegally imported drugs under 21 U.S.C. §§ 173, 174. At the trial there were two defendants, Albert Puco, sole appellant here, and Roberto Gonzalez, and both were convicted on both counts. We find error on Puco's appeal and reverse and remand for new trial.
On June 25, 1969 undercover narcotics agents and an informer, later identified as Al Martin, met with Gonzalez to arrange for the purchase of a large quantity of heroin. Gonzalez attempted to reach his "contact" or supplier but was unable to do so. Gonzalez identified his contact as a person by the name of "Al." There followed a series of meetings between the agents and Gonzalez where various terms of the sale were discussed, but the parties were never able to reach agreement, and Gonzalez reported that "Al" was "feeling heat" (i.e., sensed the presence of enforcement agents) and would not go through with the transaction. During these meetings on two occasions Agent Scrocca spoke with "Al" on the telephone.
After the heroin deal fell through, Agent Ellin approached Gonzalez asking if he could purchase some cocaine. Gonzalez told Ellin that he could get a quantity of cocaine at an excellent price from the same contact. Gonzalez stated that he could supply the highest quality Bolivian cocaine available rather than the Peruvian type which was more common on the street. Arrangements were made for Ellin to drive Gonzalez to an address on White Plains Road on the evening of July 2, 1969. The two men parked the car and waited until a man identified later as appellant Albert Puco came out of a TV repair shop. Ellin testified that Gonzalez said "There is my man now. He has the stuff in a brown bag." Puco walked directly into an adjoining apartment building. Gonzalez got out of the car and entered the same building, returning after 30 seconds with a bag containing one-half kilogram of cocaine. Surveilling agents then moved in and arrested Gonzalez. Puco at the same time walked out of the apartment building and rapidly up the street where he was arrested by one of the agents.
Both Gonzalez and Puco testified at the trial. Gonzalez admitted the dealings with the agents and the events on White Plains Road, but he denied that he knew Puco or that Puco had any part in the operation. Puco likewise denied that he knew Gonzalez or had any part in the transaction. He maintained that he had closed his TV shop and was walking to his car when he was approached by an agent, asked for his identification, and then told he was under arrest. He denied entering the apartment building.
Appellant contends that a post-arrest, out-of-court statement made by Gonzalez to Assistant United States Attorney Johnson implicating Puco was improperly placed before the jury. At the trial Mr. Johnson asked Gonzalez a series of questions about this statement; each question was stated as "Did you tell me" or "Do you recall me asking you * * *." Gonzalez agreed to much of what was so asked but denied each of several such assertions involving Puco, to which objection was made. We find this contention of appellant that prejudicial error was injected here well taken. Using this statement, which was never admitted into evidence against either defendant, in this way in effect placed the credibility of the prosecutor himself before the jury and was therefore highly prejudicial. The prosecutor by his reading from the purported statements and the form of his questions was plainly representing that Gonzalez had in fact made the statements to him. This practice has been widely condemned as this court noted in a factual situation very similar to the present case. United States v. Block, 88 F.2d 618, 620 (2d Cir. 1937):
The judge's charge to the jury mended nothing; he left the jury to disentangle in their minds the innocuous part which the witness had conceded from the great bulk which he had disaffirmed * * * the natural conclusion was not only that defendants (were guilty of the crimes charged) but that they had suborned the witness to deny it.
[See also, Greenberg v. United States, 280 F.2d 472, 474-475 (1 Cir. 1960); Dunn v. United States, 307 F.2d 883, 885 (5 Cir. 1962).]
Another point raised by appellant involves the conspiracy count charging violation of 21 U.S.C. §§ 173, 174 (the narcotics importation statute). Puco contends that there was insufficient evidence to charge him with the knowledge that the drug was imported as required by section 174. In Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1969), the Supreme Court found the provisions which allowed a conclusive presumption of the required knowledge of importation to be made from mere possession were unconstitutional since, unlike heroin, there is a substantial amount of cocaine actually produced in this country. The government was therefore required to present either direct or circumstantial evidence showing Puco had such knowledge. Moreover, as this court held in an opinion by Judge Hays in United States v. Massiah, 307 F.2d 62, 69 (2d Cir. 1962), rev'd on other grounds, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246, the government must prove that the drugs were imported to the knowledge of each defendant and such knowledge by one defendant of illegal importation may not be imputed to the other defendants. [See, e.g., Hernandez v. United States, 300 F.2d 114 (9 Cir. 1962); Jefferson v. United States, 340 F.2d 193 (9 Cir. 1965), cert. denied, 381 U.S. 928, 85 S. Ct. 1567, 14 L. Ed. 2d 686; and United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11.] The government argues that since it did present testimony showing that Gonzalez had told his prospective customer that the cocaine came from Bolivia and since it had presented circumstantial evidence that Puco was Gonzalez's supplier (i.e., the statement made by Gonzalez pointing out Puco on the street; the identification of Puco's voice by Agent Scrocca; and the fact that Puco was said to have entered the apartment building shortly before Gonzalez emerged with the cocaine) the jury could then further infer that the only way that Gonzalez could have known that the cocaine originated in Bolivia would be if he had been told this by Puco. We doubt that this is sufficient evidence to support a finding of knowledge of importation on the part of Puco, but in view of our ruling on the first point we find it unnecessary to determine the sufficiency of this proof.
Since we find prejudicial error in the manner in which the prosecutor placed his own credibility in the balance against that of the witness, we do not reach the further contention that the use of the statement involved a violation of the Bruton doctrine.*fn1 We find no ground for reversal in appellant's other claims of error.
Reversed and remanded for new trial.
Reversed and remanded for ...