Appeals from convictions, after jury trial, in the United States District Court for the Southern District of New York, Robert L. Carter, J., of distributing and possessing (with intent to distribute) cocaine, and conspiring to do so. Affirmed in part; reversed in part.
Moore, Friendly and Feinberg, Circuit Judges. Friendly, Circuit Judge (concurring and dissenting).
Co-defendants Theodore Frattini and Steven Cardile appeal from convictions after a jury trial in the United States District Court for the Southern District of New York, Robert L. Carter, J., on two counts of distributing and possessing (with intent to distribute) cocaine, and conspiring to do so. 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846; 18 U.S.C. § 2. On February 14, 1974, the judge sentenced each defendant to a three year term of imprisonment on count 1, execution of which was suspended except for six months, and three years of probation on count 2. On appeal, defendants press various claims of error. For reasons stated below, we reverse Frattini's conviction but affirm as to Cardile.
The charges involved here stem from a government agent's purchase of 56.35 grams of cocaine from Floyd M. Parton, a co-defendant who pleaded guilty to one count prior to trial and testified for the Government against appellants.*fn1 The prosecution's theory of the case -- supported chiefly by testimony from the agent, Douglas Driver, and Parton -- was that Parton functioned as middleman between appellants and the buyer, exchanging the drugs conveyed by the former for the purchase money ($1,700) provided by the latter. According to the Government's opening statement as well as Parton's evidence, Cardile was the one who actually supplied the drugs to Parton. Frattini participated in the transaction by negotiating with Parton and accepting the payment from him.
During the trial, the judge allowed into evidence -- over Frattini's objection -- Government Exhibit Nine, a chemist's report on the cocaine bought by Agent Driver. Aside from the chemical analysis, signed by the chemist, the document contained a notation above the signature of Agent Driver that the material submitted for testing was received by defendant Parton
from one John Doe #1 (believed to be Theodore FRATTINI) who was parked in front of the Diner [where the sale took place] in a 1968 yellow Chrysler bearing N.Y. registration XT 1417.
On appeal, Frattini contends that this statement was inadmissible hearsay,*fn2 the introduction of which was error; we agree, and accordingly reverse his conviction.
This case is governed by United States v. Ware, 247 F.2d 698 (7th Cir. 1957), which overturned a narcotics conviction because of the improper admission into evidence of envelopes bearing notes by government agents on the circumstances of the drug purchases. Accord, United States v. Brown, 451 F.2d 1231 (5th Cir. 1971); Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961). Cf. United States v. Adams, 385 F.2d 548 (2d Cir. 1967) (harmful comments never received in evidence). Although the bare chemist's report was admissible under the business records exception to the hearsay prohibition, Ware, supra, 247 F.2d at 699-700, the incriminating remarks of Agent Driver were not. Moreover, the erroneous receipt of these comments in evidence cannot be viewed as harmless since the prosecutor stressed them in summation, and the jurors were allowed to examine the exhibit during their deliberations. Ware, supra, 247 F.2d at 700-01; Brown, supra, 451 F.2d at 1234; Sanchez, supra, 293 F.2d at 267, 269. See note 2 supra.
The Government, however, seeks to distinguish Ware in that there the hearsay declarations neatly condensed the whole case against the defendant, 247 F.2d at 700, while here the objectionable statement actually "muddie[d]" the prosecution's proof, given by Parton, that Cardile and not Frattini transmitted the drugs.*fn3 But appellee misconceives the essential thrust of this argument. In Ware, the fact that the challenged "memoranda were merely cumulative of other evidence properly in the record" was regarded as a mitigating factor. 247 F.2d at 700. In this case, however, the exhibit at issue contained evidence not theretofore admitted and not admissible at all because it was speculation by Agent Driver based upon what he had learned from some other source. In addition, the exhibit "switched theories" on Frattini in devastatingly harmful fashion. Until admission of the report, the jurors heard no testimony placing the cocaine in Frattini's possession. But after its receipt, they could have concluded that Frattini was directly linked to the sale. We cannot therefore say that this highly significant piece of evidence, specifically requested by the jurors for scrutiny in the jury room, did not affect their view of the case or influence them to defendant's detriment.
The Government also contends that the part of the report relating to the yellow Chrysler was "in fact admissible as an implied prior consistent statement of Parton after his testimony had been attacked as a recent fabrication . . . ."*fn4 According to appellee, the challenged statement tends to show that Parton had told the agent
long before he had been arrested and had a motive to fabricate, that the occupant of the Chrysler was one of the people who supplied him with cocaine. Otherwise, the agent would not have recorded and checked out the ownership of the vehicle and come to the erroneous conclusion that Frattini had handed the drugs to Parton.*fn5
Even ignoring the strained nature of the argument (which relies on supposed statements by Parton to Agent Driver to rehabilitate the former's testimony, attacked as the product of his post-arrest lies), we would in any event reject the claim because it does not go far enough. Whatever its merits with respect to the remarks about the Chrysler, the prior consistent statement rubric clearly fails to cover the vital preceding phrase identifying Parton's supplier as "one John Doe # 1 (believed to be Theodore FRATTINI)" since, as we have already remarked, this comment ...