United States v. Roland H. Owens
1959 U.S. App. LEXIS 3150 · 271 F.2d 425
November 4, 1959 · Docket 93, Docket 25761
Headnotes
Generated summaries- Headnote 1
The Court held that admitting Owens’s earlier conviction, which had not been affirmed on direct appeal, was proper to rebut his denial of being a drug peddler. The opinion relied on precedent such as United States v. Empire Packing Co., Bloch v. United States, United States v. Cipullo, and Fenwick v. United States.
- Headnote 2
The Court found the search of Owens’s automobile justified by information possessed by narcotics agents, citing United States v. Kancso and noting the discovery of heroin in the car supported the probative value of the seizure.
- Headnote 3
The Court affirmed the trial court’s instruction precluding the jury from attributing liability for not calling the druggist, finding the evidence did not compel such a consideration. The decision cited United States v. La Rocca.
- Headnote 4
In Owens, the Court held that the defendant’s earlier conviction was admissible to rebut his denial of being a drug peddler, finding no error in admitting the un‑affirmed conviction.
- Headnote 5
The search of Owens’s automobile was justified by the information possessed by narcotics agents, satisfying the automobile exception to the Fourth Amendment.
- Headnote 6
Owens’s testimony that he purchased a heroin adulterant was admitted, overcoming a hearsay objection because the statement was the defendant’s own testimony on direct examination.
- Headnote 7
The court properly instructed the jury not to assess responsibility for the failure to call the druggist because the evidence already resolved the relevant issue.
- Headnote 8
No evidence of inducement was presented in Owens, so the court found no entrapment and affirmed the conviction.
Opinion
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.