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United States v. Austin

decided: April 20, 1972.

UNITED STATES OF AMERICA
v.
DAVID AUSTIN, A/K/A TURTLE ET AL. APPEAL OF JAMES B. LEWIS



Max Rosenn and James Rosen, Circuit Judges, and Teitelbaum, District Judge.

Author: Rosenn

Opinion OF THE COURT

MAX ROSENN, Circuit Judge.

This is an appeal from a judgment of conviction on four counts involving the aiding and abetting of a sale of narcotic drugs on two occasions, in violation of 26 U.S.C.A. § 4704(a), § 4705(a). Appellant argues that certain testimony concerning prior statements of a witness for the defense should not have been admitted, and that the evidence as a whole is insufficient to support a guilty verdict. We do not agree.

As substantive evidence of guilt, the Government presented the testimony of two police officers, Saunders and Harris. Officer Saunders' testimony, in pertinent part concerning the first narcotics transaction may be summarized as follows: On June 24, 1970, Saunders entered a bar at about 2:55 P.M. and found the appellant Lewis engaged in conversation with an unknown person. Saunders approached Lewis and asked if he could purchase 20 bundles of heroin. He also asked him "if he could stand it" whereupon Lewis told him to wait a minute. Lewis left the front exit of the bar and walked west on Wallace Street. About fifteen minutes later, Austin walked in the bar, approached Saunders and asked him if he wanted 20 bundles. Saunders replied in the affirmative and Austin then fixed the price at $1300. Saunders asked Austin "where is Butch," referring to the appellant Lewis, to which Austin replied that he was outside.

Saunders, Harris and Austin then left the bar and walked west on Wallace Street. As they walked along Wallace Street, Officer Saunders observed the appellant Lewis talking to several unknown men. He turned to Lewis and inquired what he meant by a price of $65 a bundle. Lewis pointed to Austin and said: "See him." As Saunders, Harris and Austin departed, Lewis said to Austin: "Don't forget what I told you."

This testimony was substantially corroborated by Officer Harris. The officers purchased heroin from Austin on the same day as the incident related in Saunders' testimony.

Officer Saunders testified concerning the second narcotics transaction as follows:

Then [I] asked Lewis how many bundles could he get for the price of $2500, at which time the defendant, Lewis, asked for a piece of paper and a pen and figured up the price. The price came to -- he said we could get thirty-nine bundles for the $2500, and even at that he would be losing money, $35 or $40.

I then asked the defendant Lewis, could he go any lower. Lewis then stated to me that he didn't bag his own stuff, and if I wanted weight, he could get it for me, but he said that I would have to cut it and bag it myself, and this is time-consuming. I agreed to the fact that it was time-consuming.

Then I also said to Lewis, "Like on the other deal," referring back to 6-24-70, "that we asked for twenty bundles but you only came across with fifteen." Lewis then stated that, "I had to do it that way because I couldn't let my boys up here starve. I had to save some for the fellows up here," at which time the defendant then asked me what my name was. I stated to him my name was Robert Smith. He also asked Officer Harris what his name was. He told him his name.

Again, this testimony was substantially corroborated by Officer Harris. And, again, the officers purchased heroin from Austin on the day on which the incidents related above took place. The amount of heroin received was thirty nine bundles, corresponding to the terms of the conversation held between Lewis and the officers.

The defense sought to rebut this testimony by presenting Austin as a witness. Austin testified that the transactions were his own, admitted pleading guilty to the sale of narcotics and stated that Lewis had had nothing to do with the sales.

The Government then called the officers to the stand, and proceeded to introduce testimony concerning prior statements made by Austin. The judge allowed these statements, but at the same time cautioned the jury that they were for impeachment purposes only. The statements not only contradicted Austin's testimony for the ...


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