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Government of Virgin Islands v. Ventura

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: April 4, 1973.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
ANGEL LUIS VENTURA, APPELLANT

Van Dusen, Rosenn and Hunter, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

Defendant was convicted by a jury of two counts of having sold heroin in violation of 19 V.I.C. ยง 604(a), and was sentenced to a term of ten to fifteen years on each count, to be served consecutively. He appeals this sentence. The principal witness against defendant was Carlos Encarnacion, a former addict turned informer, who testified that he made the purchases from defendant on October 9 and 10, 1971. Police officers testified that on two occasions they had searched Encarnacion, given him money, followed him to building 38 in the DeChabert Project, had seen him enter and later leave, searched him again, and found heroin. The police did not, however, witness the sales themselves, which Encarnacion testified took place in apartment 242.

After close examination of the record and consideration of the briefs and oral arguments of counsel, we reject the defendant's contentions (1) that the Government should have endorsed the names of three persons on the information and produced at trial such three persons whom Encarnacion said were present at one or the other sale, and, at the least, should have informed defendant of the witnesses it intended to call and not to call,*fn1 (2) that the Government's cross-examination of the defendant as to prior drug usage was improper, (3) that the district court erred in admitting into evidence prior consistent statements of Encarnacion,*fn2 (4) that the district court erred in not allowing Encarnacion to be recalled by defendant solely for impeachment purposes, (5) that the Government did not challenge statements of Encarnacion as to whether he had had a drug overdose, which the Government allegedly knew to be false,*fn3 (6) that Encarnacion's testimony was incompetent,*fn4 (7) that the trial court should have given sua sponte a stronger cautionary instruction regarding Encarnacion's testimony than the instruction given, (8) that the evidence was insufficient to establish guilt beyond a reasonable doubt, and (9) that the defendant's sentence constituted cruel and unusual punishment. n.5 [FOOTNOTE OMITTED]

The judgment and commitment of January 28, 1972, will be affirmed.


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