U.S. Court of Appeals for the Second Circuit, 1959

United States v. Roland H. Owens

U.S. Court of Appeals for the Second Circuit · Decided November 4, 1959 · Clark, Moore, Smith

271 F.2d 425; 1959 U.S. App. LEXIS 3150 (Federal Reporter, Second Series)

Counsel

Louis Kaye, New York City, for defendant-appellant., S. Hazard Gillespie, Jr., TJ. S. Atty., and Robert B. Fiske, Jr., and Kevin Thomas Duffy, Asst. U. S. Attys., S.D. N.Y., New York City, for appellee.

Cases that cite this one

15 later published cases cite this decision.

United States v. Bentvena (District Court, S.D. New York 1960)
Burgo v. Commissioner (United States Tax Court 1978)
United States v. Mathew J. Franicevich (5th Cir. 1973)
United States v. Boyce Mitchell (6th Cir. 1975)
John William Smith v. Dominick Spina, Individually and as Director of the Police Department of the City of Newark, N. J. (3d Cir. 1973)
United States v. Charles C. Soles (2d Cir. 1973)
United States v. Sperling (District Court, S.D. New York 1973)
Suggs v. State (Md. Ct. Spec. App. 1969)
United States v. Wolfson (District Court, S.D. New York 1968)
United States v. Louis A. Marchisio, John H. Seiter and W. Ward Whipple (2d Cir. 1965)
State v. Johnson (Ariz. 1965)
Joseph Francis Newman v. United States (8th Cir. 1964)
William Dennis Riggs v. United States (5th Cir. 1960)
United States v. Owens (District Court, S.D. New York 1960)
Victor Oddo, D.B.A. Oddo's Food Center v. Interstate Bakeries, Inc. (8th Cir. 1959)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM.

Defendant is appealing from a fifteen-year sentence as a second offender under the narcotics laws. We have recently affirmed his conviction in the Western District. United States v. Owens, 2 Cir., 263 F.2d 720. He claims error because at his trial, cross-examination brought out this earlier conviction which had not then been affirmed. This, it seems, would be held error in the District of Columbia, Fenwick v. United States, 102 U.S.App.D.C. 212, 252 F.2d 124, relying on a particular D.C. statute, while other circuits have held such cross-examination proper unless or until the conviction has been reversed. United States v. Empire Packing Co., 7 Cir., 174 F.2d 16, 20, certiorari denied 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758; Bloch v. United States, 9 Cir., 226 F.2d 185, certiorari denied 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826; 9 Cir., 238 F.2d 631, certiorari denied 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910. And we have agreed, even where there was a later reversal, but followed by a plea of guilt. United States v. Cipullo, 2 Cir., 170 F.2d 311, certiorari denied 336 U.S. 946, 69 S.Ct. 805, 93 L.Ed. 1103. We are not disposed to question this ruling particularly where, as here, the conviction was later affirmed and the cross-examination was to meet defendant’s denial on direct examination of being a drug peddler.

Nor are other claims of error well taken. The search of defendant’s car was quite justified on the information the narcotics agents possessed. United States v. Kancso, 2 Cir., 252 F.2d 220. And the entire. evidence, including the finding of the heroin concealed in the car, afforded ample support for the jury’s verdict. A claim of hearsay as to a druggist’s identification of defendant as a purchaser of a heroin adulterant falls because the testimony actually came from defendant himself on direct examination. The trial court properly charged the jury in refusing to assess responsibility for the failure of either side to call the druggist as a witness. United States v. La Rocca, 2 Cir., 224 F.2d 859. There was no evidence of entrapment and no occasion for a charge on the subject.

Conviction affirmed.

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