Appeal from conviction and sentence, after jury trial, in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, for possessing with intent to distribute quantities of cocaine and marihuana.
Oakes, Circuit Judge, Frankel and Kelleher, District Judges.*fn*
Convicted upon seemingly powerful evidence, and sentenced to concurrent terms of which the longer is for 10 years' imprisonment, the defendant complains that the trial judge committed reversible error by adding two years to what the sentence might otherwise have been because he was convinced beyond a reasonable doubt that the defendant had perjured himself. A lesser question is whether there was prejudicial impropriety in Judge Mishler's intervention to press for corroboration of testimony by defendant's wife on his behalf after she had volunteered that such corroboration was available. Rejecting both grounds of appeal, we affirm the conviction.
On the evening of June 22, 1973, the appellant was arrested under a warrant charging unlawful heroin dealings for which he was thereafter convicted in the Southern District of New York and sentenced to a three-year term he is now serving.*fn1 At the time of the arrest he was carrying a paper bag that contained a number of packages of mannite, a substance commonly used to dilute narcotics. Later in the night, at the law enforcement office to which he was taken, an inventory search produced from appellant's pocket 2.4 grams of cocaine wrapped in tin foil and six marihuana cigarettes. A far more damning haul, however, was taken elsewhere.
While appellant was being arrested, narcotic officers were executing a search warrant for his house in Elmhurst, Queens. Appellant was taken to the house and detained there while the search proceeded. The officers found in the master bedroom more than a pound of cocaine in a shopping bag which also contained two pounds of mannite and two measuring spoons. Another brown shopping bag held two pounds of marihuana and a quantity of hashish. Among the other things in the master bedroom were a scale and measuring pan on a bedside table; a suitcase near the bed holding more mannite, a bottle of lactose, two strainers, a measuring spoon, and two rolls of aluminum foil; a metal box containing currency and coins amounting to over $3,000, a holster, and a supply of.38 caliber cartridges; and a jewelry box on a dressing table in which was a tin foil package of about four grams of cocaine. Elsewhere in the house were found a small amount of marihuana and eleven marihuana cigarettes.
Before the search had ended an officer in charge began to order removal of some mirrors in a basement bar to see if they concealed contraband. The appellant protested, with apparent success, that this action, costly to repair, was unnecessary because the agents already had everything.
Testifying in his own defense, appellant said he had "tried" cocaine and marihuana, but that he knew nothing of the quantities of these substances or of the other paraphernalia found in his bedroom. He said the mannite he'd been carrying was for a friend named John. He was employed, he said, as a garage man and parking attendant earning, according to his tax returns, some $6,000 to $7,000 a year. He also told that he had since 1966 been buying a new Cadillac automobile every two years and that for his house, priced at $64,000, he made a $36,000 down payment in November 1972, $10,000 in a certified check and $26,000 in currency.
Supporting the latter point, appellant's wife testified that $10,000 of the down payment had come from relatives and $12,000 from "hitting" a number.*fn2 As for the $3,000 in currency and coins found in the bedroom, Mrs. Hendrix explained that she and her brother owned a boutique in Atlanta for which he sent her money periodically to purchase clothing. On cross-examination she could not remember any stores where she had made such purchases, but volunteered that her brother, to whom she sent the bills, would be able to help her with this information. The district judge's suggestion that she use a recess to call her brother gives rise to the second, and less consequential, of the arguments on appeal.
Following the highly desirable course of making explicit a factor he deemed material for the sentence, United States v. Velazquez, 482 F.2d 139, 142 (2d Cir. 1973); United States v. Brown, 479 F.2d 1170, 1172-73 (2d Cir. 1973), Judge Mishler said he was "convinced beyond a reasonable doubt" that appellant had perjured himself (as did his wife) on the witness stand. More pointedly, he said this was "the most outrageous situation of perjury in any trial" he had seen in some 13 years on the bench. Noting that the stories told under oath had been "bizarre to say the least," the judge went on to say:
". . . I think defendants should be encouraged to take the witness stand but when they take the witness stand I think they must understand that there is a certain ...