United States v. Robert Howard Brown A/K/A Howard Brown
Opinion
OPINION OF THE COURT
This appeal challenges an April 29, 1971, judgment of conviction and commitment based on a jury verdict finding defendant guilty of a one-count indictment charging the defendant with assaulting, resisting, and interfering with the United States officers of the Bureau of Narcotics and Dangerous Drugs while engaged in the performance of their official duties, in violation of 18 U.S.C. § 111. One such officer was shot by defendant about midnight when he was in the process of ejecting his local Police Chief from his home, 2 3 after such Chief had informed him that there were federal narcotics agents outside who wanted to see him. Thereafter, there were sounds of water running in the house and 30 minutes later defendant came out and surrendered.
*571 Defendant objects to the Government’s referring in its opening and closing arguments to the circumstances which led the agents to Brown’s residence, namely, the belief that Brown possessed heroin 3 and that, after a search warrant for the premises had been secured the next morning, the presence of heroin in a drainpipe from the laundry sink and in a glass jar found in an upstairs closet was determined. After a careful consideration of the record, we can find no reversible error in the rulings of the trial judge admitting this evidence 4 and permitting the above-described arguments. See United States v. Todaro, 448 F.2d 64, 67 (3d Cir. 1971), and cases there cited; United States v. Ferrone, 438 F.2d 381 (3d Cir. 1971).
Secondly, defendant contends that his motion to suppress the gun and the heroin residue should have been granted. The Affidavit for Search Warrant justified the search for heroin and the gun. 5 See United States v. Singleton, 439 F.2d 381 (3d Cir. 1971); cf. United States v. Harris, 403 U.S. 573, 577-583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).
Finally, defendant claims that a new trial is required due to the admission in evidence of a prior consistent statement made by a Government witness in a state court hearing five days after a prior inconsistent statement by such witness had been testified to by a defense witness. 6 Particularly in view *572 of the curative instruction given by the trial judge, we have concluded that this contention must be rejected. See IV Wigmore, Evidence (3d Ed.), § 1126, p. 202; United States v. DeLarosa, 450 F.2d 1057 (3d Cir., 1971); cf. United States v. Grosso, 358 F.2d 154, 158 (2d Cir. 1966), rev’d on other grounds, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).
The April 29, 1971, judgment will be affirmed.
. During the struggle between the Police Chief and defendant, the federal agents had come up on the porch and said, “Police, drop the gun. Federal Agents, drop the gun.”
. We note that the evidence was also admissible to refute the defense that Brown acted reasonably in shooting the agent because he believed he was being robbed, see United States v. Antrobus, 191 F.2d 969, 971 (3d Cir. 1951), cert. denied, 343 U.S. 902, 72 S.Ct. 637, 96 L.Ed. 1321 (1952), and was a necessary ingredient in explaining the crime in question. See United States v. Bozza, 365 F.2d 206, 212-214 (2d Cir. 1966); Hanks v. United States, 388 F.2d 171, 174-175 (10th Cir. 1968), cert. denied, 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131 (1968).
. The receipt of information from “an informant under the supervision of the Bureau of Narcotics and Dangerous Drugs” to whom a number had been assigned and who allowed the Special Agent to monitor the call from defendant, stating that “two pieces” (heroin) would be delivered to the informant at a certain restaurant by defendant’s wife, confirmation of defendant’s name, address and phone number as revealed by the informant, observation of the wife leaving defendant’s home in her car and proceeding toward the restaurant, the finding of jars of lactose (a substance used as a cutting material for heroin) in the back of the car, and the informant’s statement that defendant told him he had $40,000. of heroin in his possession, constituted sufficient information. As to the gun, it is not necessary to rule on the Government’s contention that no warrant was needed to seize a gun which could be used, and had already been used once, to inflict harm on law enforcement agents because the search warrant was valid. See Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
. On direct examination the Government witness (a local Police Chief) testified that while he was backing out of defendant’s front door, “the door sort of closed and as I was getting out of a crouched position, the door opened and that is when the shot was fired” (N.T. 157). The defense witness (a local reporter) testified that the Police Chief had told him a few *572 hours after the shooting, ‘T grabbed the barrel and was jmshing it downward when he pulled the trigger and the rifle fired” (X.T. 316). The reporter also testified that the Police Chief had given the following testimony nt a Magistrate’s hearing five clays after the shooting: “I then let go of the barrel and was backing out of the door when he fired the rifle. It struck the agent.” (N.T. 327).
Reference
- Full Case Name
- UNITED STATES of America v. Robert Howard BROWN A/K/A Howard Brown, Appellant
- Cited By
- 3 cases
- Status
- Published